FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEY FOR APPELLEES:

ROBERT M. BAKER III                            TIMOTHY S. SCHAFER
Law Office of Robert M. Baker III              Schafer and Schafer
Indianapolis, Indiana                          Merrillville, Indiana

                                                                      Dec 17 2013, 9:35 am


                            IN THE
                  COURT OF APPEALS OF INDIANA

INDIANA HIGH SCHOOL ATHLETIC         )
ASSOCIATION, INC.,                   )
                                     )
       Appellant-Defendant,          )
                                     )
              vs.                    )              No. 37A03-1303-CP-86
                                     )
GREGORY S. SCHAFER and SHANE SCHAFER )
b/n/f GREGORY S. SCHAFER,            )
                                     )
       Appellees-Plaintiffs.         )


                     APPEAL FROM THE JASPER CIRCUIT COURT
                      The Honorable Daniel J. Molter, Special Judge
                            Cause No. 37C01-9111-CP-236



                                    December 17, 2013

                            OPINION - FOR PUBLICATION

SHEPARD, Senior Judge
       A trial court may award attorney’s fees when a party continues to litigate the case

after the party’s claims have become frivolous, unreasonable, or groundless. Here, the

trial court ordered fees after finding that the litigation conduct by the Indiana High

School Athletic Association in trying to prevent a student from playing for his school

demonstrated all three of these.

       We conclude that, at the least, the trial court was within its discretion to hold that

the course of conduct by IHSAA was “unreasonable” and that it could consider the

multiple rulings adverse to IHSAA in reaching that decision.

       We thus affirm the imposition of fees.

                        FACTS AND PROCEDURAL HISTORY

       During the 1990-91 school year, Shane Schafer was a junior at Andrean High

School in Merrillville, Indiana. He played on the basketball team. Shane withdrew from

school during the spring semester, suffering from a severe, chronic sinus infection for

several months. It required several surgeries to correct. Shane’s medical condition had

hampered his academic performance during the fall and spring semesters. Andrean did

not give Shane grades for his spring classes and permitted him to repeat his junior year in

the 1991-92 school year.

       In June 1991, Shane asked IHSAA to rule that the 1990-91 school year would not

count against his eligibility to play interscholastic basketball. IHSAA did not dispute that

Shane’s medical condition was genuine and had caused his academic difficulties. It

nevertheless denied Shane’s request, citing IHSAA Rule 12. Assistant Commissioner

                                             2
Ray Craft advised Andrean officials that any administrative appeal would be “fruitless”

because IHSAA’s Executive Committee, which would consider the appeal, lacked

authority to set aside the rule. Appellees’ App. p. 48.

       Nevertheless, Shane and his parents appealed through IHSAA’s process. After

Shane and his parents filed the appeal, IHSAA officials informed them that IHSAA Rule

18 also barred Shane from participating in athletics for the fall 1991 semester.

       On October 18, 1991, IHSAA’s Executive Committee upheld the decision of the

commissioner that, under Rule 12, the 1990-91 school year would count against Shane’s

eligibility to play high school basketball.

       On November 12, 1991, Shane, by his father Gregory Schafer, filed suit in the

Lake Superior Court, seeking review of IHSAA’s rulings, injunctive relief, and damages.

The next day, the trial court issued an ex parte temporary restraining order allowing

Shane to play basketball during the fall semester. On November 15, 1991, IHSAA’s

Executive Committee affirmed the commissioner’s ruling that Rule 18 was a second

reason Shane was ineligible during the fall 1991 semester. Shane did not play basketball

at Andrean that fall.

       On November 19, 1991, after a hearing attended by both parties, the court

dissolved the TRO. It declined to enter a temporary injunction, determining that Shane

“appears to be entitled to take part in athletic competition beginning in the second

semester at Andrean in January of 1992; but there exists no emergency for the granting of



                                              3
a temporary restraining order or temporary injunction at this time.” Appellant’s App. p.

71.

       Next, the case was venued to the Jasper Circuit Court at IHSAA’s request. Special

Judge Raymond Kickbush held a hearing and, in a January 9, 1992 order, determined that

IHSAA’s rules, as applied to Shane, were “arbitrary and capricious” and had resulted in

an “absurdity.” Id. at 93. Consequently, the court enjoined IHSAA from barring Shane’s

participation in interscholastic athletics. It withheld action on the Schafers’ claim for

damages.

