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Gabbard v. Dennis1/28/2005
FOR PUBLICATION
STATEMENT OF THE CASE
Melissa Lynn Gabbard appeals the trial court's denial of her motion for an award for attorney's fees, costs, and expenses pursuant to Indiana Code § 34-50-1-6 after she had made a timely qualified settlement offer to Gerald Dennis in Dennis' personal injury action against her and a jury had returned a verdict in her favor.
We reverse and remand with instructions.
ISSUE
Whether the trial court erred in denying Gabbard's motion.
FACTS
On August 11, 2000, Dennis filed a complaint alleging that he had suffered injuries in a motor vehicle collision resulting from the negligence of Gabbard. On August 29, 2000, Gabbard sent Dennis a qualified settlement offer in the amount of $2,500.00 "as full and final settlement to resolve all claims and defenses at issue between" Dennis and Gabbard. (App. 91). Dennis refused the offer.
Subsequently, Gabbard filed her answer; three pretrial conferences were held; depositions of two doctors were conducted; witness and exhibits lists were filed; and a jury trial was held over the course of two days as reflected in the trial court's CCS. On May 29, 2003, the jury returned a verdict for Gabbard and against Dennis.
On June 27, 2003, Gabbard filed a motion for attorney's fees, costs and expenses and attached a copy of the qualified settlement offer. Gabbard asserted that she timely made the qualified settlement offer to Dennis, which he rejected; that after a two-day trial, the jury found in her favor and awarded no damages to Dennis; that pursuant to Indiana Code § 34-50-1-6, she was entitled to an award of "not . . . more than one thousand dollars ($1,000.00); and that the attached affidavit of her counsel "establish the amount of attorney fees and other costs and expenses incurred . . . after the date of the qualified offer." (App. 90). The attached affidavit of Gabbard's counsel stated that pursuant to the qualified settlement offer statute, he was averring that the fees "greatly exceed one-thousand dollars ($1,000.00)" in order "to establish the amount of attorneys' fees and other costs and expenses incurred" by Gabbard." (App. 95).
On June 30, 2003, the trial court granted Gabbard's motion and ordered Dennis to pay the sum of $1,000.00. On July 7, 2003, Dennis filed his response to Gabbard's motion for the award of attorney's fees, arguing inter alia that the affidavit of Gabbard's attorney was "insufficient" to establish attorney's fees, costs and expenses because the statute required the affidavit to reflect "an itemized billing." (Tr. 85). On September 15, 2003, Dennis filed a motion to reconsider, asking the trial court to "examine" the response he had filed on July 7, 2003. (Tr. 83).
On December 11, 2003, the trial court heard the parties' arguments. Dennis conceded that "a qualified offer . . . was sent" to him by Gabbard on August 29, 2000, and that he "received zero in jury trial." (App. 74, 75). However, Dennis argued that the counsel's affidavit regarding Gabbard's attorney's fees "doesn't set out time records, does not set out any kind of detail itemization for the Court." (App. 76). Gabbard's counsel responded that the statute only sets a maximum award of $1,000, with a maximum hourly of $100 for attorney's fees, and his affidavit was made "as an officer of the Court." (App. 78). Gabbard's counsel then proceeded to review the various legal tasks he had undertaken for Gabbard before trial and argued that "fees for the two days of jury trial alone were over $1,500.00" at an hourly rate of $100. Id.
On January 5, 2004, the trial court issued an order granting Dennis' mot
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