FOR PUBLICATION
ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE
                                              BOARD OF COMMISSIONERS
MARK D. GERTH                                 OF VANDERBURGH COUNTY:
Kightlinger & Gray, LLP
Indianapolis, Indiana                         KEITH W. VONDERAHE
                                              ROBERT L. BURKART
                                              Ziemer Stayman Weitzel & Shoulders, LLP
                                              Evansville, Indiana

                                              ATTORNEY FOR APPELLEE
                                              EVANSVILLE-VANDERBURGH
                                              COUNTY AREA PLAN COMMISSION:

                                              JOSEPH H. HARRISON, JR.
                                              Massey Law Offices
                                              Evansville, Indiana

                                                                           FILED
                                                                       Nov 16 2012, 9:19 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                 CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




KOHL’S INDIANA, L.P., and                     )
KOHL’S DEPARTMENT STORE, INC.,                )
                                              )
      Appellant-Plaintiff,                    )
                                              )
             vs.                              )    No. 82A05-1203-PL-103
                                              )
DENNIS OWENS, ET AL.,                         )
                                              )
      Appellees-Defendants.                   )
                                              )


                APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Carl A. Heldt, Judge
                           Cause No. 82C01-0602-PL-86


                                   November 16, 2012

                              OPINION - FOR PUBLICATION
VAIDIK, Judge
                                      Case Summary

         Kohl’s Indiana, L.P., and Kohl’s Department Stores, Inc., (collectively “Kohl’s”)

appeal the trial court’s grant of summary judgment in favor of the Evansville-

Vanderburgh County Area Plan Commission (“Plan Commission”) and the Board of

Commissioners of Vanderburgh County (“Board of Commissioners”) on Kohl’s equitable

claims for contribution and unjust enrichment for expenses that Kohl’s incurred when its

developer failed to complete construction of a new Kohl’s Department Store on the west

side of Evansville. We conclude that the trial court properly entered summary judgment

in favor of the Plan Commission for both claims because the Commission never accepted

a common obligation to complete the project, never entered into any sort of agreement

with Kohl’s concerning the project, and there is no evidence that a benefit was conferred

upon the Plan Commission at the Commission’s express or implied consent. We also

conclude that the trial court properly entered summary judgment in favor of the Board of

Commissioners for both claims because Kohl’s and the Board entered into an agreement

which required Kohl’s to complete the public-infrastructure improvements at Kohl’s

expense, and when the rights of the parties are controlled by an express contract, recovery

cannot be based on a theory implied in law. Finally, we conclude that the Board of

Commissioners is not entitled to appellate attorney’s fees. We therefore affirm the trial

court.

                              Facts and Procedural History

         In May 2004, the Plan Commission approved a primary plat application

concerning the proposed construction of a Kohl’s Department Store in the Carpentier


                                             2
Creek Pavilion Subdivision on the west side of Evansville. The approval of the project

was conditioned upon the developer, Dennis Owens, posting a letter of credit to ensure

the proper and complete development of roads, culverts, sanitary sewer work, and other

infrastructure improvements required within the subdivision pursuant to Section

16.08.070 of the Vanderburgh County Subdivision Code, Appellant’s App. p. 315-16,

and Indiana Code section 36-7-4-709.

       In January 2005, Owens obtained four letters of credit from Fifth Third Bank

naming the Plan Commission as beneficiary. The letters of credit totaled $538,454.78:

       1.     Letter of Credit #CIS403248
              $47,284.65
              Off-Site Road and Drainage Improvements within City of Evansville

       2.     Letter of Credit #CIS403249
              $230,245.31
              Off-Site Road and Drainage Improvements in Vanderburgh County

       3.     Letter of Credit #CIS403250
              $206,762.46
              City of Evansville Sanitary Sewer Extension

       4.     Letter of Credit #CIS403251
              $54,162.36
              City of Evansville Waterline Extension

Id. at 332.

       Thereafter, in February 2005, Kohl’s and Owens entered into an Operation and

Easement Agreement whereby Owens agreed to build the Kohl’s Department Store in

Carpentier Creek Pavilion. Kohl’s and Owens also entered into a Site Development

Agreement, which provided that Kohl’s had the right to complete Owens’ work if he

failed to do so and charge Owens all expenses incurred.


