MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                         Jul 03 2018, 9:47 am

regarded as precedent or cited before any                                          CLERK
                                                                               Indiana Supreme Court
court except for the purpose of establishing                                      Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
John J. Schwarz, II                                       Richard P. Samek
Schwarz Law Office, PC                                    Larry L. Barnard
Hudson, Indiana                                           Carson LLP
                                                          Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert J. Fiedler and Dianne C.                           July 3, 2018
Fiedler,                                                  Court of Appeals Case No.
Appellants-Respondents,                                   44A03-1712-MI-2951
                                                          Appeal from the LaGrange Circuit
        v.                                                Court
                                                          The Honorable Randy L. Coffey,
LaGrange County Regional                                  Special Judge
Utility District,                                         Trial Court Cause No.
Appellee-Petitioner.                                      44C01-1308-MI-56




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018                Page 1 of 20
                                        Statement of the Case
[1]   Robert and Dianne Fiedler (collectively “the Fiedlers”) appeal the trial court’s

      judgment following a final hearing on the LaGrange County Regional Utility

      District’s (“the Utility District”) complaint against the Fiedlers. The Fiedlers

      raise the following issues for our review:


              1.       Whether the trial court abused its discretion when it
                       denied their three motions to amend their answer.

              2.       Whether the trial court abused its discretion when it
                       precluded them from raising constitutional claims at the
                       final hearing.

              3.       Whether the trial court erred when it ordered them to
                       connect their home to a sewer line without also ordering
                       the Utility District to compensate them for an easement on
                       their property.

              4.       Whether the trial court abused its discretion when it
                       awarded the Utility District attorney’s fees.

      We affirm.


                                  Facts and Procedural History
[2]   This court explained the relevant facts and procedural history in a prior appeal

      as follows:


              In February 2008, the Utility District entered into an agreement
              to provide sewer services to the residences located around
              Shipshewana Lake. Some or all of the funding for the sewer
              project was provided by the United States Department of
              Agriculture (USDA). The Code of Federal Regulations requires
      Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 2 of 20
        that the Utility District, having accepted USDA funding, was
        obligated to comply with the Uniform Relocation Assistance and
        Real Property Acquisition Act (URA). 49 CFR 24.101(c)(1).

        For the Utility District to provide sewer services to the affected
        residences, a grinder pump and other equipment had to be
        installed on each lot. The Utility District notified the affected
        homeowners that it would install all necessary equipment, at no
        cost to the homeowners, if the homeowners granted a voluntary
        easement to the Utility District for the installation and
        maintenance of the equipment. The Fiedlers owned a lot on
        Shipshewana Lake and declined to grant a voluntary easement to
        the Utility District. Rather than proceed with condemnation
        proceedings, as allegedly required by the URA, the Utility
        District merely stated that it would not install the equipment, that
        the Fiedlers would have to do so at their own cost, and that the
        Fiedlers were required to disconnect their private septic tank
        system by a certain date. At Utility District meetings held on
        July 11 and August 8, 2012, an attorney for the Utility District
        and a Board member told Robert Fiedler that the Utility District
        was not required to comply with the URA. Appellants’ App. p.
        70-72. The Fiedlers did not comply with the directives issued by
        the Utility District.

        On August 22, 2013, the Utility District filed a complaint against
        the Fiedlers, seeking an order to force the Fiedlers to connect to
        the District’s sewer line, to discontinue use of their own private
        septic system, and to pay the costs and attorney fees stemming
        from the litigation.[] The Utility District filed a motion for
        summary judgment on March 6, 2014, and the Fiedlers, pro se,
        filed a cross-motion for summary judgment on June 4, 2014.

        The trial court held a hearing on the cross-summary judgment
        motions on October 15, 2014. On October 24, 2014, the
        Fiedlers—newly represented by counsel—filed a motion to
        amend their answer and to file counterclaims, alleging for the
        first time that the Utility District was required—and failed—to

Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 3 of 20
        comply with the URA and acted fraudulently throughout its
        dealings with the Fiedlers. On November 19, 2014, the trial
        court entered partial summary judgment in favor of the Utility
        District, finding that the Fiedlers were required to connect to the
        sewer system and reserving the calculation of damages, to
        include attorney fees and hook-up fees, for a later proceeding.
        The Fiedlers sought an interlocutory appeal of this order, but
        their appeal was eventually dismissed.

