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Angel Shores Mobile Home Park, Inc. v. Crays

Court of Appeals of Indiana

June 20, 2017

Angel Shores Mobile Home Park, Inc., Appellant-Defendant,
v.
John Crays and Megan Crays, Appellees-Plaintiffs

         Appeal from the Tippecanoe Superior Court Trial Court Cause No. 79D01-1101-CT-10 The Honorable Randy J. Williams, Judge

          Attorneys for Appellant Katherine J. Noel Jacob D. Winkler Noel Law Kokomo, Indiana

          Attorneys for Appellees Nicholas C. Deets Hovde Dassow & Deets LLC Indianapolis, Indiana Attorneys for Amicus Curiae Robert W. Johnson Johnson Jensen LLP Indianapolis, Indiana

          May, Judge.

         [¶1] Angel Shores Mobile Home Park, Inc. ("Angel Shores") appeals the trial court's award of attorney's fees and litigation expenses[1] to John and Megan Crays ("the Crays"). Angel Shores presents multiple issues for our consideration. Consolidated and restated they are:

1. Whether the trial court erred when it awarded the Crays attorney's fees under the Child Wrongful Death Statute ("CWDS");
2. Whether the trial court erred when it awarded the Crays litigation expenses under the CWDS; and
3. Whether the trial court erred when it did not reduce the amount of litigation expenses due to the Crays based on the percentage of Angel Shores' fault.

         The Crays cross-appeal, arguing Angel Shores waived its appeal of these issues as part of the parties' Agreed Stipulation.[2] We affirm.

         Facts and Procedural History[3]

         [¶2] On July 25, 2010, the Crays' thirteen-year-old son, Zachary, was electrocuted and killed while swimming at the home of Bryan and Donna Wagner ("the Wagners"), who have a lease agreement with Angel Shores. On January 28, 2011, the Crays filed a wrongful death action under the CWDS, Indiana Code Section 34-23-2-1, against the Wagners and Angel Shores. On June 28, 2012, counsel for Angel Shores sent counsel for the Crays a letter stating, "I am in agreement with your suggestion that we allow the Judge to determine attorney fees and expenses after trial." (Appellant's App. Vol. II at 74.) On September 5, 2013, the Crays and the Wagners reached a settlement after mediation. After the settlement, Angel Shores named the Wagners as non-party defendants in the remaining action between the Crays and Angel Shores.

         [¶3] On March 3, 2014, a week before the jury trial commenced, the Crays and Angel Shores entered into an Agreed Stipulation, that had the following terms:

1. The case will be tried under a $200, 000/$900, 000 high-low agreement.
2. [Angel Shores'] counsel will deliver to [the Crays'] counsel a check in the amount of $200, 000.00 prior to the beginning of trial, and said amount will act as a credit against any amount [Angel Shores] would owe pursuant to a verdict/judgment. This payment will not have a claw-back provision; the $200, 000.00 will be retained by [the Crays] even if the verdict for [the Crays] is for less or zero.
3. [Angel Shores'] maximum exposure at trial will be a total of $900, 000 (or an additional $700, 000). A verdict in excess of $900, 000 will be entered as the judgment but will not be payable to [the Crays]. Upon payment of the maximum amount owed under this agreement, [the Crays] will file a satisfaction of judgment.
4. The trial verdict will be final. Neither side will have the right to file a motion for a new trial, a motion to correct errors, a motion for additur/remitter, or to appeal.

(Id. at 64-5.) The jury trial began on March 10, 2014, and the jury returned a verdict on March 13, 2014:

We, the Jury assign the following percentages of fault: Angel Shores Mobile Home Park, Inc., 5% and Bryan Wagner 95%. We also decide that the total amount of damages the Plaintiffs, John Crays and Megan Crays, are entitled to recover without considering the fault percentages, is $3, 000, 000.00. We, the jury, now decide in favor of Plaintiffs John Crays and Megan Crays and assess damages against the Defendant, Angel Shores Mobile Home Park, Inc., as follows:
Total Damages: $3, 000, 000.00
Defendant Angel Shores Mobile Home Park's Percentage of Fault is 5%.
Plaintiff's Verdict Amount: $150, 000.00

(Id. at 25.)

         [¶4] On April 16, 2014, the Crays filed their motion for award of attorney's fees and litigation expenses. After extensive briefing on the issue, the trial court held a hearing regarding the Crays' motion on December 22, 2015, and took the matter under advisement. On February 16, 2016, the trial court ordered Angel Shores to pay the Crays' attorney's fees and litigation expenses, stating:

The matter having come before the Court on [the Crays'] Motion for Attorney Fees and Costs, the Court hereby finds that these elements of damages are recoverable pursuant to the Child Wrongful Death Statute ("CWDS"), Ind. Code 34-23-2-1, SCI Propane v. The Estate of Frederick, Cause # 55S04-1508-PL-501; McCabe v. Ind. Dept. Of Insurance, 949 N.E.2d 816 (Ind. 2001); and Hematology and Oncology of Ind. P.C. v. Fruits, 950 N.E.2d 294 (Ind. 2011). The Court awards [the Crays] the sum of $60, 000.00 for attorney fees and $72, 864.85 for litigation costs. These amounts are added to the jury's verdict of $150, 000 for a total judgment of $282, 864.85. Pursuant to the parties [sic] Agreed Stipulation, the amount owed by [Angel Shores] shall be reduced by the advance payment of $200, 000 made prior to trial.

(Id. at 18.)

         [¶5] On March 7, 2016, Angel Shores filed a motion to correct error, which was deemed denied pursuant to Indiana Trial Rule 53.3[4] on April 21, 2016. On May 16, 2016, Angel Shores filed this appeal. On June 24, 2016, the Crays filed a motion to enforce settlement agreement, dismiss appeal, and remand to the trial court, arguing, in part, the parties' Agreed Stipulation barred Angel Shores' appeal. On August 2, 2016, our Court denied the Crays' motions.

         Discussion and Decision

         I. Agreed Stipulation

         [¶6] On cross-appeal, the Crays argue the parties' Agreed Stipulation precludes all issues Angel Shores presents on appeal and thus the appeal should be dismissed. Our ...


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