Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:
JOHN J. KLOTZ                                       DAVID P. FRIEDRICH
Klotz Law Office                                    Wilkinson, Goeller, Modesitt, Wilkinson &
Terre Haute, Indiana                                Drummy
                                                    Terre Haute, Indiana

                                                                              FILED
                                                                           Jul 17 2012, 9:06 am


                                                                                   CLERK
                              IN THE                                             of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court


                    COURT OF APPEALS OF INDIANA

WILLIAM M. STEELE,                                  )
                                                    )
       Appellant,                                   )
                                                    )
          vs.                                       )      No. 84A01-1110-SC-484
                                                    )
DANIEL CALLAHAN                                     )
                                                    )
       Appellee.                                    )

                       APPEAL FROM THE VIGO SUPERIOR COURT
                         The Honorable Christopher A. Newton, Judge
                              Cause No. 84D04-1011-SC-9731


                                          July 17, 2012
                MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
          Daniel Callahan (“Callahan”) filed a complaint in Vigo Superior Court alleging

that William M. Steele (“Steele”) negligently surveyed Callahan’s property, and that

Steele’s negligent survey proximately caused Callahan to incur damages related to an

additional survey of the property, the moving of a fence, and related landscaping. Steele

filed a motion to dismiss on the grounds that Callahan’s complaint was untimely.

Following a bench trial, the trial court denied the motion to dismiss and entered judgment

for Callahan in the amount of $4,000. However, the trial court denied Callahan’s request

for attorney fees. Steele appeals the trial court’s denial of the motion to dismiss and its

finding that inconsistencies in Steele’s surveys were the proximate cause of Callahan’s

damages. Callahan cross-appeals on the trial court’s denial of his claim for attorney fees.

          We affirm in part, reverse in part, and remand to the trial court to enter judgment

consistent with this opinion.

                                       Facts and Procedural History

          In 2008, Callahan contracted with Steele, a licensed surveyor, to survey Callahan’s

property, locate the four corners of Callahan’s property, and to give Callahan an

“approximation of where [he] should put [a] fence.” Tr. p. 7. In the 2008 survey of

Callahan’s property, Steele found four existing corner pins. The southeast corner was

marked on the survey with “Exist. I.P. in Concrete,” indicating that Steele found an

existing iron pin, or monument,1 at that location indicated on the survey document. Ex.




1
    Monuments are pins, pipes, stakes, or other forms of representation used by surveyors to indicate boundary lines.

                                                           2
Vol. p. 3. In addition, Steele marked each corner of the Callahan property with wooden

stakes and ribbon. Steele charged Callahan $400 for the survey.

      Based on Steele’s 2008 survey and starting at the southeast corner of his parcel,

Callahan “eyeball[ed]” a line along the entirety of Callahan’s south boundary line, which

was approximately 285 feet long. Tr. p. 8. Callahan had a fence built along this

eyeballed line. Callahan testified that when eyeballing the line, he was aware that his

fence might encroach onto his neighbor’s property but was not concerned because he was

bearing the cost of the fence and improvement to his property.

      Subsequent to Callahan’s survey in April 2008 and fence installation in the

summer of 2008, Matthew Riggs (“Riggs”) purchased the land directly south of and

contiguous with Callahan’s property. Riggs sought to install a dog fence along the

northern boundary of his parcel and the southern boundary of Callahan’s parcel. In

preparation for installing the fence, Riggs located three of the four corner pins of his

property after September 2008.     He was unable to locate his northeast (Callahan’s

southeast) corner pin.   Riggs then performed basic calculations and concluded that

Callahan’s fence encroached on Riggs’s land by up to nine feet in some places.

      Because of his own observations about the location of Callahan’s fence, in 2009,

Riggs hired Steele, who had performed the 2008 survey on Callahan’s property, to survey

Riggs’s newly purchased land. When retained to perform the survey for Riggs, Steele

was unaware that Riggs’s property was contiguous with Callahan’s and did not recall that

he had surveyed Callahan’s property only eighteen months prior to his survey for Riggs.



