FOR PUBLICATION
APPELLANT PRO SE: ATTORNEY FOR APPELLEE FIRST MIDWEST BANK: ROBERT HOLLAND Gary, Indiana ROBERT E. STOCHEL
FILED Robert E. Stochel, P.C. Merrillville, Indiana Jan 27 2012, 8:38 am
IN THE CLERK of the supreme court, court of appeals and tax court
COURT OF APPEALS OF INDIANA
ROBERT HOLLAND, A Concerned Citizen For the ) Redevelopment of Gary, ) Appellant-Plaintiff, ) ) vs. ) No. 45A03-1102-PL-84 ) RICHARD STEELE, BARBARA STEELE, and All ) Unknown Heirs, Representatives, Legatees, Devisees, ) Executors, Administrators, Wives, Husbands, ) Receivers, Lessees, Successors, and Assigns, and ) All Persons Claiming from, through, or under, or any ) of them whose true Christian Names are Unknown to ) Petitioner, and All Other Persons to Quiet Title of ) the Above Property, and FIRST MIDWEST BANK, ) AS SUCCESSOR TRUSTEE BY WAY OF MERGER ) TO BANK CALUMET, N.A., AS TRUSTEE OF ) TRUST NO. P-4274, ) Appellees-Defendants. ) _____________________________________________ ) ) FIRST MIDWEST BANK, AS SUCCESSOR TRUSTEE ) BY WAY OF MERGER TO BANK CALUMET, N.A., ) AS TRUSTEE OF TRUST NO. P-4274, ) Counter-Claimant, ) ) vs. ) ) ROBERT HOLLAND, ) Counter-Defendant. ) APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Gerald N. Svetanoff, Judge Cause No. 45D04-0905-PL-47
January 27, 2012
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Pro-se Appellant Robert Holland a/k/a “A concerned citizen for the redevelopment of
Gary,” (“Holland”) appeals the denial of his motion to correct error, which challenged a
summary judgment order ending his litigation to foreclose upon a common law lien
encumbering real estate owned by First Midwest Bank (“the Bank”) for alleged costs of
abating a nuisance. We affirm.
Issues
Holland purportedly raises thirteen issues, but his statement of the issues does not
correspond with the substance of the argument section of his brief.1 As best we can discern
Holland’s contentions, he raises the following consolidated issues:
I. Whether the trial court’s denial of a default judgment is an abuse of discretion;
1 To the extent that Holland argues that he is entitled to summary judgment on quantum meruit (unjust enrichment) or intentional infliction of emotional distress claims, we observe that such claims were not denominated in his complaint or disposed of by the trial court order now being appealed. Holland merely assigned dollar amounts in his “Verified List of Damages and Costs” that corresponded to such categories as quantum meruit, intentional infliction of emotional distress, decrease in rental value, and punitive damages. App. 140.
2 II. Whether the trial court abused its discretion by granting the Bank a continuance of time in which to respond to Holland’s summary judgment motion;
III. Whether Holland is entitled to summary judgment enforcing his common law lien;
IV. Whether summary judgment was improvidently granted to the Bank on its claims; and
V. Whether Holland is entitled, under Indiana Trial Rule 60(B), to relief from a judgment due to fraud on the part of the Bank.
The Bank cross-appeals, seeking to have its award of attorney’s fees increased and
additionally seeking an award of appellate attorney’s fees.
Facts and Procedural History
Commencing in 2002 and ending in 2009, Holland rented property at 5014 West 17th
Avenue in Gary, Indiana. The surrounding neighborhood became blighted by a number of
vacant properties.
On May 29, 2009, Holland, identifying himself as a concerned citizen for the
redevelopment of Gary, filed his “Complaint for Foreclosure of Lien for Costs of Abating
Nuisance and the Decrease in Value of Property.”2 (App. 52.) He named as defendants
Richard and Barbara Steele, former owners of a residence at 5088 West 17th Avenue in Gary,
Indiana, and “all unknown heirs, representatives, legatees, devisees, executors,
administrators, wives, husbands, receivers, leasees [sic], successors and assigns and all
2 This was not Holland’s first attempt to appropriate property for himself. See Holland v. Manufacturers and Traders Trust Co., No. 45A04-1004-PL-324, slip op. at 3, (Ind. Ct. App. Aug. 4, 2011) (affirming the dismissal of Holland’s quiet title claim which he pursued after having “squatted on” vacant real estate and allegedly improved its condition).
3 persons claiming from, through or under, or any of them whose true Christian names are
unknown to the Petitioner, and all other persons to quiet title of the above property.” (App.
52.)
