MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 15 2019, 8:39 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Curtis Pearman Crystal G. Rowe Naples, Florida New Albany, Indiana Michael E. Brown Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Curtis Pearman, May 15, 2019 Appellant-Counterclaim Plaintiff, Court of Appeals Case No. 18A-PL-2074 v. Appeal from the Jennings Circuit Court Andrew Alexander Szakaly, The Honorable Timothy B. Day, Appellee-Counterclaim Defendant. Judge Trial Court Cause No. 40C01-1106-PL-127
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 1 of 21 Case Summary
[1] Curtis Pearman, pro se, as successor-in-interest to Norris Avenue Professional
Building Partnership (“Norris”), 1 appeals the judgment of the trial court in
favor of Andrew Alexander Szakaly. Specifically, Pearman appeals the trial
court’s order finding that Szakaly had an attorney lien in the amount of
$10,720.00 and the trial court’s judgment on the evidence in favor of Szakaly
regarding Pearman’s legal malpractice claim. We affirm.
Issues
[2] Pearman states several issues for our review. After our review of the record, we
consolidate and rephrase the relevant issues as follows:
I. Whether the trial court erred in finding that Szakaly had an attorney lien and was owed fees under a theory of quantum meruit.
II. Whether the trial court erred in granting Szakaly’s motion for judgment on the evidence with regard to Pearman’s legal malpractice counterclaim against Szakaly.
Facts
[3] The focus of this appeal is Szakaly’s legal representation of Norris. First, we
pause to note that the parties and trial court have made the record difficult to
understand. For example, there were several motions that the trial court failed
1 The trial court ruled that Pearman was “the appropriate party in interest.” Tr. p. 31.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 2 of 21 to address. Secondly, in a maneuver we do not understand, Szakaly failed to
withdraw his appearance for over one year after he was terminated by Norris.
Instead, other attorneys entered appearances on behalf of Norris and did not
ask Szakaly to withdraw. Third, the procedural posture gives us pause because
Pearman filed a counterclaim to Szakaly’s attorney lien. We will, however,
focus only on the issues and relevant facts 2 raised by the parties on appeal.
[4] Szakaly was hired to represent Norris in a lawsuit against Coordinated Health,
LLC (“Coordinated Health”) due to a landlord-tenant dispute. The parties had
a fee agreement, whereby Szakaly would be paid twenty percent of the final
judgment recovered plus $100.00 per hour for his legal services. Szakaly filed
the complaint against Coordinated Health on June 7, 2011. Szakaly remained
active in the litigation and filed a summary judgment motion on behalf of
Norris on February 17, 2012 (“Szakaly’s Summary Judgment Motion”), which
was denied. Later, the relationship broke down when Szakaly failed to file a
memorandum in May 2014 requesting judgment in Norris’ favor. As a result of
failure to file the memorandum, the trial court entered judgment in favor of
Coordinated Health and against Norris. Thereafter, Norris hired attorneys
from Clapp Law, who filed their appearance on June 4, 2014. Szakaly was still
listed as an attorney of record in the lawsuit. Clapp Law represented Norris on
appeal, and according to the record, it does not appear that Szakaly was
2 There are many facts the parties discuss in their briefs; however, we focus only on specific relevant facts in this opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 3 of 21 involved in the appeal. While the appeal process was ongoing, Pat Brown,
Pearman’s then-partner at Norris, sent Szakaly an email stating that Szakaly’s
legal representation was “no longer required.” Appellant’s App. Vol. III p. 150.
[5] On appeal, in Norris Ave. Professional Bldg. Partnership v. Coordinated Health, LLC,
28 N.E.3d 296, 298 (Ind. Ct. App. 2015), trans. denied, a panel of this court
reversed the trial court’s judgment in favor of Coordinated Health on March 25,
2015. The Norris Ave. panel determined that, although Szakaly failed to file the
subsequent memorandum with the trial court, Norris did not fail to prove it was
entitled to judgment merely because it neglected to file a brief, which would
have been “redundant” to Szakaly’s Summary Judgment Motion. Norris Ave.,
28 N.E.3d at 300. Accordingly, the trial court was ordered to enter judgment
on behalf of Norris. See id. at 303.
