FOR PUBLICATION
                                                            FILED
                                                          Nov 20 2012, 8:52 am

ATTORNEY FOR APPELLANT:
                                                                 CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court
DANIEL L. LAUER
Blume, Connelly, Jordan, Stucky &
 Lauer, LLP
Fort Wayne, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

RICHARD TROY DUNNO,                            )
                                               )
      Appellant,                               )
                                               )
             vs.                               )    No. 02A03-1207-PO-310
                                               )
RONALEE RASMUSSEN,                             )
                                               )
      Appellee.                                )


                    APPEAL FROM THE ALLEN SUPERIOR COURT
                       The Honorable Jerry L. Ummel, Magistrate
                           Cause No. 02D01-1112-PO-3771



                                    November 20, 2012


                            OPINION - FOR PUBLICATION


BROWN, Judge
       Richard Troy Dunno appeals the trial court’s judgment ordering him to pay

attorney fees. Dunno raises one issue which we revise and restate as whether the trial

court abused its discretion by denying Dunno’s motion to correct error. We reverse.

       The relevant facts follow. On December 21, 2011, Dunno filed a petition for an

order for protection and request for a hearing against Ronalee Rasmussen. Dunno alleged

that Rasmussen struck him with a vodka bottle and that he received eighteen stitches as a

result of the injury. On December 22, 2011, the court issued an ex parte order for

protection.

       A chronological case summary (“CCS”) entry dated February 9, 2012, indicates

that Dunno failed to appear for a hearing and present evidence.1 That same day, the court

ordered that the petition for an order for protection be dismissed and that the order for

protection issued on December 22, 2011, be terminated.

       A CCS entry dated February 13, 2012, indicates that Rasmussen presented

evidence at the hearing that she was not the individual that caused Dunno to receive

stitches and requested the payment of attorney fees. On February 13, 2012, the court

granted Rasmussen’s motion and stated that she was entitled to recover reasonable

attorney fees in the sum of $500. Specifically, the court’s order provided:

              [Dunno] fails to appear. [Rasmussen] appears with counsel and the
       Court finds as follows:

                 1.       The Court granted an Ex Parte Order of Protection
                          based on [Dunno’s] sworn statement that [Rasmussen]
                          struck him with a vodka bottle resulting in injury to


       1
           The record does not contain a transcript of the hearing.

                                                      2
                       [Dunno2]. [Dunno] stated that he was taken to the
                       emergency room and received 18 stitches for the injury
                       caused by [Rasmussen].

               2.      At the hearing [Rasmussen] presented evidence that
                       she was not the individual that caused [Dunno] to
                       receive stitches.

               3.      The Court then dismissed and terminated the Order of
                       Protection and [Rasmussen], by counsel, requested the
                       payment of attorney fees. [Rasmussen’s] motion is
                       granted. [Rasmussen] is entitled to recover reasonable
                       attorney fees which the Court finds to be the sum of
                       $500.00. [Rasmussen] is now given a judgment in
                       favor of [Rasmussen] against [Dunno] in the sum of
                       $500.00.

Appellant’s Appendix at 1.

       On February 24, 2012, Dunno filed a motion to correct error. Dunno alleged that

attorney fees may not be assessed against him pursuant to Ind. Code § 34-26-5-9(c). That

same day, Dunno also filed a motion for relief from judgment under Ind. Trial Rule

60(B)(1).    Dunno alleged that his attorney advised him that his petition would be

dismissed if he chose not to attend the hearing and was not advised that attorney fees

could be assessed against him.3

       On March 5, 2012, the court denied Dunno’s motion for relief from judgment. On

March 19, 2012, Dunno filed a request for a hearing with respect to his motion to correct



       2
          The February 13, 2012 order stated that Dunno alleged that Rasmussen struck him with a vodka
bottle resulting in “injury to the Respondent.” Appellant’s Appendix at 1. The next day, the court
entered an amended order to correct the scrivener’s error.
       3
          We note that a statement above the affirmation in Dunno’s petition for an order for protection
states: “I understand that if a Hearing is set, and if I fail to appear for the Hearing, the Court may
terminate the Ex Parte Order and dismiss the case.” Appellant’s Appendix at 22.

