Court of Appeals of Indiana | Opinion 19A-PL-1155 | November 13, 2019 Page 1 of 15

ATTORNEY FOR APPELLANT

Jon R. Pactor

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeremy J. Grogg

Burt Blee Dixon Sutton & Bloom, 

LLP

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Susan Sockrider,

Appellant-Defendant,

v.

Burt, Blee, Dixon, Sutton, and 

Bloom, LLP,

Appellee-Plaintiff.

November 13, 2019

Court of Appeals Case No.

19A-PL-1155

Appeal from the Allen Circuit 

Court

The Honorable Thomas J. Felts, 

Judge

Trial Court Cause No.

02C01-1901-PL-4

Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-PL-1155 | November 13, 2019 Page 2 of 15

STATEMENT OF THE CASE

[1] Appellant-Defendant, Susan Sockrider (Sockrider), appeals the trial court’s 

summary judgment in favor of Appellee-Plaintiff, Burt Blee Dixon Sutton & 

Bloom, LLP (Burt Blee), which concluded that no genuine issue of material fact 

exists that the parties entered into a valid contingency fee agreement. 

[2] We affirm.

ISSUES

[3] Sockrider raises four issues on appeal, which we consolidate and restate as the 

following two: 

(1) Whether the trial court properly issued summary judgment on Burt 

Blee’s motion for summary judgment on its Complaint for recovery of 

attorney fees pursuant to a contingency fee contract entered into with its 

client, Sockrider; and

(2) Whether the trial court properly adjudicated Sockrider’s affirmative 

defenses. 

FACTS AND PROCEDURAL HISTORY

[4] On June 2, 1986, Victor Sockrider (Victor), Sockrider’s husband, purchased a 

life insurance policy (Policy) from First Penn, a subsidiary of Lincoln Financial 

(Lincoln). On September 13, 2017, Victor requested Lincoln to cancel the 

Policy and pay him the Policy’s surrender value. Upon receiving Victor’s 

request, Lincoln commenced the administrative process of surrendering the 
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Policy. Approximately one month later, on October 17, 2017, Victor 

unexpectantly passed away. Sockrider was the sole beneficiary under the 

Policy at the time Victor died.

[5] On October 19, 2017, two days after Victor’s passing and a month after his 

surrender request, Sockrider, as the Policy’s sole beneficiary, contacted Lincoln 

to submit a claim for the entirety of the death benefits, i.e., $ 100,000, under the 

Policy. On November 16, 2017, Lincoln issued a denial of benefits. The 

insurance company asserted that it had processed Sockrider’s request on 

September 25, 2017, which was deemed to be in good order. Lincoln 

considered the agreement with Victor to surrender the Policy and pay the 

surrender value to be final and disbursed the surrender value of $1,737.87 to 

Sockrider. 

[6] On March 19, 2018, after unsuccessful attempts to procure the full Policy value 

from Lincoln, Sockrider contacted Burt Blee to discuss a potential claim against 

Lincoln. On March 22, 2018, after an initial consultation and review, attorney 

Jared Baker (Attorney Baker) emailed Sockrider, advising her that, in his 

estimation, “her claim was properly denied and that, should she proceed in 

attempting to enforce her death benefit claim, she would likely be unsuccessful 

and would have a substantial bill from [Burt Blee] to show for it.” (Appellant’s 

App. Vol. II, p. 81). Thereafter, on March 28, 2018, Sockrider and Attorney 

Baker had a discussion on the merits of the case and Sockrider “explicitly 

indicated that she could not afford that and asked whether [Burt Blee] would 

take the same on contingency.” (Appellant’s App. Vol. II, pp. 81-82). On April 
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3, 2018, “after lengthy discussions within the firm, [Burt Blee] collectively 

decided that, as a favor to [Victor], a long time client of the firm, and because 

the case involved an interesting argument to be made, [Burt Blee] would accept 

the case on a contingency basis, despite the inherent risk of a zero recovery.” 

(Appellant’s App. Vol. II, p. 82). Attorney Baker provided Sockrider with a fee 

agreement (Fee Agreement). After some discussion, “Sockrider asked that 

[Burt Blee] reduce [the] fee from the standard one-third contingency.” 

