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                          Oct 06 2014, 9:56 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT:                                    ATTORNEY FOR APPELLEES:

NICHOLAS J. WAGNER                                          KATHERINE Y. GAPPA
DARRON S. STEWART                                           Bruce P. Clark & Associates
DAVID W. STEWART                                            St. John, Indiana
Stewart & Stewart Attorneys
Carmel, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

CHRISTINA HAEHN,                                    )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )   No. 73A05-1404-CT-177
                                                    )
F.A. WILHELM CONSTRUCTION CO., INC.,                )
and WILHELM CONSTRUCTION, INC.,                     )
                                                    )
       Appellees-Defendants.                        )


                       APPEAL FROM THE SHELBY CIRCUIT COURT
                         The Honorable Jack A. Tandy, Special Judge
                               Cause No. 73C01-1002-CT-3


                                          October 6, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                       Case Summary

       Christina Haehn (“Haehn”) filed suit against several parties, including F.A. Wilhelm

Construction Co., Inc., and Wilhelm Construction, Inc. (collectively, “Wilhelm”), for injuries

she incurred. Evidentiary matters discussed at a hearing established that continuation of

Haehn’s action as to Wilhelm would be frivolous. Haehn did not dismiss the action as to

Wilhelm, however, and the trial court ordered Haehn to pay Wilhelm attorney fees associated

with continuation of the litigation.

       Haehn now appeals; Wilhelm contends Haehn’s appeal is frivolous and seeks

appellate attorney fees.

       We affirm the trial court’s award of fees in all respects. We deny Wilhelm’s request

for appellate attorney fees.

                                           Issues

       Haehn raises several issues for our review. We consolidate and restate these as the

single question of whether the trial court abused its discretion in its determination of the

attorney fees it awarded to Wilhelm. We also address Wilhelm’s request that this Court

award appellate attorney fees.

                               Facts and Procedural History

       On May 13, 2008, Haehn was riding a horse in Barn 7 at the Indiana Downs horse

track in Shelbyville. Construction was ongoing at Indiana Downs and at the Indiana Grand

Casino (“the casino”). Indiana Downs and the casino were immediately adjacent to one

another. Barn 7 at Indiana Downs, however, was a long distance from the casino.


                                              2
       While Haehn was riding her horse, the horse reared up and tossed her to the ground;

she sustained injuries as a result.

       On February 18, 2010, Haehn filed suit against numerous parties, including Wilhelm.

Haehn alleged that the horse she was riding was frightened when a truck’s tailgate was

slammed onto the ground. This resulted in the horse throwing her to the ground and her

consequent injuries. Haehn alleged that Wilhelm was involved with construction work

taking place at the casino, and that Wilhelm’s negligence was a proximate cause of her

injuries.

       Wilhelm filed a motion for summary judgment on December 4, 2012. On May 8,

2013, a hearing was conducted on Wilhelm’s motion. During the hearing, evidentiary

matters brought before the trial court revealed that there was no basis for Haehn to continue

the action as to Wilhelm. On May 13, 2013, and again on May 22, 2013, counsel for

Wilhelm warned counsel for Haehn that Wilhelm would seek an order to compel Haehn to

pay attorney fees if she did not voluntarily dismiss Wilhelm from the litigation.

       Also at the May 8, 2013, hearing, the trial court judge, the Honorable Charles

O’Connor, stated that he believed he faced a conflict of interest in continuing to serve as

judge in the litigation. On May 20, 2013, Haehn filed an unopposed motion seeking Judge

O’Connor’s disqualification. On May 21, 2013, Judge O’Connor disqualified himself from

the case. On June 19, 2013, the Honorable Jack A. Tandy was qualified as Special Judge in

the case.




                                             3
        On September 24, 2013, the trial court conducted a hearing on Wilhelm’s motion for

summary judgment. On October 11, 2013, the trial court entered summary judgment for

Wilhelm, and further certified the order as a final judgment.1

        On November 27, 2013, Wilhelm filed a motion for costs and fees, arguing that

Haehn’s failure to voluntarily dismiss Wilhelm from the litigation amounted to maintaining a

frivolous action, see Ind. Code § 34-52-1-1 et seq., and that Haehn was obligated to pay

additional attorney fees under the Qualified Settlement Offer Statute. See I.C. § 34-50-1-1 et

seq.

