MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Aug 20 2019, 6:33 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Daniel L. Lauer                                          Daniel J. Borgmann
Stucky, Lauer & Young, LLP                               Helmke Beams, LLP
Fort Wayne, Indiana                                      Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen Levendoski, Karen                                August 20, 2019
Levendoski, and Kathleen                                 Court of Appeals Case No.
(Jensema) Gross,                                         19A-PL-801
Appellants-Plaintiffs,                                   Appeal from the Allen Superior
                                                         Court
        v.                                               The Honorable Nancy E. Boyer,
                                                         Judge
Stanley Stevens,
Appellee-Defendant.                                      Trial Court Cause No.
                                                         02D01-1703-PL-119



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019                   Page 1 of 21
                                          Case Summary
[1]   Stanley Stevens and Sarah Levendoski purchased a residence (“Wood Moor”)

      together as tenants in common in 2001. They subsequently married but never

      converted their interests in Wood Moor to anything other than a tenancy in

      common. When Sarah died in 2008, she was survived by Stanley and three

      children from a prior relationship, Stephen Levendoski, Karen Levendoski, and

      Kathleen Gross (collectively, “the Levendoski Children”). Sometime after

      Sarah’s death, Stanley and the Levendoski Children entered into a Family

      Settlement Agreement (“the Agreement”), in which they agreed, inter alia, that

      each would receive 25% of certain settlement funds, Stanley would waive his

      entitlement to take against Sarah’s will and to seek reimbursement for payment

      of certain expenses and debts, and the Levendoski Children would waive any

      right that they might have had to claim any of Sarah’s property that was in

      Stanley’s possession.


[2]   On March 21, 2017, the Levendoski Children filed a petition for the partition

      and sale of Wood Moor. Finding that pursuant to the terms of the Agreement,

      the Levendoski Children had waived their right to claim Sarah’s interest in

      Wood Moor, the trial court granted summary judgment in favor of Stanley.

      We affirmed the trial court’s judgment on appeal. After our decision became

      certified, Stanley filed a request for attorney’s fees. Finding that the claims

      raised in the Levendoski Children’s partition petition were frivolous, the trial

      court granted Stanley’s request and ordered that Stanley was entitled to recover

      $21,905 in attorney’s fees and $126 in costs.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 2 of 21
[3]   The Levendoski Children contend on appeal that the trial court abused its

      discretion by granting Stanley’s request for attorney’s fees. Alternatively, they

      challenge the amount of the fees imposed. We affirm.



                            Facts and Procedural History
[4]   The underlying facts, as set forth in our decision issued in the parties’ first

      appeal, are as follows:


              Sarah died on March 30, 2008, from mesothelioma
              complications. She was survived by her husband, Stanley, and
              the Levendoski Children, who were the product of a prior
              marriage.

              In August 2001, Stanley and Sarah acquired title to a residence
              (Wood Moor) as tenants in common, as they had not yet married
              at that time. In June 2002, Stanley and Sarah were married, but
              never converted their interest in Wood Moor to something other
              than a tenancy in common.

              Sarah’s will was executed prior to her marriage to Stanley and
              named the Levendoski Children as her sole devisees and legatees.
              At the time of her death, her one-half undivided interest in Wood
              Moor passed to the Levendoski Children, but they were unaware
              that the property was owned as a tenancy in common so they did
              not realize that they held that interest. In May 2008, Stephen
              probated Sarah’s will but did not seek estate administration
              because her estate was less than the statutory threshold of
              $50,000. In his closing statement, Stephen stated that there were
              no debts, liens, or encumbrances against any of Sarah’s assets,
              but in fact, her funeral cost approximately $8,000 and she owed
              Home Depot approximately $16,000. Stanley paid these debts.
              If Sarah’s estate had covered those costs, it would have been
              worthless and the Levendoski Children would have taken
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 3 of 21
        nothing, as the value of Sarah’s remaining assets totaled
        approximately $15,000.

        Wood Moor remained vacant from the time of Sarah’s death to
        the spring of 2009, when Stanley began to rent it out through an
        agent. Stanley has continued to pay all obligations related to the
        property, including mortgage payments, real estate taxes,
        insurance, repairs, and utilities.

