Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015 Page 1 of 21

APPELLANT, PRO SE

Stephen F. Smith

South Bend, Indiana 

ATTORNEYS FOR APPELLEE

William G. Murphey

Kopka Pinkus Dolin PC

Crown Point, Indiana

A. Robert Masters

Nemeth Feeney Masters & Campiti PC

South Bend, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stephen F. Smith,

Appellant-Defendant/Counter-Plaintiff,

v.

Foegley Landscape, Inc.,

Appellee-Plaintiff/Counter-Defendant.

April 20, 2015

Court of Appeals Cause No.

71A03-1405-SC-169

Appeal from the St. Joseph Superior 

Court

Lower Court Cause No.

71D01-1307-SC-5420

The Honorable Michael P. 

Scopelitis, Judge

Pyle, Judge.

Statement of the Case

[1] Appellant-Defendant/Counter-Plaintiff, Stephen F. Smith (“Smith”), appeals 

the small claims court’s judgments in favor of Appellee-Plaintiff/CounterDefendant, Foegley Landscape, Inc. (“Foegley Landscape”), on its breach of 
Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015 Page 2 of 21

contract claim and on Smith’s tort and promissory estoppel counterclaim.1 He 

also appeals the small claims court’s award of attorney fees to Foegley 

Landscape. Foegley Landscape brought a claim against Smith in small claims 

court alleging that he had breached a contract for landscaping services by failing 

to pay the money he owed on the contract. Smith filed an answer and 

counterclaim arguing that Foegley Landscape, instead, had breached the 

contract because it had damaged the drainage system on Smith’s house in the 

process of completing the landscaping project. In his counterclaim, Smith

requested damages for the broken drainage system. After a bench trial, the 

small claims court found in favor of Foegley Landscape on both the claim and 

counterclaim, entered judgment for the amount owed under the contract, and 

also awarded Foegley Landscape attorney fees and costs.

On appeal, Smith argues that the small claims court erred in finding in favor of 

Foegley Landscape on both the claim and counterclaim because the company 

did not present any evidence contradicting his argument that it had damaged 

his drainage system. Accordingly, Smith asserts, the company breached its 

contractual promise to fulfill the contract in a “workmanlike manner” and was 

liable for damages for the drainage system. Alternately, Smith argues that the 

small claims court abused its discretion in awarding Foegley Landscape

attorney fees because its insurer actually paid for one of the attorneys and 

 

1

In his counterclaim, Smith also argued that Foegley Landscape was liable under theories of fraud and 

breach of contract, but he does not raise those arguments on appeal.
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because there was insufficient evidence to determine the reasonableness of the 

fees. We conclude that, contrary to Smith’s arguments, Foegley Landscape 

presented evidence that it did not damage Smith’s drainage system, and we 

therefore affirm the small claims court’s judgments on the claim and 

counterclaim. However, we also conclude that there was not sufficient 

evidence for the small claims court to determine the reasonableness of Foegley 

Landscape’s attorney fees. Accordingly, we reverse the small claims court’s 

award of attorney fees and remand to the court so it can hold a hearing and 

determine reasonable attorney fees.

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

Issues

[2] 1. Whether the small claims court erred when it entered judgment in favor of 

Foegley Landscape on its breach of contract claim and on Smith’s tort and 

promissory estoppel counterclaims.

2. Whether the small claims court abused its discretion in awarding Foegley 

Landscape attorney fees.
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Facts2

[3] In early June 2012, Smith and his wife (“Mrs. Smith”) (collectively, “the 

Smiths”) contacted Foegley Landscape about landscaping their yard. They had 

developed a good opinion of Foegley Landscape because they had seen the 

company complete work on their neighbors’ yard and thought the company had 

done a “beautiful job.” (Tr. 72).

[4] Shortly thereafter, Aaron Laskowski (“Laskowski”), who works in sales and 

management at Foegley Landscape, met with Smith to discuss the potential 

landscaping project. He and Smith walked around Smith’s yard together so 

that he could get an idea of the landscaping changes Smith wanted to make and

could formulate a landscape plan. 

