Matthew Longest, by Robert Longest, Adm. & Parent of Matthew Longest, & Robert Longest, Jr. Adm. of Maribel Longest v. Lisa M. Sledge, minor & Roger Brown & Donna Sledge

Jul 17 2013, 5:52 am

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

MARY BETH RAMEY WILLIAM H. KELLEY
Ramey & Hailey DARLA S. BROWN
Indianapolis, Indiana Kelley, Belcher & Brown
Bloomington, Indiana
NICHOLAS F. BAKER
The Hastings Law Firm
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

MATTHEW LONGEST, Deceased, by )
ROBERT LONGEST, Administrator of the Estate
)
and Parent of Matthew Longest, and ROBERT)
LONGEST, JR., Administrator of the Estate of
)
MARIBEL LONGEST, Deceased and Parent of )
Matthew Longest, )
)
Appellants - Plaintiffs, )
)
vs. ) No. 47A05-1211-CT-594
)
LISA M. SLEDGE, a minor, and ROGER BROWN )
and DONNA SLEDGE, a/k/a DONNA SLEDGE )
BROWN,
)
Appellees - Defendants. )

APPEAL FROM THE LAWRENCE CIRCUIT COURT
The Honorable Andrea J. McCord, Judge
Cause No. 47C01-9910-CT-894

July 17, 2013
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
 Robert Longest Sr. and Maribel Longest (collectively, the Longests) filed a wrongful

death action following the death of their son, Matthew Longest, and named Lisa Sledge,

Donna Sledge Brown, and Robert Brown as defendants. 1 The Longests appeal from a final

judgment following the trial court’s entry of partial summary judgment in favor of defendants

on the Longests’ claims under the Child Wrongful Death Statute 2 (CWDS) and the General

Wrongful Death Statute 3 (GWDS). The Longests raise the following issues for our review:

1. Did the trial court err in granting summary judgment for the defendants on
the Longests’ CWDS claim based on its conclusion that Matthew was not a
child for the purposes of the CWDS because he was not enrolled in a
vocational school or program?

2. Did the trial court err in granting partial summary judgment for the
defendants on the Longests’ GWDS claim based on its conclusion that the
Longests were not Matthew’s dependents for the purposes of the GWDS?

3. Did the trial court abuse its discretion in limiting its award of attorney fees?

We affirm in part, reverse in part, and remand with instructions.

In 1998, twenty-one-year-old Matthew was living with his parents and participating in

an informal, non-union apprenticeship to become a journeyman mason under his father’s

1
Robert Longest Sr. sued in dual capacities as Matthew’s parent and as the administrator of Matthew’s estate,
while Maribel sued solely in her capacity as Matthew’s parent. During the pendency of the litigation in this
matter, Maribel passed away. Maribel and Robert Sr.’s surviving son, Robert Longest Jr., was named
administrator of her estate and participates in this appeal in that capacity.
2
At the time of Matthew’s death, the CWDS was codified at Ind. Code Ann. § 34-1-1-8 (repealed July 1, 1998
by Pub. L. 1-1998, § 221). Effective July 1, 1998, the CWDS was recodified at Ind. Code Ann. § 34-23-2-1
(West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). Additionally, the relevant language
of the recodified statute was amended in 2008. Thus, for the purposes of this opinion, we will refer to the
language of the now-repealed I.C. § 34-1-1-8 when discussing the CWDS.
3
At the time of Matthew’s death, the GWDS was codified at Ind. Code Ann. § 34-1-1-2 (repealed July 1, 1998
by Pub. L. 1-1998, § 221). Effective July 1, 1998, the GWDS was recodified at Ind. Code Ann. § 34-23-1-1
(West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). The relevant language of the

2
supervision. Matthew had begun learning the masonry trade from his father while still in

high school, and after leaving high school in 1995, became his father’s full-time apprentice.

In December 1997, Robert Sr., who had previously been self-employed for a number of years

as a journeyman mason, took a job with Wilhelm Construction Company as a mason. At that

time, Matthew also began working for Wilhelm as a hod carrier. 4 Wilhelm offered a union

apprenticeship program, but Matthew did not enroll. Instead, Matthew continued his

informal apprenticeship with Robert Sr. while they worked together at Wilhelm.

On April 21, 1998, Robert Sr. was driving Matthew home after a day at work when

they were involved in a head-on collision with a vehicle driven by then-sixteen-year-old Lisa

Sledge. Matthew did not survive the accident, and Robert Sr. was seriously injured.

