MEMORANDUM DECISION
                                                               Aug 11 2015, 10:03 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Nicholas T. Otis                                        Tula Kavadias
Newby, Lewis, Kaminski, & Jones, LLP                    Kavadias & Associates, P.C.
LaPorte, Indiana                                        Crown Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Hanover Community School                                August 11, 2015
Corporation,                                            Court of Appeals Case No.
                                                        45A03-1410-PO-344
Appellant,
                                                        Appeal from the Lake Superior
         v.                                             Court
                                                        The Honorable John M. Sedia,
                                                        Judge
L. K.,
                                                        Cause No. 45D01-1407-PO-55
Appellee.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 1 of 13
[1]   Hanover Community School Corporation (“Hanover”) appeals from the trial

      court’s order awarding attorney fees in favor of L.K.1 The parties present

      several issues, which we consolidate and restate as whether the trial court

      abused its discretion in awarding attorney fees of $2,000 to L.K.2 We affirm in

      part and remand.


                                        Facts and Procedural History

[2]   On May 16, 2014, E.H., an employee of Hanover, was providing instruction

      to L.K.’s seven-year-old son, C.K., in L.K.’s home. As stated in a police

      report taken regarding the incident giving rise to this litigation (the “Police

      Report”), while E.H. was conducting class with C.K.,

               [C.K.] became very aggressive with [E.H.] and began throwing small
               items at her. When she took a small metal object away from him
               after he threw it at her and hit her with it, he went to the kitchen and
               grabbed a large butcher knife and verbally stated that he was going to
               kill her while waving it in the air.




      1
        In its order, the court observed that L.K. “averred that the filings in this matter may have an adverse affect
      [sic] on her immigration status” and “to the extent that any part of the record of this case that is not already
      deemed confidential pursuant to statute or rule, it would not be prejudicial to either party to order the entire
      file be made confidential and not available for public access,” and it ordered the entire case file sealed. See
      Ind. Administrative Rule 9(D)(1) (2014) (“A court record is accessible to the public except as provided in
      sections (G) and (H) of this rule, or as otherwise ordered sealed by the trial court.”) (subsequently amended
      by Order Amending Indiana Administrative Rules, No. 94S00-MS-57 (Sep. 8, 2014) (eff. Jan. 1, 2015)).
      On October 9, 2014, L.K. filed a Request to Maintain Exclusion of Confidential Documents/Information
      from Public Record, which this court granted on October 14, 2014. We accordingly refer to the Appellee
      by her initials in both the caption and body of this opinion.
      2
        We observe that on October 31, 2014, L.K. filed in the trial court a motion for appellate attorney fees. At
      that time, however, this court had already acquired jurisdiction because the notice of completion of clerk’s
      record had been filed on October 15, 2014. See Ind. Appellate Rule 8 (“The Court on Appeal acquires
      jurisdiction on the date the Notice of Completion of Clerk’s Record is noted in the Chronological Case
      Summary.”). The record does not reveal that L.K. filed a motion seeking appellate attorney fees in this
      court.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015               Page 2 of 13
              While [C.K.] waved around the knife and threatened [E.H.] the
              mother, [L.K.] (involved) stood off to the side speaking in Greek, but
              made no attempt to disarm [C.K.]. It is unknown what she said.
              After waving the knife and making the threat [C.K.] put the knife in
              the sink, at which time the Mother said “good choice”.
              It was at this time that [E.H.] became worried for her safety, gathered
              her belongings and left the residence.
              [E.H.] returned to the school to make an official statement to the
              Principal. Principal Snedden contacted the School Superintendent
              and Cedar Lake Police Department, to file an official report as part of
              their standard procedure. She also stated she was going to contact
              the Department of Child Services.


      Appellant’s Appendix at 15. The Police Report indicated that police later

      made contact with L.K., who “stated that [E.H.] provoked her son, and

      accused [E.H.] of taking things from her home in the past. [L.K.] also stated

      that she has been unhappy with [E.H.’s] treatment of [C.K.], and in her

      country she would be in her rights to kill her.” Id.