(Appellant’s App. Vol. II, p. 82). On May 3, 2018, upon receiving Burt Blee’s 

refusal to reduce its contingency fee, Sockrider signed the contingency fee 

agreement, which provided:

As compensation for [Burt Blee’s] services, the Client shall pay to 

[Burt Blee] a fee, contingent upon recovery, out of any monies 

recovered by or for the Client with respect to such claims, as 

follows:

[Burt Blee] will retain Thirty-Three and One-Third Percent (33 

1/3%) of the gross recovery (33 1/3% to be calculated prior to 

the deduction of expenses, advances or litigation costs) regardless 

of whether achieved prior to the filing of suit, after the filing of a 

suit, or commencement of appellate procedures. (While this 

Agreement addresses the possibility of appellate representation, 

this Agreement does not bind [Burt Blee] to any future appellate 

representation.)

(Appellant’s App. Vol. II, p. 29). 

[7] After researching Sockrider’s claims, Burt Blee sent a detailed demand letter to 

Lincoln, contending Victor’s life insurance benefits should be paid in full, rather 
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than the Policy’s surrender value. On July 27, 2018, Lincoln rejected the 

demand. In light of Lincoln’s denial, Burt Blee commenced the process of 

initiating litigation on behalf of Sockrider, drafting a detailed complaint for 

relief, breach of contract, and bad faith. On September 6, 2018, prior to Burt 

Blee filing its complaint, Lincoln informed the law firm that it had reassessed its 

prior denial and now recommended to disburse the insurance proceeds in full. 

Thereafter, Lincoln issued a check in the amount of $100,906.40, representing 

the life insurance benefit plus interest calculated at 1% per annum. 

[8] Burt Blee informed Sockrider that it had recovered the funds under the Policy 

from Lincoln and provided her with a standard disbursement allocation setting 

forth the attorney fees to be paid to Burt Blee from the insurance benefits per 

the Fee Agreement and the amount to be disbursed to Sockrider. Sockrider 

refused to pay the attorney fees, asserting that the contingency fee was 

unreasonable. Burt Blee tendered the life insurance proceeds in full, subject to 

an attorney’s fee lien, to Sockrider through her present counsel. 

[9] On January 2, 2019, Burt Blee filed its Complaint for damages, contending that 

Sockrider breached the agreement with Burt Blee and demanding payment of 

its contingency fee, in the amount of $33,635.00. On February 18, 2019, Burt 

Blee filed its motion for summary judgment, memorandum in support, and 

designation of evidence. Sockrider filed an opposition to Burt Blee’s motion 

which she amended on March 20, 2019, together with a memorandum and 

designation of evidence. On April 16, 2019, the trial court conducted a hearing 

on the motion for summary judgment and granted summary judgment to Burt 
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Blee, concluding that Sockrider “was bound to pay a contingency fee regardless 

of whether monies were received prior to [Burt Blee] filing suit.” (Appellant’s 

App. Vol. II, p. 13). Finding the contingency fee reasonable, the trial court 

entered final judgment in favor of Burt Blee. 

[10] Sockrider now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Standard of Review

[11] In reviewing a trial court’s ruling on summary judgment, this court stands in the 

shoes of the trial court, applying the same standards in deciding whether to 

affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 

891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we 

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

the trial court has correctly applied the law. Id. at 607-08. In doing so, we 

consider all of the designated evidence in the light most favorable to the nonmoving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if 

it helps to prove or disprove an essential element of the plaintiff’s cause of 

action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an 

opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins. 

Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant 

of summary judgment has the burden of persuading this court that the trial 

court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607. 
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[12] We observe that, in the present case, the trial court entered findings of fact and 

conclusions of law thereon in support of its judgment. Generally, special 

findings are not required in summary judgment proceedings and are not binding 

on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 

(Ind. Ct. App. 2004). However, such findings offer a court valuable insight into 

the trial court’s rationale and facilitate appellate review. Id

II. Contingency Fee

[13] Sockrider contends that the trial court erred by granting summary judgment to 

Burt Blee as there was a genuine issue of material fact that the Fee Agreement 

entered into between the parties unambiguously allowed Burt Blee to charge a 

contingency fee for a matter that did not involve litigation.

A. Interpretation

[14] The interpretation and construction of contract provisions is a function for the 

courts. Four Winds, LLC v. Smith & DeBonis, LLC, 854 N.E.2d 70, 74 (Ind. Ct. 