       The court certified its order for interlocutory appeal, at IHSAA’s request. The

Court of Appeals accepted the appeal. While the appeal was pending, the trial court and

the Court of Appeals both denied IHSAA motions to stay the trial court’s injunction.

IHSAA also moved the trial court to modify or stay its injunction to prevent Shane from

playing sports during the fall 1992 semester. The court denied IHSAA’s request on

August 14, 1992.

       This Court issued a decision on August 24, 1992, largely affirming the trial court’s

grant of injunctive relief. Ind. High Sch. Athletic Ass’n v. Schafer (Schafer I), 598 N.E.2d

540 (Ind. Ct. App. 1992), trans. denied. Our panel held that the trial court properly

concluded that IHSAA Rule 18 was arbitrary and capricious as applied to Shane.

However, the Court also concluded that the injunction was overly broad and remanded

for issuance of a more narrowly tailored injunction, including “an endpoint for [Shane’s]

eligibility.” Id. at 558.

                                             4
          During this remand, IHSAA again moved to amend the injunction, asserting that

Shane had exhausted his eligibility and could not play in the 1992-93 year. In response

to the Court of Appeals’ opinion and IHSAA’s motion, the trial court enjoined IHSAA

from barring Shane during the 1992-93 year and from taking any action against Andrean

as a result of Shane’s participation in basketball.

          On December 16, 1992, the Indiana Supreme Court denied IHSAA’s petition for

transfer in Schafer I, ending that appeal.

          The trial court subsequently held a jury trial on the Schafers’ claims for damages,

and IHSAA prevailed on those claims.

          The Schafers then requested a hearing on their request for attorney’s fees, relying
                                                     1
on Indiana Code section 34-52-1-1 (1998) and separately on IHSAA’s alleged abuse of

process in opposing injunctive relief. The court heard the fee matter in November 1996.

The case was subsequently transferred among several different judges, ultimately arriving

before Special Judge Daniel J. Molter. In 2003, Judge Molter awarded the Schafers fees

of $86,231.25. The award covered legal work performed during about thirteen months in

1991-1992, from the Lake Superior Court’s denial of the Schafers’ request for a

preliminary injunction through the Supreme Court’s denial of transfer in Schafer I. The

court’s award was based entirely on Indiana Code section 34-52-1-1.

          The fee award did not become final until 2008, when the Schafers dismissed their

allegation of abuse of process. IHSAA appealed the fee award, and a panel of this Court

1
    At that time, the statute was codified as Indiana Code section 34-1-32-1.
                                                         5
reversed. Ind. High Sch. Athletic Ass’n v. Schafer (Schafer II), 913 N.E.2d 789 (Ind. Ct.

App. 2009). The panel concluded that the trial court had not made sufficient findings of

fact to support the fee award. Rather than reverse outright, the panel remanded for

further proceedings, determining “the findings in this case are currently insufficient to

support the judgment, but . . . it appears the evidence in the record might.” Id. at 798.

Subsequently, the trial court issued a new order, again awarding $86,231.25. This appeal

followed.

                                            ISSUE

       IHSAA now challenges both the trial court’s findings of fact and its determination

that IHSAA’s approach to defending against the request for injunctive relief had been

unreasonable.

                               DISCUSSION AND DECISION

       Indiana adheres to the American rule that a party must generally pay his or her

own attorney’s fees absent an agreement between the parties, a statute, or other rule to the

contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind. 2012).

Indiana Code section 34-52-1-1(b) provides an exception:

       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


                                               6
              (3) litigated the action in bad faith.

The trial court cited subsection (b)(2) of the rule in awarding fees, determining that

IHSAA continued to attempt to bar Shane from playing basketball after its defenses

clearly became frivolous, unreasonable, or groundless.

       IHSAA had asked the trial court to issue special findings and conclusions pursuant

to Indiana Trial Rule 52(A). Our standard of review for special findings awarding

attorney’s fees under Indiana Code section 34-52-1-1 is as follows:

       We first review the trial court’s findings under a clearly erroneous standard.
       In reviewing the findings of fact, we neither reweigh the evidence nor judge
       witness credibility, but rather we review only the evidence and reasonable
       inferences drawn therefrom that support the trial court’s findings and
       decision. In reviewing under the clearly erroneous standard, we will not
       reverse unless we are left with a definite and firm conviction that a mistake
       has been made. The second step is to review de novo the trial court’s legal
       conclusions. And finally, the third step of our appellate review is to review
       the trial court’s decision to award fees and the amount thereof under an
       abuse of discretion standard.

