MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Mar 15 2017, 5:51 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 APPELLEES
Molly E. Briles                                          Yvette M. LaPlante
Ziemer, Stayman, Weitzel &                               Keating & LaPlante, LLP
Shoulders, LLP                                           Evansville, Indiana
Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry W. Hollerbach and                                  March 15, 2017
Jerri A. Hollerbach,                                     Court of Appeals Case No.
Appellants-Defendants,                                   82A01-1609-PL-2289
                                                         Appeal from the Vanderburgh
        v.                                               Superior Court
                                                         The Honorable Leslie C. Shively,
Kerri English and                                        Judge
Steven English,                                          Trial Court Cause No.
Appellees-Plaintiffs.                                    82D01-1411-PL-5378




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 1 of 10
                               Case Summary and Issues
[1]   Steven and Kerri English filed a complaint alleging Larry Hollerbach, Jr. and

      Jerri Hollerbach (the “Hollerbachs”) caused damage to their private lane.

      During the pendency of the case, the Hollerbachs filed a motion to compel

      discovery, which the trial court granted without a hearing. After discovery was

      completed, the Hollerbachs filed a motion for summary judgment in which they

      argued, among other things, that the Englishes’ claim was barred by the statute

      of limitations and they were entitled to attorney’s fees. The trial court granted

      in part and denied in part their motion for summary judgment, specifically

      declining to award attorney’s fees. The Hollerbachs now appeal, raising two

      issues for our review: (1) whether the trial court erred in failing to hold a

      hearing on their request for attorney’s fees pursuant to Indiana Code section 34-

      52-1-1, and (2) whether the trial court erred in failing to hold a hearing pursuant

      to Indiana Rule of Trial Procedure 37(A)(4). Concluding the trial court did not

      err in failing to hold a hearing on either issue, we affirm.



                            Facts and Procedural History
[2]   The Englishes live on Heidt Lane in Evansville, Indiana. At the end of Heidt

      Lane, the Hollerbachs reside with their parents Larry Hollerbach, Sr. and




      Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 2 of 10
      Judith Hollerbach.1 Larry Hollerbach, Jr., Jerri Hollerbach, and Kerri English

      are siblings.


[3]   Heidt Lane is a private drive extending west off a publicly maintained roadway.

      Prior to 2003, the lane was entirely gravel. In 2003, the Englishes and another

      neighbor hired a contractor to pave Heidt Lane from the publicly maintained

      roadway to the Englishes’ home. They did not pave beyond the Englishes’

      home and the portion of Heidt Lane extending to the Hollerbachs’ residence

      remained a gravel road.


[4]   In November of 2014, the Englishes filed a complaint alleging the Hollerbachs

      caused damage to the paved portion of Heidt Lane with their “continued use

      and transportation of heavy equipment on the road surface of Heidt Lane.”

      Appellants’ Appendix, Volume 2 at 18. On December 19, 2014, the

      Hollerbachs filed their answer denying the allegations in the complaint and

      seeking recovery of their costs and attorney’s fees pursuant to Indiana Code

      section 34-52-1-1. On September 30, 2015, counsel for the Hollerbachs sent a

      letter to the Englishes’ attorney informing him of their belief that the lawsuit

      was frivolous and pursued in bad faith.


[5]   On January 19, 2016, the Hollerbachs served interrogatories and requests for

      production of documents on the Englishes, to which they received

      unsatisfactory responses. For example, on February 9, 2016, the Englishes



      1
          Larry Hollerbach, Sr. and Judith Hollerbach are not parties to this lawsuit.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 3 of 10
      submitted their answers to the Hollerbachs’ interrogatories, but their responses

      were unsigned and unverified. They did not provide any documents in

      response to the Hollerbachs’ request for production of documents. On March

      18, 2016, counsel for the Englishes attempted to provide some documents

      through an online dropbox; however, counsel for the Hollerbachs could not

      access the documents. On April 13, 2016, the Hollerbachs again advised the

      Englishes of the deficiencies in their discovery responses.


[6]   On May 25, 2016, the Hollerbachs filed a motion to compel the requested

      discovery from the Englishes. That same day, the trial court granted the

      Hollerbachs’ motion to compel and ordered all outstanding discovery to be

      completed by June 3, 2016. The trial court did not grant the Hollerbachs

      attorney’s fees or costs incurred from the discovery dispute and did not schedule

      a hearing on the matter.


[7]   On June 17, 2016, the Hollerbachs filed their motion for summary judgment

      arguing, among other things, the Englishes’ claim was barred by the statute of

      limitations and the Hollerbachs were entitled to attorney’s fees and costs

      pursuant to Indiana Code section 34-52-1-1. On August 8, 2016, the Englishes

      filed their response to the Hollerbachs’ motion for summary judgment.

