MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Dec 03 2019, 8:36 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEES:
Bryan L. Ciyou                                          TANDRA S. JOHNSON AND
Indianapolis, Indiana                                   TANDRA S. JOHNSON, LLC
                                                        Michael H. Michmerhuizen
                                                        Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gene Towns and Jackie Towns,                            December 3, 2019
Appellants-Intervenors,                                 Court of Appeals Case No.
                                                        19A-DR-1047
        v.                                              Appeal from the Wells Circuit
                                                        Court
Josephine Long and Joseph                               The Honorable Kenton W.
Long,                                                   Kiracofe, Judge
Petitioner and Respondent,                              Trial Court Cause No.
                                                        90C01-0902-DR-4
and

Tandra S. Johnson and Tandra
S. Johnson, LLC,
Appellee.



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019                   Page 1 of 19
                                                Case Summary
[1]   In this interlocutory appeal, Gene and Jackie Towns (“Grandparents”) appeal

      the trial court’s order denying Grandparents’ motion to disqualify Tandra

      Johnson and Tandra S. Johnson, LLC (“Attorney Johnson”) as the attorney of

      Joseph Long and the trial court’s grant of Attorney Johnson’s motion for

      sanctions. 1 We affirm.


                                                        Issues
[2]   Grandparents raise two issues, which we restate as:


               I.       Whether the trial court properly denied
                        Grandparents’ motion to disqualify and remove
                        Attorney Johnson; and

               II.      Whether the trial court properly granted Attorney
                        Johnson’s request for sanctions under Indiana Code
                        Section 34-52-1-1.




      1
        This is an interlocutory appeal as of right under Indiana Appellate Rule 14(A) because it is an order “[f]or
      the payment of money.” Johnson argues that Grandparents are judicially estopped from challenging the
      denial of their motion to disqualify Johnson and that Grandparents may challenge only the award of
      sanctions. According to Johnson, Grandparents asserted to the trial court that this appeal concerned only the
      award of sanctions, not the denial of Johnson’s disqualification. See Appellee’s App. Vol. II pp. 2-3
      (“Attorney Tandra Johnson has not been disqualified, and since the sole issue on appeal is whether the
      granting of Attorney Johnson’s request for fees and expenses was error, this matter pertaining to the custody
      motion filed by [Grandparents] can proceed on the merits simultaneously with the interlocutory appeal.”).
      Although we agree that Grandparents’ assertions to the trial court were incorrect and misleading, we note
      that we have jurisdiction to consider both the denial of the motion to disqualify and the granting of the
      motion for sanctions. See Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 322 (Ind. Ct. App. 2006) (holding that
      the court had jurisdiction to review both the discovery order and the order imposing sanctions for failure to
      comply with the discovery order in the interlocutory appeal as of right). Under these circumstances, we will
      address Grandparents’ arguments regarding the denial of their motion to disqualify Johnson.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019                  Page 2 of 19
      On cross-appeal, Attorney Johnson raises one issue, which we restate as

      whether she is entitled to fees under Indiana Appellate Rule 66(E).


                                                        Facts
[3]   Jackie Towns is the mother of Joseph Long, and Gene Towns is Jackie’s

      husband and Joseph’s stepfather. Joseph was married to Josephine Long in

      2006, and they are the parents of M.L., who was born in June 2006. During

      their marriage, Joseph, Josephine, and M.L. lived with Grandparents.


[4]   In 2009, Joseph and Grandparents consulted with Attorney Johnson to initiate

      a dissolution of marriage action regarding Joseph and Josephine’s marriage.

      Grandparents paid Joseph’s legal bills related to the dissolution because Joseph

      did not have the funds to hire a lawyer. Attorney Johnson filed an appearance

      on behalf of Joseph and filed a petition for dissolution of marriage. Joseph and

      Josephine executed a settlement agreement in July 2009. The settlement

      agreement provided for joint legal custody and shared physical custody of M.L.

      between Joseph and Josephine. The settlement agreement also provided: “The

      parties agree that Husband’s step-father, Gene Towns, shall be designated as

      the de facto custodian of said minor child, in accordance with Ind. Code § 31-9-

      1-35.5.” 2 Appellants’ App. Vol. II p. 142.




