Lead Opinion
Case Summary
[1] Leroy Burke filed a frivolous lawsuit against Matthew Elkin, and Elkin responded with a counterclaim for abuse of process and a motion for summary judgment. Both parties proceeded pro sе. The trial court granted summary judgment in favor of Elkin and set the matter for a damages hearing. At the hеaring, Elkin, an attorney, testified regarding the time he spent defending against Burke’s frivolous suit and indicated that his hourly rate was $200. Based upon this evidence, the trial court awarded damages to 'Elkin in the amount of $1600 plus costs. On appeal, Burke argues that Elkin was not entitled to recover his own attorney fees as damages.
[2] We affirm.
Facts & Procedural History
[3] On April 21, 2015, Burke filed a complaint against Elkin based on Elkin’s prior rеpresentation of Burke in a 2001 post-conviction relief action. Elkin responded with a number of filings, including a counterclaim for abuse of process and a motion for summary judgment. Elkin designated evidence that Burke had previously filed suit against him based on the same claim. The priоr case was dismissed with prejudice in October 2006, and Burke did not appeal. Accordingly, Elkin arguеd that the instant action was frivolous and filed in bad faith. The trial court agreed and granted summary judgment in favor of Elkin on the complaint and counterclaim. The trial court then set the matter fоr a hearing on damages.
[4] At the damages hearing on August 27, 2015, Elkin testified in relevant part:
I’m an attorney practicing law for 25 years in the State of Indiana. I am an attorney in good standing with the Indianа Supreme Court, familiar with the time and costs associated with prosecuting an action suсh as this. Since the filing of this case and my filing of responses, various documents pointing out this has alrеady been tried and decided, filing a Motion for Summary Judgment, filing motions to strike and obtaining judgment, I put approximately 8.2 hours into the case, which would include obtaining affidavits, doing research, putting tоgether the various motions. I charge $200.00 an hour. Basically my attorney fees in this case arе my out-of-pocket costs and I’m asking for damages in the sum of 8.2 hours times $200.00, $1640.00.
Transcript at 4. Though given the opрortunity, Burke did not cross examine Elkin regarding the amount of attorney fees claimed. The trial court took the matter under advisement and entered judgment the following day against Burke in the amount of $1600 plus costs.
Discussion & Decision
[5] Burke’s sole argument on appeal is that the trial court abused its discretion when it ordered him to pay Elkin’s attorney fees. It did not.
[6] Despite the American Rule, Ind. Code § 34-52-l-l(b) makеs clear that a party to a civil action may recover attorney fees incurrеd defending against a frivolous action or an action litigated in bad faith. Similarly, attorney fees may be awarded as damages in an action for abuse of process. See I.C. § 34-52-l-l(c). The issue in this сase is whether Elkin may recover attorney fees for representing himself.
[7] In Ziobron v. Crawford,
[8] As set forth above, the trial court agreed with Elkin that Burke’s complaint was frivolous and that Elkin should recover damages for abuse of process. Burke does not appeal that determination. He challenges only the calculation of resulting damages. Pursuant to Ziobron, the trial court properly awarded Elkin rеasonable compensation for the time and effort he spent as an attorney dеfending himself below.
[9] Judgment affirmed.
Notes
. Burke asserts in passing that Elkin failed to “produce any time sheet, invoice, schedule or other document to evidence his alleged time.’’ Appellant’s Brief at 3. However, such a doсument was not required because Elkin testified at the damages hearing about the amount of time he spent defending the action and his hourly rate. Accordingly, there was evidence presented upon which the trial court could make a determination regarding the amount of damages.
Concurrence Opinion
concur.
Order
[1] Appellee, Matthew Elkin, by counsel, filed a Motion to Publish.
[2] Having reviewed the matter, the Court finds and orders as follows:
1. The Appellee’s Motion to Publish is granted.
2. This Court’s opinion heretofore handed down in this cause on April 20, 2016, mаrked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.
[3] Ordered.