    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                   Jan 21 2014, 10:12 am
    the defense of res judicata, collateral
    estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

JAMES E. AYERS                                        BRYCE H. BENNETT, JR.
Wernle, Ristine & Ayers                               BRANDON J. ALMAS
Crawfordsville, Indiana                               Riley Bennett & Egloff, LLP
                                                      Indianapolis, Indiana




                                  IN THE
                        COURT OF APPEALS OF INDIANA
.

SMITA RADHAKRISHNAN,                                  )
                                                      )
          Appellant-Defendant/Counter-Plaintiff,      )
                                                      )
                  vs.                                 )       No. 49A02-1303-PL-202
                                                      )
ACCESS THERAPIES, INC.,                               )
                                                      )
          Appellee-Plaintiff/Counter-Defendant.       )


                        APPEAL FROM THE MARION SUPERIOR COURT
                                The Honorable S.K. Reid, Judge
                               Cause No. 49D14-0711-PL-50819



                                           January 21, 2014


                   MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Access Therapies, Inc. (“Access”) filed a complaint against its employee Smita

Radhakrishnan (“Radhakrishnan”), a foreign national, alleging that she had breached her

employment contract. Radhakrishnan filed a counterclaim for costs and attorney fees,

contending that Access’s claim was frivolous, unreasonable, or groundless. Following a

bench trial, Radhakrishnan appeals the trial court’s order finding that she breached the

contract and ordering her to pay damages in the amount of $32,237.60 plus costs and

interest. Radhakrishnan also appeals the trial court’s dismissal of her counterclaim.

Accordingly, Radhakrishnan raises the following consolidated and restated issues for our

review:

      I.     Whether the trial court erred in finding that Radhakrishnan had
             breached the contract; and

      II.    Whether the trial court erred in dismissing Radhakrishnan’s
             counterclaim.

      We affirm in part, reverse in part, and remand with instructions.

                      FACTS AND PROCEDURAL HISTORY

      Access provides physical therapists and occupational therapists as temporary

employees in hospitals and nursing homes throughout the United States. As part of its

business, Access provides job placement opportunities to foreign nationals.

      Radhakrishnan, a trained physical therapist from India, moved to Canada in 1999

and became a Canadian citizen in 2003. In 2003, Radhakrishnan also came to the United

States as a foreign national on an H-4 dependent visa, which she obtained through her

husband who was working in California on an H-1B Visa (a Federal work visa for


                                            2
individuals working in a specialty occupation). To work as a therapist in the United States,

Radhakrishnan needed a physical therapy license for the state in which she was to work

and either a valid Federal work visa or an Employment Authorization Document (“EAD”).

In 2005, Radhakrishnan obtained a license to work as a physical therapist in Michigan.

        On April 23, 2006, Radhakrishnan contacted Access by email, expressing her

interest in obtaining employment as a physical therapist for Access. On May 5, 2006,

Radhakrishnan entered into a contract with Access (“the Contract”). Under the Contract,

Access stated its desire to sponsor Radhakrishnan to work in the United States for a “period

of not less than 18 months after Employee receives [her] work permit.” Appellant’s App.

at 14. To begin the process of obtaining Radhakrishnan’s EAD and green card (permanent

resident status), Access’s attorney, Felix Vinluan (“Vinluan”), filed the following

documents with the United States Citizenship and Immigration Services (“USCIS”) on

June 22, 2006: (1) Immigration Petition for Alien Worker on Form I-140; (2) Application

to Adjust to Permanent Resident Status on Form I-485; and (3) Application for

Employment Authorization on Form I-765.1 Joint Stipulated Ex. 4 at 1-3.2 A USCIS

Notice of Action, dated August 2, 2006, informed Vinluan and Radhakrishnan that the


        1
          A Green Card holder is a permanent resident of the United States who has permission to live and
work in the United States. http://www.uscis.gov/greencard (last visited Dec. 17, 2013). The steps to
become a permanent resident vary by category and depend on whether you live inside or outside the United
States. Id. Most individuals are sponsored by a family member or employer in the United States. Id. Other
individuals may become permanent residents through refugee status or other humanitarian programs. Id.
Access filed documents on Radhakrishnan’s behalf so that she could work for Access, and hopefully
become a permanent resident.
        2
         The Joint Stipulated Exhibits contain no internal numbering. For ease of reference, however, we
have included pinpoint citations that refer only to the page numbers as manually counted.