[6] After Coordinated Health’s petition for transfer to our Supreme Court was
denied, the trial court entered judgment in favor of Norris. That same day,
Norris, through its attorney at Clapp Law, filed a motion for a hearing on the
issue of damages, as that was the only issue left outstanding after the appeal. 3
[7] On August 7, 2015, Szakaly filed his notice of attorney’s lien and filed an
amended notice on August 31, 2015. Despite the August 2014 email
3 Again, Szakaly was still listed as Norris’ attorney on the CCS, but was already terminated.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 4 of 21 terminating his legal services, Szakaly emailed Clapp Law 4 on August 27, 2015,
stating, “I’ve remained counsel of record for Norris Ave. during this entire
lawsuit.” Appellant’s Supp. App. Vol. II p. 66. On September 18, 2015,
Szakaly continued to act as though he was Norris’ attorney and contacted all
other counsel of record, including Clapp, to determine damages recoverable
pursuant to the trial court’s order.
[8] Displeased with Szakaly’s continued involvement on behalf of Norris, on
October 9, 2015, Brown sent Szakaly another email stating: “[a]s contained in
the e-mail[] sent to you in [2014] I restate that your services are no longer
needed in the matter of Norris Ave. vs Coordinated Health. Please withdraw.”
Id. at 70. That day, Szakaly replied that he had “no record of the [2014] email
to which you refer. Please send a copy.” 5 Id. Brown responded, “[i]rregardless
[sic], you [sic] once again fired!” Id. at 72.
[9] On October 21, 2015, Norris, by counsel at Clapp Law, and Coordinated
Health filed a stipulated dismissal after settling the issue of damages for
$150,000.00. On October 22, 2015, Szakaly filed, and the trial court granted
Szakaly’s motion to withdraw his appearance. The same day, the trial court
issued a dismissal of the matter between Coordinated Health and Norris, but
4 The addressee on the email is “Julie Hunt.” Appellant’s Supp. App. Vol. II p. 66. We are unsure of Hunt’s relationship in this lawsuit. 5 In the initial email from Brown to Szakaly, Brown stated that the termination email was sent in 2012, which may have contributed to Szakaly’s confusion and subsequent response that he did not have a 2012 email. Brown later testified that 2012 was a scrivener’s error, and the email was sent in 2014.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 5 of 21 ordered that “the case shall remain open until the attorney lien(s) filed by
Andrew Szakaly are resolved.” Id. at 74.
[10] On August 29, 2017, Pearman, pro se, filed a counterclaim against Szakaly for
legal malpractice, breach of contract, and negligent misrepresentation. A few
days later, on August 31, 2017, Pearman filed a motion to dismiss Szakaly’s
attorney lien. On November 22, 2017, Szakaly filed his motion to dismiss
Norris’ counterclaim and attached an exhibit, which was the August 2, 2014,
termination email. 6 Pearman filed a motion for default judgment and a
response to Szakaly’s motion to dismiss on December 6, 2017. On December
12, 2017, Pearman served requests for admissions on Szakaly. 7 On December
26, 2017, Pearman filed a motion for leave to amend his counterclaim to add a
claim for tortious interference.
[11] On May 8, 2018, an evidentiary hearing was held on the attorney lien issue.
On May 24, 2018, the trial court entered an order in favor of Szakaly finding:
“Szakaly has a valid lien against Pearman for fair and reasonable compensation
pursuant to the equitable theory of quantum meruit” in the amount of
$10,720.00. 8 Appellee’s App. Vol. II p. 3. On August 9, 2018, the trial court
6 This is relevant because, as we will discuss further below, Pearman contends that the attached exhibits turned Szakaly’s motion to dismiss into a motion for summary judgment. Regardless, for clarity, we will continue to refer to this filing as the “motion to dismiss.” 7 Pearman also served an earlier set of requests for admissions on Szakaly on August 28, 2017, according to the requests’ certificate of service, which we will discuss below. 8 The trial court determined that Szakaly was owed a total of $13,020.00 but deducted the monies that were already paid to Szakaly by Norris.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 6 of 21 held a hearing on the counterclaims, and Szakaly moved for judgment on the
evidence. The trial court entered an order on August 27, 2018, granting
judgment in favor of Szakaly, stating that “Pearman presented no evidence as
to malpractice on the part of [Szakaly] or damages sustained.” Id. at 6.