[5] Subsequently, on June 25, Laskowski returned to the Smith house with a 

completed landscape proposal. It provided that, for $5,966, Foegley Landscape 

would remove the plants, debris, and weeds along the front of the foundation of 

the Smiths’ house; level out a “hump” that the previous owner had left in the 

 

2

Smith’s Statement of Facts includes argument, which is inappropriate in that part of an appellate brief. 

Elliot v. Sterling Mgmt. Ltd., Inc., 744 N.E.2d 560, 562, n.1 (Ind. Ct. App. 2001). Although Smith is pro se in 

this proceeding, he is also an attorney and a professor at the University of Notre Dame, and we hold him to 

the same standards as other attorneys. (Tr. 65, 66, 90). Accordingly, we remind Smith that a Statement of 

the Facts should be a concise narrative of the facts stated in a light most favorable to the judgment and should 

not be argumentative. Elliot, 744 N.E.2d at 562, n1. See Ind. Appellate Rule 46. Smith also attempts to 

inappropriately discredit the small claims court by writing, (1) “[s]adly, the trial judge was not interested in 

doing justice”, and (2) “In his zeal to help a landscaping company collect a contract price it clearly had not 

earned—and that even counsel for appellee feared it might be held not to have earned—the trial judge 

committed several legal errors.” (Smith’s Br. 1, 2). We refer Smith to Indiana Appellate Rule 46 for the 

proper format and placement of arguments in an appellate brief. 
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planting bed; edge the yard; install bark mulch; and install several plants. (Tr. 

17). The Smiths would have to pay fifty percent of the total price upon signing

the proposal and the rest upon completion of the project. They would also be

liable for “[a]ny cost including reasonable attorney fees, incurred in the 

collection of this contract[,]” and a “2% service charge per month – 24% 

Annual percentage rate on all accounts past 30 days.” (Foegley Landscape’s 

Ex. 1). The Smiths agreed to these terms and endorsed the contract. They paid 

the down payment of $3,000, fifty percent of the project price, and a crew from 

Foegley Landscape began the landscaping project two to three weeks later. 

[6] Around the end of July, Foegley Landscape completed the first stage of the

work, which involved removing the plants, debris, and “hump” in the Smiths’ 

yard. (Tr. 17). By the end of August, the crew members had installed the 

mulch and plants and completed the landscaping. However, before the crew 

left the property, Laskowski conducted a final inspection to confirm that they 

had completed all of the landscaping required under the contract. 

[7] During the inspection, Laskowski noticed that only one of the downspouts on 

the house was connected to a drain tile, and the tile looked “like it was installed 

incorrectly.” (Tr. 22). A drain tile is a pipe that attaches to a gutter’s 

downspout and directs water away from a house. The other end of the tile is 

usually buried underground and prevents water from collecting around the 

house and causing water damage. The drain tile that Laskowski thought was 

installed incorrectly ran parallel to, rather than away from, Smith’s house. 

However, because the Smiths had not contracted with Foegley Landscape to fix 
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their drainage system, Laskowski determined that the company had fulfilled its 

obligations under the contract.

[8] As a result, on August 31, 2012, Foegley Landscape sent Smith an invoice for 

$2,996, which was the remaining amount the Smiths still owed under the 

contract. The invoice included a note recommending that the Smiths take the 

next step of adding underground drain tiles to all of the downspouts on the 

house. 

[9] Over the following months, the Smiths failed to pay the amount they owed. On 

December 6, 2012, the President and Owner of Foegley Landscape, John 

Foegley (“Foegley”), sent Smith a letter telling him that he owed $3,242.97 as a 

result of service charges for non-payment and requesting that Smith call him if 

he wished to discuss the matter. Smith did not call or otherwise respond to 

Foegley’s letter. 

[10] During that same period, the company also tried to contact Smith through his 

work e-mail address and by mailing him letters. Laskowski attempted to 

contact Smith by telephone several times and left a voicemail each time. He 

only heard back from Smith once in April 2013 when Smith called saying that 

something in the landscaping project was still incomplete, but “[he] had to get 

with [his] wife to find out what that was.” (Tr. 42). He told Laskowski that he 

would get back with him, but he never did. 