                                                   3
application for employment authorization (Form I-765) had been approved and that

Radhakrishnan would receive her EAD in a separate correspondence. Id. The notice stated

that Radhakrishnan was authorized to work in the United States “during the dates on the

card,” i.e., from July 28, 2006 to July 27, 2007.        Id.   Vinluan’s office informed

Radhakrishnan that, since the EAD was valid for only twelve months of the eighteen-month

Contract, Radhakrishnan should contact Vinluan ninety days before the EAD expired in

order to renew it. Tr. at 97.

       Radhakrishnan’s first assignment for Access commenced on August 29, 2006;

accordingly, the term of the Contract ended on February 29, 2008. In this assignment,

Radhakrishnan worked with Transitional Health Services in Fremont, Michigan; she

successfully completed her six-week obligation on October 6, 2006. Id. at 81.

       Radhakrishnan’s second assignment was with Eaton County Medical Care Facility

(“Eaton Care”) in Charlotte, Michigan. Pursuant to a contract (“Employer Contract”)

between Access and Medical Connections, Inc.—the company that oversaw the staffing

needs for Eaton Care—Access agreed that Radhakrishnan would work as a physical

therapist for a period of thirteen weeks, from January 23, 2007 through April 20, 2007. Tr.

at 81; Joint Stipulated Ex. 6 at 4. Radhakrishnan successfully completed this assignment

and, at the end of the thirteen-week assignment, Access consented to Radhakrishnan’s

request that the assignment with Eaton Care be renewed for an additional thirteen weeks—

her third assignment. Tr. at 81.




                                            4
          The details of the third assignment were set forth in Exhibit A-1 of the Employer

Contract, which provided that Radhakrishnan would work for thirteen weeks during a

sixteen-week period that ran from April 23, 2007 through August 10, 2007.3 As part of the

Employer Contract, three weeks in May were designated as pre-approved, unpaid leave

that Radhakrishnan was granted to attend a family wedding in India. Joint Stipulated Ex.

6 at 5.

          More than ninety days prior to the July 27, 2007 expiration of her EAD,

Radhakrishnan contacted Vinluan’s office to ensure that the renewal process of her EAD

was timely commenced. Around July 18, 2007, when Radhakrishnan had still not received

the renewed EAD, she contacted Vinluan to clarify her working status. Vinluan confirmed

that “working without a valid EAD” was “an illegal status.” Tr. at 83. On July 23, 2007,

Radhakrishnan sent an email to the Chief Operating Officer for Access, Harvinder Dhani

(“Dhani”), which stated:

          This is to reiterate that my current EAD expires on July 27, 2007 and I will
          not be able to continue working on the current contract after July 27 in an
          invalid EAD status. The lawyer at Vinluan’s office had clearly stated that
          working without a valid EAD is illegal and is a chance that some people are
          taking. With 2 RFEs4 already issued on my I140/485 case so far, I am not


          3
           Exhibit A-1 of the Employer Contract lists Radhakrishnan’s pre-approved days of unpaid leave
as May 4, 2007 through May 29, 2007—a period of about three-weeks plus the Memorial Day holiday.
Joint Stipulated Ex. 6 at 5. While the Employer Contract lists the end date of the third assignment as August
10, 2007, inexplicably, both parties note in their briefs that the end date was August 16, 2007. Appellant’s
Br. at 4; Appellee’s Br. at 3.

          An RFE—“Request For Evidence”—is a formal response from USCIS that is issued when
          4

insufficient or suspicious data is found in a pending petition for an immigration benefit. RFEs are
significant because, “[b]ased upon the response from the attorney or the petitioner, USCIS subsequently
makes a decision to adjudicate or deny the petition.”
http://www.visajourney.com/wiki/index.php/Request_for_Evidence (last visited Dec. 17, 2013).

                                                     5
       willing to take such a chance. The lawyer had advised to wait for interim
       EAD approval and has secured a USCIS inforpass appointment for it.

       I will be leaving Michigan on July 31 to attend the USCIS appointment on
       Aug[ust] 3 in California.

       I would like to state that I have been a hard-working employee of Access
       Therapies and I understand that this move is inconvenient for Access
       Therapies, but unfortunately this is a question of working on an illegal status
       (which the lawyer has confirmed) and so this is a step I am forced to take.
       As soon as I get my EAD renewal, I will promptly inform your office so that
       I can be assigned immediately and continue working on a legal status.