        Sometime after Sarah’s death, Stanley saw a television ad for a
        law firm handling class action mesothelioma claims. Stanley
        called the firm, which also communicated with Stephen.
        Ultimately, the family received a settlement totaling
        approximately $160,000.

        The Levendoski Children and Stanley opened a new estate for
        Sarah and, in November 2012, signed [the Agreement] regarding
        the distribution of the settlement. The Agreement provided that
        each person would receive 25% of the settlement proceeds. In
        exchange, Stanley waived any entitlement to reimbursement for
        his payment of Sarah’s funeral expenses and debts, as well as the
        rights to seek a statutory allowance, one-third interest in Sarah’s
        personal property, or to elect to take against her will. The
        Levendoski Children, in turn, “hereby forever waive any rights
        that they may have individually or collectively to claim any of
        the decedent’s property that is in the possession of the Surviving
        Spouse at the time of the execution of this Agreement.”
        Appellants’ App. Vol. III p. 75. The Agreement, which was
        approved by a trial court in November 2012, is explicitly
        intended “to compromise and settle all claims, controversies, and
        disputes existing between or among them in any way arising out
        of or related to the estate of the Decedent.” Id.

        At some point after the Agreement was executed, Stanley learned
        the significance of the term “tenants in common” when he
        attempted to remove Sarah’s name from the Wood Moor real
        estate tax bill. Subsequently, he contacted Stephen regarding
Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 4 of 21
        financial assistance for repairs to the property. Stephen declined
        and, on March 21, 2017, the Levendoski Children filed a petition
        for the partition and sale of Wood Moor.

        On September 8, 2017, Stanley filed a motion to dismiss and/or
        for summary judgment. The same day, the Levendoski Children
        filed a cross-motion for summary judgment. On September 29,
        2017, the Levendoski Children filed a motion to strike Stanley’s
        designated evidence and a motion to strike his defense of waiver
        as insufficient because it had not been pleaded in his original
        answer. On October 2, 2017, Stanley filed a motion for leave to
        file an amended answer.

        On October 11, 2017, the trial court held a hearing on all pending
        motions. At the beginning of the hearing, the trial court granted
        Stanley’s motion for leave to file an amended answer and denied
        the Levendoski Children’s motion to strike insufficient
        defense.… [T]he trial court then heard argument on the
        competing summary judgment motions.

        On January 18, 2018, the trial court entered summary judgment
        in favor of Stanley, summarily denied the Levendoski Children’s
        motion to strike Stanley’s designated evidence, and found all
        other pending motions were moot. In relevant part, the trial
        court found as follows:

                 ... As a result of the execution of the Family
                 Settlement Agreement, the Levendoskis have no
                 interest in [Wood Moor] and lack standing to bring
                 this action.

                 The Levendoskis contend they could not have given
                 up their claim in the one-half (1/2) interest of the
                 Wood Moor property because they did not know it
                 existed at the time they signed the Family Settlement
                 Agreement.


Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 5 of 21
                                                ***

                 The Warranty Deed vesting the Wood Moor
                 property in Stan[ley] and Sarah was duly recorded on
                 September 10, 2001. As such, it was notice to the
                 world of Stan[ley’s] and Sarah’s ownership interests.
                 The Deed was properly acknowledged and placed in
                 the record as required by statute.

                 The Levendoskis have not sought to set aside the
                 Family Settlement Agreement on the basis of fraud.
                 It appears that the Levendoskis desire to not only
                 retain all the benefits they reaped under the Family
                 Settlement Agreement, but also to now claim an
                 interest in the Wood Moor property. Apparently, the
                 Levendoskis desire to retain the original $15,751.26
                 estate assets, which they divided amongst the three
                 (3) of them. They do not recognize an obligation to
                 reimburse Stan[ley] for the funeral or debt payments
                 made by him....

                 The Family Settlement Agreement was approved by
                 the Court on November 27, 2012. It is a valid and
                 binding agreement, to which all of the “Heirs at
                 Law” compromised and settled any and all disputes
                 or claims. As a result, the Levendoskis have no
                 interest in the Wood Moor property. Since the
                 Levendoskis are not owners of an undivided one-half
                 (1/2) interest in [Wood Moor], they are not entitled
                 to a partition and/or sale of [Wood Moor].

        Appealed Order p. 9–11.