[3]   After receiving a copy of the Police Report, E.H. became upset and concerned

      for her safety. Based on E.H.’s concern, on May 29, 2014, Hanover filed a

      Petition of Employer for Injunction Prohibiting Violence or Threats of

      Violence Against an Employee (the “Petition”) against L.K. under the

      provisions of the Workplace Violence Restraining Orders Act (the

      “WVROA”) and attached the Police Report to the Petition. On the same day,

      the trial court entered an order to show cause and temporary restraining order

      and set the matter for hearing on June 26, 2014.


[4]   On June 25, 2014, L.K. filed a Motion for Change of Venue from Judge and

      in the Alternative for Transfer to Lake Superior Court, Domestic Relations

      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 3 of 13
      Division. As scheduled, the trial court held a hearing on June 26, 2014, after

      which it granted L.K.’s motion for change of venue from judge. The parties

      stipulated to the appointment of Judge Sedia, who scheduled a hearing on the

      Petition for July 22, 2014. On June 30, 2014, counsel for L.K. contacted

      counsel for Hanover, and requested that the Petition be dismissed. Counsel

      for Hanover refused.


[5]   On July 18, 2014, Hanover filed a motion to dismiss the Petition, which the

      trial court granted on July 21, 2014. On July 21, 2014, after Hanover’s motion

      to dismiss was granted, L.K. filed an objection to the court’s order of dismissal

      in which she sought sanctions and attorney fees, and, on July 23, 2014, the

      trial court scheduled a hearing on that motion for September 2, 2014.

      Hanover filed its response to L.K.’s objection to dismissal on July 23, 2014.

      On September 2, 2014, the trial court conducted a hearing on L.K.’s motion

      objecting to the order of dismissal, in which the parties agreed to summary

      proceedings, and at which L.K. submitted a fee affidavit of her counsel. On

      September 3, 2014, Hanover filed its response to L.K.’s request for sanctions

      and attorney fees. On September 4, 2014, the trial court entered its order

      requiring Hanover to pay L.K. attorney fees in the amount of $2,000 for fees

      incurred after the date of June 30, 2014, pursuant to Ind. Code § 34-52-1-

      1(b)(2), the general recovery rule. On November 18, 2014, the trial court

      granted Hanover’s motion to stay enforcement of the judgment pending

      appeal.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 4 of 13
                                                 Discussion

[6]   The issue is whether the trial court abused its discretion in awarding attorney

      fees to L.K. The court entered its award of attorney fees pursuant to Ind.

      Code § 34-52-1-1(b)(2), which provides that “[i]n 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 . . . continued to litigate the action or defense after

      the party’s claim or defense clearly became frivolous, unreasonable, or

      groundless . . . .” A claim or defense 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. Wagler v. West Boggs Sewer Dist., Inc.,

      980 N.E.2d 363, 383 (Ind. Ct. App. 2012), reh’g denied, trans. denied, cert.

      denied, 134 S. Ct. 952 (2014). A claim or defense 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. Id. A claim or defense is groundless if no facts exist which

      support the legal claim relied on and presented by the party. Id.


[7]   The trial court’s decision to award attorney fees under Ind. Code § 34-52-1-1 is

      subject to a multi-level review: the trial court’s findings of fact are reviewed

      under the clearly erroneous standard and legal conclusions regarding whether

      the litigant’s claim was frivolous, unreasonable, or groundless are reviewed de

      novo. GEICO Gen. Ins. Co v. Coyne, 7 N.E.3d 300, 305 (Ind. Ct. App. 2014)


      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 5 of 13
      (citing Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 843 (Ind. 2012)), trans. denied.

      Finally, the trial court’s decision to award attorney fees and any amount

      thereof is reviewed for an abuse of discretion. Id. A trial court abuses its

      discretion if its decision clearly contravenes the logic and effect of the facts and

      circumstances or if the trial court has misinterpreted the law. Id.