       I have only 10 days left on this contract and the client facility is already aware
       of the need to replace my position. If Access intends to send another
       Therapist as my replacement, I shall do my best to help him/her take over.

       As soon as I receive my interim EAD/renewed EAD card, I will inform your
       office so that Access Therapies can be able to find me a placement in
       California. (I am expecting my California license in a couple of weeks as
       well.

Joint Stipulated Ex. 8.     The record contains no evidence that anyone from Access

responded. On July 27, 2007, about two weeks before her third assignment was complete,

Radhakrishnan, still without a valid EAD, stopped working for Eaton Care.

       On August 3, 2007, Radhakrishnan attended an appointment at the USCIS office in

California to obtain an Interim EAD. Appellant’s App. at 64. Radhakrishnan was not

issued an Interim EAD at the appointment; instead, she was directed to wait for the pending

EAD renewal. While Radhakrishnan waited in California for news about the renewal, she

received word from Vinluan’s office that her Form I-485 application had been approved

on August 21, 2007, and that she had been granted permanent resident status.

Radhakrishnan later learned from the USCIS’s online system that her EAD renewal had


                                               6
been approved as of August 12, 2007; however, Radhakrishnan never received notice to

that effect from either USCIS or Vinluan. Tr. at 88. Under the authority of either the EAD

or her permanent resident status, Radhakrishnan was again entitled to work in any state for

which she held a valid physical therapist license, which at that point was only Michigan.

       On November 29, 2007, Access filed a Verified Complaint for Damages,

contending that Radhakrishnan had breached the Contract when she stopped work on July

27, 2007. Appellant’s App. at 9-17. More than a year later, Radhakrishnan received an

email from Access on January 30, 2009, stating, “[W]e will be withdrawing your I-140

petition as you are not working with us anymore.” Joint Stipulated Ex. 10. A CCS entry

dated March 21, 2009 reveals that an alias summons was not served on the November 2007

complaint until March 2009. Appellant’s App. at 2. Radhakrishnan filed her Answer and

her Counterclaim on June 1, 2009.         Id. at 18-21.     Access filed its Answer to

Defendant/Counter-Plaintiff’s Counterclaim on July 21, 2009. Id. at 22-25. A bench trial

was held on December 17, 2012, after which Radhakrishnan filed a Motion for Special

Findings of Fact and Conclusions of Law. On December 20, 2012, the trial court entered

Findings of Fact, Conclusions of Law and Judgment Entry in Favor of Plaintiff, concluding

that Radhakrishnan had breached the Contract, and Access was entitled to recover damages

in the amount of $32,237.60, plus costs and interest. Radhakrishnan filed her Motion to

Correct Error on January 18, 2013, which the trial court denied on January 31, 2013.

Radhakrishnan now appeals. Additional facts will be added where necessary.




                                            7
                            DISCUSSION AND DECISION

                                  I. Breach of Contract

       Because the trial court entered findings of fact and conclusions thereon pursuant to

Indiana Trial Rule 52(A), our standard of review is two-tiered. First, we determine whether

the evidence supports the findings, and second, whether the findings support the judgment.

Briles v. Wausau Ins. Co., 858 N.E.2d 208, 212 (Ind. Ct. App. 2006). We will not disturb

the trial court’s findings or judgment unless they are clearly erroneous. Walsh & Kelly,

Inc. v. Int’l Contractors, Inc., 943 N.E.2d 394, 398 (Ind. Ct. App. 2011), trans. denied.

       Findings of fact are clearly erroneous when the record lacks any reasonable

inference from the evidence to support them. Briles, 858 N.E.2d at 212. A judgment is

clearly erroneous when a review of the record leaves us with a firm conviction that a

mistake has been made. Id. We will neither reweigh evidence nor judge the credibility of

witnesses, but will consider only the evidence favorable to the judgment and all reasonable

inferences to be drawn therefrom. Id. Although we defer to the trial court’s factual

findings, we evaluate questions of law de novo. McCauley v. Harris, 928 N.E.2d 309, 313

(Ind. Ct. App. 2010), trans. denied. “Construction of a written contract presents a pure

question of law; accordingly, our review is de novo.” Gold v. Cedarview Mgmt. Corp.,

950 N.E.2d 739, 742 (Ind. Ct. App. 2011) (citing Harrison v. Thomas, 761 N.E.2d 816,

818 (Ind. 2002)).