                                            3
       While conducting the 2009 survey for Riggs, Steele was unable to locate a pin for

Riggs’s northeast (Callahan’s southeast) corner of the property and set a new pin in that

location. Steele testified that he was unable to precisely locate the pin because of an

overgrowth of wild honeysuckle in the northeast corner of Riggs’s property. Tr. p. 55.

Evidence indicates that the new pin Steele set was six to seven inches south of the pin he

had previously located in his 2008 survey for Callahan. Tr. p. 56.

       Callahan testified that he used neither pin as the starting point from which he

eyeballed the line to erect the fence; rather, he used the “wooden stakes that had orange

tape across the top of it” placed in the ground by Steele in 2008. Tr. p. 8. Callahan

testified that the company he employed to erect the fence “eyeballed the line, the same as

I had and they put in a fence for us.” Tr. p. 9. At trial, both Callahan and Steele referred

to a concrete mass with orange paint as being near a boundary marker. Steele had

marked this piece of concrete as a reference point when setting the new pin in 2009.

Steele testified that the true boundary marker at that corner was the location marked on

the 2008 survey, which he stated was the “Exist I.P. in Concrete.” When initially

confronted by Riggs with the proposition that Callahan’s fence encroached onto Riggs’s

property, Callahan testified that he told Riggs: “[S]ince we eyeballed it because we didn’t

have the entire line marked, at most it might be a foot over the line.” Tr. p. 76.

       In late 2009, Riggs and Callahan jointly hired James David Myers (“Myers”) to

rectify the discrepancy in the surveys conducted by Steele. While conducting this third

survey, Myers found an iron pipe, which he referred to as the “Crowley pipe” at the

southeast corner of Callahan’s property. Tr. p. 29. This pipe, which Myers described as

                                              4
“significantly better and closer to the record distances shown,” was not indicated

specifically as the Crowley pipe on either survey conducted by Steele. Tr. p. 30. Myers

indicated that his company “excavated and found the Crowley pipe just below the

surface.” Tr. p. 30. However, Myers was unable to state whether the Crowley pipe was

the “Exist. I.P. in Concrete” indicated by Steele in his 2008 survey of Callahan’s

property.   Myers testified that the terms “pin” or “pipe” are interchangeable when

referring to monuments intended to serve as boundary markers. Tr. p. 45. Myers

testified that he found two markers near Callahan’s southeast corner and the distance

between the Crowley pipe and the iron pin set by Steele in 2009 was between six and

seven inches. Myers also testified that Steele’s surveys were deficient in that they failed

to show both measured (ones taken by a surveyor during the performance of a survey)

and recorded (ones provided from written evidence such as previously-conducted

surveys, deeds, etc.) distances on the surveys and that both surveys lacked a surveyor’s

report. Tr. pp. 33, 34, 37, 38. Subsequent to notification by the Myers survey that the

fence Callahan had erected was encroaching onto Riggs’s property by between eight and

ten feet, Callahan had the fence moved. Tr. p. 14.

       On November 15, 2010, Callahan filed a small claims complaint against Steele in

Vigo Superior Court alleging Steele negligently performed the survey in 2008 and that

Callahan incurred damages as a result of Steele’s negligence. The matter was set for a

bench trial for September 1, 2011. On the day of the trial, Steele filed a motion to

dismiss alleging that the two-year statute of limitations for actions against surveyors had

expired.

                                            5
        On September 29, 2011, the trial court issued its judgment in favor of Callahan.

As to Steele’s motion to dismiss, the trial court applied the statute of limitations as an

occurrence based statute, finding that “the damage occurred when Callahan’s neighbor

contracted with Steele to have his property surveyed in November 2009 and subsequently

informed Steele of the discrepancies.” Appellant’s App. p. 7. Therefore, the trial court

denied Steele’s motion to dismiss.

