MEMORANDUM DECISION
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
Matthew D. Barrett                                      MELANIE MILLS FOR THE
Matthew D. Barrett, P.C.                                ESTATE OF STEPHEN MILLS,
Logansport, Indiana                                     DECEASED
                                                        Peter L. Boyles
                                                        Rhame & Elwood
                                                        Portage, Indiana
                                                        ATTORNEYS FOR APPELLEE
                                                        RISNER’S OASIS, INC.
                                                        Julie Murzyn
                                                        Randall J. Nye
                                                        O’Neill, McFadden & Willett
                                                        Schererville, Indiana
                                                        ATTORNEY FOR APPELLEE JO ANN
                                                        VANCE AND PAUL VANCE FOR THE
                                                        ESTATE OF RICKY L. VANCE,
                                                        DECEASED
                                                        Theodore L. Stacy
                                                        Valparaiso, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 1 of 25
      Robert A. Phillips d/b/a                                November 12, 2015
      Krueger’s Korner Klub,                                  Court of Appeals Case No.
      Appellant/Cross-Appellee (Defendant-                    46A03-1408-CT-277
      Cross-claim Defendant),                                 Appeal from the LaPorte Superior
                                                              Court
              v.
                                                              The Honorable Kathleen B. Lang,
                                                              Judge
      Melanie Mills, as Personal
      Representative for the Estate of                        Trial Court Cause No.
                                                              46D01-1203-CT-42
      Stephen F. Mills, Deceased,
      Appellee/Cross-Appellant (Plaintiff-
      Counterclaim Defendant),


      Risner’s Oasis, Inc.,                                                   Nov 12 2015, 6:37 am
      Cross-Appellee (Defendant-Cross-claim
      Defendant)


      Jo Ann Vance and Paul Vance,
      as Co-Personal Representatives
      for the Estate of Ricky L. Vance,
      Deceased,
      Appellees (Defendants-Counterclaim
      Plaintiffs-Cross-claim Plaintiffs).




      Kirsch, Judge.


                                            Case Summary
[1]   This case arises out of a single-car accident that resulted in the death of two

      friends, Stephen F. Mills (“Mills”) and Ricky L. Vance (“Vance”). Melanie

      Mills, as personal representative for the Estate of Stephen F. Mills, deceased

      Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 2 of 25
      (“the Mills Estate”) sued two bars that the men had patronized before the wreck

      on the night in question, Robert A. Phillips d/b/a Krueger’s Korner Klub

      (“Krueger’s”) and Risner’s Oasis, Inc. (“Risner’s”), alleging liability under

      Indiana’s Dram Shop Act. The Mills Estate also sued Jo Ann Vance and Paul

      Vance as co-personal representatives of the Estate of Ricky L. Vance, deceased

      (“the Vance Estate”), alleging that Vance was driving on the night in question,

      did so negligently or recklessly, and caused Mills’s death.1 Krueger’s and

      Risner’s each filed a motion for summary judgment on the Mills Estate’s dram

      shop claims. The trial court granted summary judgment in favor of Krueger’s

      and Risner’s. Krueger’s subsequently filed a motion requesting payment of

      $31,811.10 in attorney fees and costs from the Mills Estate and the Vance

      Estate, on the basis that the Estates’ claims were frivolous, unreasonable, and

      groundless or in bad faith. The trial court denied Krueger’s motion.


[2]   Krueger’s appeals and asserts that the trial court erred when it denied its request

      for payment of its attorney fees and costs. The Mills Estate cross-appeals and

      claims that the trial court erred when it granted summary judgment in favor of




      1
        The estate for each of the deceased men claims that the other man was driving when the car flipped, and
      each estate has filed suit against the other. That is, the Estate of Vance filed a counter-claim against the
      Estate of Mills, asserting that Mills was the driver and that he negligently caused Vance’s death. However, a
      determination of who was driving is not necessary to the resolution of the summary judgment and attorney
      fees issues before us, and we do not make any determination on the matter.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015           Page 3 of 25
      Krueger’s and Risner’s, asserting that genuine issues of material fact exist that

      preclude summary judgment.2


[3]   We affirm.


                                  Facts and Procedural History
[4]   On Sunday, July 10, 2011, Mills and Vance were celebrating Vance’s birthday.

      They arrived at Krueger’s, a small local tavern in LaCrosse, Indiana, between

      6:45 p.m. and 7:30 p.m. There were a dozen or fewer patrons in Krueger’s at

      that time. Mills and Vance each ordered and were served a beer by the

      bartender, Cheryn Klemz (“Klemz”). Another patron ordered a second round

      for Mills and Vance. Mills did not drink it, and Vance drank half or all of his

      second beer. After thirty to forty-five minutes, Mills and Vance left Krueger’s

      together, in Mills’s vehicle. The car “power braked,” with tires squealing and

      smoke rolling, as it left the parking lot. Appellant’s App. at 218, 232, 253. Mills

      and Vance then went to Risner’s in San Pierre, Indiana.