       In its complaint, Access alleged that Radhakrishnan “materially breached the

[C]ontract by, among other things, failing and refusing to work for the agreed duration of


                                             8
eighteen (18) months.” Appellant’s App. at 10. Following a bench trial, the trial court

made the following pertinent conclusions:

       3.      This is an action for breach of contract. To support a claim for breach
       of contract, the plaintiff must prove by a preponderance of the evidence that
       (1) a contract existed, (2) the defendant breached the contract, and (3) the
       plaintiff suffered damage as a result of the defendant’s breach. Duncan v.
       Greater Brownsburg Chamber of Commerce, Inc., 967 N.E.2d 55, 57 (Ind.
       Ct. App. 2012)[, trans. denied].

       4.    The agreement dated May 5, 2006 is a valid and enforceable contract
       between Plaintiff, Access Therapies, Inc., on the one hand, and Defendant,
       Smita Radhakrishnan, on the other (the “Contract”).

       5.     The Contract required Defendant to work for Access as a physical
       therapist for a period of 18 months beginning upon the start of work.

       6.    In exchange, the Contract required Access to provide Defendant with
       assignments, pay her for the work she performed, and provide a housing
       allowance while Defendant was on assignment.

       7.    Because Defendant commenced work for Access on August 29, 2006,
       Defendant was contractually obligated to work through February 29, 2008.

       8.    When Defendant stopped working on July 27, 2007, Defendant
       breached her Contract with Access.

       9.    It was Defendant’s obligation to ensure that her EAD renewal
       paperwork was timely submitted so she could continue working on her
       Contract.

       10.    Accordingly, the Defendant’s breach of the Contract was unexcused.

Appellant’s App. at 66-67.

       On appeal, Radhakrishnan agrees that the Contract was “a valid and enforceable

contract between [herself] and Access Therapies.” Tr. at 80. She also agrees that “the term

of the agreement was for eighteen (18) months beginning on the start of work,” which


                                             9
meant that the Contract ran from August 29, 2006 to February 29, 2008. Id. at 80-81.

Radhakrishnan, however, disagrees with the trial court’s conclusion that she breached the

Contract, contending, instead, that to continue working without valid federal working

papers would have been “unlawful and put her at ultimate risk of deportation,” and that it

was Access’s attorney who was responsible for obtaining and maintaining the work visa.

Appellant’s Br. at 15.     Additionally, she contends that Access prevented her from

completing the Contract when it only offered her jobs in California, a state Access knew

she was not licensed to work in.

       Access drafted the Contract, which was an agreement between a national company

and a foreign national who was not represented by an attorney. All parties agree that

Radhakrishnan would not have been legally allowed to work in the United States without

a green card or a working visa. Therefore, an integral provision of the Contract was the

manner by which Radhakrishnan, a foreign national, would obtain the proper

documentation to be authorized to work for Access in the United States. In accordance

with the rules of contract interpretation, any ambiguity in the contract is construed against

the party who drafted it. Time Warner Entm’t Co., L.P. v. Whiteman, 802 N.E.2d 886, 892

(Ind. 2004).

       Here, the body of the Contract contained no terms addressing the key issue of whose

responsibility it was to obtain and maintain proper documentation for Radhakrishnan.

While recitals do not ordinarily form a part of the agreement, they shed light on the

intention of the parties and may be referred to “in determining the intent of the parties


                                             10
where its operative parts are ambiguous.” Ohio Valley Gas, Inc. v. Blackburn, 445 N.E.2d

1378, 1383 (Ind. Ct. App. 1983). Lacking guidance from the body of the Contract, we turn

to the Recitals.

       The Recitals of the Contract provided as follows:

       Employee is a foreign national who has immigrated to the United States and
       wishes to be employed as a professional Physical Therapist with Employer.
       In order to work in the United States as a PT, Employee must have a valid
       Employment–based Visa. Employer shall sponsor the Employee for an
       Employment-based Visa with USCIS, as well as employment with
       Employer.

       Employer is desirous of hiring Employee as a full time [e]mployee to work
       in Employer’s Client facilities as a PT [physical therapist] for a period of not
       less than 18 MONTHS after Employee receives his/her work permit. In order
       to help the Employee to accomplish those goals, Employer will complete and
       submit to the USCIS the Employee’s petition paperwork (I-140 Petition) and
       other necessary documents, employ Employee, and for this and other
       consideration, receipt of which is hereby acknowledged, Employee hereby
       agrees to these additional terms and conditions of [e]mployment.

