      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                           FILED
      Memorandum Decision shall not be regarded as                     Apr 19 2017, 8:35 am
      precedent or cited before any court except for the
                                                                           CLERK
      purpose of establishing the defense of res judicata,             Indiana Supreme Court
                                                                          Court of Appeals
      collateral estoppel, or the law of the case.                          and Tax Court




      ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
      Jeffrey K. Graham                                         William R. Groth
      Micha R. Buffington                                       David T. Vink
      Graham, Regnier, Farrar & Wilson, P.C.                    Indianapolis, Indiana
      Elwood, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Madison County Board of                                   April 19, 2017
      Commissioners and Madison                                 Court of Appeals Case No.
      County Highway Department,                                33A01-1609-PL-2136
                                                                Appeal from the Henry Circuit
      Appellants-Defendants,
                                                                Court.
                                                                The Honorable Jack Tandy, Senior
              v.                                                Judge.
                                                                Cause No. 33C01-1502-PL-8
      American Federation of State
      County and Municipal
      Employees Local 3609,
      Appellee-Plaintiff.




      Friedlander, Senior Judge

[1]   Madison County appeals the trial court’s award of attorney’s fees. To place the

      present appeal and our decision in proper context, the following is a summary

      of the underlying facts and procedural history of this case derived from our

      Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017    Page 1 of 17
      opinion in the first appeal involving these parties, reported in Madison County

      Board of Commissioners v. American Federation of State County and Municipal

      Employees Local 3609, 45 N.E.3d 868 (Ind. Ct. App. 2015), trans. denied, and

      from the material presented here on appeal.


[2]   Scott Amos, president of the American Federation of State County and

      Municipal Employees Local 3609 (the Union), and Travis Benfield, vice-

      president of the Union, were employed by the Madison County Highway

      Department (the Department) as truck drivers. On June 23 through June 25 of

      2014, they were assigned to the same truck to repair potholes and broken

      pavement.


[3]   On June 23rd and 24th, a county commissioner observed the truck to which

      Amos and Benfield were assigned idling for some time on the road near his

      house. The commissioner observed that some, but not all, of the road had been

      repaired before the employees left the location at the end of both days. Each

      day the county commissioner reported his observations to the Department

      superintendent; however, neither Amos nor Benfield were notified or warned of

      the complaints/allegations. On June 25th, the GPS tracking device on the truck

      used by Amos and Benfield indicated, and another Department employee

      observed, that the truck used by the two was parked near two restaurants for

      over an hour. Under the Collective Bargaining Agreement (CBA) entered into

      by the County and the Union, Department employees are allowed a half hour

      at mid-day without pay to eat lunch. Appellants’ App. Vol. II, p. 52.



      Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 2 of 17
[4]   When Amos and Benfield returned the truck to the Department garage on June

      25th, they were given “Disciplinary Notice Written Warnings dated Monday,

      June 23, 2014,” stating that they were being disciplined for a Class B 5 minor

      infraction occurring on June 23, 2014 for sleeping on the job or loafing, or

      spending excessive time at lunch. 45 N.E.3d at 871; Appellants’ App. Vol. II,

      p. 59 (defining Class B minor infractions and discipline), and p. 67. On June

      26, 2014, Amos and Benfield were suspended without pay pending an

      investigation into their alleged violations of the CBA, county personnel policies,

      and Indiana employment statutes. The allegations supporting their suspension

      contended Amos and Benfield were guilty of ghost employment for failure to

      perform their duties while on the job. Appellants’ App. Vol. II, p. 67.


[5]   The CBA between the Union and the County recognized the County’s

      authority to take appropriate disciplinary action for just cause. Id. at 69-70.

      Under the CBA, employees may be disciplined for class A minor infractions,

      class B minor infractions, or major infractions of work rules. A class B

      infraction includes sleeping on the job, loafing or spending excessive time at

      lunch periods, and other actions deemed class B infractions by the Department

      superintendent. Id. p. 59. In unusual situations, class B infractions may be

      elevated to a major infraction. Major infractions include: theft or dishonesty of

      any kind; using County property or equipment for personal matters not required

      by job duties; falsification, tampering with, removing, or misusing any County

      records, documents, or reports; leaving the job during working hours without




      Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 3 of 17
      prior authorization; and, other actions of similar consequences deemed so by

      the Department superintendent. Id. at 60.


[6]   A first violation classified as a class B infraction offense results in a written

      warning, the second offense results in a five-day layoff without pay, and the

      third offense results in the employee being subject to discharge. Id. at 59. On

      the other hand, the commission of a single major infraction results in the

      employee being subject to discharge. Id. at 60-61. Disciplinary action, if any,

      shall take place within three working days from the time the incident was

      reported to the Department superintendent or the designee. Id. at 58-59.