Levendoski v. Stevens, 18A-PL-360 *1–3 (Ind. Ct. App. June 26, 2018) (first

ellipsis and first and second brackets added, fifth set of brackets altered,

footnote omitted), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 6 of 21
[5]   On appeal, we concluded that the trial court did not err in granting summary

      judgment in favor of Stanley or in denying the Levendoski Children’s motion to

      strike. Id. at 3–6. Our opinion was certified on November 26, 2018, after we

      denied the Levendoski Children’s petition for rehearing and the Indiana

      Supreme Court denied transfer. Stanley filed a motion to assess costs and

      attorney’s fees on December 17, 2018. Following a hearing on Stanley’s

      motion, the trial court found that the claims raised in the Levendoski Children’s

      partition petition were frivolous and, as a result, Stanley was “entitled to

      recover $21,905.00 in attorney’s fees and $126.00 in costs resulting from

      defending against the [Levendoski Children’s] frivolous Petition for Partition

      and Sale of Real Estate.” Appellants’ App. Vol. II p. 35.



                                 Discussion and Decision
[6]   The Levendoski Children contend that the trial court abused its discretion in

      awarding Stanley attorney’s fees. Alternatively, they challenge the amount of

      fees imposed by the trial court.


[7]   The Levendoski Children spend a significant portion of their Appellants’ Brief

      rehashing the arguments that were found to be without merit in the prior

      appeal. To the extent that the Levendoski Children attempt to challenge the

      propriety of our prior conclusions, we reject these attempts and remind the

      Levendoski Children that they are estopped from re-litigating these arguments

      as our decision in the parties’ prior appeal is binding upon the parties as the law

      of the case. See Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct. App. 2018)

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 7 of 21
      (providing that issue preclusion, also known as collateral estoppel, bars the

      subsequent litigation of a fact or issue that was necessarily adjudicated in a

      former lawsuit if the same fact or issue is presented in the subsequent lawsuit).

      Thus, we will only consider their arguments insofar as they are relevant to their

      contention that the trial court abused its discretion in awarding Stanley

      attorney’s fees.


[8]   While litigants in Indiana are usually required to pay their own attorney’s fees,

      see Fackler v. Powell, 891 N.E.2d 1091, 1098 (Ind. Ct. App. 2008), trans. denied,

      the “general recovery rule” provides that


              In any civil action, the court may award attorney’s fees as part of
              the cost to the prevailing party, if the court finds that either party:
                     (1) brought the action or defense on a claim or
                     defense that is frivolous, unreasonable, or groundless;
                     (2) continued to litigate the action or defense after the
                     party’s claim or defense clearly became frivolous,
                     unreasonable, or groundless; or
                     (3) litigated the action in bad faith.


      Ind. Code § 34-52-1-1(b).


              A claim is “frivolous” if it is made primarily to harass or
              maliciously injure another; if counsel is unable to make a good
              faith and rational argument on the merits of the action; or if
              counsel is unable to support the action by a good faith and
              rational argument for extension, modification, or reversal of
              existing law. A claim is “unreasonable” if, based upon the
              totality of the circumstances, including the law and facts known
              at the time, no reasonable attorney would consider the claim
              justified or worthy of litigation. A claim is “groundless” if no


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 8 of 21
                facts exist which support the claim relied upon by the losing
                party.


       Am.’s Directories Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059, 1070–71

       (Ind. Ct. App. 2005) (internal citations omitted), trans. denied.


[9]    Generally, when reviewing an award of attorney fees under Indiana Code

       section 34-52-1-1, we first review the trial court’s findings of fact under a clearly

       erroneous standard and review the legal conclusions of the trial court de novo.

       Id. “We review the trial court’s decision to award attorney fees and the amount

       thereof under an abuse of discretion standard.” Id. “An abuse of discretion

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

       the facts and circumstances before the court, or if the court has misinterpreted

       the law.” Id.


                                   I. Award of Attorney’s Fees
[10]   The trial court awarded Stanley attorney’s fees after determining that the claims

       raised in the partition petition were frivolous. The Levendoski Children

       challenge this determination, claiming that a number of the trial court’s findings

       are clearly erroneous. They also claim that the record demonstrates that the

       claims raised in their partition petition were not frivolous, but rather were

       supported by valid, rational, and meritorious arguments.1




       1
         Despite the Levendoski Children’s continued classification of their claims as meritorious, both the trial
       court and this court previously found these arguments to be without merit.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019                     Page 9 of 21
                   A. Challenge to Trial Court’s Factual Findings2

[11]   The Levendoski Children challenge Findings 6, 12 through 20, 22, 24, 26, 27,

       29, 32, 35 through 39, 41, and 43 through 49, claiming that the challenged

       findings were either (1) not relevant to the question of whether Stanley was

       entitled to recover attorney’s fees, (2) disputed, or (3) based on inadmissible

       hearsay. They also challenge some of these findings by arguing that they

       include factual inferences beyond the statements made by the trial court.