[5]   Between 7:00 p.m. and 9:00 p.m., Vance and Mills entered Risner’s. Vance

      ordered and paid for one bottle of beer from the bartender, Stephanie Call

      (“Call”). Call was the only employee working at Risner’s that night. Vance’s

      former father-in-law, Stephen Cook (“Cook”), bought Vance a second bottle of




      2
       The Mills Estate’s appeal was initially filed and docketed under a separate cause number (46A04-1405-CT-
      223), but this court subsequently consolidated it with the instant case, designating the Mills Estate as
      Appellee/Cross Appellant.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015        Page 4 of 25
      beer. Mills did not order, and Call did not serve Mills any beer or other

      alcohol.


[6]   After approximately an hour Vance and Mills left in Mills’s car. Shortly

      thereafter, the car left the roadway, flipped a number of times, and came to rest

      on its roof. Mills and Vance were both ejected and killed.


[7]   The Mills Estate sued the Vance Estate, alleging that Vance was negligent or

      reckless in his operation of the vehicle, which resulted in the fatal crash. The

      Mills Estate also named as defendants Krueger’s and Risner’s, alleging that the

      bars were liable under Indiana’s Dram Shop Act for serving alcohol to Vance

      while he was visibly intoxicated.3


[8]   In February 2013, Krueger’s attorney sent certified letters to the respective

      attorneys for the Mills Estate and the Vance Estate, stating that the discovery

      process showed no evidence to support a claim by either estate against

      Krueger’s, and he requested that the claims against Krueger’s be dismissed.

      Krueger’s attorney further advised that if the claims were not dismissed,

      Krueger’s intended to file a motion for summary judgment and would be

      seeking payment of attorney fees and costs. Thereafter, Kruger’s and Risner’s




      3
        In May 2012, the Vance Estate filed cross-claims against defendants Krueger’s and Risner’s, asserting dram
      shop liability claims against those two bars on the basis that Krueger’s and Risner’s were negligent because
      they furnished alcohol to Mills and Vance while they were visibly intoxicated. The trial court granted
      summary judgment in favor of Krueger’s and Risner’s and against both the Estate of Mills and the Estate of
      Vance. The Vance Estate appealed that decision, but it is a separate appeal, currently pending under Case
      No. 46A03-1503-CT-105. Thus, in our decision today, we do not address the appropriateness of summary
      judgment entered against the Vance Estate.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015          Page 5 of 25
       filed motions for summary judgment on the dram shop claims asserted by the

       Mills and Vance Estates.


[9]    Krueger’s motion asserted that there was no evidence that Krueger’s furnished

       alcohol to Vance with actual knowledge that he was visibly intoxicated at the

       time he was served. It further argued that, even if there were such evidence,

       Vance drank alcohol at Risner’s after leaving Krueger’s, and thus Krueger’s did

       not proximately cause the accident. In support of its motion for summary

       judgment, Krueger’s designated deposition evidence from five witnesses who

       observed the men at Krueger’s, namely the bartender Klemz and four patrons in

       Krueger’s that night: (1) Larinda McCoin (“Larinda”); (2) her husband Bruce

       McCoin (“Bruce”); (3) Darlene “Sue” Holbrook (“Holbrook”); and (4) William

       Moore (“Moore”).


[10]   As of the night in question, Klemz had been a bartender for approximately

       seven years at Krueger’s. She testified that she observed Mills and Vance walk

       into Krueger’s and that they appeared fine. She served Mills a beer, and he

       drank part of it. Vance drank the first bottle she served, then he ordered and

       drank all or part of the second bottle of beer. Klemz stated that neither Vance

       nor Mills had bloodshot eyes or slurred speech, and neither of them had any

       trouble with balance or walking. Klemz said that Mills and Vance stayed at

       Krueger’s for approximately forty-five minutes. She observed them leaving and

       stated that they had no problems with walking or balance. She testified that

       neither Mills nor Vance appeared visibly intoxicated while at Krueger’s.



       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 6 of 25
[11]   Larinda testified that she and her husband Bruce arrived at Krueger’s sometime

       between 4:30 and 5:30 p.m., and Mills and Vance arrived after that time. She

       observed Mills and Vance as they walked in, and she did not see anything

       unusual about their demeanor. They were not loud or boisterous while at

       Krueger’s. Mills and Vance first sat at the bar for ten minutes or so, then sat at

       a table near Larinda and Bruce. She saw that Mills drank half a beer. Larinda

       ordered another beer for Mills and Vance, but Mills did not drink any of it. She

       stated Vance did not finish that second beer. She had conversations with Mills

       and Vance, and they seemed coherent and did not have slurred speech or

       bloodshot eyes. She stated that Mills and Vance did not appear visibly

       intoxicated while at Krueger’s. She said they appeared “normal” as they

       walked out. Appellant’s App. at 123, 128. Larinda said that she and Bruce

       stayed at Krueger’s about an hour a half, and Mills and Vance left sometime

       before she did. She estimated Mills and Vance were at Krueger’s for about half

       an hour.