                                                   3
error. The court held a hearing on June 18, 2012, and denied Dunno’s motion to correct

error.

         Before addressing Dunno’s arguments, we note that Rasmussen did not file an

appellee’s brief. When an appellee fails to submit a brief, we do not undertake the

burden of developing appellee’s arguments, and we apply a less stringent standard of

review, that is, we may reverse if the appellant establishes prima facie error. Zoller v.

Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was established so that we

might be relieved of the burden of controverting the arguments advanced in favor of

reversal where that burden properly rests with the appellee. Wright v. Wright, 782

N.E.2d 363, 366 (Ind. Ct. App. 2002). Questions of law are still reviewed de novo,

however. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind. Ct. App. 2008).

             The issue is whether the trial court abused its discretion by denying Dunno’s

motion to correct error.4 The standard of appellate review of trial court rulings on

motions to correct error is abuse of discretion. Paragon Family Rest. v. Bartolini, 799

N.E.2d 1048, 1055 (Ind. 2003). An abuse of discretion occurs when the decision is

clearly against the logic and effect of the facts and circumstances before the court,

including any reasonable inferences therefrom. Id.

         Dunno argues that the trial court improperly assessed attorney fees against him

because Ind. Code § 34-26-5-9 allows for a trial court to order only a respondent to pay

attorney fees. Dunno argues that “[a]llowing the trial court to award attorney fees against

         4
          Dunno’s notice of appeal refers to the court’s February 14, 2012 order and the denial of his
motion to correct error on June 18, 2012. Dunno does not mention on appeal or develop any argument
with respect to the denial of his motion for relief from judgment.

                                                  4
someone petitioning for a protective order would undoubtedly have a chilling effect and

cause some victims of domestic violence to forgo making a legitimate plea for

protection.” Appellant’s Brief at 7. Dunno also claims that the record does not support

an attorney fee assessment under Ind. Code § 34-52-1-1(b).

       Generally, Indiana has consistently followed the American Rule in which both

parties generally pay their own fees. Loparex, LLC v. MPI Release Techs., LLC, 964

N.E.2d 806, 815-816 (Ind. 2012). In the absence of statutory authority or an agreement

between the parties to the contrary – or an equitable exception – a prevailing party has no

right to recover attorney fees from the opposition.5 Id. at 816. The record does not reveal

what statutory basis, if any, or what reason Rasmussen cited in support of her request for

attorney fees. The court’s order also did not specify a statutory provision supporting the

award of attorney fees.

       Ind. Code § 34-26-5-9(c) of the Indiana Civil Protection Order Act governs the

relief after notice and hearing and provides that “[a] court may grant the following relief

after notice and a hearing, whether or not a respondent appears, in an order for protection

or in a modification of an order for protection: . . . [o]rder a respondent to . . . pay

attorney’s fees.” This statute does not mention that a trial court may order a petitioner to

pay attorney fees. Rather, the statute limits the trial court’s discretion to an order against

the respondent.



       5
         There are three well-established common-law exceptions to the American Rule: the “obdurate
behavior” exception, the “common fund” exception, and the “private attorney general” exception.
Indiana embraces the first two of these and not the third. Loparex, LLC, 964 N.E.2d at 816 n.5.

                                                5
       The first section of the Indiana Civil Protection Order Act provides that “[t]his

chapter shall be construed to promote the: (1) protection and safety of all victims of

domestic or family violence in a fair, prompt, and effective manner; and (2) prevention of

future domestic and family violence.” Ind. Code § 34-26-5-1. In light of the statements

in Ind. Code § 34-26-5-1 and Ind. Code § 34-26-5-16,6 which provides that certain fees

may not be charged in seeking relief under this chapter but that costs may be collected

from a party against whom an order of protection is sought, we observe that ordering a

petitioner to pay the respondent’s attorney fees may chill the filing of meritorious

protective order cases because potential claimants face the possibility of being ordered to

pay fees. We cannot say that Ind. Code § 34-26-5-9 provides statutory authority to order

Dunno to pay Rasmussen’s attorney fees.

