      MEMORANDUM DECISION                                                   FILED
                                                                       Sep 21 2016, 9:57 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                          CLERK
      precedent or cited before any court except for the                Indiana Supreme Court
                                                                           Court of Appeals
      purpose of establishing the defense of res judicata,                   and Tax Court

      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
      Joel C. Wieneke                                          Suzanne R. Siefferman Newcomb
      Brooklyn, Indiana                                        Smith Amudsen
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Monique J. Hartley (Mansfield)                           September 21, 2016
      and Mark J. Mansfield,                                   Court of Appeals Case No.
                                                               67A04-1512-CC-2239
      Appellants- Plaintiffs,
                                                               Appeal from the Putnam Circuit
              v.                                               Court.
                                                               The Honorable Phillip I. Adler,
                                                               Special Judge.
      Amity Reading,                                           Cause No. 67C01-1404-CC-138
      Appellee- Defendant.




      Friedlander, Senior Judge

[1]   Monique and Mark Mansfield (collectively referred to as “the Mansfields”)

      appeal the grant of summary judgment in favor of Amity Reading, and

      judgment after a bench trial in favor of Reading on her counterclaims. The

      Mansfields present the following restated issues for review:



      Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 1 of 28
              1.       Whether the trial court erred in granting Reading’s motion
                       for summary judgment?
              2.       Whether the trial court abused its discretion by denying
                                                                       1
                       Monique Mansfield’s request for continuance?
              3.       Whether the trial court’s comments and actions violated
                       Monique Mansfield’s right to due process?
              4.       Whether the award of $12,000.00 in attorney’s fees was
                       unreasonable?


      We affirm in part, reverse in part, and remand for further proceedings.


[2]   The facts of this case are as follows. On July 9, 2013, Reading signed a lease

      agreement to rent a two-unit residential property that was owned by the

      Mansfields and located on Franklin Street in Greencastle, Putnam County,

      Indiana. The term of the lease was from August 1, 2013 through July 31, 2014.

      Reading paid the Mansfields the first month’s rent of $1,200.00 and a security

      deposit of $1,200.00. On July 26, 2013, Nationstar Mortgage, LLC, filed a

      foreclosure action against the Mansfields for the Franklin Street property.


[3]   Reading took possession of the property on August 1, 2013. When she arrived,

      she found attached to the door a foreclosure complaint and summons addressed

      to “Unknown Tenant.” The complaint alleged the Mansfields were in default

      on the mortgage on the property and sought a decree of foreclosure and to have




      1
        Although Mark Mansfield did not participate in the proceedings before the trial court, the court issued
      judgment against him and Monique. Mark also did not participate in this appeal. It appears Monique
      has appealed to protect both of their interests.




      Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016    Page 2 of 28
      the property sold at sheriff’s sale. Inside of the property, Reading found mold,

      mouse droppings, furniture and other belongings that had been left in the

      house, and a window that had both a broken pane and a broken sash. Reading

      discovered that neither of the two gas stoves within the property were in

      working order.


[4]   Reading notified the Mansfields, through a property manager, of the problems

      with the property, but the problems were not rectified. Reading informed the

      Mansfields that she planned to vacate the property; and, she eventually did so.

      Reading asked that a prorated portion of the August rent, as well as the security

      deposit, be returned to her. Neither the rent payment nor the security deposit

      were returned.


[5]   On February 26, 2014, the Putnam Circuit Court issued judgment against the

      Mansfields and foreclosed on the Franklin Street property. On January 7, 2015,

      the property was sold at sheriff’s sale.


[6]   On April 14, 2014, (after the foreclosure but before the sheriff’s sale) the

      Mansfields filed a complaint for damages, alleging Reading did not fulfill her

      contractual obligation to lease the Franklin Street property for one year. The

      Mansfields sought $12,000.00 in damages, plus attorney’s fees, “and all other

      relief proper.” Appellants’ App. pp. 13-14. On June 11, 2014, Reading filed an

      answer and counterclaim. She admitted she signed a one-year lease for the

      property, and that she vacated the property after paying one month’s rent and

      the security deposit. She maintained however, she was constructively evicted


      Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 3 of 28
      from the property because it was uninhabitable and because of the foreclosure

      proceedings. Reading raised as counterclaims 1) breach of implied warranty of

      habitability, 2) fraudulent inducement, 3) failure to return a pro rata share of the

      rent and the security deposit, and 4) conversion.


[7]   On May 14, 2015, Reading served on the Mansfields interrogatories and

      requests for the production of documents. The Mansfields did not comply. On

      August 17, 2015, Reading filed with the trial court a motion to compel

      discovery, seeking an order directing the Mansfields to answer written

      discovery, make themselves available for deposition, and reimburse Reading for

      expenses she incurred from the Mansfields’ delay in responding to discovery

      requests. The trial court issued an order granting Reading’s motion on August

      20, 2015. The Mansfields did not comply with the court’s order.


[8]   On July 30, 2015, Reading moved for summary judgment on the Mansfields’

      complaint, alleging she was entitled to judgment as a matter of law because the

      foreclosure and sheriff’s sale transferred all rights related to the Franklin Street

      property to the purchaser and, therefore, precluded the Mansfields from making

      any claims against Reading for unpaid rent. On that same day, Reading filed a

      motion for attorney’s fees, contending the Mansfields had not complied with

      discovery. The Mansfields filed a response in opposition to the motion for

      summary judgment, arguing Reading was not entitled to judgment as a matter

      of law because the law did not support her claim.




      Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 4 of 28
[9]    The trial court held a hearing on the motion for summary judgment on

       September 10, 2015. The Mansfields did not appear at the hearing. Following

       the hearing, the trial court took the summary judgment matter under

       advisement. On September 18, 2015, the trial court granted Reading’s motion

       for summary judgment and dismissed the Mansfields’ complaint with prejudice.

       The following day, Reading filed a motion for sanctions, seeking (among other

       things) attorney’s fees for the Mansfields’ failure to comply with discovery.


[10]   On October 9, 2015, the trial court conducted a hearing on Reading’s

       counterclaims and request for attorney’s fees. Monique Mansfield appeared

       telephonically and pro se. Mark Mansfield did not appear. At the onset of the

       hearing, Ms. Mansfield requested a continuance. Her request was denied.


[11]   On November 13, 2015, the trial court issued its order, finding the Mansfields

       breached the implied warranty of habitability, fraudulently induced Reading to

       sign the lease, and failed to return Reading’s pro rata share of the rent and the

       security deposit. The trial court also awarded Reading damages and $12,000.00

       in attorney’s fees. This appeal follows. Additional facts will be provided as

       necessary.


                                                         1.

[12]   The Mansfields contend the trial court erred in granting Reading’s motion for

       summary judgment. Reading maintained in her summary judgment motion

       that she was entitled to judgment as a matter of law because any rights the

       Mansfields had to recover rent from her were extinguished when the Franklin


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 5 of 28
       Street property was sold at sheriff’s sale and the sheriff’s deed was recorded. In

       their response, the Mansfields argued Reading was not entitled to judgment as a

       matter of law because Indiana law does not support her claim. The Mansfields

       cited the “Mortgages” section of the Indiana Law Encyclopedia as follows: “In

       the absence of a provision in the mortgage to the contrary, the mortgagor, while

       lawfully in possession of the mortgaged premises, is entitled to the rents and

       profits of the mortgaged premises and may dispose of them in any manner so

       desired.” 20 Ind. Law Encyc. Mortgages § 60 (2016). According to the

       Mansfields, they were entitled to unpaid rents that accrued before the property

       was sold at sheriff’s sale because during that time, they were the lawful owners

       of the property.


[13]   The parties present the same arguments on appeal. We find the trial court erred

       in granting summary judgment in favor of Reading because Reading was not

       entitled to judgment as a matter of law.


[14]   We review a grant or denial of summary judgment de novo, applying the same

       standard as the trial court. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). We

       construe all facts and reasonable inferences to be drawn from those facts in

       favor of the nonmoving party. Jacobs v. Hilliard, 829 N.E.2d 629 (Ind. Ct. App.

       2005), trans. denied. Summary judgment is appropriate only when the

       designated evidence shows that there is no genuine issue of material fact and

       that the moving party is entitled to judgment as a matter of law. Id.; see also Ind.

       Trial Rule 56(C).



       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 6 of 28
[15]   While federal summary judgment practice allows a moving party to merely

       show the party carrying the burden of proof lacks evidence on a necessary

       element, Indiana’s summary judgment standard establishes a higher bar for

       movants to clear. Smith v. Taulman, 20 N.E.3d 555 (Ind. Ct. App. 2014). A

       movant must affirmatively “negate an opponent’s claim.” Hughley, 15 N.E.3d

       at 1003 (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d

       118, 123 (Ind. 1994)).


[16]   “Summary judgment is a desirable tool to allow the trial court to dispose of

       cases where only legal issues exist. But it is also a ‘blunt . . . instrument’ by

       which the non-prevailing party is prevented from having his day in court.”

       Hughley, 15 N.E.3d at 1003 (citations and some quotations omitted). “Indiana

       consciously errs on the side of letting marginal cases proceed to trial on the

       merits, rather than risk short-circuiting meritorious claims.” Id. at 1004.


[17]   The material facts pertaining to Reading’s summary judgment motion do not

       appear to be in dispute. Reading entered into a lease agreement with the

       Mansfields to rent the Franklin Street property from August 1, 2013, through

       July 31, 2014. Reading paid the Mansfields only one month’s rent and a

       security deposit. The Franklin Street property was foreclosed upon on February

       16, 2014. The Mansfields sued Reading for unpaid rent on April 14, 2014. The

       property was sold at sheriff’s sale on January 7, 2015, and a sheriff’s deed was

       recorded on January 8, 2015, conveying the property to Federal Home Loan

       Mortgage Corporation.



       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 7 of 28
[18]   Under the lien theory, to which Indiana is unequivocally committed, the lender

       (the mortgagee) has no title to the land mortgaged. Oldham v. Noble, 117 Ind.

       App. 68, 66 N.E.2d 614 (1946). The right to possession, use and enjoyment of

       mortgaged property, as well as title, remains in the borrower (the mortgagor),

       unless otherwise specifically provided. Id. The mortgage is a mere security for

       the debt. Id.