[12]   Bruce likewise testified in his deposition that he saw Mills and Vance as they

       came into Krueger’s, and he did not observe anything unusual about them. He

       conversed with Mills and Vance, and he did not have any difficulty

       understanding them. They were not slurring their speech, and they were not

       stumbling or having difficulty walking. Bruce recalled, “They said they had

       been drinking” before they came to Krueger’s. Appellee Mills Estate’s App. at 43.

       Mills and Vance each got a beer, and Vance finished his, but Mills did not.

       Bruce did not know whether Vance got a second bottle of beer. He stated that


       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 7 of 25
       Vance was not visibly intoxicated, but he did not know whether Mills was

       visibly intoxicated.


[13]   Holbrook testified that she observed Vance and Mills walk into Krueger’s. She

       said they were not staggering or falling down and did not appear intoxicated

       when they arrived. She saw Mills and Vance order a beer. Mills received a

       second beer, but did not drink it. She believed Vance drank a total of one-and-

       a-half beers while at Kruger’s. She had conversations with Mills and Vance and

       said they exhibited no problems with comprehension and did not slur their

       speech. They were not loud and did not behave inappropriately. She saw

       Vance and Mills as they left, and they did not have any problems with their

       balance. Her opinion was that neither Vance nor Mills was visibly intoxicated

       while at Krueger’s.


[14]   Moore testified that he was at Krueger’s when Mills and Vance arrived. He

       said that they did not appear intoxicated. He spoke to Mills and Vance, and

       neither slurred his speech. He saw Mills and Vance each drink one beer at

       Krueger’s. He estimated that Mills and Vance were at Krueger’s “[m]aybe a

       half hour.” Appellant’s App. at 176. He stated that Mills and Vance walked out

       without any problem.


[15]   Turning to Riser’s motion for summary judgment on the Mills Estate’s claims,

       it likewise asserted that Vance was not visibly intoxicated when he was served

       at Risner’s, and, thus, Risner’s was not liable. In support of its motion for

       summary judgment, Risner’s designated evidence included the deposition


       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 8 of 25
       testimony of the bartender, Call, and two witnesses who observed Vance at

       Risner’s, Cook and his girlfriend, Karen Ford (“Ford”).


[16]   Call recalled that when Vance came into the bar, he introduced himself and

       ordered a beer. He was “bubbly and outgoing.” Appellee Risner’s App. at 28.

       She stated that Vance did not slur his speech or have bloodshot eyes, and his

       coordination did not appear to be impaired in any way. He was not loud or

       boisterous. Vance bought one beer, and Call served it to him. Cook bought

       Vance a second bottle of beer; Call did not know whether Vance finished the

       second bottle of beer. Mills sat at the bar, on a stool, and “he didn’t really seem

       to talk to anyone; didn’t interact with anyone.” Appellee Risner’s App. at 30.

       Call said Mills’s jaw “was slack,” one of his eyes was closed more than the

       other one, and he “had a half smile on his face.” Id. at 29-30. Mills did not ask

       for and did not consume any alcohol while in Risner’s. Cook characterized

       Vance and Mills as being “fine” or “all right.” Risner’s App. at 48. Ford saw no

       signs that Vance was drunk. Id. at 45. Call stated in her affidavit that Vance

       did not appear to be visibly intoxicated at Risner’s. She estimated that Mills

       and Vance were in Risner’s for an hour to an hour and twenty minutes. Appellee

       Mills Estate’s App. at 17.


[17]   The Mills Estate filed separate responses to Krueger’s and Risner’s motions for

       summary judgment and designated as evidence the statements taken by an

       investigator of ten individuals, including Larinda, Bruce, Holbrook, and Klemz.

       The Mills Estate also designated the Indiana Officer’s Standard Crash Report

       and accompanying Case Report (“accident report”) prepared by the LaPorte

       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 9 of 25
       County Sheriff’s Department. Attached to the accident report was the LaPorte

       County Coroner’s Office Field Report and the death certificate for Mills. In

       opposition to Risner’s motion for summary judgment, the Mills Estate

       designated the same witness statements and accident report that it designated in

       opposition to Krueger’s and also designated an affidavit of the investigator who

       took the witness statements, the affidavit and deposition of Call, and the

       deposition of Cook. The Mills Estate contended that its designated evidence

       created a genuine issue of material fact on the issue of whether the bars, either

       or both of them, served Vance with actual knowledge that he was visibly

       intoxicated.