[11] Sometime during the spring of 2013, Foegley asked the company’s Vice 

President, Brian Hominiuk (“Hominiuk”), to visit Smith’s house and find out if 
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there was a reason that Smith had not paid.3 When Hominiuk did so, Smith 

answered the door and told him that “he [had] to talk to [his] wife but [he] 

believe[d] there were some downspouts that were taken[.]” (Tr. 115). 

Hominiuk told Smith that the house’s drainage was not a part of the contract, 

but he agreed to bring a crew back out to work on the drain system to “make 

[Smith] happy.” (Tr. 118). He specified, though, that the crew members would 

not do any further work until he received payment for the work that they had 

already completed. Smith agreed, and the two set an appointment for 

Hominiuk to return with a crew. 

[12] Two weeks later, Hominiuk returned to the Smith house on the day they had 

designated to meet. He did not have a crew with him because he intended to 

meet with Smith to receive payment and set up for the two crew members, who 

were delayed. When he arrived, Hominiuk knocked on Smith’s door, but 

Smith did not answer. Smith was home but did not answer because he did not 

see a crew with Hominiuk and thought he was just trying to collect payment. 

However, when Smith did not answer the door, Hominiuk told the crew

members not to come to the house as they had planned. After lunch, he tried to 

see if Smith was home, but, again, there was no answer at the door. 

[13] In May or early June of 2013, Foegley sent Smith a letter reiterating that 

Foegley Landscape had completed the work the contract had required, that 

 

3 Hominiuk testified that he thought this occurred in the summer of 2013, but it is apparent from the record 

that it occurred in late spring 2013.
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Smith had not responded to the company’s attempts to contact him, and that 

Smith had failed to meet with Hominiuk to pay as they had agreed. Foegley 

wrote that the balance on the account had reached $3,580.51 with service 

charges and told Smith that if Foegley Landscape did not receive payment 

before June 7, 2013, it would turn the matter over to the company’s attorneys

for collection. He sent the letter by certified mail, but the post office sent it back 

with writing on the envelope stating “return to sender, moved, left[] no 

address.” (Tr. 91).

[14] On July 9, 2013, Foegley Landscape filed a breach of contract claim against 

Smith in small claims court, requesting “up to $6,000[,]” including $3,580.51 

for the unpaid contract balance and service charges, additional amounts for 

accruing service charges and interest, reasonable attorney fees, and court costs. 

(App. 10). On August 8, 2013, Smith filed an answer and counterclaim in 

which he denied the charges against him and claimed that Foegley Landscape 

had destroyed his water drainage system and had not replaced it. He argued 

that the company was liable to him under legal theories of breach of contract, 

promissory estoppel, fraud, and tort, and he argued for compensatory damages 

in the amount of his $3,000 deposit, plus the amount necessary to repair the 

drainage system. 

[15] On November 12, 2013, Foegley Landscape filed two affidavits with the trial 

court. In the affidavits, two of the company’s employees stated that they 

performed the landscaping work on Smith’s yard and had not removed or 
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damaged any drain tiles on the house. Although the company filed these 

affidavits with the court, it did not attempt to admit either of them at trial. 

[16] The next day, November 13, 2013, the small claims court held a bench trial on 

the claim and counterclaim. At trial, Laskowski and Foegley detailed the 

attempts they had made to contact Smith about payment.4 With respect to the 

drain tiles, Laskowski testified that he “was in daily communication with the 

crews that were [at the Smith house] and they said they never ran into any 

tiles.” (Tr. 23). He explained that drain tiles are “extremely” difficult to 

remove because when they have been in the ground for a while, they have a lot 

of debris in them, and tree and shrub roots anchor them into the ground. (Tr. 

37). Due to this difficulty, he said that Foegley Landscape would typically cap 

a drain tile off and leave it underground before it would remove one. 

[17] Smith and Mrs. Smith also testified at the trial. Mrs. Smith said that one day 

when the crew members were working on the landscaping, she walked through 

the yard and saw one of the drain tiles “ripped off” and “off to the side.” (Tr. 

78). She claimed that one of the workers saw her reaction to the sight and said 

“don’t worry, Mrs. Smith[.] [A]nything we take out we will replace[.]” (Tr. 

