Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Dec 31 2012, 11:26 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
PATRICK B. McEUEN RICHARD N. SHAPIRO
Rhame & Elwood Law Office of Richard N. Shapiro, P.C.
Portage, Indiana Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PAULETTE PETKOVICH, ET AL, )
)
Appellants-Defendants, )
)
vs. ) No. 64A03-1203-MF-102
)
PRIME CONTRACTORS CO., INC., )
)
Appellee-Plaintiff. )
)
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William E. Alexa, Judge
Cause No. 64D02-0901-MF-686
December 31, 2012
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
VAIDIK, Judge
Following our November 20, 2012, opinion in which we concluded, among other
things, that Prime Contractors Company, Inc. was not entitled to appellate attorney’s fees,
Prime now petitions for rehearing. Specifically, Prime argues that Indiana Code section
32-38-3-14(a) entitles it to an award of appellate attorney’s fees. We grant rehearing to
address Prime’s argument but still deny its request for appellate attorney’s fees. We
affirm our original opinion in all respects.
Our authority to grant appellate attorney’s fees in this case arises from Indiana
Appellate Rule 66(E). In our original opinion, we declined to award appellate attorney’s
fees to Prime under Appellate Rule 66(E). We affirm that ruling, but clarify that Prime
may petition the trial court for such an award.
Indiana Code section 32-28-3-14(a) states that “in an action to enforce a lien under
this chapter, a plaintiff or lienholder who recovers a judgment in any sum is entitled to
recover reasonable attorney’s fees.” In Hayes v. Chapman, this Court held that “Where a
statute authorizes reasonable attorney fees, such fees include appellate attorney fees.”
894 N.E.2d 1047, 1055 (Ind. Ct. App. 2008), trans. denied. However, Hayes also holds
that “the proper way in which to raise the issue is by filing proceedings supplemental
with the trial court.” Id. (emphasis added). We therefore find that while Prime may have
a claim for appellate attorney’s fees, its request to this Court was premature.
MATHIAS, J., and BARNES, J., concur.
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