Appellant’s App. at 14. The above language conveys that, while Radhakrishnan wished to

work for Access, it was Access who wanted to hire Radhakrishnan as a full time employee

for a period of not less than eighteen months after Radhakrishnan received her work permit.

The Recitals continued that, in order to help Radhakrishnan accomplish the goal of working

for Access for eighteen months, “Employer will complete and submit to the USCIS the

Employee’s petition paperwork (I-140 Petition) and other necessary documents . . . .” Id.

       Access acknowledges that it agreed to arrange for the initial working papers. As

such, on June 22, 2006, Access’s attorney, Vinluan, filed with the USCIS:                 (1) an

Immigration Petition for Alien Worker on Form I-140; (2) an Application to Adjust to


                                             11
Permanent Resident Status on Form I-485; and (3) an Application for Employment

Authorization on Form I-765. Joint Stipulated Ex. 4 at 1-3. The parties disagree, however,

regarding whose responsibility it was to renew the documents required to enable

Radhakrishnan to legally work.

       Radhakrishnan contends that she provided Vinluan with the appropriate information

in a timely fashion. Access agrees that it put Radhakrishnan in touch with Vinluan to renew

her working papers, but, attempting to distance itself from Vinluan, Access contends that

Vinluan was not working on Access’s behalf. We are not persuaded. During the trial,

Dhani himself admitted that Vinluan was Access’s attorney when he made the following

statements:

       [Defense Attorney]: Okay. . . . [W]ith regard to the defendant and other
             persons in her position, was [Vinluan] acting for the business when he
             did the things he did for them?
       [Dhani]: Just like any attorney would do that you know he works as an
             outside attorney for us you know we would pay for his fee for his
             work.
       [Defense Attorney]: For the business?
       [Dhani]: Yes.
       [Defense Attorney]: Okay. Now, he’s operating for the business and did you
             then consider him to be your attorney?
       [Dhani]: . . . [I]f we are paying his fee I’m hoping that he’s our attorney.

Tr. at 47.

       Here, the Contract does not specify whose obligation it was to renew the EAD;

however, the Recitals state, “Employer will complete and submit to the USCIS the

Employee’s petition paperwork (I-140 Petition) and other necessary documents.”

Appellant’s App. at 14. We find that the evidence does not support the trial court’s


                                            12
conclusion that it was Radhakrishnan’s obligation to ensure that her EAD renewal

paperwork was timely submitted so she could continue working on her Contract.”

Appellant’s App. at 67. Interpreting the terms of the Contract against the drafter, as we

must, we conclude that the obligation to ensure the timely renewal of the EAD fell to

Access as a precondition to Radhakrishnan’s continued employment. Because it was

illegal for Radhakrishnan to work without a renewed EAD, we find that, Radhakrishnan

did not breach the contract when she refused to work from July 27 through the time she

learned that she could, again, legally work in the United States.

       That leaves the question of whether Radhakrishnan breached the Contract at any

time after July 27, 2007 but before Access filed its complaint in November 2007. On

August 8, 2007, prior to Radhakrishnan having obtained her working papers, Access

Recruiter Suresh Kammath (“Kammath”) emailed Radhakrishnan saying, “Please let me

know about your license in CA. I have a couple of openings there.” Joint Stipulated Ex.

9. The next day, Radhakrishnan responded, “I have applied but haven’t received my CA

license yet. The process usually takes a few weeks if it goes smoothly. Once I receive it,

I will inform you promptly.”      Id.   On October 16, 2007, Kammath again emailed

Radhakrishnan, saying, “Any updates on your CA license?” Id. Radhakrishnan responded

the next day, “I haven’t received the license yet. There were some further requirements

they had, which I am in the process of submitting.” Id. In response to a telephone call

from Access employee Advhi Jain (“Jain”), Radhakrishnan emailed him on November 13,

2007 to say that she was awaiting her California license, but that she would inform Access


                                             13
“once [she] received it.” Id. Jain responded, “[P]lease keep us updated so that we could

have something in hand for you.” Id. In the emails, Access did not offer Radhakrishnan

any positions in Michigan. Between July 27, 2007, the last day Radhakrishnan worked for

Eaton Care, and February 29, 2008—the end of the Contract—Radhakrishnan did not

receive any pay nor was she provided any housing or expenses. Access filed its breach of

contract action on November 29, 2007, thus terminating the Contract.