78). Then, according to Mrs. Smith, the workers left without repairing the 

drain tiles. She said they removed all of the tiles, except for one, which was 

positioned parallel to the house and did not work properly. On cross-

 

4 Laskowski testified that by the date of trial, the total amount Smith owed on the contract was $3,875.68 due 

to continued accrual of interest after Foegley Landscape filed its complaint. 
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examination, however, Mrs. Smith changed her story slightly and stated that 

the drain tile that she claimed had been “ripped off” and “off to the side” had 

actually still been in the ground when she saw it, only exposed. (Tr. 78).

[18] In regards to the Smiths’ failure to pay Foegley Landscape’s invoice, the Smiths 

both testified that they believed the work was incomplete—and therefore their 

payment was not due—because Foegley Landscape had not replaced the drain 

tiles. Mrs. Smith said that when the crew members left the Smiths’ house for 

the last time, she kept expecting them to return to repair the drainage system. 

[19] Finally, in regard to Foegley Landscape’s attempts to contact the Smiths, Mrs. 

Smith denied that either she or Smith had received Foegley’s May or June 2013 

letter that the post office had returned with the writing “return to sender, 

moved, left[] no address.” (Tr. 91). Smith stated that he did not get the letters 

from Foegley Landscape because he did not get the mail very often.

[20] At the conclusion of the trial, Foegley Landscape introduced fee affidavits from 

its two attorneys, A. Robert Masters (“Attorney Masters”) and William G. 

Murphey (“Attorney Murphey”). Attorney Masters, the attorney-of-record, 

averred that his firm had billed Foegley Landscape $500 for its preparation of 

the complaint and representation of Foegley Landscape in court, as well as $81 

for the filing fee and $13 for the sheriff’s filing fee. Attorney Murphey averred 

that his fees totaled $4,045.90, although he did not include an hourly rate or 

any other explanation of his fee. Attorney Masters explained to the court that 

there were two affidavits because he had been retained to prepare the arguments 
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related to the complaint, and Attorney Murphey had been retained when Smith 

filed his counterclaim. Attorney Masters implied, but did not explicitly state, 

that Foegley Landscape’s insurer had retained Attorney Murphey to help with 

Foegley Landscape’s defense.

[21] The small claims court took the matter under advisement to allow Smith time 

to submit pictures he had taken of the house’s downspouts.5 Smith filed the 

pictures, and on January 9, 2014, the small claims court entered judgment of 

$5,410.55 in favor of Foegley Landscape on its complaint. This amount 

included the principal amount of the claim, interest through the date of 

judgment, and “reasonable” attorney fees of $1,500. (App. 5). In addition, the 

small claims court awarded Foegley Landscape costs of the action in the 

amount of $94 and entered judgment in favor of Foegley Landscape on Smith’s 

counterclaim. 

[22] On February 7, 2014, Smith filed a motion to correct error. Although his 

motion is not a part of the record, it is apparent that he argued that the small 

claims court’s award of attorney fees was excessive because the contract 

allowed Foegley to recover only “reasonable attorney fees incurred in the 

collection of this contract,” rather than fees incurred defending against a 

counterclaim. (App. 7). The small claims court held a hearing on the motion

on April 9, 2014, and denied it on April 22, 2014, holding that Smith’s 

 

5

Smith had brought his camera to court with the pictures on it, but he had not printed them off in order to 

admit as exhibits.
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interpretation of the contract language was too narrow. The small claims court 

also found that its $1,500 award of attorney fees was reasonable “in light of the 

time and effort expended to pursue [Foegley Landscape’s] claim through the 

court system” and in light of “the amount of the remaining balance owed by 

Smith on the contract.” (App. 7). Smith now appeals. 

Decision

[23] On appeal, Smith challenges the small claims court’s judgments in favor of 

Foegley Landscape on both the claim and counterclaim. With respect to the 

claim, he argues that Foegley Landscape failed to fulfill its contractual 

requirements in a “workmanlike manner,” as required by the contract, because 

the company broke his drainage system and failed to replace it. Accordingly, 

he argues that Foegley Landscape breached the contract, and he was not liable 

for payment. With regards to the counterclaim, Smith asserts that the trial 

court erred in entering judgment against him because Foegley Landscape 

should have been liable to him for removing the drainage system under a theory 

of either tort or promissory estoppel. Finally, Smith argues that even if the trial 

court did not err in entering judgment under either the claim or counterclaim, 

the attorney fees it awarded Foegley Landscape were unreasonable. Because

Smith’s arguments concerning the claim and counterclaim are dependent on the 
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evidence regarding the drainage system, we will address that issue first and then 

turn to the issue of attorney fees.

