                                                                              FILED
                                                                         Dec 12 2018, 8:34 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
William A. Ramsey                                         Adam L. Bartrom
Barrett McNagny LLP                                       Mark D. Scudder
Fort Wayne, Indiana                                       Barnes & Thornburg LLP
                                                          Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kelly Sickafoose,                                         December 12, 2018
Appellant,                                                Court of Appeals Case No.
                                                          18A-MI-1549
        v.                                                Appeal from the Adams Superior
                                                          Court
Mary Beery, Auditor of Adams                              The Honorable Kenton Kiracofe,
County,                                                   Special Judge
Appellee.                                                 Trial Court Cause No.
                                                          01D01-1706-MI-29



Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                        Page 1 of 19
                                           Case Summary
[1]   This appeal stems from a controversy arising out of the Adams County Drug

      Court. Presiding Judge Patrick Miller initiated a lawsuit against Adams

      County Auditor Mary Beery (“the Auditor”) and, on June 7, 2017, ordered her

      to make certain tax and retirement benefit payments in connection to the

      employment of Drug Court Coordinator Kelly Sickafoose. The Auditor made

      the payments at issue in July of 2017. Despite the Auditor having made full

      payment, in August of 2017, Sickafoose moved for a rule to show cause,

      alleging that the Auditor was in contempt of the June 7, 2017 order. The trial

      court denied Sickafoose’s motion and awarded attorney’s fees in favor of the

      Auditor. Sickafoose challenges these orders on appeal.


[2]   Upon review, we conclude that any possible contempt by the Auditor was

      cured by payment of the funds at issue. Further, because Sickafoose filed

      numerous motions after payment was made despite knowing that she was not a

      party to the lawsuit, we agree with the trial court’s determination that

      Sickafoose’s filings were frivolous. We therefore conclude that the trial court

      did not err in denying Sickafoose’s motion for rule to show cause, granting the

      Auditor’s motion to dismiss, and awarding $16,463.50 in attorney’s fees to the

      Auditor. In addition, because we find this appeal to be frivolous, we conclude

      that an award of appellate attorney’s fees is warranted, and we remand to the

      trial court for a determination of the amount of appellate fees that should be

      awarded to the Auditor.



      Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018      Page 2 of 19
                             Facts and Procedural History
[3]   Judge Miller is the judge of the Adams County Superior Court and presiding

      judge of the drug court. In 2016, Judge Miller hired Sickafoose as an

      independent contractor to be the Drug Court Coordinator.


[4]   Sickafoose was paid for work completed in 2016 as an independent contractor

      and was provided with an IRS form indicating such status. In early 2017,

      Judge Miller resolved that Sickafoose should no longer be an independent

      contractor but rather an employee of the court. The Adams County Board of

      Commissioners approved Sickafoose’s employment in March of 2017. After

      Sickafoose was hired as an employee of the court, a dispute arose between

      Judge Miller and Sickafoose and the Adams County Board of Commissioners,

      County Council, Auditor’s Office, and Auditor (collectively, “the County”)

      regarding retroactive application of employee status. Specifically, Judge Miller

      and Sickafoose wanted the County to treat Sickafoose’s hire date as the day she

      began providing services as an independent contractor and to make retroactive

      tax and retirement benefits payments on her behalf. After the County rejected

      this request, Judge Miller initiated the underlying lawsuit against the Auditor

      over which he initially presided.


[5]   On June 7, 2017, Judge Miller ordered the Auditor to pay certain tax and

      retirement benefits within forty-eight hours. The order covered payment of




      Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018   Page 3 of 19
      FICA and FICE taxes1 (collectively, “the federal taxes”) and PERF2 benefits for

      the period of October 1, 2016, through March 3, 2017. The claims were “in the

      nature of payroll” and were to be made for the benefit of the “Adams Superior

      Court/Adams County Drug Court Coordinator.” Appellant’s App. Vol. II p.