[19]   Foreclosure is defined as “[a] legal proceeding to terminate a mortgagor’s

       interest in property, instituted by the lender . . . either to gain title or to force a

       sale in order to satisfy the unpaid debt secured by the property.” Black’s Law

       Dictionary 762 (10th Ed. 2014); Armstrong v. Keene, 861 N.E.2d 1198, 1201, n.4

       (Ind. Ct. App. 2007), trans. denied. Foreclosure is necessary to transfer legal title

       from the borrower to the lender, who must purchase the property at decretal

       sale if he wishes to acquire such title. Oldham, 66 N.E.2d 614. Every defendant

       in a mortgage foreclosure action has the right to redeem its property by paying

       off the amount due at any time before the property is sold at a sheriff’s sale. Ind.

       Code § 32-29-7-7 (West/Westlaw 2002).


[20]   A borrower, while lawfully in possession of the mortgaged premises, is entitled

       to the rents and profits of the mortgaged premises. 20 Ind. Law Encyc.

       Mortgages § 60; see Booram v. Day, 216 Ind. 503, 25 N.E.2d 329 (1940)

       (borrower had right to have proceeds of property applied to property’s

       maintenance and prior liens); see also, Como, Inc. v. Carson Square, Inc., 648

       N.E.2d 1247 (Ind. Ct. App. 1995) (as Carson Square was not the owner of

       shopping center when July and August rent accrued, it was not entitled to the

       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 8 of 28
       rent from tenant). The borrower of real estate has a right to the rents and profits

       so long as he remains in possession. See White v. Redenbaugh, 41 Ind. App. 580,

       585, 82 N.E. 110, 112 (1907) (“No rule of law is plainer or better understood

       than that the mortgagor of real estate has a right to the rents and profits so long

       as he remains in possession.”). The owner of a property when rent falls due is

       entitled to the entire sum, unless otherwise provided by contract. See Watson v.

       Penn, 108 Ind. 21, 8 N.E. 636 (1886).


[21]   It is not in dispute the Mansfields retained ownership of the Franklin Street

       property until January 7, 2015, the date the sheriff’s deed conveyed the Franklin

       Street property to Federal Home Loan Mortgage Corporation. Appellants’

       App. p. 77. Neither is it in dispute that the lease Reading signed was for the

       period from August 1, 2013, through July 31, 2014; the Mansfields owned the

       property during said time period; and, Reading agreed to pay $1,200.00 per

       month during the lease period.


[22]   Thus, the Mansfields owned the Franklin Street property when the rent under

       the lease fell due. We find the trial court erred in determining as a matter of

       law the Mansfields were not entitled to the unpaid rent and erred in granting

       summary judgment in favor of Reading and dismissing the Mansfields’

       complaint. Whether the Mansfields can collect all, part, or none of the unpaid




       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016   Page 9 of 28
       rent is a question that may hinge on genuine issues of material fact, but this
                                                       2
       question is not before us on appeal.


                                                            2.

[23]   The Mansfields next argue the trial court abused its discretion when it denied

       Monique Mansfield’s motion for continuance of the October 9, 2015 hearing on

       Reading’s counterclaims and request for attorney’s fees. In their brief, the

       Mansfields maintain that Ms. Mansfield “offered good cause for [a

       continuance] but that the [trial court] judge refused to give [her request] due

       consideration because he had lost all patience with [her].” Appellants’ Br. p.

       15. Reading contends Ms. Mansfield did not offer good cause but instead

       offered excuses, and that Ms. Mansfield’s request for continuance was a

       “conscious attempt to game the system.” Appellee’s Br. p. 18.


[24]   The facts related to this issue are as follows. On August 21, 2015, the

       Mansfields’ attorney sent a letter to Ms. Mansfield stating in part:

                My staff has attempted to contact you about [your failure to
                cooperate with discovery] and you have refused to speak with
                them. They have requested contact information for the co-
                plaintiff, Mark Mansfield[,] and you have refused to provide it. . .
                .
                You must cooperate with me to proceed with your case. . . .




       2
         Genuine issues of material fact may very well exist regarding whether the Mansfields are entitled to collect
       the unpaid rent in light of Reading’s counterclaims of constructive eviction and fraudulent inducement. But
       those issues were not raised in the summary judgment proceeding and, therefore, are not before us on appeal.

       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 10 of 28
               In the event [you fail to answer the interrogatories] within five (5)
               days[,] I may consider withdrawing my representation of you. . .
               .
               It is important to retain the services of an attorney, [sic] without
               an attorney you may waive valuable legal rights. You currently
               have a bench trial set on October 9, 2015 at 9 A.M.


       Appellants’ App. p. 96. The Mansfields’ attorney filed a motion to withdraw

       from the case on August 27, 2015, alleging the Mansfields had failed to

       communicate with him. The motion was granted on September 2, 2015.


       On the day of the hearing, when the trial court asked Ms. Mansfield if she was

       ready to proceed, she replied, “I have been advised to ask for continuance based

       on the circumstances . . . . The circumstances are that my attorney . . . was

       negligent in my case; he failed to communicate with me . . .” October 9, 2015

       Tr. p. 22. Ms. Mansfield maintained that any correspondence her attorney

       allegedly sent to her was not received, and that her attorney “didn’t pick up the

       phone” and “didn’t respond to e-mails.” Id. at 25.