      2
        The de facto custodian definition is actually found at Indiana Code Section 31-9-2-35.5, which provides that
      a de facto custodian is:



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019                 Page 3 of 19
[5]   After the dissolution, Joseph and Josephine had significant post-dissolution

      issues. On December 12, 2010, Joseph signed a Fee Engagement Agreement

      with Attorney Johnson. The Fee Engagement Agreement identified Joseph as

      the “Client” and provided:


              I employ Tandra S. Johnson, Esq. (hereinafter “my attorney”) of
              the law firm Tandra S. Johnson, LLC (hereinafter “Firm”), and
              such of the Firm’s agents and employees as it may use to take
              such action as the Firm deems necessary, to represent me in a
              contempt, parenting time, possible custody matter action.


      Id. at 57, 59. Grandparents then signed a Guarantee, which provided:


              I, the undersigned, personally guarantee the performance of the
              client, to the above terms. I understand that the client is the
              person to whom Tandra S. Johnson will answer and by whom
              she will be instructed. This guarantee does not create the
              attorney client relationship between Tandra S. Johnson, LLC
              and me. I will only receive such information regarding this case
              as the client should approve. I understand that Tandra S.
              Johnson, LLC will rely on this guarantee in extending credit to
              the client. This guarantee shall be immediately binding on the
              Guarantor and shall continue in full force and effect until the
              Guarantor has given written notice by registered mail to Tandra




            [A] person who has been the primary caregiver for, and financial support of, a child who has
            resided with the person for at least:
              (1) six (6) months if the child is less than three (3) years of age; or
              (2) one (1) year if the child is at least three (3) years of age.
            Any period after a child custody proceeding has been commenced may not be included in
            determining whether the child has resided with the person for the required minimum period.
            The term does not include a person providing care for a child in a foster family home (as defined
            in IC 31-9-2-46.9).



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019                 Page 4 of 19
              S. Johnson, LLC not to extend further credit. Delivery of notice
              shall operate to prevent any liability on the part of the Guarantor
              to future indebtedness, but Guarantor shall remain liable upon all
              indebtedness then existing.


      Id. at 60.


[6]   Joseph and Josephine entered into a mediation agreement in September 2013,

      and Gene was removed as M.L.’s de facto custodian at that time.


[7]   In August 2018, Joseph moved out of Grandparents’ residence and took M.L.

      with him. On August 11, 2018, Grandparents informed Attorney Johnson that

      they were “no longer responsible for any of Joseph’s legal bills.” Tr. Vol. II p.

      129. In September 2018, Grandparents sought to intervene in the post-

      dissolution proceedings and filed a claim for legal custody and parenting time of

      M.L. The trial court granted Grandparents “intervenor status to determine

      [their] de facto custodian status.” Appellants’ App. Vol. II p. 11.


[8]   In November 2018, Grandparents filed a motion to disqualify Attorney

      Johnson and for sanctions. Attorney Johnson responded to Grandparents’

      motion and requested that Grandparents’ motion for sanctions be denied and

      that she be granted sanctions under Indiana Code Section 34-52-1-1 because

      Grandparents’ motion was frivolous, unreasonable, and groundless.


[9]   At an evidentiary hearing in December 2018, Attorney Johnson called Donald

      Lundberg, former Executive Director of the Indiana Supreme Court

      Disciplinary Commission, to testify. Lundberg testified that, in his opinion,


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 5 of 19
       Grandparents did not have an attorney-client relationship with Attorney

       Johnson and that there was “no basis to disqualify her.” Id. at 152. Rather,

       Grandparents had “some incidental or consequential benefits from Ms.

       Johnson’s representation of Joe.” Id. at 151.


[10]   The trial court entered findings of fact and conclusions of law denying

       Grandparents’ motion to disqualify Attorney Johnson; denying Grandparents’

       request for sanctions; and granting Attorney Johnson’s request for sanctions

       under Indiana Code Section 34-52-1-1. The trial court ordered Grandparents to

       pay Attorney Johnson’s fees and expenses for contesting Grandparents’ motion

       to disqualify in the amount of $27,614.78. Grandparents now appeal.


                                                   Analysis
[11]   The trial court here entered findings of fact and conclusions of law pursuant to

       Indiana Trial Rule 52(A). In reviewing findings made pursuant to Trial Rule

       52, we first determine whether the evidence supports the findings and then

       whether the findings support the judgment. K.I. ex rel. J.I. v. J.H., 903 N.E.2d

       453, 457 (Ind. 2009). On appeal, we “shall not set aside the findings or

       judgment unless clearly erroneous, and due regard shall be given to the

       opportunity of the trial court to judge the credibility of the witnesses.” Id.; Ind.