On October 4, 1999, the Longests filed an action against the defendants asserting four

claims: Count I, the estate’s wrongful death claim under the GWDS; Count II, the Longests’

wrongful death claim under the CWDS; Count III, Robert Sr.’s personal injury claim; and

Count IV, Maribel’s loss of consortium claim. 5 On April 12, 2001, the defendants filed a

motion for partial summary judgment arguing that recovery under the GWDS was limited to

medical, funeral, and administration expenses and attorney fees because the Longests were

not Matthew’s “dependent next of kin.” Appellant’s Appendix at 21. The Longests filed a

response in which they argued that they were entitled to recovery under the CWDS or,

GWDS did not change with its recodification and has not been subsequently amended. Accordingly, for ease
of reference, we will cite the current version of the statute in this appeal.
4
A hod carrier “works in conjunction with the masons, hauling brick, setting up the site, mixing mortar and
determining the amount of brick needed for a particular job.” Appellant’s Appendix at 62.
5
Counts III and IV were settled prior to trial and are not at issue in this appeal.

3
alternatively, the GWDS. The defendants replied in support of their motion for summary

judgment and argued that Matthew was not a child for the purposes of the CWDS because

Matthew’s apprenticeship with his father did not constitute enrollment in a vocational school

or program, and that Matthew’s contributions to the Longest household were insufficient to

create a genuine issue of material fact concerning whether his parents were dependent upon

him.

The trial court heard argument and took the matter under advisement before granting

partial summary judgment in favor of the defendants on September 25, 2001. In its order, the

trial court concluded that the Longests were not entitled to recover under the CWDS because

Matthew was not enrolled in a vocational school or program at the time of his death, and that

recovery under the GWDS was limited to medical and funeral expenses by the estate because

the Longests were not Matthew’s dependent next of kin. The trial court granted the

Longests’ request to certify its partial summary judgment order for interlocutory appeal, but

this court declined to accept jurisdiction.

On June 4, 2004, the Longests filed a motion asking the trial court to set aside its

partial summary judgment order, which the trial court denied on July 21, 2004. Thereafter,

on September 15, 2008, the Longests filed a motion asking the trial court to “certify the issue

of Matthew Longest[’s] legal status for Interlocutory Appeal to the Indiana Court of

Appeals.” Appellant’s Appendix at 122. The trial court granted the order, but this court

again declined to accept jurisdiction.

4
 On May 23, 2012, a bench trial was held regarding liability and damages, at which the

Longests again asked the court to reconsider its prior partial summary judgment order. On

October 22, 2012, the trial court entered its final order. In the order, the trial court denied the

Longests’ request to set aside the partial summary judgment order, concluding that the

Longests “ha[d] not shown any additional evidence to persuade the court the decision was

incorrect.” Appellant’s Appendix at 132. The trial court found in favor of the Longests on

the issue of liability and entered an order on damages and attorney fees. The trial court

concluded that the damages recoverable were limited to funeral and burial expenses, costs

and expenses of administration of the estate, and attorney fees related to the administration of

the estate. The Longests now appeal.

1.

The Longests first argue that the trial court erred in granting summary judgment in

favor of the defendants on the Longests’ CWDS claim. When reviewing a trial court’s ruling

on a motion for summary judgment, this court stands in the shoes of the trial court and

applies the same standards in deciding whether to affirm or reverse the ruling. Ritchhart v.

Indianapolis Pub. Sch., 812 N.E.2d 189 (Ind. Ct. App. 2004), trans. denied. Thus, on appeal,

we must determine whether there is a genuine issue of material fact and whether the moving

party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St.

Paul Guardian Ins. Co., 904 N.E.2d 1267 (Ind. 2009). This standard requires us to construe

all factual inferences in favor of the nonmoving party, and all doubts as to the existence of an

5
issue of material fact must be resolved against the moving party. Dreaded, Inc. v. St. Paul

Guardian Ins. Co., 904 N.E.2d 1267.

The CWDS allows a parent to maintain an action against a person whose wrongful act

or omission causes the injury or death of a child. I.C. § 34-1-1-8. The remedies available in

such an action include damages for the loss of the child’s services, love, and companionship,

as well as medical, burial, and administrative expenses, including attorney fees. Id. At issue

in this appeal is whether Matthew was a child for the purposes of the CWDS at the time of

his death. The version of the CDWS in effect at the time of Matthew’s death provided the

following definition:

(a) As used in this section, “child” means an unmarried individual without
dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (23) years of age and is enrolled in an
institution of higher education or in a vocational school or program.