        As the appellate proceedings were ongoing, counsel for the
        Fiedlers sought documentation pursuant to the Freedom of
        Information Act. Eventually, he received the documents he had
        been seeking, which confirmed that the Utility District was aware
        from the inception of the agreement with the USDA that it
        would be bound by the URA.

        On October 22, 2015, the Fiedlers filed a motion for relief from
        judgment pursuant to Indiana Trial Rule 60(B), alleging that the
        fraudulent behavior of the Utility District and/or newly
        discovered evidence warranted a ruling in their favor. On
        November 25, 2015, the trial court summarily denied the
        motions.


Fiedler v. LaGrange Cty. Reg’l Util. Dist., No. 44A03-1512-MI-2316, 2016 WL

3017921, at *1-2 (Ind. Ct. App. May 25, 2016) (“Fiedler I”). The Fiedlers

appealed the trial court’s denial of their motion to set aside the partial

judgment, and we affirmed the trial court. We held in relevant part as follows:


        First, under Rule 60(B)(2), the Fiedlers argue that they are
        entitled to relief because of the newly-discovered evidence they
        received as a result of their Freedom of Information Act request.
        We acknowledge that they did not receive the documentation
        until after the conclusion of the litigation. But they could have
        requested this documentation long before they actually did.[]

Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 4 of 20
              Moreover, the “evidence” to which they direct our attention is
              not evidence at all. At the heart of their claim is the applicability
              of the URA to the Utility District; this is an issue of law that
              could have been answered without the documents on which they
              rely. We do not find that they are entitled to relief on this basis.

              Second, under Rule 60(B)(3), they contend that they are entitled
              to relief because of the Utility District’s alleged fraud or
              misrepresentation. Specifically, they direct our attention to
              statements made by the Utility District’s attorney at public
              meetings—the attorney stated that the Utility District was not
              required to comply with the URA. They also point to statements
              made by the attorney during a hearing before the trial court. To
              establish fraud under this rule, a party must show (1) a material
              misrepresentation of past or existing fact; (2) that was untrue; (3)
              that was made with knowledge of or in reckless ignorance of its
              falsity; (4) that was made with the intent to deceive; (5) that was
              rightly relied upon by the complaining party; and (6) that
              proximately caused the injury or damage complained of.
              Wheatcraft v. Wheatcraft, 825 N.E.2d 23, 30 (Ind. Ct. App. 2005).
              In this case, any alleged misrepresentation was one of law, not of
              fact. And as stated above, the text of the relevant laws and
              regulations are, and always have been, publicly available.
              Therefore, the Fiedlers cannot be said to have reasonably relied
              on these statements.[] We find no error in the trial court’s denial
              of the motion for relief from judgment pursuant to Trial Rule
              60(B).


      Id. at *3.


[3]   On remand, the trial court held a status hearing on all pending matters,

      including the Fiedlers’ motion for a final order. After that hearing, on April 24,

      2017, the trial court issued an order that set the matter for a “final hearing

      and/or trial” subject to the following “conditions”:

      Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 5 of 20
              a) The Court has already ruled that the [Fiedlers] must connect
              the subject real estate to the LaGrange County Regional Utility
              District sewer system. Any final judgment issued by the Court
              will stand on or by that ruling.

              b) In order to connect to the subject sewer system, an easement
              must exist. In furtherance of this prerequisite, each party shall
              fashion a proposed easement for connection. The proposal must
              allow for a meets [sic] and bounds description of the proposed
              easement. The [Fiedlers] shall allow surveying agents on and
              about the subject real estate sufficient to allow proper
              measurement for such meets [sic] and bounds description. Each
              party shall tender to the other its or their proposed easement on
              or before May 26, 2017.

              c) The parties are required to mediate the issues prior to the
              date. . . .


