980 N.E.2d 846
Ind. Ct. App.2012Background
- Dunno filed a petition for an order for protection against Rasmussen on December 21, 2011, alleging Rasmussen struck him with a vodka bottle and caused injuries requiring 18 stitches.
- Ex parte protection order issued on December 22, 2011.
- On February 9, 2012, Dunno failed to appear at a hearing; the court dismissed the petition and terminated the order.
- On February 13, 2012, Rasmussen showed she was not the responsible party and sought attorney fees; the court awarded Rasmussen $500 in fees against Dunno.
- Dunno moved to correct error (Feb 24, 2012) citing Ind. Code § 34-26-5-9(c) and TR 60(B)(1); he also alleged his counsel misadvised him.
- The trial court denied relief and denial of the motion to correct error was appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to award fees against petitioner | Dunno: § 34-26-5-9(c) authorizes fees only against a respondent. | Rasmussen: statutory language permits fee awards against the opposing party in the protection-order context. | Statutory authority to award against petitioner not present; reversal. |
| Applicability of the General Recovery Rule to this context | Dunno: § 34-52-1-1 should govern; fees improper absent frivolous, unreasonable, or bad-faith conduct. | Rasmussen: General Recovery Rule may apply to award fees in civil actions. | Record does not show Dunno’s action was frivolous, unreasonable, groundless, or in bad faith; fee award not supported. |
| Sufficiency of findings for fee award | Dunno: no explicit findings of frivolousness or bad faith under § 34-52-1-1. | Rasmussen: fee award supported by petition and hearing record. | Even assuming applicability, record lacks support for the required findings; error applied. |
| Standard of review for motion to correct error | Dunno: trial court abused discretion in denying correction of error. | Rasmussen: (absence of appellee brief) standard allows de novo review of legal conclusions. | Appellate review supports reversal; no abuse of discretion in denial of correction of error. |
Key Cases Cited
- Purcell v. Old Nat. Bank, 972 N.E.2d 835 (Ind. 2012) (affords standard for review of fee rulings)
- R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453 (Ind. 2012) (implicit basis rule for attorney-fee petitions without explicit findings)
- Dorothy Edwards Realtors, Inc. v. McAdams, 525 N.E.2d 1248 (Ind. Ct. App. 1988) (prima facie showing on appeal that fee award inappropriate)
- America’s Directories Inc., Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059 (Ind. Ct. App. 2005) (definition of frivolous, unreasonable, or groundless claim)
- SLS Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193 (Ind. Ct. App. 2001) (standards for determining groundlessness and bad faith)
- Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806 (Ind. 2012) (American Rule exceptions and costs/fee considerations)