App. 2006), trans. denied. Upon appeal, we will employ the same standard of 

review as applied by the trial court, that is, unless the terms of the contract are 

ambiguous, they will be given their plain and ordinary meaning. Id. Where the 

terms of a contract are clear and unambiguous, the terms are conclusive, and 

we will not construe the contract or look to extrinsic evidence, but will merely 

apply the contractual provisions. Id. The terms of a contract are not 

ambiguous merely because the parties disagree as to the proper interpretation of 

the terms. Id. 
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[15] Indiana courts recognize the freedom to enter into contracts and presume that 

contracts represent the freely bargained agreement of the parties, reflecting the 

principle that it is in the best interests of the public not to unnecessarily restrict 

the freedom to contract. Valparaiso Technical Inst., Inc. v. Porter Co. Treasurer, 676 

N.E.2d 416, 420 (Ind. Ct. App. 1997), reh’g denied. Accordingly, contracting 

parties may enter into any agreement they desire that is not illegal or contrary 

to public policy. Id. 

[16] The Indiana Rule of Professional Conduct 1.5(c) authorizes a contingency fee, 

requiring that the “contingent fee agreement shall be in writing signed by the 

client and shall state the method by which the fee is to be determined[.]” Here, 

the written Fee Agreement stated that upon recovery on behalf of Sockrider, 

Burt Blee is entitled to a one-third fee of the amount recovered, “regardless of 

whether achieved prior to the filing of suit, after the filing of a suit, or 

commencement of appellate procedures.” (Appellant’s App. Vol. II, p. 29)

(emphasis added). The designated evidence reflects that, although Burt Blee 

initially refused to represent her because of the prohibitive high hourly rate that 

would be incurred, upon further research, Burt Blee offered to take the case 

upon contingency at Sockrider’s request and sent her the proposed Fee 

Agreement. One month later, Sockrider requested a reduction of Burt Blee’s 

contingency fee, and in contemplating the risk involved in Sockrider’s claim, 

combined with the possibility of recovering nothing, Burt Blee declined to 

reduce its fee. During that same two-month period of time in which Sockrider 

reviewed the terms of the Fee Agreement, Burt Blee and Sockrider entered into 
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extensive discussions regarding the nature of a contingency fee agreement. 

During these discussions, it was clarified that Burt Blee’s fees would be taken 

“out of the amount recovered” and that the law firm could not “take both a 

contingency fee and [an] hourly fee[.]” (Appellant’s App. Vol. II, p. 89). Burt 

Blee explained that any attorney fees that Lincoln could be requested to pay 

“would have to be ordered by the court.” (Appellant’s App. Vol. III, p. 3). In 

the event of a settlement outside of court, Lincoln could pay attorney fees “but 

it must be by agreement.” (Appellant’s App. Vol. III, p. 3). Responding to 

Sockrider’s question as to whether the contingency fee percentage is reasonable, 

Burt Blee advised that “[i]t is the standard percentage across the nation. Many 

firms take 40%.” (Appellant’s App. Vol. III, p. 3). 

[17] Though we agree with Sockrider that Burt Blee’s Fee Agreement largely 

contemplates litigation—and the prospect of litigation was precisely the reason 

a contingency fee agreement was suggested—the Fee Agreement 

unambiguously indicates that the contingency fee is due upon recovery of any 

amount regardless of whether, as here, it was achieved prior to filing suit. If, as 

suggested by Sockrider, the contingency would only be due after litigation, then 

the subclause of the Fee Agreement—“achieved prior to filing suit”—would be 

rendered meaningless. See Forty-One Assocs. v. Bluefield Assocs., L.P., 809 N.E.2d 

422, 427 (Ind. Ct. App. 2004) (Contract language must be construed “so as not 

to render any words, phrases, or terms ineffective or meaningless.”) 

B. Reasonableness of the Fee
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[18] A contingent fee agreement that is the product of a bargain between the 

attorney and the client is presumed to be reasonable as between them. See id. 