       Subsection (b) of Ind. Code § 34-52-1-1, also known as the General Recovery

Rule, 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;

       6
           Ind. Code § 34-26-5-16 provides:

       Fees for:

                 (1)     filing;
                 (2)     service of process;
                 (3)     witnesses; or
                 (4)     subpoenas;

       may not be charged for a proceeding seeking relief or enforcement as provided in this
       chapter, including a proceeding concerning a foreign protection order as described in
       section 17 of this chapter. This section may not be construed to prevent the collecting of
       costs from a party against whom an order for protection is sought if the court finds a
       claim to be meritorious and issues an order for protection under this chapter.
                                                   6
              (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.

Ind. Code § 34-52-1-1.

       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. America’s Directories

Inc., Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059, 1070-1071 (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 or

defense is groundless if no facts exist which support the legal claim relied on and

presented by the losing party. SLR Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193,

201 (Ind. Ct. App. 2001). However, an action is not groundless merely because a party

loses on the merits. Id. Bad faith is demonstrated where the party presenting the claim is

affirmatively operating with furtive design or ill will. SJS Refractory Co., LLC v.

Empire Refractory Sales, Inc., 952 N.E.2d 758, 770 (Ind. Ct. App. 2011).

       Dunno argues that the trial court made no specific finding that he brought or

continued his action after his claim became frivolous, unreasonable, or groundless, or that

he litigated in bad faith. Dunno also argues that while Rasmussen presented evidence

that she was not the individual that caused him to receive stitches, it is undisputed that he
                                             7
was injured by someone at the party and that he verified under oath that Rasmussen

caused the injuries.

       The trial court’s decision to award attorney fees under § 34-52-1-1 is subject to a

multi-level review: the trial court’s findings of facts are reviewed under the clearly

erroneous standard and legal conclusions regarding whether the litigant’s claim was

frivolous, unreasonable, or groundless are reviewed de novo. Purcell v. Old Nat. Bank,

972 N.E.2d 835, 843 (Ind. 2012). Finally, the trial court’s decision to award attorney fees

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

its discretion if its decision clearly contravenes the logic and effect of the facts and

circumstances or if the trial court has misinterpreted the law. Id.

       To the extent that Dunno argues that the trial court made no specific finding that

he brought or continued his action after his claim became frivolous, unreasonable, or

groundless, or that he litigated in bad faith, we observe that the Indiana Supreme Court

recently held that when a trial court grants a petition for attorney fees without making

special findings of fact, “we look to the basis of the prevailing party’s petition and view

the court’s order as an implicit legal conclusion consistent with the main thrust of the

petition—that the claim or defense at issue was frivolous, unreasonable, groundless, or

litigated in bad faith.” R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 461

(Ind. 2012). As previously mentioned, the record does not reveal what statutory basis, if

any, or what reason Rasmussen cited in support of her request for attorney fees.

       Even assuming, without deciding, that the General Recovery Rule applies in the

context of this case, and recognizing again that Rasmussen did not file an appellee’s

                                              8
brief, we cannot say that the record supports an award of attorney fees. While Dunno

failed to appear at the hearing and the court found that Rasmussen presented evidence

that she was not the individual that caused Dunno to receive stitches, we cannot say that

the record supports the conclusion that Dunno’s action was frivolous, unreasonable, or

groundless, that Dunno continued to litigate after his claim clearly became frivolous,

unreasonable, or groundless, or that he litigated the action in bad faith. Accordingly, we

conclude that Dunno has made a prima facie showing that the award of attorney fees was

improper. See Dorothy Edwards Realtors, Inc. v. McAdams, 525 N.E.2d 1248, 1253

(Ind. Ct. App. 1988) (concluding that appellant had made a prima facie showing on

appeal that the award of attorney fees was inappropriate and should be reversed), reh’g

denied.

      For the foregoing reasons, we reverse the trial court’s judgment ordering Dunno to

pay Rasmussen’s attorney fees.

      Reversed.

FRIEDLANDER, J., and PYLE, J., concur.




                                            9