[7]   After a pre-deprivation hearing, held per the terms of the CBA, Amos and

      Benfield were notified that their employment was terminated immediately due

      to findings that they had committed ghost employment by submitting timecards

      representing that they were working, where the evidence showed they were not.

      Id. at 67-68. The notice further stated that they had committed major

      infractions, which subjected them to discharge and that the matter was being

      referred to the prosecutor’s office. Id. at 68. The major infractions found were

      those examples mentioned above.


[8]   Amos and Benfield utilized the CBA’s grievance procedures and the matter was

      submitted to arbitration. According to the CBA, “[t]he arbitrator shall have no

      authority to add to, change, delete, or otherwise modify any part of this

      agreement. Any decision of the arbitrator shall be final and binding on all

      parties.” 45 N.E.3d at 872. The question that was stipulated to by the parties


      Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 4 of 17
       and presented to the arbitrator was, “Were the discharges of [the Employees]

       for just cause? If not, what is the proper remedy?” Id.; Appellants’ App. Vol.

       II, p. 68.


[9]    The arbitrator issued an award finding that the County had failed to prove that

       Amos and Benfield had engaged in ghost employment. The arbitrator also

       found that Amos’ and Benfield’s actions did not fall within the categories of

       major infractions. Instead, the arbitrator found that the employees had

       committed the misconduct set forth in the initial written warnings—sleeping or

       loafing on the job and taking an excessively long lunch break—which were

       identified as class B minor infractions in the written warning delivered to Amos

       and Benfield. The arbitrator adjusted the sanction of immediate termination,

       reinstating Amos’ and Benfield’s employment, and imposed a five-day layoff

       without pay as the sanction for the misconduct found by the evidence

       presented.


[10]   Next, even though the CBA provided that the decision of the arbitrator was

       final and binding on all of the parties, the County filed an application to correct

       or vacate the arbitrator’s award. Under Indiana Code section 34-57-2-14

       (1998), a provision of Indiana’s Uniform Arbitration Act, a trial court within

       the appropriate time period, “shall modify or correct the [arbitrator’s] award

       where: (1) there was an evident miscalculation of figures or an evident mistake

       in the description of any person, thing, or property referred to in the award; (2)

       the arbitrators have awarded upon a matter not submitted to them and the

       award may be corrected without affecting the merits of the decision upon the

       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 5 of 17
       issues submitted; or (3) the award is imperfect in a matter of form, not affecting

       the merits of the controversy. The County contended that the arbitrator had

       exceeded his authority by basing his decision on due process concerns and by

       reducing Amos’ and Benfield’s punishment. The Union, which represented

       and continues to represent Amos and Benfield throughout this matter, filed an

       answer and counterclaim, which included a request for attorney’s fees. Both

       parties filed cross-motions for summary judgment.


[11]   The trial court summarily granted the Union’s motion, denied the County’s

       motion, and confirmed the arbitrator’s award in all respects. More specifically,

       the trial court ordered that “[a]ny disputes regarding the calculation of back-pay

       and attorney fees are remanded to the Arbitrator.” Appellants’ App. Vol. II, p.

       86.


[12]   The County appealed and a panel of this Court affirmed the trial court’s

       judgment. We found that the trial court appropriately followed the standard of

       review in declining to review the merits of the decision of the arbitrator de

       novo, and found that the arbitrator did not modify the conditions of the CBA,

       but appropriately exercised his authority to modify the sanction imposed based

       upon the question presented to him. The Court found that the County had

       “established no basis for correcting or vacating the arbitrator’s award.” Madison

       Cty Bd. of Com’rs, 45 N.E.3d at 876.


[13]   Undeterred, the County sought transfer of the matter to the Indiana Supreme

       Court. Transfer was unanimously denied on February 17, 2016. See Madison


       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 6 of 17
       Cty Bd. of Com’rs v. Am. Fed’n of State Cty and Mun. Emp’s. Local 3609, 45 N.E.3d

       1211 (Ind. 2016).


