FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

MARY BETH RAMEY WILLIAM H. KELLEY

Ramey & Hailey DARLA S. BROWN

Indianapolis, Indiana Kelley, Belcher & Brown

Bloomington, Indiana

NICHOLAS F. BAKER

The Hastings Law Firm

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MATTHEW LONGEST, Deceased, by )

ROBERT LONGEST, Administrator of the Estate )

and Parent of Matthew Longest, and ROBERT )

LONGEST, JR., Administrator of the Estate of )

MARIBEL LONGEST, Deceased and Parent of )

Matthew Longest, )

)

Appellants - Plaintiffs, )

)

vs. ) No. 47A05-1211-CT-594

)

LISA M. SLEDGE, a minor, and ROGER BROWN )

and DONNA SLEDGE, a/k/a DONNA SLEDGE )

BROWN,

)

Appellees - Defendants. )

APPEAL FROM THE LAWRENCE CIRCUIT COURT

The Honorable Andrea J. McCord, Judge

Cause No. 47C01-9910-CT-894

July 17, 2013

OPINION - FOR PUBLICATION

FRIEDLANDER, Judge
Robert Longest Sr. and Maribel Longest (collectively, the Longests) filed a wrongful 

death action following the death of their son, Matthew Longest, and named Lisa Sledge, 

Donna Sledge Brown, and Robert Brown as defendants.1

 The Longests appeal from a final 

judgment following the trial court’s entry of partial summary judgment in favor of defendants 

on the Longests’ claims under the Child Wrongful Death Statute2 (CWDS) and the General 

Wrongful Death Statute3 (GWDS). The Longests raise the following issues for our review:

1. Did the trial court err in granting summary judgment for the defendants on 

the Longests’ CWDS claim based on its conclusion that Matthew was not a 

child for the purposes of the CWDS because he was not enrolled in a 

vocational school or program?

2. Did the trial court err in granting partial summary judgment for the 

defendants on the Longests’ GWDS claim based on its conclusion that the 

Longests were not Matthew’s dependents for the purposes of the GWDS?

3. Did the trial court abuse its discretion in limiting its award of attorney fees? 

We affirm in part, reverse in part, and remand with instructions.

In 1998, twenty-one-year-old Matthew was living with his parents and participating in 

an informal, non-union apprenticeship to become a journeyman mason under his father’s 

1 Robert Longest Sr. sued in dual capacities as Matthew’s parent and as the administrator of Matthew’s estate, 

while Maribel sued solely in her capacity as Matthew’s parent. During the pendency of the litigation in this 

matter, Maribel passed away. Maribel and Robert Sr.’s surviving son, Robert Longest Jr., was named 

administrator of her estate and participates in this appeal in that capacity.

2 At the time of Matthew’s death, the CWDS was codified at Ind. Code Ann. § 34-1-1-8 (repealed July 1, 1998 

by Pub. L. 1-1998, § 221). Effective July 1, 1998, the CWDS was recodified at Ind. Code Ann. § 34-23-2-1 

(West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). Additionally, the relevant language 

of the recodified statute was amended in 2008. Thus, for the purposes of this opinion, we will refer to the 

language of the now-repealed I.C. § 34-1-1-8 when discussing the CWDS.

3 At the time of Matthew’s death, the GWDS was codified at Ind. Code Ann. § 34-1-1-2 (repealed July 1, 1998 

by Pub. L. 1-1998, § 221). Effective July 1, 1998, the GWDS was recodified at Ind. Code Ann. § 34-23-1-1 

(West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). The relevant language of the 

2

 
supervision. Matthew had begun learning the masonry trade from his father while still in 

high school, and after leaving high school in 1995, became his father’s full-time apprentice. 

In December 1997, Robert Sr., who had previously been self-employed for a number of years 

as a journeyman mason, took a job with Wilhelm Construction Company as a mason. At that 

time, Matthew also began working for Wilhelm as a hod carrier.4

 Wilhelm offered a union 

apprenticeship program, but Matthew did not enroll. Instead, Matthew continued his 

informal apprenticeship with Robert Sr. while they worked together at Wilhelm.

On April 21, 1998, Robert Sr. was driving Matthew home after a day at work when 

they were involved in a head-on collision with a vehicle driven by then-sixteen-year-old Lisa 

Sledge. Matthew did not survive the accident, and Robert Sr. was seriously injured. 

