Penelope Stillwell and William Stillwell v. Eagle-Kirkpatrick Management Company, Inc. v. Cohen & Malad, LLP (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Jul 06 2018, 10:05 am

Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court

collateral estoppel, or the law of the case.

APPELLANTS PRO SE ATTORNEY FOR APPELLEES
Penelope Stillwell EAGLE-KIRKPATRICK
William Stillwell MANAGEMENT COMPANY, INC.,
Clearwater Beach, Florida KIRKPATRICK MANAGEMENT
COMPANY, INC., AND SYCAMORE
SPRINGS SECTION C
HOMEOWNERS ASSOCIATION, INC.
Bradley J. Schulz
State Farm Litigation Counsel
Indianapolis, Indiana

ATTORNEY FOR APPELLEE G.T.
SERVICES, INC., D/B/A GREEN
TOUCH SERVICES, INC.
Richard A. Rocap
Rocap Law Firm LLC
Indianapolis, Indiana

ATTORNEY FOR APPELLEE COHEN
& MALAD, LLP
Carol Nemeth Joven
Price Waicukauski Joven & Catlin, LLC
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Penelope Stillwell and William July 6, 2018
Stillwell, Court of Appeals Case No.
49A02-1708-CT-1919

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 Appellants-Plaintiffs, Appeal from the Marion Superior
Court
v.
The Honorable John F. Hanley,
Judge
Eagle-Kirkpatrick Management
Company, Inc., Kirkpatrick Trial Court Cause No.
49D11-1110-CT-41092
Management Company, Inc.,
G.T. Services, Inc., d/b/a Green
Touch Services, Inc., and
Sycamore Springs Section C
Homeowners Association, Inc.,
Appellees-Defendants,

v.

Cohen & Malad, LLP,

Appellee-Intervenor.

Friedlander, Senior Judge

[1] On December 13, 2011, William Stillwell (“Dr. Stillwell”) slipped and fell on

the front steps of his home located in the Sycamore Springs development in

Indianapolis. Dr. Stillwell subsequently filed a lawsuit against Eagle-

Kirkpatrick Management Company, Inc., Kirkpatrick Management Company,

Inc., G.T. Services, Inc. d/b/a Green Touch Services, Inc., and Sycamore

Springs Section C Homeowners Associations, Inc (collectively “the

Defendants”). Dr. Stillwell’s wife, Mrs. Stillwell, pursued a claim for loss of

consortium. The Stillwells retained attorney Daniel S. Chamberlain to

represent them in their lawsuit. At some point during the course of the lawsuit,

Chamberlain moved to the law firm Cohen & Malad. The Stillwells allowed
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 Chamberlain to continue to represent them after his move to Cohen & Malad.1

Cohen & Malad had a contingency fee agreement with the Stillwells in which it

was entitled to one-third of any recovery and reimbursement for advanced

expenses.

[2] Meanwhile, the trial court scheduled the jury trial for August 2, 2016. As the

trial date was approaching, the Defendants filed a motion to exclude testimony

of one of the Stillwells’ witnesses or, as an alternative, a motion to continue the

trial in order to conduct additional discovery. The trial was continued to

January 10, 2017.

[3] Shortly after the continuance, the parties engaged in settlement discussions. In

August of 2016, Cohen & Malad presented the Stillwells with a memorandum

of understanding outlining the terms of the settlement. In the fall of 2016, the

parties formalized the settlement by signing the memorandum. The Defendants

agreed to pay the Stillwells $200,000 as full settlement of all claims. Per the

agreement, the parties also worked over the subsequent months to resolve issues

concerning possible third-party interests in the settlement.2

[4] As the parties continued to discuss the issues related to the payment of medical

bills, the new trial date approached. Due to the settlement, Cohen & Malad, on

1
On May 3, 2017, Chamberlain assigned his rights to recover attorney fees and expenses under the contract
to Cohen & Malad.
2
Medicare and Anthem had interests in the settlement because they paid some of the relevant medical bills.

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 behalf of the Stillwells, filed the memorandum of understanding with the court

on December 7, 2016. The trial court subsequently removed the January trial

date from its calendar. In mid-January 2017, the parties finally worked out all

of the details of the settlement except for release language related to the

Medicare issue.