[14]   Both parties appeared before the arbitrator for a calculation of back-pay and

       attorney’s fees. Appellants’ App. Vol. II, p. 10. The parties had stipulated that

       the Union’s attorney’s fees were $23,992.50, which included trial and appellate

       fees. In his supplemental award of April 27, 2016, the arbitrator concluded that

       he lacked statutory or contractual authority to order the County to pay the

       Union’s attorney’s fees in successfully defending the County’s attempt to vacate

       his award. Id. The arbitrator did explicitly find that “the County’s obstinate

       and repeated efforts to secure a vacatur order from all three levels of the Indiana

       judiciary can accurately be labeled as frivolous, groundless, and unreasonable.” Id. at

       11. The arbitrator further expressed that a court of competent jurisdiction,

       making the same finding, might well determine that the payment of attorney’s

       fees from the County to the Union would be justified. Id. He concluded by

       stating, “because the Arbitrator has been shown no legal authority for such an

       arbitral remedy, the Union’s request for attorney’s fee[s] must be denied in this

       forum. Id. at 146.


[15]   On May 2, 2016, the Union filed a “Submission of Arbitrator’s Supplemental

       Award on Remand, Motion for Attorneys’ Fees Pursuant to Ind. Code § 34-52-

       1-1(b), and Motion for Entry of Final Judgment,” along with a supporting

       memorandum of law and later filed a motion for special findings. Id. On May

       27, 2016, the County filed its memorandum in support of its own motion for

       attorney’s fees for defending the Union’s request along with a brief in support of

       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 7 of 17
       the request. The Union also filed a response in opposition to the County’s

       motion for attorney’s fees.


[16]   The trial court held a hearing on the motions for attorney’s fees and back

       wages. With respect to attorney’s fees, the Union argued that the trial court

       should find as the arbitrator did that the County’s decision to pursue complete

       judicial review of the arbitrator’s decision was frivolous, groundless, and

       unreasonable in light of the finality of the arbitrator’s decision per the terms of

       the CBA.


[17]   The County contended that the Union’s claim for attorney’s fees was barred by

       res judicata, arguing that since the arbitrator concluded he was without

       jurisdiction to issue an award of attorney’s fees, he had effectively denied the

       request on the merits. The County also argued that the time to have appealed

       this denial of the Union’s request for attorney’s fees had passed pursuant to the

       time limitations of the appellate rules. Additionally, the County claimed that a

       request for appellate fees was waived because the Union did not seek appellate

       attorney fees under Indiana Appellate Rule 66(E) as the matter proceeded

       through the appellate process. The County also argued that the trial court had

       no authority to award a prevailing party appellate attorney’s fees for defending

       against a groundless appeal.


[18]   On August 17, 2016, the trial court issued its findings of fact, conclusions

       thereon and judgment, finding that the County’s litigation was frivolous,

       groundless, and unreasonable. The court granted the Union’s motion for


       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 8 of 17
       attorney’s fees, entering a final judgment against the County in the stipulated

       amount of $23,992.50—the Union’s attorney’s fees expended in the trial court

       and on all appellate levels defending the County’s attempt to vacate the

       arbitrator’s award.


[19]   The County appeals raising the following issues: (1) whether the trial court

       could grant appellate attorney fees without a mandate from the appellate court;

       (2) whether a trial court may grant trial attorney fees where they were not

       requested, not authorized by contract or statute, and were specifically denied by

       the arbitrator; and, (3) whether the County’s act of seeking vacatur on the

       ground that the arbitrator exceeded its authority is frivolous, groundless, or

       unreasonable. The Union contends that the trial court’s award of trial and

       appellate attorney’s fees was correct and seeks attorney’s fees under Indiana

       Appellate Rule 66(E) for the present appeal.


[20]   First, we consider the County’s argument that the trial court could not issue an

       award of appellate attorney fees without being directed to do so by this Court.

       Indiana’s general rule, also known as the American Rule, is that each party to

       the litigation must pay his or her own attorney’s fees. City of Jeffersonville v.

       Envtl. Mgmt. Corp., 954 N.E.2d 1000 (Ind. Ct. App. 2011). An award of

       attorney’s fees may be authorized by contract, rule, statute, or agreement,

       nonetheless. Id. The Union sought attorney’s fees under Indiana’s Attorney

       Fee Statute, which provides in pertinent part as follows:


               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:

       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 9 of 17
               (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.
       Ind. Code § 34-52-1-1(b) (1998).


[21]   The County’s contention presents a question of statutory interpretation.

       “When faced with a question of statutory interpretation, we first examine

       whether the language of the statute is clear and unambiguous . . . . The statute

       itself is the best evidence of legislative intent . . . . We construe statutes only

       where there is some ambiguity which requires construction.” Smith v. Champion

       Trucking Co., Inc., 925 N.E.2d 362, 365 (Ind. 2010) (quoting State v. American

       Family Voices, Inc., 898 N.E.2d 293, 297 (Ind. 2008)).