                                           3
      In September 2005, Kohl’s and the Board of Commissioners entered into an

agreement (“road-improvement agreement”) whereby the Board of Commissioners

agreed to the closure of Rosenberger Avenue, which was a busy road, for a limited time

in order to allow Kohl’s to improve and reconstruct it. Id. at 144-45. In the agreement,

Kohl’s agreed to complete the project in accordance with all plans and specifications

approved by various governmental entities. Id. at 144. The agreement provides that

should Kohl’s fail to complete the project in accordance with all approved plans and

specifications, the Board of Commissioners will take all necessary legal actions to recoup

its expenses in completing the project, including drawing on the funds in the letters of

credit and filing a lawsuit against Kohl’s. Id. Kohl’s and the Board of Commissioners

also entered into an indemnity agreement whereby Kohl’s agreed to defend, indemnify,

and hold the Board of Commissioners harmless against claims relating to the

improvement and reconstruction of Rosenberger Avenue, and Kohl’s named

Vanderburgh County as an additional insured under a commercial general liability policy.

Id. at 146-47. Notably, the Plan Commission was not a party to these agreements.

      Owens failed to complete the project, so Kohl’s completed the project, which

included improvements to storm sewers and septic sewers under Rosenberger Avenue

and Hogue Road as well as road work to Rosenberger Avenue and Hogue Road.

      In February 2006, Kohl’s filed a complaint against numerous defendants,

including Owens, the Plan Commission, and Fifth Third Bank in which it sought

reimbursement for the expenses it incurred in completing Owens’ work. Id. at 1. Kohl’s

made three claims against the Plan Commission. In Count VI, Kohl’s asked the trial


                                            4
court to order the Plan Commission to draw on the letters of credit and to assign the

proceeds from the letters of credit to Kohl’s. In Count VII, Kohl’s asserted a claim based

on the doctrine of contribution. And in Count VIII, Kohl’s sought payment of the

proceeds of the letters of credit based upon the doctrine of implied contract and/or unjust

enrichment.

       Fifth Third Bank intervened as a defendant in the counts against the Plan

Commission and sought summary judgment. Although the trial court entered summary

judgment in favor of Kohl’s, finding that the letters of credit should be treated as

performance bonds and that Kohl’s was entitled to make a claim against the proceeds of

the letters of credit as a third-party beneficiary, we reversed on appeal. Specifically, we

found that the letters of credit were not performance bonds and that Kohl’s was not a

third-party beneficiary of the letters of credit issued by Fifth Third Bank. Fifth Third

Bank v. Kohl’s Indiana, L.P., 918 N.E.2d 371, 376, 378 (Ind. Ct. App. 2009).

       In May 2010, Kohl’s filed an amended complaint in which it added the Board of

Commissioners as a defendant to Counts VII (contribution) and VIII (implied contract

and/or unjust enrichment). Kohl’s then dismissed, with prejudice, Count VI against the

Plan Commission based upon this Court’s opinion.

       All of the public-infrastructure improvements that were required as a condition of

approval by the Plan Commission for the project were completed, and the Plan

Commission released the four letters of credit posted by Owens between July and

October 2010.1        Appellant’s App. p. 332-33.             Because the public-infrastructure


       1
          According to the Plan Commission, it released letter of credit #CIS403251 on July 20, 2010,
“due to the completion and acceptance by the Evansville Water & Sewer Utility concerning the water line
                                                  5
improvements were completed and accepted, there was no need for the Plan Commission

to draft upon the letters of credit posted by Owens. Id. at 333.

        In August 2010, the Board of Commissioners and the Plan Commission

individually moved for summary judgment on Counts VII and VIII of Kohl’s amended

complaint. Kohl’s filed a cross motion for summary judgment. Following a hearing, the

trial court entered summary judgment in favor of the Board of Commissioners and the

Plan Commission and denied Kohl’s cross motion for summary judgment. Id. at 593,

594.

        Kohl’s now appeals.

                                     Discussion and Decision

        Kohl’s argues that the trial court erred in entering summary judgment in favor of

the Board of Commissioners and the Plan Commission on its equitable claims for

contribution and implied contract/unjust enrichment.