[5] On February 15, 2017, Cohen & Malad notified the Defendants that they

would be filing a motion to withdraw as counsel for the Stillwells. As the

settlement checks had been negotiated, Sycamore Springs and Green Touch

sought to prevent Cohen & Malad from withdrawing, and also filed motions to

enforce the settlement. By March 1, 2017, the Stillwells had filed pro se

appearances and the trial court had scheduled a hearing for April 10, 2017.

[6] On April 10, 2017, all parties except the Stillwells appeared by counsel. The

Stillwells had been ordered to appear in person, but failed to do so. Mrs.

Stillwell appeared telephonically, but Dr. Stillwell did not participate. After the

hearing, the trial court allowed Cohen & Malad to withdraw their

representation of the Stillwells, and further allowed Cohen & Malad to deposit

the settlement funds with the clerk. The trial court also granted the motions of

Sycamore Springs and Green Touch to enforce the settlement agreement.

[7] On July 11, 2017, the trial court held a hearing on various motions. The

Stillwells failed to appear at the hearing in any manner, despite being ordered to

attend in person. On July 26, 2017, the trial court signed an order entering

judgment, dismissing the case with prejudice as to the Defendants, and

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 otherwise enforcing the settlement agreement reached between the parties. The

trial court also ordered the clerk to distribute the requested fees 3 and expenses4

to Cohen & Malad and the remainder of the funds to the Stillwells.

[8] The Stillwells raise several restated issues on appeal: (1) whether the trial court

properly enforced the settlement agreement; (2) whether the trial court abused

its discretion in allowing Cohen & Malad to intervene; and (3) whether the trial

court acted within its discretion in ordering that Cohen & Malad be paid for

their fees and expenses.

I. Settlement Agreement
[9] The Stillwells contend that the trial court erred when it found that the

settlement agreement between the parties was enforceable. “Indiana strongly

favors settlement agreements.” Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind.

2003). A settlement is a contract between two or more parties to amicably settle

or adjust their differences on terms to which they agree. Vance v. Lozano, 981

N.E.2d 554 (Ind. Ct. App. 2012). It is well-established that if a “party agrees to

settle a pending action, but then refuses to consummate [his or her] settlement

agreement, the opposing party may obtain a judgment enforcing the

agreement.” Georgos, 790 N.E.2d at 453. Generally, a settlement agreement is

3
Specifically, Cohen & Malad was entitled to $66,666.67 under its agreement with the Stillwells (one-third of
the $200,000 recovery), but voluntarily reduced its fee to $54,042.14 (not including expenses).
4
Despite the fact that Cohen & Malad incurred an additional $4000 in expenses after the settlement recap
was signed, the firm agreed to accept $36,560.35 in expenses instead of $40,560.35.

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 not required to be in writing. MH Equity Managing Member, LLC v. Sands, 938

N.E.2d 750 (Ind. Ct. App. 2010), trans. denied. “Settlement agreements are

governed by the same general principles of contract law as other agreements.”

Id. at 757.

[10] The existence of a contract is a question of law. Batchelor v. Batchelor, 853

N.E.2d 162 (Ind. Ct. App. 2006). To be valid and enforceable, a contract must

be reasonably certain and definite. Zukerman v. Montgomery, 945 N.E.2d 813

(Ind. Ct. App. 2011). “All that is required to render a contract enforceable is

reasonable certainty in the terms and conditions of the promises made,

including by whom and to whom; absolute certainty in all terms is not

required.” Id. at 819. Only essential terms are necessary for a contract to be

enforceable. Id.

[11] In this case, the parties agreed to essential terms regarding the following topics

in their memorandum of understanding. Specifically, the memorandum

contained the following terms:

1. Defendants shall pay, or cause to be paid to, the Plaintiffs a
total of Two Hundred Thousand Dollars ($200,000.00) as full
settlement of all claims, subject to the terms in this Memorandum
of Understanding.
2. The Plaintiffs shall sign an appropriate release, or releases, at a
later date formalizing the terms and conditions of the resolution
of this matter.
3. The Plaintiffs shall sign a Stipulation of Dismissal and this
case shall be dismissed with prejudice.
4. The Plaintiffs agree to provide the Defendants documentation
of reduction to any lien(s) and/or subrogation interest(s) from the
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 respective lienholder(s) and/or subrogee(s). The Defendants shall
prepare separate drafts to each lienholder and/or subrogee, with
the remaining balance being issued to the Plaintiffs and their
counsel.