        In its findings, the trial court found that Steele’s surveys were inconsistent and

proximately caused Callahan and Riggs to incur the expense of the additional survey by

Myers. The trial court entered judgment for Callahan in the amount of $4,000, which

included $400 for Steele’s 2008 survey, $2,255 for one-half of the Myers survey, $989 to

move Callahan’s fence, and $356 for related landscaping.2 Finally, the trial court denied

Callahan’s request for attorney fees. Steele now appeals the denial of the motion to

dismiss as untimely, the finding that the inconsistencies in his surveys proximately

caused the need for the third survey, and the damages awarded to Callahan. Callahan

cross-appeals the denial of his request for attorney fees.

                                          Standard of Review

        When a trial court enters findings sua sponte, as it did in this case, we use a two-

step standard of review to determine first, whether the evidence supports the findings and

next, whether the findings support the judgment. Humphries v. Ables, 789 N.E.2d 1025,

1030 (Ind. Ct. App. 2003) (citing Smith v. Brown, 778 N.E.2d 490, 494 (Ind. Ct. App.


2
  In regards to landscaping, Callahan asserts that he would not have had a company “bulldoze and level out and
smooth out” a piece of land had he known that a portion of it was actually on Riggs’s property. Tr. p. 16.

                                                      6
2002)). We consider only evidence most favorable to the judgment and all reasonable

inferences drawn therefrom.      Id.    We will not reweigh evidence nor reassess the

credibility of witnesses. Id. Sua sponte findings control only the issues they cover,

whereas a general judgment controls as to the issues upon which there are no findings.

Tracy v. Morrell, 948 N.E.2d 855, 862 (Ind. Ct. App. 2011). A general judgment entered

with findings will be affirmed if it can be sustained on any legal theory supported by the

evidence. Id. at 862. When a claim is tried by the trial court without a jury, “the court

on appeal shall not set aside the findings or judgment unless clearly erroneous.” Ind.

Trial Rule 52(A). Therefore, a challenger to a judgment bears a heavy burden and must

show that the trial court’s findings were clearly erroneous.

       The clearly erroneous standard is defined according to whether the trial court’s

judgment was negative or adverse. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d

409, 411 (Ind. Ct. App. 2002). A negative judgment is rendered against a party who

bears the burden of proof, whereas an adverse one is “entered against a party defending

on a given question.” Vanderburgh Cnty. Bd. of Comm’rs v. Rittenhouse, 575 N.E.2d

663, 666 (Ind. Ct. App. 1991).         Here, the trial court entered judgment in favor of

Callahan, the party bearing the burden of proof.        Therefore, Steele is appealing an

adverse judgment and has the burden to show that the trial court’s findings were clearly

erroneous and not “supported by substantial evidence of probative value.” Garling, 766

N.E.2d at 411.     However, even if the evidence is substantial, we will reverse the

judgment if we are “left with a definite and firm conviction a mistake has been made.”

Id.
                                              7
                 I. Statute of Limitations and Motion to Dismiss as Untimely

         Steele claims that the two-year statute of limitations that relates to actions against

surveyors has expired and thus, the complaint is time-barred. Specifically, Steele claims

that the trial court used the wrong accrual date and thus improperly denied his motion to

dismiss by finding that Callahan’s damages as a result of Steele’s negligence did not

occur until Riggs presented Callahan with the 2009 survey.                             Steele asserts that the

damage to Callahan occurred in early 2008, when Callahan had the fence built.

         Indiana favors statutes of limitation because they “afford security against stale

claims and promote the peace and welfare of society.” Shaum v. McClure, 902 N.E.2d

853, 855 (Ind. Ct. App. 2009), trans denied (quoting Morgan v. Brenner, 712 N.E.2d 500,

502 (Ind. Ct. App. 1999), trans denied). “They are founded on the notion that one with a

well-founded claim will not delay in enforcing it.” Shaum, 902 N.E.2d at 855. “The

nature or substance of the cause of action, rather than the form of the action, determines

the applicable statute of limitations.” Id. (quoting King v. Terry, 805 N.E.2d 397, 400

(Ind. Ct. App. 2004)).