[25]   The following exchange took place during the hearing between the court and

       Ms. Mansfield:

               THE COURT: I find that very hard to believe [that your
               attorney was not communicating with you]. [Your attorney] told
               me his correspondence to you keeps, kept coming back. . . .
               Ma’am, I’m not gonna argue with you. You have done nothing
               that the Court has ordered you to do. That’s not my fault, it’s
               not, [sic] it’s not the other lady’s fault here uh, Amity Reading.
               We’re gonna have a trial today. . . .


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 11 of 28
               MS. MANSFIELD: [A]ll I’m asking for is a continuance so I
               can get an attorney . . . .


               THE COURT: Ma’am, you’re gonna be throwing good money
               at, you’re gonna be throwing good money after bad I’m afraid.
               There’s no lawyer’s gonna take this case at the last, you know, in
               the, in the eleventh (11th) hour. I’m not gonna have these people
               keep coming back here. Uh, Amity Reading’s here – . . . her
               lawyer is here. She keeps incurring – . . . ma’am, you gotta
               realize, you’re the one that started this. You’re the one that filed
               this lawsuit.


               MS. MANSFIELD: I can show you documentation to, from
               [my attorney] where I have (indiscernible) requirement, and he is
               the one who has been doing this on his own. That’s what I’m
               trying to tell you. . . .


               THE COURT: That, that’s between you and [your attorney]. I
               could care less about that. My point is, we’re gonna have a trial
               today. If you want to talk to [Ms. Reading’s counsel] about
               maybe getting this case settled in, in a reasonable manner, that’s
               fine. If you don’t, we’re gonna go forward with it. I’m not
               gonna handle this case any longer. This case has been set for
               trial for a very long time.


[26]   Id. at 25-28. We find the trial court did not abuse its discretion by denying Ms.

       Mansfield’s request to continue the hearing to hire a new attorney.


[27]   Pursuant to our Indiana Trial Rules, a trial court has discretion to postpone or

       continue the trial when a motion to continue a trial is filed by a party. See Ind.

       Trial Rule 53.5. “[A] trial court shall grant a continuance upon motion and ‘a


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 12 of 28
       showing of good cause established by affidavit or other evidence.’” Gunashekar

       v. Grose, 915 N.E.2d 953, 955 (Ind. 2009) (quoting Ind. Trial Rule 53.5)

       (emphasis added). “A trial court’s decision to grant or deny a motion to

       continue a trial date is reviewed for an abuse of discretion.” Gunashekar, 915

       N.E.2d at 955. A trial court abuses its discretion when it reaches a conclusion

       which is clearly against the logic and effect of the facts or the reasonable and

       probable deductions which may be drawn therefrom. Hess v. Hess, 679 N.E.2d

       153 (Ind. Ct. App. 1997). “[T]here is a strong presumption the trial court

       properly exercised its discretion.” Gunashekar, 915 N.E.2d at 955.


[28]   “A denial of a motion for continuance is [considered to be an] abuse of

       discretion only if the movant demonstrates good cause for granting it.” Id. “. .

       . [N]o abuse of discretion will be found when the moving party has not

       demonstrated that he or she was prejudiced by the denial.” Riggin v. Rea Riggin

       & Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000). “There are no

       mechanical tests for deciding when a denial of a continuance is so arbitrary as

       to violate due process. The answer must be found in the circumstances present

       in every case, particularly in the reasons presented to the trial judge at the time

       the request was denied.” J.P. v. G.M., 14 N.E.3d 786, 790 (Ind. Ct. App. 2014)

       (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L. Ed. 2d

       921 (1964), reh'g denied ).


[29]   “[A]mong the things to be considered on appeal from the denial of a motion for

       continuance, we must consider whether the denial of a continuance resulted in

       the deprivation of counsel at a crucial stage in the proceedings.” Hess, 679

       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 13 of 28
       N.E.2d at 154 (citing Homehealth, Inc. v. Heritage Mut. Ins. Co., 662 N.E.2d 195,

       198 (Ind. Ct. App. 1996), trans. denied). The withdrawal of an attorney does not

       automatically entitle a party to a continuance. Thompson v. Thompson, 811

       N.E.2d 888 (Ind. Ct. App. 2004), trans. denied.


[30]   Continuances to allow time for additional preparation are generally disfavored.

       Williams v. State, 681 N.E.2d 195 (Ind. 1997); see also Clodfelder v. Walker, 234

       Ind. 219, 125 N.E.2d 799 (1955) (explaining that a motion for continuance

       should be made at the earliest practicable time after knowledge of the necessity

       for a continuance). Furthermore, “[a] continuance requested for the first time

       on the morning of trial is not favored.” Lewis v. State, 512 N.E.2d 1092, 1094

       (Ind. 1987).


[31]   The Mansfields’ attorney sent a letter on August 21, 2015, informing the

       Mansfields he might withdraw his representation. Less than a week later,

       counsel filed his motion to withdraw. The motion was granted on September 2,

       2015, some six weeks before the scheduled hearing date. Ms. Mansfield did not

       file a motion for continuance prior to the date of the hearing. Instead, she

       requested the continuance at the start of the hearing.


[32]   Ms. Mansfield provided no evidence to the trial court that she attempted to hire

       new counsel in those six weeks preceding the hearing, aside from her testimony

       to such. Also, Ms. Mansfield has not provided any particularized information

       from which we could conclude that she was prejudiced by the denial of the

       continuance.