[22]   The County argues that the statute should be construed to read as solely

       providing for an award of attorney’s fees at the trial level. We believe that this

       reading of the statute is too narrow. The express language of the statute is clear

       and provides no such limitations. If the legislature had intended a narrower

       reading, it would have drafted the statute to reflect that intention.


[23]   Additional support for this interpretation can be found in cases deciding

       whether an award under other statutes can include an award of appellate

       attorney fees. In Benge v. Miller, 855 N.E.2d 716 (Ind. Ct. App. 2006), we held

       that an award under Indiana Code section 34-24-3-1 (1998) (Crime Victim’s

       Relief Act), and Indiana Code section 24-5-0.5-4 (1995) (damages for deceptive

       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 10 of 17
       consumer sales), included appellate attorney’s fees where both statutes

       contained language about awarding a reasonable attorney’s fee. We followed

       this holding in Heartland Resources, Incorporated v. Bedel, 903 N.E.2d 1004 (Ind.

       Ct. App. 2009), with respect to the Crime Victim’s Relief Act.


[24]   The language of Indiana’s Attorney Fee Statute is similar in that it authorizes

       an award of attorney’s fees. The trial court had the authority pursuant to

       statute to award appellate attorney’s fees and did not abuse its discretion when

       it did.


[25]   The County argues that the Union’s request for appellate fees is waived because

       the Union did not request them during the original appeal. The County argues

       that it had no opportunity to defend against the Union’s request. Indiana

       Appellate Rule 66 (E) provides, “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.” By the plain language of the rule, it is not the

       exclusive means by which a party can recover appellate attorney’s fees. Indeed,

       attorney’s fees may be recovered by contract, rule, statute, or agreement. City of

       Jeffersonville, 954 N.E.2d 1000.


[26]   With respect to the County’s argument that it had no opportunity to defend

       against the Union’s request, we observe that the County stipulated to the

       amount of the Union’s attorney’s fees, which included appellate attorney’s fees.

       Additionally, the County had the opportunity to challenge the Union’s request


       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 11 of 17
       when the matter was presented to the arbitrator, who declined to rule on the

       merits of the request for jurisdictional reasons, and the trial court, which

       entered the order deciding the issue.


[27]   Also, the County asserts that the arbitrator denied the Union’s request for

       attorney’s fees on the merits, and as such, the trial court abused its discretion by

       granting the Union’s request for fees. The language used in the arbitrator’s

       award clearly expressed that if the arbitrator had the authority to rule on the

       Union’s request for fees, it would have granted that request. Because the

       arbitrator lacked contractual or statutory authority, and the Union presented no

       evidence to suggest that the arbitrator had such, the arbitrator concluded that

       “the Union’s request for attorney’s fee[s] must be denied in this forum.”

       Appellants’ App. Vol. II, p. 146.


[28]   The principle behind the doctrine of res judicata is the prevention of repetitive

       litigation of the same dispute. MicroVote Gen. Corp. v. Ind. Election Com’n, 924

       N.E.2d 184 (Ind. Ct. App. 2010). For a claim to be precluded under this

       doctrine, four requirements must be satisfied, of which the following one is

       dispositive in this action: the former judgment must have been rendered on the

       merits. Id. The arbitrator’s decision plainly limits his denial of the Union’s

       request to his lack of authority to decide the issue on the merits.


[29]   The County further argues that the Union was required to file an action for

       vacatur of the arbitrator’s decision on the issue of attorney’s fees instead of

       making its application to the trial court. We disagree. The Union sought


       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 12 of 17
       enforcement of the arbitrator’s award after the County’s efforts on appellate

       review had been exhausted. After the arbitrator concluded that he was without

       authority to determine the issue of attorney’s fees on the merits, the Union

       proceeded under a statute authorizing a trial court to decide the issue. We find

       no abuse of discretion.


[30]   Next, the County argues that a trial court may not grant trial attorney fees

       where they were not requested, not authorized by contract or statute, and were

       specifically denied by the arbitrator. The same analysis, used with respect to

       appellate attorney’s fees, applies with respect to this issue. The trial court was

       authorized by statute to determine this issue on the merits. We find no abuse of

       discretion here.


[31]   The County also argues that the trial court abused its discretion by awarding

       trial and appellate attorney’s fees because its pursuit of appellate review of the

       arbitrator’s award was not groundless, frivolous, or unreasonable.


[32]   Appellate review of the decision to award attorney’s fees under the statute

       involves multi-level review. Purcell v. Old Nat. Bank, 972 N.E.2d 835 (Ind.