      Appellants’ App. Vol. II at 36. Thereafter, rather than working out an

      agreement with the Utility District on the easement issue, the Fiedlers “opted to

      purchase their own grinder pump and install it on their own, thereby obviating

      the need for an easement.” Tr. at 44. The Fiedlers finally connected their

      residence to the sewer line on October 31.


[4]   At the final hearing on November 8, the only issues left to address were

      proposed penalties against the Fiedlers and attorney’s fees. After hearing

      evidence, the trial court ordered that no penalties would be assessed against the

      Fiedlers, but that they shall pay $64,511.63 in attorney’s fees to the Utility

      District. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 6 of 20
                                     Discussion and Decision
                                               Law of the Case

[5]   Initially, we address the Utility District’s contention that the issues raised by the

      Fiedlers on appeal are “precluded by law of the case.” Appellee’s Br. at 15. In

      particular, the Utility District maintains that “the Fiedlers’ appeal in this case

      amounts to nothing more than yet another attempt to challenge and overturn

      the Summary Judgment Order.” Id. at 18. And the Utility District asserts that,

      because this court dismissed the Fiedlers’ appeal of the trial court’s summary

      judgment order on procedural grounds (namely, that the appeal was untimely),

      and because we affirmed the trial court’s denial of the Fiedlers’ motion to set

      aside the summary judgment, the Fiedlers are barred from raising the issues

      they assert in this appeal. We cannot agree.


[6]   The law of the case doctrine provides that an appellate court’s determination of

      a legal issue binds both the trial court and the court on appeal in any subsequent

      appeal involving the same case and substantially the same facts. Luhnow v.

      Horn, 760 N.E.2d 621, 625 (Ind. Ct. App. 2001). The purpose of the doctrine is

      to minimize unnecessary relitigation of legal issues once they have been

      resolved by an appellate court. Id. Accordingly, under the law-of-the-case

      doctrine, relitigation is barred for all issues decided “directly or by implication

      in a prior decision.” Id. (quoting Certain Ne. Annexation Area Landowners v. City

      of Ft. Wayne, 622 N.E.2d 548, 549 (Ind. Ct. App. 1993), trans. denied).




      Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 7 of 20
[7]   Here, our dismissal of the Fiedlers’ first appeal of the summary judgment on

      procedural grounds did not decide any substantive issues. And, in our

      memorandum decision affirming the trial court’s denial of the Fiedlers’ Trial

      Rule 60(B) motion, we decided only two issues: whether the trial court should

      have set aside the summary judgment based upon newly discovered evidence or

      based upon the Utility District’s alleged fraud or misrepresentation. Fiedler I,

      slip op. at 3. We did not address the merits of the summary judgment in favor

      of the Utility District, including either the Fiedlers’ constitutional claims or

      their motions to amend their answer. We cannot agree with the Utility

      District’s contention that we addressed each of the issues raised in this appeal

      either directly or by implication.1 Accordingly, we address the Fiedlers’ appeal

      on the merits.


                                  Issue One: Motions to Amend Answer

[8]   The Fiedlers first contend that the trial court abused its discretion when it

      denied their three motions to amend their answer, the first filed on September

      24, 2014, or more than eight months after they filed their initial answer, the

      second filed on October 24, 2014, and the third filed on October 15, 2015.

      Indiana Trial Rule 15 governs the amendment of pleadings. Trial Rule 15(A)

      provides, in pertinent part: “a party may amend his pleading only by leave of

      court or by written consent of the adverse party; and leave shall be given when



      1
        As we discuss below, our resolution of the Fiedlers’ contention that the trial court should have given them
      leave to amend their answer based on “newly discovered evidence” is informed by our memorandum
      decision.

      Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018               Page 8 of 20
      justice so requires.” Amendments to pleadings are to be liberally allowed.

      MAPCO Coal, Inc. v. Godwin, 786 N.E.2d 769, 777 (Ind. Ct. App. 2003). The

      trial court, however, retains broad discretion in granting or denying

      amendments to pleadings, and we will reverse only upon a showing of abuse of

      that discretion. Id. In determining whether an abuse has occurred, we look to a

      number of factors, which include undue delay, bad faith, or dilatory motive on

      the part of the movant, repeated failure to cure deficiency by amendment

      previously allowed, undue prejudice to the opposing party by virtue of the

      amendment, and futility of the amendment. Id.


