Roy Shepard v. Sarah H. Carlin (8/24/04 Ind CtApp) [Statutory Construction; Attorney Fees]
Crone, Judge
Appellant-defendant Roy Shepherd appeals the trial court’s award of $1.00 in attorney’s fees, costs, and expenses pursuant to Indiana Code Section 34-50-1-6. [IC 34-50-1 deals with offers of settlement] We reverse and remand.Posted by Marcia Oddi at August 24, 2004 02:28 PMIssue. We restate the issue Shepherd presents as whether a trial court has discretion to enter a nominal award of attorney’s fees, costs, and expenses under Indiana Code Section 34-50-1-6. * * *
This case involves a question of statutory interpretation. We note that the interpretation of a statute is a question of law reserved for the courts. Appellate courts review questions of law under a de novo standard and owe no deference to a trial court’s legal conclusions. If the language of a statute is clear and unambiguous, it is not subject to judicial interpretation. * * *
Finally, with respect to the statute at issue, we observe that “Indiana adheres to the ‘American Rule’ with respect to the payment of attorney fees and requires that parties pay their own attorney fees absent an agreement between the parties, statutory authority, or rule to the contrary.” [cite omitted] As such, Indiana Code Section 34-50-1-6 is in derogation of the common law and therefore must be strictly construed.
“When the word ‘shall’ appears in a statute, it is construed as mandatory rather than directory unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning. The term ‘must’ carries with it the same meaning.” [cite omitted] * * *
Subsection (a) requires a trial court to award attorney’s fees, costs, and expenses to the offeror upon the offeror’s motion. More specifically, subsection (b) provides that an award “must consist of attorney’s fees at a rate of not more than one hundred dollars ($100) per hour and other costs and expenses incurred by the offeror after the date of the qualified settlement offer” but may not total more than $1,000. (Emphases added.) As the emphasized language makes clear, the trial court is required to award the attorney’s fees, costs, and expenses actually incurred by the offeror. Put another way, the trial court does not have discretion to enter a nominal award.
Here, Shepherd filed a motion for attorney’s fees, costs, and expenses within the requisite thirty days after judgment and submitted the requisite affidavit establishing that he had incurred $3,487.39 in such fees, costs, and expenses after the date of the qualified settlement offer. Given that Carlin did not challenge the reasonableness of this amount, we conclude that the trial court erred in awarding Shepherd less than $1,000. See Ind. Code § 34-50-1-6(c) (“The affidavit constitutes prima facie proof of the reasonableness of the amount.”). We therefore reverse and remand with instructions to award Shepherd $1,000 in attorney’s fees, costs, and expenses. Reversed and remanded.
BAKER, J., and BARNES, J., concur.