       Trial Rule 52(A). A judgment is clearly erroneous when there is no evidence

       supporting the findings or the findings fail to support the judgment. K.I., 903

       N.E.2d at 457. A judgment is also clearly erroneous when the trial court

       applies the wrong legal standard to properly found facts. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 6 of 19
                                      I. Disqualification of Counsel

[12]   “A trial court may disqualify an attorney for a violation of the Indiana Rules of

       Professional Conduct (“IRPC”).” Reed v. Hoosier Health Sys., Inc., 825 N.E.2d

       408, 411 (Ind. Ct. App. 2005). Grandparents argue that Attorney Johnson

       violated two Indiana Rules of Professional Conduct, Rule 1.7 and Rule 1.9.

       Rule of Professional Conduct 1.7 provides:


               (a) Except as provided in paragraph (b), a lawyer shall not
               represent a client if the representation involves a concurrent
               conflict of interest. A concurrent conflict of interest exists if:


                       (1) the representation of one client will be directly adverse
                       to another client; or


                       (2) there is a significant risk that the representation of one
                       or more clients will be materially limited by the lawyer’s
                       responsibilities to another client, a former client or a third
                       person or by a personal interest of the lawyer.


               (b) Notwithstanding the existence of a concurrent conflict of
               interest under paragraph (a), a lawyer may represent a client if:


                       (1) the lawyer reasonably believes that the lawyer will be
                       able to provide competent and diligent representation to
                       each affected client;


                       (2) the representation is not prohibited by law;


                       (3) the representation does not involve the assertion of a
                       claim by one client against another client represented by


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 7 of 19
                       the lawyer in the same litigation or other proceeding
                       before a tribunal; and


                       (4) each affected client gives informed consent, confirmed
                       in writing.


[13]   Rule of Professional Conduct 1.9 provides:


               (a) A lawyer who has formerly represented a client in a matter
               shall not thereafter represent another person in the same or a
               substantially related matter in which that person’s interests are
               materially adverse to the interests of the former client unless the
               former client gives informed consent, confirmed in writing.


               (b) A lawyer shall not knowingly represent a person in the same
               or a substantially related matter in which a firm with which the
               lawyer formerly was associated had previously represented a
               client


                       (1) whose interests are materially adverse to that person;
                       and


                       (2) about whom the lawyer had acquired information
                       protected by Rules 1.6 and 1.9(c) that is material to the
                       matter; unless the former client gives informed consent,
                       confirmed in writing.


               (c) A lawyer who has formerly represented a client in a matter or
               whose present or former firm has formerly represented a client in
               a matter shall not thereafter:


                       (1) use information relating to the representation to the
                       disadvantage of the former client except as these Rules


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 8 of 19
                       would permit or require with respect to a client, or when
                       the information has become generally known; or


                       (2) reveal information relating to the representation except
                       as these Rules would permit or require with respect to a
                       client.


[14]   A current or former attorney-client relationship between Grandparents and

       Attorney Johnson would be required for either of these rules to be applicable

       here. Grandparents argue that Attorney Johnson should have been disqualified

       from representing Joseph in the post-dissolution proceedings because, at the

       same time, Attorney Johnson also represented Grandparents, who later

       intervened in the action. Alternatively, Grandparents argue that Attorney

       Johnson previously represented Grandparents and that Attorney Johnson owed

       them a duty not to act contrary to their interests.


[15]   Grandparents later contend that Attorney Johnson jointly represented Joseph

       and Grandparents in 2009, that Attorney Johnson acted only as Joseph’s

       attorney in 2010 and early 2011, and that Attorney Johnson had an attorney-

       client relationship with Grandparents from 2011 through 2018. Attorney

       Johnson, however, argues that she never had an attorney-client relationship

       with Grandparents, and the trial court agreed.


[16]   The determinative issue here is whether Attorney Johnson had an attorney-

       client relationship with Grandparents. “[A]n attorney-client relationship need

       not be express, but may be implied by the conduct of the parties.” Matter of

       Kinney, 670 N.E.2d 1294, 1297 (Ind. 1996). The relationship is consensual,

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 9 of 19
       existing only after both attorney and client have consented to its formation. Id.

       “[T]he mere provision of nominal legal advice is not automatically dispositive

       where the existence of an attorney-client relationship is disputed.” Id. at 1298.