[9]   First, the Fiedlers cannot show that the trial court abused its discretion when it

      denied their first motion to amend their answer because they did not include

      with that motion a proposed amendment or otherwise tell the court the reason

      for the proposed amendment other than to state, without explanation, that they

      had become “privy to new information that was not known at the time they

      filed their answer pro se.”2 Appellants’ App. Vol. II at 55. Second, the Fiedlers

      do not explain in their brief on appeal what amendments were proposed to their

      answer in either their second or third motions to amend their answer. The

      Fiedlers state in their brief on appeal only that the amendments included “four

      (4) pages of counterclaims against the District that utilized . . . newly discovered




      2
        We reject the Fiedlers’ contention in their reply brief that the “filing of a proposed amended pleadings [sic]
      was not necessary or required.” Reply Br. at 14. It goes without saying that a trial court cannot exercise its
      discretion in ruling on such a motion, let alone abuse its discretion, if it has no way to determine the merits of
      a proposed amendment.

      Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018                  Page 9 of 20
       evidence to support several constitutional challenges.” Appellants’ Br. at 21.

       And, without citation to the record,3 the Fiedlers set out the “newly discovered

       evidence” they allege supported their motions to amend their answer as follows:


                1.       The District received Federal Funding for the
                         Shipshewana Lake Project and was required to adhere to
                         the URA.

                2.       The District wholly failed to adhere to the URA.

                3.       The District treated homeowners disproportionately.

                4.       The District had engaged in fraud and misrepresentation.

                5.       That Fiedler had valid constitutional claims based upon
                         the evidence it [sic] had unearthed.


       Id.


[10]   We reject the Fiedlers’ contention that “newly discovered evidence” supported

       their motions to amend for several reasons. In Fiedler I, this court rejected the

       Fiedlers’ claims regarding the allegedly “newly discovered evidence” in the

       context of their motion to set aside the trial court’s partial summary judgment.

       In particular, we noted that there was “no dispute that at all times, the Fiedlers

       have known that the sewer project was fully or partially funded by the USDA”

       and Robert Fiedler had “sharply questioned the Utility District attorney about




       3
         We note that the Fiedlers’ brief on appeal is replete with alleged statements of “fact” without any citation to
       the record on appeal to support them. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018                Page 10 of 20
       compliance with the URA” at a Utility District meeting on August 8, 2012.

       Fiedler I, slip op. at *2 n.2. Further, we observed that “the applicability of the

       URA to the Utility District . . . is an issue of law that could have been answered

       without the [newly obtained] documents on which they rel[ied]” in support of

       their motion to set aside the judgment. Id. at *3. Thus, we rejected the

       Fiedlers’ argument that any of the alleged “evidence” was “newly discovered.”


[11]   With respect to the alleged “disproportionate” treatment argument, the Fiedlers

       state in their brief, again without citation to the record, that they did not learn

       that they had been treated differently from other homeowners until five months

       after they had filed their answer. Without any citation to evidence to support

       that statement, we cannot say that the Fiedlers have shown an abuse of the trial

       court’s discretion in rejecting the proposed amendment on that ground.


[12]   Finally, with respect to the Fiedlers’ contention that they had been

       “intentionally misled by the District” and, therefore, did not know “at the time

       of filing their answer the URA had not been followed,” this court rejected a

       similar argument in Fiedler I. Appellants’ Br. at 19. As we held in that

       memorandum decision, “any alleged misrepresentation” that the Utility District

       was not required to comply with the URA “was one of law, not of fact.” Fiedler

       I, slip op. at *3 (emphases original). Because “the text of the relevant laws and

       regulations are, and always have been, publicly available[,]” the Fiedlers

       “cannot be said to have reasonably relied on these statements.” Id. For these

       same reasons, the Fiedlers cannot show that the proposed amendment on this

       basis was warranted based on “newly discovered evidence.”