        On January 29, 2014, the trial court conducted a hearing on Wilhelm’s motion for

costs and fees. On February 3, 2014, the court entered an order in which it found that Haehn

should have known on May 8, 2013 that her action against Wilhelm was without merit. The

court found that Haehn should have voluntarily dismissed Wilhelm from the litigation at that

time, but she did not do so despite two warnings from counsel for Wilhelm that the

companies would seek attorney fees if she did not dismiss Wilhelm from the case. The trial

court rejected Wilhelm’s proffered amount of attorney fees associated with Haehn’s

maintaining the action against Wilhelm. Instead, the court ordered Wilhelm to provide an

itemized submission of time expended by counsel, starting after the May 8, 2013 hearing.2



1
 On December 13, 2013, Wilhelm filed a motion purportedly seeking that the trial court amend the October
11, 2013 summary judgment order to issue it as a final judgment. The trial court granted the motion on
December 16, 2013. This order is duplicative of the October 11, 2013 summary judgment order, which had
already certified the judgment as final.

2
 The trial court also ordered Haehn to pay $1,000 in attorney fees under the Qualified Settlement Offer
Statute; Haehn challenges that ruling in a separate appeal before this Court.

                                                   4
       On February 14, 2014, Haehn filed a motion requesting that the trial court reconsider

its order of February 3, 2014; the court denied this motion on February 26, 2014.

       Wilhelm submitted two affidavits for its attorneys’ time; the second of these reflected

additional time spent responding to Haehn’s motion to reconsider the February 3, 2014 order.

Counsel for Haehn advised the court that Haehn would file objections to Wilhelm’s

affidavits.

       On March 3, 2014, before Haehn filed her objections, the court ordered Haehn to pay

$12,919.50 to Wilhelm, representing attorney fees associated with defending the litigation

after May 8, 2013. The court also reaffirmed its order to pay $1,000 associated with the

Qualified Settlement Offer Statute.

       On March 31, 2014, Haehn filed a motion to correct error, which the trial court denied

on April 11, 2014.

       This appeal ensued.

                                 Discussion and Decision

                                      Standard of Review

       Haehn appeals the trial court’s denial of her motion to correct error, which in turn

challenged the trial court’s order setting attorney fees associated with Haehn’s continuation

of the litigation against Wilhelm after the May 8, 2013 summary judgment hearing. We

review a trial court’s decision on a motion to correct error for abuse of discretion, which

occurs when the trial court’s decision is contrary to the logical inferences arising from the




                                              5
facts and circumstances before it, or when the court errs on a matter of law. Paragon Family

Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind. 2003).

       A trial court’s decision to award attorney fees under the General Recovery Rule

Statute, I.C. § 34-52-1-1 et seq., is subject to a multiple-level review. Dunno v. Rasmussen,

980 N.E.2d 846, 851 (Ind. Ct. App. 2012). We review the trial court’s findings of fact for

clear error, and review de novo the court’s legal conclusions as to whether a claim was

frivolous, unreasonable, or groundless. Id. The decision to award attorney fees and the

amount of attorney fees awarded are reviewed for an abuse of discretion. Id.

       As this court has noted,

       “What constitutes reasonable attorney fees is a matter largely within the trial
       court’s discretion.” Franklin College v. Turner, 844 N.E.2d 99, 105 (Ind. Ct.
       App. 2006). In determining whether a fee is reasonable, the trial court may
       consider such factors as the time, labor, and skill required to perform the legal
       service, the amount involved and the results obtained, the experience,
       reputation, and ability of the lawyer, and the fee customarily charged in the
       locality for similar legal services. Nunn Law Office v. Rosenthal, 905 N.E.2d
       513 (Ind. Ct. App. 2009). Finally, “[t]he trial judge is considered to be an
       expert on the question and may judicially know what constitutes a reasonable
       attorney’s fee.” Rand v. City of Gary, 834 N.E.2d 721, 723 (Ind. Ct. App.
       2005) (citing Glover v. Torrence, 723 N.E.2d 924, 938 (Ind. Ct. App. 2000)),
       trans. denied.

Longest ex rel. Longest v. Sledge, 992 N.E.2d 221, 231 (Ind. Ct. App. 2013), trans. denied.

       Here, Haehn does not challenge the trial court’s finding that her maintenance of her

claims against Wilhelm was frivolous after May 8, 2013. Nor does she challenge the trial

court’s decision to assess attorney fees. Rather, she identifies as an abuse of discretion the

trial court’s determination of the total amount of fees, and directs her arguments toward



                                              6
reducing the overall amount of fees for which she is liable. We address each contention in

turn.