         The applicable statute of limitations in this case is Indiana Code section 34-11-2-4,

which provides that:

         An action for:
            (1) injury to a person or character,
            (2) injury to personal property; or
            (3) a forfeiture of penalty given by a statute;
         must be commenced within two (2) years after the cause of the action accrues.3

3
   Although the trial court properly applied a two-year statute of limitations, the specific statute referenced by the
trial court was incorrect. The trial court applied Indiana Code section 34-11-2-3 and made the following finding
regarding the statute of limitations: “The Court finds the two-year statute of limitations applicable in this case is

                                                          8
         Surveyors are recognized as professionals who can be liable in tort for failing to

exercise reasonable care in conducting their duties. Racquet v. Thompson, 693 N.E.2d

969 (Ind. Ct. App. 1998) (citing Estate of Reasor v. Putnam Cnty., 635 N.E.2d 153 (Ind.

1994)). In Racquet, this court applied Indiana Code section 34-1-2-2(1), the predecessor

to section 34-11-2-4, to a surveyor who failed to identify a piece of property as being

located in a flood plain.            Section 34-11-2-4 was subsequently applied in Shaum v.

McClure, 902 N.E.2d 853 (Ind. Ct. App. 2009), where landowners sued a surveyor for a

discrepancy among the boundary stakes the surveyor had placed on a lot. The Shaums

argued that section 34-11-2-4 was inapplicable because the action they brought related to

real property, not personal property, as defined in the statute. Id. at 856. We concluded

that the claim was one for professional malpractice; therefore, the two-year statute of

limitations in section 34-11-2-4 was applicable. Id.

         “Under Indiana’s discovery rule, a cause of action accrues, and the statute of

limitations begins to run when the claimant knows or in exercise of ordinary diligence

should have known of the injury.” Pflanz v. Foster, 888 N.E.2d 756, 759 (Ind. 2008);

Wehling v. Citizens Nat. Bank, 586 N.E.2d 840, 843 (Ind. 1992). “For an action to

accrue, it is not necessary that the full extent of the damage be known or even

ascertainable, but only that some ascertainable damage has occurred.”                                Shaum, 902


found in I.C. 34-11-2-3 . . . This statute is ‘occurrence based’ meaning that it ‘accrues when the conduct that caused
the damage occurs.’ The Court finds the damage occurred when the Plaintiff’s neighbor contracted with the
Defendant to have his property surveyed in November 2009 and subsequently informed the Defendant of the
discrepancies.” However, the cited statute applies to “physicians, dentists, surgeons, hospitals, sanitariums, or
others.” Ind. Code § 34-11-2-3 (2012). The Indiana Supreme Court ruled in Shideler v. Dwyer, 275 Ind. 270, 417
N.E.2d 281 (1981), that “the doctrine of ejusdem generis limits the application to the term ‘or others,’ as used in
[Indiana Code section 34-11-2-3], to others of the medical care community.” (discussing the predecessor statute,
which the court held was not applicable to a malpractice action against an attorney).

                                                          9
N.E.2d at 857 (quoting Cooper Industries, LLC v. City of South Bend, 899 N.E.2d 1274,

1280 (Ind. 2008)).

       Here, the trial court correctly concluded that Callahan’s damage occurred when

Riggs contracted with Steele to have his property surveyed in November 2009 and

subsequently informed Callahan of the discrepancies. The discrepancies in Steele’s 2008

and 2009 surveys necessitated the third, Myers survey to rectify the difference in the

previous two. Callahan filed his claim on November 15, 2010, only a year after Riggs

notified Callahan of the discrepancy in surveys, thus well within the applicable statute of

limitations.   Therefore, the trial court properly denied Steele’s motion to dismiss

Callahan’s complaint as untimely.

                        II.    Negligence and Proximate Cause

       Steele next argues that the trial court erred in 1) finding that inconsistencies in

Steele’s 2008 and 2009 surveys caused Callahan’s damages in regards to third survey,

and 2) awarding damages resulting from the movement of the fence, the 2008 Steele

survey, and certain landscaping expenses. Steele claims that the inconsistencies were

inconsequential and that Callahan’s own negligence was the proximate cause of his

damages relating to the movement of the fence, the 2008 Steele survey, and landscaping.

Callahan claims that Steele’s failure to accurately and consistently identify the boundary

marker in the southeast corner of Callahan’s property was the cause of Callahan’s

injuries.