Neu v. Gibson, 968 N.E.2d 262, 278 (Ind. Ct. App. 2012) (citations and quotation

omitted), trans. denied.

                                 Challenges to the Findings

       IHSAA argues that the trial court’s special findings are unsupported by the

evidence. We address the most viable contentions.

       “Litany of Adverse Rulings.”        IHSAA challenges the court’s statements that

“various appeals and requests for stays have been resolved in favor of Shane” and that




                                               7
there were “a litany of adverse court rulings against the IHSAA.” Appellant’s App. pp.

14, 16.

          The trial court did indeed cite the numerous rulings the Schafers won against

IHSAA. The record establishes: (1) the Lake Superior Court granted the Schafers an ex

parte TRO ordering IHSAA not to bar Shane from playing; (2) the same court later

declined to issue temporary injunctive relief, but only because it deemed such relief

unnecessary at that time, inasmuch as Shane “appears to be entitled to take part in athletic

competition beginning in the second semester at Andrean in January of 1992,” id. at 72;

(3) the Jasper Circuit Court granted the Schafers injunctive relief, determining IHSAA’s

rules, as applied to Shane, were “arbitrary and capricious” and produced an “absurdity,”

id. at 94; (4) the trial court and the Court of Appeals both declined to grant a stay pending

IHSAA’s appeal in Schafer I; (5) while the appeal was pending, the trial court denied

IHSAA’s request to modify the injunction to bar Shane from playing sports during the

fall 1992 semester; (6) the Court of Appeals largely upheld the trial court’s injunction,

determining that IHSAA’s application of Rule 18 was arbitrary and capricious; and (7)

after the Court of Appeals remanded with instructions to establish an endpoint for the

injunction, but while transfer was still pending, the trial court rejected a new IHSAA

argument that Shane had exhausted his eligibility for the 1992-93 year.

          This evidence supports the trial court’s findings that the Schafers consistently

prevailed at the trial court and on appeal during the period for which fees have been

ordered. Many of these were not simple adverse rulings, but rather judicial declarations

                                              8
so striking as to support a conclusion that IHSAA’s course of defense was

“unreasonable.”

       “IHSAA on Notice.” IHSAA challenges the court’s finding that it had previously

“been made aware of potential inequities or concerns with the interpretation and/or

application of Rule 18.5,” and had been told in another case that “Rule 18.5 in its present

form does not promote wholesome amateur athletics.” Id. at 15.

       Finding that IHSAA was aware of prior inequalities arising out of application of

Rule 18, the trial court cited a federal case, Anderson v. Indiana High School Athletic

Association, 699 F. Supp. 719 (S.D. Ind. 1988). IHSAA correctly notes that Rule 18 was

not at issue in that case and that the student did not prevail on her constitutional claim for

injunctive relief (because the court determined that IHSAA’s decision was not state

action). Still, Anderson stands for the proposition that IHSAA must consider and avoid

potentially unconstitutional applications of its rules. In that case, the student transferred

from one school to another and sought to play volleyball. It was undisputed that the

transfer was not undertaken for athletic reasons and was not academically improper.

Nevertheless, IHSAA suspended Anderson from interscholastic competition for 365 days

pursuant to its Rule 19.

       The federal district court noted that the rule in question provided no exceptions

and concluded that the rule was arbitrary and capricious because “all students are covered

by a blanket classification which has no relationship to whether a particular student’s

reasons for changing schools are athletic.” Id. at 730. It further stated that in the absence

                                              9
of an opportunity for an individual applicant “to demonstrate the harmless effect of its

request,” the rule “is unfair, lacks sensitivity” and lacks “provision for the application of

common sense and reasonableness.” Id. at 731. The court concluded that applying the

rule in those circumstances did not promote healthy amateur athletics.

