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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: DAVID W. STONE IV Stone Law Office & Legal Research Anderson, Indiana DEAN ARNOLD Nunn Law Office Bloomington, Indiana ATTORNEYS FOR APPELLEE: PETER H. ROSENTHAL Law Office of Peter H. Rosenthal Indianapolis, Indiana DIAMOND Z. HIRSCHAUER Indianapolis, Indiana

FILED
May 04 2009, 9:24 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
NUNN LAW OFFICE, Appellant-Petitioner, vs. PETER H. ROSENTHAL, Appellee-Respondent.1 ) ) ) ) ) ) ) ) )

CLERK

No. 49A05-0809-CV-523

APPEAL FROM THE MARION SUPERIOR COURT The Honorable S.K. Reid, Judge Cause No. 49D13-0502-CT-7196

May 4, 2009 OPINION--FOR PUBLICATION

The instant action regarding attorneys fees arose out of the personal injury action of Joseph D. Carpenter v. Terry Rosengarten, also with lower cause number 49D13-0502-CT-7196.
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BRADFORD, Judge. Appellant-Petitioner Nunn Law Office ("Nunn") appeals the trial courts award of $1462.88 in attorneys fees in its petition for division of attorneys fees arising out of Nunns and Appellee-Respondent attorney Peter Rosenthals successive representation of Joseph Carpenter in Carpenters personal injury action against Terry Rosengarten. Upon appeal, Nunn claims that the trial court erred in failing to issue written findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52 and in basing its award upon quantum meruit rather than upon Nunns contingency fee agreement with Carpenter. We affirm. FACTS AND PROCEDURAL HISTORY On April 3, 2004, Joseph Carpenter was involved in a motor vehicle accident with Terry Rosengarten in which Carpenter sustained injuries to his person. On May 17, 2004, Carpenter entered into an agreement with Nunn & Greene Law Office2 ("Nunn") providing that Nunn would represent him for any of his claims arising out of the accident in exchange for "40% of all amounts recovered or offered." Plaintiffs Exh. 2. On October 27, 2004, Nunn, on behalf of Carpenter, sent a demand package to Rosengartens insurer, Grange Insurance. In December of 2004, Grange Insurance made an oral settlement offer of $24,000 to Nunn. Carpenter rejected the offer, and Nunn initiated a lawsuit against Rosengarten on Carpenters behalf on February 25, 2005. On May 1, 2005, Carpenter discharged Nunn, and in late June of 2005, hired Peter H. Rosenthal to represent him instead. In April of 2006, Carpenter, represented by Rosenthal,

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Nunn Law Office was formerly named Nunn & Greene Law Office.

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received and accepted a settlement offer of $42,500.

A portion of that settlement,

specifically $15,500, constituted Rosenthals attorneys fees. On May 4, 2006, Rosenthal wrote a letter to Nunn indicating that Carpenters case had been settled. Rosenthals letter anticipated expenses for which Nunn should receive reimbursement and requested from Nunn an itemization of work performed for purposes of Nunns compensation for attorneys fees. On October 20, 2006, Nunn moved to reopen Carpenters case for purposes of determining proper division of attorneys fees. The trial court held hearings on October 26, 2007 and June 16, 2008, at the conclusion of which it orally calculated judgment in favor of Nunn in the amount of $1462.88. This calculation was determined according to the trial courts assessment, based upon quantum meruit, of fair compensation for Nunns work on Carpenters case. Prior to the October 26, 2007 hearing, Nunn had filed a Motion for Special Findings of Fact and Conclusions of Law, and counsel for Nunn reiterated this request following the courts oral calculation of judgment. The trial court acknowledged having overlooked Nunns motion and set a date for submission of proposed findings and conclusions. Rosenthal indicated that, with the courts permission, he would not submit proposed findings. On July 1, 2008, Nunn submitted proposed findings and conclusions, including the proposed conclusion that its fee should be assessed according to the forty-percent contingency fee agreement. On July 14, 2008, the trial court, without entering written findings and conclusions, entered a general judgment for Nunn in the amount of $1462.88.