“The whole point of contingent fees is to remove from the client’s shoulders the 

risk of being out-of-pocket for attorney’s fees upon a zero recovery. Instead, the 

lawyer assumes that risk, and is compensated for it by charging what is (in 

retrospect) a premium rate.” City of New Albany v. Cotner, 919 N.E.2d 125, 134-

35 (Ind. Ct. App. 2009) (citing 1 GEOFFREY C. HAZARD JR., W. WILLIAM 

HODES, & PETER R. JARVIS, THE LAW OF LAWYERING § 8.6 (3d ed. 2000), 

reh’g denied, trans. denied; see also Waxman Indus. Inc. v. Trustco Dev. Co., 455 

N.E.2d 376, 382 (Ind. Ct. App. 1983) (“The benefits of a contingent fee 

contract between an attorney and client in litigation consisting of money 

demands are quite obvious. If no money is collected at all, the client is not 

obligated to pay fees, and in consideration of the absence of such risk, he is 

willing to pay the larger fee if money is collected. The attorney is willing to risk 

no recompense for his efforts in return for the possibility of a windfall.”).

[19] As to the reasonableness of a contingent fee, “there can be no per se objection to 

contingent fees, so long as the fee was reasonable as of the time it was agreed 

to, rather than with the benefit of hindsight.” Cotner, 919 N.E.2d at 135 (citing

HAZARD, HODES, & JARVIS, supra, § 8.6). In Vollmar ex. Rel. Vollmar v. 

Rupright, 517 N.E.2d 1240, 1244, 1245 (Ind. Ct. App. 1988) (citations omitted), 

this court reflected:

It makes little sense to attempt a barn door closing after the fact. 

Scrutiny may only be reasonably made in consideration of the 
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factors as they existed and as they were known at the time the 

contract was entered into. To require court approval of a 

contingent fee contract but countenance a second-guessing of that 

arrangement after the fact is to inject such a degree of uncertainty 

as to virtually destroy the underpinning necessity of the 

contingent fee in the first instance . . . If the inquiry is made at 

the outset and before a contract is signed, we acknowledge that 

many factors which bear upon the reasonableness of a contingent 

fee and upon the reasonableness of the particular percentage or 

percentages contemplated cannot be fully known. What may 

appear to be reasonable at the outset may appear to be 

unreasonable by reason of subsequent changes in circumstances 

or unforeseen and fortuitous events. Nevertheless, we do not

propose that a contingent fee contract, once approved after due 

consideration, be re-examined by hindsight. To do so would be 

to encourage almost certain and endless second guessing in all 

contingent fee situations. 

In Cotner, this court addressed the reasonableness of a contingency fee 

agreement entered into by and between the City of New Albany and a law firm, 

by which the law firm would be paid a contingency fee of one-third of any 

amount recovered in the pursuit of collecting certain fees for sewage services 

provided by the City. Cotner, 919 N.E.2d at 128. As a result of the work 

performed by the law firm, the City collected $900,000 in sewage services. Id.

at 130. The City refused to pay the contingency fee and litigation ensued. Id. 

The trial court found for the law firm on summary judgment and the City 

appealed. Id. On appeal, we analyzed the contingency fee and concluded that 

the fee was reasonable. Id. at 136. Recognizing that, “as a general matter, a 

one-third contingent fee is a standard and customary fee,” the fact that, in 

hindsight, the law firm did not have to expend much effort to earn the fee is 
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“simply not enough to overcome the presumption that the contingent fee is 

reasonable.” Id. 

[20] Likewise, here, Sockrider does not argue that the Fee Agreement was 

unreasonable when it was entered into. Pointing to affidavits and designated 

evidence in an attempt to persuade us that Burt Blee did not expend enough 

effort to justify the fee, none of its evidence addresses the dispositive issue of 

whether the contingent fee was unreasonable at the time the fee contract was 

entered into. After Victor’s surrender of the Policy and his unexpected passing, 

Lincoln repeatedly denied Sockrider’s request for payment pursuant to the 

Policy’s terms, as well as Burt Blee’s initial demand for payment. It is 

undeniable that both parties were expecting this case to proceed to litigation

and, with this in mind, the parties agreed to the Fee Agreement. Unexpectedly, 

Lincoln nevertheless agreed to pay under the terms of the Policy on the eve of 

Burt Blee filing its complaint. Only after Lincoln paid out the Policy’s amount 

did Sockrider take issue with the contingency fee.

[21] In support of her argument that subsequent events may render collection of a 

fee under a contingency fee agreement unreasonable, Sockrider relies on Matter 

of Powell, 953 N.E.2d 1060 (Ind. 2011); Matter of Hefron, 771 N.E.2d 1157 (Ind. 