Id. This court has noted that the statutes creating actions for wrongful death are in

derogation of common law, and must therefore be strictly construed. Deaconess Hosp., Inc.

v. Gruber, 791 N.E.2d 841 (Ind. Ct. App. 2003). Nevertheless, this court has been willing to

interpret the language of the CWDS pertaining to enrollment in an institution of higher

education or a vocational school or program “as liberally as it can and still remain within the

clear meaning of the statute.” Ledbetter v. Ball Memorial Hosp., 724 N.E.2d 1113, 1118

(Ind. Ct. App. 2000) (citing Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311 (Ind. Ct. App.

1999), trans. dismissed), trans. denied.

6
 The trial court granted summary judgment against the Longests based on its

conclusion that Matthew was not enrolled in an institution of higher education or a vocational

school or program at the time of his death. On appeal, the Longests argue that Matthew’s

informal apprenticeship under his father’s supervision constituted enrollment in a vocational

program. In support of this contention, the Longests direct our attention to the designated

affidavits of Robert Sr. and Edward Bickel, a former field representative for the local unit of

the International Union of Bricklayers & Allied Craftworkers. In these affidavits, both

Bickel and Robert Sr. attested that in order to become a mason, a person must complete an

apprenticeship with a person or persons who practice the trade. They testified further that

there are two types of apprenticeships. First, there are “[l]ess formalized (and usually non-

union) apprenticeship programs consisting exclusively of extensive-on-the-job training by a

skilled mason.” Appellant’s Appendix at 61, 79. Both Robert Sr. and Bickel attested that

there is no formal enrollment for this type of apprenticeship. Second, there are “[f]ormalized

apprenticeship programs organized by the union, which include classroom instruction in

addition to on the job training.” Id. at 61, 79. According to Bickel and Robert Sr., “[a]

person who completes either type of apprenticeship program and attains a high degree of skill

earns the title ‘journeyman mason.’” Id. at 62, 80. Both Bickel and Robert Sr. attested that

“[t]he International Union of Bricklayers & Allied Craftworkers recognizes both types of

training programs and will certify a person who completes a ‘non-union’ apprenticeship as a

union mason if the requisite skill of workmanship is shown.” Id. at 62, 80. Additionally,

Robert Sr. stated that he had become a union-certified mason through an informal, on-the job

7
apprenticeship, and that his oldest son, Robert Jr., became a union-certified mason by

completing a similar, informal apprenticeship under Robert Sr.’s supervision.

Robert Sr. attested further that from 1995 until 1997, he was self-employed as a

mason and Matthew worked full-time for him as his apprentice. Robert Sr. and Matthew

both took jobs at Wilhelm in December 1997—Robert Sr. as a mason and Matthew as a hod

carrier. Although Matthew did not enroll in Wilhelm’s union apprenticeship program, his

informal apprenticeship was ongoing at the time of his death. The Longests argue that this

informal, non-union apprenticeship was sufficient at least to create a genuine issue of

material fact concerning whether Matthew was enrolled in a vocational school or program at

the time of his death. In arguing that Matthew was not enrolled in such a program, the

defendants note that Matthew “was not taking any classes”; they note further that Matthew

had not enrolled in Wilhelm’s apprenticeship program, which “would have involved

classroom instruction, extensive record keeping, and enrollment in addition to on-the-job

training.” Appellee’s Brief at 7, 8. The defendants argue further that “[w]hat the Longests’

[sic] described as ‘an informal apprenticeship program’ was not a ‘program’ at all. The most

that the Longests were able to show was that Matthew Longest was considering entering an

apprenticeship at some point in the future.” Id. at 10.

In sum, the defendants argue that some degree of formality and classroom instruction

is required for a course of training to qualify as a vocational program for the purposes of the

CWDS. The Longests disagree and direct our attention to Sweet v. Art Pape Transfer, Inc.,

721 N.E.2d 311, which we find illuminating on this point. In that case, Sweet filed a CWDS

8
claim following the death of her twenty-one-year-old daughter, Shawnee. Shawnee had been

employed at the Trinity School of Natural Health, a non-profit Christian institution that was

not accredited through or financially supported by the state or federal government. Trinity

offered self-study programs in natural health, the successful completion of which would

result in titles such as “Master Herbalist, Doctor of Naturopathy, and Master of Holistic

Health.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 312. Students in the programs

answered a set of questions at the end of each section of their texts and sent their answers to

Trinity to be graded, without any imposed deadlines. As an employee of Trinity, Shawnee

was entitled to pursue the courses offered there free of charge and without filling out an

enrollment application. Although Trinity’s records did not reflect that Shawnee was enrolled

as a student at the time of her death, she had received permission from the registrar to pursue

the Master Herbalist course, obtained textbooks, and begun studying. Sweet v. Art Pape

Transfer, Inc., 721 N.E.2d 311.

