Leibowitz v. Moore

436 N.E.2d 899, 1982 Ind. App. LEXIS 1285

Opinions

GARRARD, Judge.

Carl Leibowitz appeals an award of ten thousand dollars ($10,000) as attorneys’ fees in a suit on a promissory note. He contends the evidence was insufficient to sustain the award and further that it was excessive.

On March 17, 1981 the Moores filed a complaint against Leibowitz based upon breach of a promissory note payable in installments. The Moores additionally prayed for an award of reasonable attorneys’ fees in accordance with the terms of the note. Eventually, the trial court granted a motion for default judgment filed by the Moores. They were awarded $37,274 in principal together with accrued interest in the sum of $3634.16. Based upon representations of counsel but without conducting a hearing or receiving evidence, the court entered its award of attorney fees. We conclude this was error.

Our courts have long held that while a defendant’s default admits liability, it does not admit the amount of damages. Siebert Oxidermo, Inc. v. Shields (on rehearing) (1981), Ind.App., 430 N.E.2d 401.

What amount constitutes a reasonable attorney fee is a question of fact to be determined under the circumstances of a given case just as are questions concerning the reasonableness of other professional fees. Lystarczyk v. Smits (1982), Ind.App., 435 N.E.2d 1011.

Admittedly, our courts have sometimes held that the trial judge is a qualified expert and as such may “judicially notice” the amount of a reasonable fee.¹ We considered these cases in U.S. Aircraft Financing, Inc. v. Jankovich (1980), Ind.App., 407 N.E.2d 287 and concluded that the fact that the attorney’s client had agreed to, or paid, a certain fee was not controlling as to reasonableness and that judicial notice of what constitutes a reasonable fee should not be applied except to usual and mundane affairs of the court involving relatively modest sums.

In our view, and as expressed by Judge Chipman in U.S. Aircraft Financing, the extra effort required' to place of record evidence of the services performed and their reasonable value under the circumstances is vastly outweighed by the additional apparent integrity thereby imparted to the determination. See also Lystarczyk, supra.

We therefore reverse as to the award of attorneys’ fees and remand for further proceedings consistent herewith.

HOFFMAN, P.- J., dissents and files separate opinion. STATON, J., concurs in result and files separate opinion.

Footnotes

1

. While this provides a practical solution in mundane cases, it is nevertheless an aberration of the doctrine of judicial notice, at least since the abolition of minimum fee schedules. See School City of Gary v. State ex rel. Gary Artists League. Inc. (1970), 253 Ind. 697, 256 N.E.2d 909, 42 A.L.R.2d 1432; Belcher v. Buesking (1978), Ind.App., 371 N.E.2d 417.