[18]   Krueger’s and Risner’s each filed motions to strike certain materials that the

       Mills Estate designated in opposition to their motions for summary judgment.

       In their motions, the bars asked the trial court to strike the unsworn statements

       of witnesses that were taken by an investigator and to strike the accident report,

       arguing that all of that evidence constituted hearsay that was inadmissible in

       summary judgment proceedings. The trial court granted both motions to strike

       and struck the accident report and the unsworn witness statements.


[19]   After the trial court issued its order on the motions to strike, the Mills Estate

       filed a supplemental designation of evidence, submitting the deposition of

       Treavor Pearson (“Pearson”). Among other things, Pearson’s deposition

       included testimony that at about 9:00 or 10:00 p.m. on the night in question, he

       was standing outside of his home, next to his garage, having a beer and

       watching traffic go by, when he saw Mills’s car drive past his home. He saw an

       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 10 of 25
       arm out the driver’s side window and opined who he believed was driving.

       With regard to the car, he said it was going thirty to forty miles an hour, not

       “accelerating” or “doing anything abnormal.” Appellee Mills Estate’s App. at 261.

       He only saw it for a few seconds as it drove past his home, but it did not appear

       to him to be weaving or moving in an erratic or unsafe manner. Id. at 264. His

       home was two to three miles from the scene of the accident. About 15-20

       minutes after he saw Mills’s car go by, Pearson was inside his house, but saw

       flashing lights through the window as emergency vehicles passed his home.


[20]   The trial court held a hearing on Krueger’s and Risner’s motions for summary

       judgment and thereafter issued its order granting both motions. The trial court

       concluded that the evidence before it was that Vance did not appear visibly

       intoxicated to the Krueger’s bartender or the four patrons who were there and

       observed him and that there was no evidence that Krueger’s served Vance with

       actual knowledge that he was visibly intoxicated. It also found that there was

       no evidence that Vance was visibly intoxicated at Risner’s or that Risner’s

       served Vance with actual knowledge that Vance was visibly intoxicated.

       “Because there was no actual knowledge of intoxication by either Krueger’s or

       Risner’s, liability cannot attach. Accordingly, the issue of proximate cause

       need not be reached.” Appellant’s App. at 465.


[21]   Following the ruling, Krueger’s filed its motion for attorney fees and costs,

       seeking $31,811.10 from Mills and Vance. The trial court denied the motion.

       Krueger now appeals the denial of its request for attorney fees and costs, and



       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 11 of 25
       the Estate of Mills cross-appeals, asserting that summary judgment in favor of

       Krueger’s and Risner’s was error.


                                      Discussion and Decision

                                       I. Summary Judgment
[22]   On review of the grant or denial of summary judgment, our court applies the

       same standard as used by the trial court. Merch. Nat’l Bank v. Simrell’s Sports Bar

       & Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is

       appropriate only “if the designated evidentiary matter shows that there is no

       genuine issue as to any material fact and that the moving party is entitled to a

       judgment as a matter of law.” Ind. Trial Rule 56(C). We may consider only

       those portions of the pleadings, depositions, and any other matters specifically

       designated to the trial court by the parties for purposes of the motion for

       summary judgment. Murdock v. Fraternal Order of Eagles, 779 N.E.2d 964, 967

       Ind. Ct. App. 2002), trans. denied. We must construe all facts and any

       inferences reasonably derived from those facts in favor of the non-moving party.

       Id.


[23]   The party moving for summary judgment bears the burden of proving the

       absence of a genuine issue of material fact. Vanderhoek v. Willy, 728 N.E.2d

       213, 215 (Ind. Ct. App. 2000). That is, when the defendant is the moving party,

       it must show that the undisputed facts negate at least one element of the

       plaintiff’s cause of action or that the defendant has a factually unchallenged

       affirmative defense that bars the plaintiff’s claim. Pierson ex rel. Pierson v. Serv.


       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 12 of 25
       Am. Corp., 9 N.E.3d 712, 714-15 (Ind. Ct. App. 2014), trans. denied. Thereafter,

       the non-moving party must set forth specific facts showing the existence of a

       genuine issue of material fact. Vanderhoek, 728 N.E.2d at 215. Thus, if the

       moving party demonstrates the absence of any genuine issue of fact, it is

       entitled to summary judgment unless the non-moving party comes forward with

       contrary evidence showing a triable issue for the factfinder. Williams v. Tharp,

       914 N.E.2d 756, 761-62 (Ind. 2009).


[24]   In this case, the Mills Estate asserts that Krueger’s and Risner’s are liable under

       Indiana’s Dram Shop Act because they served Vance with knowledge that, at

       the time they served him, he was visibly intoxicated. Indiana Code section 7.1-

       5-10-15 provides:

               It is unlawful for a person to sell, barter, deliver, or give away an
               alcoholic beverage to another person who is in a state of
               intoxication if the person knows that the other person is
               intoxicated.


