                                                                           Mar 05 2015, 7:17 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Michael H. Michmerhuizen                                  Brian C. Hewitt
      Barrett & McNagny, LLP                                    Mark R. Galliher
      Fort Wayne, Indiana                                       Alerding Castor Hewitt, LLP
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Irrevocable                          March 5, 2015
      Trust of Mary Ruth Moeder                                 Court of Appeals Cause No.
                                                                49A05-1403-TR-142
      Susan R. Moeder,                                          Appeal from the Marion Superior
                                                                Court
      Appellant-Respondent,                                     The Honorable Gerald S. Zore
                                                                49D08-0510-TR-041012
              v.

      Salin Bank & Trust Company,
      Appellee-Petitioner.




      Bailey, Judge.



                                           Case Summary
[1]   Salin Bank and Trust Company (“Salin”), trustee of the Mary Ruth Moeder

      Revocable Living Trust Agreement (the “Trust”), petitioned the probate court

      to approve an accounting of the Trust and to resign as trustee. Susan Moeder
      Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                     Page 1 of 28
      (“Moeder”), the former trustee and current contingent remainder beneficiary of

      the Trust, objected to the accounting and alleged that Salin had breached its

      fiduciary duties by imprudently administering the Trust in violation of the

      Indiana Uniform Prudent Investor Act. The probate court entered a judgment

      in favor of Salin and ordered that Moeder personally pay the reasonable

      attorney’s fees and costs Salin incurred in defending against Moeder’s objection

      and claims. We affirm.



                                                    Issues
[2]   Moeder presents four issues for review, which we reorder and restate as:

                 I.    Whether the probate court abused its discretion in granting a
                       one-day continuance at the outset of the hearing;


                II.    Whether the probate court’s findings of fact were clearly
                       erroneous and therefore do not support the judgment;


               III.    Whether the probate court abused its discretion in ordering
                       Moeder to pay Salin’s reasonable attorney’s fees and costs
                       because she brought or continued to litigate a groundless claim;
                       and


               IV.     Whether the probate court abused its discretion in awarding
                       $106,001.28 in attorney’s fees and costs.




      Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015          Page 2 of 28
[3]   We also address an issue raised by Salin: whether Salin is entitled to an award

      of appellate attorney’s fees.1



                              Facts and Procedural History
[4]   Mary Ruth Moeder (“Mother”) established the Trust on November 17, 1997,

      named herself the initial trustee, and named her two children, Moeder and John

      Moeder (“John”), as the primary beneficiaries. The Trust provided that upon

      Mother’s death, the Trust assets would be divided equally between her children.

      When Mother died in 2001, the Trust became irrevocable and Moeder became

      the successor trustee.


[5]   On September 12, 2006, the probate court entered an order authorizing Moeder

      to resign as trustee and appointing Salin as successor trustee. The court also

      ordered the distribution of Moeder’s half of the Trust assets to her. John’s share

      was not distributed, and thus John is the primary beneficiary of the Trust.




      1
       Salin also asks us to decide whether Moeder’s appeal of a separate probate court order made on October 8,
      2013 is untimely and therefore forfeited. In her Notice of Appeal filed in this case, Moeder listed the October
      8, 2013 order as an “Order being appealed.” (Appellee’s App. 71.) However, in a footnote on page two of
      her brief, Moeder withdrew her appeal of the October 2013 order, concluding that it was not currently
      appealable. As Moeder has not presented her appeal of the October 2013 order to this Court, we decline
      Salin’s request to determine at this juncture whether Moeder’s appeal of that order was untimely. See In re
      Estate of Rawlings, 451 N.E.2d 1121, 1122 (Ind. Ct. App. 1983) (“We do not render advisory opinions.”).

      Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                           Page 3 of 28
      Pursuant to the Trust terms, Moeder is the contingent remainder beneficiary of

      John’s share of the Trust.


[6]   When Salin took over as trustee in November 2006, the Trust assets included

      cash and stocks with a total portfolio value of $686,904.65. (App.2 226.)

      Among the stocks were 14,985 shares of JP Morgan Chase & Co. stock (“the

      JPM stock”), which comprised approximately 85% of the total Trust assets. At

      the time of the transfer, Salin was aware the Trust had a large concentration of

      JPM stock.


[7]   Although Moeder turned over the Trust assets to Salin in November 2006, Salin

      did not immediately receive from Moeder the necessary information to allow

      Salin to make investment decisions about the Trust portfolio. In April 2007,

      after Salin learned that the investment cost basis of the JPM stock was $38.77

      per share, Salin developed a diversification plan that called for reducing the

      concentration of JPM stock and diversifying the Trust assets over two years,

      2007 and 2008. Salin’s Vice-President Trust Officer and Chief Investment

      Officer John Roederer (“Roederer”) testified that Salin “wanted to diversify

      over two years to . . . keep the tax impact . . . reasonable.” (Tr. 286.)