Appellees’ Joint App. Vol II pp. 28–29.

[12] The Stillwells confirmed the settlement in a settlement recap that they executed

with Cohen & Malad on August 22, 2016. This recap outlined the gross

recovery, fees and expenses, liens, and the ultimate recovery. The recap also

stated that “we have accepted the settlement offer after serious reflection and

deliberation . . . [and] have concluded that this offer is in our own best

interests.” Appellees’ Joint App. Vol. II p. 136. The only issue that was not

fully addressed in the settlement agreement was the language of the release for

Medicare. The language regarding the release(s), however, was not a material

part of the agreement. It is clear from the terms of the memorandum that the

main issue, the settlement between the parties for the Stillwells’ claims, was

unambiguously resolved. “A court will not find that a contract is so uncertain

as to preclude specific enforcement where a reasonable and logical

interpretation will render the contract valid.” Conwell v. Gray Loon Outdoor

Mktg. Group, Inc., 906 N.E.2d 805, 813 (Ind. 2009). The trial court did not err

in finding that an enforceable settlement agreement existed.

II. Intervenor Status
[13] The Stillwells also argue that the trial court abused its discretion when it

allowed Cohen & Malad to intervene. We review a trial court’s ruling on a

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 motion to intervene pursuant to Indiana Trial Rule 24 for an abuse of discretion

and assume that all facts in the motion are true. Himes v. Himes, 57 N.E.3d 820

(Ind. Ct. App. 2016), trans. denied. “An abuse of discretion occurs when the

trial court’s decision is against the logic and effect of the facts and

circumstances before the court or the reasonable and probable inferences to be

drawn therefrom.” Granite State Ins. Co. v. Lodholtz, 981 N.E.2d 563, 566 (Ind.

Ct. App. 2012), trans. denied.

[14] Indiana Trial Rule 24 (A) provides in relevant part as follows:

Upon timely motion anyone shall be permitted to intervene in an
action: ... (2) when the applicant claims an interest relating to a
property, fund or transaction which is the subject of the action
and he is so situated that the disposition of the action may as a
practical matter impair or impede his ability to protect his interest
in the property, fund or transaction, unless the applicant’s interest
is adequately represented by existing parties.

Here, the evidence shows that Cohen & Malad had the right to intervene

because it had a charging lien and an interest in the settlement funds pursuant

to the terms of its agreement with the Stillwells. A charging lien “is the

equitable right of attorneys to have the fees and costs due [to] them for services

in a suit secured out of the judgment or recovery in that particular suit.” Wilson

v. Sisters of St. Francis Health Servs. Inc., 952 N.E.2d 793, 796 (Ind. Ct. App.

2011). Because Cohen & Malad had a charging lien—a valid interest under

Indiana Trial Rule 24(A)—at the time that it filed its motion to intervene, the

trial court did not abuse its discretion when it allowed Cohen & Malad to

intervene.

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 III. Fees and Expenses
[15] Finally, the Stillwells argue that the trial court abused its discretion when it

ordered that Cohen & Malad be paid for their fees and expenses. “We review

the trial court’s decision to award attorney fees under an abuse of discretion

standard.” Bacompt Sys., Inc. v. Ashworth, 752 N.E.2d 140, 146 (Ind. Ct. App.

2001), trans. denied. The record shows that Cohen & Malad had a contingency

agreement that specified that it would be entitled to a one-third contingency fee

if the Stillwells obtained a judgment or settlement on their personal injury

claim. The fee agreement further provided that Cohen & Malad would be

reimbursed for any expenses advanced. The Stillwells were provided with

detailed documentation of Cohen & Malad’s expenses and approved such

expenses when they signed the settlement recap in August of 2016. Specifically,

the settlement recap stated, “We hereby acknowledge that the above settlement

is accurate and in accordance with our contract with the offices of Cohen &

Malad.” Appellees’ Joint App. Vol. II p. 233. The Stillwells make several

arguments regarding lavish and improper spending by Cohen & Malad, but

those claims are not supported by any evidence in the record. Moreover, there

is no evidence to suggest that Cohen & Malad was not entitled to its fees and

expenses in accordance with its contract with the Stillwells. The Stillwells have

failed to establish that the trial court abused its discretion in awarding Cohen &

Malad’s fees and expenses.

[16] Judgment affirmed.

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Robb, J., and Mathias, J., concur.

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