         The Anderson decision notified IHSAA that where it applies its rules to bar a

student from competition regardless of whether the student is acting in good faith, and

without providing an opportunity to demonstrate the harmlessness of a requested

exemption, IHSAA risks having its decisions deemed unconstitutionally arbitrary and

capricious. We conclude the Anderson decision supports the trial court’s finding that

IHSAA was on notice as to the implications of its eligibility decisions.

         “Absurd and Devoid.”       IHSAA also challenges the court’s findings that

“evidentiary hearings and subsequent rulings clearly illustrated the ‘absurdity’ of the

position undertaken,” and that IHSAA’s positions “were found to be devoid of good logic

and did not promote the true intended purpose of the rules in place.” Appellant’s App. at

16-17.

         IHSAA has never disputed that Shane suffered from a serious medical condition

that hampered his academic performance in the 1990-91 year and caused him to

withdraw from school. Likewise, IHSAA has never disputed that Shane had sufficiently

recovered from his medical condition to both fulfill his academic requirements and play

basketball during 1991-92. IHSAA Commissioner Eugene Cato testified that, if he



                                             10
considered Shane as an individual, he “would declare him eligible.” Appellees’ App. p.

57.

       Nevertheless, IHSAA persisted in attempting to strip Shane of a year of eligibility

and prevent him from playing basketball not only in the 1991-92 year, but in the

following year as well. After declaring ahead of time that any appeal of its determination

under Rule 12 would be “fruitless,” IHSAA invoked Rule 18 in attempting to bar Shane

from playing. As for causing delay when time was of the essence in obtaining judicial

review of IHSAA’s decisions, IHSAA delayed a determination of the Schafers’ claims by

seeking a change of venue during an injunctive matter and unsuccessfully requesting to

postpone a hearing on injunctive relief. Finally, after the trial court and the Schafer I

court clearly declared that IHSAA’s attempts to limit Shane’s eligibility were arbitrary

and capricious, IHSAA again asked the trial court to determine that Shane had exhausted

his eligibility and could not play interscholastic basketball during the 1992-93 school

year. While some of these actions standing alone might not support the trial court’s

findings, they did not happen alone. The pattern of activities supports the trial court.

       “Vindictiveness.” IHSAA challenges the trial court’s finding that it acted with

vindictive purpose, which the court deemed demonstrated when Commissioner Cato

testified “I don’t know” when asked why IHSAA appealed Judge Kickbush’s grant of

injunctive relief. Id. at 17.

       After the Schafers prevailed in the trial court, Commissioner Cato decided to

appeal. Later asked why he decided to appeal, the commissioner answered, “I don’t

                                             11
know.” Appellees’ App. p. 116. To be sure, this answer is hardly a smoking gun proving

vindictiveness, but we do think a reasonable finder of fact could infer that IHSAA

intended to defeat the Schafers by drawing out the litigation process and possibly

mooting the question of Shane’s eligibility.

          We conclude that the evidence supports the trial court’s special findings.

                                         Abuse of Discretion

          Next, IHSAA contends that the trial court’s decision to award fees was an abuse of
              2
discretion.       Noting that the court’s award relied on Indiana Code section 34-52-1-

1(b)(2), which addresses continued litigation by a party after the party’s claim or defense

clearly became frivolous, unreasonable, or groundless, IHSAA claims that events

occurring before the Schafers filed this lawsuit are irrelevant.

          Subsection (b)(2) contemplates an examination of the legal and factual basis of a

claim and the arguments advanced in support thereof. Kahn v. Cundiff, 533 N.E.2d 164,

171 (Ind. Ct. App. 1989), aff’d, 543 N.E.2d 627 (Ind. 1989). Events occurring before a

lawsuit are part of the legal and factual basis for a claim, and we see no reason to exclude

such events when considering a fee award. While the panel in Schafer II opined that

various judicial conclusions (like the “absurdity of the application of this rule” to Shane),

when declared without reference to particular facts, could not support the fee award, the

underlying facts surrounding the course of litigation must surely be relevant.




2
    IHSAA does not challenge the amount of the award.
                                                  12
       Here, IHSAA had no reason to believe that Shane was faking his medical

condition. It was also on notice, per the Anderson decision, that its decisions as to

eligibility could be found arbitrary and capricious where it did not allow students to seek

good-faith exceptions. Nevertheless, IHSAA officials told Andrean officials that any

appeal of the decision under Rule 12 would be “fruitless” and, when the Schafers

appealed, lifted up Rule 18 to further bar Shane’s participation in athletics.