On October 4, 1999, the Longests filed an action against the defendants asserting four 

claims: Count I, the estate’s wrongful death claim under the GWDS; Count II, the Longests’ 

wrongful death claim under the CWDS; Count III, Robert Sr.’s personal injury claim; and 

Count IV, Maribel’s loss of consortium claim.5

 On April 12, 2001, the defendants filed a 

motion for partial summary judgment arguing that recovery under the GWDS was limited to 

medical, funeral, and administration expenses and attorney fees because the Longests were 

not Matthew’s “dependent next of kin.” Appellant’s Appendix at 21. The Longests filed a 

response in which they argued that they were entitled to recovery under the CWDS or, 

GWDS did not change with its recodification and has not been subsequently amended. Accordingly, for ease 

of reference, we will cite the current version of the statute in this appeal.

4 A hod carrier “works in conjunction with the masons, hauling brick, setting up the site, mixing mortar and 

determining the amount of brick needed for a particular job.” Appellant’s Appendix at 62.

5 Counts III and IV were settled prior to trial and are not at issue in this appeal.

3

 
alternatively, the GWDS. The defendants replied in support of their motion for summary 

judgment and argued that Matthew was not a child for the purposes of the CWDS because 

Matthew’s apprenticeship with his father did not constitute enrollment in a vocational school 

or program, and that Matthew’s contributions to the Longest household were insufficient to 

create a genuine issue of material fact concerning whether his parents were dependent upon 

him.

The trial court heard argument and took the matter under advisement before granting 

partial summary judgment in favor of the defendants on September 25, 2001. In its order, the 

trial court concluded that the Longests were not entitled to recover under the CWDS because 

Matthew was not enrolled in a vocational school or program at the time of his death, and that 

recovery under the GWDS was limited to medical and funeral expenses by the estate because 

the Longests were not Matthew’s dependent next of kin. The trial court granted the 

Longests’ request to certify its partial summary judgment order for interlocutory appeal, but 

this court declined to accept jurisdiction. 

On June 4, 2004, the Longests filed a motion asking the trial court to set aside its 

partial summary judgment order, which the trial court denied on July 21, 2004. Thereafter, 

on September 15, 2008, the Longests filed a motion asking the trial court to “certify the issue 

of Matthew Longest[’s] legal status for Interlocutory Appeal to the Indiana Court of 

Appeals.” Appellant’s Appendix at 122. The trial court granted the order, but this court

again declined to accept jurisdiction.

4
On May 23, 2012, a bench trial was held regarding liability and damages, at which the 

Longests again asked the court to reconsider its prior partial summary judgment order. On 

October 22, 2012, the trial court entered its final order. In the order, the trial court denied the 

Longests’ request to set aside the partial summary judgment order, concluding that the 

Longests “ha[d] not shown any additional evidence to persuade the court the decision was 

incorrect.” Appellant’s Appendix at 132. The trial court found in favor of the Longests on 

the issue of liability and entered an order on damages and attorney fees. The trial court 

concluded that the damages recoverable were limited to funeral and burial expenses, costs

and expenses of administration of the estate, and attorney fees related to the administration of 

the estate. The Longests now appeal. 

1.

The Longests first argue that the trial court erred in granting summary judgment in 

favor of the defendants on the Longests’ CWDS claim. When reviewing a trial court’s ruling 

on a motion for summary judgment, this court stands in the shoes of the trial court and 

applies the same standards in deciding whether to affirm or reverse the ruling. Ritchhart v. 

Indianapolis Pub. Sch., 812 N.E.2d 189 (Ind. Ct. App. 2004), trans. denied. Thus, on appeal, 

we must determine whether there is a genuine issue of material fact and whether the moving 

party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. 

Paul Guardian Ins. Co., 904 N.E.2d 1267 (Ind. 2009). This standard requires us to construe 

all factual inferences in favor of the nonmoving party, and all doubts as to the existence of an 

5
issue of material fact must be resolved against the moving party. Dreaded, Inc. v. St. Paul 

Guardian Ins. Co., 904 N.E.2d 1267. 

The CWDS allows a parent to maintain an action against a person whose wrongful act 

or omission causes the injury or death of a child. I.C. § 34-1-1-8. The remedies available in 

such an action include damages for the loss of the child’s services, love, and companionship, 

as well as medical, burial, and administrative expenses, including attorney fees. Id. At issue 

in this appeal is whether Matthew was a child for the purposes of the CWDS at the time of 

his death. The version of the CDWS in effect at the time of Matthew’s death provided the 

following definition:

(a) As used in this section, “child” means an unmarried individual without 

dependents who is:

(1) less than twenty (20) years of age; or

(2) less than twenty-three (23) years of age and is enrolled in an 

institution of higher education or in a vocational school or program.