        In reviewing an appeal of a motion-for-summary-judgment ruling, we apply the

same standard applicable to the trial court. Presbytery of Ohio Valley, Inc. v. OPC, Inc.,

973 N.E.2d 1099, 1110 (Ind. 2012), reh’g denied. Summary judgment is appropriate

where the designated evidence “shows that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial



extension for the Project.” Appellant’s App. p. 332. It released letter of credit #CIS403250 on August 2,
2010, “due to the completion and acceptance by the Evansville Water & Sewer Utility concerning the
sanitary sewer extension for the project.” Id. It released letter of credit #CIS403248 on August 31, 2010,
“due to the completion and acceptance by the City of Evansville of the off-site road and drainage
improvement located with the City of Evansville with respect to the Project.” Id. at 333. Finally, it
released letter of credit #CIS403249 on October 12, 2010, “due to the completion and acceptance by
Vanderburgh County of the off-site road and drainage improvements located within Vanderburgh County
concerning the Project.” Id.
                                                    6
Rule 56(C). Review is limited to those facts designated to the trial court, T.R. 56(H), and

“[a]ll facts and reasonable inferences drawn from those facts are construed in favor of the

non-moving party.” Presbytery of Ohio Valley, 973 N.E.2d at 1110 (quotation omitted).

The fact that each party sought summary judgment does not alter our analysis. Id.

Rather, we consider each motion separately construing the facts most favorably to the

non-moving party in each instance. Id.

                                     I. Contribution

       Kohl’s first contends that the trial court erred in entering summary judgment in

favor of the Board of Commissioners and the Plan Commission on Count VII, its claim

for contribution.   Kohl’s argues that when Owens failed to complete the public-

infrastructure improvements to the project, it had no obligation to complete them, but it

did so to ensure that it could open its new store. Nevertheless, Kohl’s argues that both

the Board of Commissioners and the Plan Commission were obligated by statute and

local ordinance to step in and complete the public-infrastructure improvements.

Accordingly, Kohl’s seeks contribution from both the Board of Commissioners and the

Plan Commission for these expenses.

       Contribution involves the partial reimbursement of one who has discharged a

common liability. Balvich v. Spicer, 894 N.E.2d 235, 243 (Ind. Ct. App. 2008). The

“‘doctrine of contribution rests on the principle that where parties stand in equal right,

equality of burden becomes equity.’” Id. at 245 (quoting Cook v. Cook, 92 Ind. 398, 399

(1884)). The right of contribution is based upon natural justice, and “it applies to any

relation, including that of joint contractors, where equity between the parties is equality


                                            7
of burden, and one of them discharges more than his share of the common obligation.”

Id. (quotation omitted).

       According to Williston on Contracts, the rule is that

       [U]nless otherwise agreed, a person who has discharged more than his
       proportionate share of a duty owed by himself and another as to which,
       between the two, neither had a prior duty of performance, is entitled to
       contribution from the other, except where the payor is barred by the
       wrongful nature of his conduct.

12 Richard A. Lord, Williston on Contracts § 36.14 (4th ed. 1999) (citing Restatement

(First) of Restitution § 81 (1937)). The doctrine of contribution rests on principles of

equity and natural justice, not contract. Id. “It is an attempt by equity to distribute

equally among those who have a common obligation, the burden of performing that

obligation.” Id.

                                   A. Plan Commission

       Kohl’s points out that pursuant to statute and local ordinance, the Plan

Commission required Owens to post letters of credit to ensure the proper and complete

development of roads, culverts, sanitary sewer work, and other infrastructure

improvements related to the construction of the new Kohl’s Department Store in

Evansville. Kohl’s claims that the purpose of allowing plan commissions to require

letters of credit to cover infrastructure costs from developers requesting plat approval is

to ensure that in the event a developer fails to complete the infrastructure, the amount

secured by the letter of credit can be used to complete the work. Kohl’s asserts that the

legislature did not intend for a plan commission to sit idly by if a developer fails to

complete the work.