       IHSAA also argues that the record merely shows that it lost its case, and

unfavorable rulings alone are insufficient proof of a frivolous, unreasonable, or

groundless defense. It shows more than that.

       A claim or defense is “groundless” if no facts exist which support the legal claim

presented by the losing party. Alaska Seaboard Partners, Ltd. v. Hood, 949 N.E.2d 1247,

1256 (Ind. Ct. App. 2011). The Commissioner’s inability to describe any reason for

appealing the trial court’s grant of the injunction does suggest “groundlessness.”

Furthermore, a claim or defense is “unreasonable” if, based on the totality of the

circumstances, including the law and the facts known at the time of filing, no reasonable

attorney would consider that the claim or defense was worthy of litigation. Id. at 1255.

Here, IHSAA continued to argue for barring Shane even after both the trial court and this

Court had rejected its effort to do so. We cannot say that the trial court erred by

identifying IHSAA’s continuing litigation as unreasonable.

       As if to provide an additional illustration of this pattern, IHSAA in this third

appeal challenges the validity of the decision in Schafer I, noting that Schafer I cited to

                                             13
Sturrup v. Mahan, 261 Ind. 463, 305 N.E.2d 877 (1974), subsequently overruled by

Indiana High School Athletic Association v. Carlberg, 694 N.E.2d 222, 239 (Ind. 1997).

In considering whether IHSAA continued to litigate after its defense clearly became

frivolous, unreasonable, or groundless, we think it sound to consider the facts and

precedent that were in effect when IHSAA made its decision, not changes in the law that

occurred years later.

       Finally, we are not the first appellate court to take notice of IHSAA’s arbitrary and

capricious decision-making toward the Schafers. Such decision-making can result in

substantial harm to the individual student-athletes the rules are intended to serve. The

Schafer I court pointed out the absurdity resulting from IHSAA’s positions in this case as

follows:

       The trial court found this case to present a student who decided, after
       consulting with his parents and school officials, to repeat his junior year in
       high school because a chronic but undiagnosed illness may have hampered
       his academic performance in college preparatory courses. All the evidence
       on the point showed the decision reflected a judgment that repeating was in
       the student’s best interest academically. There was no evidence that
       repeating was intended to circumvent Rule 18 by allowing the student an
       easy ride in repeated courses so that he could turn his full attention to
       developing his basketball prowess. Yet, IHSAA deprived the student of
       eligibility for athletics on the basis of a rule that purportedly seeks to
       “upgrade student academic performance.” That Schafer ended up repeating
       his junior year coursework flowed more from his illness than from any
       attempt to gain an advantage in sports competition.

598 N.E.2d at 554. Similarly, the Schafer II panel stated its disapproval of IHSAA’s

tactics, quoting a prior decision that turned on a fee award due to IHSAA litigation

tactics:

                                            14
       We share the trial court’s concern that the IHSAA may have been
       motivated to run up fees and expenses during the course of this litigation.
       We further fear that the IHSAA might wish to send a message to parents
       and student athletes in Indiana about the great risk and expense involved in
       challenging a ruling, and thus discourage them from appealing a denial of
       eligibility.

913 N.E.2d at 796-97 (quoting Ind. High Sch. Athletic Ass’n v. Vasario, 726 N.E.2d 325,

335 (Ind. Ct. App. 2000), trans. denied). Such were the views of the appellate judges in

Vasario who granted IHSAA partial relief and ordered a remand. The judge who thought

the award should have been affirmed without further proceedings put it differently:

       The importance of this case, for me, lies in the fact that students learn at the
       hands of the IHSAA some of their early lessons about what constitutes fair
       play in decision making. Unfortunately, students acquainted with the
       IHSAA’s conduct in this case might reasonably conclude that winning at all
       costs is more important than fair play.

Vasario, 726 N.E.2d at 335-36 (Baker, J., dissenting).

       We associate ourselves with these observations without adding to them. The trial

court did not abuse its discretion by awarding attorney’s fees to the Schafers.

                                      CONCLUSION

       For the reasons stated above, we affirm the judgment of the trial court.

       Affirmed.

VAIDIK, J., and BRADFORD, J., concur.




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