Id. This court has noted that the statutes creating actions for wrongful death are in 

derogation of common law, and must therefore be strictly construed. Deaconess Hosp., Inc. 

v. Gruber, 791 N.E.2d 841 (Ind. Ct. App. 2003). Nevertheless, this court has been willing to 

interpret the language of the CWDS pertaining to enrollment in an institution of higher 

education or a vocational school or program “as liberally as it can and still remain within the 

clear meaning of the statute.” Ledbetter v. Ball Memorial Hosp., 724 N.E.2d 1113, 1118 

(Ind. Ct. App. 2000) (citing Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311 (Ind. Ct. App. 

1999), trans. dismissed), trans. denied. 

6
The trial court granted summary judgment against the Longests based on its 

conclusion that Matthew was not enrolled in an institution of higher education or a vocational 

school or program at the time of his death. On appeal, the Longests argue that Matthew’s 

informal apprenticeship under his father’s supervision constituted enrollment in a vocational 

program. In support of this contention, the Longests direct our attention to the designated 

affidavits of Robert Sr. and Edward Bickel, a former field representative for the local unit of 

the International Union of Bricklayers & Allied Craftworkers. In these affidavits, both 

Bickel and Robert Sr. attested that in order to become a mason, a person must complete an 

apprenticeship with a person or persons who practice the trade. They testified further that 

there are two types of apprenticeships. First, there are “[l]ess formalized (and usually nonunion) apprenticeship programs consisting exclusively of extensive-on-the-job training by a 

skilled mason.” Appellant’s Appendix at 61, 79. Both Robert Sr. and Bickel attested that 

there is no formal enrollment for this type of apprenticeship. Second, there are “[f]ormalized 

apprenticeship programs organized by the union, which include classroom instruction in 

addition to on the job training.” Id. at 61, 79. According to Bickel and Robert Sr., “[a] 

person who completes either type of apprenticeship program and attains a high degree of skill 

earns the title ‘journeyman mason.’” Id. at 62, 80. Both Bickel and Robert Sr. attested that 

“[t]he International Union of Bricklayers & Allied Craftworkers recognizes both types of 

training programs and will certify a person who completes a ‘non-union’ apprenticeship as a 

union mason if the requisite skill of workmanship is shown.” Id. at 62, 80. Additionally, 

Robert Sr. stated that he had become a union-certified mason through an informal, on-the job 

7
apprenticeship, and that his oldest son, Robert Jr., became a union-certified mason by 

completing a similar, informal apprenticeship under Robert Sr.’s supervision. 

Robert Sr. attested further that from 1995 until 1997, he was self-employed as a 

mason and Matthew worked full-time for him as his apprentice. Robert Sr. and Matthew 

both took jobs at Wilhelm in December 1997—Robert Sr. as a mason and Matthew as a hod 

carrier. Although Matthew did not enroll in Wilhelm’s union apprenticeship program, his 

informal apprenticeship was ongoing at the time of his death. The Longests argue that this

informal, non-union apprenticeship was sufficient at least to create a genuine issue of 

material fact concerning whether Matthew was enrolled in a vocational school or program at 

the time of his death. In arguing that Matthew was not enrolled in such a program, the 

defendants note that Matthew “was not taking any classes”; they note further that Matthew 

had not enrolled in Wilhelm’s apprenticeship program, which “would have involved 

classroom instruction, extensive record keeping, and enrollment in addition to on-the-job 

training.” Appellee’s Brief at 7, 8. The defendants argue further that “[w]hat the Longests’ 

[sic] described as ‘an informal apprenticeship program’ was not a ‘program’ at all. The most 

that the Longests were able to show was that Matthew Longest was considering entering an 

apprenticeship at some point in the future.” Id. at 10. 

In sum, the defendants argue that some degree of formality and classroom instruction 

is required for a course of training to qualify as a vocational program for the purposes of the 

CWDS. The Longests disagree and direct our attention to Sweet v. Art Pape Transfer, Inc., 

721 N.E.2d 311, which we find illuminating on this point. In that case, Sweet filed a CWDS 

8
claim following the death of her twenty-one-year-old daughter, Shawnee. Shawnee had been 

employed at the Trinity School of Natural Health, a non-profit Christian institution that was 

not accredited through or financially supported by the state or federal government. Trinity 

offered self-study programs in natural health, the successful completion of which would 

result in titles such as “Master Herbalist, Doctor of Naturopathy, and Master of Holistic 

Health.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 312. Students in the programs

answered a set of questions at the end of each section of their texts and sent their answers to 

Trinity to be graded, without any imposed deadlines. As an employee of Trinity, Shawnee 

was entitled to pursue the courses offered there free of charge and without filling out an 

enrollment application. Although Trinity’s records did not reflect that Shawnee was enrolled 

as a student at the time of her death, she had received permission from the registrar to pursue 

the Master Herbalist course, obtained textbooks, and begun studying. Sweet v. Art Pape 

Transfer, Inc., 721 N.E.2d 311.