                                             8
        But that is not what happened here. When Owens failed to complete the project,

Kohl’s stepped in and completed the project so that it could open the store. Although the

Plan Commission was the beneficiary of the letters of credit taken out by Owens and

could have drawn on the letters of credit if the public-infrastructure improvements were

not completed (the public-infrastructure improvements were in fact completed, and the

Plan Commission released the letters of credit in 2010),2 the Plan Commission never

accepted a common obligation to complete the project, which the doctrine of contribution

requires. In fact, the Plan Commission did not enter into any sort of agreement with

Kohl’s concerning the project and did not ask Kohl’s to complete the project when

Owens failed to do so. Because the Plan Commission did not have a common duty to

complete the project, the trial court properly entered summary judgment in favor of the

Plan Commission on Kohl’s contribution claim.

                                     B. Board of Commissioners

        Kohl’s next argues that the Board of Commissioners, “as the executive for

Vanderburgh County, had a duty to construct, design, repair and maintain . . . road and

sewer improvements.”            Appellant’s Br. p. 8 (footnote omitted).                 The Board of

Commissioners responds that while it may have a duty to public users to repair and

maintain the completed public-infrastructure improvements, it agreed with Kohl’s that

Kohl’s would be liable for completing and paying for all public-infrastructure

        2
           As Kohl’s explains in its brief, “the Board [of Commissioners] does not itself draw upon the
letters of credit to complete infrastructure. Instead, it requests that the [Plan Commission] do so and turn
over the proceeds to the Board [of Commissioners].” Appellant’s Br. p. 9 n.2. As we explained in the
prior appeal in this case, “each letter of credit requires the [Plan] Commission to present to Fifth Third a
signed statement that Dennis Owens has failed to meet statutory and ordinance requirements and/or the
stipulations of primary approval with regard to basic improvements.” Fifth Third Bank, 918 N.E.2d at
376 (quotation omitted).
                                                     9
improvements associated with building the new Kohl’s Department Store in Evansville.

As support, the Board of Commissioners identifies the road-improvement agreement,3

which provides as follows:

        WHEREAS, [Kohl’s] is required to improve and reconstruct Rosenberger
        Avenue, hereinafter referred to as the “Project”, as a part of its obligations
        in conjunction with the development of Carpentier Creek Pavilion
        commercial subdivision; and

        WHEREAS, for [Kohl’s] to perform and complete the Project, the [Board
        of Commissioners] must approve [Kohl’s] doing work in the right of way
        for Rosenberger Avenue and the closure of Rosenberger as necessary to
        complete the Project; and

        WHEREAS, due to high traffic volumes on Rosenberger Avenue, the
        [Board of Commissioners] is unwilling to approve such work and such
        closure except for a limited period of time; and

        WHEREAS, the [Board of Commissioners] wishes to establish a penalty to
        help insure that such work and such closure will only be for a limited
        period of time.

        NOW, THEREFORE, for and in consideration of the premises and the
        mutual agreements of the parties hereto, one unto the other, the parties
        hereto do hereby agree as follows:

        1. To allow [Kohl’s] to complete the Project, the [Board of
        Commissioners] will permit [Kohl’s] to work in the right of way for
        Rosenberger Avenue and to close Rosenberger Avenue for a time period
        that will not exceed twenty-one (21) consecutive calendar days (“Road
        Closure Period”) without written approval by the [Board of
        Commissioners] to extend the Road Closure Period.




        3
           The parties also discuss their indemnity agreement, Appellant’s App. p. 146, and argue whether
it is a defense to Kohl’s claims. We, however, do not find it necessary to reach this issue because the
road-improvement agreement provides that if Kohl’s fails to complete the project, the Board of
Commissioners will take all necessary legal action to recoup all costs it might incur in completing the
project, including filing a lawsuit against Kohl’s. Because the road-improvement agreement authorizes
the Board of Commissioners to recoup any costs from Kohl’s, we do not need to address the indemnity
agreement or Indianapolis City Market Corp. v. MAV, Inc., 915 N.E.2d 1013 (Ind. Ct. App. 2009), which
Kohl’s relies upon.
                                                   10
      2. If [Kohl’s] fails to complete the Project during the Road Closure Period
      then [Kohl’s] agrees that it shall pay a fine of $2,500.00 per day for each
      day beyond the Road Closure Period that is required for completion of the
      Project.

      3. [Kohl’s] will complete the Project in accordance with all plans and
      specifications that have been approved by the [Board of Commissioners],
      the Vanderburgh County Drainage Board, and all applicable state and
      federal review agencies.