Pearman filed a motion to correct error on June 4, 2018, which the trial court
denied on June 15, 2018. Pearman now appeals.
Analysis
I. Attorney Liens
[12] Pearman contends that Szakaly should not have been granted judgment on his
attorney liens, in part, because they were untimely filed. It appears that
Pearman is appealing the trial court’s findings and conclusions. Because the
trial court entered findings of fact and conclusions of law, “[w]e will set aside
findings of fact and conclusions of law only if they are clearly erroneous. . . .”
Sapp v. Flagstar Bank, FSB, 12 N.E.3d 913, 923 (Ind. Ct. App. 2014), trans denied,
(citations omitted). We give due regard to the trial court to determine
credibility of the witnesses. See id. “A judgment is clearly erroneous when the
record contains no evidence supporting the findings, the findings fail to support
the judgment, or when the trial court applies an incorrect legal standard to
properly found facts.” Id.
[13] Attorneys have several types of attorney liens that they can file. First is the
statutory lien. “An attorney practicing law in a court of record in Indiana may
hold a lien for the attorney’s fees on a judgment rendered in favor of a person
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 7 of 21 employing the attorney to obtain the judgment.” Ind. Code § 33-43-4-1.
“Indiana courts have also recognized liens which arise in equity to protect
attorney fees.” State Farm Mut. Auto. Ins. Co. v. Ken Nunn Law Office, 977 N.E.2d
971, 976 (Ind. Ct. App. 2012).
[14] The two types of equitable liens are retaining liens and charging liens. A
retaining lien “is the right of the attorney to retain possession of a client’s
documents, money, or other property which comes into the hands of the
attorney professionally, until a general balance due [to] him for professional
services is paid.” Id. (quotations omitted). On the other hand, a charging lien,
is “the equitable right of attorneys to have the fees and costs due [to] them for
services in a suit secured out of the judgment or recovery in that particular
suit.” Id. at 977. The distinction between the two types of equitable liens
mainly centers on the attorney’s possession of a client’s property.
[15] In the present case, Szakaly filed an attorney lien on August 7, 2015. Although
the document did not specify the type of attorney lien, Szakaly cited the statutes
for an attorney lien. As such, we assume that the August 7th filing was a
statutory attorney lien. Szakaly then amended his filing on August 31, 2015.
Again, he did not specify the type of attorney lien that he was filing. In this
filing, however, he cited to both the statutes providing for a statutory attorney
lien and a case dealing with equitable principles of quantum meruit. 9
9 Szakaly filed a second amendment on October 20, 2015, which the parties have not provided to us.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 8 of 21 [16] The trial court also did not specify the type of attorney lien it was considering.
The trial court ordered:
This Court having heard testimony and considered evidentiary matters now finds that Szakaly has a valid lien against Pearman for fair and reasonable compensation pursuant to the equitable theory of quantum meruit. Because Szakaly’s employment by Norris ended on August 2, 2014 his right to a contingency fee was extinguished at that point. He nonetheless provided valuable services to Norris between March 2011 and August 2014 which enhanced the ability of Norris to recover $150,000 in this matter.
Appellee’s App. p. 3. Based on the trial court’s language, we conclude that
Szakaly was granted a charging lien based on the equitable theory of quantum
meruit.
[17] On appeal, Pearman conflates the standards for the different types of liens. See
State Farm, 977 N.E.2d at 977 (noting that “Indiana is among the states that has
recognized a charging lien separate from the attorney lien statute”). For
example, while arguing that liens must be filed after final judgment, Pearman
cites cases finding only that statutory liens were untimely filed. We agree that
statutory liens must be filed after final judgment. See Clem v. Watts, 27 N.E.3d
789 (Ind. Ct. App. 2015). Pearman has cited no relevant authority, however,
that a charging lien must be filed after final judgment, and an early Supreme
Court case would imply otherwise. See Koons v. Beach, 46 N.E. 587, 587 (Ind.