      27. Judge Miller held that failure to comply with the order “will subject the

      Auditor … to indirect criminal contempt proceeding[s] including the possibility

      of fines, incarceration or both.” Appellant’s App. Vol. II p. 28.


[6]   The next day, the Auditor filed a motion to vacate Judge Miller’s order, arguing

      that as the plaintiff to the action, Judge Miller did not have jurisdiction to issue

      the order. On June 9, 2017, the Auditor filed a petition for an emergency writ

      of mandamus and prohibition with the Indiana Supreme Court. That same

      day, the Supreme Court issued an emergency writ and ordered Judge Miller to

      stay the proceedings pending its review of the Auditor’s petition. On June 29,

      2017, the Supreme Court denied the Auditor’s request for a permanent writ and

      dissolved the previously-issued emergency writ. Judge Miller then issued an

      order lifting the stay.3 At some point, Sickafoose filed an appearance as an

      “Interested Party.” Appellant’s App. Vol. II p. 74.




      1
        FICA, which stands for the Federal Insurance Contributions Act, requires payment of social security and
      Medicare taxes. While it is unclear from the record what FICE stands for, counsel for the Auditor
      “speculate[d] that it refers to Medicare.” Appellant’s App. Vol. II p. 101.
      2
          PERF stands for the Public Employees Retirement Fund.
      3
          Judge Miller also denied the Auditor’s pending motion to vacate his June 7, 2017 order.


      Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                          Page 4 of 19
[7]   The federal taxes were paid on July 5, 2017. The PERF benefits were paid on

      July 20, 2017 after Sickafoose’s PERF profile was amended to reflect that she

      was a court employee.4


[8]   On July 6, 2017, the Auditor moved for a change of judge. Sickafoose, acting

      as an interested party, submitted a list of acceptable judges to receive the cause

      of action. Judge Miller granted the Auditor’s motion and the Honorable

      Thomas M. Hakes of the Huntington Circuit Court was ultimately appointed as

      the special judge.


[9]   In August, Sickafoose, again acting as an interested party, moved for a rule to

      show cause, alleging that the Auditor “appears to be in Indirect Criminal

      Contempt of Court, as well as in Civil Contempt of Court.” Appellant’s App.

      Vol. II p. 80. She further claimed that “As of the date of this motion, [the

      Auditor] has failed and refused to comply with the Honorable Judge Miller’s

      Order issued June 7, 2017.” Appellant’s App. Vol. II p. 81. Claiming that

      Judge Miller’s June 7, 2017 order was made for her benefit, Sickafoose

      requested that Judge Hakes find the Auditor in indirect criminal and civil

      contempt of the court and order her to “immediately and fully comply with the

      Order issued by the Honorable Patrick R. Miller on June 7, 2017.” Appellant’s

      App. Vol. II p. 82.




      4
       Sickafoose was also required to pay a portion of the back-PERF benefits, which she paid to the Adams
      County Treasurer on July 7, 2017.

      Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                        Page 5 of 19
[10]   On September 7, 2017, the Auditor responded to Sickafoose’s motion for a rule

       to show cause, asserting that the motion was moot as the claims at issue had

       been paid. The Auditor alternatively argued that Sickafoose did not have

       standing to file the motion as she was not a party to the lawsuit and had not

       sought to intervene. The Auditor requested that Judge Hakes deny Sickafoose’s

       motion, award attorney’s fees to the Auditor, and dismiss the case with

       prejudice.


[11]   The Auditor also contemporaneously moved to dismiss, asserting that the

       lawsuit had been initiated by Judge Miller for the purpose of ordering the

       Auditor to make certain retroactive tax and PERF payments in connection to

       Sickafoose’s employment as Drug Court Coordinator. The Auditor further

       asserted that the order to pay the funds in question was the only component of

       the lawsuit and that she had “fully complied with the payment and written

       notification requirements of” Judge Miller’s order. Appellant’s App. Vol. II p.