The trial court granted summary judgment for the defendants on Sweet’s CWDS claim

based on its conclusion that Shawnee was not a child for the purposes of the CWDS because

she was not enrolled in a vocational school or program at the time of her death. This court

reversed. In addressing Sweet’s arguments on appeal, the court separately analyzed the

questions of whether Shawnee was “enrolled” and whether Trinity was a “vocational school

or program.” In concluding that Shawnee was “enrolled” for the purposes of the CWDS, the

court rejected the defendants’ contention that enrollment required the making of a written

record. Id. In doing so, the court noted that as an employee of Trinity, Shawnee was not

9
required to fill out an application form before commencing her studies, and that there would

have been no need for her to complete a financial agreement because the programs were free

of charge to her. Consequently, the court “decline[d] to impose upon this wrongful death

litigant a requirement of a written enrollment record where the statute includes no such

requirement and where the victim’s status as an employee-student would render a written

enrollment record superfluous.” Id. at 314.

Next, the court addressed whether Trinity could be classified as a “vocational school

or program.” Sweet argued that the self-study programs offered by Trinity were vocational

because they prepared students “to advise clients about natural health in jobs with

chiropractors and medical doctors, in health food stores, and with distributors of nutritional

supplements.” Id. This court agreed that the self-study programs were vocational for the

purposes of the statute, relying in part on the language of a now-repealed statutory provision

relating to public and private education, which broadly defined “vocational education” to

include “any education the major purpose of which is to prepare a person for profitable

employment.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 314 (quoting Ind. Code Ann.

§ 20-10.1-1-11(a) (repealed by P.L. 1-2005, § 240)).

Although Sweet is factually distinguishable from the case as hand, we find its

reasoning helpful here. We agree with that court’s conclusion that “enrollment” does not

necessarily require any written record, particularly where the circumstances indicate such

records would be unnecessary or superfluous. Here, both Bickel and Robert Sr. attested that

there is no formal enrollment process for non-union, on-the-job apprenticeships like the one

10
in which Matthew was participating. We decline to impose such a rigid requirement in this

case, particularly in light of the fact that Matthew was learning the trade under the

supervision of his own father. Rather, we conclude that in this context, to be “enrolled” in a

vocational program means no more than to be actively participating in such a program.

Robert Sr. testified that Matthew was continuously participating in the apprenticeship at the

time of his death. Thus, provided that the non-union apprenticeship qualifies as a vocational

program, we have little difficulty concluding that Matthew was “enrolled” for the purposes of

the CWDS.

Turning now to the question of whether the apprenticeship qualifies as a “vocational

school or program,” we agree with the Sweet court that the phrase encompasses “any

education the major purpose of which is to prepare a person for profitable employment.” Id

(citation omitted). Unlike the defendants, we see no reason to impose a requirement that

these educational programs contain a component of traditional classroom instruction. The

courses at issue in Sweet were self-study courses that required students to obtain textbooks,

study them, and complete a module of questions at the end of each chapter. Contrary to the

defendants’ assertion on appeal, there is no indication that the self-study courses at issue in

that case included classroom instruction.

Moreover, we believe the legislature’s decision to delay the age of majority for the

purposes of the CWDS from age twenty until age twenty-three where the decedent is enrolled

in an “institution of higher education or in a vocational school or program” reflects its

intention to allow recovery when a decedent was in active pursuit of any of a broad range of

11
educational goals—ranging from college degrees to trade designations and other, less

traditional certifications like those at issue in Sweet. We believe that disallowing coverage

based solely on a program’s informality and focus on real-world, on-the-job training as

opposed to classroom learning would ignore the practical realities of many courses of

vocational study and exclude those in pursuit of a number of traditional trade designations

from the operation of the CWDS. In light of the statute’s broad language and express

inclusion of vocational programs, we do not believe this to have been the legislature’s intent.