Holland alleged that the Steeles had failed to maintain their property and that the
abandoned building had become “an eyesore for the neighborhood,” inviting crime and
devaluing nearby properties. (App. 53.) Holland claimed that he had taken possession of the
property and assumed responsibility for its maintenance and repair. According to Holland’s
complaint, the Steeles had refused to pay Holland for necessary work performed. He asked
that the trial court “declare a lien” and demanded judgment for $75,000. (App. 53.) On
August 31, 2009, Holland filed his Notice of Common Law Lien,3 Lake County Recorder
Document Number 2009-059894, asserting a lien of $75,000.
After having caused service by sheriff at the abandoned property, Holland attempted
notice by publication. On November 6, 2009, Holland requested a hearing “on Entry of
Default Judgment for Foreclosure of Lien for Costs of Abating Nuisance and Decrease in
Value of Property.” (App. 12.) Hearing was set for January 4, 2010. On December 30,
2009, the Bank filed a motion to intervene, alleging that it was the owner of the subject real
estate, having been issued a Sheriff’s deed on September 1, 2006, as a result of a foreclosure
sale. Argument was heard on January 4, 2010. On March 9, 2010, the trial court granted the
motion to intervene and denied Holland’s motion for default judgment as moot.
3 Pursuant to Indiana Code Section 32-28-13-1, a “common law lien” is a “lien against real or personal property that is not 1. a statutory lien; 2. a security interest created by agreement; or 3. a judicial lien obtained by legal or equitable process or proceedings.”
4 When deposed, Holland admitted that he had no permission from the Bank to enter
onto the property at 5088 W. 17th Avenue or to perform any work there. On March 26, 2010,
the Bank filed a counterclaim alleging trespass and slander of title, and further alleging that
Holland had filed a frivolous lawsuit. On May 26, 2010, Holland moved for summary
judgment. The Bank filed a cross-motion for summary judgment.
On February 4, 2011, the trial court granted the Bank’s motion for summary judgment
and denied Holland’s motion for summary judgment. The Bank was awarded nominal
damages in the aggregate amount of $3.00 and was awarded attorney’s fees of $400.00.
Finally, the trial court declared the common law lien filed by Holland invalid. Holland filed
a motion to correct error, and a motion for relief from judgment, which were denied. This
appeal ensued.
Discussion and Decision
Standard of Review – Motion to Correct Error
“The court, if it determines that prejudicial or harmful error has been committed, shall
take such action as will cure the error[.]” Indiana Trial Rule 59(J). We review for an abuse
of discretion a trial court’s decision on a motion to correct error. Knowledge A-Z, Inc. v.
Sentry Ins., 891 N.E.2d 581, 584 (Ind. Ct. App. 2008), trans. denied. An abuse of discretion
occurs when the decision is against the logic and effect of the facts and circumstances before
the court, and inferences that may be drawn therefrom. Id.
Standard of Review – Summary Judgment
Summary judgment is appropriate only if the pleadings and designated materials
5 considered by the trial court show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. Yates v. Johnson County Bd.
of Comm’rs., 888 N.E.2d 842, 846 (Ind. Ct. App. 2008). Our well-settled standard of review
is the same as it was for the trial court. Landmark Health Care Assocs., L.P. v. Bradbury,
671 N.E.2d 113, 116 (Ind. 1996).
We must construe all evidence in favor of the party opposing summary judgment, and
all doubts as to the existence of a material issue must be resolved against the moving party.
Id. at 847. However, once the movant has carried its initial burden of going forward under
Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating
the existence of genuine factual issues, which should be resolved at trial. Otto v. Park
Garden Assocs., 612 N.E.2d 135, 138 (Ind. Ct. App. 1993), trans. denied. If the nonmovant
fails to meet his burden, and the law is with the movant, summary judgment should be
granted. Id.
A genuine issue of material fact exists where facts concerning an issue that would
dispose of the litigation are in dispute or where the undisputed material facts are capable of
supporting conflicting inferences on such an issue. Huntington v. Riggs, 862 N.E.2d 1263,
1266 (Ind. Ct. App. 2007), trans. denied. Questions of law are reviewed de novo and we owe
no deference to the trial court’s legal conclusions. In re Guardianship of Philips, 926 N.E.2d
1103, 1106 (Ind. Ct. App. 2010).
We may affirm the grant of summary judgment on any basis argued by the parties and
supported by the record. Payton v. Hadley, 819 N.E.2d 432, 437 (Ind. Ct. App. 2004).
6 However, neither the trial court nor the reviewing court may look beyond the evidence
specifically designated to the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702,
705 (Ind. Ct. App. 1999). Trial Rule 56(H) specifically prohibits this Court from reversing a
grant of summary judgment on the ground that there is a genuine issue of material fact,
unless the material fact and the evidence relevant thereto shall have been specifically
designated to the trial court. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816
N.E.2d 40, 45 (Ind. Ct. App. 2004).
Our standard of review is not altered by the fact that the parties made cross-motions
for summary judgment. Indiana Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind.