       84. As such, the Auditor argued that there was “no action left to be taken” in

       the lawsuit. Appellant’s App. Vol. II p. 84.


[12]   On September 13, 2017, Judge Miller sent a letter to Judge Hakes requesting

       that Judge Hakes continue a scheduled pre-trial conference to grant him the

       opportunity to respond to the Auditor’s motion to dismiss and response in

       opposition to Sickafoose’s motion to show cause. In this letter, Judge Miller

       acknowledged that the Auditor had paid all claims included in the June 7, 2017

       order. Counsel for both the Auditor and Sickafoose were copied on Judge

       Miller’s letter.

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018     Page 6 of 19
[13]   On September 15, 2017, the Auditor responded to Judge Miller’s letter,

       asserting that because Judge Miller had not requested any relief beyond

       compliance with his June 7, 2017 order, and she had fully complied with the

       order, Judge Miller had no pending request for relief. On September 18, 2017,

       Judge Hakes recused himself and continued the matter until a new Special

       Judge could be selected. The Honorable Kenton Kiracofe of the Wells County

       Circuit Court was subsequently appointed Special Judge.


[14]   On March 29, 2018, Judge Kiracofe issued an order denying Sickafoose’s

       motion for rule to show cause and granting the Auditor’s motion to dismiss.

       On April 27, 2018, Sickafoose filed a motion to correct error and a motion for a

       change of judge. Judge Kiracofe denied these motions in an order dated June

       7, 2018.


[15]   On June 25, 2018, Judge Kiracofe conducted a hearing on the Auditor’s request

       for attorney’s fees. Finding that Sickafoose’s ongoing litigation was frivolous

       both because the claims at issue had been paid and Sickafoose lacked standing

       as she was not a party to the lawsuit, Judge Kiracofe awarded attorney’s fees in

       the amount of $16,463.50 to the Auditor.



                                  Discussion and Decision
                             I. Motion for a Rule to Show Cause
[16]   Sickafoose contends that the trial court erred in denying her motion for a rule

       for the Auditor to show cause why she is not in contempt of court. “It is


       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018   Page 7 of 19
       soundly within the discretion of the trial court to determine whether a party is

       in contempt, and we review the judgment under an abuse of discretion

       standard.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (internal

       quotation omitted). “We will reverse a trial court’s finding of contempt only if

       there is no evidence or inference therefrom to support the finding.” Id. (internal

       quotation omitted). Sanctions in a contempt proceeding “may seek both to

       coerce behavior and to compensate an aggrieved party.”5 MacIntosh v.

       MacIntosh, 749 N.E.2d 626, 631 (Ind. Ct. App. 2001), trans. denied.


[17]   At the trial court level, Sickafoose repeatedly made the argument that she had

       standing to participate in the lawsuit because she was an interested party. In

       making this argument, she did not point to any relevant authority that would

       support her position. Sickafoose acknowledged that she was not a party to the

       lawsuit and never sought to intervene6 in the lawsuit. She merely claimed to be

       an interested party by way of her position as Drug Court Coordinator. During

       an exchange with Sickafoose’s counsel, the trial court stated


               you continue to maintain that you’re an interested party despite
               the fact … as counsel has pointed out and [as] this Court has also
               affirmed, there’s – there is no such status as an interested party –
               um – it doesn’t exist. Um – I think to allow that, to continue in
               that way, opens up a host of problems, and the – and the trial
               rules are clear – … the trial rules provide for a way for someone



       5
         At the outset, we note that even if Sickafoose was a proper party, we cannot see how the Auditor could
       have been found in contempt of court given that she had complied with the June 7, 2017 order.
       6
         Indiana Trial Rule 24 provides a procedure by which individuals or entities may seek permission to
       intervene in a lawsuit to which the individual or entity is not a party.