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 14 of 28
       The trial court was in the best position to determine Ms. Mansfield’s

       motivations for requesting the continuance. The court was aware of the

       difficulties Ms. Mansfield’s attorney encountered in trying to communicate

       with her. The court knew how long the hearing had been scheduled. The court

       was familiar with the issues of the case and was able to determine the relative

       complexity or simplicity of the issues before it. See Gunashekar, 915 N.E.2d 953

       (in determining whether to grant a continuance, trial court was entitled to

       consider how long the trial had been scheduled, the lack of explanation for

       eight weeks of apparent inaction, the relative simplicity of a three-witness bench

       trial, and the potential that request was a conscious gaming of the system). The

       trial court determined Ms. Mansfield’s request for continuance should not be

       granted. The court did not abuse its discretion in doing so.


                                                         3.

[33]   The Mansfields argue the trial court violated Ms. Mansfield’s due process rights

       at the October 9, 2015 hearing. According to the Mansfields, the trial court

       made comments that demonstrated bias and lack of impartiality; the court

       prevented Ms. Mansfield from objecting to testimony; and, the court admitted

       exhibits into evidence without giving Ms. Mansfield an opportunity to object.

       Reading maintains the trial court’s comments and actions might have shown

       impatience and frustration, but do not rise to a level of prejudice, bias, or

       judicial impropriety.


[34]   Trial judges are afforded ample latitude to run a courtroom and maintain

       discipline and control of the trial. Timberlake v. State, 690 N.E.2d 243 (Ind.
       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 15 of 28
       1997). We even tolerate a “crusty” demeanor towards litigants so long as it is

       applied even-handedly. Harrington v. State, 584 N.E.2d 558, 562 (Ind. 1992)

       (quoting Rowe v. State, 539 N.E.2d 474, 477 (Ind. 1989)). Yet a “trial before an

       impartial judge is an essential element of due process.” Everling v. State, 929

       N.E.2d 1281, 1287 (Ind. 2010) (citing Caperton v. A.T. Massey Coal Co., Inc., 556

       U.S. 868, 876, 129 S.Ct. 2252, 2259, 173 L. Ed. 2d 1208 (2009)).


[35]   Recognizing the well-settled due process right to an impartial court as necessary

       to a fair proceeding, we have found fundamental error when trial judges’

       comments, demeanor, or conduct indicated bias. In re J.K., 30 N.E.3d 695 (Ind.

       2015). We must consider the “cumulative effect” of a court’s comments,

       because even relatively minor remarks can compound into prejudice. Id. at

       700.


[36]   Our Supreme Court has “recognize[d] that judges are not immune from the

       emotional effect of the cases they hear” . . . and that “[r]ecognizing that burden,

       we will not race to judgment over isolated inappropriate or impatient comments

       that do not cause prejudice to the parties. . . .” In re J.K., 30 N.E.3d 695, 700,

       n.1. To prevail on a claim of impartiality, a defendant must show that the trial

       judge’s action and demeanor crossed the barrier of impartiality and prejudiced

       the defendant’s case. Timberlake, 690 N.E.2d 243.


[37]   At the beginning of the October 9, 2015 hearing, Ms. Mansfield asked for a

       continuance. The court displayed some impatience and frustration as it

       questioned Ms. Mansfield about her reason for seeking a continuance,


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 16 of 28
       evidenced by the exchange that took place between the court and Ms.

       Mansfield. Supra; see also October 9, 2015 Tr. pp. 25-28. Later in the hearing,

       the trial court called Ms. Mansfield by the wrong name. When she corrected

       the court, the court responded, “Whatever.” Id. at 33. The court also made the

       comment, “I want to get this case over with while I’m still young.” Id. at 35.

       When Ms. Mansfield asked the court if the comment was necessary, the court

       responded, “Look, you have not done anything this Court ordered you to do in

       the past, so I don’t have a whole lot of sympathy for you. You should be here

       in person. I’m allowing this to go forward on the telephone, which most judges

       would not allow, but I am.” Id. at 36. At the end of the hearing, the trial court

       remarked, “This is all coming back to me why I, why I retired.” Id. at 108.


[38]   While the court’s comments toward Ms. Mansfield certainly were

       curmudgeonly, we do not find the comments and exchanges showed

       impartiality on the trial court’s part. Also, Ms. Mansfield has not shown how

       she was prejudiced by the court’s comments.


[39]   We now turn to the trial court’s comments and actions pertaining to Ms.

       Mansfield’s right to offer objections during the hearing and to object to the

       admission of evidence. Here, we express concern.


[40]   During the hearing, Reading’s counsel offered into evidence twelve exhibits.