       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 11 of 20
[13]   In sum, the Fiedlers have not persuaded us that the claims they sought to bring

       in their amended answer were unknown or unknowable at the time they filed

       their initial answer. And they waited more than eight months after their initial

       answer to file their first motion to amend their answer. At that time, the parties

       had already submitted their memoranda on the Utility District’s summary

       judgment motion. We hold that the Fiedlers have not shown that their

       proposed amendments to their answer were made without undue delay. See

       Hilliard v. Jacobs, 927 N.E.2d 393, 399 (Ind. Ct. App. 2010) (affirming trial

       court’s denial of plaintiff’s motion to amend complaint where new claims could

       have been raised in original complaint and motion filed after trial court issued

       summary judgment order), trans. denied. The trial court did not abuse its

       discretion when it denied the motions to amend their answer.


                                    Issue Two: Constitutional Claims

[14]   The Fiedlers next contend that the trial court abused its discretion when it

       ordered that they would be prohibited at the final hearing from arguing claims

       that the Utility District had violated their constitutional rights. In particular, in

       its “Order Following Final Pretrial Hearing,” the court stated in relevant part as

       follows: “The [Fiedlers] request that the Court hear evidence regarding the

       [Fiedlers’] equal protection arguments. The Court finds that such arguments

       shall not be heard, inasmuch as the same arguments are moot by virtue of the

       Court’s previous summary judgment order.” Appellants’ App. Vol. II at 38.

       On appeal, the Fiedlers maintain that their constitutional arguments were not

       moot and that they “should have been allowed by the Trial Court to bring up

       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 12 of 20
       issues of constitutionality at [the] final hearing.” Appellants’ Br. at 24.

       However, as we explain below, the Fiedlers have waived this issue for our

       review.


[15]   A pre-trial hearing or a motion in limine is appropriate to determine the

       admissibility of evidence prior to trial. See Miller v. State, 716 N.E.2d 367, 370

       (Ind. 1999). However, in order to preserve an error for appellate review, a party

       must do more than challenge the ruling on a motion in limine. Id. To raise the

       question of error, the evidence must be offered at trial to give the trial court an

       opportunity to rule on its admissibility at that time. Id.


[16]   Here, the Fiedlers do not direct us to any part of the record on appeal showing

       that they challenged the trial court’s ruling on this issue in its pretrial order by

       attempting to raise any constitutional argument at the final hearing. And our

       review of the transcript of the final hearing shows that the Fiedlers did not ask

       the court to reconsider its ruling on their proffered constitutional arguments.

       The Fiedlers have waived this issue for our review. See id.


                               Issue Three: Compensation for Easement

[17]   The Fiedlers contend that the trial court “erred when it issued an order stating

       that Fiedler had to connect” to the new sewer line. Appellants’ Br. at 48. They

       maintain that “[r]equiring [them] to connect without being paid for the

       easement violated the URA.” Id. However, again, the Fiedlers have waived

       this issue for our review.




       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 13 of 20
[18]   First, the Fiedlers do not cite either relevant authority or the record on appeal in

       support of their argument on this issue. Rather, the Fiedlers refer us to an

       argument “earlier in this brief,” but they do not cite the location of the

       supporting argument. Id. Second, and moreover, the Fiedlers do not direct us

       to any part of the record on appeal showing that the trial court ordered them to

       grant the Utility District an easement without compensation. Our review of the

       record shows that, while the trial court ordered the Fiedlers to connect to the

       new sewer line, the court also ordered and decreed as follows: “In order to

       connect to the subject sewer system, an easement must exist. In furtherance of

       this prerequisite, each party shall fashion a proposed easement for

       connection. . . . Each party shall tender to the other its or their proposed

       easement on or before May 26, 2017.” Appellants’ App. Vol. II at 36. Nothing

       in the trial court’s order states that the Utility District was entitled to an

       easement without compensation.4 And, in any event, rather than negotiating

       an easement with the Utility District per the trial court’s order, the Fiedlers

       “opted to purchase their own grinder pump and install it on their own, thereby

       obviating the need for an easement.” Tr. at 44. The Fiedlers have not

       demonstrated that the trial court ordered them to grant the Utility District an

       easement without compensation, let alone that the court erred if it did so.