[8]   Hanover filed the Petition under the provisions of the WVROA, which is

      codified at Ind. Code §§ 34-26-6. Ind. Code § 34-26-6-6 governs the authority

      of an employer to file a petition under the WVROA and provides:

              An employer may seek a temporary restraining order or injunction
              on behalf of an employee to prohibit further violence or threats of
              violence by a person if:
                      (1) the employee has suffered unlawful violence or a credible
                      threat of violence from the person; and
                      (2) the unlawful violence has been carried out at the
                      employee’s place of work or the credible threat of violence can
                      reasonably be construed to be carried out at the employee’s
                      place of work by the person.


      Ind. Code § 34-26-6-7 governs the filing of a petition under the WVROA and

      provides:

              A plaintiff may obtain a temporary restraining order under section 6
              of this chapter by filing a petition for an injunction if the plaintiff:
                      (1) files an affidavit that shows, to the satisfaction of the court,
                      reasonable proof that an employee has suffered unlawful
                      violence or a credible threat of violence by the defendant; and
                      (2) demonstrates that great or irreparable harm has been
                      suffered by the employee or will be suffered by the employee.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 6 of 13
[9]   At the outset, we note that both parties make arguments regarding the facts

      the court weighed in reaching its decision. Hanover argues that there was an

      absence of admissible evidence entered supporting the trial court’s findings.

      As noted above, the September 2, 2014 hearing was conducted in summary

      fashion and the court based its ruling primarily on what was discussed at the

      hearing. Our review of the record reveals that Hanover did not object to the

      summary form of the proceedings. Rather, when asked by the court whether

      Hanover had a problem with proceeding summarily, Hanover’s counsel

      responded, “No, your Honor, that’s how I intended we would proceed.”

      Transcript at 20. Failure to make a contemporaneous objection before the

      trial court results in a waiver of the issue on appeal. Neese v. Kelley, 705

      N.E.2d 1047, 1050 (Ind. Ct. App. 1999) (holding that failure to make a

      contemporaneous objection to a court holding summary proceedings results in

      waiver of that issue upon appeal). Moreover, Hanover’s argument is

      unpersuasive based upon the invited error doctrine. See Countrymark Coop.,

      Inc. v. Hammes, 892 N.E.2d 683, 695 (Ind. Ct. App. 2008) (“A party may not

      take advantage of an error that he commits, invites, or which is the natural

      consequence of his own neglect or misconduct.”) (citing White v. State, 687

      N.E.2d. 178, 179 (Ind. 1997)), trans. denied. Because Hanover agreed to the

      summary proceedings, we conclude that any error made by the court in

      entering findings based upon the arguments heard at the September 2 hearing

      was invited error, which “is not subject to review by this court.” Id.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 7 of 13
[10]   Similarly, L.K. challenges the evidence discussed at the September 2, 2014

       hearing and used by the trial court in deciding whether an award of attorney

       fees was appropriate. Specifically, she alleges that it was error for the court to

       rely on the Police Report because it was not offered into evidence or

       authenticated. For the same reasons as discussed above, we conclude that

       L.K. has waived this challenge by failing to contemporaneously object to the

       court’s decision to proceed summarily or the court’s statement that it intended

       to use the Police Report in deciding whether the Petition was frivolous,

       unreasonable, or groundless, and that, waiver notwithstanding, the invited

       error doctrine precludes L.K.’s evidentiary challenge.


[11]   Next, Hanover argues the evidence does not support the findings, and, more

       specifically, challenges the findings in Paragraphs 8 and 10. In part, those

       Paragraphs provide:

               8. An examination of the Petition and attachments demonstrate to
               the Court that the only act that could be construed to be a credible
               threat of violence suffered by [E.H.] was [L.K.]’s son picking up a
               butcher knife and waving it at her. [L.K.]’s statement purportedly
               made to the police that: “. . . in her country she would be in her
               rights to kill her . . . .”, meaning [E.H.], cannot be construed to be a
               threat of violence to [E.H.], since it was not communicated to [E.H.]
               by [L.K.]. . . .
                                                    *****
               10. Here, Hanover was confronted with an employee who was quite
               justifiably upset at an incident in which she was confronted with a
               child holding a butcher knife in front of her. It cannot be said, under
               the totality of the circumstances, including the law and facts known
               at the time, for Hanover to seek a Workplace Violence Restraining
               Order was frivolous, unreasonable, or groundless: [E.H.] was
               employed [by] Hanover and engaged in the duties of her employment