The trial court granted summary judgment for the defendants on Sweet’s CWDS claim 

based on its conclusion that Shawnee was not a child for the purposes of the CWDS because 

she was not enrolled in a vocational school or program at the time of her death. This court 

reversed. In addressing Sweet’s arguments on appeal, the court separately analyzed the 

questions of whether Shawnee was “enrolled” and whether Trinity was a “vocational school 

or program.” In concluding that Shawnee was “enrolled” for the purposes of the CWDS, the 

court rejected the defendants’ contention that enrollment required the making of a written 

record. Id. In doing so, the court noted that as an employee of Trinity, Shawnee was not 

9
required to fill out an application form before commencing her studies, and that there would 

have been no need for her to complete a financial agreement because the programs were free 

of charge to her. Consequently, the court “decline[d] to impose upon this wrongful death 

litigant a requirement of a written enrollment record where the statute includes no such 

requirement and where the victim’s status as an employee-student would render a written 

enrollment record superfluous.” Id. at 314.

Next, the court addressed whether Trinity could be classified as a “vocational school 

or program.” Sweet argued that the self-study programs offered by Trinity were vocational 

because they prepared students “to advise clients about natural health in jobs with 

chiropractors and medical doctors, in health food stores, and with distributors of nutritional 

supplements.” Id. This court agreed that the self-study programs were vocational for the 

purposes of the statute, relying in part on the language of a now-repealed statutory provision 

relating to public and private education, which broadly defined “vocational education” to 

include “any education the major purpose of which is to prepare a person for profitable 

employment.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 314 (quoting Ind. Code Ann. 

§ 20-10.1-1-11(a) (repealed by P.L. 1-2005, § 240)). 

Although Sweet is factually distinguishable from the case as hand, we find its 

reasoning helpful here. We agree with that court’s conclusion that “enrollment” does not 

necessarily require any written record, particularly where the circumstances indicate such 

records would be unnecessary or superfluous. Here, both Bickel and Robert Sr. attested that 

there is no formal enrollment process for non-union, on-the-job apprenticeships like the one 

10
in which Matthew was participating. We decline to impose such a rigid requirement in this 

case, particularly in light of the fact that Matthew was learning the trade under the 

supervision of his own father. Rather, we conclude that in this context, to be “enrolled” in a 

vocational program means no more than to be actively participating in such a program. 

Robert Sr. testified that Matthew was continuously participating in the apprenticeship at the 

time of his death. Thus, provided that the non-union apprenticeship qualifies as a vocational 

program, we have little difficulty concluding that Matthew was “enrolled” for the purposes of 

the CWDS. 

Turning now to the question of whether the apprenticeship qualifies as a “vocational 

school or program,” we agree with the Sweet court that the phrase encompasses “any 

education the major purpose of which is to prepare a person for profitable employment.” Id 

(citation omitted). Unlike the defendants, we see no reason to impose a requirement that 

these educational programs contain a component of traditional classroom instruction. The 

courses at issue in Sweet were self-study courses that required students to obtain textbooks, 

study them, and complete a module of questions at the end of each chapter. Contrary to the 

defendants’ assertion on appeal, there is no indication that the self-study courses at issue in 

that case included classroom instruction.

Moreover, we believe the legislature’s decision to delay the age of majority for the 

purposes of the CWDS from age twenty until age twenty-three where the decedent is enrolled 

in an “institution of higher education or in a vocational school or program” reflects its 

intention to allow recovery when a decedent was in active pursuit of any of a broad range of 

11
educational goals—ranging from college degrees to trade designations and other, less 

traditional certifications like those at issue in Sweet. We believe that disallowing coverage 

based solely on a program’s informality and focus on real-world, on-the-job training as 

opposed to classroom learning would ignore the practical realities of many courses of 

vocational study and exclude those in pursuit of a number of traditional trade designations 

from the operation of the CWDS. In light of the statute’s broad language and express 

inclusion of vocational programs, we do not believe this to have been the legislature’s intent. 