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                           Page 8 of 19
               in your client’s situation, if they feel that they have an interest at
               stake in the matter to request the Court to acknowledge them and
               to recognize them, and you didn’t avail yourself of that
               procedure[.]


       Tr. p. 17. The trial court further stated that “the very problem in this case is

       that, as the Court pointed out in its order of March 29 th, there are – there is a

       mechanism to deal with this very issue [i.e., intervention], and that mechanism

       was not followed.” Tr. p. 16. The trial court denied Sickafoose’s motion to

       show cause, making the following findings:


               1. Counsel for Kelly Sickafoose filed an appearance as an
               “interested party.” Said term does not exist under the Indiana
               Trial Rules and counsel does not provide any legal authority for
               the designation.
               2. Counsel has not sought intervention as may be allowed under
               the Indiana Trial Rules.
               3. The Court finds Kelly Sickafoose is not a party to this matter
               and, as such, lacks standing to file the Motion for Rule to Show
               Cause.
               4. Further, it appears from the Auditor’s Motion in Opposition,
               counsel for Auditor attempted to informally resolve the issue
               with counsel for Kelly Sickafoose, advising that she lacked
               standing and that the monies, which were at the heart of the
               controversy, were paid.


       Appellant’s App. Vol. II p. 22.


[18]   Again, it is undisputed that Sickafoose was not a party to the lawsuit. As the

       trial court pointed out, Sickafoose could have filed a Trial Rule 24 motion to

       intervene but chose not to do so. We agree with the trial court’s determination


       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018        Page 9 of 19
       that the Trial Rules do not provide a method by which Sickafoose could insert

       herself into the proceedings and participate as an “interested party.”


[19]   Sickafoose claims for the first time on appeal that Indiana Trial Rule 71 grants

       her standing to join. Generally, arguments not made before the trial court are

       waived on appeal. See Fox v. Rice, 936 N.E.2d 316, 323 (Ind. Ct. App. 2010).

       Waiver notwithstanding, we conclude that Sickafoose’s reliance on Trial Rule

       71 is misplaced. Trial Rule 71 provides as follows:


               When an order is made in favor of a person who is not a party to
               the action, he may enforce obedience to the order by the same
               process as if he were a party; and, when obedience to an order
               may be lawfully enforced against a person who is not a party, he
               is liable to the same process for enforcing obedience to the order
               as if he were a party.



       Even if we were to assume that Judge Miller’s June 7, 2017 order was made on

       Sickafoose’s behalf, Trial Rule 71 did not grant Sickafoose standing to

       participate in an unlimited fashion as if she were a party to the lawsuit.

       Pursuant to the plain language of the rule, the enforcement powers provided for

       by Trial Rule 71 extended only so far as to allow Sickafoose to enforce

       obedience with the June 7, 2017 order. Thus, any enforcement power

       Sickafoose may have had was extinguished by the Auditor’s compliance with

       Judge Miller’s order. The record demonstrates that the Auditor complied with

       Judge Miller’s order in July of 2017. Sickafoose did not file her motion to show

       cause until August of 2017. As such, by the time Sickafoose filed her motion to


       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018     Page 10 of 19
       show cause, no enforcement power remained as the funds at issue had been

       paid.7


                                              II. Attorney’s Fees
[20]   Sickafoose also contends that the trial court erred by awarding attorney’s fees to

       the Auditor. Indiana Code section 34-52-1-1(b) provides that a trial court may

       award attorney’s fees if it finds that either party litigated the action in bad faith

       or continued to litigate after the party’s claim clearly became frivolous,

       unreasonable, or groundless.


                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 on 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 facts exist which
                support the legal claim relied on and presented by the losing
                party.