       Section 15.5 then states, in part:


               (a) As used in this section, “furnish” includes barter, deliver, sell,
               exchange, provide or give away.


               (b) A person who furnishes an alcoholic beverage to a person is
               not liable in a civil action for damages caused by the impairment
               or intoxication of the person who was furnished the alcoholic
               beverage unless:


                   (1) the person furnishing the alcoholic beverage had actual
                   knowledge that the person to whom the alcoholic beverage
       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 13 of 25
                   was furnished was visibly intoxicated at the time the alcoholic
                   beverage was furnished; and


                   (2) the intoxication of the person to whom the alcoholic
                   beverage was furnished was a proximate cause of the death,
                   injury, or damage alleged in the complaint.


               (c) If a person who is at least twenty-one (21) years of age suffers
               injury or death proximately caused by the person’s involuntary
               intoxication, the:


                   (1) person;


                   (2) person’s dependents;


                   (3) person’s personal representative; or


                   (4) person’s heirs;


               may not assert a claim for damages for personal injury or death
               against a person who furnished an alcoholic beverage that
               contributed to the person’s intoxication, unless subsection (b)(1)
               and (b)(2) apply.


       Ind. Code § 7.1-5-10-15.5. Indiana’s Dram Shop Act “represents a legislative

       judgment that providers of alcoholic beverages should be liable for the

       reasonably foreseeable consequences of knowingly serving alcohol to visibly

       intoxicated persons.” Vanderhoek, 728 N.E.2d at 215.


[25]   In determining whether a person furnishing alcohol had actual knowledge that

       they were furnishing alcohol to an intoxicated person, the furnisher’s

       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 14 of 25
       knowledge must be judged by a subjective standard. Delta Tau Delta v. Johnson,

       712 N.E.2d 968, 975 (Ind. 1999), declined to follow on other grounds by Paragon

       Family Rest. v. Bartolini, 799 N.E.2d 1048 (Ind. 2003). “When determining

       whether a furnisher of alcoholic beverages knew a person was intoxicated, we

       look to what and how much a person was known to have consumed, the

       person’s behavior at the time, and the person’s condition.” Vanderhoek, 728

       N.E.2d at 215. Thus, actual knowledge of the server can be inferred from

       indirect or circumstantial evidence. Delta Tau Delta, 712 N.E.2d at 974.

       However, where there is insufficient evidence to support actual knowledge, the

       issue may be resolved as a matter of law. Id.


                            A. Krueger’s Motion for Summary Judgment

[26]   The Mills Estate’s claim against Krueger’s was based on the allegation that

       Vance was visibly intoxicated at the time he was served beer at Krueger’s. In

       seeking summary judgment, Krueger’s designated deposition testimony from,

       among others, bartender Klemz. She stated that she saw Vance and Mills walk

       in, she served them one to two beers, she saw them walk out, and she observed

       no problems with slurred speech, bloodshot eyes, or balance. She specifically

       testified that Vance did not appear visibly intoxicated. Krueger’s also

       designated deposition testimony from four witnesses who observed Vance and

       Mills while they were in Krueger’s: Larinda, Bruce, Holbrook, and Moore.

       The testimony of these witnesses was consistent with that of Klemz. According

       to them, Vance did not have slurred speech, bloodshot eyes, or trouble with

       balance that night. He walked in and out of Kruger’s without any problem. He

       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 15 of 25
       was not rude or boisterous while he was there. Each stated that Vance was not

       visibly intoxicated at the time Klemz served beer to him.


[27]   Krueger’s designated evidence established the absence of a genuine issue of fact

       as to whether Krueger’s had actual knowledge of Vance being visibly

       intoxicated at the time that Krueger’s served him. At that point, the burden

       shifted to the Mills Estate to establish the existence of a genuine issue of

       material fact as to whether Krueger’s possessed actual knowledge that Vance

       was visibly intoxicated at the time that Krueger’s served him alcohol. We

       recognize,

               Actual knowledge of intoxication can be inferred from indirect or
               circumstantial evidence such as what and how much the person
               was known to have consumed, the time involved, the person’s
               behavior at the time, and the person’s condition shortly after
               leaving.


       Vanderhoek, 728 N.E.2d at 217 (quoting Delta Tau Delta, 712 N.E.2d at 974).