      2
          All citations to “App.” are to the Appellant’s Appendix, unless otherwise noted.


      Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                Page 4 of 28
[8]    Pursuant to the diversification plan, Roederer sold 7,000 shares of the JPM

       stock on July 30, 2007 for a gain of $42,696.59 over the cost basis.

       (Respondent’s Exhibit 6.) He described the timing of the sale as “a good

       opportunity to reduce substantially the risk related to that position [the

       concentration.]” (Tr. 286.) Salin retained the remaining shares of JPM stock

       because “it still could enjoy some upside” and the plan called for diversification

       over two years. (Tr. 286.)


[9]    In 2008, Salin “put on hold the diversification program” because of the

       widespread financial crisis. (Tr. 323.) Salin sold no shares of the JPM stock

       that year, as Roederer considered JP Morgan “one of the few banks that was

       reasonably fundamentally sound at that point in time” and he “didn’t want to

       sell [the JPM stock] at a distressed price.” (Tr. 337.)


[10]   In April 2009, as the stock market began to improve, Salin revised the Trust’s

       diversification plan. The revised plan called for Salin to reduce the

       concentration of JPM stock over 2009 and 2010 by selling 500 shares of the

       remaining JPM stock approximately every two months. Roederer no longer

       considered the prices distressed, but “improving.” (Tr. 337.) Salin made its

       first two sales of 500 shares each on April 20, 2009 and June 4, 2009, for losses

       of approximately $3,380 and $870 below the cost basis, respectively.

       (Respondent’s Exhibit 6.) Except for these two sales, the sales made in 2009

       and 2010 resulted in gains. (Respondent’s Exhibit 6.) The periodic sales

       continued into early 2011 until the JPM stock concentration was reduced and

       the portfolio was diversified.

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015      Page 5 of 28
[11]   On July 29, 2011, Salin filed a “Request to Redocket Trust to File Current

       Report and Accounting, Resign as Trustee Upon Approval of Current

       Accounting and for Appointment of Successor Trustee.” At the time Salin filed

       the accounting, the diversified portfolio value was $751,214.30. (App. 234.)


[12]   In response, on September 1, 2011, Moeder filed an “Objection to Trustee’s

       Accounting,” in which she alleged that Salin “generally and consistently failed

       to administer the Trust as a ‘Prudent Investor[.]’” (Appellee’s App. 16.)

       Specifically, Moeder alleged that Salin failed to: preserve Trust property,

       maintain clear records, perform a timely initial review of the Trust assets,

       develop and implement an appropriate investment strategy, diversify the Trust

       assets at the right time, consider the Trust’s needs for liquidity, use special skills

       and expertise in investing and managing the Trust, and file an accurate

       accounting.


[13]   The probate court scheduled a hearing on Salin’s petition and Moeder’s

       objection for December 2, 3, and 4, 2013. On December 2, 2013, both parties

       appeared and discovered that Judge Zore was on medical leave. Although

       Senior Judge Goodman had reviewed the case and was prepared to proceed,

       Salin moved for a continuance, citing Judge Zore’s “prior involvement and

       familiarity with the case.” (App. 165.) Judge Goodman contacted Judge Zore

       and learned that Judge Zore was approved to return to work the next day. Over

       Moeder’s objection, Judge Goodman granted Salin’s motion for a one-day

       continuance. The hearing began on December 3, 2013 with Judge Zore

       presiding.

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015      Page 6 of 28
[14]   On February 28, 2014, the probate court entered an order containing findings of

       fact and conclusions thereon in which the court approved Salin’s tendered

       accounting and entered judgment in favor of Salin on the claims raised in

       Moeder’s objection. In addition, the court found that Moeder’s claims were

       “time-barred or otherwise unsupported by the facts” (App. 31) and that by

       bringing her objection, Moeder had “done nothing to benefit John,” who is

       blind and subject to a guardianship, but rather “eroded John’s share of the Trust

       by forcing Salin as Trustee [to] incur the expense of litigating [Moeder’s]

       objection.” (App. 31.) Consequently, the court ordered Moeder to pay Salin’s

       attorney’s fees and costs incurred in defending against Moeder’s objection

       pursuant to Indiana Code section 34-52-1-1(b). The court then directed Salin to

       file a supplemental accounting and an application for attorney’s fees and costs

       incurred by Salin in litigating the objection. Finding that there was no just

       reason for delay, the court directed the entry of a final judgment pursuant to

       Indiana Trial Rule 54(B). On March 26, 2014, Moeder timely filed a Notice of

       Appeal.


[15]   After Salin filed its request for attorney’s fees and costs, the probate court

       ordered on July 2, 2014 that Moeder personally pay to Salin $97,465 in

       attorney’s fees, plus $8,536.28 in litigation costs, for a total award of

       $106,001.28. (App. 34.) Moeder timely filed a Notice of Appeal from the

       attorney’s fees order on July 22, 2014.




