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Thrasher Buschmann & Voelkel, P.C. v. Adpoint, Inc.

Court of Appeals of Indiana

January 13, 2015

THRASHER BUSCHMANN & VOELKEL, P.C., Appellant-Plaintiff,
ADPOINT, INC., JOEL HALL, and MARY HALL, Appellees-Defendants

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[Copyrighted Material Omitted]

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APPEAL FROM THE MARION SUPERIOR COURT. The Honorable James B. Osborn, Judge. Cause No. 49D14-1306-CC-25036.


ATTORNEY FOR APPELLEE: MATTHEW E. DUMAS, Hostetter & Associates, Brownsburg, Indiana.

BROWN, Judge. BAILEY, J., and ROBB, J., concur.

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BROWN, Judge

Thrasher, Buschmann, & Voelkel, P.C. (" TBV" ) appeals the trial court's order of summary judgment in favor of Adpoint Incorporated, Joel Hall, and Mary Hall (collectively, " Adpoint" ). TBV raises two issues which we consolidate and restate as whether the court erred in granting summary judgment in favor of Adpoint. We affirm in part, reverse in part, and remand.


The designated evidence reveals that on April 24, 2009, Adpoint hired TBV to represent them with regard to the sale of their Sign-A-Rama franchise located in Fishers, Indiana, to R. Myers & Associates, LLC (" R. Myers" ), by signing an Engagement Letter with TBV. The Engagement Letter stated that TBV " bills for its services on an hourly basis" and listed the hourly rate for various attorneys at the firm including Steven C. Earnhart, at $230.00 per hour, and Laura B. Conway, at $150.00 per hour. The Engagement Letter also specified that, " [f]or bills unpaid when due, [TBV] reserves the right to add a Late Charge in the amount of up to $50.00 per month of delinquency to compensate for additional handling." Appellant's Appendix at 9.

After the closing of the sale, R. Myers breached the terms of the Promissory Note and Security Agreement[1] by failing to make payments as required, and litigation ensued (the " Underlying Litigation" ). At one point, the parties attempted mediation, and on September 22, 2010, Attorney Conway wrote a letter to the mediator which began by stating: " This is a very straightforward case regarding the failure of [R. Myers] to pay [Adpoint] the amount due. Unfortunately, the actions of [R. Myers] and their counsel have complicated the matter and greatly increased the

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amount of attorneys' fees." Appellant's Appendix at 11. The letter also chronicled instances in which R. Myers and its counsel acted in a dilatory fashion, leading to increased attorney fees incurred by Adpoint, including: (1) having the first hearing reset four different times; (2) R. Myers's counsel filing a meritless Motion for Change of Judge in an attempt to continue the first hearing; (3) R. Myers failing to cooperate with Adpoint's discovery attempts which required court intervention multiple times; (4) R. Myers's counsel making numerous threats to file disciplinary actions against Attorney Conway unless she withdrew a certain motion made regarding the discovery attempts; and (5) R. Myers's counsel withdrawing his consent to mediation after TBV prepared to mediate the matter. The letter also indicated that " [t]he total amount remaining due under the terms of the Promissory Note is $33,677.35 . . . ." Id. at 15.

On February 22, 2013, the Hamilton Superior Court entered Findings of Fact and Conclusions of Law in Adpoint's favor and against R. Myers in the Underlying Litigation (the " February 22 Order" ).[2] Specifically, the court ordered that Adpoint was entitled to a sum of $86,595.43 plus interest,[3] which included $26,923.15 in unpaid principal amounts due under the Promissory Note, $8,568.20 for interest accrued " from September 6, 2012 through the date of the judgment," $300.00 for late fees incurred by R. Myers under the terms of the Promissory Note, and $50,804.08 in attorneys' fees. Id. at 29. The February 22 Order contained the following conclusions of law related to the court's award of attorneys' fees:

X. Both R. Myers and Mr. Myers are liable for attorneys' fees incurred by Adpoint under the terms of the Promissory Note and Asset Purchase Agreement. [Adpoint] is claiming attorneys' fees in the amount of $76,206.13. The Court is awarding fees in the amount of $50,804.08.
XI. The attorneys' fees awarded by the Court are reasonable due to the facts and circumstances of the case.

Id. at 30. The Hamilton Superior Court also found for Adpoint on a third-party complaint and counterclaim filed by R. Myers.

TBV stopped providing legal services to Adpoint on approximately February 28, 2013. On or around March 12, 2013, TBV by Attorneys Earnhart and Conway filed its Notice of Attorneys' Lien in the Hamilton Superior Court on all amounts that remained unpaid by Adpoint and specifically stated that TBV " has advanced costs, expenses, and fees to [Adpoint] in the amount of $55,487.34" which was unpaid and continued to accrue. Id. at 33. On June 21, 2013, TBV filed its Complaint on Account, on Account Stated, and Breach of Contract in the Marion Superior Court against Adpoint which consisted of three counts. Count I alleged that Adpoint was indebted to TBV " in the sum of $53,245.59 for professional services . . . as more fully ...

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