        Access knew that Radhakrishnan was awaiting her California license. It appeared

to be taking longer than expected, and yet, Access voiced no concerns nor did it register

any complaints.5 Pursuant to the Contract, it was not Radhakrishnan’s responsibility to

obtain work; instead, Access was the one who contracted with care centers to provide them

with Radhakrishnan’s physical therapy services. Furthermore, Radhakrishnan could not

have known that her lack of work was being deemed to be a breach of contract. Under the

Contract, Radhakrishnan was not obligated to work each week during the eighteen months.

In fact, Radhakrishnan was idle for fifteen weeks between the end of her first assignment

and the start of her second even though she made efforts to be assigned. 6 Based on this

evidence, we cannot say that Radhakrishnan breached her Contract with Access.



        5
         Radhakrishnan’s California physical therapist license was not approved until September 8, 2008,
about seven months after Radhakrishnan’s February 29, 2008 obligation under the Contract would have
expired.
        6
          On October 31, 2006, Radhakrishnan both called and sent an email to Access Recruiter Kammath,
asking him about a position in Ann Arbor, Michigan, which Kammath had spoken to her about. No
assignment arose from this inquiry. On November 21, 2006, Radhakrishnan sent an email to Kammath to
alert him about a thirteen-week assignment in a skilled nursing facility in Three Rivers Michigan. Again,
no assignment came of this lead. Access did not offer Radhakrishnan another assignment until January 23,
2007—more than fifteen weeks after she had completed her first. Joint Stipulated Ex. 7.

                                                   14
Therefore, we reverse the trial court’s award of damages in the amount of $32,237.60 plus

costs and remand for action consistent with this opinion.

                                      II. Counterclaim

       Radhakrishnan filed a counterclaim against Access seeking costs and attorney fees.

Radhakrishnan contends that the trial court erred in dismissing her counterclaim for lack

of evidence. In essence, Radhakrishnan contends that the trial court abused its discretion

in denying her request for attorney fees and costs because Access’s suit was frivolous. We

find that the trial court did not abuse its discretion.

       Radhakrishnan maintained that Access’s complaint contained averments that were

known to be untrue and, as such, the claim was frivolous under Indiana Code section 34-

52-1-1. Specifically, Radhakrishnan maintained that the following statements were untrue:

(1) that Access paid for Radhakrishnan’s certification as a physical therapist; (2) that

Access paid for Radhakrishnan’s license in Michigan; (3) that Radhakrishnan immigrated

to the United States seeking employment opportunities; (4) that Radhakrishnan refused to

work; and (5) that the cause of action against Radhakrishnan would involve more than

$10,000.    Appellant’s App. at 20-21.        The trial court determined that because the

counterclaim was “asserted in such general terms,” evidence pertaining to the counterclaim

would be heard and considered throughout the trial. Tr. at 17.

       At the close of trial, the trial court dismissed the counterclaim and made the

following findings:

       Okay. The Court is going to find for the plaintiff and against the defendant on
       the defendant’s counterclaim. There’s literally been no evidence presented by

                                               15
       the defendant in support of the counterclaim. Now, I understand there’s been
       responses by the defendant to plaintiff’s allegations. Understand that perfectly,
       but the defendant would have the burden of proof on her allegation that, and
       I’m reading from her counterclaim that the claims are frivolous, unreasonable,
       groundless, and made in bad faith and I have no evidence to support that
       allegation.

Id. at 110. As such, the trial court effectively denied Radhakrishnan’s request for attorney

fees and costs.

       “‘The trial court’s decision to grant or to deny attorney[] fees will not be disturbed

absent an abuse of discretion.” Dunson v. Dunson, 769 N.E.2d 1120, 1127 (Ind. Ct. App.

2002) (quoting Kovenock v. Mallus, 660 N.E.2d 638, 643 (Ind. Ct. App. 1996), trans.

denied). The trial court found that no evidence was presented to support Radhakrishnan’s

counterclaim. We agree. Radhakrishnan’s claims—questioning the veracity of statements

regarding who paid for licenses and fees and whether Radhakrishnan immigrated seeking

employment—were of no moment in the determination of whether Radhakrishnan

breached the Contract. Additionally, the question of whether Radhakrishnan refused to

work, and if so what damages should be imposed, were questions properly before the trial

court on the breach of contract claim. The trial court did not abuse its discretion in

dismissing Radhakrishnan’s counterclaim requesting attorney fees and costs.

       Affirmed in part, reversed in part, and remanded with instructions.

RILEY, J., and ROBB, J., concur.




                                              16