       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015     Page 7 of 28
[16]   In this consolidated appeal, Moeder appeals the probate court’s judgment in

       favor of Salin, award of attorney’s fees and costs to Salin, and the amount of

       attorney’s fees and costs awarded.



                                  Discussion and Decision
                                                Continuance
[17]   Moeder’s first contention on appeal is that the probate court abused its

       discretion when it granted Salin’s request for a continuance made on the first

       day of the hearing. Upon a party’s motion, “trial may be postponed or

       continued in the discretion of the court, and shall be allowed upon a showing of

       good cause established by affidavit or other evidence.” T.R. 53.5. A trial

       court’s decision to grant or deny a motion to continue a trial date is reviewed

       for an abuse of discretion. Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind.

       2009). There is a strong presumption that the trial court properly exercised its

       discretion. Id. A trial court abuses its discretion when it reaches a conclusion

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

       probable deductions that may be drawn therefrom. Evans v. Thomas, 976

       N.E.2d 125, 127 (Ind. Ct. App. 2012), trans. denied.


[18]   In this case, the hearing was scheduled for December 2, 3 and 4, 2013, and both

       parties appeared on the morning of December 2. Senior Judge Goodman was

       presiding because Judge Zore was on medical leave. Salin moved for a

       continuance, citing Judge Zore’s “prior involvement and familiarity with the

       case.” (App. 165.) Over Moeder’s objection, Judge Goodman granted Salin’s
       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015    Page 8 of 28
       motion for a one-day continuance. The hearing began the following day,

       December 3, 2013, with Judge Zore presiding.


[19]   The record reflects that the Trust is and has been since 2005 the subject of

       several legal proceedings, including a prior appeal to this Court.3 We cannot

       say that the court abused its discretion by granting a one-day continuance so

       that a judicial officer already familiar with the particular complexities of this

       Trust could hear the evidence.


[20]   Moeder argues, however, that she suffered prejudice as a result of the

       continuance because both she and her attorney had traveled from northern

       Indiana to Indianapolis and were prepared to proceed on December 2, 2013.

       Although we acknowledge the inconvenience to Moeder, we do not consider

       the additional travel time and expense incurred to be prejudicial. Furthermore,

       we observe that when a continuance is granted, Trial Rule 53.5 permits the

       court to “award such costs as will reimburse the other parties for their actual

       expenses incurred from the delay.” T.R. 53.5. Yet the record does not show




       3
        See In re Revocable Trust of Mary Ruth Moeder, No. 49A02-1205-TR-377, slip op. (Ind. Ct. App. Oct. 30,
       2012).

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                          Page 9 of 28
       that Moeder requested that these costs be awarded, nor does she allege on

       appeal that a request, if made, was erroneously denied.


[21]   Moeder also argues that she was prejudiced by the continuance because the

       hearing ended as originally scheduled on December 4, 2013, such that the

       continuance “effectively reduced the amount of trial by a third.” (Appellant’s

       Br. 26.) Moeder contends that the continuance negatively affected her ability to

       present her case because Salin, as the party seeking the accounting, presented its

       case first, and Moeder did not have ample time to present her supporting

       evidence. She argues that she was particularly prejudiced by the “shortened”

       hearing because the probate court awarded Salin attorney’s fees in part because

       the court found that Moeder presented “no evidence” that Salin engaged in any

       wrongdoing. (App. 31.)


[22]   The record shows that, on the second day of the hearing, Moeder’s counsel

       informed the court: “I don’t know that we’re going to finish today.” (Tr. 421.)

       The court responded “Oh, we are going to finish today” and then elaborated

       that the hearing would conclude at 4:30 p.m. (Tr. 421-22.) Moeder’s counsel

       responded: “Okay, very good. All right.” (Tr. 422.) Moeder then called her

       next witness and, at the conclusion of that testimony, rested her case, stating:

               [Moeder’s Counsel]: Your Honor, I have no further evidence to
               present in our case in chief. As entered off the record with regard to
               the exhibits which we have - - are part of our book, 1, 2 and 3, 17, 18
               and 19 have either been admitted through their evidence or we are not
               offering those.


               The Court:                All right.
       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015      Page 10 of 28
               [Moeder’s Counsel]: With that, we rest.


       (Tr. 476-77.) Moeder rested her case enough in advance of the court’s

       anticipated end time that Salin had time to present additional witness

       testimony. Moeder’s contention that she was denied ample opportunity to

       present her evidence is thus unsupported by the record.


[23]   Furthermore, at no point did Moeder object to the probate court’s management

       of its schedule or otherwise argue to the court that she was not permitted

       sufficient time to present her case. Accordingly, even if Moeder’s ability to

       present her case was impeded, her argument is waived. See Ansert v. Ind.

       Farmers Mut. Ins. Co., 659 N.E.2d 614, 617 (Ind. Ct. App. 1995) (“Generally, a

       party may not raise an issue on appeal which was not raised in the trial court.”),

       trans. dismissed.