       Review of the challenged findings reveals that many of these findings can be

       categorized as restatements of the facts set forth in our prior decision and the

       procedural history of this case. While some of these facts may not relate

       directly to whether the claims raised in the Levendoski Children’s partition

       petition were frivolous, they are helpful to the reader as they paint a full picture

       of the history of the parties’ litigation. We cannot say that it was clearly

       erroneous for the trial court to include such facts.


[12]   The Levendoski Children challenge Findings 18 and 19, which relate to a

       $122,000 home-equity line of credit opened by Stanley and Sarah, as being




       2
         The Levendoski Children moved to strike some of Stanley’s designated evidence, including portions of
       Stanley’s deposition, during the summary judgment proceedings. The trial court denied this motion, and we
       affirmed the trial court’s denial on appeal. Thus, to the extent that the Levendoski Children’s claims can be
       interpreted as a challenge to the admissibility of Stanley’s designated evidence, we will not reconsider these
       claims in the current appeal. See Freels, 94 N.E.3d at 342.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019                   Page 10 of 21
       based on hearsay statements contained in Stanley’s discovery deposition. 3

       However, Defendant’s Exhibit A, which was admitted without objection during

       the January 29, 2019 hearing on Stanley’s request for fees, contains a copy of

       the mortgage recorded in Allen County relating to the home-equity line of

       credit. Stanley’s designated evidence filed in support of his motion for

       summary judgment also appears to include documents relating to the line of

       credit which was recorded approximately nine months prior to Sarah’s death. 4

       Given that the record contains documentary support for these findings beyond

       the statements allegedly contained in Stanley’s deposition, we cannot say that

       these findings are clearly erroneous.


[13]   The Levendoski Children challenge Findings 37, 38, and 39, which outline the

       fact that partition was not likely to result in a financial recovery by them, as

       being based on unfounded assumptions and hearsay and as being irrelevant to

       whether the claims raised in the partition petition were frivolous. In support,

       they assert that the figures contained in these findings are based on Stanley’s

       counsel’s unfounded assumptions and hearsay statements contained in

       Stanley’s discovery deposition. However, these findings are supported by

       Defendant’s Exhibit A. Again, given that the record contains documentary




       3
         We are unable to review the exact statements made by Stanley or to examine whether he was questioned
       by the Levendoski Children’s counsel about the line of credit because the parties have failed to include either
       the relevant portions or a full copy of Stanley’s deposition in the record on appeal.
       4
         As was the case with Stanley’s deposition, the parties have also failed to include the other evidence
       designated by Stanley with respect to his motion for summary judgment in the record on appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019                    Page 11 of 21
       support for these findings beyond the statements allegedly contained in

       Stanley’s deposition, we cannot say that these findings are clearly erroneous.


[14]   The Levendoski Children also challenge Finding 24, which reads as follows:

       “On October 14, 2011, approximately two and one-half years after Sarah’s

       death, [Stanley] opened the Estate for the propose of distributing the settlement

       proceeds, approximately $156,000.00, obtained solely by [Stanley].”

       Appellants’ App. Vol. II pp. 23–24. We agree with the Levendoski Children

       that this finding contains numerous errors, namely that the Estate was opened

       approximately three and one-half years after Sarah’s death by Stanley and the

       Levendoski Children, both Stanley and Stephen were involved in the settlement

       proceedings, and there were discrepancies in the record as to the exact amount

       of the settlement proceeds. The errors contained in this finding, however, are

       immaterial to the question of whether the claims raised in the partition petition

       were frivolous and, as such, we conclude that the errors are harmless. See

       generally Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (An error is harmless

       when it results in no prejudice to the “substantial rights” of a party.).