       BioConvergence, LLC v. Menefee, 103 N.E.3d 1141, 1161–62 (Ind. Ct. App. 2018)

       (quotations omitted). The trial court’s decision to award attorney’s fees under

       Indiana Code section 34-52-1-1 is subject to a multi-level review: “the findings



       7
         We are also unpersuaded by Sickafoose’s common-law argument and note that while a person may have a
       personal stake in litigation sufficient to grant them standing if they seek to join the litigation, she must do so
       in a manner which complies with the Indiana Trial Rules and may not simply create her own procedure for
       doing so.

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                                Page 11 of 19
       of fact are reviewed under the clearly erroneous standard and legal conclusions

       regarding whether a party litigated in bad faith are reviewed de novo.” GEICO

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

       original).


[21]   During the June 25, 2018 hearing, the Auditor’s counsel argued that the

       Auditor has “been put in a position where [she] continually [has] to respond to

       these groundless motions over and over again; and the County of Adams

       County is – is incurring fees according to that” and it “is undisputed that [an]

       interested party [designation] does not exist under the rules. [Sickafoose’s

       counsel is] attempting to create a category of litigant that does not exist to

       anyone else in the State, but he’s defiantly and repeatedly trying to take this

       position; that is unreasonable.” Tr. p. 8. Counsel further argued


               And, candidly, your Honor, this case has been egregious from
               the beginning. This case was initiated by Judge Miller, who, at
               the time, was the plaintiff when he initiated this. He then,
               despite being a plaintiff and the sitting judge, issued his own
               order, which required action by the auditor within forty-eight
               hours or else face contempt or incarceration. This caused [an]
               emotional toll on the auditor. This has caused a financial toll on
               the county.


       Tr. p. 9. The trial court accepted the Auditor’s position and, in awarding

       attorney’s fees to the Auditor, found as follows:


               2. As set forth in the March 29, 2018 Order, the Court found
               Kelly Sickafoose was not a party and lacked standing to file a
               Motion for Rule to Show Cause. As such, the Court dismissed

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018     Page 12 of 19
                summarily Sickafoose’s Motion for Rule to Show Cause.
                3. After the entry of the Court’s Order, Sickafoose, through
                counsel, continued to file groundless and unreasonable motions.
                Most notably, a Motion for Change of Judge that was meritless
                because the Court had previously ruled she was not a party and
                assuming arguendo she was a party, was belated.
                4. At the hearing on June 25, 2018, rather than appearing in a
                cordial, conciliatory manner, Counsel for Sickafoose chose to
                attempt to relitigate the issues the Court had previously ruled
                upon and challenge the jurisdiction of the Court.
                5. Moreover, Counsel for Sickafoose conceded that she was not
                a party to the matter.
                6. The Court finds the Auditor of Adams County, ultimately the
                citizens of Adams County, have incurred total attorney fees of
                $16,463.50 responding to and defending herself from Sickafoose’s
                frivolous, unreasonable, and groundless argument in this case.


       Appellant’s App. Vol. II pp. 25–26.


[22]   Given our conclusion that Sickafoose did not have standing to insert herself

       into the litigation as an “interested party,” we conclude that the trial court did

       not err in finding that Sickafoose’s act of making continued filings in the matter,

       despite knowing that the funds at issue had been paid, she was not a party, and

       she had not taken the steps necessary to intervene, was unreasonable.

       Sickafoose’s unreasonable actions have cost the citizens of Adams County

       unnecessary financial resources and warrant an award of attorney’s fees to the

       Auditor.8




       8
         Although awards of attorney’s fees are generally imposed upon and awarded to parties to the lawsuit, we
       have previously concluded that it is within the power of trial courts to hold a non-party financially liable for

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                               Page 13 of 19
[23]   Alternatively, Sickafoose contends that the trial court erred in awarding fees

       incurred in preparing and defending the Auditor’s request for fees. “The trial

       court’s decision to award attorney fees and any amount thereof is reviewed for

       an abuse of discretion.” GEICO, 7 N.E.3d at 305. “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.