      Following an attorney conference on August 30, 2016, the trial court granted in

      part and denied in part the Hollerbachs’ motion for summary judgment. The

      trial court did not issue a written order but the entry in the Chronological Case

      Summary (“CCS”) notes the trial court “grants [the Hollerbachs’] motion for



      Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 4 of 10
       summary judgment and denies [the Hollerbachs’] request for attorney fees.”

       Appellants’ App., Vol. 2 at 7. The Hollerbachs now appeal.



                                  Discussion and Decision
                            I. Indiana Code section 34-52-1-1
[8]    The Hollerbachs contend the trial court erred in failing to hold a separate

       hearing on their demand for attorney’s fees pursuant to Indiana Code section

       34-52-1-1.


[9]    Indiana Code section 34-52-1-1(b) states:


               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.



       Simply put, this statute does not require the trial court to hold a hearing and we

       decline to find the trial court erred in not scheduling a separate hearing on

       attorney’s fees.


[10]   The Hollerbachs also assert the trial court erred in failing to hold a hearing

       because the “Englishes never filed a motion for summary judgment on the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 5 of 10
       Hollerbachs’ counterclaim [for attorney’s fees].” Amended Brief of Appellants

       at 21. Therefore, they assert they were entitled to present evidence in support of

       their counterclaim for attorney’s fees and expenses.


[11]   We address this argument briefly. In their answer to the Englishes’ complaint,

       the Hollerbachs requested the trial court award costs and attorney’s fees

       pursuant to Indiana Code section 34-52-1-1. When they filed their motion for

       summary judgment, they included their request for attorney’s fees and argued

       the Englishes’ claim was frivolous. It was the Hollerbachs’ decision to request

       that the trial court address the issue of attorney’s fees at the summary judgment

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

       2012) (noting that entertaining petitions for attorney’s fees post-judgment is

       “virtually the norm.”).2 Following an attorney conference, the trial court fully

       ruled on their motion for summary judgment, granting it in part and denying it

       in part. The trial court specifically noted in the CCS that it denied their request

       for attorney’s fees. Therefore, the trial court did not grant summary judgment

       on “some, but not all, of the arguments made as part of the Hollerbachs’




       2
         The Hollerbachs also argue because they requested a hearing on the issue of attorney’s fees in their motion
       for summary judgment, the trial court was required to grant them a hearing. See Ind. Trial Rule 56(C)
       (stating when a party requests a hearing on a motion for summary judgment within ten days after the
       response was filed, the court shall hold a hearing). However, the Hollerbachs’ motion states the
       “[Hollerbachs] are entitled to an award of attorneys’ fees per Indiana Code section 34-52-1-1 and their costs
       in defending this action in an amount to be determined upon further hearing.” Appellants’ App., Vol. 3 at 13
       (emphasis added). By its plain language, the Hollerbachs’ motion requested a hearing on the amount of fees;
       but the trial court must still make a threshold determination as to whether they were entitled to them.
       Moreover, to the extent the Hollerbachs argue the issue of attorney’s fees was not “ripe for consideration” at
       the summary judgment hearing, Reply Br. of Appellants at 7, we note that while the amount of fees may not
       have been ripe, whether they were entitled to them was.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017             Page 6 of 10
       motion for summary judgment[,]” and it did not err in failing to hold a separate

       hearing on the Hollerbachs’ request for attorney’s fees. Reply Brief of

       Appellants at 9.3


                      II. Indiana Rule of Trial Procedure 37(A)
[12]   The Hollerbachs also argue the trial court erred in failing to hold a hearing after

       granting their motion to compel discovery. Indiana Rule of Trial Procedure

       37(A)(4), states, in relevant part:




       3
         We remind the Hollerbachs’ counsel that Indiana Rule of Appellate Procedure 46(A)(4) requires the
       statement of issues to “concisely and particularly describe each issue presented for review.” Likewise,
       Indiana Rule of Appellate Procedure 46(A)(8)(a) requires the argument section contain “the contentions of
       the appellant on the issues presented.” (Emphasis added.). The Hollerbachs style their first issue as whether the
       “trial court err[ed] by failing to hold a hearing on the Hollerbachs’ demand for attorney fees . . . .” Amended
       Br. of Appellants at 4; see also id. at 15 (stating the issue as whether they “should have been afforded a hearing
       on their request for attorney fees”). We have addressed this concern and their statement of the issue does not
       request a separate review of whether the trial court abused its discretion in declining to award attorney’s fees.
       However, the argument section of the Hollerbachs’ brief asserts we should conduct a de novo review of the
       record and conclude the Hollerbachs are entitled to attorney’s fees because the Englishes continued to litigate
       a frivolous, unreasonable, or groundless claim.
       We reject the Hollerbachs’ argument for three reasons. First, the Hollerbachs have not properly asserted this
       issue in their statement of the issue. See Piatek v. Beale, 994 N.E.2d 1140, 1142 n.1 (Ind. Ct. App. 2013)
       (declining to address an issue because, among other errors, it was not properly referenced in the statement of
       the issues), trans. denied. Second, although the Hollerbachs assert de novo review is proper because the issue
       before the trial court was decided on a paper record, see Alexin, LLC v. Olympic Metals, LLC, 53 N.E.3d 1184,
       1193 (Ind. Ct. App. 2016), our familiar standard of review of a trial court’s decision to award or deny
       attorney’s fees also permits de novo review of the trial court’s legal conclusion a claim is or is not frivolous,
       groundless, or unreasonable, Wolfe v. Eagle Ridge Holding Co., LLC, 869 N.E.2d 521, 529-30 (Ind. Ct. App.
       2007) (applying de novo review to the trial court’s legal conclusion regarding frivolousness). Therefore, in
       this case, we would first review any findings of fact for clear error, review the trial court’s conclusions de
       novo, and then review the decision whether to award attorney’s fees and in what amount for an abuse of
       discretion. See id. at 529. Finally, the ultimate decision to award attorney’s fees is subject to the trial court’s
       discretion as the statute is written with the permissive word “may.” Ind. Code § 34-52-1-1(b). The use of the
       word “may” indicates a trial court is not required to act, but may do so within its discretion. Wolfe, 869
       N.E.2d at 529. In other words, the trial court could find the claim to be frivolous, unreasonable, or
       groundless and still properly decline to award attorney’s fees. Id. at 529-30. The Hollerbachs’ brief assumes
       a finding that a claim is frivolous, unreasonable, or groundless entitles them to attorney’s fees, and does not
       address how the trial court abused its discretion in declining to award them.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017                 Page 7 of 10
               If the motion is granted, the court shall, after opportunity for
               hearing, require the party or deponent whose conduct
               necessitated the motion or the party or attorney advising such
               conduct or both of them to pay to the moving party the
               reasonable expenses incurred in obtaining the order, including
               attorney’s fees, unless the court finds that the opposition to the
               motion was substantially justified or that other circumstances
               make an award of expenses unjust.

               If the motion is denied, the court shall, after opportunity for
               hearing, require the moving party or the attorney advising the
               motion or both of them to pay to the party or deponent who
               opposed the motion the reasonable expenses incurred in
               opposing the motion, including attorney’s fees, unless the court
               finds that the making of the motion was substantially justified or
               that other circumstances make an award of expenses unjust.


       Here, the Hollerbachs’ motion to compel clearly requested they be awarded

       attorney’s fees in conjunction with the motion. See Appellants’ App., Vol. 2 at

       10. However, based on the Hollerbachs’ phrasing of the issue and the remedy

       they seek (a hearing), it is clear the only issue before us on appeal is whether the

       trial court erred in failing to hold a hearing. We conclude it did not.


[13]   First, we think it incumbent upon a party to request a hearing if they desire one.

       See Gonzalez v. Evans, 15 N.E.3d 628, 640-41 (Ind. Ct. App. 2014) (holding a

       party waives its right to attorney’s fees by failing to request a hearing, submit

       attorney’s fees affidavits to the trial court, and alert the trial court to their

       entitlement to attorney’s fees), trans. denied. Nothing in the record indicates

       either party requested the trial court hold a hearing on this matter. Second, the

       purpose of the hearing is for the benefit of the party that loses the dispute over

       the motion to compel and to afford them the ability to demonstrate their


       Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 8 of 10
       “opposition to [or making of] the motion was substantially justified or that

       other circumstances make an award of expenses unjust.” Ind. Trial Rule

       37(A)(4); see also Huber v. Montgomery Cnty. Sheriff, 940 N.E.2d 1182, 1186-87

       (Ind. Ct. App. 2010) (reversing and remanding where the trial court awarded

       attorney’s fees but failed to provide the losing party with a hearing to determine

       whether their conduct was justified or that an award of expenses would be

       unjust); Drake v. Newman, 557 N.E.2d 1348, 1352 (Ind. Ct. App. 1990) (noting a

       court is to hold a hearing “to ascertain whether the non-moving party’s

       noncompliance with discovery was substantially justified or whether other

       circumstances would make the award of expenses unjust”) trans. denied. This

       conclusion is underscored by the fact that Trial Rule 37(A)(4) creates a

       presumption that attorney’s fees will be awarded to a party who successfully

       moves to compel discovery. See Gonzalez, 15 N.E.3d at 640. However, as noted

       above, the Hollerbachs do not appeal the trial court’s failure to award attorney’s

       fees. The issue presented was whether the trial court erred in failing to hold a

       hearing; our conclusion is that it did not.



                                               Conclusion
[14]   The trial court did not err in failing to hold a hearing pursuant to Indiana Code

       section 34-52-1-1 or Indiana Rule of Trial Procedure 37(A)(4). The judgment of

       the trial court is affirmed.


[15]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 9 of 10
Kirsch, J., and Barnes, J., concur.




Court of Appeals of Indiana | Memorandum Decision 82A01-1609-PL-2289 | March 15, 2017   Page 10 of 10