None of this is to suggest, however, that merely adding an element of on-the-job

training will transform what would otherwise be nothing more than a job into a vocational

program. Here, Matthew was simultaneously working as hod carrier and pursuing his

informal apprenticeship under his father’s supervision. Provided Matthew successfully

completed the apprenticeship and demonstrated the requisite skill, he would have attained the

title of journeyman mason and been eligible for union certification. As Robert Sr. attested,

“[w]hether working for me or for Wilhelm, and whether in the union’s formal apprentice

program or through the less formal, but equally accepted on-the-job training, Matthew was

working toward the completion of his apprenticeship and becoming a mason.” Appellant’s

Appendix at 63. Based on these facts, we conclude that the evidence most favorable to the

Longests as the non-moving parties is sufficient to create a genuine issue of material fact as

to whether the informal, non-union apprenticeship was a vocational program for the purposes

of the CWDS.

12
 We therefore conclude that there are genuine issues of material fact precluding

summary judgment in favor of the defendants on the issue of Matthew’s status as a child for

the purposes of the CWDS. 6 Consequently, the trial court erred in granting summary

judgment on the Longests’ CWDS claim, and we remand with instructions to vacate that

portion of its judgment and for further proceedings consistent with this opinion.

2.

Next, the Longests argue that the trial court abused its discretion in granting partial

summary judgment on the issue of whether the Longests were Matthew’s dependent next of

kin for the purposes of the GWDS. The GWDS provides, in pertinent part:

When the death of one is caused by the wrongful act or omission of another,
the personal representative of the former may maintain an action therefor
against the latter . . . and the damages shall be in such an amount as may be
determined by the court or jury, including, but not limited to, reasonable
medical, hospital, funeral and burial expenses, and lost earnings of such
deceased person resulting from said wrongful act or omission. That part of the
damages which is recovered for reasonable medical, hospital, funeral and
burial expense shall inure to the exclusive benefit of the decedent’s estate for
the payment thereof. The remainder of the damages, if any, shall, subject to
the provisions of this article, inure to the exclusive benefit of the widow or
widower, as the case may be, and to the dependent children, if any, or
dependent next of kin, to be distributed in the same manner as the personal
property of the deceased. . . . [W]hen such decedent leaves no such widow,
widower, or dependent children, or dependent next of kin, surviving him or
her, the measure of damages to be recovered shall be the total of the necessary
and reasonable value of such hospitalization or hospital service, medical and
surgical services, such funeral expenses, and such costs and expenses of
administration, including attorney fees.

6
Because we reverse on the basis of the statutory language alone, we need not address the Longests’ argument
that a contrary construction of the statute would violate article 1, section 23 of the Indiana constitution.

13
I.C. § 34-23-1-1 (emphasis supplied). It is undisputed that Matthew left no widow or

dependent children. Thus, in order for the Longests to recover under the GWDS, they must

establish that they were Matthew’s “dependent next of kin.” 7 Concluding that the Longests

were not Matthew’s dependents, the trial court granted summary judgment for the defendants

on this issue.

On appeal, the Longests argue that the designated evidence establishes that they were

Matthew’s dependents. In the context of wrongful death actions, our Supreme Court has held

that “proof of dependency must show a need or necessity of support on the part of the person

alleged to be dependent . . . coupled with the contribution to such support by the deceased.”

New York Cent. R.R. Co. v. Johnson, 234 Ind. 457, 465, 127 N.E.2d 603, 607 (1955). This

court has noted:

Dependency is based on a condition and not a promise, and such dependency
must be actual, amounting to a necessitous want on the part of the beneficiary
and a recognition of that necessity on the part of decedent, an actual
dependence coupled with a reasonable expectation of support or with some
reasonable claim to support from decedent. The mere fact that deceased
occasionally contributed to the support of the beneficiary in an irregular way,
is not sufficient to support the action....

Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 845 (quoting Wolf v. Boren, 685 N.E.2d 86,

88 (Ind. Ct. App. 1997) (ellipsis in original)).

7
We note that the Longests may not receive compensation under both the GWDS and the CWDS. See City of
Indianapolis v. Taylor, 707 N.E.2d 1047 (Ind. Ct. App. 1999) (noting that recovery by parents under both
statutes is impermissible because under the CWDS, a parent may recover only if the deceased has no
dependents, and under the GWDS, a parent may recover only if he or she is a dependent of the deceased). This
does not, however, prevent the Longests from pleading both claims in the alternative. See Alaska Seaboard
Partners, LP v. Hood, 949 N.E.2d 1247, 1254 (Ind. Ct. App. 2011) (noting that “a party may properly plead
alternative and contradictory theories”).