[17]   “‘Attorney-client relationships have been implied where a person seeks advice

       or assistance from an attorney, where the advice sought pertains to matters

       within the attorney’s professional competence, and where the attorney gives the

       desired advice or assistance.’” Douglas v. Monroe, 743 N.E.2d 1181, 1184 (Ind.

       Ct. App. 2001) (quoting In re Anonymous, 655 N.E.2d 67, 71 (Ind. 1995)). “‘An

       important factor is the putative client’s subjective belief that he is consulting a

       lawyer in his professional capacity and on his intent to seek professional

       advice.’” Id. (quoting Anonymous, 655 N.E.2d at 70)). “[A] ‘would-be client’s

       unilateral belief cannot create an attorney-client relationship.’” Id. at 1185

       (quoting Hacker v. Holland, 570 N.E.2d 951, 955 (Ind. Ct. App. 1991), trans.

       denied). The trial court concluded that no attorney-client relationship existed,

       and we must determine whether the trial court’s conclusion is clearly erroneous.


[18]   At the evidentiary hearing, Gene testified that he believed Attorney Johnson

       represented “all of us.” Tr. Vol. II p. 30. Grandparents occasionally had

       conversations with Attorney Johnson about the dissolution and post-dissolution

       proceedings, they provided information to Attorney Johnson, and they

       occasionally emailed with Attorney Johnson. Gene also attended a mediation

       with Joseph and was named de facto custodian of M.L. in Joseph’s settlement

       agreement with Josephine. According to Grandparents, Attorney Johnson

       never told Grandparents to obtain their own counsel.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 10 of 19
[19]   The trial court, however, was also presented with evidence that: (1) Attorney

       Johnson represented Joseph in his dissolution proceedings with Josephine; (2)

       when post-dissolution issues arose, Attorney Johnson and Joseph entered into a

       written Fee Engagement Agreement by which Joseph employed Attorney

       Johnson as his attorney in the post-dissolution proceedings; (3) Grandparents

       entered into a Guarantee by which they agreed to guarantee Joseph’s payments

       to Attorney Johnson; (4) the Guarantee specifically provided that no attorney-

       client relationship existed between Attorney Johnson and Grandparents; (5)

       Grandparents were never a party to the dissolution or post-dissolution

       proceedings prior to intervening; (6) correspondence from Attorney Johnson

       was addressed to Joseph; (7) Attorney Johnson’s bills were sent to Joseph

       although they were paid by Grandparents; (8) Attorney Johnson’s bills clearly

       identified Joseph as the client; (9) Lundberg gave an expert opinion that

       Attorney Johnson did not have an attorney-client relationship with

       Grandparents and that there was no valid reason for Attorney Johnson’s

       disqualification; (10) Attorney Johnson testified that she told Grandparents that

       she represented only Joseph and that Joseph gave her permission to share

       information with Grandparents as Attorney Johnson “saw fit”; and (11) Joseph

       testified that he heard Attorney Johnson tell Grandparents that she was only

       Joseph’s attorney on more than one occasion. Tr. Vol. II p. 183.


[20]   There was no express agreement to create an attorney-client relationship

       between Grandparents and Attorney Johnson. As such, the trial court

       addressed whether the evidence established an implied attorney-client


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 11 of 19
       relationship. After discussing and weighing the evidence at length, the trial

       court found:


               27. The Court finds that the conduct of Johnson towards
               [Grandparents] is insufficient to establish an attorney-client
               relationship was impliedly formed with either Gene or Jackie.


               28. The Court specifically finds that an attorney-client
               relationship was not implied by the conduct of Johnson and
               [Grandparents].


       Appellants’ App. Vol. II p. 29.


[21]   Our Supreme Court, however, has held that, in reviewing findings of fact and

       conclusions of law, “[a]ppellate judges are not to reweigh the evidence nor

       reassess witness credibility, and the evidence should be viewed most favorably

       to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Grandparents’

       argument that they had an attorney-client relationship with Attorney Johnson is

       merely a request that we reweigh the evidence, which we cannot do. Given the

       evidence presented at the hearing, we cannot say that the trial court’s findings

       are clearly erroneous or that its conclusion that no attorney-client relationship

       existed between Attorney Johnson and Grandparents is clearly erroneous.

       Because no attorney-client relationship was established, Grandparents failed to

       demonstrate a violation of the Indiana Rules of Professional Conduct.