       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 8 of 13
               at a workplace, albeit [L.K.]’s home, where she received a credible
               threat of violence. This was supported by her statement to the police.
               However, as time passed, [L.K.] hired counsel, who had
               conversations with the attorney and staff of Hanover about the
               incident. It soon became obvious that it was the child, and not
               [L.K.], who waved the butcher knife at [E.H.], and that [L.K.]’s
               statement to the police, even if not misinterpreted, was not directed at
               [E.H.] as a threat. It was at this point that Hanover’s claim became
               unsupportable on its merits by any good faith and rational argument.
               From an examination of the timeline of events, as illustrated by
               [L.K.]’s counsel’s itemized billing, the time that Hanover’s action
               became unsupportable on its merits by any good faith and rational
               argument was after June 30, 2014, when [L.K.]’s counsel asked
               Hanover’s counsel for the second time to dismiss the action, which
               Hanover ultimately did nearly a month later, during which time
               [L.K.][] incurred substantial attorney fee expenses necessary to
               defend the case.


       Appellant’s Appendix at 61-62.


[12]   The record reveals that, in the Petition, Hanover alleged that “[L.K.] told

       police officers that [E.H.]’s conduct would result in [E.H.]’s death in [L.K.]’s

       home country.” Id. at 10. This allegation in the Petition, on the basis of

       which the trial court granted a temporary restraining order, does not align

       exactly with the statements contained within the Police Report considered by

       the court in issuing its September 4, 2014 order. As written in the Police

       Report, L.K. stated that she would be “in [her] rights to kill [E.H.]” if she were

       in her home country, id. at 16, which L.K. asserts was written into the police

       report due to the police officer’s “difficulty understanding her speak English




       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 9 of 13
       with a Greek accent.”3 Transcript at 23. On at least three occasions, counsel

       for L.K. spoke to Hanover’s counsel and “explained to him all of the facts and

       circumstances of the case” and asked him to dismiss the Petition on the basis

       that L.K.’s statement to the police was not a credible threat of violence. Id. at

       29. Based upon the record, we cannot say that it was clearly erroneous for the

       court to find that the statement made by L.K. was not directed at E.H. as a

       threat, and that Hanover became aware of this no later than June 30, 2014

       when L.K.’s counsel conversed with Hanover’s counsel for a second time

       explaining the circumstances of the case and requesting that the Petition be

       dismissed.


[13]   We next turn to whether the trial court erred in concluding that Hanover’s

       claim became frivolous, unreasonable, or groundless after June 30, 2014,

       which conclusion we review de novo. As noted above, the WVROA requires

       that the employee for whom the restraining order is sought must have suffered

       unlawful violence or a credible threat of violence. I.C. § 34-26-6-6(1).

       Hanover asserts that the statement made by L.K. to the police constituted a

       credible threat of violence sufficient to support a WVROA petition. The trial

       court concluded that “under the totality of the circumstances, including the

       law and facts known at the time,” that Hanover’s initial pursuit of the Petition




       3
         L.K. asserts that she did not say “in her country she would be in her rights to kill her.” Appellant’s
       Appendix at 61. L.K. insists that she told the police officer that “‘in my country I would be in my rights to
       sue her . . .’ and that her pronunciation of ‘sue’ must have sounded like ‘shoot’ to the police officer” who
       then wrote in his report that she said “kill.” Id.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015            Page 10 of 13
       was not frivolous, unreasonable, or groundless, but that “[i]t soon became

       obvious that it was the child, and not [L.K.], who waved the butcher knife at

       [E.H.], and that [L.K.]’s statement to the police, even if not misinterpreted,

       was not directed at [E.H.] as a threat.” Appellant’s Appendix at 62. We

       cannot say the court erred in concluding that, at the time it became obvious

       that L.K.’s statement to the police was not directed at E.H. as a threat, the

       Petition became unsupportable by any good faith and rational argument,

       because the statutory requirement of a credible threat of violence was then

       lacking. I.C. § 34-26-6-6(1); see also Wagler, 980 N.E.2d at 383. Accordingly,

       we conclude that Hanover continued to litigate its claim after the claim clearly

       became frivolous, unreasonable, or groundless.