14
 The designated evidence establishes that at the time of his death, Matthew was living

in his parents’ home. Both of his parents were able-bodied and gainfully employed, and they

admit that they were not totally dependent upon him. Nevertheless, they argue that they were

partially dependent on Matthew because Matthew paid his mother between fifty and one

hundred dollars per week for rent, food, laundry, and to offset the expenses of him living

there. In her deposition, Maribel testified that Matthew’s financial contributions totaled five

to six thousand dollars per year.

We acknowledge that total dependency is not required under the GWDS; indeed, this

court has held that a “plaintiff may be partially dependent even though he could survive

without the contribution made by the deceased.” Id. at 846 (quoting Lustick v. Hall, 403

N.E.2d 1128, 1131-32 (Ind. Ct. App. 1980)). On the other hand, our supreme court has held

that “[p]ayments for board, lodging or other accomodations . . . are not sufficient to establish

dependency on the part of the recipient.” New York Cent. R.R. Co. v. Johnson, 234 Ind. at

465, 127 N.E.2d at 607. Both Robert Sr. and Maribel acknowledged that the funds Maribel

received from Matthew were in the nature of payments for room, board, and laundry services.

Indeed, Maribel stated that she “charged” him between fifty and one hundred dollars per

month as a rent payment and in order to offset the expenses of him living in the home.

Transcript at 77. Accordingly, these payments are insufficient to create a genuine issue of

material fact with respect to dependency for the purposes of the GWDS.

The Longests also point out that Matthew performed services for his mother.

Specifically, Maribel testified in a deposition that “in the winter he’d bring wood down. He

15
done things to my car. He’d run errands for me. He was a tall young man so, you know, he

done a lot of things that I couldn’t do, reaching, just . . . Yes, I depended on him a lot.”

Appellant’s Appendix at 73.

Services may be sufficient to establish dependency, but the contributions must be

more than just a service or benefit to which the claimed dependent has become accustomed,

and they “must go beyond merely helping other family members, even those who have relied

on that assistance.” Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 846 (quoting Estate of

Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1139 (Ind. 2002)).

We find this court’s decision in Chamberlain v. Parks, 692 N.E.2d 1380 (Ind. Ct.

App. 1998), trans. denied, instructive here. In that case, the decedent’s parents sought

recovery under the GWDS as dependent next of kin based on the personal services their son

had provided them during his lifetime. The decedent’s mother stated that she depended on

the decedent for a variety of services, including carrying groceries and laundry, household

cleaning and maintenance, yard work, working on cars, cooking, and running errands. The

trial court granted summary judgment for the defendants on the issue of dependency, and this

court affirmed, reasoning that the decedent’s acts “amounted to no more than gifts, donations

and acts of generosity expected of a son to whom free housing, most of his board, gasoline

money and automobile insurance was provided.” Id.

We reach a similar conclusion here. We acknowledge that Matthew regularly helped

out around the house, and Maribel had undoubtedly come to expect and rely to some extent

upon that help. But as our Supreme Court has noted, “[s]ervices must go beyond merely

16
helping other family members, even those who have relied on that assistance.” Estate of

Sears ex rel. Sears v. Griffin, 771 N.E.2d at 1139. We therefore conclude that Matthew’s

actions amounted to no more than the sort of gifts, acts of generosity, and kindness to be

expected of a son still living under his parents’ roof. More is required to establish

dependency for the purposes of the GWDS. Accordingly, we cannot conclude that the trial

court erred in granting partial summary judgment in favor of the defendants on the Longests’

GWDS claim, and we affirm that portion of the judgment.

3.

Finally, the Longests argue that the trial court abused its discretion in limiting their

recovery of attorney fees. We review a trial court’s award of attorney fees for an abuse of

discretion; thus, we will reverse only when an award is clearly against the logic and effect of

the facts and circumstances before the court. Benaugh v. Garner, 876 N.E.2d 344 (Ind. Ct.