                                     Motion to Reconsider

        Haehn first argues that she should not have been sanctioned for filing her motion to

reconsider the court’s order of February 3, 2014. Haehn argues that “Wilhelm should not

have been awarded $2,004.00 merely because [she] filed a Motion to Reconsider and

Wilhelm responded” and observes that the trial court appears not to have reviewed Wilhelm’s

response to the motion. (Appellant’s Br. at 6.) Haehn contends that because the motion to

reconsider “was not frivolous, unreasonable, or a groundless misuse of the judicial process,”

she should not be required to pay attorney fees associated with Wilhelm’s response to the

motion to reconsider. (Appellant’s Br. at 6.)

        Haehn contends that Wilhelm submitted two affidavits for attorney fees, itemizing

total charges of $15,124.50. The first affidavit, submitted on February 14, 2014 in response

to the trial court’s order of February 3, 2013, lists total fees of $13,120.50; a second affidavit

apparently set forth fees of $2,004. Exclusive of the attorney fees award made under the

Qualified Settlement Offer Statute, the trial court awarded Wilhelm attorney fees totaling

$12,919.50—less than the $13,120.50 set forth in Wilhelm’s first affidavit, let alone the total

amount of $15,124.50.

        That is, Haehn was ordered to pay a smaller amount in fees than what Wilhelm

requested before the motion to reconsider, and the trial court’s order reflects no consideration

of Wilhelm’s second affidavit. We cannot conclude, then, that Haehn was in fact ordered to


                                                7
pay for any portion of the fees Wilhelm sought that were associated with a response to the

motion to reconsider. We accordingly find no abuse of discretion in this regard.

                            Disqualification of Judge O’Connor

       We turn to Haehn’s contention that the trial court should not have awarded $799.00 in

fees associated with counsel for Wilhelm’s work related to Judge O’Connor’s

disqualification as trial judge in this case. Haehn argues that the matters related to Judge

O’Connor’s disqualification were a “procedural tangent” and “wholly detached” from the

merits of the case, and thus she should not have to pay attorney fees associated with

Wilhelm’s counsel’s work on that facet of the case. (Appellant’s Br. at 7.)

       Our review of the record shows that the trial court concluded that Haehn should have

known on May 8, 2013 that continuing the action against Wilhelm was frivolous. Counsel

for Wilhelm twice, on May 13 and May 22, 2013, warned Haehn of the defendants’ intent to

seek attorney fees if Haehn did not voluntarily dismiss the Wilhelm companies from the case.

See R.L. Turner, Corp. v. Town of Brownsburg, 963 N.E.2d 453, 460 (Ind. 2012) (affirming

an award of attorney fees where appellant complained the award was untimely). Haehn

nevertheless did not dismiss Wilhelm at any point in the litigation, waiting instead until the

trial court entered summary judgment in Wilhelm’s favor after five months and a second

summary judgment hearing.

       In essence, Haehn asks that we reweigh evidence. We decline to do so, and

accordingly find no abuse of discretion as to attorney fees related to the costs incurred by

Wilhelm associated with the matter of Judge O’Connor’s disqualification.


                                              8
                                  Reasonableness of Fees

       Haehn next contends that the trial court “summarily approved Wilhelm’s counsel’s

affidavits without any analysis whatsoever as to their reasonableness or veracity.”

(Appellant’s Br. at 8.) Haehn contends the trial court’s acceptance of Wilhelm’s proffered

evidence concerning its fees was accepted “uncritically.” (Appellant’s Br. at 8.)

       As we noted above, it is a long-established principle that the trial judge is considered

to be an expert on the question of what constitutes reasonable attorney fees. Longest, 992

N.E.2d at 231. Haehn’s decision not to dismiss Wilhelm from the case caused the defendants

to re-litigate a summary judgment motion. Further, the trial court did not, contrary to

Haehn’s assertions, simply accept as correct Wilhelm’s claimed fees. As we already noted

above, the trial court apparently excluded from the payable amount the $2,004.00 in fees

Wilhelm claimed it incurred responding to Haehn’s motion to reconsider. The trial court also

did not award the entire $13,120.50 in fees Wilhelm claimed before preparing a response to

the motion to reconsider.