         B. Whether the Petition was Supported by Good Faith and
                           Rational Arguments
[15]   Again, a claim is frivolous “if counsel is unable to make a good faith and

       rational argument on the merits of the action[.]” Am.’s Directories, 833 N.E.2d

       at 1070. The trial court determined that the claims raised in the partition

       petition were frivolous because the Levendoski Children were unable to make

       good faith and rational arguments on the merits of the action and, as a result,

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 12 of 21
       no reasonable attorney would consider the claims worthy of litigation. In

       making this determination, the trial court pointed to the fact that the

       Agreement, which was entered into by the parties and approved by the trial

       court approximately four and one-half years before the Levendoski Children

       filed the partition petition, clearly stated that the Levendoski Children “hereby

       forever waive any rights that they may have individually or collectively to claim

       any of the decedent’s property that is in the possession of the Surviving Spouse

       at the time of the execution of this Agreement” and “intend hereby to

       compromise and settle all claims, controversies, and disputes existing between

       or among them in any way arising out of or related to the estate of the

       Decedent.” Appellants’ App. Vol. II p. 184.


[16]   The Levendoski Children assert on appeal that the claims raised in their

       partition petition were not frivolous because there was a legitimate question as

       to whether the terms of the Agreement applied to Wood Moor. Specifically,

       they argue that legitimate questions existed as to whether (1) the scope of the

       Agreement covered Wood Moor, (2) there was a knowing waiver, and (3)

       Stanley had possession of Wood Moor.


                                            1. Scope of Agreement

[17]   The Levendoski Children argue that the Agreement did not apply to Sarah’s

       interest in Wood Moor because the Agreement only covered Sarah’s personal-

       property interests. As such, they argue that their partition petition does not

       qualify as a “claim” under the terms of the Agreement because the request to

       partition and sell the property was not related to Sarah’s estate. The trial court
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 13 of 21
       found, and we agree, that the Levendoski Children’s arguments in this regard

       were not raised in good faith or rational. The Agreement did not contain any

       limiting language that would suggest that it applied only to Sarah’s personal

       property and not her real property interests. In fact, the terms of the Agreement

       indicate the opposite, i.e., that it applied to any and all claims, known or

       unknown, that the Levendoski Children may have had in relation to Sarah’s

       estate. Further, Sarah’s estate undoubtedly included her interest in Wood

       Moor. See Ind. Code § 29-1-1-3(10) (providing that the term “estate” denotes

       the real and personal property of the decedent).


[18]   It appears that the Levendoski Children wish to enforce the portions of the

       Agreement limiting Stanley’s claims against Sarah’s estate but not the portions

       of the Agreement limiting their ability to file a claim relating to Sarah’s estate

       against Stanley. We have previously concluded that a party cannot selectively

       choose those rights they seek to enforce under an agreement and in turn

       disallow other provisions set forth in that same agreement. TWH, Inc. v.

       Binford, 898 N.E.2d 451, 453–54 (Ind. Ct. App. 2008). For these reasons, we

       conclude that the trial court acted within its discretion in finding the

       Levendoski Children’s argument relating to the scope of the Agreement to be

       frivolous.


                                             2. Knowing Waiver

[19]   The Levendoski Children also argue that there was a legitimate question as to

       whether they knowingly waived their claims relating to Wood Moor. We

       cannot agree, as it is clear that they had both constructive knowledge and
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 14 of 21
       constructive notice of their interest in Wood Moor at the time they executed the

       Agreement. Constructive knowledge is “[k]nowledge that one using reasonable

       care or diligence should have, and therefore that is attributed by law to a given

       person[.]” BLACK’S LAW DICTIONARY 1004 (10th ed. 2009). Constructive

       notice is “[n]otice arising by presumption of law from the existence of facts and

       circumstances that a party had a duty to take notice of, such as a registered

       deed[.]” BLACK’S LAW DICTIONARY 1227 (10th ed. 2009).


[20]   In the prior appeal, we found the Levendoski Children’s assertion that they did

       not knowingly waive their claims relating to Wood Moor to be without merit,

       stating,


               In this case, the Levendoski Children knew that Sarah and
               Stanley owned Wood Moor at the time of her death. They
               assumed, but did not verify, that Sarah and Stanley owned the
               property as joint tenants with right of survivorship. The title to
               the property was duly recorded. Therefore, had the Levendoski
               Children sought out that information, they would have easily
               procured it, learning in a timely fashion that Sarah’s interest as
               tenant in common had passed to them. It would be reasonable to
               conclude that at the time Stephen probated Sarah’s will, he
               should have undertaken this investigation. But he did not, nor
               did either of his siblings. In our view, had the Levendoski
               Children exercised reasonable care and diligence, they would
               have known of their interest in Wood Moor.