1897), reh’g denied. The same is true of Pearman’s argument that charging liens
cannot be applied to settlements. Pearman cites no relevant authority stating
that a charging lien cannot apply to a settlement. See Benjamin Watson, THE
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 9 of 21 LAW OF INDIANA RELATING TO STATUTORY LIENS (W.H. Anderson 1996)
(summarizing Indiana law to conclude that an attorney may have an equitable
lien on the judgment and “funds in court recovered through his exertions”). To
the extent that Pearman argues that charging liens cannot be applied to
settlements, his argument is waived for failure to present cogent arguments on
appeal. See Ind. Appellate Rule 46(A)(8)(a).
[18] Because we conclude that an equitable lien was at issue, the requirements of a
statutory attorney lien did not need to be met. See In re Estate of Johnson, 855
N.E.2d 686, 700 (Ind. Ct. App. 2006) (concluding that “our review of the
record indicates that the trial court plainly acknowledged that Neiswinger’s lien
was not being granted by statutory allowance, but rather by the equitable
principle of quantum meruit. . . . In light of this equitable doctrine, we
conclude that no statutory basis is mandatory for Neiswinger to be apportioned
part of the fee in this case”), trans. denied. We, therefore, turn our attention to
whether Szakaly was entitled his fees under the theory of quantum meruit.
[19] Initially, the parties entered into an agreement, whereby Szakaly was entitled
to:
20% of the gross amount of any monies recovered from any settlement or judgment against persons found liable to client. Client shall owe said fee only if monies are recovered. Regardless of whether any monies are recovered, Client shall pay Attorney for all time spent in this matter at the rate of $100 per hour, plus mileage as required. . . .
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 10 of 21 Defendant’s Ex. B. Szakaly, however, was terminated prior to the end of the
case. Our Supreme Court has held that terminated attorneys may be entitled to
fees under a theory of quantum meruit. See Galanis, 715 N.E.2d at 861 (holding
that “an attorney who is employed under a contingent fee contract and
discharged prior to the occurrence of the contingency is limited to quantum
meruit recovery for the reasonable value of the services rendered to the client,
and may not recover the full amount of the agreed contingent fee”).
[20] In order to prove that an attorney is entitled to fees under a theory of quantum
meruit, the attorney must demonstrate “[(1)] that a benefit was rendered to
another [(2)] at the express and implied request of such other party.” Carr v.
Pearman, 860 N.E.2d 863, 869 (Ind. Ct. App. 2007) (citations omitted), trans.
denied. Even when an attorney’s work is not to the standard that we would
prefer, we have previously noted that “an attorney may be entitled to quantum
meruit recovery for his or her work despite the fact that the attorney has
violated the Rules of Professional Conduct by failing to obtain a written
contingency fee agreement.” Id. at 874. “If the attorney is not compensated for
the work performed on the client’s case that resulted in a recovery for the client,
the client is unjustly enriched.” Major v. OEC-Diasonics, Inc., 743 N.E.2d 276,
282 (Ind. Ct. App. 2001), trans. denied. “Arriving at the proper number to place
on the predecessor’s services is ultimately a factual determination for the trial
court.” Galanis, 715 N.E.2d at 862.
[21] Based on our review of the record, Szakaly met his burden to establish that he
was entitled to fees under a theory of quantum meruit. Norris expressly hired
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 11 of 21 Szakaly to represent Norris in its legal dispute against Coordinated Health. In
doing so, Szakaly filed Szakaly’s Summary Judgment Motion, which, after a
convoluted path to a panel of this court, ultimately led to judgment in Norris’
favor. Thereafter, judgment in Norris’ favor led to a $150,000.00 settlement on
the issue of damages. The trial court found, and we cannot disagree, that
Szakaly rendered a valuable benefit to Norris and Pearman, despite Szakaly’s
errors during his representation of Norris. See Carr, 860 N.E.2d at 873 (“In the
case of attorney and client, the value is that of ‘the benefit the client received’
from the attorney’s work. If the attorney is not compensated for the work
performed on the client’s case that resulted in a recovery for the client, the client
is unjustly enriched.”) (quotations omitted). Accordingly, “there must be a
determination of the dollar value of the attorney’s services to offset the unjust
enrichment and based on the value conferred on the client.” Id.