[24]   Sickafoose challenges $4,978.50 of the $16,463.50 award, arguing that the fees

       were incurred in relation to the preparation and defense of the Auditor’s request

       for fees. In making this challenge, Sickafoose acknowledges that she “has

       found no case specifically holding whether attorney fees awarded under

       [Indiana Code section] 34-52-1-1 may include fees for seeking fees.”

       Appellant’s Br. p. 23. She also acknowledges authority indicating that, at least

       under some circumstances, such an award is permissible. See Appellant’s Br. p.

       23 (acknowledging Walton v. Claybridge Homeowners Ass’n, Inc., 825 N.E.2d 818

       (Ind. Ct. App. 2005)). She nevertheless argues that the trial court abused its

       discretion by including such fees. The Auditor asserts that it “is nonsensical for

       Sickafoose to acknowledge that she is unaware of any law which prohibits the




       his actions. See generally Daurer v. Mallon, 597 N.E.2d 334, 336 (Ind. Ct. App. 1992) (providing that it was
       within the power of the trial court to order a non-party attorney to pay attorney’s fees after the attorney filed
       an unreasonable complaint for trespass against a police officer in the officer’s individual capacity when the
       officer was only at the property in question in his official capacity and during the normal course of his duties
       as a police officer). The conclusion that a non-party may be ordered to pay attorney’s fees is consistent with
       the rule that under some circumstances, the trial court may award attorney’s fees to a non-party. See
       Srivastava v. Indpls. Hebrew Congreg., Inc., 779 N.E.2d 52, 59 (Ind. Ct. App. 2002) (providing that an award of
       attorney’s fees to a non-party is not inappropriate per se); see also Ind. Trial Rule 34 (providing that a trial
       court may award attorney’s fees to a non-party for fees incurred in connection to responding to a request that
       the non-party provide certain evidence during discovery).

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                              Page 14 of 19
       Court from awarding fees to the Auditor for preparing for and participating in

       the [June 25, 2018] Hearing, yet implies that it ‘misinterpreted the law’ by

       doing so.” Appellee’s Br. p. 26. We agree with the Auditor and conclude that

       in the absence of relevant authority clearly indicating that it was inappropriate

       for the trial court to award the fees in question, the trial court did not abuse its

       discretion by doing so.


                                  III. Appellate Attorney’s Fees
[25]   The Auditor seeks to recover attorney’s fees for funds expended responding to

       what it characterizes as a frivolous appeal.


               Indiana Appellate Rule 66(E) provides, in pertinent part, “[t]he
               Court may assess damages if an appeal ... is frivolous or in bad
               faith. Damages shall be in the Court’s discretion and may
               include attorney’s fees.” Our discretion to award attorney fees
               under Indiana Appellate Rule 66(E) is limited, however, to
               instances when an appeal is permeated with meritlessness, bad
               faith, frivolity, harassment, vexatiousness, or purpose of delay.
               Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152 (Ind. 1987).
               Additionally, while Indiana Appellate Rule 66(E) provides this
               Court with discretionary authority to award damages on appeal,
               we must use extreme restraint when exercising this power
               because of the potential chilling effect upon the exercise of the
               right to appeal. Tioga Pines Living Ctr., Inc. v. Indiana Family and
               Social Svcs. Admin., 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001),
               trans. denied.


       Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003).


[26]   While we are generally reluctant to grant an award of appellate attorney’s fees,

       we conclude that given the specific facts of the case before us, such an award is
       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018      Page 15 of 19
       warranted. Sickafoose has continued to pursue this matter, at great taxpayer

       expense, even after her actions had been deemed frivolous. We therefore

       remand to the trial court for a hearing to determine the appropriate appellate

       award of the attorney’s fees.


[27]   The judgment of the trial court is affirmed, and we remand with instructions.


       Kirsch, J., concurs.


       Bailey, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018   Page 16 of 19
                                                      IN THE
            COURT OF APPEALS OF INDIANA

       Kelly Sickafoose,                                             Court of Appeals Case No.
                                                                     18A-MI-1549
       Appellant,

                v.

