Riley, J.
STATEMENT OF THE CASE
Appellant-Defendant/Cross-Appellee, Boyer Construction Group Corp. (Boyer), appeals the trial court’s denial of its post-judgment petition for attorney’s fees. Appellee-Plaintiff/Cross-Appellant, Walker Construction Company, Inc. (Walker), cross-appeals the trial court’s denial of its petition for supplemental attorney’s fees.
We affirm in part, reverse in part, and remand.
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…Subsequent to the trial court’s judgment, Boyer petitioned the court for attorney’s fees pursuant to this contractual provision. Because Boyer did not raise the issue of attorney’s fees at any point prior to the judgment—i.e., in its Answer, in a counterclaim, in its pre-trial contentions, or during the bench trial—the trial court found the matter waived.
On appeal, Boyer asserts that “[u]ntil the trial court entered a judgment identifying the ‘prevailing party,’ no right to fees existed and, therefore, the right to request such fees could not have been waived prior to the entry of judgment.” (Appellant’s Br. p. 7). In turn, Walker contends that “Boyer is not to be rewarded for its ‘stealth’ strategy to recover on an issue it did not timely place before the court.” (Appellee’s Br. p. 7). Walker further asserts that Boyer was obligated to plead its claim for attorney’s fees in a compulsory counterclaim under Indiana Trial Rule 13(A).
The Indiana Supreme Court has previously stated that “[a] petition for [attorney’s] fees does not disturb the merits of an earlier judgment or order”; thus, it is not governed by the same deadlines applicable to a motion to correct error or motion for relief from judgment. R.L. Turner Corp., 963 N.E.2d at 459-60. In fact, “[a] request for attorneys’ fees almost by definition is not ripe for consideration until after the main event reaches an end. Entertaining such petitions post-judgment is virtually the norm.” Id. at 460. However, to ensure that parties do not abuse their right to file a post-judgment petition for attorney’s fees with “extremely tardy request[s,]” “trial courts must use their discretion to prevent unfairness to parties facing petitions for fees.” Id. In this case, Boyer filed its petition for attorney’s fees within a few weeks following the trial court’s Order, and Walker was provided with ample opportunity to respond with its own cross-motion and to defend against Boyer’s motion during a hearing. See Evergreen Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337, 339 n.3 (Ind. Ct. App. 2013).
Furthermore, our court has previously allowed claims for attorney’s fees to proceed where the issue was not raised prior to final adjudication. In Kintzele, 670 N.E.2d at 102, after being dismissed from the case, the defendants filed a motion for attorney’s fees pursuant to Indiana Code section 34-1-32-1 (now codified at Indiana Code section 34-52-1-1)—i.e., the General Recovery Rule. The General Recovery Rule specifies that “[i]n any civil action, the court may award attorney’s fees as part of the cost to the prevailing party, if the court finds that either party: (1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith.” Ind. Code § 34-52-1-1(b). The trial court found the defendants had waived their claim for attorney’s fees by failing to assert such a claim in their amended answer. Kintzele, 670 N.E.2d at 102. On appeal, our court held that “when responding to a complaint, the party is not required to file a claim for attorney’s fees pursuant to [the General Recovery Rule] prior to a final adjudication.” Id. at 103. Although the case at hand deals with attorney’s fees that arise under contract rather than statute, nothing in the Subcontract Agreements specifies that the parties must make an affirmative demand for the attorney’s fees prior to final adjudication. Rather, once prevailing party status is established, attorney’s fees are axiomatic.
Also, in Evergreen Shipping Agency Corp., 996 N.E.2d at 339, the defending party—a freight transport company—filed a motion for summary judgment in which it sought attorney’s fees from the plaintiff—a freight storage company—pursuant to the General Recovery Rule. Although the trial court entered summary judgment in favor of the defendant, it denied the request for attorney’s fees. Id. After our court affirmed the trial court’s summary judgment, the defendant filed a second request for attorney’s fees—this time citing the Uniform Intermodal Interchange and Facilities Access Agreement (UIIA), to which both parties were signatories and which “entitles the prevailing party to recover reasonable attorney’s fees.” Id. The trial court granted the defendant’s petition for attorney’s fees, and the plaintiff appealed, arguing, in part, that the defendant had “waived its right to seek attorney’s fees under the UIIA.” Id. Our court declined to find that the defendant had waived its right to seek attorney’s fees even though the defendant had not requested attorney’s fees under the UIIA until after the trial court had issued its judgment and after our court had decided the matter of summary judgment on appeal. Id. at 341. Specifically, we found that it would have been inappropriate for the defendant to raise the issue any sooner, such as in a motion to correct error, because the defendant “could not have reasonably argued that the trial court erred by failing to award it attorney’s fees based on a theory [the defendant] had not yet asserted.” Id.
Moreover, in finding that the defendant’s claim was not barred by the doctrine of res judicata in light of the fact that attorney’s fees had already been requested and denied under the General Recovery Rule, the Evergreen court noted that “[t]he UIIA allows the prevailing party to recover reasonable attorney’s fees. In the prior action, the trial court had to determine who the prevailing party would be. Only after [the defendant] was found to be the prevailing party could it seek attorney’s fees pursuant to the UIIA.” Id. at 340. Although we have not been presented with the issue of res judicata, we are nevertheless guided by the Evergreen court’s rationale. Here, the right to attorney’s fees was contingent upon the trial court’s determination of the prevailing party, which was not established until the trial court issued its Order. Therefore, we find that the trial court erred as a matter of law in determining that Boyer had waived its claim by not pursuing attorney’s fees prior to the issuance of the Order.
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CONCLUSION
Based on the foregoing, we conclude that the trial court erroneously concluded that Boyer had waived its claim for attorney’s fees. Nevertheless, we further conclude that Walker—not Boyer—is the substantially prevailing party pursuant to the Subcontract Agreements and is therefore entitled to recover its reasonable attorney’s fees. We remand with instructions.
Affirmed in part, reversed in part, and remanded.
Brown, J. and Altice, J. concur