Court of Appeals of Indiana | Opinion 60A05-1406-PL-297 | February 18, 2015 Page 1 of 7

ATTORNEY FOR APPELLANT

Mark Small

Indianapolis, Indiana

APPELLEE PRO SE

Paul J. Watts

Spencer, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Richard A. Clem,

Appellant-Defendant,

v.

Paul J. Watts,

Appellee-Plaintiff.

February 18, 2015

Court of Appeals Cause No. 60A05-

1406-PL-297

Appeal from the Owen Circuit Court.

The Honorable Dena Martin, Special 

Judge.

Cause No. 60C01-1312-PL-567

Sharpnack, Senior Judge

Statement of the Case

[1] Attorney Richard Clem appeals the trial court’s denial of his summary 

judgment motion and the grant of attorney Paul Watts’ summary judgment 

motion following Watts’ complaint seeking judgment against Clem for attorney 

fees in a dissolution case.
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[2] We reverse and remand with instructions for the trial court to enter summary 

judgment in favor of Clem.

Issue

[3] The sole issue is one of statutory interpretation and asks us to determine 

whether pursuant to Indiana Code section 33-43-4-2 (2004) an attorney fee lien

is valid if the intention to hold a lien is filed before judgment is rendered in the 

case.

Facts and Procedural History

[4] The dispositive facts are undisputed. In April 2011, Wife retained Watts to 

represent her in a dissolution proceeding in Hamilton County. Fourteen 

months later, in June 2012, Wife discharged Watts. Watts withdrew his 

appearance in July 2012. On September 6, 2012, Watts filed a Notice of 

Attorney Fee Lien in the Hamilton Circuit Court wherein he “enter[ed] his 

intention . . . to hold a lien pursuant to Indiana Code § 33-43-4-1 on all money 

and property awarded to [Wife] . . . .” Appellant’s App. p. 15. The Notice 

further provided that the lien was in the amount of $5,649.48.

[5] In September 2013, the Hamilton Circuit Court issued a dissolution decree that 

directed Clem, who was Husband’s counsel, to make a $29,749.46 distribution 

payment to Wife using funds provided by Husband. Clem distributed the 

money to Wife without paying Watts the value of the lien. Watts responded by 

filing a complaint against Clem and Wife requesting judgment in the sum of 

$5,649.48.
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[6] Clem filed a Motion for Summary Judgment wherein he argued that Watts’ lien 

was not valid because Watts filed the lien before the trial court’s entry of 

judgment in the dissolution case. According to Clem, Indiana Code section 33-

43-4-1 requires an attorney to file a lien not later than sixty days after the 

judgment is rendered. Watts also filed a Motion for Summary Judgment 

wherein he argued the statutory requirement that the notice of intention to hold 

a lien be filed not later than 60 days after the judgment is entered does not 

preclude a notice of lien from being filed before the judgment is entered creating 

an effective lien.

[7] The trial court denied Clem’s summary judgment motion and granted Watts’

motion. Clem appeals the denial of his motion and the grant of Watts’.

Discussion and Decision

[8] A party is entitled to summary judgment upon demonstrating the absence of 

any genuine issue of fact as to a determinative issue unless the nonmoving party 

comes forward with contrary evidence showing an issue of fact for trial. Dugan 

v. Mittal Steel USA, Inc., 929 N.E.2d 184, 185-86 (Ind. 2010).

[9] Our review on appeal from summary judgment is de novo. Hughley v. State, 15 

N.E.3d 1000, 1003 (Ind. 2014). On appeal, our task is the same as the trial 

court’s. Id. We must determine whether the moving party has shown from the 

designated evidentiary matter that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a matter of law. Id.; see 

also Ind. Trial Rule 56. We construe all facts and reasonable inferences in favor 
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of the nonmoving party to ensure that it is not improperly denied its day in 

court. Dugan, 929 N.E.2d at 186. The appellant has the burden to persuade us 

that the trial court made the wrong decision. Rosi v. Bus. Furniture Corp., 615 

N.E.2d 431, 434 (Ind. 1993).

[10] Where, as here, the relevant facts are not in dispute and the interpretation of a 

statute is at issue, such statutory interpretation presents a pure question of law 

for which summary judgment disposition is appropriate. Sanders v. Bd. Of 

Comm’rs of Brown Cnty., 892 N.E.2d 1249, 1252 (Ind. Ct. App. 2008), trans. 

denied. Our standard of review is not altered by cross motions for summary 

judgment. Id.