None of this is to suggest, however, that merely adding an element of on-the-job 

training will transform what would otherwise be nothing more than a job into a vocational 

program. Here, Matthew was simultaneously working as hod carrier and pursuing his 

informal apprenticeship under his father’s supervision. Provided Matthew successfully 

completed the apprenticeship and demonstrated the requisite skill, he would have attained the 

title of journeyman mason and been eligible for union certification. As Robert Sr. attested, 

“[w]hether working for me or for Wilhelm, and whether in the union’s formal apprentice 

program or through the less formal, but equally accepted on-the-job training, Matthew was 

working toward the completion of his apprenticeship and becoming a mason.” Appellant’s 

Appendix at 63. Based on these facts, we conclude that the evidence most favorable to the 

Longests as the non-moving parties is sufficient to create a genuine issue of material fact as 

to whether the informal, non-union apprenticeship was a vocational program for the purposes 

of the CWDS. 

12
We therefore conclude that there are genuine issues of material fact precluding 

summary judgment in favor of the defendants on the issue of Matthew’s status as a child for 

the purposes of the CWDS.6

 Consequently, the trial court erred in granting summary 

judgment on the Longests’ CWDS claim, and we remand with instructions to vacate that 

portion of its judgment and for further proceedings consistent with this opinion. 

2.

Next, the Longests argue that the trial court abused its discretion in granting partial 

summary judgment on the issue of whether the Longests were Matthew’s dependent next of 

kin for the purposes of the GWDS. The GWDS provides, in pertinent part:

When the death of one is caused by the wrongful act or omission of another, 

the personal representative of the former may maintain an action therefor 

against the latter . . . and the damages shall be in such an amount as may be 

determined by the court or jury, including, but not limited to, reasonable 

medical, hospital, funeral and burial expenses, and lost earnings of such 

deceased person resulting from said wrongful act or omission. That part of the 

damages which is recovered for reasonable medical, hospital, funeral and 

burial expense shall inure to the exclusive benefit of the decedent’s estate for 

the payment thereof. The remainder of the damages, if any, shall, subject to 

the provisions of this article, inure to the exclusive benefit of the widow or 

widower, as the case may be, and to the dependent children, if any, or 

dependent next of kin, to be distributed in the same manner as the personal 

property of the deceased. . . . [W]hen such decedent leaves no such widow, 

widower, or dependent children, or dependent next of kin, surviving him or 

her, the measure of damages to be recovered shall be the total of the necessary 

and reasonable value of such hospitalization or hospital service, medical and 

surgical services, such funeral expenses, and such costs and expenses of 

administration, including attorney fees.

6 Because we reverse on the basis of the statutory language alone, we need not address the Longests’ argument 

that a contrary construction of the statute would violate article 1, section 23 of the Indiana constitution. 

13

 
I.C. § 34-23-1-1 (emphasis supplied). It is undisputed that Matthew left no widow or 

dependent children. Thus, in order for the Longests to recover under the GWDS, they must 

establish that they were Matthew’s “dependent next of kin.”7

 Concluding that the Longests 

were not Matthew’s dependents, the trial court granted summary judgment for the defendants 

on this issue. 

On appeal, the Longests argue that the designated evidence establishes that they were 

Matthew’s dependents. In the context of wrongful death actions, our Supreme Court has held 

that “proof of dependency must show a need or necessity of support on the part of the person 

alleged to be dependent . . . coupled with the contribution to such support by the deceased.” 

New York Cent. R.R. Co. v. Johnson, 234 Ind. 457, 465, 127 N.E.2d 603, 607 (1955). This 

court has noted:

Dependency is based on a condition and not a promise, and such dependency 

must be actual, amounting to a necessitous want on the part of the beneficiary 

and a recognition of that necessity on the part of decedent, an actual 

dependence coupled with a reasonable expectation of support or with some 

reasonable claim to support from decedent. The mere fact that deceased 

occasionally contributed to the support of the beneficiary in an irregular way, 

is not sufficient to support the action....

Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 845 (quoting Wolf v. Boren, 685 N.E.2d 86, 

88 (Ind. Ct. App. 1997) (ellipsis in original)). 

7 We note that the Longests may not receive compensation under both the GWDS and the CWDS. See City of 

Indianapolis v. Taylor, 707 N.E.2d 1047 (Ind. Ct. App. 1999) (noting that recovery by parents under both 

statutes is impermissible because under the CWDS, a parent may recover only if the deceased has no

dependents, and under the GWDS, a parent may recover only if he or she is a dependent of the deceased). This 

does not, however, prevent the Longests from pleading both claims in the alternative. See Alaska Seaboard 

Partners, LP v. Hood, 949 N.E.2d 1247, 1254 (Ind. Ct. App. 2011) (noting that “a party may properly plead 

alternative and contradictory theories”).