       Levendoski, 18A-PL-360 *6. We concluded that the trial court had properly

       determined that the Levendoski Children had constructive knowledge of their

       interest in the residence at the time they executed the Agreement. For these

       same reasons, we conclude that the Levendoski Children undoubtedly had both
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 15 of 21
       constructive knowledge and notice of their interest in Wood Moor at the time

       they executed the Agreement and they could not, in good faith, argue

       otherwise. The trial court, therefore, acted within its discretion in finding their

       arguments in this regard to be frivolous.


                                                   3. Possession

[21]   The Levendoski Children argue that the Agreement did not extinguish their

       interest in Wood Moor because Stanley was not in possession of Wood Moor at

       the time the Agreement was executed. Specifically, they claim that Stanley was

       not in possession of Wood Moor because he was not living in it at the time the

       Agreement was executed. Like the trial court, we conclude that this argument

       is irrational given that it is undisputed that Stanley, while not living in Wood

       Moor, has maintained control of it since he and Sarah bought it in 2001. The

       trial court found, and the record seems to indicate, that the parties operated as

       though Stanley was the sole owner of Wood Moor for the nine years preceding

       this litigation.5 Stanley has maintained the property; made necessary repairs;

       and paid the mortgage, insurance, and real estate taxes. He has rented the

       property, collecting the rent payments and paying utilities when said utilities

       were not covered by renters. Given the undisputed evidence demonstrating that

       Stanley has continuously maintained control over the property, we believe that

       the facts of this case support only one conclusion, i.e., that Stanley was in




       5
        This is evidenced by the fact that the Levendoski Children made no attempt to claim their interest in Wood
       Moor prior to filing the partition petition.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019                Page 16 of 21
       possession of the residence at all relevant times. The Levendoski Children

       cannot raise a good faith and rational claim otherwise. As such, we conclude

       that the trial court acted within its discretion in finding that the Levendoski

       Children’s arguments relating to possession to be frivolous.


                                          4. Additional Arguments

[22]   The Levendoski Children further argue that previous rulings of the trial court

       suggest that the trial court believed that they had a meritorious claim. In

       support, they point to the fact that the trial court denied two motions to dismiss

       filed by Stanley prior to granting his motion for summary judgment. One may

       infer from the record, however, that at the time it denied the motions to

       dismiss, the trial court was not yet aware of the Agreement. The trial court

       became aware of the Agreement when Stanley designated it as evidence in

       support of his motion for summary judgment. Once it became aware of the

       Agreement, the trial court ruled in favor of Stanley. The Indiana Rules of Trial

       Procedure provide limited instances when a court may dismiss a lawsuit. See

       T.R. 41. It is unclear from the record on appeal on what grounds the trial court

       denied Stanley’s motions to dismiss. Therefore, it would be improper to infer

       from these denials that the trial court believed that the Levendoski Children had

       a meritorious claim.


[23]   In addition, we are unconvinced by the Levendoski Children’s argument that

       the trial court’s determination that the claims raised in their partition petition

       were frivolous was “based upon the court’s wholesale acceptance of [Stanley’s]

       factual allegations.” Appellants’ Br. p. 29. The trial court’s determination is
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 17 of 21
       based on the established facts of this case and is supported by the documentary

       evidence submitted to the court, i.e., the Agreement.


[24]   The Levendoski Children also argue that Stanley waited for an unreasonable

       amount of time after the entry of summary judgment before seeking fees. The

       record reveals, however, that Stanley’s delay in filing his request for fees

       corresponds with the Levendoski Children’s appeal of the trial court’s entry of

       summary judgment. Stanley filed his request for fees approximately three

       weeks after the decision in the prior appeal became certified. We do not believe

       that it was unreasonable for Stanley to wait until the appeal had been resolved

       before filing his requests for fees, as it was not until then that he could be sure

       that he was the prevailing party.


                               II. Amount of Attorney’s Fees
[25]   We next turn our attention to the Levendoski Children’s alternative contention

       that the trial court abused its discretion in setting the amount of fees ordered.

