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
Angel Shores Mobile Home Park, Inc. ("Angel
Shores") appeals the trial court's award of
attorney's fees and litigation expenses 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
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.
Crays cross-appeal, arguing Angel Shores waived its appeal of
these issues as part of the parties' Agreed
Stipulation. We affirm.
and Procedural History
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.
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
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.)
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.)
On March 7, 2016, Angel Shores filed a motion to correct
error, which was deemed denied pursuant to Indiana Trial Rule
53.3 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'
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 ...