       Mary Beery, Auditor of Adams
       County,
       Appellee.



       Bailey, Judge, dissenting.


[28]   This appeal should be dismissed. I cannot join in affirming the award of

       attorney fees to be paid by Sickafoose to the Auditor pursuant to Indiana Code

       Section 34-52-1-1(b), which provides that a party who has litigated in bad faith

       may be ordered to pay another party’s fees. The reason is simple. Sickafoose,

       having never availed herself of the Trial Rule 24 avenue for intervention, was

       not a party in the proceedings below. Consequently, she is not a party-

       appellant.9 The appeal is not properly before us.




       9
         Nor did Sickafoose timely pursue a claim that she had a right to enforce an order for her benefit under
       Indiana Trial Rule 71. She raised this claim of entitlement for the first time on appeal. If she were a party,
       this would amount to waiver. See Fox v. Rice, 936 N.E.2d 316, 323 (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                              Page 17 of 19
[29]   No doubt, Sickafoose’s insistence that she be allowed to pursue matters already

       resolved is a clear example of frivolous litigation that wasted taxpayer

       resources. The litigation was facilitated by her lawyer in having pursued this

       course of action although, clearly, the Auditor had complied with the original

       order.10 The litigation was entertained by the trial court when even a cursory

       reading of the trial rules would have revealed the absence of an “interested

       party” status to be conferred. Nonetheless, all entities involved 11 proceeded as if

       Sickafoose were a party until taxpayers incurred $16,463.50 in unwarranted

       attorney’s fees.


[30]   After the needless waste of judicial resources, with the acquiescence of all of the

       aforementioned, the trial court decided both that Sickafoose lacked standing

       and that she could be liable for attorney’s fees under Indiana Code section 34-

       52-1-1(b). It is true, as the majority notes in footnote 8, that a panel of this

       Court has affirmed an attorney fees order against a nonparty, pursuant to a

       then-existing statute referencing frivolous litigation by a “party.” I.C. 34-1-32-

       1. See Daurer v. Mallon, 597 N.E.2d 334 (Ind. Ct. App. 1992). However, the

       obligor was a party’s attorney, in essence, the party’s agent. “[T]his Court has

       found it within the power of trial courts to hold non-party attorneys financially




       10
         Indiana Rule of Professional Conduct 3.1 provides in relevant part: “A lawyer shall not bring or defend a
       proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is
       not frivolous, which includes a good faith argument for an extension, modification or reversal of existing
       law.”
       11
         I observe that even the Auditor lodged no objection on the basis that the trial court had no jurisdiction to
       entertain motions by Sickafoose, a non-party.

       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018                                Page 18 of 19
       liable for their acts.” Id. at 336. Also, in some circumstances, a trial court may

       award attorney’s fees to a non-party. Srivastava v. Indpls. Hebrew Congreg., Inc.,

       779 N.E.2d 52, 59 (Ind. Ct. App. 2002). However, neither of these cases has

       application here, where a non-party, non-attorney, devoid of standing, litigated

       absent restraint by the court or a motion to strike from a party. At no point did

       the trial court find Sickafoose in contempt, nor did it make a factual finding that

       she had made a false representation (as was the case in Srivastava). The trial

       court simply permitted nonparty filings with the court and then declared

       Sickafoose fully liable for the wasted resources, upon the basis of statutory

       authority applicable to a party or a party’s agent.


[31]   I do not suggest that the Auditor is liable for the entirety of these attorney’s fees

       without recourse. There may have been an abuse of process such that a claim is

       available for the trial court’s consideration and fact-finding. However, we are

       not positioned to remand the matter with specific instructions, as it is not

       properly before us. Because Sickafoose was the subject of the litigation but not

       a party to it, she lacks standing to bring this purported appeal, and I would vote

       to dismiss.




       Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018      Page 19 of 19