[11] The first step in interpreting a statute is to determine whether the legislature has 

spoken clearly and unambiguously on the point in question. Sees v. Bank One, 

Indiana, N.A., 839 N.E.2d 154, 157 (Ind. 2005). When a statute is clear and 

unambiguous, we need not apply any rules of construction other than to require 

that the words and phrases be taken in their plain, ordinary, and usual sense. 

Id. Clear and unambiguous statutes leave no room for judicial construction. Id.

[12] The attorney’s lien statutes at issue in this case are Indiana Code sections 33-43-

4-1 and 2, which provide that:

An attorney practicing law in a court of record in Indiana may 

hold a lien for the attorney’s fees on a judgment rendered in favor 

of a person employing the attorney to obtain the judgment.
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An attorney, not later than sixty (60) days after the date the 

judgment is rendered, must enter in writing upon the docket or 

record in which the judgment is recorded, the attorney’s intention 

to hold a lien on the judgment, along with the amount of the 

attorney’s claim.

[13] An early version of this statute provided that an attorney had to enter his notice 

of intention to hold the lien at the time the judgment of the trial court was

rendered. Alderman v. Nelson, 111 Ind. 255, 12 N.E. 394 (1887). The rule 

subsequently evolved to permit an attorney to enter his lien within a reasonable 

time after the entry of the judgment. Wood v. Hughes, 138 Ind. 179, 37 N.E. 588 

(1894). The statute was amended in 1949 to allow an attorney sixty days from 

the entry of final judgment to enter his lien. Stroup v. Klump-O’Hannes, 749 

N.E.2d 622, 624 (Ind. Ct. App. 2001). Specifically, the statute was amended to 

state as follows:

Any attorney practicing his profession in any court of record in 

this state, shall be entitled to hold a lien, for his fees, on any 

judgment rendered in favor of any person or persons employing 

such attorney to obtain the same: Provided, That such attorney, 

within sixty (60) days from the time such judgment shall have 

been rendered, enter in writing upon the docket or record 

wherein the judgment is recorded, his intention to hold a lien 

thereon, together with the amount of his claim.

[14] Ind. Code § 33-1-3-1 (1949). Cases interpreting this statute were clear that an 

attorney had sixty days from the entry of final judgment to enter his lien, 

Hollingsworth v. Stoops, 671 N.E.2d 165, 167 (Ind. Ct. App. 1996), and a lien 

filed before any judgment was rendered was not valid because there was no 
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judgment to which the lien could attach. Greenfield v. Greenfield, 591 N.E.2d 

1057, 1059 n.4 (Ind. Ct. App. 1992), trans. denied.

[15] These cases would be dispositive to the issue in the instant case; however, in 

2004, Indiana Code section 33-1-3-1 was repealed, amended, and recodified at 

Indiana Code sections 33-43-4-1 and 2, where section 2 now provides that an 

attorney must file his lien “not later than sixty (60) days after the judgment is 

rendered.” Citing no authority in support of his proposition, Watts argues that 

this slight change in the wording of the statute has relaxed the statutory 

requirements to allow liens to be filed before a judgment is rendered. We 

disagree.

[16] First, in Indiana Code section 33-43-4-2, the legislature clearly and 

unambiguously stated that an attorney must enter his intention to hold a lien on 

the judgment “in writing upon the docket or record in which the judgment is 

recorded” not later than sixty days after the date the judgment is entered. This 

clear and unambiguous language contemplates that a judgment must be 

recorded before a lien may be entered.

[17] Further, this result is consistent with our construction of the mechanic’s lien 

statutes. We look to statutes with similar statutory purposes for guidance. 

Hollingsworth, 671 N.E.2d at 167. The mechanic’s lien statute is similar to the 

attorney’s lien statute in that both were enacted to protect those who labor on 

behalf of others. Id. A person who wishes to acquire a lien upon property is 

required to file notice of his intention to hold the lien for the amount of the 
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claim in the recorder’s office not later than sixty days after performing labor or 

furnishing materials. Ind. Code § 32-28-3-3 (2008). This sixty-day period for 

filing a notice of intention to hold a mechanic’s lien commences when the 

subcontractor “finishes task for which it was hired.” Riddle v. Newton Crane 

Service, Ind., 661 N.E.2d 6, 10 (Ind. Ct. App. 1996), trans. denied. Similarly, the 

sixty-day period for filing a notice of intention to file an attorney fee lien 

commences when the judgment is entered.

Conclusion

[18] Pursuant to Indiana Code section 33-43-4-2, an attorney fee lien is not valid if 

the lien is filed before judgment is entered in the case. The trial court therefore 

erred in granting Watts’ summary judgment motion and denying Clem’s. We 

reverse and remand with instructions for the trial court to grant summary 

judgment in favor of Clem.

Friedlander, J., and Pyle, J., concur.