14

 
The designated evidence establishes that at the time of his death, Matthew was living 

in his parents’ home. Both of his parents were able-bodied and gainfully employed, and they 

admit that they were not totally dependent upon him. Nevertheless, they argue that they were 

partially dependent on Matthew because Matthew paid his mother between fifty and one 

hundred dollars per week for rent, food, laundry, and to offset the expenses of him living 

there. In her deposition, Maribel testified that Matthew’s financial contributions totaled five 

to six thousand dollars per year. 

We acknowledge that total dependency is not required under the GWDS; indeed, this 

court has held that a “plaintiff may be partially dependent even though he could survive 

without the contribution made by the deceased.” Id. at 846 (quoting Lustick v. Hall, 403 

N.E.2d 1128, 1131-32 (Ind. Ct. App. 1980)). On the other hand, our supreme court has held 

that “[p]ayments for board, lodging or other accomodations . . . are not sufficient to establish 

dependency on the part of the recipient.” New York Cent. R.R. Co. v. Johnson, 234 Ind. at 

465, 127 N.E.2d at 607. Both Robert Sr. and Maribel acknowledged that the funds Maribel 

received from Matthew were in the nature of payments for room, board, and laundry services.

Indeed, Maribel stated that she “charged” him between fifty and one hundred dollars per 

month as a rent payment and in order to offset the expenses of him living in the home. 

Transcript at 77. Accordingly, these payments are insufficient to create a genuine issue of 

material fact with respect to dependency for the purposes of the GWDS.

The Longests also point out that Matthew performed services for his mother. 

Specifically, Maribel testified in a deposition that “in the winter he’d bring wood down. He 

15
done things to my car. He’d run errands for me. He was a tall young man so, you know, he 

done a lot of things that I couldn’t do, reaching, just . . . Yes, I depended on him a lot.” 

Appellant’s Appendix at 73. 

Services may be sufficient to establish dependency, but the contributions must be 

more than just a service or benefit to which the claimed dependent has become accustomed, 

and they “must go beyond merely helping other family members, even those who have relied 

on that assistance.” Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 846 (quoting Estate of 

Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1139 (Ind. 2002)). 

We find this court’s decision in Chamberlain v. Parks, 692 N.E.2d 1380 (Ind. Ct. 

App. 1998), trans. denied, instructive here. In that case, the decedent’s parents sought 

recovery under the GWDS as dependent next of kin based on the personal services their son 

had provided them during his lifetime. The decedent’s mother stated that she depended on 

the decedent for a variety of services, including carrying groceries and laundry, household 

cleaning and maintenance, yard work, working on cars, cooking, and running errands. The 

trial court granted summary judgment for the defendants on the issue of dependency, and this 

court affirmed, reasoning that the decedent’s acts “amounted to no more than gifts, donations 

and acts of generosity expected of a son to whom free housing, most of his board, gasoline 

money and automobile insurance was provided.” Id. 

We reach a similar conclusion here. We acknowledge that Matthew regularly helped 

out around the house, and Maribel had undoubtedly come to expect and rely to some extent 

upon that help. But as our Supreme Court has noted, “[s]ervices must go beyond merely 

16
helping other family members, even those who have relied on that assistance.” Estate of 

Sears ex rel. Sears v. Griffin, 771 N.E.2d at 1139. We therefore conclude that Matthew’s 

actions amounted to no more than the sort of gifts, acts of generosity, and kindness to be 

expected of a son still living under his parents’ roof. More is required to establish 

dependency for the purposes of the GWDS. Accordingly, we cannot conclude that the trial 

court erred in granting partial summary judgment in favor of the defendants on the Longests’ 

GWDS claim, and we affirm that portion of the judgment.

3.

Finally, the Longests argue that the trial court abused its discretion in limiting their 

recovery of attorney fees. We review a trial court’s award of attorney fees for an abuse of 

discretion; thus, we will reverse only when an award is clearly against the logic and effect of 

the facts and circumstances before the court. Benaugh v. Garner, 876 N.E.2d 344 (Ind. Ct. 

