Pyle, J.
Statement of the Case
Appellant/Defendant, Uthman Cavallo, M.D. (“Cavallo”), appeals the trial court’s order denying his request for a jury determination of the amount of attorney fees he owed Appellee/Plaintiff, Allied Physicians of Michiana, LLC (“Allied”), after Allied prevailed in a breach of contract claim against Cavallo. Cavallo and Allied were parties to an employment contract, and Allied filed a complaint against Cavallo alleging that he had breached the contract. Cavallo filed a counter-claim and a jury demand, alleging in the counter-claim that Allied, instead, had breached the contract. The trial court conducted a jury trial, and the jury found that Cavallo had breached the contract.
Subsequently, after the trial court entered judgment against Cavallo, Allied filed a petition requesting attorney fees, which was based on a fee-shifting provision in the contract. At a hearing regarding the petition, the trial court concluded that Cavallo’s pre-trial jury demand applied to the post-trial petition, and the court established a deadline for the parties to inform it whether they would like to empanel a new jury to consider the issue. Cavallo filed a request for a jury trial on the issue before the deadline, and Allied filed an objection to Cavallo’s jury request after the deadline. Thereafter, the trial court denied the jury request, concluding that Cavallo did not have a right to a jury trial, and awarded Allied $89,706.11 in attorney fees.
On appeal, Cavallo argues that: (1) Allied’s petition for attorney fees was barred by res judicata and waiver because Allied failed to present evidence on the issue at the trial on the underlying breach of contract claim; (2) the trial court erred when it denied Cavallo’s request for a jury trial to determine reasonable attorney fees because he had a right to a jury trial; and (3) the trial court erred in awarding Allied attorney fees because it did not hold a hearing to determine the reasonableness of the amount awarded and because the award was unreasonable. Also on appeal, Allied requests appellate attorney fees.
We conclude that Allied’s claim was not barred by res judicata or waiver because the issue of attorney fees could not necessarily have been raised during trial, such that res judicata or waiver should apply. We also conclude that the trial court did not err when it denied Cavallo a jury trial because Cavallo did not have a right to a jury trial on the reasonableness of attorney fees; nor did the trial court abuse its discretion in determining a reasonable amount of attorney fees to award to Allied. Finally, because it is undisputed that the contract between Cavallo and Allied provided for recovery of attorney fees, we grant Allied’s request for appellate attorney fees and remand for further proceedings so that the trial court may determine a reasonable amount.
We affirm and remand for further proceedings.
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Next, Cavallo argues that the trial court erred in denying his request for a jury to determine reasonable attorney fees. First, he asserts that Allied’s objection to his jury request was not timely because the trial court ordered that the parties respond regarding the necessity of a jury trial by January 15, 2014, and Allied did not file an objection to Cavallo’s jury demand until February 3, 2014. Alternatively, he argues that the claim for attorney fees was contractually-based and therefore legal, rather than equitable, in nature, such that he had a right under Trial Rule 38 to a jury trial on the issue.
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…In other words, causes of action that would have been tried in equity before 1852 may not be tried before a jury, and causes of action that would have been considered “legal” as opposed to equitable before 1852 may be tried before a jury. See id. Accordingly, the question we must consider is whether the determination of a reasonable amount of attorney fees is equitable in nature.
This issue has never been addressed in Indiana. However, we find federal precedent on the issue of a right to a jury trial under the Seventh Amendment of the United States Constitution persuasive. …
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In light of this precedent, we conclude that Cavallo did not have a right to a jury trial to determine a reasonable amount of attorney fees. Because, as stated in the federal jurisprudence, such a right was not recognized at common law and is generally considered equitable in nature, we conclude that his request would likewise fail under Trial Rules 38 and 39. [Footnote omitted.]
We note that this conclusion is seemingly at odds with our conclusion in Parrish II. However, here we are only addressing whether a party has a right to a jury trial to determine a reasonable amount of attorney fees under Trial Rule 38. There are instances where a jury may decide whether the amount of an attorney fee award is reasonable, such as where the parties have stipulated to a jury determination on the issue or contractually agreed to such a jury determination. 47 AM. JUR. 2D Jury § 47 (2015). We are only addressing a situation where (1) attorney fees have been claimed pursuant to a contractual provision and (2) the parties do not have an agreement that a jury may decide the reasonable amount of attorney fees.
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Affirmed and remanded for further proceedings.
Bailey, J., and May, J., concur.