Ct. App. 2000). Instead, we consider each motion separately to determine whether the
moving party is entitled to judgment as a matter of law. Id.
Motion for Default Judgment
On October 20, 2009, Holland moved for the entry of default judgment, alleging that
the Steeles had failed to answer his complaint. Thus, he contended that title to the subject
property should be quieted in Holland and he should take the property free of the claims of
the Steeles and any other unknown claimants. The motion was denied and Holland now
argues he has “prove[d] that he was entitled to Default Judgment on the merits in this case on
all claims for which punitive damages are available against First Midwest Bank.”
Appellant’s Brief at 17.
Indiana Trial Rule 55(A) provides:
7 When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise comply with these rules and that fact is made to appear by affidavit or otherwise, the party may be defaulted by the court.
In general, default judgments are not favored in Indiana. Bedree v. DeGroote, 799 N.E.2d
1167, 1172 (Ind. Ct. App. 2003), trans. denied. “The trial court’s discretion in granting or
denying a motion for default judgment is considerable.” Delphi Corp. v. Orlik, 831 N.E.2d
265, 267 (Ind. Ct. App. 2005). The trial court should use its discretion to do that which is
“just” under the unique facts of each case. Id. We will reverse only if the decision is clearly
against the logic and effect of the facts and circumstances presented. Id.
Although he has claimed entitlement to a default judgment because the Steeles failed
to plead, Holland does not acknowledge a lack of effective service,4 nor does he dispute the
Bank’s assertion that the Steeles no longer had an interest in the subject property. He simply
asserts that he was entitled to a default judgment in June of 2009 and the Bank’s December
30, 2009 motion to intervene was untimely. Holland contends that the Bank would have
received prompt actual notice of the lawsuit had the Bank not been “an absconding debtor
that is purposely not in the record of the Lake County Recorder’s Office as owner.”
Appellant’s Brief at 18. The assertion that the Bank was less than diligent in recording its
deed does not explicitly support Holland’s claim of entitlement to default judgment. He
appears to believe that the trial court was required to quiet title as against all other potential
claimants as soon as practicable after the date an answer would have been due in the event of
effective service.
4 The existence of personal jurisdiction requires effective service of process on a defendant. See Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind. Ct. App. 2008).
8 However, the trial court was vested with discretion to consider the facts and
circumstances before it, which include the following. The purported address for the Steeles
was obviously incorrect, as the address on the summons referenced a vacant property.
Although Holland averred in his complaint that the residence at 5088 W. 17th Avenue had
“not been lived in for many years,” he also claimed, in his affidavit of service, to have
achieved service by personally delivering a summons and by procuring sheriff’s service at the
same vacant address. (App. 52.)
Not surprisingly, the prior owners failed to appear in the quiet title action. The Bank,
upon acquiring knowledge of the common law lien, moved to intervene within a few months
of the filing of the complaint. The Bank produced a copy of a Sheriff’s Deed dated
September 1, 2006, conveying ownership of the property previously owned by the Steeles.
On its face, the complaint for foreclosure of a common law lien warranted inquiry
before quieting of title, as Holland claimed to have a legitimate lien against vacant property
for $75,000 worth of (non-itemized) work performed thereon. Pursuant to his Notice of
Common Law Lien, Holland had asserted a lien against 5088 West 17th Avenue, Gary,
Indiana for “the costs of abating the nuisance created by 2009 Chase Street and the decrease
in value of surrounding property.” (App. 56.) (emphasis added.) Given the preference for
deciding cases on the merits, we are not persuaded that the trial court’s decision to deny the
motion for default judgment was against the logic and effect of the facts and circumstances
presented.
9 Continuance of Time to Respond to Summary Judgment Motion
Holland claims that the trial court abused its discretion by granting the Bank a
continuance of time in which to conduct discovery before responding to Holland’s summary
judgment motion. Holland asserts that the Bank claimed a need to depose Holland and
neighbors who had signed affidavits regarding the condition of 5088 W. 17th Avenue but
failed to specify a discovery dispute or subsequently schedule depositions of neighbors.
According to Holland, the Bank “unilaterally created a pernicious excuse for delay without
specifically stating what discovery issues of material fact remained.” Appellant’s Brief at 23.
Holland does not direct us to a corresponding portion of the appellate record. Indiana
Appellate Rule 46(A)(8)(a) requires that each contention be supported by citations to the
authorities, statutes, and the Appendix or parts of the Record on Appeal relied on. Because
we will not become an advocate for one of the parties, we decline to consider an appellant’s
assertions when he or she fails to present cogent arguments supported by authority and
references to the record, consistent with the requirements of the appellate rules. Shepard v.
Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).