       All of the exhibits were admitted without objection; but, it does not appear from

       the record that Ms. Mansfield was given time to lodge objections. During

       direct examination of Reading by her counsel, Ms. Mansfield attempted to


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 17 of 28
lodge an objection because she believed Reading’s counsel was asking a

question that referred back to the summary judgment issue. The following

exchange took place:

        Q [by Reading’s Counsel] [Ms. Reading,] [c]ould you please tell
        the Court the condition of the property at the time that you took
        possession?
        A Uh, there were some problems with the property. Um –
        MS. MANSFIELD: Objection sir. I thought this was a hearing
        to a counterclaim. What does the summary judgment have to do
        with anything? Uh, I, I'm feeling like this has already been
        heard.
        THE COURT: The counterclaim has not been heard ma’am.
        [READING’S COUNSEL]: The counterclaim’s for – if it might
        help – are breach of the implied warrant of habitability;
        fraudulent inducement; failure to re (sic.), refund the security
        deposit and a prorated share of the rents paid; and –
        MS. MANSFIELD: And the witnesses that can explain that are
        not present –
        [READING’S COUNSEL]: – and conversion.
        MS. MANSFIELD: – so I object. I –
        THE COURT: You can object all you want but she’s a witness
        and you can’t object to her testifying. Go ahead.


Id. at 38-39. Ms. Mansfield tried to lodge a second objection, and the following

exchange occurred:


        Q [by Reading’s Counsel] Okay. So Ms. Reading, you started to
        say that there were problems with the property. Could you
        please um, outline for us what the problems were that you
        encountered?

Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 18 of 28
        A: So the, the first problem was that on August First (1st) of
        Twenty-Thirteen (2013) uh, when I showed up to the property,
        there was attached to the door a Summons naming me as the
        unnamed tenants in an action in which the property was being
        foreclosed upon –
        MS. MANSFIELD: Objection sir. Uh, Amity [Reading], Amity
        [Reading] –
        THE COURT: Ma’am – . . .
        THE COURT: – ma’am — you do not interrupt until she
        finishes her sentence. If you keep doing this, I’m gonna hang up
        [the telephone].
        MS. MANSFIELD: I don’t know the rules sir.
        THE COURT: Yeah, well that’s the rule. Go ahead.

Id. at 39. After direct and cross-examination of Reading had concluded, Ms.

Mansfield attempted to “[go] on the record again to state that [she] asked for a

continuance, and [that] the Judge did not grant a continuance.” Id. at 71. The

following exchange took place:

        THE COURT: Yeah, yeah. That’s on the record several times.
        Ask your next question.


        MS. MANSFIELD: I’m sorry sir. I thought we just went into
        trial for the first time, and so I had not put that on record. You
        told me I could not speak until Amity [Reading] had finished. So
        I believe this is the first time I am speaking on the record.


        THE COURT: That’s not true, but, it doesn’t matter. Ask your
        next question.


Id.

Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 19 of 28
[41]   Questions can be raised here as to whether the trial court’s comments placed a

       “chilling effect” on Ms. Mansfield’s willingness to object during the hearing. “.

       . . [I]ntimidated participants in the trial may be unable to perform their proper

       function – a cowed defense counsel fails to object to inadmissible evidence – a

       rattled witness becomes incoherent.” Dixon v. State, 154 Ind. App. 603, 620,

       290 N.E.2d 731, 741 (1972). Notwithstanding the foregoing, Ms. Mansfield

       carries the burden of showing how the court’s comments and actions amounted

       to impartiality and, ultimately, prejudiced her. See Timberlake, 690 N.E.2d 243;

       see also, Gray v. State, 256 Ind. 342, 268 N.E.2d 745 (1971) (because defendant

       failed to demonstrate how trial judge’s remarks prejudiced his case, the

       reviewing court found no basis for reversal). She has not done so.


[42]   During the hearing, Ms. Mansfield directly examined and cross-examined

       witnesses. The court allowed Ms. Mansfield to call Reading’s counsel as a

       witness and to present a closing argument. At one point during the hearing,

       when Ms. Mansfield so inquired, the trial court took time to explain to Ms.

       Mansfield her rights regarding seeking an appeal. Throughout the proceeding,

       the court asked if Ms. Mansfield had other questions or if there was “anything

       else [she wanted] to talk about.” October 9, 2015 Tr. p. 103. Although Ms.

       Mansfield contends she was not allowed to object to the admission of the

       exhibits, she presents no argument that the exhibits admitted into evidence

       should have been excluded. Under these circumstances, we find that Ms.

       Mansfield has not shown prejudice; her due process rights were not violated;

       and, she received an impartial hearing.


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 20 of 28
[43]   Nevertheless, we note:

               When a trial judge indulges in injudicious behavior and
               intemperate language, it is only natural that a losing litigant
               leaves the court with a deep-rooted feeling that he or she has
               been denied a fair and impartial hearing. A trial judge can and
               should, by a judicious manner coupled with the use of temperate
               language, avoid lending substance to such a feeling.


       Dixon, 290 N.E.2d at 741.


                                                         4.

[44]   The Mansfields contend the award of $12,000.00 in attorney’s fees is excessive

       and unreasonable. The facts related to this issue are as follows.


[45]   On September 2, 2015, Reading submitted a “Petition for Attorney Fees on

       Motion to Compel” requesting attorney’s fees in the amount of $798.00 for

       costs associated with compelling discovery. On September 19, 2015, Reading

       filed a “Motion for Sanctions and Attorney Fees” seeking sanctions for the

       Mansfields’ failure to comply with discovery. At the October 9, 2015 hearing,

       Reading’s counsel had Reading identify Exhibit 13, which consisted of her

       counsel’s invoices associated with this case. Counsel, however, failed to move

       to have the exhibit admitted into evidence. Following the hearing, the trial

       court issued its November 13, 2015 order and awarded Reading (among other

       things) “reasonable attorney fees of $12,000.00 allowed pursuant to [Indiana

       Code sections 32-31-8-5 (failure to deliver property in a safe, clean and

       habitable condition), 32-31-8-6 (failure to remedy condition on property after

       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 21 of 28
       notice is provided), and 32-31-3-12 (return of security deposit).]” Appellants’
                       3
       App. p. 123.