       Negligence consists of: (1) a duty owed to the plaintiff by the defendant; (2) a

breach of that duty by the defendant; and (3) injury to the plaintiff proximately caused by

                                            10
that breach. Foddrill v. Crane, 894 N.E.2d 1070, 1075 (Ind. Ct. App. 2008). On appeal,

Steele fails to reference the first two elements (duty and breach), but solely contends that

his actions were not the proximate cause of Callahan’s injuries.

       “One who contracts to perform services may commit both a breach of contract and

the tort of negligence when he negligently fails to perform in a workmanlike manner.”

Essex v. Ryan, 446 N.E.2d 368, 370 (Ind. Ct. App. 1983). “And certain professionals, by

virtue of the nature of their business, make representations, render opinions, and give

advice in the course of performing a contract.” Id. “Surveyors . . . may be liable in tort

for failure to skillfully discharge their contractual obligation.” Id. at 371.

       “An indispensable element of an action for negligence is that the act complained

of must be the proximate cause of the accident producing the injury.”            Havert v.

Caldwell, 452 N.E.2d 154, 158 (Ind. 1983). In defining proximate cause, the Indiana

Supreme Court has stated that a “negligent act or omission is the proximate cause of an

injury if the injury is a natural and probable consequence which, in light of the

circumstances, should reasonably have been foreseen or anticipated.” Id. Foreseeability

of the injury is the critical test for determining the defendant’s liability. Nat’l. R.R.

Passenger Corp. v. Everton, 655 N.E.2d 360, 366 (Ind. Ct. App. 1995).                   The

foreseeability of whether the defendant’s act proximately caused the plaintiff’s injuries is

a question for the trier of fact. Id. at 366-67.

       Steele argues that the discrepancy in surveys was inconsequential because

Callahan’s fence encroached onto Riggs’s land by nine feet, a distance much greater than

the seven-inch variance between surveys. Further, Steele claims that the fence would

                                               11
have encroached onto Riggs’s property regardless of whether Callahan used the 2008 or

2009 location of the southeast corner boundary marker from which to have the fence

erected. Steele also asserts that the encroaching fence was built prior to Callahan being

notified of the discrepancy and cites testimony from Callahan indicating that Callahan

was aware at the time the fence was erected that it could intrude onto Riggs’s land. He

also claims that because of the discrepancy between the 2008 and 2009 surveys, the 2009

survey conducted by Steele gave Callahan an additional six inches of land and that the

fence would have encroached onto Riggs’s property regardless.

       Callahan’s chief claim is that he used the 2008 survey conducted by Steele as the

baseline according to which he had the fence erected. Had this survey been accurate,

Callahan asserts that he would not have been informed of the discrepancy between the

2008 and 2009 surveys, a discrepancy that led him to incur the expenses of an additional

survey and to move his fence, plus the cost of the initial landscaping prior to the erection

of the fence.

       We agree with the trial court that the inconsistences in Steele’s survey proximately

caused Callahan and Riggs to incur costs related to the third survey conducted by Myers.

Steele could have reasonably foreseen or anticipated that Callahan and Riggs could each

reasonably rely upon his surveys for them. Had Steele’s surveys been consistent, any

need for an additional survey would have been avoided.           The damage to Callahan

regarding the additional survey occurred when he was notified of the disparity in the

surveys; it was at this time that he incurred costs to rectify the discrepancy by contracting



                                             12
for the Myers survey. We affirm that portion of the trial court’s judgment of $2,255,

which is the cost of one-half of the Myers survey.

       However, we cannot conclude that Steele’s actions proximately caused Callahan’s

injuries in regards to the movement of the fence, the 2008 survey conducted by Steele,

and landscaping costs.

       Under negligence theory, the injured party is able to recover only those damages

proximately caused by the tortfeasor’s breach. INS Investigations Bureau, Inc. v. Lee,

784 N.E.2d 566, 577 (Ind. Ct. App. 2003), trans denied. “The damages claimed for such

a breach must be the natural, foreseeable and proximate consequence of the breach.” Id.