      4. [Kohl’s] acknowledges that its amended plans for the Project have been
      submitted to the Indiana Department of Environmental Management
      (“IDEM”) and U.S. Army Corps of Engineers (“Corps”), but written
      approval of the amended plans has not been received as of the date of this
      Agreement. The lack of such written approval does not release [Kohl’s]
      from any of its obligations to complete the Project within the Road
      Closure Period in conformance with all conditions of the final written
      approval of the amended plans. The [Board of Commissioners] assumes
      no responsibility or liability associated with allowing [Kohl’s] to proceed
      with the Project without the IDEM or Corps approval.

      5. [Kohl’s] hereby acknowledges that if it fails to complete the Project in
      accordance with all approved plans and specifications, the [Board of
      Commissioners] will take all necessary legal actions needed to recoup all
      costs the [Board of Commissioners] might incur in conjunction with the
      [Board of Commissioner’s] completion of the Project. These actions may
      include, but will not be limited to, drawing on the funds in the letter of
      credit held by the Evansville Area Plan Commission for the Project, filing
      lien(s) on property owned by [Kohl’s], and/or filing a lawsuit against
      [Kohl’s].

Appellant’s App. p. 144 (emphases added).

      Although Kohl’s argues that the road-improvement agreement addresses only

closing a public road and not its obligations to complete the public-infrastructure

improvements, we do not read the agreement so narrow. First, the agreement addresses

“improv[ing]” and “reconstruct[ing]” Rosenberger Avenue, not simply closing it. Id.

Second, the agreement says that the improvements and reconstruction must be “in

accordance with all plans and specifications that have been approved by the [Board of

                                            11
Commissioners], the Vanderburgh County Drainage Board, and all applicable state and

federal review agencies.” Id. Third, the agreement provides that if Kohl’s fails to

complete the project in accordance with all approved plans and specifications, the Board

of Commissioners will take all necessary legal actions to recoup its expenses in

completing the project, including drawing on the funds in the letters of credit. Id. The

four letters of credit pertain to off-site road and drainage improvements, sanitary sewer

extension, and waterline extension.

      Based on the above, we conclude that the road-improvement agreement addresses

more than simply closing Rosenberger Avenue; it addresses the reconstruction and

improvement of Rosenberger Avenue, which must be done in compliance with all plans

and specifications that have been approved by several governmental agencies, including

the Drainage Board.     It is apparent that reconstructing and improving Rosenberger

Avenue involves more than simply repaving this busy road; it also involves drainage,

sewer, and water. Moreover, the agreement obligates Kohl’s to pay for these costs and

provides that if Kohl’s fails to complete the project, the Board of Commissioners can

complete the project and then file a lawsuit against Kohl’s to recoup its expenses.

Because there is an agreement between the parties concerning how to allocate the costs,

the doctrine of contribution does not apply to this scenario. See 12 Lord, § 36.14

(“[U]nless otherwise agreed, a person who has discharged more than his proportionate

share of a duty owed by himself and another as to which, between the two, neither had a

prior duty of performance, is entitled to contribution from the other, except where the

payor is barred by the wrongful nature of his conduct.” (Emphasis added)). Accordingly,


                                           12
the trial court properly entered summary judgment in favor of the Board of

Commissioners on Kohl’s contribution claim.

                                 II. Unjust Enrichment

       Kohl’s next contends that the trial court erred in entering summary judgment in

favor of the Board of Commissioners and the Plan Commission on Count VIII, its claim

for unjust enrichment, which is also referred to as quantum meruit, contract implied in

law, constructive contract, or quasi contract. Coppolillo v. Cort, 947 N.E.2d 994, 997

(Ind. Ct. App. 2011).

       A claim for unjust enrichment is a legal fiction invented by the common-law

courts in order to permit a recovery where the circumstances are such that under the law

of natural and immutable justice there should be a recovery. Zoeller v. E. Chi. Second

Century, Inc., 904 N.E.2d 213, 220 (Ind. 2009), reh’g denied. “‘A person who has been

unjustly enriched at the expense of another is required to make restitution to the other.’”