[22] Szakaly presented evidence that he logged 43.4 hours total on the Norris and
Coordinated Health matter prior to his 2014 termination, and he presented
evidence regarding his traditional billable rate of $300.00 per hour. This work
logged by Szakaly included work done on Szakaly’s Summary Judgment
Motion, which ultimately resulted in judgment for Norris. Pearman does not
contend that this amount is necessarily unreasonable on appeal. We cannot
say, therefore, that the trial court’s finding that Szakaly was entitled to an
equitable attorney lien under a theory of quantum meruit was clearly erroneous.
See Kelly v. Smith, 611 N.E.2d 118, 122 (Ind. 1993) (finding that a law firm held
“an attorney’s lien for the quantum meruit value as of the dissolution date
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 12 of 21 against matters which left the Firm” when one of the law firm partners left to
another firm, taking clients with him) (emphasis supplied). 10
II. Pearman’s Counterclaim
[23] Pearman contends that the trial court erred in granting Szakaly’s judgment on
the evidence with regard to Pearman’s legal malpractice counterclaim.
Generally, we review “the trial court’s issuance of judgment on the evidence by
applying the same standard that the trial court uses, looking only to the
evidence and reasonable inferences most favorable to the non-moving party.”
Purcell v. Old Nat. Bank, 972 N.E.2d 835, 839 (Ind. 2012). “Judgment on the
evidence is appropriate only if there is no substantial evidence or reasonable
inference to be drawn therefrom to support an essential element of the claim.”
Harrison County Sheriff’s Dept. v. Ayers, 70 N.E.3d 414, 417 (Ind. Ct. App. 2017),
trans. denied (citations omitted). Here, however, Pearman’s arguments do not
directly challenge the sufficiency of the evidence. 11 Instead, Pearman focuses
10 During this appeal, Szakaly attempted to initiate a sheriff’s sale of the Norris property. We note that, an attorney’s lien is not a typical lien. The attorney is regarded as an assignee of the judgment produced by his efforts. 7A C.J.S. ATTORNEY & CLIENT § 359 (1980). The attorney’s lien is considered an assignment of the judgment. William F. Harvey describes the attorney’s lien as a “law-created assignment of the judgment.” 4 INDIANA PRACTICE § 67.3 (1991). The attorney’s lien is a partial assignment of the judgment from the client to the attorney. Thus, when Stroup obtained his attorney’s fee lien on O’Hannes’ money judgment, he essentially received a partial assignment of the judgment itself. Stroup v. Klump-O’'Hannes, 749 N.E.2d 622, 625 (Ind. Ct. App. 2001). 11 Pearman does make some evidentiary arguments with regard to his judicial estoppel argument, which we address below.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 13 of 21 on certain evidentiary and discovery issues that Pearman argues would have led
to a result in his favor.
[24] First, Pearman argues that,
The facts show that (i) Szakaly didn’t answer the Counterclaim, (ii) he filed a paper labeled as a T.R. 12 Motion that included two exhibits (iii) the inclusion of exhibits caused Szakaly’s Motion to be a T.R. 56 motion under T.R. 12(C)[], (iv) a T.R. 56 motion is not an acceptable answer to a pleading[.]
Appellant’s Br. p. 3. Second, Pearman argues that the trial court erred in
“declining to accept into evidence two sets of request[s] for admissions when
the facts show that Szakaly acknowledged receiving, but refus[ed] to answer”
the requests for admissions, which would have proven many aspects of
Pearman’s case. Id. Finally, Pearman argues that Szakaly was “judicially
estopped” from making contradictory arguments at the bifurcated hearings
regarding his termination date. We will address each in turn below.
i. Szakaly’s responsive pleading
[25] First, Pearman contends that the trial court erred in failing to grant default
judgment. A trial court’s ruling on a motion for default judgment is entitled to
deference and will be reviewed for an abuse of discretion. See Allstate Ins. Co. v.
Watson, 747 N.E.2d 545, 547 (Ind. 2001) (citations omitted). The trial court’s
discretion “should be exercised in light of the disfavor in which default
judgments are held.” Id. Under Indiana Trial Rule 55(A), “When a party
against whom a judgment for affirmative relief is sought has failed to plead or
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 14 of 21 otherwise comply with these rules and that fact is made to appear by affidavit or
otherwise, the party may be defaulted by the court.” “It is an extreme remedy
and is available only where that party fails to defend or prosecute a suit. It is
not a trap to be set by counsel to catch unsuspecting litigants.” Id. (internal
quotations omitted).
