Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: BRIAN L. OAKS Kokomo, Indiana

ATTORNEYS FOR APPELLEE: ROBERT A. ANDERSON STEVEN P. LAMMERS Krieg DeVault, LLP Schererville, Indiana LIBBY Y. GOODKNIGHT Krieg DeVault, LLP Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
ALAN D. WILSON, ) ) Appellant-Plaintiff, ) ) vs. ) ) SISTERS OF ST. FRANCIS HEALTH SERVICES ) INC., d/b/a ST. FRANCIS HOSPITAL & ) HEALTH CENTERS, ) ) Appellee-Defendant. )

Jul 27 2011, 9:20 am

CLERK

No. 34A02-1101-CC-57

APPEAL FROM THE HOWARD CIRCUIT COURT The Honorable Lynn Murray, Judge Cause No. 34C01-0911-CC-1224

July 27, 2011

OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary Alan Wilson appeals the trial court's grant of summary judgment to the Sisters of St. Francis Health Services, Inc., d/b/a St. Francis Hospital & Health Centers ("St. Francis"), regarding an alleged attorney lien. We affirm. Issues Wilson raises three issues, which we restate as: I. whether Wilson had an equitable attorney lien on an insurance payment made to St. Francis; whether Wilson was entitled to a share of the insurance payment based on unjust enrichment; and whether St. Francis had a hospital lien that was subordinate to an attorney lien by Wilson. Facts In November 2007, T.W. was admitted to St. Francis in Beech Grove for emergency treatment of kidney cancer. St. Francis billed T.W. $26,524.27 for its medical services. T.W. had health insurance with Kaiser Permanente of Southern California, but Kaiser Permanente refused to pay for services rendered to T.W. because he did not receive the treatment in California. St. Francis hired a collection agency to collect payment from T.W.

II.

III.

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T.W. retained Wilson to pursue Kaiser Permanente for its failure to pay the St. Francis bill, and T.W. agreed to pay Wilson on a contingency fee basis. On T.W.'s behalf, Wilson initiated an administrative appeal with Kaiser Permanente, which was successful, and in June 2009, Kaiser Permanente paid $26,524.27 directly to St. Francis. Wilson then sent a letter to St. Francis and asserted "an attorney's lien for onethird (1/3) of any amount collected toward payment of the indebtedness. . . ." Appellant's App. p 30. St. Francis refused to pay Wilson. Wilson filed a complaint against St. Francis seeking payment of the one-third contingency fee. Wilson filed a motion for summary judgment, arguing that he had an "equitable charging lien" on the insurance payment, that he was entitled to payment under the attorney lien statute, Indiana Code Section 32-33-4-3, and that he was entitled to payment based on unjust enrichment/quantum meruit. Id. at 36. St. Francis filed a cross motion for summary judgment, arguing that Wilson was not entitled to a common law or statutory attorney lien and that St. Francis did not contract with Wilson. In response, Wilson argued that he was also entitled to judgment because St. Francis had asserted a hospital lien, which is subordinate to an attorney fee lien. The trial court granted St. Francis's motion for summary judgment and denied Wilson's motion for summary judgment. The trial court found that Wilson did not have a valid common law or statutory attorney fee lien, that Wilson's reliance on the hospital lien statute was misplaced, and that Wilson was not entitled to payment from St. Francis based on unjust enrichment or quantum meruit. The trial court noted that contingency fee agreements do not control third parties and that, even if Kaiser Permanente or St. Francis 3

had paid Wilson's contingency fee, T.W. would still have owed that amount to St. Francis. Wilson now appeals. Analysis Wilson appeals the trial court's grant of summary judgment to St. Francis and the trial court's denial of his motion for summary judgment. Our standard of review for summary judgment is the same standard used by the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sheehan Constr. Co. v. Cont'l Cas. Co., 938 N.E.2d 685, 688 (Ind. 2010). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Sheehan, 938 N.E.2d at 688. Also, review of a summary judgment motion is limited to those materials designated to the trial court. Id. Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Id. at 689. If the opposing party fails to meet its responsive burden, the court shall render summary judgment. Id. I. Equitable Attorney Fee Lien Wilson argues that he has a valid equitable attorney fee lien on the payment made by Kaiser Permanente to St. Francis. "The rule is well established in Indiana that the statutory lien is not the only lien available for the security of an attorney in performing

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services beneficial to his client, but that equity supplies a lien independent of statute."1 State ex rel. Shannon v. Hendricks Circuit Court, 243 Ind. 134, 139, 183 N.E.2d 331, 333 (1962). Although most of the cases cited by Wilson concern "retaining liens," Wilson asserts that he has a "charging lien." "A retaining lien is the right of the attorney to retain possession of a client's documents, money, or other property which comes into the hands of the attorney professionally, until a general balance due him for professional services is paid . . . and exists as long as the attorney retains possession of the subject matter. " Shannon, 243 Ind. at 139-40, 183 N.E.2d at 333. Here, Wilson never had possession of T.W.'s money, and consequently, a retaining lien is inapplicable. A charging lien is the equitable right of attorneys to have the fees and costs due them for services in a suit secured out of the judgment or recovery in that particular suit. Bennett v. NSR, Inc., 553 N.E.2d 881, 884 (Ind. Ct. App. 1990). "Unlike retaining liens, possession is not essential to a charging lien." Id. (citing 7A C.J.S. Attorney & Client

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