[14]   We next review the trial court’s decision to award attorney fees and any

       amount awarded for an abuse of discretion. As the trial court found and as we

       concluded above, the continued litigation of the Petition by Hanover after

       June 30, 2014 was frivolous, unreasonable, or groundless, and, therefore, it

       was within the trial court’s discretion, pursuant to Ind. Code § 34-52-1-1(b)(2),

       to enter an award of attorney fees to L.K. However, we find that the amount

       awarded by the trial court clearly contravenes the logic and effect of the facts

       and circumstances presented to the trial court on the basis that “[a]n award of

       attorney fees is appropriately limited to those fees incurred because of the basis

       underlying the award.” Brant v. Hester, 569 N.E.2d 748, 755 (Ind. Ct. App.

       1991). Here, the basis of the underlying award is that Hanover litigated the

       Petition, and L.K. was obliged to continue defending against the Petition,


       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 11 of 13
       after it became frivolous, unreasonable, or groundless to continue doing so.

       At the September 2, 2014 hearing, L.K. submitted a verified affidavit for costs

       and attorney fees revealing that she had incurred attorney fees on July 2, 2014,

       in the amount of $357.50, for legal research on the issue of bad faith and

       damages, and on July 18, 2014, in the amount of $68.75, for her counsel

       having received and reviewed Hanover’s motion to dismiss, calling Hanover’s

       counsel, and leaving him a message. All other fees incurred by L.K. after June

       30, 2014, the date on which the Petition became unsupportable, were incurred

       not in defending against the Petition, but in objecting to Hanover’s motion to

       dismiss the Petition. Accordingly, we conclude that the trial court abused its

       discretion by awarding attorney fees to L.K. not related to defending against

       the Petition after it became frivolous, unreasonable, or groundless, and we

       revise the fee award to $426.25.


[15]   Finally, L.K. alleges a number of errors in the Petition, including that

       Hanover failed to attach an affidavit alleging personal knowledge of L.K.’s

       purported threat as required by Ind. Code § 34-26-6-7, that Hanover failed to

       provide a statement “describing ‘what happened’” as required by State Form

       TCM-WV-101, Appellee’s Brief at 11, that Hanover made a false statement in

       the Petition when it misquoted L.K.’s purported threat, and that Hanover “did

       not complete the attorney certification section of the state prescribed form

       petition regarding notice to L.K. and failed to comply with the related

       provisions of Trial Rule 65(B).” Id. at 12. L.K. asserts that, as a consequence




       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 12 of 13
       of such errors, the court abused its discretion in limiting its consideration of

       her request for attorney fees to the period after June 30, 2014.


[16]   We observe that the issue of whether the court’s initial decision to enter an

       order granting a temporary restraining order based on the Petition was error is

       not presented to this court. The appealed order concerns only the award of

       attorney fees in favor of L.K. However, even if L.K. is correct that those

       various technical errors were present when the court initially granted Hanover

       a temporary restraining order, we cannot say that such errors lead to the

       conclusion that the allegations contained in the Petition had no merit and that

       such litigation was frivolous, unreasonable, or groundless. Therefore, we

       cannot say that the trial court abused its discretion by limiting its award of

       attorney fees to L.K. for those fees incurred only after June 30, 2014.


                                                  Conclusion

[17]   For the foregoing reasons, we affirm the trial court’s award of attorney fees to

       L.K. and remand with instructions to enter an award of attorney fees in the

       amount of $426.25.


[18]   Affirmed in part and remanded


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-PO-344 | August 11, 2015   Page 13 of 13