An award will be reversed only when it is not within the scope of evidence before the

trier of fact. Id. Here, the trial court’s conclusion that Steele’s negligence caused

Callahan’s injury as it relates to the movement of the fence was clearly erroneous.

       First, the fence encroached onto Riggs’s land by a margin greatly disproportionate

to the variance in surveys. A full year before Callahan was notified of the less-than-

seven-inch discrepancy between surveys, he built a fence that encroached onto Riggs’s

land by up to nine feet.     Further, even though the 2009 survey gave Callahan an

additional six to seven inches of land, he erected a fence that would have encroached

onto Riggs’s land by at least eight feet within the framework of either the 2008 or 2009

southeast corner boundary location. Simply said, any error in the first survey would have

given Callahan less land than which he was entitled to possess and therefore cannot

explain how the fence was erected beyond his actual property line at all, much less an

additional eight feet onto Riggs’s parcel. Callahan’s argument would have been more

                                            13
persuasive had the fence needed to be moved closer to Callahan’s property by the same

distance as the disparity in surveys.     But we fail to see how Steele’s negligence

proximately caused the necessary movement of the fence by approximately nine feet.

Steele could not have reasonably foreseen or anticipated that Callahan would reasonably

rely upon his 2008 survey to erect a fence nine feet onto his neighbor’s property.

       Utilization of Steele’s 2008 survey leads to a conclusion that the fence encroached

onto Riggs’ property by nine feet; the 2009 survey yields a distance of eight-and-a-half

feet. Therefore, the fence was an encroaching one regardless of the six-inch disparity in

the surveys.

       Callahan asserts that the trial court’s finding could be based on its belief that

Callahan used the concrete slab with orange paint, which is 9.5 feet to the south and 11.7

feet to the east of the more precise location of the southeast corner, as a reference point

from which to start eyeballing the line for the fence. However, this directly contradicts

Callahan’s own testimony that “[Steele] had wooden stakes that had orange tape across

the top of it and I went by those stakes” and that “I never even looked at a chunk of

concrete because, you know, we were operating off the wooden posts with the [orange]

tape across the top.” Tr. pp. 8, 22. He also indicated that he didn’t notice any concrete

until 2009, when he and Riggs went to look at the corner location in dispute. Tr. p. 22.

Finally, Callahan’s own testimony indicates that he knew from the outset that the fence

he had erected encroached upon Riggs’s property. Tr. pp. 75-76. For all of these

reasons, we reverse the $989 portion of the trial court’s judgment related to Callahan’s

expense incurred to move the fence.

                                            14
       We also fail to see how Steele’s actions proximately caused Callahan damages

regarding the 2008 survey and landscaping costs. Callahan retained Steele’s services to

locate the four corner pins of Callahan’s property. This Steele did with some accuracy.

Indeed, had Callahan “eyeballed” the line for his fence within any reasonable margin of

error (and had he not chosen to mow well across the property line onto Riggs’s property),

it is entirely possible that no dispute would have arisen at all.

       “Damages are awarded to compensate an injured party fairly and adequately for

the loss sustained.” INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 577 (Ind.

Ct. App. 2003). A party is limited in recovery to the loss actually suffered; the injured

party cannot be placed in position better than one in which the breach had not occurred.

Bank One Nat’l. Ass’n v. Surber, 899 N.E.2d 693, 704 (Ind. Ct. App. 2009).

Additionally, windfalls and double recovery are disfavored.          Id.   The trial court’s

judgment is erroneous in both regards. We therefore reverse the $400 portion the trial

court’s judgment related to the cost of Steele’s 2008 survey and the $356 portion of the

judgment related to Callahan’s initial, preparatory landscaping for the fence installation.

                                      III.   Attorney Fees

       Callahan cross-appeals the trial court’s denial of attorney fees.       Specifically,

Callahan seeks recovery of attorney fees as a result of the boundary dispute with Riggs.

The “American Rule” states that each party pays its own attorney fees. Liberty Mut. Ins.

