Court must recalculate attorney fees

A trial court has the discretion to determine whether and how much to award in attorney fees, but a Porter Superior Court incorrectly determined what attorney fees the prevailing party was entitled to in a slander of title action, the Indiana Court of Appeals held Friday.

Dean Vander Woude and Timothy Koster purchased a Porter County property at a tax sale. But a mortgage on the property, which was later defaulted on, was incorrectly recorded in Lake County. The two then entered into an agreement to sell the property, and that is when a title search revealed a foreclosure action by Bank Calumet, the bank that recorded the property in Lake County.

Vander Woude and Koster had to put $96,000 in escrow in order to obtain a clean title and title insurance for sale to the third party. The two sued First Mortgage Bank in 2006, alleging slander of title, intentional interference with a contract, and conversion. The trial court granted summary judgment to Vander Woude and Koster on the slander of title claim and awarded damages, but the COA reversed and ordered further proceedings on the matter. After a bench trial, the two were successful again, but the trial court did not award any attorney fees to Vander Woude or Koster based on the first trial.
 
“While a plaintiff must prevail in a slander of title action to be awarded attorney’s fees under Indiana Code Section 32-20-5-2, nothing in the statute requires the apportionment of attorney’s fees based on a plaintiff’s intermediate success or failure at various stages of the proceedings leading up to the final judgment in his favor. At the end of the day, Vander Woude and Koster secured a final judgment on their claim against the Bank,” Judge Edward Najam wrote. “The score at halftime may be worth noting, but the final score is what counts. Our review of relevant case law does not reveal any basis for the trial court’s categorical exclusion from Vander Woude and Koster’s attorney’s fee award those fees related to the summary judgment, jury trial, or first appeal. Instead, the trial court shall determine the attorney’s fee award based on reasonableness, guided by Professional Conduct Rule 1.5(a).”

The trial court is within its discretion to determine how much in attorney fees a party is awarded, but since the court in this case relied on a faulty premise, the COA reversed and remanded for a new determination of attorney fees.

The judges affirmed the denial of prejudgment interest to Vander Woude and Koster because they failed to comply with the Tort Prejudgment Interest Statute.

The case is Dean Vander Woude and Timothy Koster v. First Midwest Bank, Successor in Interest to Bank Calumet, N.A., 64A04-1504-PL-160.