[26] Pearman argues that Szakaly failed to respond to his counterclaim. 12 Although
Szakaly filed a motion to dismiss the counterclaim, Pearman contends that the
motion was converted to a motion for summary judgment and that a motion for
summary judgment is not a proper responsive document. Accordingly,
Pearman argues the trial court should have granted his motion for default
judgment because Szakaly failed to file a response to his counterclaim.
[27] Generally, a motion to dismiss under Indiana Trial Rule 12(B)(6) is a proper
responsive pleading. See Morton-Finney v. Gilbert, 646 N.E.2d 1387, 1388 (Ind.
Ct. App. 1995). Indiana Trial Rule 12(B) states, with regard to motions to
dismiss:
12 It does not appear the trial court ruled on the motion to dismiss. While a hearing was held on February 14, 2018, the trial court’s only conclusion at the hearing was that Pearman was a proper party to the suit. Instead, the trial court bifurcated the issues, and held an evidentiary hearing on them separately. There was some confusion, in fact, about whether the second hearing on Pearman’s counterclaim was on the motion to dismiss or an evidentiary hearing. There, counsel for Szakaly stated, “Well, I am a little surprised we’d take evidence. It didn’t seem to me the motion that’s before the Court would be one that the Court order would take evidence on.” Tr. p. 96. In other words, it appeared that counsel for Szakaly believed the evidentiary hearing to actually be a hearing on the motion to dismiss.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 15 of 21 If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Still, whether a motion to dismiss with attachments is converted to a motion for
summary judgment is within the discretion of the trial court because the trial
court has the opportunity to exclude the attachments. See ARC Const.
Management, LLC v. Zelenak, 962 N.E.2d 692, 696 (Ind. Ct. App. 2012) (“Along
with the motion to dismiss, ARC filed a memorandum and exhibits, which
were not excluded by the trial court. . . . We therefore employ the summary
judgment standard of review.”).
[28] Our review of the CCS shows that, after Szakaly’s November 22, 2017 motion
to dismiss filing, the trial court set the motion to dismiss for a hearing on
February 15, 2018. Pearman filed his motion for default on December 6, 2017.
The trial court ended the February 2018, hearing by indicating that the rest of
the issues would be taken up at a “full blown hearing” in May. Tr. p. 31.
Regardless, Pearman’s motion for default was filed before the hearing on the
motion to dismiss.
[29] Indiana Trial Rule 6(C) states:
A responsive pleading required under these rules, shall be served within twenty [20] days after service of the prior pleading. . . . The service of a motion permitted under Rule 12 alters the time
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 16 of 21 for service of responsive pleadings as follows, unless a different time is fixed by the court:
(1) if the court does not grant the motion, the responsive pleading shall be served in ten [10] days after notice of the court’s action;
(2) if the court grants the motion and the corrective action is allowed to be taken, it shall be taken within ten [10] days, and the responsive pleading shall be served within ten [10] days thereafter.
[30] When Pearman filed his motion for default judgment, the trial court had not yet
ruled on Szakaly’s motion to dismiss. Accordingly, Szakaly’s answer was not
yet due, making Pearman’s motion not yet ripe. A responsive pleading, in the
form of a motion to dismiss pursuant to Indiana Trial Rule 12(B)(6), was still
pending. See Morton-Finney, 646 N.E.2d at 1388. We disagree with Pearman
that he was entitled to default judgment, especially in light of Indiana’s disfavor
towards default judgment. See, e.g., Allstate Ins. Co., 747 N.E.2d at 547. The
trial court did not abuse its discretion in denying Pearman’s motion for default
judgment.
ii. Requests for admissions
[31] Second, Pearman contends that it was error for the trial court to fail to admit
Pearman’s requests for admissions, because Szakaly never responded to the
requests. At issue are two separate requests for admissions: one served August
28, 2017, and the other served December 12, 2017. We understand Pearman’s
argument to be that both were unanswered. Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 17 of 21 [32] At the evidentiary hearing on the malpractice issue, the parties disputed
whether Szakaly responded to the requests for admissions. In fact, the trial
court declined to admit the requests for admissions because “there [was] a
question of fact whether they have been responded to . . .” Tr. p. 127.