Id. (quoting Restatement (First) of Restitution § 1 (1937)). To prevail on a claim of

unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred

on the defendant under such circumstances that the defendant’s retention of the benefit

without payment would be unjust. Zoeller, 904 N.E.2d at 220; Bayh v. Sonnenburg, 573

N.E.2d 398, 408 (Ind. 1991), reh’g denied. Indiana courts articulate three elements for

this claim: (1) a benefit conferred upon another at the express or implied consent of such

other party; (2) allowing the other party to retain the benefit without restitution would be

unjust; and (3) the plaintiff expected payment. Woodruff v. Ind. Family & Social Servs.

Admin., 964 N.E.2d 784, 791 (Ind. 2012), cert. denied.


                                            13
       When the rights of the parties are controlled by an express contract, recovery

cannot be based on a theory implied in law. Zoeller, 904 N.E.2d at 221. The existence of

an express contract precludes a claim for unjust enrichment because: (1) a contract

provides a remedy at law and (2) as a remnant of chancery procedure a plaintiff may not

pursue an equitable remedy when there is a remedy at law. Coppolillo, 947 N.E.2d at

998. However, there are exceptions to this rule. Id. That is, when an express contract

does not fully address a subject, a court of equity may impose a remedy to further the

ends of justice. Id.

                                  A. Plan Commission

       Kohl’s does not make a cogent separate argument as to the Plan Commission and

instead focuses its energy on the Board of Commissioners. In any event, there is no

evidence that a benefit was conferred upon the Plan Commission at the Commission’s

express or implied consent. The Plan Commission did not ask Kohl’s to complete the

public-infrastructure improvements nor did the Commission request that any

improvements be made for its benefit. Given the Plan Commission’s more limited role,

the trial court properly entered summary judgment in favor of the Plan Commission on

Kohl’s unjust-enrichment claim.

                              B. Board of Commissioners

       Kohl’s argues that the Board of Commissioners’ interaction with it warrants the

imposition of an implied contract for the value of the work it completed on the public-




                                          14
infrastructure improvements.4 The Board of Commissioners responds that the road-

improvement agreement forecloses Kohl’s claim for unjust enrichment.

       We agree with the Board of Commissioners that because the rights of the parties

were controlled by an express contract, recovery cannot be based on a theory implied in

law.    See Zoeller, 904 N.E.2d at 221.            The road-improvement agreement imposes

responsibility on Kohl’s to improve and reconstruct Rosenberger Avenue as part of its

obligations in conjunction with the development of Carpentier Creek Pavilion and

specifies that the Board of Commissioners was to have no financial responsibility for

these costs. And to the extent that Kohl’s failed to complete the project, the Board of

Commissioners could complete the project and pursue all legal actions, including a

lawsuit against Kohl’s, to recoup its expenses.5 Accordingly, the trial court properly

entered summary judgment in favor of the Board of Commissioners on Kohl’s unjust-

enrichment claim.

                                 III. Appellate Attorney’s Fees

       As a final matter, the Board of Commissioners, but not the Plan Commission,

requests appellate attorney’s fees according to Indiana Appellate Rule 66(E), which

provides that “[t]he Court may assess damages if an appeal . . . is frivolous or in bad

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


       4
           Kohl’s argues that the Board of Commissioners, in similar circumstances, has drawn on letters
of credit and used those proceeds to complete public-infrastructure improvements. However, the fact that
the Board may have drawn on letters of credit in the past is irrelevant because here there is a written
agreement defining the parties’ obligations.
       5
         Kohl’s argues that the road-improvement agreement does not address payment for Kohl’s work;
to the contrary, the agreement specifies that the Board of Commissioners has no payment obligation to
Kohl’s and that Kohl’s was completing the work as part of its obligations in conjunction with the
development of Carpentier Creek Pavilion.
                                                  15
Court shall remand the case for execution.” Our discretion to award attorney’s fees is

limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity,

harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342,

346 (Ind. Ct. App. 2003). While Appellate Rule 66(E) permits us to award damages on

appeal, we must act with extreme restraint due to the potential chilling effect on the

exercise of the right to appeal. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App.

2010).

         While we ultimately find no merit to any of Kohl’s arguments, we do not find that

its appeal is permeated with meritlessness or any of the other factors that would warrant

an award of appellate attorney’s fees. We therefore deny the Board of Commissioners’

request for appellate attorney’s fees.

         Affirmed.

MATHIAS, J., and BARNES, J., concur.




                                            16