       Again, “[a] trial court’s decision as to the amount of attorney’s fees is …

       reviewed under an abuse of discretion standard.” Daimler Chrysler Corp. v.

       Franklin, 814 N.E.2d 281, 287 (Ind. Ct. App. 2004). “An award of attorney’s

       fees will be reversed on appeal as excessive only where an abuse of the trial

       court’s discretion is apparent on the face of the record.” Id. “The trial court

       may look to the responsibility of the parties in incurring the attorney’s fees, and

       the trial judge has personal expertise that he or she may use when determining




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019   Page 18 of 21
       the reasonableness of the fees.” Nunn Law Office v. Rosenthal, 905 N.E.2d 513,

       516 (Ind. Ct. App. 2009).


[26]   In his petition requesting attorney’s fees, Stanley indicated that he had incurred

       attorney’s fees and litigation expenses in excess of $39,000 in defending the

       partition petition. Following a hearing on Stanley’s petition, the trial court

       awarded Stanley $21,905 in attorney’s fees and $126 in costs. The trial court’s

       award is supported by Stanley’s counsel’s affidavit outlining the work he has

       performed on Stanley’s case. The trial court broke the award down as follows:


                                                        Time                            Cost


        Pre-Suit Charges                                       5.6 hours                       $1260.00


        Commencement of                                      26.9 hours                        $6052.50
        Litigation through
        Deposition
        Motion for Summary                                   42.0 hours                        $9450.00
        Judgment and
        Mediation Charges
        Additional Mediation                                   6.3 hours                       $1417.50
        Charges

        Post-Mediation through                                 7.8 hours                       $1755.00
        Judgment Charges

        Motion to Assess                                       3.2 hours                        $720.00
        Attorney Fees and Cost
        Charges
        Hearings on the Motion                                 5.0 hours                       $1250.00
        to Assess Attorney Fees
        and Appointment of
        Commissioner Charges



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019          Page 19 of 21
        Total                                                                           $21,905.00




       Appellants’ App. Vol. II pp. 129–30.


                   A. Whether the Amount of Fees Were Punitive
[27]   In challenging the amount of the attorney’s fees award, the Levendoski

       Children argue that the award is punitive. Specifically, they argue that because

       Stanley initially only “sought an assessment of $12,285.00 representing fees

       incurred after [Stephen’s] deposition through the date of judgment on January

       18, 2018,” the trial court should not have awarded any fees incurred prior to

       Stephen’s deposition or post-judgment. Appellants’ Br. p. 37. In making this

       argument, however, the Levendoski Children acknowledge that the trial court

       “may have had the discretion” to assess fees for all charges incurred in relation

       to the litigation. Appellants’ Br. p. 37.


[28]   Given that the Levendoski Children had knowledge of the Agreement and that

       the Agreement was executed well before the Levendoski Children initiated the

       instant litigation, we cannot say that the trial court abused its discretion in

       awarding fees relating to the entirety of the trial court proceedings.

       Furthermore, to the extent that the Levendoski Children argue that they were

       penalized for pursuing the first appeal, we disagree, noting that the trial court’s

       order is clear that the award of attorney’s fees did not include any fees relating

       to the first appeal. The trial court did not abuse its discretion in ordering the

       Levendoski Children to pay $21,905 of Stanley’s attorney’s fees.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019    Page 20 of 21
                                    B. Ex-Parte Communications
[29]   In challenging the award of attorney’s fees, the Levendoski Children also allege

       that Stanley’s counsel engaged in improper ex-parte communications with the

       trial court. Stanley’s counsel acknowledges that he engaged in brief

       conversations with the trial court and court staff for the purpose of verifying the

       court’s email address and whether the court would accept multiple .pdf files

       containing Stanley’s designated materials.6 Stanley asserts that the remainder

       of the time at issue was spent collecting and arranging the designated materials

       in the manner requested by the trial court. Given that the trial court requested

       that the pleadings be both filed electronically and submitted via email, it is not

       unfathomable or improper that a party would need to verify this type of

       procedural information.


[30]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       6
         The record is unclear as to whether counsel spoke to the trial judge, of course the better practice would be
       to have all communications, even for procedural matters, be handled by court staff.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-801 | August 20, 2019                    Page 21 of 21
