FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                    ATTORNEYS FOR APPELLEE:

MARK D. GERTH                               W. BRENT THRELKELD
Kightlinger & Gray, LLP                     DANIEL B. STRUNK
Indianapolis, Indiana                       Threlkeld & Associates
                                            Indianapolis, Indiana
KENNETH W. HEIDER
Greenwood, Indiana                                                  FILED
                                                                 Jan 24 2012, 9:21 am


                             IN THE                                        CLERK
                                                                         of the supreme court,
                                                                         court of appeals and


                   COURT OF APPEALS OF INDIANA                                  tax court




VIOLET M. LOCKETT,                          )
                                            )
      Appellant-Plaintiff,                  )
                                            )
             vs.                            )    No. 49A02-1106-CT-552
                                            )
PEGGY HOSKINS a/k/a PEGGY J. SMITH,         )
                                            )
      Appellee-Defendant.                   )


                    APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable S.K. Reid, Judge
                            Cause No. 49D14-0801-CT-1157



                                  JANUARY 24, 2012


                             OPINION - FOR PUBLICATION


BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

         Violet M. Lockett appeals the trial court’s award of attorney’s fees to Peggy

Hoskins a/k/a Peggy J. Smith (“Hoskins”). We reverse.

                                          ISSUE

         Lockett raises one issue, which we restate as: whether the trial court erred by

awarding attorney’s fees to Hoskins. In addition, Hoskins presents a request for appellate

attorney’s fees.

                         FACTS AND PROCEDURAL HISTORY

         Lockett is Hoskins’ mother, and she lived in a home that she rented from Hoskins.

Hoskins lived in an adjacent home, which was connected to Lockett’s garage by a

breezeway. The breezeway had a concrete floor, which was covered by carpeting.

         On July 29, 2006, Lockett walked through the breezeway, as she had many times

in the past, on her way to Hoskins’ house. Lockett tripped and fell on a ridge of concrete

that was concealed by carpeting, breaking her hip in the process.

         Lockett sued Hoskins, claiming that Hoskins had failed to maintain the breezeway

in a reasonable condition. Hoskins filed a counterclaim, asserting that Lockett’s case was

frivolous and requesting an award of attorney’s fees and costs. Next, Hoskins moved for

summary judgment on Lockett’s negligence claim. The trial court granted Hoskins’

motion and entered judgment in Hoskins’ favor. Lockett appealed the trial court’s grant

of summary judgment.         This Court subsequently dismissed Lockett’s appeal for

inactivity. See Lockett v. Hoskins, Cause No. 49A04-1007-CT-460 (Ind. Ct. App. Dec. 7,

2010).

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       Next, Hoskins filed a motion for attorney’s fees and costs. After a hearing, the

trial court granted Hoskins’ motion, determining:

       1.     [Lockett’s] lawsuit was unreasonable, frivolous, and groundless, or

       2.     [Lockett] continued to litigate the action after the claim clearly
              became frivolous, unreasonable, and groundless, or

       3.     [Lockett’s] case was brought in bad faith.

Appellant’s App. p. 194. The trial court awarded Hoskins $22,791.50 in attorney’s fees.

This appeal followed.

                             DISCUSSION AND DECISION

       Indiana follows the “American Rule,” whereby parties are required to pay their

own attorney’s fees absent an agreement between the parties, statutory authority, or other

rule to the contrary. Smyth v. Hester, 901 N.E.2d 25, 32 (Ind. Ct. App. 2009), trans.

denied. Indiana Code section 34-52-1-1(b) (1998) authorizes the award of attorney’s fees

in certain circumstances. That statute provides, in relevant part:

       [T]he court may award attorney’s fees as part of the cost to the prevailing
       party, if the court finds that either party:

              (1) brought the action or defense on a claim or defense that is
              frivolous, unreasonable, or groundless;

              (2) continued to litigate the action or defense after the party’s claim
              or defense clearly became frivolous, unreasonable, or groundless; or

              (3) litigated the action in bad faith.

Id.

       Appellate review of the trial court’s award of attorney’s fees pursuant to Indiana

Code section 34-52-1-1(b) proceeds in three steps. Smyth, 901 N.E.2d at 33. First, we

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review the trial court’s findings of fact under a clearly erroneous standard. Id. Here, the

trial court did not issue any findings of fact, so this step is unnecessary.

       The second step is to review de novo the trial court’s legal conclusions. Id.

Finally, the third step is to review the trial court’s decision to award fees and the amount

thereof under an abuse of discretion standard. Id. at 33-34.