[28]   Here, the Mills Estate argues that it designated evidence from which a

       reasonable inference of actual knowledge of intoxication can be drawn. It

       points to evidence that Vance and Mills had been drinking before arriving at

       Krueger’s, that they were served and consumed beers during the short period of

       time that they were at Krueger’s, and that upon being served his second beer at

       Krueger’s, Mills stated that he wanted to leave and asked Larinda to drive him

       home, a request that she did not take seriously. The Mills Estate further argues

       that its designated evidence showed that when they left Krueger’s, Vance was


       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 16 of 25
driving and was doing so recklessly. From this, the Mills Estate argues, that

“the reasonable inference is that Vance was intoxicated prior to being served at

[] Krueger’s.”4 Mills Estate’s Br. at 10. We do not agree. Whether Mills was

intoxicated and asked for a ride home has no bearing on whether Vance was

visibly intoxicated at the time he was served alcohol at Krueger’s. The evidence

is that Vance was served, at most, two beers at Krueger’s, and the evidence is

not consistent as to how much he drank of the second one. As we have

recognized, “proof of drinking is not proof of intoxication.” Murdock, 779

N.E.2d at 969. Vance and Mills were at Krueger’s for no longer than forty-five

minutes, a short period of time. The designated evidence from the bartender

and four witnesses was consistent on the proposition that Vance did not

stumble, slur, have bloodshot eyes, or show outward signs of visible

intoxication. There was no admissible evidence presented of Vance’s level of

intoxication or blood alcohol concentration at the scene of the accident.

Compare Vanderhoek, 728 N.E.2d at 217 (where shortly after leaving

establishment, driver failed field sobriety tests and had BAC of .15%, trier of

fact could infer that provider had actual knowledge of his intoxication at time

he was served); Ward v. D & A Enters. of Clark Cnty., 714 N.E.2d 728, 730 (Ind.

Ct. App. 1999) (after motorist spent seventy-five minutes at tavern, and, at

scene of accident, he failed sobriety tests and registered .22% on breathalyzer,



4
 We note, while the Mills Estate refers to the blood alcohol content of Vance following the accident, Mills
Estate’s Br. at 10, that information was stricken and is not to be considered in the summary judgment
determination. The accident report was the only piece of designated evidence that included the blood alcohol
content of Vance at or near the time of the accident.

Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015        Page 17 of 25
       question of fact existed whether motorist was visibly intoxicated at time he was

       served). Considering only the admissible evidence designated in opposition to

       the motions for summary judgment, there is no genuine issues of fact on the

       issue of whether Krueger’s served Vance with actual knowledge of visible

       intoxication, and the trial court properly granted summary judgment in favor of

       Krueger’s on the Mills Estate’s dram shop claims. See Murdock, 779 N.E.2d at

       969 (summary judgment for provider affirmed where driver consumed two or

       three beers in approximately two hours, server had no recollection of serving

       him that day, record was silent as to his behavior at the club, and record was

       devoid of any independent evidence of driver’s level of intoxication).


[29]   Because we affirm the trial court’s grant of summary judgment on the basis that

       Krueger’s did not serve Vance with actual knowledge of visible intoxication, we

       do not reach the issue whether Krueger’s proximately caused the accident in

       order to be liable under the Dram Shop Act. Ind. Code § 7.1-5-10-15.5.


                             B. Risner’s Motion for Summary Judgment

[30]   Risner’s asserts that its designated evidence establishes that Risner’s did not

       have actual knowledge that Vance was visibly intoxicated when it served him

       beer on the night in question. Risner’s submitted evidence from the bartender

       and four patrons at Krueger’s, discussed above, for the proposition that Vance

       did not exhibit signs of intoxication while at Krueger’s. It also designated

       evidence of the bartender and patrons at Risner’s. Risner’s bartender, Call, did

       not know Mills or Vance and had never seen either of them before that night.

       Risner’s App. at 29. Her affidavit and deposition testimony indicated that, when
       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 18 of 25
she served beer to Vance, he did not have slurred speech, he did not have

bloodshot eyes, and his coordination did not appear impaired. Call stated that

he did not appear visibly intoxicated. Appellee Mills Estate’s App. at 17; Appellee

Risner’s App. at 28. The deposition testimonies of Cook and Ford were

consistent with Call’s version. Ford, who knew Vance well, testified in her

deposition that Vance did not have bloodshot eyes or slurred speech while in

Risner’s, and his balance was not “off” in any way. 5 Appellee Risner’s Br. at 4.