       2012). First, we review the trial court’s findings of fact under the clearly

       erroneous standard, and legal conclusions about whether the litigant’s claim

       was frivolous, unreasonable, or groundless are reviewed de novo. Id. The trial

       court’s decision to award attorney’s fees and any amount thereof is reviewed for

       an abuse of discretion. Id. A trial court abuses its discretion if its decision is




       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 13 of 17
       clearly against the logic and effect of the facts and circumstances or if the trial

       court has misinterpreted the law. Id.


[33]   A claim is groundless where no facts exist to support the legal claim relied on

       and presented by the losing party. Id. Claims or defenses are frivolous (a) if

       made primarily for the purpose of harassing or maliciously injuring a person, or

       (b) if the lawyer does not make a good faith and rational argument on the

       merits of the action, or (c) if the lawyer does not support the action taken by a

       good faith and rational argument for an extension, modification, or reversal of

       existing law. Wolfe v. Eagle Ridge Holding Co., LLC., 889 N.E.2d 521 (Ind. Ct.

       App. 2007). Claims or defenses are unreasonable if, based on a totality of the

       circumstances, 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. Lockett v. Hoskins, 960 N.E.2d 850 (Ind. Ct. App. 2012).


[34]   By statute, the County, in its request for vacatur, had to establish that: (1) there

       was an evident miscalculation of figures or an evident mistake in the description

       of any person, thing, or property referred to in the award; (2) the arbitrators had

       awarded upon a matter not submitted to them and the award may be corrected

       without affecting the merits of the decision upon the issues submitted; or (3) the

       award is imperfect in a matter of form, not affecting the merits of the

       controversy. Ind. Code § 34-57-2-14. The parties, by entering into the CBA,

       agreed that the arbitrator’s decision was final. During the appeal process, the

       County consistently argued that the arbitrator exceeded his authority by basing

       his decision to reinstate Amos’ and Benfield’s employment and impose a five-

       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 14 of 17
       day suspension, in part, on due process concerns. The County also challenged

       the new sanction as being in excess of authority. The question presented to the

       arbitrator was “Were the discharges of [the Employees] for just cause? If not,

       what is the proper remedy?” Appellants’ App. Vol. II, p. 68. The arbitrator’s

       decision squarely addressed the questions placed before him. The County’s

       claim at trial and on appeal was groundless. Further, the County did not

       establish any of the conditions for vacatur.


[35]   The trial court’s findings of fact and conclusions thereon reveal its own

       rationale for finding that the County’s actions in seeking vacatur of the

       arbitrator’s award were frivolous, groundless, and unreasonable. While doing

       so, the court noted that a panel of this Court had concluded that “the County

       has established no basis for correcting or vacating the arbitrator’s award.”

       Madison Cty Bd. of Com’rs, 45 N.E.3d at 876. The court also observed that the

       arbitrator opined, without deciding, that the County’s actions could be

       characterized by a court of competent jurisdiction to be frivolous, groundless,

       and unreasonable. At some point during the County’s efforts, after losing

       before the arbitrator, the trial court, the Indiana Court of Appeals, and the

       Indiana Supreme Court, the County should have realized that it was continuing

       to litigate after its claim had clearly become frivolous, unreasonable, or

       groundless.


[36]   The Union has asked for appellate attorney fees for the present appeal under

       Indiana Appellate Rule 66(E). We first observe that our discretion to award

       attorney fees under Indiana Appellate Rule 66(E) is limited to instances when

       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 15 of 17
       an appeal is permeated with meritlessness, bad faith, frivolity, harassment,

       vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342 (Ind. Ct.

       App. 2003). We strive to use extreme restraint when exercising this power

       because of the potential chilling effect upon the exercise of the right to appeal.

       Id.


[37]   In this present appeal the County raised the following issues: (1) whether the

       trial court could grant appellate attorney fees without a mandate from the

       appellate court; (2) whether a trial court may grant trial attorney fees where

       they were not requested, not authorized by contract or statute, and were

       specifically denied by the arbitrator; and, (3) whether the County’s act of

       seeking vacatur on the ground that the arbitrator exceeded its authority is

       frivolous, groundless, or unreasonable.


[38]   The County stipulated to the amount of the Union’s attorney’s fees at trial and

       on appeal. The Union’s request for attorney’s fees was made pursuant to

       statute. The award of appellate attorney’s fees by a trial court has been allowed

       under other statutes without an order from this Court. The award of trial

       attorney’s fees is authorized by the statute under which the Union proceeded.

       Additionally, the County’s conduct in its quest for vacatur has been rejected at

       every step of this litigation. Consequently, we award the Union attorney’s fees

       for defending this present appeal and remand to the trial court for a calculation

       of the same.


       Judgment affirmed and remanded.


       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 16 of 17
[39]   Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017   Page 17 of 17