       Accordingly, the trial court’s denial of Grandparents’ motion to disqualify

       Attorney Johnson is not clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 12 of 19
                                              II. Attorney Fees

[22]   Grandparents also appeal the trial court’s grant of Attorney Johnson’s motion

       for sanctions pursuant to Indiana Code Section 34-52-1-1. Indiana Code

       Section 34-52-1-1(b) provides:


               In any civil action, the court may award attorney’s fees as part of
               the cost to the prevailing party, if the court finds that either party:


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


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


               (3) litigated the action in bad faith.


[23]   A claim is “frivolous” if “it is made primarily to harass or maliciously injure

       another; if counsel is unable to make a good faith and rational argument on the

       merits of the action; or if counsel is unable to support the action by a good faith

       and rational argument for extension, modification, or reversal of existing law.”

       Am.’s Directories Inc., Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059,

       1070-71 (Ind. Ct. App. 2005), trans. denied. A claim is “unreasonable” if,

       “based upon the totality of the circumstances, including the law and facts

       known at the time, no reasonable attorney would consider the claim justified or

       worthy of litigation.” Id. at 1071. A claim is “groundless” if “no facts exist

       which support the claim relied upon by the losing party.” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 13 of 19
[24]   The trial court concluded that Grandparents’ motion to disqualify Attorney

       Johnson was frivolous, unreasonable, and groundless. Specifically, the trial

       court found:


               52. There was never an attorney-client relationship created
               between Johnson and [Grandparents].


               53. From the very beginning, [Grandparents’] relationship with
               Johnson was centered around Joe and his marriage to Josephine,
               and then, subsequently, around Joe and post-dissolution matters
               related to Josephine and their son, [M.L.].


               54. Although [Grandparents] accompanied Joe to his initial
               appointment with Johnson, their purpose was to finance
               Johnson’s representation of Joe in a dissolution of his marriage
               to Josephine.


               55. Subsequently, [Grandparents] signed an agreement that
               specifically distinguished between Joe as the client and
               themselves as the guarantors of any financial responsibility Joe
               had with Johnson. This agreement says the exact opposite which
               they have attempted to bring the court’s attention in the Verified
               Motion to Disqualify and Remove Counsel of Record and for
               Sanctions.


               56. [Grandparents] cited no case law that remotely supports the
               conclusion that if two parties agreed to the appointment of a de
               facto custodian . . . that it is sufficient to create an attorney-client
               relationship between the de facto custodian and counsel for one
               of the parties. Further, [Grandparents] have cited no case law
               that remotely supports the conclusion that sending a courtesy
               copy of a letter directed specifically to a client creates an
               attorney-client relationship with the copied parties. Gene Towns
               admitted that he knew that Joe was the client, but testified that

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 14 of 19
        that was just a “technicality.” Rule 3.7 of the Indiana Rules of
        Professional Conduct does not support disqualifications, and
        [Grandparents’] reliance on this Rule was wholly and completely
        without merit. The Court finds that [Grandparents’] Verified
        Motion to Disqualify and Remove Counsel of Record and for
        Sanctions is “frivolous” as defined in the law.


        57. The Verified Motion to Disqualify and Remove Counsel of
        Record and for Sanctions is “unreasonable” because, based upon
        all of the circumstances[,] no reasonable attorney would consider
        the claim worthy of raising. As Donald Lundberg pointed out,
        there is simply no basis to find that Johnson was also an attorney
        for [Grandparents]. [Grandparents] had no pending claims and
        specifically signed an agreement that Johnson was not their
        attorney. Johnson never appeared for [Grandparents] in this
        action nor did she perform any legal services on behalf of
        [Grandparents]. All of Johnson’s efforts were directed solely
        toward Joe. No reasonable attorney, after reading Rule 3.7 and
        the comments thereto, would assert that Rule 3.7 dictates that
        Johnson be disqualified.


        58. The Court finds no facts supporting the creation of an
        attorney-client relationship, thus [Grandparents’] Verified
        Motion to Disqualify and Remove Counsel of Record and for
        Sanctions is “groundless.”


        59. The Court’s decision to award attorney’s fees is buttressed by
        the fact that it appears to the Court that the attempt to disqualify
        Johnson was an abuse of the legal process designed to deprive
        Joe of one of his fundamental rights—the right to choose his own
        counsel.


Appellants’ App. Vol. II pp. 32-33. The trial court noted that Attorney Johnson

resisted the motion to disqualify at her own expense because Joseph had very


Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 15 of 19
       limited financial resources and did not have the funds to hire another attorney

       who would have to familiarize himself or herself with ten years of litigation.