6

1. Judgments on the Claim and Counterclaim

[24] First, Smith asserts that the trial court erred in deciding in favor of Foegley 

Landscape on both the claim and counterclaim because there was no evidence 

in the record disputing his claim that the crew members damaged his drainage 

system. He argues that the only evidence Foegley Landscape presented on the 

issue were its employees’ two affidavits that it filed with the small claims court

but did not seek to admit at trial. As the affidavits were not admitted at trial, he

contends that the only evidence presented at trial was that the crew damaged

the system. We disagree.

[25] First, we must note that, as we expressed in Herren v. Dishman, 1 N.E.3d 697, 

702 (Ind. Ct. App. 2013), 

Judgments in small claims actions are subject to review as 

prescribed by relevant Indiana rules and statutes. Indiana has 

specific rules for small claims cases, but the Indiana Rules of 

Trial Procedure will generally apply unless the particular rule in 

question is inconsistent with something in the small claims rules. 

In accordance with Trial Rule 52(A), the findings or judgments 

rendered in a bench trial must be upheld unless clearly erroneous. 

Deference to the small claims court is essential as the trials are 

 

6

Foegley Landscape argues that Smith waived his claims by failing to file a timely appeal. We disagree as 

the small claims court denied his motion to correct error on April 22, 2014, and he filed his notice of appeal 

with this Court on May 21, 2014. See App. R. 9 (stating that a party has thirty days after a trial court rules on 

a motion to correct error to file a notice of appeal with the Clerk of the Court of Appeals). 
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designed to speedily dispense justice by applying substantive law 

between the parties in an informal setting. This court considers 

the evidence and related inferences in a light most favorable to 

the judgment, presuming that the small claims court applied the 

law correctly and giving due regard to the trial court’s 

opportunity to judge the credibility of the witnesses. However, 

this deferential standard does not apply to the substantive rules of 

law, which are reviewed de novo just as they are in appeals from 

a court of general jurisdiction. The burden of proof in a small 

claims civil suit is the same as it would be had the case been filed 

in a general trial court.

(internal citations and quotations omitted).

[26] Here, the small claims court did not make findings about whether Foegley 

Landscape damaged Smith’s drainage system. When the trial court makes no 

findings of fact, we presume the judgment is based on findings supported by the 

evidence. Rueth v. Quinn, 659 N.E.2d 684, 687 (Ind. Ct. App. 1996), trans. 

denied. We must affirm the trial court’s judgment if it can be sustained on any 

legal theory supported by the evidence. Id. When making this determination, 

we do not reweigh the evidence or assess the credibility of witnesses. Id. 

Instead, we consider only the evidence most favorable to the judgment, together 

with all reasonable inferences drawn therefrom. Id. 

[27] While we acknowledge that Foegley Landscape did not attempt to admit its 

employees’ affidavits at trial, there was other evidence in the record disputing 

Smith’s claim that Foegley Landscape’s crew had damaged the Smiths’ 

drainage system. Laskowski testified that he “was in daily communication with 

the crews that were [at the Smith house] and [that] they said they never ran into 
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any tiles.” (Tr. 23). He also explained that drain tiles are “extremely” difficult 

to remove because when they have been in the ground for a while, they have a 

lot of debris in them, and tree and shrub roots anchor them into the ground. 

(Tr. 37). Due to this difficulty, he said that Foegley Landscape would typically 

cap a drain tile and leave it underground before the company would remove 

one.

[28] Based on these details, we conclude that there was evidence in the record that 

Foegley Landscape did not damage the drainage system. Because all of Smith’s 

claims, in regards to both the claim and counterclaim, are based on his assertion 

that Foegley Landscape damaged his drainage system, and, because we have 

found that there was evidence that it did not damage the system, we need not 

address the remainder of his arguments. We may affirm a trial court’s general 

judgment on any legal theory supported by the evidence. See Rueth, 659 N.E.2d 

at 687. Accordingly, we conclude that the small claims court’s judgments in 

favor of Foegley Landscape were not erroneous.