[24]   The probate court did not abuse its discretion when it granted Salin’s motion

       for a continuance.




       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015   Page 11 of 28
                                     Findings and Conclusions
[25]   Moeder next argues that the probate court’s findings and conclusions were

       clearly erroneous and therefore do not support the judgment.4


[26]   In all actions tried upon facts without a jury, the court, either sua sponte or upon

       the written request of any party filed with the court prior to the admission of

       evidence, “shall find the facts specially and state its conclusions thereon.” Ind.

       Trial Rule 52(A). Where, as here, the court entered findings and conclusions

       upon a party’s written request, we apply a two-step review. In re Riddle, 946

       N.E.2d 61, 66 (Ind. Ct. App. 2011). First, we consider whether the evidence

       supports the findings, and second, whether the findings support the judgment.

       Id. We neither reweigh the evidence nor assess witness credibility, and we

       consider only the evidence most favorable to the judgment. Id. We will set




       4
         At the outset, we note that the entire “Argument” section of Moeder’s brief, while it generally contains
       citation to relevant law, is completely devoid of citations to the appendix or record on appeal. We direct
       counsel to Indiana Appellate Rule 46(A)(8)(a), which provides that each contention made in the argument
       section of an appellant’s brief “must be supported by citations to the authorities, statutes, and the Appendix
       or parts of the Record on Appeal relied on, in accordance with Rule 22.” It is a complaining party’s duty to
       direct our attention to the portion of the record that supports its contentions. Vandenburgh v. Vandenburgh,
       916 N.E.2d 723, 729 (Ind. Ct. App. 2009). The purpose of the rule is to relieve courts of the burden of
       searching the record and stating a party's case for her. Id. Although failure to comply with the appellate
       rules does not necessarily result in waiver of an issue, it is appropriate where noncompliance impedes our
       review. Id. Although we do our best here to address Moeder’s contentions on their merits, Moeder’s
       noncompliance comes dangerously close to impeding our review. This is particularly true – and her
       noncompliance is particularly mystifying – in this section of her brief, in which her argument depends on her
       identification of evidence that supports her claim.

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                          Page 12 of 28
       aside the trial court’s findings and conclusions only if they are clearly

       erroneous, that is, if the record contains no facts or inferences supporting them.

       Id. We review conclusions of law de novo. Id.


[27]   In any case where special findings and conclusions are made, “the court shall

       allow and may require the attorneys of the parties to submit to the court a draft

       of findings of facts and conclusions thereon which they propose or suggest that

       the court make in such a case.” T.R. 52(C). Here, the probate court adopted

       verbatim Salin’s proposed findings of fact and conclusions thereon. As our

       supreme court has observed, the practice of accepting verbatim a party’s

       proposed findings “weakens our confidence as an appellate court that the

       findings are the result of considered judgment by the trial court.” In re Marriage

       of Nickels, 834 N.E.2d 1091, 1096 (Ind. Ct. App. 2005) (quoting Cook v. Whitsell-

       Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003)). However, it is not uncommon

       or per se improper for a trial court to enter findings that are verbatim

       reproductions of submissions by the prevailing party. Id. at 1095. In these

       cases, we urge trial courts to scrutinize parties’ submissions for

       mischaracterized testimony and legal argument rather than the findings of fact

       and conclusions thereon as contemplated by the rule. Id. at 1096. This is

       because the trial court, when it signs one party’s findings, is ultimately

       responsible for their correctness. Id. Although we by no means encourage the

       wholesale adoption of a party’s proposed findings and conclusions, the critical

       inquiry is whether such findings, as adopted by the court, are clearly erroneous.

       Id.


       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015      Page 13 of 28
[28]   Moeder argues that the probate court’s findings that Moeder “offered no

       evidence that Salin did anything wrong or that the Trust suffered any loss as a

       result of Salin’s actions” were clearly erroneous. (App. 31.) Moeder insists on

       appeal that she presented evidence of wrongdoing and harm and therefore the

       court’s finding to the contrary was clearly erroneous.


[29]   Generally, a trustee bears the burden of justifying the propriety of items in a

       trust account. In re Riddle, 946 N.E.2d 61, 68 (Ind. Ct. App. 2011). But when a

       trustee files specific accounts and makes a prima facie showing that the accounts

       are proper, the burden of persuasion shifts to the beneficiaries to show specific

       instances of impropriety. Id. Accordingly, it was Moeder’s burden to establish

       the allegations she raised in her objection.


[30]   The heart of Moeder’s objection was that Salin “generally and consistently

       failed to administer the Trust as a ‘Prudent Investor[.]’” (Appellee’s App. 16.)