       The trial court also noted:


               It is unfortunate [Grandparents] have elected to pursue a motion
               to disqualify, using resources and court time, which could have
               been better spent resolving [Grandparents’] custody motion on
               the merits. Their choice of action has only further prolonged this
               matter and caused uncertainty for all parties, including the minor
               child.


       Id. at 33.


[25]   According to Grandparents, there was substantial evidence that Attorney

       Johnson was their attorney; they made a “rational, good faith argument that

       Johnson should be disqualified”; and there is no evidence that Grandparents

       made the motion to disqualify Attorney Johnson primarily to “harass or injure”

       Joseph. Appellants’ Br. p. 20. Grandparents also argue that Lundberg’s

       opinion was not based on a complete review of the record and that they had the

       right to contest Lundberg’s opinion without being subject to sanctions.


[26]   The trial court’s decision, however, was not based solely on Lundberg’s

       opinion. Although there was undeniably contact between Grandparents and

       Attorney Johnson during Joseph’s dissolution and post-dissolution proceedings,

       there was also significant evidence that there was no attorney-client relationship

       between Grandparents and Attorney Johnson. The trial court weighed the

       evidence and assessed the witnesses’ credibility and found that Grandparents’

       actions were frivolous, unreasonable, groundless, and an abuse of process. On
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 16 of 19
       appeal, we cannot reweigh the evidence or judge the credibility of the witnesses.

       The trial court was in the best position to determine Grandparents’ motives in

       bringing the action to disqualify Attorney Johnson. Under these circumstances,

       the trial court’s findings of fact and conclusions of law regarding Attorney

       Johnson’s request for sanctions under Indiana Code Section 34-52-1-1 are not

       clearly erroneous. 3


                                     III. Indiana Appellate Rule 66(E)

[27]   Attorney Johnson argues that she is entitled to damages under Indiana

       Appellate Rule 66(E), which provides: “The Court may assess damages if an

       appeal, petition, or motion, or response, is frivolous or in bad faith. Damages

       shall be in the Court’s discretion and may include attorneys’ fees. The Court

       shall remand the case for execution.” Our discretion to award attorney fees

       under Indiana Appellate Rule 66(E) is “limited to instances when an appeal is

       permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or

       purpose of delay.” Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1033 (Ind.

       Ct. App. 2018), trans. denied. While Appellate Rule 66(E) provides us with

       “discretionary authority to award damages on appeal, we must use extreme

       restraint when exercising this power because of the potential chilling effect upon

       the exercise of the right to appeal.” Id. “A strong showing is required to justify




       3
        Grandparents do not challenge the trial court’s calculation of fees and expenses in the amount of
       $27,614.78.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019                Page 17 of 19
       an award of appellate damages, and the sanction is not imposed to punish mere

       lack of merit, but something more egregious.” Id.


[28]   We have categorized claims for appellate attorney fees into “procedural” and

       “substantive” bad faith claims. Id. “Procedural bad faith occurs when a party

       flagrantly disregards the form and content requirements of the rules of appellate

       procedure, omits and misstates relevant facts appearing in the record, and files

       briefs written in a manner calculated to require the maximum expenditure of

       time both by the opposing party and the reviewing court.” Id. “To prevail on a

       substantive bad faith claim, the party must show that the appellant’s

       contentions and arguments are utterly devoid of all plausibility.” Id.


[29]   Attorney Johnson argues that Grandparents exhibited both procedural and

       substantive bad faith in their appeal. As for procedural bad faith, although

       Grandparents did not strictly comply with our appellate rules, we cannot say

       that Grandparents flagrantly disregarded those rules or that the briefs were

       written to require maximum expenditure of time. Regarding substantive bad

       faith, although Grandparents’ arguments are unsuccessful, we cannot say that

       their contentions are utterly devoid of all plausibility. Given our responsibility

       to use “extreme restraint” in awarding damages under Appellate Rule 66(E), we

       decline to award damages here. Id.


                                                 Conclusion
[30]   The trial court’s denial of Grandparents’ motion to disqualify Attorney Johnson

       is not clearly erroneous, and the trial court’s grant of Attorney Johnson’s

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 18 of 19
       motion for sanctions under Indiana Code Section 34-52-1-1 is not clearly

       erroneous. We decline to award damages under Indiana Appellate Rule 66(E).

       We affirm.


[31]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019   Page 19 of 19