App. 2007), trans. denied. Under the GWDS, the Estate may recover “for the necessary and

reasonable costs and expenses of administering the estate and prosecuting or compromising

the action, including a reasonable attorney’s fee[.]” I.C. § 34-23-1-1 (emphasis supplied). 8

“What constitutes reasonable attorney fees is a matter largely within the trial court’s

discretion.” Franklin College v. Turner, 844 N.E.2d 99, 105 (Ind. Ct. App. 2006). In

determining whether a fee is reasonable, the trial court may consider such factors as the time,

labor, and skill required to perform the legal service, the amount involved and the results

8
Because the issue is not before us in this appeal, we do not address whether the Longests may recover
attorney fees related to their pursuit of the CWDS claim should they prevail on the merits of that claim on
remand. See I.C. § 34-1-1-8 (providing that plaintiffs in a CWDS claim may recover damages to pay the
expenses “of the administration of the child’s estate, including reasonable attorney’s fees”).

17
obtained, the experience, reputation, and ability of the lawyer, and the fee customarily

charged in the locality for similar legal services. Nunn Law Office v. Rosenthal, 905 N.E.2d

513 (Ind. Ct. App. 2009). Finally, “[t]he trial judge is considered to be an expert on the

question and may judicially know what constitutes a reasonable attorney’s fee.” Rand v. City

of Gary, 834 N.E.2d 721, 723 (Ind. Ct. App. 2005) (citing Glover v. Torrence, 723 N.E.2d

924, 938 (Ind. Ct. App. 2000)), trans. denied.

As an initial matter, we note that the issue of attorney fees was not addressed during

the bench trial in this matter; instead, the parties agreed to file post-trial submissions on the

issue. From our review of the chronological case summary and the trial court’s final order, it

appears that the Longests filed a verified petition for attorney fees and an attorney fee

affidavit on June 29, 2012, and the defendants filed a response in opposition on July 20,

2012, which was also accompanied by an affidavit. The Longests, however, have not

favored us with copies of any of these documents. “It is an appellant’s duty to provide an

adequate record for review.” Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006).

Because the Longests have not presented us with a complete record, we are unable to review

the evidence presented to the trial court on this matter. Instead, we must rely exclusively on

the findings the trial court made in ruling on the Longests’ request for attorney fees.

The trial court entered the following relevant findings and conclusions with respect to

its attorney fee award:

The value of the attorney’s fees must be reasonable. Hillebrand v.
Supervised Estate of Large, 914 N.E.2d 846, 850 (Ind. Ct. App. 2009). The
court in Hillebrand held that “the damages awarded in a wrongful death action
may include the reasonable attorney fees necessary to pursue the action, and

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 these damages inure to the exclusive benefit of the estate for the payment of
such costs.” Id. I.C. 29-1-10-13 states that “an attorney performing services
for the estate at the instance of the personal representative shall have such
compensation therefore out of the estate as the court shall deem just and
reasonable.”
The plaintiff’s [sic] should only be able to recover for the attorney’s
fees associated with Count One of the complaint. It does not appear from the
interpretation of the statute that the plaintiffs should be able to recover for
attorney’s fees for Counts Two, Three and Four, as they were not related to the
administration of the estate. Further, the defendant was awarded summary
judgment with respect to Count Two, which was a claim by the parents of
Matthew Longest for the loss of love and companionship, services, and
affection of their son under the [CWDS].
The [attorney for the] plaintiff[s] also asks that the court set the rate of
her services at $350 per hour. This would be appropriate if the accident and all
subsequent hearings occurred in Indianapolis or the surrounding area.
However, the accident and all subsequent hearings occurred in Southern
Indiana. An affidavit submitted by the defense states the prevailing rates in
this area range from $125-150/hour. A “‘reasonable hourly rate’ is based upon
market rates in the community for similar services rendered.” Barker v. City of
West Lafayette, 878 N.E.2d 230, 233 (Ind. Ct. App. 2007).
CONCLUSION AND ORDER
. . . The plaintiffs are . . . entitled to receive reasonable attorney’s fees
for fees that are associated with the Estate of Matthew Longest. Indiana’s
[GWDS] doesn’t provide for the recovery of attorney’s fees for the claims of
Robert and Maribel Longest. Robert Longest settled his claim in December of
2004 and his claim for negligent infliction of emotional distress disappeared
with that settlement. Because we are dealing with only one of the four claims,
years of records and litigation expenses, and because all of the times and
expenses are lumped together in the attorney fee affidavit and expense sheets,
the records are not clear as to which expenses and hours go to the funeral and
burial expenses alone. The court now determines that to ask the Plaintiffs[’]
counsel to spend even more time sorting through documents and record’s [sic]
to submit specific affidavits as to the funeral and burial hours would delay this
case, from 1998, even further. Therefore, in that there were four original
claims and we are now dealing with one, the court finds that the equitable
solution is to award attorney fees for one fourth of the request at the prevailing
Lawrence County attorney fee rate of $150 per hour for a total fee award of
$11,356.50 (75.71 hours x $150) plus one forth [sic] of the expenses requested
$3,620.60 ($14,480.25 divided by 4).