       On appeal, Moeder points to several actions in which Salin engaged (or did not

       engage) as evidence of imprudent trust administration. Moeder neatly sums up

       the majority of this “evidence” in her argument:

               [T]he initial Investment Policy Statement noted no unusual
               circumstances when it should have noted a concentration. There was




       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015   Page 14 of 28
                no evidence that AIRC[5] reviewed the [Trust] prior to April 24, 2008.
                There was no written plan of “sound diversification” in at least 2007.
                The AIRC minutes that do exist do not reflect any meaningful
                consideration of the [Trust] and the testimony of [two of Salin’s trust
                administrators] gave the impression that Roederer was acting
                essentially without review. There were no limit orders in place to
                protect the over-concentration of JP Morgan stock from entering into a
                freefall. In April 2009, Salin adopted a rigid, inflexible plan to sell 500
                shares of JP Morgan stock every two months which was more or less
                implemented.


       (Appellant’s Br. 42-43.)


[31]   Despite her numerous allegations, Moeder presented at the hearing no credible

       evidence that any of the actions or omissions to which she points constituted

       imprudent investment practices in contravention of the Indiana Uniform

       Prudent Investor Act (“the Act”). See I.C. § 30-4-3.5-1 et seq. For example, the

       Act provides: “Within a reasonable time after accepting a trusteeship or

       receiving trust assets, a trustee shall review the trust assets and make and

       implement decisions concerning the retention and disposition of assets . . . .”

       I.C. § 30-4-3.5-4. The Act therefore demands only that the initial review occur

       within a “reasonable time.” Moeder points to the fact that Salin presented “no




       5
        AIRC is Salin’s Administrative Investment Review Committee. The committee consists of four trust
       officers who periodically review the trust accounts, including annual reviews required by law. (Tr. 104, 111.)

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                         Page 15 of 28
       evidence of an initial review being conducted within 60 days” as supporting

       evidence that Salin failed to meet the standards of a prudent investor.

       (Appellant’s Br. 31.) Yet Moeder failed to present at the hearing any evidence

       that more than sixty days is an unreasonable amount of time to conduct an

       initial review.


[32]   On the other hand, Salin’s former Vice President Trust Officer and the original

       administrator of the Trust, Rhonda King (“King”), testified that Salin’s normal

       practice was to review trust assets within sixty days of receiving them.

       However, King testified that Salin was unable to do so in this case because

       Moeder, the former trustee, failed to provide Salin with the relevant investment

       information to permit Salin to complete the review. After receiving the

       investment cost basis information from Moeder in April 2007, King testified

       that she and Roederer reviewed the assets and developed a diversification plan.

       Thomas Jenkins (“Jenkins”), Salin’s trust expert, testified:

               Well, the initial review generally and I think Salin policy manual is
               two months and [sic] sixty days or something like that, which is, I
               would say, the industry standard. But in order to do that review, you
               have to have all of the information available to make the decisions that
               you need to make. And reviewing the documents that I was given, the
               depositions and other related material, Salin didn’t have that
               information to make those decisions until the following year.


       (Tr. 481.) Jenkins further opined that, in light of the problems Salin

       encountered in receiving the information from Moeder, Salin complied with its

       fiduciary duties in conducting the initial review. Moeder presented no evidence

       to refute Jenkins’s testimony.

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015       Page 16 of 28
[33]   At best, Moeder’s arguments amount to a request to reweigh the evidence,

       which we decline to do. See Massey v. St. Joseph Bank & Trust Co., 411 N.E.2d

       751, 753 (Ind. Ct. App. 1980) (“Upon the review of a negative judgment, this

       Court will not reweigh the evidence nor resolve issues of credibility, but will

       scrutinize the evidence in the record most favorable to the judgment.”). Yet our

       close scrutiny of the evidence reveals that, as the probate court concluded,

       Moeder presented no evidence to support her claims regarding Salin’s initial

       review.


[34]   Beyond Moeder’s arguments about perceived paperwork deficiencies, the

       gravamen of Moeder’s appeal is that there was an “issue of fact” as to whether

       Salin properly diversified the Trust. (Appellant’s Br. 30.) The facts show that,

       after Salin made the initial sale of 7,000 shares of the JPM stock on July 30,

       2007, no more sales were made until April 2009. Moeder points to several days

       between July 31, 2007 and April 2009 when JPM stock sold on the open market

       for more than $46.90 per share, the price per share on the day Salin received the

       Trust assets.6 (Appellant’s Br. 31.) She thus argues that the Trust “could have




       6
         Moeder alleges that Salin’s diversification plan caused harm because Salin sold “all but 500 of the shares for
       a price less than their initial value.” (Appellant’s Br. 42.) Throughout her argument, Moeder uses $46.90 as
       the “initial value” of the JPM stock and the benchmark for gains and losses. However, taxable gains and
       losses are calculated as the difference between the investment cost basis, which in this case was $38.77 per
       share, and the sale price. (Tr. 295.) As such, only two sales were made for losses.

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                           Page 17 of 28
       been completely diversified in 2007-08 with no loss whatsoever.” (Appellant’s

       Br. 33.) To support her arguments at the hearing, she introduced into evidence

       a listing of JPM stock per share values at close from November 1, 2006 through

       September 29, 2010.