       Moreover, we note that the trial court rejected Wilhelm’s initial request for fees

totaling in excess of $30,000. And to the extent Haehn directs our attention to the affidavit

of her expert, Mark Metzger (“Metzger”), and Metzger’s contentions concerning the

reasonableness of Wilhelm’s claimed fees, we again decline Haehn’s request that we reweigh

evidence.

       The trial court set an attorney fees award that was within the scope of the evidence

provided to it after Haehn’s decision not to dismiss her claims against Wilhelm caused


                                              9
Wilhelm to re-litigate a summary judgment motion. We decline to disturb the trial court’s

decision on the reasonableness of the fees awarded.

                                 Claimed Fictitious Events

       Finally, Haehn contends that certain events for which Wilhelm requested attorney fees

did not occur, and that the trial court erred when it did not reduce the attorney fee award in

light of Haehn’s counsel’s submission of an affidavit to this effect in support of Haehn’s

motion to correct error.

       The affidavit in question avers:

              3. That on May 29, 2013, I personally did not attend nor participate in
                 any telephone conference with any individual by the name of
                 Thomas S. Bowman.

              4. That on May 30, 2013, I personally did not attend nor participate in
                 any telephone conference with any individual by the name of
                 Thomas S. Bowman.

              5. That on September 24, 2013, I personally did not attend nor
                 participate in any “associated meeting” with Brian C. Potts
                 regarding this matter.

(Appellant’s App’x at 85.)

       The disputed time entries of counsel for Wilhelm totals 2.3 hours. 1.9 of these hours

come on September 24, 2013, during which Wilhelm’s counsel’s itemized record states

“Attendance at hearing re: all pending Motions for Summary Judgment and Motion to Strike,

and attendance at associated meeting with opposing counsel and counsel for co-defendant.”

(Appellant’s App’x at 34.) Haehn’s counsel’s affidavit does not contend that the hearing




                                             10
never occurred; nor does it contend that no phone calls occurred on May 29 and May 30,

2013.

        Again, Haehn’s argument amounts to a request that we reweigh evidence; and again,

we decline to do so.

                                  Appellate Attorney Fees

        Having concluded that the trial court did not abuse its discretion in determining the

amount of attorney fees Haehn owes to Wilhelm, we turn now to Wilhelm’s request for

appellate attorney fees.

        Our Appellate Rules provide:

        The Court may assess damages if an appeal, petition, or motion, or response, is
        frivolous or in bad faith. Damages shall be in the Court's discretion and may
        include attorneys’ fees. The Court shall remand the case for execution.

Ind. Appellate Rule 66(E). Our discretion to award such fees is limited. Thacker v. Wentzel,

797 N.E.2d 342, 346 (Ind. Ct. App. 2003). We may award fees only where “an appeal is

permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

delay.” Id. Moreover, “we must use extreme restraint when exercising this power because of

the potential chilling effect upon the exercise of the right of appeal.” Id.

        Attorney fees awards on appeal are categorized as either substantive or procedural

claims of bad faith. Id. A substantive claim of bad faith is established when the party

seeking fees shows “that the appellant’s contentions and arguments are utterly devoid of all

plausibility.” Id. Procedural bad faith “occurs when a party flagrantly disregards the form

and content requirements of the rules of appellate procedure, omits and misstates relevant


                                              11
facts appearing in the record, and files briefs written in a manner calculated to require the

maximum expenditure of time both by the opposing party and the reviewing court.” Id. at

346-47. This need not amount to conduct that is “‘deliberate or by design.’” Id. (quoting

Boczar v. Meridian Street Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001)).

       We find no substantive bad faith here. Haehn’s appeal challenges discretionary

determinations by the trial court as to certain portions of Wilhelm’s claimed attorney fees.

While Haehn has not succeeded on the merits of her appeal, her claims are not so far beyond

the bounds of reasonable argument as to be substantively “devoid of all plausibility.” Id. at

346. Nor do we find procedural bad faith; though Haehn’s briefs only sparsely cite

applicable law, there are regular citations to the record, and none of this impeded the Court’s

review.

       We accordingly deny Wilhelm’s request for appellate attorney fees.

                                         Conclusion

       The trial court did not abuse its discretion in its determination of the amount of

attorney fees Haehn owed as a result of her decision not to voluntarily dismiss Wilhelm from

the litigation. We deny Wilhelm’s request for appellate attorney fees.

       Affirmed.

NAJAM, J., and PYLE, J., concur.




                                              12