       4
         If there is anything in the record showing that the trial court ordered an easement without compensation,
       the Fiedlers do not cite to it, and our review of the record reveals no such order.

       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018             Page 14 of 20
                                         Issue Four: Attorney’s Fees

[19]   Finally, the Fiedlers contend that the trial court abused its discretion when it

       ordered them to pay the Utility District’s attorney’s fees. We review a trial

       court’s decision to grant a petition for attorneys’ fees for an abuse of discretion.

       R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012). A

       trial court has abused its discretion if its decision clearly contravenes the logic

       and effect of the facts and circumstances or if the court has misinterpreted the

       law. Id.


[20]   The Fiedlers’ argument on this issue is two-fold. First, they maintain that this

       case is on all fours with that in Steuben Lakes Regional Waste District v. Tucker,

       904 N.E.2d 718 (Ind. Ct. App. 2009), where this court affirmed the trial court’s

       denial of the waste district’s request of attorney’s fees. Second, the Fiedlers

       maintain that, because the trial court found that “the penalty provision of [the

       LaGrange County Regional Utility District Ordinance No. 2014-8-25] on its

       face violates [Indiana Code Section 13-26-5-2] . . . [and] no valid ordinance

       exists that allows for any penalty[,]” the court was barred from awarding

       attorney’s fees. Appellants’ App. Vol. II at 48. We address each contention in

       turn.


[21]   In Tucker, homeowners initially agreed to grant an easement for connection to a

       new sewer system, but after a “dispute arose” regarding the location of the

       easement, the waste district threatened to increase the cost of the connection,

       and the homeowners filed a declaratory judgment action against the waste

       district. 904 N.E.2d at 720. After the waste district moved for summary
       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 15 of 20
judgment, the parties negotiated a settlement agreement, and the waste district

asked the trial court to hold a hearing to determine costs and fees. Still, the trial

court held a summary judgment hearing and entered summary judgment in

favor of the homeowners. In particular:


        The trial court reasoned that the Wa[ste] District created a
        “Constitutional dilemma” for the Tuckers by forcing them to
        either surrender their right to a condemnation proceeding or pay
        a higher connection charge and attorney fees. The trial court
        ordered the Tuckers to pay the $2,775.00 connection charge plus
        pre-judgment interest and ordered the parties to pay their own
        attorney fees.


Id. On appeal, we affirmed the trial court and stated, “[t]he trial court properly

ordered the Tuckers to pay the $2,775.00 connection charge instead of the

$8,191.60 subsequently requested by the Waste District.” Id. at 723. And we

affirmed the trial court’s denial of the waste district’s attorney’s fee request,

stating as follows:


        [T]he Waste District asserts that it is entitled to attorney fees
        based on Indiana Code Section 13-26-5-2(9), which allows the
        Waste District to “apply to the circuit or superior court of the
        county in which the property is located for an order to force
        connection, with the cost of the action, including reasonable
        attorney’s fees of the district, to be assessed by the court against
        the property owner in the action.” It appears that the Tuckers have
        always agreed to connect to the sewer. See App. p. 18. They only
        refused to voluntarily grant the Waste District the specific easement it
        requested. As a result, the Waste District threatened to nearly
        triple the Tuckers’ connection charge. The Tuckers then filed an
        action seeking to stop the Waste District from demanding a


Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 16 of 20
               specific easement and increasing the connection charge, and the
               Waste District counter-claimed.

               This litigation arose out of the dispute regarding the easement and the
               threat of an increased connection charge, not the Tuckers’ failure to
               connect to the sewer after the easement was procured and sewer was
               constructed. The Waste District has not established that it is
               entitled to attorney fees for the litigation associated with the
               procurement of the easement and the determination of the
               appropriate connection charge.


       Id. (emphases added).


[22]   The Fiedlers maintain that, like the Tuckers, they “did not want to voluntarily

       provide an easement to the District and pay a higher connection charge.”

