Paulette Petkovich v. Prime Contractors Co., Inc.

Opinion

Pursuant to Ind.Appellate Rule 65(D),

FILED this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Dec 31 2012, 11:26 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:

PATRICK B. McEUEN RICHARD N. SHAPIRO Rhame & Elwood Law Office of Richard N. Shapiro, P.C. Portage, Indiana Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA

PAULETTE PETKOVICH, ET AL, ) ) Appellants-Defendants, ) ) vs. ) No. 64A03-1203-MF-102 ) PRIME CONTRACTORS CO., INC., ) ) Appellee-Plaintiff. ) )

APPEAL FROM THE PORTER SUPERIOR COURT The Honorable William E. Alexa, Judge Cause No. 64D02-0901-MF-686

December 31, 2012

MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION

VAIDIK, Judge Following our November 20, 2012, opinion in which we concluded, among other

things, that Prime Contractors Company, Inc. was not entitled to appellate attorney’s fees,

Prime now petitions for rehearing. Specifically, Prime argues that Indiana Code section

32-38-3-14(a) entitles it to an award of appellate attorney’s fees. We grant rehearing to

address Prime’s argument but still deny its request for appellate attorney’s fees. We

affirm our original opinion in all respects.

Our authority to grant appellate attorney’s fees in this case arises from Indiana

Appellate Rule 66(E). In our original opinion, we declined to award appellate attorney’s

fees to Prime under Appellate Rule 66(E). We affirm that ruling, but clarify that Prime

may petition the trial court for such an award.

Indiana Code section 32-28-3-14(a) states that “in an action to enforce a lien under

this chapter, a plaintiff or lienholder who recovers a judgment in any sum is entitled to

recover reasonable attorney’s fees.” In Hayes v. Chapman, this Court held that “Where a

statute authorizes reasonable attorney fees, such fees include appellate attorney fees.”

894 N.E.2d 1047, 1055 (Ind. Ct. App. 2008), trans. denied. However, Hayes also holds

that “the proper way in which to raise the issue is by filing proceedings supplemental

with the trial court.” Id. (emphasis added). We therefore find that while Prime may have

a claim for appellate attorney’s fees, its request to this Court was premature.

MATHIAS, J., and BARNES, J., concur.