[46]   The Mansfields maintain an award of $12,000.00 for attorney’s fees is

       unreasonable “considering the [legal] work that was done to rebut [the

       Mansfields’] claims . . . [and] to advance Reading’s [counterclaims].”

       Appellants’ Br. p. 21. In support of Reading’s argument that “[t]he record

       contains considerable evidence from which the trial court could calculate a

       reasonable attorney fee,” Reading points this court to sections of the transcript

       and appendix that, according to Reading, show the efforts counsel put forth in

       Reading’s case. Appellee’s Br. p. 28.


[47]   Initially, we must address the Mansfields’ motion to strike Exhibit 13 from the

       Volume of Exhibits prepared for this appeal. The Mansfields allege the exhibit

       was not admitted into evidence at the October 9, 2015 hearing and is not

       properly before us. We agree Exhibit 13 was never admitted and, therefore,

       cannot be considered. See Cochran v. Rodenbarger, 736 N.E.2d 1279 (Ind. Ct.

       App. 2000) (evidence must be admitted into evidence in order to be

       considered). By separate order issued contemporaneously with this opinion, we

       hereby grant the Mansfields’ motion to strike Exhibit 13.




       3
         If a tenant brings suit under Indiana Code section 32-31-8-6, and is successful, the tenant may recover
       attorney’s fees (among other damages and costs). See Ind. Code § 32-31-8-6(d) (West/Westlaw 2002). If a
       tenant proves the landlord failed to comply with the security deposits statute, the tenant may recover
       reasonable attorney’s fees. See Ind. Code § 32-31-3-12(b) (West/Westlaw 2002).

       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 22 of 28
[48]   We review a trial court’s award of attorney’s fees, and the amount of any such

       award, for an abuse of discretion. Daimler Chrysler Corp. v. Franklin, 814 N.E.2d

       281 (Ind. Ct. App. 2004) (citing Malachowski v. Bank One, Indpls., N.A., 682

       N.E.2d 530 (Ind. 1997)). “An abuse of discretion occurs when the trial court’s

       award is clearly against the logic and effect of the facts and circumstances

       before the court.” Daimler Chrysler Corp., 814 N.E.2d at 286-87. “An award of

       attorney’s fees will be reversed on appeal as excessive only where an abuse of

       the trial court’s discretion is apparent on the face of the record.” Id. at 287

       (citation omitted). In determining a reasonable amount of attorney’s fees,

       consideration should be given to the nature and difficulty of the litigation; the

       time, skill, and effort involved; the fee customarily charged for similar legal

       services; the amount involved; the time limitations imposed by the

       circumstances; and, the result achieved in the litigation. See In re Eiteljorg, 951

       N.E.2d 565 (Ind. Ct. App. 2011), trans. denied; see also, Zebrowski & Assocs., Inc. v.

       City of Indpls., By & Through its Bd. of Dirs. for Utils. of its Dep't of Pub. Utils., 457

       N.E.2d 259 (Ind. Ct. App. 1983).


[49]   We first note that the amount of the attorney’s fee award to Reading is not

       inconsequential. Where the amount of the fee is not inconsequential, there

       must be objective evidence of the nature of the legal services and the

       reasonableness of the fee. Stewart v. TT Commercial One, LLC, 911 N.E.2d 51

       (Ind. Ct. App. 2009), trans. denied.


[50]   Without Exhibit 13, the evidence left with respect to the calculation of

       reasonable attorney’s fees was as follows: Reading’s September 2, 2015 Petition

       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 23 of 28
       for Attorney Fees on Motion to Compel and accompanying affidavit from

       Reading’s counsel; Reading’s Motion for Sanctions and Attorney Fees; and, the

       trial court’s general knowledge of the challenges Reading’s counsel faced

       regarding attempts to contact the Mansfields both before and after their counsel

       withdrew, as well as the age of the case. In the Petition for Attorney Fees,

       Reading asked the trial court to order the Mansfields to pay $798.00 in

       attorney’s fees. In the accompanying affidavit, Reading’s counsel attested she

       charged an hourly rate of $190.00, and she performed services totaling $798.00

       due to the Mansfields’ failure to cooperate with the discovery process. Counsel

       also included an itemization of her billable hours and a description of the

       services performed. In her Motion for Sanctions and Attorney Fees, Reading

       asked the trial court to (among other things) order the Mansfields to reimburse

       her for attorney’s fees incurred as a result of the Mansfields’ failure to cooperate

       with discovery – “including counsel’s time spent investigating their

       whereabouts in an effort [to] ensure they were served with documents filed

       since their attorney withdrew his appearance . . . .” Appellants’ App. p. 116.

       The motion does not contain an affidavit and provides no information about

       hours spent, hourly rates, or services performed.