[33] Trial Rule 36 states, with regard to requests for admissions:
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within a period designated in the request, not less than thirty [30] days after service thereof or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or his attorney.
It is generally understood that “[u]nder T.R. 36, the failure to respond in a
timely manner to a request for admissions causes those matters to be admitted
and conclusively established by operation of law.” Larson v. Karagan, 979
N.E.2d 655, 660 (Ind. Ct. App. 2012). Therefore, we agree that Pearman
would not need to petition the trial court in order to have unanswered requests
for admissions deemed admitted. However, that does not necessarily preclude
Pearman from having to establish that they were not answered. Pearman does
produce evidence that Szakaly’s counsel at the time received the requests;
however, other than Pearman’s contentions, we have no evidence that they
were unanswered.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 18 of 21 [34] At the hearing, Szakaly and Pearman argued about whether Szakaly had sent
Pearman the answers to the requests. Szakaly claims that he sent his responses
to the requests for admissions to his attorney at the time, Murielle Bright, and
that Szakaly was unclear why Pearman would not have received the responses.
The trial court was in the best position to make this determination whether to
deem the requests for admissions admitted. We cannot say for certain Szakaly
did not respond to the requests for admission, and Pearman did not present any
evidence to the contrary, other than his own argument to the trial court. The
trial court ultimately denied Pearman’s requests for admissions as admitted
because there was a question as to whether there was a response in the first
instance. We cannot conclude that the trial court erred in failing to admit the
requests for admissions.
iii. Judicial estoppel
[35] Finally, Pearman argues that the principle of judicial estoppel should bar
Szakaly’s inconsistent arguments with regard to when his representation of
Norris ended. Specifically, Pearman argues that, at the beginning of the
proceedings, Szakaly stated he was never terminated, whereas later in the
proceedings, Szakaly argued that he was terminated as an attorney in August
2014.
[36] Judicial estoppel is a judicially created doctrine that seeks to prevent a litigant from asserting a position that is inconsistent with one asserted in the same or a previous proceeding. Judicial estoppel is not intended to eliminate all inconsistencies; rather, it is designed to prevent litigants from playing ‘fast and loose’ with
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 19 of 21 the courts. The primary purpose of judicial estoppel is not to protect litigants but to protect the integrity of the judiciary. The basic principle of judicial estoppel is that, absent a good explanation, a party should not be permitted to gain an advantage by litigating on one theory and then pursue an incompatible theory in subsequent litigation. Judicial estoppel only applies to intentional misrepresentation, so the dispositive issue supporting the application of judicial estoppel is the bad- faith intent of the litigant subject to estoppel.
Price v. Kuchaes, 950 N.E.2d 1218, 1227-28 (Ind. Ct. App. 2011) (citations
omitted), trans. denied.
[37] Pearman does not specifically argue how Szakaly’s inconsistent arguments were
prejudicial to him. Instead, Pearman asserts that the trial court “found that
Szakaly had no involvement in the Coordinated Health matter after August 2,
2014. There is simply no support for such finding, and so the Order is error.” 13
Appellant’s Br. p. 46. Even if it was error for the trial court to either (1) allow
Szakaly’s inconsistent positions; or (2) find that Szakaly had no involvement
after August 2, 2014, we find any error to be harmless.
[38] Pearman was unsuccessful on his malpractice claim against Szakaly because
“Pearman presented no evidence as to malpractice on the part of Andrew
Alexander Szakaly or damages sustained.” Appellee’s App. Vol. II p. 6. We
fail to see how allowing Szakaly to change his position regarding his
13 The trial court’s finding actually stated, “Because Szakaly’s employment by Norris ended on August 2, 2014[,] his right to a contingency fee was extinguished at that point.” Appellee’s App. Vol. II p. 3.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 20 of 21 termination date harmed Pearman as Pearman was still unable to prove legal
malpractice or damages. Accordingly, even if it was error for the trial court to
allow Szakaly to take contradictory positions under the doctrine of judicial
estoppel, any error was harmless to Pearman.
Conclusion
[39] The trial court did not err in finding Szakaly was entitled to an attorney lien.
The trial court also did not err in granting judgment in favor of Szakaly on the
issue of legal malpractice. Accordingly, we affirm.
[40] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2074 | May 15, 2019 Page 21 of 21