2. Attorney Fees

[29] Next, Smith argues that even if we affirm the small claims court’s judgments, 

we should still reverse its award of attorney fees because the amount the small 

claims court awarded was unreasonable. He has two grounds for this 

argument—first, that it was unreasonable to award Foegley Landscape an 

amount for Attorney Murphey’s fees because Attorney Murphey was hired by 

the company’s insurer and, therefore, Foegley Landscape did not incur 

Attorney Murphey’s fees; and, second, the small claims court’s award of 
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Attorney Murphey’s fees was unreasonable because he did not submit any 

documentation for the work he did to justify the fees.7

[30] When reviewing an award of attorney fees, we apply the clearly erroneous 

standard to factual determinations, review legal conclusions de novo, and 

determine whether the decision to award fees and the amount of the award 

constituted an abuse of the trial court’s discretion. Storm Damage Specialists of 

America v. Johnson, 984 N.E.2d 660, 667 (Ind. Ct. App. 2013). An abuse of 

discretion occurs when the trial court’s decision is clearly against the logic and 

effect of the facts and circumstances before it. Id. 

[31] Generally, Indiana follows the American Rule, which requires each party to 

pay his or her own attorney fees. Stewart v. TT Commercial One, LLC, 911 

N.E.2d 51, 58 (Ind. Ct. App. 2009), trans. denied. However, parties may shift 

the obligation to pay such fees through contract or agreement, and courts will 

enforce the agreements as long as they are not contrary to law or public policy. 

Id. 

[32] As for Smith’s first argument—that Foegley Landscape’s insurer actually paid 

for Attorney Murphey’s fees—we note that Attorney Masters never explicitly 

stated that Foegley Landscape’s insurer had retained Attorney Murphey or paid 

Attorney Murphey’s fees. Instead, Attorney Murphey averred in his affidavit 

that he represented Foegley Landscape, and he also entered his appearance in 

 

7 Notably, Smith does not challenge the reasonableness of Attorney Masters’ fees.
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the case on behalf of Foegley Landscape. Nevertheless, we need not resolve 

any factual inconsistencies because Smith’s argument does not have merit even 

if Foegley Landscape’s insurer did retain and pay Attorney Murphey.

[33] Indiana courts have repeatedly held that a party is not required to personally 

pay the bills for his representation in order to be eligible for an award of 

attorney fees. Rand v. City of Gary, 834 N.E.2d 721, 722 (Ind. Ct. App. 2005) 

(awarding a fiscal officer of the City of Gary, Indiana attorney fees even though 

the City of Gary was paying the fees). In Harco, Inc. of Indianapolis v. Plainfield

Interstate Family Dining Assoc., 758 N.E.2d 931, 944 (Ind. Ct. App. 2001), we 

held that “the trial court is not constrained to award attorney fees only when 

those fees have been directly billed to and paid by a party.” Instead, “the 

relevant inquiry is whether a party has incurred attorney fees.” (Emphasis in 

original) (implying that “incurring fees” is not equivalent to incurring the 

obligation to pay those fees). Based on this precedent, we conclude that the 

small claims court did not abuse its discretion in awarding Foegley Landscape 

an amount for Attorney Murphey’s fees, regardless of whether Attorney

Murphey’s fees were paid by Foegley Landscape’s insurer. 

[34] Second, Smith argues that the small claims court abused its discretion in 

awarding Foegley Landscape attorney fees for Attorney Murphey’s 

representation. Specifically, he claims that Attorney Murphey’s fee was 

speculative, and therefore unreasonable, as Attorney Murphey did not submit 

any documentation clarifying what work he did on the case or how he 

calculated his fee. We agree with Smith.
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[35] Even when a contract provides for a recovery of attorney fees, the attorney fees 

recovered must be reasonable.8 Id. The determination of reasonableness of 

attorney fees necessitates consideration of all relevant circumstances. Id. 