       We begin by reviewing the trial court’s legal conclusions that Lockett’s claim was

unreasonable, frivolous, and groundless, or that she continued with her claim after it

clearly became unreasonable, frivolous, and groundless, or that she filed her claim in bad

faith. A claim or defense is unreasonable if, based on a totality of the circumstances,

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

consider that the claim or defense was worthy of litigation or justified. McClure &

O’Farrell, P.C. v. Grigsby, 918 N.E.2d 335, 340 (Ind. Ct. App. 2009). A claim or

defense is frivolous if: (a) if it is made primarily for the purpose of harassing or

maliciously injuring a person; or (b) if the lawyer does not make a good faith and rational

argument on the merits of the action; or (c) if the lawyer does not support the action taken

by a good faith and rational argument for an extension, modification, or reversal of

existing law. Wolfe v. Eagle Ridge Holding Co., LLC, 869 N.E.2d 521, 530 (Ind. Ct.

App. 2007). A claim is groundless only if no facts exist which support a legal claim

presented by the losing party. Buschman v. ADS Corp., 782 N.E.2d 423, 432 (Ind. Ct.

App. 2003).

       In this case, Lockett presented a claim for premises liability. Specifically, Lockett

contended that she was a social invitee to Hoskins’ property, that Hoskins was obligated

                                               4
to use ordinary care to maintain her property in a reasonably safe condition for invitees,

and that Hoskins negligently breached her duty of care. In response to Hoskins’ motion

for summary judgment on the premises liability claim, Lockett pointed to undisputed

evidence that the concrete ridge in the breezeway floor was concealed by carpet and that

Lockett was unaware of the ridge’s presence. She also contended that the concealed

ridge was unreasonably dangerous and cited precedent to support this argument.

Furthermore, Lockett argued that her past familiarity with the breezeway was irrelevant

to her claim, and she cited precedent in support of this argument. Finally, Lockett cited

to statements by Hoskins agreeing that Lockett was not in any way at fault for the fall and

that she had failed to warn Lockett about the concealed concrete ridge.

      Hoskins contends that Lockett’s premises liability claim is absolutely baseless

under Indiana caselaw because Lockett was familiar with the breezeway prior to her fall.

However, the cases Hoskins cites addressed plaintiffs who were harmed on defendants’

property by dangers of which the plaintiffs were already aware. See, e.g., Smith v. King,

902 N.E.2d 878, 882 (Ind. Ct. App. 2009) (determining that the hole through which the

plaintiff fell was “known and obvious” to the plaintiff), clarified on reh’g, 907 N.E.2d

1088 (2009); Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1266 (Ind. Ct. App.

2002) (determining that the plaintiff was already aware of the open skylight through

which he fell), trans. denied. Here, while Lockett was familiar with the breezeway, she

was unaware of the ridge’s presence.

      Lockett’s claim was ultimately meritless, but her arguments were logical and

supported by citation to precedent. Based on the law and facts, we cannot conclude that a

                                            5
reasonable attorney would consider Lockett’s claim unworthy of litigation. Thus, her

claim was not unreasonable.         Furthermore, Lockett made a good faith and rational

argument on the merits of the action, and there is no evidence that she filed suit against

her daughter primarily for the purposes of harassing or maliciously injuring her.

Consequently, we cannot conclude that Lockett’s claim was frivolous. In addition, this

case presents some facts that supported Lockett’s claim, and so it was not entirely

groundless. Finally, there is no evidence that Lockett acted in bad faith by filing suit

against Hoskins. Rather, Lockett was indisputably injured in a fall on Hoskins’ property

caused by a previously unknown defect in the floor, and she sought relief against the

property owner.

       We cannot conclude that Lockett’s claim was the “sort of needless drain on the

resources of the prevailing party and the judicial system” that Indiana Code section 34-

52-1-1(b) was designed to deter. Mitchell v. Mitchell, 695 N.E.2d 920, 925 (Ind. 1998).

Consequently, the trial court’s legal conclusions that Lockett’s claim was unreasonable,

frivolous, groundless, or filed in bad faith are erroneous. See Buschman, 782 N.E.2d at

432 (affirming the trial court’s denial of attorney fees where the plaintiff filed a good

faith, albeit meritless, claim for relief).

       In the absence of valid legal conclusions justifying an award of attorney’s fees, the

trial court’s grant of fees to Hoskins was an abuse of discretion and must be reversed.

Furthermore, because this appeal is resolved in favor of Lockett, Hoskins’ request for

appellate attorney’s fees is without merit and must be denied.



                                              6
                                     CONCLUSION

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

      Reversed.

RILEY, J., and VAIDIK, J., concur.




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