App. 2007), trans. denied. Under the GWDS, the Estate may recover “for the necessary and 

reasonable costs and expenses of administering the estate and prosecuting or compromising 

the action, including a reasonable attorney’s fee[.]” I.C. § 34-23-1-1 (emphasis supplied).8

 

“What constitutes reasonable attorney fees is a matter largely within the trial court’s 

discretion.” Franklin College v. Turner, 844 N.E.2d 99, 105 (Ind. Ct. App. 2006). In 

determining whether a fee is reasonable, the trial court may consider such factors as the time, 

labor, and skill required to perform the legal service, the amount involved and the results 

8 Because the issue is not before us in this appeal, we do not address whether the Longests may recover 

attorney fees related to their pursuit of the CWDS claim should they prevail on the merits of that claim on 

remand. See I.C. § 34-1-1-8 (providing that plaintiffs in a CWDS claim may recover damages to pay the 

expenses “of the administration of the child’s estate, including reasonable attorney’s fees”). 

17

 
obtained, the experience, reputation, and ability of the lawyer, and the fee customarily 

charged in the locality for similar legal services. Nunn Law Office v. Rosenthal, 905 N.E.2d 

513 (Ind. Ct. App. 2009). Finally, “[t]he trial judge is considered to be an expert on the 

question and may judicially know what constitutes a reasonable attorney’s fee.” Rand v. City 

of Gary, 834 N.E.2d 721, 723 (Ind. Ct. App. 2005) (citing Glover v. Torrence, 723 N.E.2d 

924, 938 (Ind. Ct. App. 2000)), trans. denied.

As an initial matter, we note that the issue of attorney fees was not addressed during 

the bench trial in this matter; instead, the parties agreed to file post-trial submissions on the 

issue. From our review of the chronological case summary and the trial court’s final order, it 

appears that the Longests filed a verified petition for attorney fees and an attorney fee 

affidavit on June 29, 2012, and the defendants filed a response in opposition on July 20, 

2012, which was also accompanied by an affidavit. The Longests, however, have not 

favored us with copies of any of these documents. “It is an appellant’s duty to provide an 

adequate record for review.” Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006). 

Because the Longests have not presented us with a complete record, we are unable to review 

the evidence presented to the trial court on this matter. Instead, we must rely exclusively on 

the findings the trial court made in ruling on the Longests’ request for attorney fees. 

The trial court entered the following relevant findings and conclusions with respect to 

its attorney fee award:

The value of the attorney’s fees must be reasonable. Hillebrand v. 

Supervised Estate of Large, 914 N.E.2d 846, 850 (Ind. Ct. App. 2009). The 

court in Hillebrand held that “the damages awarded in a wrongful death action 

may include the reasonable attorney fees necessary to pursue the action, and 

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these damages inure to the exclusive benefit of the estate for the payment of 

such costs.” Id. I.C. 29-1-10-13 states that “an attorney performing services 

for the estate at the instance of the personal representative shall have such 

compensation therefore out of the estate as the court shall deem just and 

reasonable.” 

The plaintiff’s [sic] should only be able to recover for the attorney’s 

fees associated with Count One of the complaint. It does not appear from the 

interpretation of the statute that the plaintiffs should be able to recover for 

attorney’s fees for Counts Two, Three and Four, as they were not related to the 

administration of the estate. Further, the defendant was awarded summary 

judgment with respect to Count Two, which was a claim by the parents of 

Matthew Longest for the loss of love and companionship, services, and 

affection of their son under the [CWDS]. 

The [attorney for the] plaintiff[s] also asks that the court set the rate of 

her services at $350 per hour. This would be appropriate if the accident and all 

subsequent hearings occurred in Indianapolis or the surrounding area. 

However, the accident and all subsequent hearings occurred in Southern 

Indiana. An affidavit submitted by the defense states the prevailing rates in 

this area range from $125-150/hour. A “‘reasonable hourly rate’ is based upon 

market rates in the community for similar services rendered.” Barker v. City of 

West Lafayette, 878 N.E.2d 230, 233 (Ind. Ct. App. 2007).

CONCLUSION AND ORDER

. . . The plaintiffs are . . . entitled to receive reasonable attorney’s fees 

for fees that are associated with the Estate of Matthew Longest. Indiana’s 

[GWDS] doesn’t provide for the recovery of attorney’s fees for the claims of 

Robert and Maribel Longest. Robert Longest settled his claim in December of 

2004 and his claim for negligent infliction of emotional distress disappeared 

with that settlement. Because we are dealing with only one of the four claims, 

years of records and litigation expenses, and because all of the times and 

expenses are lumped together in the attorney fee affidavit and expense sheets, 

the records are not clear as to which expenses and hours go to the funeral and 

burial expenses alone. The court now determines that to ask the Plaintiffs[’] 

counsel to spend even more time sorting through documents and record’s [sic] 

to submit specific affidavits as to the funeral and burial hours would delay this 

case, from 1998, even further. Therefore, in that there were four original 

claims and we are now dealing with one, the court finds that the equitable 

solution is to award attorney fees for one fourth of the request at the prevailing 

Lawrence County attorney fee rate of $150 per hour for a total fee award of 

$11,356.50 (75.71 hours x $150) plus one forth [sic] of the expenses requested 

$3,620.60 ($14,480.25 divided by 4). 