[35]   However, as Moeder recognizes, “[a] breach of trust does not lie simply because

       the shares were sold for an amount below the value for which they were

       received.” (Appellant’s Br. 37.) To satisfy her burden of proof, Moeder was

       required to show that Salin’s actions did not meet the standard of a prudent

       investor as outlined in the Act. To evaluate such a claim, the Act explicitly

       provides that “[c]ompliance with the prudent investor rule is determined in light

       of the facts and circumstances existing at the time of a trustee’s decision or

       action and not by hindsight.” I.C. § 30-4-3.5-8.


[36]   To that end, Moeder failed to support her objections to Salin’s investment

       decisions with any competent evidence. Moeder, who is not an investment

       professional or expert in trust administration, relied on her own testimony that

       she believed that Salin acted imprudently in holding the stock in 2008 and then

       resuming sales in 2009. Specifically, she testified that in 2009, she saw an

       interview with Jamie Dimon, the Chief Executive Officer of JP Morgan Chase

       & Co., which “encourage[d] me to believe that JPM will -- will weather this

       situation [the financial crisis] quite well.” (Tr. 463.) She then testified that she

       personally disagreed with Salin’s decision to sell the JPM stock in 2009 because

       she believed it was still selling at distressed prices. In short, Moeder’s evidence

       boiled down to Moeder’s own lay testimony that she believed Salin should have

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015   Page 18 of 28
       done things differently. However, she did not produce credible, expert

       testimony or any other competent evidence that Salin’s diversification plan and

       its steps taken in furtherance of that plan failed to meet the standard of a

       prudent investor.


[37]   On the other hand, in response to Moeder’s objections, Salin introduced

       Jenkins’s expert testimony that Salin’s diversification plan appeared to be “a

       rational plan.” (Tr. 504.) Jenkins testified that Salin’s 2007 “decision to sell

       seven thousand shares was in all probability prudent. Because right out of the

       box at that point, you at least only have half as big a problem as you had the

       day before.” (Tr. 487.) Roederer testified that he declined to sell the remaining

       stock in early to mid-2008 because the market had changed and his research

       and extensive experience indicated the prices were distressed. Jenkins

       confirmed that “[t]he plan of diversification . . . by its nature has to be flexible,

       has to take certain things into account; market conditions, other things like

       that.” (Tr. 485.) Roederer testified that he resumed sales in 2009 because JPM

       stock was “improving” and no longer distressed (Tr. 337), and Jenkins

       described that approach as “appropriate.” (Tr. 492.) As to the two sales made

       in 2009 at modest losses, Jenkins testified that occasionally a trustee may need

       to sell a stock at a loss to reduce a concentration. Overall, Jenkins described

       Roederer’s process of watching the JPM stock prices daily and making sales

       based on this information as “very prudent.” (Tr. 492.)


[38]   More importantly, Moeder points to no evidence that the overall Trust value

       was actually harmed by these sales. Moeder’s own evidence establishes that

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015     Page 19 of 28
       Salin made all but two sales for a taxable gain over the investment cost basis of

       $38.77 per share. Contrary to Moeder’s contention that Salin failed to preserve

       the Trust property, the total Trust portfolio value increased by $64,309.65 under

       Salin’s management, despite $156,265.86 in disbursements.7 (App. 234.) In

       fact, Moeder’s own objection to Salin’s accounting indicates that the Trust assets

       had greater fair market value in 2011, after Salin allegedly mismanaged the

       Trust assets, than when Salin’s received the Trust assets in 2006. Although

       Moeder seems to allege that the value could have increased more during that

       time, Moeder points to no evidence introduced at the hearing that shows how

       much additional value Salin allegedly could have added. This lack of evidence

       supports the probate court’s finding that Moeder “presented no competent

       evidence that some other approach would have been better.” (App. 28-29.)


[39]   It seems that by pointing to certain facts, or the absence of certain facts, Moeder

       asks us to infer that wrongdoing occurred. Mere facts and assertions, however,

       are not evidence of wrongdoing. Our review of the record shows that Moeder

       failed to support her bare assertions with competent evidence of legal

       wrongdoing or harm. Based on this absence of evidence, the probate court’s




       7
        Salin’s accounting, which was ultimately approved by the court, listed the initial portfolio value as
       $686,904.65. (App. 234.) The total value on the date of filing was $751,214.30. (App. 234.)

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015                           Page 20 of 28
       conclusory statement that Moeder “offered no evidence that Salin did anything

       wrong or that the Trust suffered any loss as a result of Salin’s actions” was not

       clearly erroneous. (App. 31.)


[40]   The probate court’s findings of fact and conclusions thereon were not clearly

       erroneous.


                                             Attorney’s Fees
[41]   Moeder also argues that the probate court abused its discretion when it ordered

       her to pay Salin’s reasonable attorney’s fees and costs because she brought or

       continued to litigate a groundless claim.