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DISCUSSION AND DECISION3 I. Standard of Review

On appeal from an award of attorneys fees, this court applies the "clearly erroneous" standard to factual determinations, reviews legal conclusions de novo, and determines whether the amount of a particular award constituted an abuse of the trial courts discretion. See H&G Ortho, Inc. v. Neodontics Int'l, Inc., 823 N.E.2d 734, 737 (Ind. Ct. App. 2005). See also Emergency Physicians of Indpls. v. Pettit, 714 N.E.2d 1111, 1115 (Ind. Ct. App. 1999), trans. granted and adopted in pertinent part, 718 N.E.2d 753, 757 (Ind. 1999) (articulating above multi-step standard of review for award of attorneys fees in cases of frivolous lawsuit or bad-faith litigation). An abuse of discretion occurs when the trial courts decision is clearly against the logic and effect of the facts and circumstances before it. H&G Ortho, Inc., 823 N.E.2d at 737. A trial court has wide discretion in awarding attorneys fees. Id. The trial court may look to the responsibility of the parties in incurring the attorneys fees, and the trial judge has personal expertise that he or she may use when determining the reasonableness of the fees. Id. II. Findings and Conclusions A. Written Form

Upon appeal, Nunn first claims that the trial court erred as a matter of law in entering a general judgment rather than issuing written findings and conclusions. Nunn relies upon Carmichael v. Siegel, 670 N.E.2d 890, 891 (Ind. 1996), wherein the Supreme Court held,

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We held oral argument in this case on April 7, 2009, and wish to thank counsel for their advocacy.

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based upon the "clear, mandatory language" of Trial Rule 52(A), that "a trial judge is not free to ignore a timely, written request for special findings." Nunn additionally relies upon McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind. 1994), which provides that the purpose of special findings under Rule 52(A) is to provide the parties and the reviewing courts with the trial judges theory of the case in order to effectively preserve the right of review for error. Rule 52(A) provides, in pertinent part, as follows: In the case of issues tried upon the facts without a jury or with an advisory jury, the court shall determine the facts and judgment shall be entered thereon pursuant to Rule 58. Upon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court in all actions tried upon the facts without a jury or with an advisory jury . . . shall find the facts specially and state its conclusions thereon. In evaluating the proper format for Rule 52(A) findings and conclusions, we first observe that the Indiana Supreme Court has emphasized their formal nature. In the small claims case of Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995), the Supreme Court overturned a determination by this court that Rule 52(A) findings and conclusions must be in writing, but it based its holding on the inapplicability of Rule 52(A) to small claims proceedings rather than on any suggestion that Rule 52(A) findings and conclusions should be made orally. Indeed, in articulating the purpose of Rule 52(A), the Bowman court emphasized the formality of its requirements, indicated that Rule 52(A) established "a particularized statement for examination on appeal," and distinguished small claims rulings by concluding that they did not warrant the "crafted detailed findings" provided for in Rule 52(A). Id. The Supreme Courts reasoning, emphasizing the formality of findings and
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conclusions and their purpose of facilitating appellate review through a "crafted" particularized statement, suggests that the preferred format for findings and conclusions is that they be in written form. B. 1. Oral Form Permissibility

In spite of this preferred format, we nevertheless conclude that a trial courts failure to issue findings and conclusions in written form, in and of itself, does not constitute reversible error. Significantly, the plain language of Rule 52(A) does not require that the findings and conclusions be in writing. While the rule specifies that a request for findings and conclusions must be in writing, it imposes no similar writing requirement upon the trial court in issuing these findings and conclusions. Furthermore, the purpose of Rule 52(A) is to provide the parties and the reviewing court with the theory upon which the trial judge decided the case in order that the right of review for error may be effectively preserved. Carmichael, 670 N.E.2d at 891. We conclude that oral findings and conclusions can achieve this purpose so long as they are thoroughly detailed in the record. Our conclusion on this point is supported by the Civil Code Study Commissions Comment on Rule 52(A) which reads, in pertinent part, that Rule 52(A) "does not eliminate the possibility that the facts may be found orally in open court and entered by the judge or the court reporter as evidence or other matters are put in the record." 3 William F. Harvey, Indiana Practice: Rules of Procedure Annotated

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