Richard Troy DUNNO, Appellant, v. Ronalee RASMUSSEN, Appellee.
No. 02A03-1207-PO-310
Court of Appeals of Indiana.
Nov. 20, 2012.
OPINION
BROWN, Judge.
Richard Troy Dunno appeals the trial court‘s judgment ordering him to pay attorney fees. Dunno raises one issue which we revise and restate as whether the trial court abused its discretion by denying Dunnо‘s motion to correct error. We reverse.
The relevant facts follow. On December 21, 2011, Dunno filed a petition for an order for protection and request for a hearing against Ronalee Rasmussen. Dunno alleged that Rasmussen struck him with a vodka bottle and that he received eighteen stitches as a result of the injury. On December 22, 2011, the court issued an ex parte order for protection.
A chronological case summary (“CCS“) entry dated February 9, 2012, indicates that Dunno failed to appеar for a hearing and present evidence.1 That same day, the court ordered that the petition for an order for protection be dismissed and that the order for protection issued on December 22, 2011, be terminated.
A CCS entry dated February 13, 2012, indicates that Rasmussen presented evidence at the hearing that she was not the individual that caused Dunno to receive stitches and requested the payment of attorney fees. On February 13, 2012, the court granted Rasmussen‘s motion and stated that she was еntitled to recover reasonable attorney fees in the sum of $500. Specifically, the court‘s order provided:
[Dunno] fails to appear. [Rasmussen] appears with counsel and the Court finds as follows:
- The Court granted an Ex Parte Order of Proteсtion based on [Dunno‘s] sworn statement that [Rasmussen] struck him with a vodka bottle resulting in injury to [Dunno2]. [Dunno] stated that he was taken to the emergency room and received 18 stitches for the injury caused by [Rasmussen].
- At the hearing [Rasmussen] presented evidence that she was not the individual that caused [Dunno] to receive stitches.
- The Court then dismissed and terminated the Order of Protection and [Rasmussen], by counsel, requested the payment of attorney fees. [Rasmussen‘s] motion is granted. [Rasmussen] is entitled to recover reasоnable attorney fees which the Court finds to be the sum
of $500.00. [Rasmussen] is now given a judgment in favor of [Rasmussen] against [Dunno] in the sum of $500.00.
Appellant‘s Appendix at 1.
On February 24, 2012, Dunno filed a motion to correct error. Dunno alleged that attorney fees may not be assessed against him pursuant to
On March 5, 2012, thе court denied Dunno‘s motion for relief from judgment. On March 19, 2012, Dunno filed a request for a hearing with respect to his motion to correct error. The court held a hearing on June 18, 2012, and denied Dunno‘s motion to correct error.
Before addressing Dunno‘s arguments, we note that Rasmussen did not file an appellee‘s brief. When an appellee fails to submit a brief, we do not undertake the burden of developing appellee‘s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App.2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App.2002). Questions of law are still reviewed de novo, however. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).
The issue is whether the trial court abused its discretion by denying Dunno‘s motion to correct error.4 The standard of appellate review of trial court rulings on motions to correct error is abuse of discretion. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.2003). An abuse of discretion occurs when the dеcision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.
Dunno argues that the trial court improperly assessed attorney fees against him bеcause
Generally, Indiana has consistently followed the American Rule in which both parties generally pay their own fees. Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806, 815-816 (Ind.2012). In the absence of statutory authority or an agreement between the parties to the contrary
The first section of the Indiana Civil Protection Order Act provides that “[t]his chаpter shall be construed to promote the: (1) protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and (2) prevention of future domestic and family violence.”
Subsection (b) of
In 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:
- brought the action or defense on a claim or defense that is frivolоus, unreasonable, or groundless;
- continued to litigate the action or defense after the party‘s claim or defense clearly became frivolous, unreasonable, or groundless; or
- litigated the action in bad faith.
A claim is “frivolous” if it is made primarily to harass or maliciously injurе another; if counsel is unable to make a good faith and rational argument on the merits of the action; or if counsel is unable to support the action by a good faith and rational argument for extension,
Dunno argues that the trial court made no specific finding that he brought or continued his action after his claim became frivolous, unreasonable, or groundless, or that he litigated in bad faith. Dunno also argues that whilе Rasmussen presented evidence that she was not the individual that caused him to receive stitches, it is undisputed that he was injured by someone at the party and that he verified under oath that Rasmussen caused the injuries.
The trial court‘s decision to award attorney fees under
To the extent that Dunno argues that the trial court made no specific finding that he brought or continued his action after his claim became frivolous, unreasonable, or groundless, or that he litigated in bad faith, we observe that the Indiana Suрreme Court recently held that when a trial court grants a petition for attorney fees without making special findings of fact, “we look to the basis of the prevailing party‘s petition and view the court‘s order as an implicit legal conclusion consistent with the main thrust of the petition—that the claim or defense at issue was frivolous, unreasonable, groundless, or litigated in bad faith.” R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 461 (Ind.2012). As previously mentioned, the record does not reveal what statutory basis, if any, or what reason Rasmussen cited in suppоrt of her request for attorney fees.
Even assuming, without deciding, that the General Recovery Rule applies in the context of this case, and recognizing again that Rasmussen did not file an appellee‘s brief, we cannot say that the record supports an award of attorney fees. While Dunno failed to appear at the hearing and the court found that Rasmussen presented evidence that she was not the individual that caused Dunno to receive stitches, we cannot say that the rеcord supports the conclusion that Dunno‘s action was frivolous, unreasonable, or groundless, that Dunno continued to litigate after his claim clearly became frivolous, unreasonable, or groundless, or that he litigated the action in bad faith. Aсcordingly, we conclude that Dunno has made a prima facie showing that the award of attorney fees was improper. See Dorothy Edwards Realtors, Inc. v. McAdams, 525 N.E.2d 1248, 1253 (Ind.Ct.App.1988) (concluding that appellant had made a prima facie showing on appeal that the award of attorney fees was inappropriate and should be reversed), reh‘g denied.
For the foregoing reasons, we reverse the trial court‘s judgment ordering Dunno to pay Rasmussen‘s attorney fees.
Reversed.
FRIEDLANDER, J., and PYLE, J., concur.