Appellate court increases attorney fee award in second appeal of employment dispute

The former employee of a medical device manufacturer has once again prevailed in a years-long employment case, with the Indiana Court of Appeals ordering an increase in the amount of attorney fees the employer must pay its former employee.

The court’s Tuesday opinion was its second in the case of John D. Wilder v. DeGood Dimensional Concepts, Inc., 20A-PL-1100.

John Wilder and his former employer, medical device manufacturer DeGood Dimensional Concepts, were engaged in years-long employment-related litigation that, in the first appeal, resulted in Wilder receiving more than $32,000 in additional damages on top of the damages award he was awarded in the trial court. The appellate court in 2019 remanded for the calculation of prejudgment interest on unpaid commissions, as well as for the calculation of costs to be assessed against DeGood.

Back in the Kosciusko Circuit Court, Wilder claimed he had incurred $57,940 in trial attorney fees prior to the first appeal, $17,070 in appellate attorney fees and $2,560 in attorney fees on remand. Ultimately, the court held that Ronald Weldy, Wilder’s lawyer, was entitled to $3,329 in additional trial attorney fees under Indiana Code § 22-2-5-2, as well as $10,140 in additional appellate attorney fees for 33.8 hours at a $300 hourly rate.

In a subsequent motion to correct errors, Wilder argued for an hourly rate of $350 while DeGood claimed Weldys’ billing statements were incorrect. The trial court rejected both arguments, prompting the instant appeal.

In a partial affirmation of the trial court’s ruling, the Indiana Court of Appeals held Tuesday that the award of $3,329 in trial attorney fees was proper. Although the trial court’s calculation of those additional attorney fees was “unclear,” there was no abuse of discretion in awarding an amount less than what Wilder requested.

“Evidence was presented regarding Weldy’s hourly rates and the hours worked during the original trial and in preparation for the hearing on remand,” Judge Melissa May wrote. “The trial court has considerable deference in this decision, and based on the evidence presented, we conclude that the trial court did not abuse its discretion when it awarded Wilder $3,329.00 in additional attorney fees on remand.”

The award of appellate fees, however, was an abuse of discretion, May wrote. That’s because the trial court “took judicial notice of the reasonable appellate attorney fees in the local area” to arrive at a rate of $300 per hour.

May cited to Berkemeier v. Rushville National Bank, 438 N.E.2d 1054, 1058 (Ind. Ct. App. 1982), which held that judicial notice of reasonable attorney fees should be limited to “routine cases involving relatively small amounts.” The term “small amounts” has not been defined, the judge said, but a damages aware of more than $20,000 and a total attorney fee award of more than $30,000 would not fall into that category.

Thus, the court could not take judicial notice of prevailing rates in this case, May continued. Evidence in the record pointed to rates ranging from $385 to $500 per hour.

“In the interest of judicial efficiency, we conclude that the lowest current amount provided by the evidence was $400 per hour,” the COA held. “Therefore, we reverse the trial court’s award of $10,410.000 in appellate attorney fees for 33.8 hours of work at a rate of $300 per hour.

Instead, the case was remanded to award Wilder $13,520 in appellate attorney fees for 33.8 hours at $400 per hour. Also, the trial court on remand was ordered to calculate the hours Weldy worked on the instant appeal and award attorney fees for those hours at the same rate.

Finally, DeGood challenged the trial court’s denial of its request for a credit against the judgment already paid and an order of reimbursement, alleging “Weldy was not forthright with the Court” in regard to his time and fees. However, DeGood did not raise that issue until the proceedings on the motion to correct error, thus waiving the argument.