2002); and Matter of Gerard, 634 N.E.2d 51 (Ind. 1994). Decided in the context 

of disciplinary proceedings, our supreme court concluded the attorney fees to be 

unreasonable based on the particularized circumstances in each case. Upon 

review, we are unpersuaded of their applicability. In Powell, attorney negotiated 

a contingency fee for a matter that, within two to three days of being accepted, 
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he knew did not involve a complex issue, did not need a prolonged time 

commitment, or had any opposition; whereas, in the case at hand, Burt Blee 

was faced with a difficult legal matter, required an understanding of insurance 

issues, and faced stiff opposition from the insurance company which had denied 

Sockrider’s earlier requests for payment and had rejected Burt Blee’s demand 

letter. Powell, 953 N.E.2d at 1064. In Hefron, attorney who agreed to an hourly 

fee to handle estate, insisted on a contingent fee after discovering substantial 

assets upon research; whereas Burt Blee rejected the hourly fee and negotiated a 

contingency fee prior to entering into the Fee Agreement and handling the case. 

Hefron, 771 N.E.2d at 1158. In Gerard, attorney negotiated a contingency fee 

for a matter that was largely administrative and required no specific legal skill;

whereas, here, the legal issue and its complications were well documented. 

Gerard, 634 N.E.2d at 54.

[22] In light of the facts before us, we find the contingency fee as negotiated between 

the parties reasonable. It is undeniable that the Fee Agreement entered into 

between the parties was the product of a bargain between Burt Blee and 

Sockrider. Because of the perceived complexity of the underlying matter and 

the purported opposition by Lincoln, Burt Blee suggested a contingency fee 

arrangement to remove the financial risk from Sockrider to the law firm. 

Despite a demand letter, Lincoln refused to pay pursuant to the Policy. On the 

eve of Burt Blee filing its complaint and bringing this cause to litigation, 

Lincoln, out of the blue, agreed to pay Sockrider the entire insurance amount. 

Although Sockrider now urges this court to do so, “[w]ithout more, 20/20 
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hindsight is simply not enough to overcome the presumption that the 

contingent fee is reasonable.” See Cotner, 919 N.E.2d at 136. Accordingly, we 

affirm the trial court’s summary judgment for Burt Blee.1 

III. Affirmative Defenses

[23] Next, Sockrider contends that the “trial court granted summary judgment for 

Burt Blee on the affirmative defense of whether the attorney-client contract was 

invalid for fraud in the inducement. This ruling [] was egregiously wrong 

because Burt Blee did not raise it as an issue on which it sought summary 

judgment[.]” (Appellant’s Br. p. 30). 

[24] In Reisweg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010), our supreme court clarified 

that “[a] party responding to a motion for summary judgment is entitled to take 

the motion as the moving party frames it.” Generally, an affirmative defense is 

waived “if not asserted in response to a motion for summary judgment that 

dispose[s] of the entire issue of liability. Id. at 32. “A non-movant is not 

required to address a particular element of a claim unless the moving party has 

first addressed and presented evidence on that element.” Id. Here, Burt Blee, 

as the moving party, moved for summary judgment on the entire issue of breach 

of contract. As such, Sockrider, as the non-moving party, had to assert all of its 

1 Additionally, Sockrider contends that Burt Blee ended its representation and failed to pursue a bad faith 

claim against Lincoln. However, Lincoln notified Burt Blee that it would pay Sockrider pursuant to the 

provisions of the Policy prior to Burt Blee being able to file its complaint, which included a bad faith claim. 

After Lincoln fully paid Sockrider, there was no need to pursue litigation as Burt Blee successfully

accomplished what Sockrider had engaged Burt Blee to pursue. 
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affirmative defenses or risk them being waived. Although Sockrider raised the 

affirmative defense of constructive fraud in its Answer to Burt Blee’s 

Complaint, Sockrider did not reaffirm the defense in its memorandum of law 

supporting its response to Burt Blee’s motion for summary judgment. In so far 

as Sockrider now attempts to raise its affirmative defense in her appellate reply 

brief, we find the issue waived. See id. 

CONCLUSION

[25] Based on the foregoing, we hold that the trial court properly entered summary 

judgment for Burt Blee. Furthermore, due to her failure to raise the affirmative 

defenses in her response to Burt Blee’s motion for summary judgment, 

Sockrider waived the issue for our review.

[26] Affirmed. 

[27] Baker, J. and Bailey, J. concur