Appellant’s Appendix at 134-35.

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On appeal, the Longests argue that the trial court erred in awarding attorney fees for 

only one-quarter of the billed hours based on its conclusion that attorney fees were 

recoverable for only one of the four claims asserted in the Longests’ complaint.9

 

Specifically, they argue that “[u]ltimately, the attorneys for the Longests and the Estates had 

to prove a full case of liability and damages in order to recover any amount, even those 

amounts for funeral expenses and Estate administration.” Appellant’s Brief at 19. The 

Longests assert that because it was “impossible for the attorneys or the trial court to 

subdivide the attorneys’ time devoted to this action,” they are entitled to recover fees for all 

of the attorney hours spent in pursuit of this case. Id. 

On the record before us, we cannot agree. The record, such as it is, contains no 

support for the Longests’ arguments in this regard. In fact, the record contains no evidence at 

all concerning the hours the Longests’ attorneys spent in pursuit of this litigation, or the 

manner in which they spent them. Indeed, we are unable to even determine whether the 

Longests’ position on appeal with respect to the purported indivisibility of the time spent on 

this matter is consistent with its position at trial. In light of our standard of review, we 

decline to simply take the Longests’ statements on this issue at face value. Given the dearth 

of evidence, we cannot conclude that the trial court abused its discretion in this regard. See 

9 According to the Longests, “[t]he Estate presented alternative theories of recovery in the three mentioned 

counts,” apparently referring to the three counts on which the trial court ruled were not eligible for an attorney 

fee award—the CWDS claim, Robert Sr.’s personal injury claim, and Maribel’s loss of consortium claim. 

Appellant’s Brief at 19. We note that none of these three claims were presented by the estate. The Longests, 

not the estate, were the plaintiffs in the CWDS action. See I.C. § 34-1-1-8 (b) (providing that a CWDS claim 

may be maintained by a parent or guardian). Likewise, Robert Sr. was the plaintiff in his personal injury action 

and Maribel was the plaintiff in her loss of consortium action. The only cause of action advanced by the estate 

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Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 59 (Ind. Ct. App. 2009) (noting that 

“[w]here the amount of the fee is not inconsequential, there must be objective evidence of the 

nature of the legal services and the reasonableness of the fee”), trans. denied.

The Longests also assert that the trial court abused its discretion in reducing the billed 

rate of $350 per hour to an award of $150 per hour.10 According to the Longests, “[t]he trial 

court never once reviewed whether the amount of hours or the value of the hours were 

reasonable, but, instead, substituted the attorney’s regular billable rate for a Lawrence county 

attorney fee.” Appellant’s Brief at 19. We disagree with this characterization of the trial 

court’s order. The trial court clearly considered the reasonableness of the $350/hour billable 

rate. Specifically, based on an affidavit submitted by the defendants concerning the 

customary rates in Lawrence County, the trial court concluded that the billable rate was 

unreasonable for the relevant market and substituted a typical Lawrence County rate. Again, 

in light of the absence from the record of the relevant evidence concerning attorney fees, we 

cannot conclude that the trial court abused its discretion in this regard. We therefore affirm 

that part of the trial court’s judgment awarding attorney fees on the GWDS claim.

Judgment affirmed in part, reversed in part, and remanded with instructions. 

was the GWDS claim. See I.C. § 34-23-1-1 (providing GWDS claims may be commenced by the personal 

representative of the estate).

10 The Longests also argue that the trial court abused its discretion by failing to use “the lodestar method” to 

determine a reasonable attorney fee. Appellant’s Brief at 19. The Longests quote Barker v. City of W. 

Lafayette, 878 N.E.2d 230, 233 (Ind. Ct. App. 2007), for the proposition that “[t]he lodestar figure is the 

product of a reasonable number of hours spent on the litigation times a reasonable hourly rate.” Assuming 

arguendo that the trial court was required to employ this method, our review of the trial court’s order indicates 

that it did just that. The court determined a reasonable number of hours spent on the claims for which attorney 

fees were available (75.71 hours) and multiplied that by a reasonable hourly rate ($150 per hour), for a total 

award of $11,356.50. 

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ROBB, C.J., and CRONE, J., concur.

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