Co. v. OSI Industries, Inc., 831 N.E.2d 192, 205 (Ind. Ct. App. 2005). Indiana follows

this general principle. Id. Ind. Code § 34-52-1-1 also reflects this principle and strictly

limits that award of attorney fees to narrow and exceptional grounds:

                                              15
              (a) In all civil actions, the party recovering judgment shall recover costs,
                  except in those cases in which a different provision is made by law.

              (b) 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:

                   (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.

              (c) The award of fees under subsection (b) does not prevent a prevailing
                  party from bringing an action against another party for abuse of process
                  arising in any part on the same facts. However, the prevailing party
                  may not recover the same attorney’s fees twice.

       Callahan does not claim that attorney fees should be awarded pursuant to

subsection (b), but rather asserts a claim for attorney fees under the third-party litigation

exception.

       In 2005, Indiana adopted a third-party litigation exception to the general rule that

parties pay their own attorney fees in Masonic Temple Ass’n of Crawfordsville v. Ind.

Farmers Mut. Ins. Co., 837 N.E.2d 1032, 1039 (Ind. Ct. App. 2005). The elements of the

third-party litigation exception are as follows:

              (1) the plaintiff became involved in litigation either because of a breach of
                  contract by the defendant, or because of defendant’s tortious conduct,
                  that is, that the party sought to be charged with the fees was guilty of a
                  wrongful or negligent act or breach of agreement;

              (2) the litigation was with a third party, not with the defendant from whom
                  the fees are sought to be recovered; and

              (3) the attorneys fees were incurred in that third-party litigation.

Id. (quoting W. Sunview Props. LLC v. Federman, 338 F.Supp.2d 1106, 1127–28 (D.


                                             16
Haw. 2004)). Callahan asserts that Steele’s negligence caused the discrepancy in the

surveys, which necessitated a third-party survey by Myers to determine the actual

boundary between their properties. Therefore, Callahan mistakenly asserts that attorney

fees incurred from this dispute should be awarded to him.

       “Care must be taken to distinguish between the rule prohibiting the recovery of

attorney fees from the losing party by the prevailing party in litigation and the rule

allowing the recovery of attorney fees incurred in litigation with third parties necessitated

by defendan[t’s] wrongful act.” Masonic Temple, 837 N.E.2d at 1038 (quoting Nalivaika

v. Murphy, 458 N.E.2d 995, 997 (Ill. App. Ct. 1983)). It is fundamentally important to

determine that an “action for which the attorney fees are claimed is brought or defended

by a third party, a party that is not part of the contract, agreement, or events that caused

the original litigation to arise.” Id. at 1038-39. Further, these litigation expenses and

attorney fees must be foreseeable by the defendant. Id. at 1039.

       Callahan’s reliance on Masonic Temple fails for at least two reasons. First,

Masonic Temple concerns an insurer’s basic, contractual duty to defend its insured in

litigation for a claim arguably within the coverage of the underlying policy, whether with

or without a reservation of rights.       In Masonic Temple, Indiana Farmers Mutual

Insurance Company, the carrier, denied coverage to the Masonic Temple of

Crawfordsville, causing the Masonic Temple to hire counsel to defend itself.

       Second, in the case before us, Riggs is the “third-party” contemplated by Masonic

Temple; Steele is not. There was no litigation between Callahan and Riggs regarding the

boundary line. Indeed, these two resolved their differences as neighbors should, based on

                                             17
the Myers survey, and Callahan has been compensated for his portion of that cost.

       For all of these reasons, the trial court properly denied Callahan’s claim for

attorney fees.

                                     IV.   Conclusion

       The trial court properly denied Steele’s Motion to Dismiss.       The trial court

properly found that inconsistencies in the 2008 and 2009 surveys conducted by Steele

proximately caused Callahan and Riggs to incur costs related to the third survey by

Myers. The trial court’s findings that Steele’s negligence proximately caused Callahan’s

damages regarding the movement of the fence, the 2008 Steele survey, and his initial

landscaping costs, were clearly erroneous. The trial court properly denied Callahan’s

claim for attorney fees.

       Affirmed in part, reversed in part, and remanded to the trial court to enter

judgment consistent with this opinion.

ROBB, C.J., and BAILEY, J., concur.




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