[51]   With only the two pleadings and the affidavit properly before the trial court and

       us, we agree with the Mansfields that the award of attorney’s fees in the amount

       of $12,000.00 is unreasonable. While the trial court may consider a number of

       factors in determining the reasonableness of attorney fees, this Court has noted

       that hours worked and the rate charged are a common starting point. Cavallo v.


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 24 of 28
Allied Physicians of Michiana, LLC, 42 N.E.3d 995 (Ind. Ct. App. 2015). Here,

the affidavit submitted by Reading’s counsel supports an award of no more than

$798.00 in attorney’s fees. We, therefore, reverse the trial court’s award of

$12,000.00 in attorney’s fees, with regard to the amount, and remand this issue

to the trial court to determine reasonable attorney’s fees. See, e.g., Fortner v.

Farm Valley-Applewood Apartments, 898 N.E.2d 393, 400 (Ind. Ct. App. 2008)

(noting that the record did not “establish[ ] the number of hours that counsel . .

. spent on the case or the hourly rate that was charged,” and concluding the

record was insufficient to determine the reasonableness of the requested fees,

and remanding to the trial court to conduct a hearing to determine the

reasonableness of the fees); see also Loudermilk v. Casey, 441 N.E.2d 1379, 1387–

1388 (Ind. Ct. App. 1982) (the court noted that attorney’s affidavit did not

specifically state what services his firm performed and concluded that

“[w]ithout more information about the services provided by the attorneys and

the customary charges for such services, the court cannot decide what charges

are reasonable”); U.S. Aircraft Fin., Inc. v. Jankovich, 407 N.E.2d 287, 295 (Ind.

Ct. App. 1980) (“When counsel does not present evidence as to the hours

expended in behalf of his or her client and perhaps out-of-pocket expenses, the

risk is then taken that a subsequent award of attorney’s fees may be considered .

. . excessive since the record may not indicate any justification for the amount

awarded.”); Kahn v. Cundiff, 533 N.E.2d 164 (Ind. Ct. App. 1989) (award of

$8,246.65 in attorney’s fees (not a small amount) was unreasonable because

(among other things) affidavits failed to provide proper basis for award, and


Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 25 of 28
       matter was remanded for hearing as to reasonable attorney’s fees), summarily

       aff’d by 543 N.E.2d 627 (Ind. 1989).


                                                         5.

[52]   Finally, Reading requests that we award her appellate attorney’s fees for work

       her attorney completed in this appeal, if she succeeds on appeal. Indiana Code

       sections 32-31-8-6 and 32-31-3-12 both provide that if a tenant prevails in a suit

       brought under the statutes, the tenant may recover reasonable attorney’s fees.

       This includes reasonable appellate attorney’s fees. See, e.g., Hill v. Davis, 850

       N.E.2d 993 (Ind. Ct. App. 2006) (this Court found the language of Indiana

       Code section 32-31-3-12(b) broad enough to encompass appellate attorney’s

       fees).


[53]   This Court already has determined that the matter of reasonable attorney’s fees

       should be remanded for further proceedings. Said proceedings also would

       include the matter of appellate attorney’s fees.


[54]   Accordingly, the judgment of the trial court is affirmed in part, reversed in part,

       and remanded for further proceedings.


       Kirsch, J., concurs.


       Baker, J., dissenting in part, concurring in result in part, and concurring.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 26 of 28
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Monique J. Hartley (Mansfield)                           Court of Appeals Case No.
                                                                67A04-1512-CC-2239
       and Mark J. Mansfield,
       Appellants-Defendants,

               v.

       Amity Reading,
       Appellee-Plaintiff.




       Baker, Judge, dissenting in part, concurring in result in part, and

       concurring.

[55]   I respectfully dissent from the majority’s decision to reverse the grant of

       summary judgment in favor of Reading and remand for trial. The Mansfields

       have not appealed the finding in favor of Reading on her counterclaims. In

       other words, the findings that the Mansfields breached the implied warranty of

       habitability, fraudulently induced Reading to sign the lease, and failed to return

       Reading’s pro rata share of the rent and security deposit are law of the case.

       Either of the first two findings would permit Reading to terminate the lease,


       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 27 of 28
       necessarily meaning that the Mansfields’ complaint against her for unpaid rent

       must fail. Therefore, I believe that their appeal of the summary judgment ruling

       is moot and I would not address it at all, much less reverse and remand.


[56]   Secondly, while I concur with the result reached by my colleagues regarding the

       trial court’s comments to Ms. Mansfield, I part ways from their implicit

       criticism, albeit gentle, of the trial court. In my view, the behavior of Ms.

       Mansfield throughout these proceedings would have challenged and frustrated

       the very best of our judiciary. I believe that the trial court managed its

       frustration admirably. Furthermore, Ms. Mansfield’s arguments in this regard

       relate to the counterclaim hearing. Again, she has not appealed the trial court’s

       ruling on Reading’s counterclaims. Therefore, I do not believe that this issue

       needs to or should be addressed.


[57]   Finally, I am compelled to concur with my colleagues on the issue of Reading’s

       attorney’s fees, though I note that counsel’s oversight likely happened out of an

       understandable desire to put this litigation behind her as quickly as possible.

       Nevertheless, I agree that there is insufficient evidence in the record supporting

       the fee award.


[58]   In all other respects, I fully concur with the majority.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1512-CC-2239 | September 21, 2016 Page 28 of 28