[42]   The probate court’s attorney’s fees award was made pursuant to Indiana Code

       section 34-52-1-1(b), which provides:

               (b) 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.


       I.C. § 34-52-1-1(b).




       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015           Page 21 of 28
[43]   The court’s decision to award attorney’s fees under Indiana Code section 34-52-

       1-1 is subject to a multi-level review. Purcell v. Old Nat’l Bank, 972 N.E.2d 835,

       843 (Ind. 2012). First, the trial court’s findings of fact are reviewed under the

       clearly erroneous standard. Id. Next, the court’s legal conclusions regarding

       whether the litigant’s claim was frivolous, unreasonable, or groundless are

       reviewed de novo. Id. Finally, the court’s decision to award attorney’s fees and

       any amount thereof is reviewed for an abuse of discretion. Id. A trial court

       abuses its discretion if its decision is clearly against the logic and effect of the

       facts and circumstances or if the court has misinterpreted the law. Id.


[44]   A claim or defense is “frivolous” if it is taken primarily for the purpose of

       harassment, if the attorney is unable to make a good faith and rational

       argument on the merits of the action, or if the lawyer is unable to support the

       action taken by a good faith and rational argument for an extension,

       modification, or reversal of existing law. Branham Corp. v. Newland Res., LLC,

       17 N.E.3d 979, 992 n.12 (Ind. Ct. App. 2014) (citing Kahn v. Cundiff, 533

       N.E.2d 164, 167 (Ind. Ct. App. 1989), aff'd, 543 N.E.2d 627 (Ind. 1989)). A

       claim or defense is “unreasonable” if, based on the totality of the circumstances,

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

       attorney would consider that the claim or defense was worthy of litigation. Id.

       A claim or defense is “groundless” if no facts exist which support the legal

       claim presented by the losing party. Id. “Bad faith is demonstrated where the

       party presenting the claim is affirmatively operating with furtive design or ill

       will.” GEICO Gen. Ins. Co. v. Coyne, 7 N.E.3d 300, 305 (Ind. Ct. App. 2014),

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015      Page 22 of 28
       trans. denied. A claim or defense is not, however, groundless or frivolous merely

       because the party loses on the merits. Smyth v. Hester, 901 N.E.2d 25, 33 (Ind.

       Ct. App. 2009), trans. denied.


[45]   Here, the probate court did not specify under which prong of Indiana Code

       section 35-52-1-1(b) it awarded the attorney’s fees, but found that the evidence

       supported the award for two reasons: 1) the claims Moeder raised at the hearing

       focused on Salin’s actions taken between 2007 and the spring of 2009 and

       therefore the claims were barred by the two-year statute of limitations, and 2)

       even if the Moeder’s claims were not time-barred, Moeder “offered no evidence

       that Salin did anything wrong or that the Trust suffered any loss as a result of

       Salin’s actions.” (App. 31.) The court also rejected Moeder’s claim that she

       pursued the litigation “in a good-faith effort to protect the interests of her

       brother,” finding her claim “not credible.” (App. 31.) The court found that

       Moeder’s action “eroded John’s share of the Trust by forcing Salin as Trustee

       [to] incur the expense of litigating [Moeder’s] objection.” (App. 31.) The court

       concluded that “in justice, [Moeder] must be required to reimburse the Trust for

       the attorney[’s] fees and other litigation costs incurred by Salin in defending

       against [Moeder’s] Objection, pursuant to Ind. Code § 34-52-1-1(b).” (App.

       31.)


[46]   The statute lists the grounds for awarding attorney’s fees in the disjunctive;

       therefore, a litigant is required to demonstrate the existence of only one ground

       in order to justify an award of attorney’s fees. Charles Downey Family Ltd. P’ship

       v. S & V Liquor, Inc., 880 N.E.2d 322, 328-29 (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015    Page 23 of 28
       Because we find it dispositive of Moeder’s claims on appeal, we address only

       the court’s conclusion that Moeder’s claims were “frivolous, unreasonable and

       groundless, inasmuch as [Moeder] offered no evidence” of wrongdoing by Salin

       or resulting harm to the Trust. (App. 31.)


[47]   As discussed above, Moeder raised an objection to Salin’s accounting and

       alleged that Salin breached its fiduciary duties. Although she pointed at the

       hearing to several actions taken (or not taken) by Salin, she failed to provide the

       court with any competent evidence that such action constituted legal

       wrongdoing. Instead, Moeder relied on her own lay testimony that Salin’s

       actions or omissions constituted imprudent management of the Trust assets.

       Overall, the value of the Trust grew under Salin’s management, and Moeder

       offered no evidence that any other approach Salin could have taken would have

       resulted in a greater benefit. Because Moeder presented to the probate court no

       evidence to support her objection and claims, the court did not err in

       concluding that Moeder brought or continued to litigate a groundless claim.