Appellant’s Appendix at 134-35.

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 On appeal, the Longests argue that the trial court erred in awarding attorney fees for

only one-quarter of the billed hours based on its conclusion that attorney fees were

recoverable for only one of the four claims asserted in the Longests’ complaint. 9

Specifically, they argue that “[u]ltimately, the attorneys for the Longests and the Estates had

to prove a full case of liability and damages in order to recover any amount, even those

amounts for funeral expenses and Estate administration.” Appellant’s Brief at 19. The

Longests assert that because it was “impossible for the attorneys or the trial court to

subdivide the attorneys’ time devoted to this action,” they are entitled to recover fees for all

of the attorney hours spent in pursuit of this case. Id.

On the record before us, we cannot agree. The record, such as it is, contains no

support for the Longests’ arguments in this regard. In fact, the record contains no evidence at

all concerning the hours the Longests’ attorneys spent in pursuit of this litigation, or the

manner in which they spent them. Indeed, we are unable to even determine whether the

Longests’ position on appeal with respect to the purported indivisibility of the time spent on

this matter is consistent with its position at trial. In light of our standard of review, we

decline to simply take the Longests’ statements on this issue at face value. Given the dearth

of evidence, we cannot conclude that the trial court abused its discretion in this regard. See

9
According to the Longests, “[t]he Estate presented alternative theories of recovery in the three mentioned
counts,” apparently referring to the three counts on which the trial court ruled were not eligible for an attorney
fee award—the CWDS claim, Robert Sr.’s personal injury claim, and Maribel’s loss of consortium claim.
Appellant’s Brief at 19. We note that none of these three claims were presented by the estate. The Longests,
not the estate, were the plaintiffs in the CWDS action. See I.C. § 34-1-1-8 (b) (providing that a CWDS claim
may be maintained by a parent or guardian). Likewise, Robert Sr. was the plaintiff in his personal injury action
and Maribel was the plaintiff in her loss of consortium action. The only cause of action advanced by the estate

20
Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 59 (Ind. Ct. App. 2009) (noting that

“[w]here the amount of the fee is not inconsequential, there must be objective evidence of the

nature of the legal services and the reasonableness of the fee”), trans. denied.

The Longests also assert that the trial court abused its discretion in reducing the billed

rate of $350 per hour to an award of $150 per hour. 10 According to the Longests, “[t]he trial

court never once reviewed whether the amount of hours or the value of the hours were

reasonable, but, instead, substituted the attorney’s regular billable rate for a Lawrence county

attorney fee.” Appellant’s Brief at 19. We disagree with this characterization of the trial

court’s order. The trial court clearly considered the reasonableness of the $350/hour billable

rate. Specifically, based on an affidavit submitted by the defendants concerning the

customary rates in Lawrence County, the trial court concluded that the billable rate was

unreasonable for the relevant market and substituted a typical Lawrence County rate. Again,

in light of the absence from the record of the relevant evidence concerning attorney fees, we

cannot conclude that the trial court abused its discretion in this regard. We therefore affirm

that part of the trial court’s judgment awarding attorney fees on the GWDS claim.

Judgment affirmed in part, reversed in part, and remanded with instructions.

was the GWDS claim. See I.C. § 34-23-1-1 (providing GWDS claims may be commenced by the personal
representative of the estate).
10
The Longests also argue that the trial court abused its discretion by failing to use “the lodestar method” to
determine a reasonable attorney fee. Appellant’s Brief at 19. The Longests quote Barker v. City of W.
Lafayette, 878 N.E.2d 230, 233 (Ind. Ct. App. 2007), for the proposition that “[t]he lodestar figure is the
product of a reasonable number of hours spent on the litigation times a reasonable hourly rate.” Assuming
arguendo that the trial court was required to employ this method, our review of the trial court’s order indicates
that it did just that. The court determined a reasonable number of hours spent on the claims for which attorney
fees were available (75.71 hours) and multiplied that by a reasonable hourly rate ($150 per hour), for a total
award of $11,356.50.

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ROBB, C.J., and CRONE, J., concur.

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