Factors to consider include:

(1) the time and labor required, the novelty and difficulty of the 

questions involved, and the skills requisite to perform the legal 

service properly;

(2) the likelihood, if apparent to the client, that the acceptance of 

the particular employment will preclude other employment by 

the lawyer;

(3) the fee customarily charged in the locality for similar services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the 

circumstances;

(6) the nature and length of the professional relationship with the 

client;

(7) the experience, reputation, and ability of the lawyer or 

lawyers performing the services; and

(8) whether the fee is fixed or contingent.

Weiss v. Harper, 803 N.E.2d 201, 208 (Ind. Ct. App. 2003). 

 

8 This contract also explicitly provides that the fees must be “reasonable.” (Foegley’s Ex. 1).
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[36] Judicial notice of the reasonableness of attorney fees is permitted in certain 

routine actions, such as dissolutions of marriage, in which modest fees are 

sought. Loudermilk v. Casey, 441 N.E.2d 1379, 1387 (Ind. Ct. App. 1982). 

However, where 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. Stewart, 911 N.E.2d at 58. 

[37] In Fortner v. Farm Valley-Applewood Apartments, 898 N.E.2d 393, 400 (Ind. Ct. 

App. 2008), this Court held that an attorney fee award of $1,335.04 in a small 

claims action—which is an award approximately equivalent to the instant 

case—was consequential enough that it required objective evidence of the 

nature of the legal services and reasonableness of the fee. We held that the trial 

court had abused its discretion in awarding the fee because there was nothing in 

the record establishing the number of hours that the counsel had spent on the 

case or the counsel’s hourly rate. Id. Likewise, in Loudermilk we held that a 

trial court had abused its discretion in awarding attorney fees because there was 

no evidence of the value of the lawyer’s services, the nature of his services, or 

the time the lawyer had spent on the case. Loudermilk, 441 N.E.2d at 1387. We 

noted that a lawyer was required to provide evidence of the value of his service 

even when the lawyer’s fees equaled only six percent of the total damages 

awarded. Id. (discussing Parrish v. Terre Haute Sav. Bank, 431 N.E.2d 132 (Ind. 

Ct. App. 1982), reh’g denied, trans. denied). 

[38] Here, the small claims court awarded attorney fees in the amount of $1,500, 

which is a significant portion of the total damages of $5,410.55. Because 
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Attorney Masters provided documented evidence that his services were worth 

$500 in attorney fees, we attribute the remaining $1,000 to Attorney Murphey. 

Yet, there is no evidence in the record concerning the nature of Murphey’s 

representation, the hours he spent on the case, or his hourly charge. He merely 

submitted an affidavit to the small claims court stating that, as a result of his 

representation, Foegley Landscape had incurred costs and legal expenses of 

$4,045.90 related to the litigation. Absent information concerning the nature of 

Attorney Murphey’s services, the small claims court could not have properly 

evaluated the reasonableness of his fees and therefore abused its discretion in 

awarding attorney fees. Accordingly, we reverse the small claims court’s award 

of attorney fees with respect to Attorney Murphey and remand to the small 

claims court to hold a hearing and determine reasonable attorney fees for 

Attorney Murphey.

9

 See Fortner, 898 N.E.2d at 400 (remanding to the trial 

court to hold a hearing and determine reasonable attorney fees when there was 

insufficient evidence to support the trial court’s award of attorney fees); 

Loudermilk, 441 N.E.2d at 1388 (remanding for further proceedings when there 

was insufficient evidence to support the reasonableness of the trial court’s 

award of attorney fees). 

 

9

Significantly, we note that, by filing an action in the small claims court, Foegley Landscape waived its right 

to recover more than the $6,000 jurisdictional limit of the small claims court. Hoang v. Jamestown Homes, Inc., 

768 N.E.2d 1029, 1035 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We are affirming the trial court’s 

judgment of $3,910.55 for the amount owed under the contract, plus interest; $94 in court costs; and $500 for 

Attorney Masters’ attorney fees, so those amounts contribute to the $6,000 jurisdictional limit. Therefore, 

the maximum amount Foegley Landscape may recover for Attorney Murphey’s fee on remand is $1,495.45. 
Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015 Page 21 of 21

[39] Affirmed in part, reversed in part, and remanded.

Barnes, J., and May, J., concur.