Stroup v. Klump-O'Hannes

749 N.E.2d 622, 2001 Ind. App. LEXIS 948, 2001 WL 623588
CourtIndiana Court of Appeals
DecidedJune 7, 2001
DocketNo. 15A01-0101-CV-13
StatusPublished
Cited by5 cases

This text of 749 N.E.2d 622 (Stroup v. Klump-O'Hannes) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stroup v. Klump-O'Hannes, 749 N.E.2d 622, 2001 Ind. App. LEXIS 948, 2001 WL 623588 (Ind. Ct. App. 2001).

Opinion

OPINION

VAIDIK, Judge

Case Summary

John F. Stroup (Stroup) appeals the granting of petitioner Kay A. Klump O’Hannes’ (Klump) Motion To Order Release of Attorney Fees Lien. Stroup claims that the trial court abused its discretion in releasing his timely and properly perfected attorney’s lien on Klump’s real estate. We find that the judgment against Klump was satisfied without Stroup’s consent or knowledge, and that therefore his lien is not affected by the satisfaction. We reverse.

Facts and Procedural History

On December 23, 1996, the Dearborn County Circuit Court entered a dissolution decree between Klump and Mark O’Hannes (O’Hannes). As part of the decree, Klump was awarded the real estate from the marriage and O’Hannes was awarded a money judgment of $12,553.00. As security for the payment, O’Hannes was given an undivided one-half interest in Klump’s real estate.

Stroup, O’Hannes’ attorney, timely filed with the Clerk of Dearborn County a notice of his intention to hold a lien for his fees on O’Hannes’s money judgment, pursuant to Ind. Code § 33-1-3-1. In November of 1998, without Stroup’s knowledge or consent, O’Hannes filed a Satisfaction of Judgment with the court, which stated that the judgment in the amount of $12,553.00 had been fully satisfied. Then in March of 1999, O’Hannes was discharged in a Chapter 7 bankruptcy. O’Hannes had listed Stroup as an [624]*624unsecured creditor. O’Hannes was discharged on the personal obligation owed to Stroup, but had not filed a petition to avoid Stroup’s statutory pre-filed attorney fee lien. As of May 15, 1998, Stroup’s lien of $4,411.00 remains unpaid.

Klump filed a Motion For Release Of Attorney’s Fee Lien on October 4, 1999, because the lien was creating a cloud on the title to her real estate. On July 5, 2000, the trial court entered the following order:

Comes now the petitioner and files her Motion For Release Of Attorney’s Fee Lien Against Real Property; And the Court having heard argument ... finds that the Motion is well taken and should be granted. The Court specifically finds that the intent of I.C. 33-1-3-1 is to permit an attorney to retain his fees from the ‘fruits of his skill and labor’ .... The Court finds that the Attorney’s Lien would not flow to real estate awarded to the opposing party. The Court also notes that the underlying attorney fee was discharged in bankruptcy. ...

Record at 36-37. Stroup then filed a Motion To Correct Error. The trial court denied his motion and Stroup filed this appeal.

Discussion and Decision

The trial court’s order contained findings of fact and conclusions. The record does not reflect that either party requested the special findings and conclusions under T.R. 52(A). When such findings are entered upon the court’s own motion, this court applies a two-tier standard of review. Beam v. Wausau Ins. Co., 743 N.E.2d 1188, 1191 (Ind.Ct.App.2001) (citations omitted). We must first determine whether the evidence supports the findings and then determine whether the findings support the judgment. Id. Special findings and the judgment flowing therefrom will be set aside only if they are clearly erroneous. Id.

Stroup contends that the trial court abused its discretion when it granted Klump’s motion to release his attorney’s fee hen against her real estate. Stroup filed a hen with the Dearborn County Circuit Court clerk pursuant to Indiana’s attorney’s hen statute, Ind. Code § 33-1-3-1, which provides in part that:

[a]ny attorney practicing his profession in any court of record in this state, shah be entitled to hold a hen, for his fees, on any judgment rendered in favor of any person or persons employing such attorney to obtain the same: Provided, That such attorney, within sixty (60) days from the time such judgment shall have been rendered, enter in writing upon the docket or record wherein the judgment is recorded, his intention to hold a hen thereon, together with the amount of his claim, and if an appeal is taken on such judgment, such hen may be entered within sixty (60) days from the date the opinion of the higher court is recorded in the office of the clerk of the trial court or from the date of final judgment where the cause is reversed and retried.

Stroup noted both his intention to hold a lien and the amount of the hen three different times on the Dearborn County Clerk’s judgment docket. Neither party disputes that Stroup properly filed his attorney’s hen within the sixty day time frame.

Stroup relies on Ind. Code § 34-55-9-2 and § 34-55-9-1 to further support his argument. In part, he asserts that through these statutes O’Hannes has a judgment hen on Klump’s real estate. I.C. 34-55-9-2 states that “[a]h final judgments for the recovery of money or costs ... constitute a hen upon real estate and chattels real liable to execution in the county [625]*625where the judgment has been duly en-tered_” I.C. § 34-55-9-1 provides in relevant part that “[t]he following real estate is liable to all judgments and attachments and to be sold on execution against the debtor owing the real estate or for whose use the real estate is held: (1) all lands of the judgment debtor, whether in possession, remainder, or reversion.... ” Stroup contends that his hen automatically attached to Klump’s real estate. Stroup argues that O’Hannes money judgment was a judgment lien on Klump’s real estate and thus subject to execution by O’Hannes. He further asserts that through his attorney lien, he received a portion of O’Hannes’ judgment. Thus, Stroup alleges his lien is attached to Klump’s real estate. Finally, Stroup alleges that his lien is still attached to Klump’s property because O’Hannes filed his affidavit of satisfaction without Stroup’s knowledge or consent. We agree.

Initially, we note that I.C. 33-1-3-1 clearly grants Stroup the authority, as an attorney, to hold an attorney’s fee lien on his client’s judgment. The hen can only be held “on any judgment rendered in favor of any person ... employing such attorney to obtain the same....” I.C. 33-1-3-1. Similar to a mechanic’s lien, I.C. § 33-1-3-1 authorizes a hen upon something created or recovered for the client by his attorney. Booram v. Day, 216 Ind. 503, 505-06, 25 N.E.2d 329, 330 (1940). However, an attorney’s hen 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 hen 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 Pkactice § 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.

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Bluebook (online)
749 N.E.2d 622, 2001 Ind. App. LEXIS 948, 2001 WL 623588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroup-v-klump-ohannes-indctapp-2001.