       We therefore cannot say that the probate court abused its discretion in

       awarding Salin attorney’s fees and cost incurred in defending against Moeder’s

       groundless objection and claim.


                                  Amount of Attorney’s Fees
[48]   Moeder’s next issue on appeal is that the probate court abused its discretion in

       ordering Moeder to pay $106,001.28 in attorney’s fees to Salin.




       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015   Page 24 of 28
[49]   We review the trial court’s decision to award attorney’s fees and the amount

       thereof under an abuse of discretion standard. St. Mary Med. Ctr. v. Baker, 611

       N.E.2d 135, 137 (Ind. Ct. App. 1993), reh’g denied, trans. denied. What

       constitutes reasonable attorney’s fees is a matter largely within the trial court’s

       discretion. Chicago Southshore & South Bend R.R. v. Itel Rail Corp., 658 N.E.2d

       624, 634 (Ind. Ct. App. 1995). Since the judge is considered an expert, we

       continue to adhere to the view that the judge may judicially know what

       constitutes a reasonable fee. Id.


[50]   Moeder argues that the probate court abused its discretion for four reasons: 1)

       the probate court did not enter findings of fact and conclusions thereon to

       support its order; 2) Salin’s application for attorney’s fees was not supported by

       an affidavit attesting to the reasonableness of the fees; 3) Salin chose to proceed

       to the hearing rather than filing a motion for summary judgment on its

       affirmative defense that Moeder’s claims were time-barred; and 4) Salin had

       two attorneys present during the hearing, thus unnecessarily increasing Salin’s

       litigation costs.


[51]   Salin filed with the probate court a detailed list of attorney’s fees incurred in

       defending against Moeder’s groundless objection. Salin also redacted fees and

       costs not directly related to this litigation. On appeal, Moeder presents no

       citations to authority that support her arguments that the court’s order was

       deficient or that Salin’s request was unreasonable. Accordingly, these

       arguments are waived. See App. R. 46(A)(8).



       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015    Page 25 of 28
[52]   Because the probate court may use its expertise to determine what constitutes

       reasonable attorney’s fees and Salin provided evidence of the fees it incurred,

       the court did not abuse its discretion in awarding the sum of $106,001.28 in

       attorney’s fees and costs. (App. 34.)


                                    Appellate Attorney’s Fees
[53]   In its brief, Salin asks this Court to award it attorney’s fees for defending against

       Moeder’s claims on appeal.


[54]   Indiana Appellate Rule 66(E) provides that this 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.”

       App. R. 66(E). Generally, “a discretionary award of damages has been

       recognized as proper when an appeal is permeated with meritlessness, bad faith,

       frivolity, harassment, vexatiousness, or purpose of delay.” Orr v. Turco Mfg. Co.,

       512 N.E.2d 151, 152 (Ind. 1987). In considering a request for appellate

       attorney’s fees, we use extreme restraint because of the potential chilling effect

       upon the exercise of the right to appeal. Thacker v. Wentzel, 797 N.E.2d 342,

       346 (Ind. Ct. App. 2003).


[55]   Salin argues that this Court should award it appellate attorney’s fees because

       Moeder “has offered nothing but a rehash of the specious arguments that Judge

       Zore rightly rejected” and that by pursing this appeal, she “is imposing huge

       litigation expenses on a fund her mother placed in trust to provide care for her

       disabled son John.” (Appellee’s Br. 50.)

       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015   Page 26 of 28
[56]   The probate court did not err in finding that Moeder’s claims were groundless

       and the court did not abuse its discretion in awarding Salin attorney’s fees and

       costs because Moeder brought or continued to litigate a groundless claim.

       However, we are not convinced that Moeder, facing personal liability for a

       discretionary $106,001.28 attorney’s fee award, instituted this appeal with the

       “meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay” our standard requires. Orr, 512 N.E.2d at 152. And we believe that an

       award of appellate attorney’s fees in this case would likely create a “chilling

       effect” on future litigants who also face personal liability for substantial

       attorney’s fees awards made at the discretion of trial courts. Thacker, 797

       N.E.2d at 346. Furthermore, we observe that Moeder, as the contingent

       remainder beneficiary, also stands to benefit from the Trust, should she survive

       her brother. We are thus not convinced by Salin’s argument that Moeder

       brought an appeal only to drain Trust assets that would otherwise benefit her

       brother.


[57]   Salin’s request for appellate attorney’s fees is denied.



                                                Conclusion
[58]   The probate court did not abuse its discretion in granting Salin’s motion for a

       one day continuance. The probate court’s findings and conclusions were not

       clearly erroneous. The probate court did not err in concluding that Moeder

       brought or continued to litigate a groundless claim and did not abuse its



       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015    Page 27 of 28
       discretion in awarding Salin $106,001.28 in attorney’s fees and costs. Salin’s

       request for appellate attorney’s fees is denied.


[59]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015   Page 28 of 28