       Appellants’ Br. at 41. The Fiedlers continue, “[b]y not being agreeable to

       giving an easement, Fiedler had to pay for the pump and other costs to be

       connected. This was an increased connection charge assessed to Fiedler[,]”

       akin to the increased connection charge in Tucker. Id. The Fiedlers direct us to

       evidence that the Utility District “lay[ed] out the consequences” for failing to

       voluntarily give an easement, including being subjected to attorney’s fees and

       court costs. Id. at 42. Thus, the Fiedlers contend that Tucker is controlling and

       requires that the attorney’s fee award be reversed. We cannot agree.


[23]   Indiana Code Section 13-26-5-2(9) provides as follows:


               [A district may p]rovide by ordinance for a reasonable penalty,
               not to exceed one hundred dollars ($100) per day, for failure to
               connect and also apply to the circuit or superior court of the
               county in which the property is located for an order to force

       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 17 of 20
               connection, with the cost of the action, including reasonable attorney’s
               fees of the district, to be assessed by the court against the property
               owner in the action.


       (Emphasis added). In Tucker, the homeowners filed a complaint for declaratory

       judgment against the waste district, and the trial court denied the waste

       district’s request for attorney’s fees under the statute. In contrast, here, the

       Utility District filed a complaint against the Fiedlers “to force connection” to

       the new sewer line after they refused to do so. Id. Because attorney’s fees are

       expressly permitted under the statute under these circumstances, Tucker is

       inapposite and we cannot say that the trial court abused its discretion when it

       awarded attorney’s fees.


[24]   Next we address the Fiedlers’ contention that the attorney’s fee provision of the

       LaGrange County Regional Utility District Ordinance No. 2014-8-25 (“the

       Ordinance”) is invalid and requires that we reverse the attorney’s fee award.

       The Fiedlers maintain that, because the trial court found that “the penalty

       provision of [the Ordinance] on its face violates [Indiana Code Section 13-26-5-

       2] . . . [and that] no valid ordinance exists that allows for any penalty[,]” the

       attorney’s fee provision must also be invalid. Appellants’ App. Vol. II at 48

       (emphasis original). In essence, the Fiedlers assert that attorney’s fees are

       penalties under the Ordinance and are, therefore, not permitted here. We

       cannot agree.


[25]   While the trial court expressly found that the penalty provision of the ordinance

       was invalid and did not assess any penalty against the Fiedlers for that reason,

       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 18 of 20
       the trial court did not find the attorney’s fee provision in the ordinance to be

       invalid.5 On the contrary, the trial court cited Indiana Code Section 13-26-5-

       2(9) as granting “authority to the [Utility District] to enact an ordinance

       authorizing recover[y] of ‘reasonable attorney’s fees.’” Id. Thus, the trial court

       relied on the attorney’s fee provision in the Ordinance in awarding attorney’s

       fees. The Fiedlers’ contention that the attorney’s fee provision is invalid

       because the penalty provision is invalid is entirely without merit. The trial

       court did not abuse its discretion when it awarded the Utility District attorney’s

       fees.6


                                                       Conclusion

[26]   The trial court did not abuse its discretion when it denied the Fiedlers’ three

       motions to amend their answer. The Fiedlers did not preserve for appellate

       review the issue of whether the trial court abused its discretion when it

       precluded them from raising constitutional claims at the final hearing. The

       Fiedlers have not demonstrated that the trial court ordered them to connect to

       the sewer line by granting an easement without compensation or that it erred if

       it did so. And the trial court did not abuse its discretion when it ordered the

       Fiedlers to pay a portion of the Utility District’s attorney’s fees.




       5
        We reject the Fiedler’s assertion that, because the attorney’s fee provision was included in a section of the
       Ordinance entitled “Penalties for Violation,” it must be considered a penalty.
       6
        As the trial court noted, the Fiedlers did not “contest the value of the attorney fee claim[.]” Appellants’
       App. Vol. II at 49.

       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018               Page 19 of 20
[27]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 44A03-1712-MI-2951 | July 3, 2018   Page 20 of 20