Ford saw no signs that Vance was drunk. Appellee Risner’s App. at 47-48. With

regard to Mills, Call testified that, upon seeing him seated at the bar, she

noticed that “his jaw was slack,” “one of his eyes closed more than the other

one, and “[h]e was drooling out of the side of his mouth.” Appellee Risner’s App.

at 29. She wondered about the reason for his appearance, but she never had to

assess whether to serve him because he never ordered a drink. Mills and Vance

left Risner’s after approximately one hour and not more than an hour and

twenty minutes. While there, neither Vance nor Mills was boisterous or

belligerent. No one complained about their behavior. We find, as did the trial

court, that this evidence, established an absence of any genuine issue of

material fact as to whether Risner’s served Vance while having actual

knowledge that Vance was visibly intoxicated. The burden thus shifted to the

Mills Estate to present evidence to show that a genuine issue of material fact




5
  We note that, according to Call’s deposition, Ford was also a server at Risner’s, but she was not working on
the night in question. Appellee Risner’s App. at 27.

Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015          Page 19 of 25
       remained, making summary judgment on the Mills Estate’s dram shop claims

       inappropriate. The Mills Estate has failed to do so.


[31]   While the Mills Estate argued that the circumstantial evidence was sufficient to

       create an inference that Call had actual knowledge of visible intoxication when

       she served Vance, we note that much of the evidence designated by the Mills

       Estate was stricken, including the accident report, the only evidence of Vance’s

       level of intoxication at the time of the accident that occurred shortly after the

       men left Risner’s. The remaining evidence showed that Vance consumed up to

       two beers at Risner’s, while Mills consumed none. The men were at Risner’s

       up to an hour and twenty minutes. The bartender and patrons stated Vance did

       not appear visibly intoxicated or drunk while he was there. 6 Pearson was

       standing outside of his home on the night in question, and he observed Mills’s

       car drive past his home at the time that the men would have recently left

       Risner’s, approximately ten to fifteen minutes before the accident. He stated

       that the car was not speeding, weaving, or driving erratically. The trial court

       found that the Mills Estate’s designated evidence did not show the existence of

       a genuine issue of material fact as to whether Vance was visibly intoxicated

       when served at Risner’s, such that it could be reasonably inferred that Call had

       actual knowledge of it. We agree and conclude the trial court properly granted




       6
         Risner’s argues, “[Mills] may have been intoxicated,” but such evidence was “irrelevant” to the Mills
       Estate’s claim against Risner’s, both because Risner’s did not serve any alcoholic drinks to Mills, and because
       the Mills Estate’s position is that Vance, not Mills, was driving at the time of the accident. Appellee Risner’s
       Br. at 8, 13.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015            Page 20 of 25
       summary judgment in favor of Risner’s on the Mills Estate’s dram shop claims

       against it.


                         II. Krueger’s Motion for Attorney Fees
[32]   In regard to Krueger’s motion requesting payment of attorney fees and costs by

       the Mills Estate and the Vance Estate, we begin by noting that Indiana follows

       the American Rule, which provides that litigants must generally pay their own

       attorney’s fees absent an agreement between the parties, statutory authority, or

       other rule to the contrary. Smyth v. Hester, 901 N.E.2d 25, 32 (Ind. Ct. App.

       2009), trans. denied. Our legislature has codified an exception to this general

       rule and provided for fee-shifting in cases where the court finds a party has

       brought or pursued a frivolous, unreasonable, or groundless claim or defense, or

       acted in bad faith. State Bd. of Tax Comm’rs v. Town of St. John, 751 N.E.2d 657,

       659 (Ind. 2001). The General Recovery Rule, Indiana Code section 34-52-1-1,

       provides in relevant part:

               (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;




       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 21 of 25
               (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.


       Because this statute is in derogation of the American Rule observed under our

       common law, we strictly construe its language. D.S.I. v. Natare Corp., 742

       N.E.2d 15, 22 (Ind. Ct. App. 2000), trans. denied.


[33]   Whether to award attorney fees is a matter that lies within the “sound

       discretion” of the trial court. Kelley v. Vigo Cnty. Sch. Corp., 806 N.E.2d 824, 831

       (Ind. Ct. App. 2004) (citing Malachowski v. Bank One, 682 N.E.2d 530, 533 (Ind.

       1997)), trans. denied. “[I]n the absence of an affirmative showing of error or

       abuse of discretion,” we must affirm the trial court. Id. An abuse of discretion

       occurs when the trial court’s award is clearly against the logic and effect of the

       facts and circumstances before the court. Hill v. Davis, 850 N.E.2d 993, 996

       (Ind. Ct. App. 2006).


[34]   We have previously applied the following guidelines in our review of an

       attorney fee claim issue:

               A claim is frivolous (a) if it is taken primarily for the purpose of
               harassing or maliciously injuring a person, or (b) if the lawyer is
               unable to make a good faith and rational argument on the merits
               of the action, or (c) if the lawyer is unable to support the action
               taken by a good faith and rational argument for the extension,
               modification, or reversal of existing law. A claim is
               unreasonable if, based on a totality of the circumstances,

       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 22 of 25
               including the law and facts known at the time of the filing, no
               reasonable attorney would consider that the claim or defense was
               worthy of litigation or justified. A claim is groundless if no facts
               exist which support the legal claim relied on and presented by the
               losing party.


       Smyth, 901 N.E.2d at 33 (internal citations omitted); see also Lockett v. Hoskins,

       960 N.E.2d 850, 853 (Ind. Ct. App. 2012). “A claim or defense is not, however,

       groundless or frivolous merely because the party loses on the merits.” Smyth,

       901 N.E.2d at 33 (emphasis in original).


[35]   Krueger’s asserts that the dram shop claims filed by the Mills Estate and the

       Vance Estate were without merit when filed. It argues, “At the time Plaintiff

       Mills and Counter-Plaintiff Vance filed their respective lawsuits, no credible

       evidence existed showing Krueger’s had any dram shop liability.” Appellant’s

       Br. at 14. Alternatively, Krueger’s argues that the discovery process revealed

       that there were no facts that supported the dram shop claims against Krueger’s

       and that, under the Estates’ continuing duty to evaluate their claims, the Estates

       should have dismissed their claims because discovery revealed that the claims

       were frivolous, unreasonable, or groundless. In particular, Krueger’s relies on

       the uncontradicted testimony of bartender Klemz and the supporting testimony

       from four patrons that observed Mills and Vance in Krueger’s.


[36]   While summary judgment was granted in favor of Krueger’s and against the

       Mills Estate and the Vance Estate’s respective dram shop claims, we cannot say

       that their arguments were illogical or without any merit. While there was no

       direct evidence that bartender Klemz had actual knowledge of visible
       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 23 of 25
       intoxication when she served Vance, the Estates urged that circumstantial

       evidence about Mills and Vance before, during, and after their time at Krueger’s

       supported an inference of actual knowledge of visible intoxication, which

       created a genuine issue of material fact. Based on the law and facts, we cannot

       conclude that a reasonable attorney would consider the dram shop claims

       unworthy of litigation. Furthermore, there is no evidence that either Estate

       pursued litigation against Krueger’s primarily for the purposes of harassment or

       with malicious intent. Consequently, we do not conclude that the claims were

       frivolous. Nor do we conclude that absolutely “no facts exist which support the

       legal claim(s) relied on and presented by the losing party,” and therefore we are

       not persuaded that the claims were groundless. Smyth, 901 N.E.2d at 33.


[37]   Krueger’s also argues that the Estates “brought th[e] lawsuit[s] in bad faith” and

       attempted to “manipulate[e] evidence” because family member(s) from each

       estate contacted the Sheriff’s Department in an effort to clarify or change the

       accident report concerning the named driver of the car. Appellant’s Br. at 15.

       The record before us indicates that the Mills Estate sought that the accident

       report be amended because, although the report reflected that Mills was the

       driver of the vehicle, deposition testimony from an investigating officer of the

       LaPorte County Sheriff’s Department revealed that law enforcement was not

       able to determine which man was the driver of the car at the time of the

       accident, and the only reason that Mills was listed as the driver was because he

       owned the car. Appellant’s App. at 483, 520. The Sheriff’s Department declined

       to make any change to the accident report absent any eyewitness as to who was


       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 24 of 25
       driving at the time of the accident. Id. at 484. Member(s) of the Vance family

       also contacted the Sheriff’s Department, a few months after the accident, asking

       for clarification to the accident report, for insurance purposes, on the

       proposition that Vance “couldn’t have been driving.” Id. at 486. Again, the

       Sheriff’s Department declined to make any changes to the report, advising that

       “that’s something you’ll have to argue out in court.” Id.


[38]   Krueger’s has failed to show that either the Mills Estate or the Vance Estate

       acted in bad faith. In the end, and viewing the case as a whole, we cannot

       conclude that the dram shop claims filed and pursued by the Mills Estate and

       the Vance Estate were the “sort of needless drain on the resources of the

       prevailing party and the judicial system” that Indiana Code section 34-52-1-1

       was designed to deter. Smyth, 901 N.E.2d at 36 (citing Mitchell v. Mitchell, 695

       N.E.2d 920, 925 (Ind. 1998)). In reaching our decision, we are mindful of our

       Supreme Court’s observation that “the legal process must invite, not inhibit, the

       presentation of new and creative argument to enable the law to grow and

       evolve”; and that in reviewing an award of statutory attorney fees, we “must

       leave breathing room for zealous advocacy and access to the court to vindicate

       rights,” and “be sensitive to these considerations and view claims of frivolous,

       unreasonable, or groundless claims or defenses with suspicion.” Mitchell, 695

       N.E.2d at 925. We find no abuse of discretion in the trial court’s decision not

       to award payment of attorney fees and costs to Krueger’s. Affirmed.


[39]   Najam, J., and Barnes, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 46A03-1408-CT-277 |November 12, 2015   Page 25 of 25