Summary Judgment – Holland’s Lien Claim
Holland claims that he was entitled to summary judgment on his quiet title claim,
having demonstrated that he held a valid lien for sums expended to redress a nuisance.5
5 During discovery, Holland produced a “Verified List of Damages and Costs.” (App. 360.) In his deposition testimony, Holland admitted that he lacked receipts for claimed expenditures to abate the alleged nuisance. He explained that he had included $350 for the value of his own time, for “research time spent determining who was the owner.” (App. 360.) He had also included $300 for “estimated fees for costs such as mail, telephone, and office supplies,” and a bill for his “time and effort spent prosecuting this lawsuit” at a rate of $250 per hour. (App. 360.) Holland testified that he had paid cash to an unidentified person to cut the lawn and replace
10 In Indiana, nuisances are defined by statute. Indiana Code Section 32-30-6-6 defines
an actionable nuisance as: “Whatever is (1) injurious to health; (2) indecent; (3) offensive to
the senses; or (4) an obstruction to the free use of property; so as essentially to interfere with
the comfortable enjoyment of life or property[.]” A public nuisance is that which affects an
entire neighborhood or community while a private nuisance affects only one individual or a
determinate number of people. Wernke v. Halas, 600 N.E.2d 117, 120 (Ind. Ct. App. 1992).
The essence of a private nuisance is the use of property to the detriment of the use and
enjoyment of another’s property. Id. A public nuisance is caused by an unreasonable
interference with a common right. Indiana Limestone Co. v. Staggs, 672 N.E.2d 1377, 1384
(Ind. Ct. App. 1996), trans. denied.
In his complaint, Holland described the conditions that he was allegedly compelled to
redress as follows:
The Defendant has refused to assume responsibility for the care, maintenance and hazards that the abandoned building creates. The abandoned building has invited a criminal element in the neighborhood. The abandoned building has been used for the purpose of selling and using illegal drugs. The house has been vandalized and materials stolen from the property. The property has become in disrepair and is an eyesore for the neighborhood. The property sits vacant and can not be sold to an interested party that will care for it. The value of the other homes in the neighborhood such as the Plaintiff’s go down. Taxes in the area go up. Because taxes are not being paid revenue for public schools and other government facilities go down. Students receive a lower quality education and the citizens of Gary, Indiana suffer from less and less governmental services.
a back door at the vacant property. He had also paid cash for trash hauling. Neither this deposition testimony nor the other designated materials reveal $75,000 worth of expenditures to support the purported lien. Instead, it appears that the $75,000 figure is largely comprised of Holland’s assessment of his “damages,” including $5,400 for decrease in rental value or loss of quiet enjoyment, $18,000 for infliction of emotional distress, and $50,000 for punitive damages.
11 (App. 53.) As such, Holland alleged that an entire neighborhood, community, and ultimately
a city were affected. His designated materials included a number of affidavits from
neighbors averring that the vacant property had attracted a criminal element and caused the
neighbors to feel unsafe. They also had averred that the vacant property was an
embarrassment to the community.
“Generally, a private party has no right of action under a public nuisance.” Indiana
Limestone, 672 N.E.2d at 1384. However, a party may bring a successful private action to
abate a public nuisance if the party demonstrates special and peculiar injury apart from the
injury suffered by the general public. Id. Holland’s designated materials reveal that he was
one of many neighbors upset that the vacant property was unsightly and could serve to shelter
criminal activity. On appeal, he claims only that he was more particularly affected than his
neighbors because he was closer in proximity to the vacant property than some other
neighbors. We are not persuaded that a mere difference in proximity describes a special and
peculiar injury. Holland did not establish his entitlement to judgment as a matter of law, and
thus the trial court properly denied Holland summary judgment on his quiet title claim.
The crux of Holland’s contentions is that he, as a private individual, should have an
unfettered citizen’s right to act to abate a nuisance that contributes to urban blight. However,
it is not within our purview to opine on policy questions surrounding a legislative or
governmental response to urban problems. “It is the province of the public authorities to
procure redress for public wrongs.” Adams v. Ohio Falls Car Co., 131 Ind. 375, 31 N.E. 57,
58 (1892).
12 Summary Judgment for Bank on its Counterclaims
Count I of the Bank’s counterclaim alleged trespass by Holland. Generally, a party
bringing a trespass action must establish two elements: (1) the plaintiff must show that he
possessed the land when the alleged trespass occurred, and (2) the plaintiff must demonstrate
that the alleged trespasser entered the land without a legal right to do so. KB Home Indiana,
Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 308 (Ind. Ct. App. 2010). It is undisputed that
the Bank acquired the subject property in 2006. In his deposition, Holland testified that he
entered the property in 2008 and that he had no permission from the Bank to do so. The
Bank was entitled to summary judgment on the trespass claim.
The Bank’s second count alleged slander of title. To succeed on a claim for slander of
title, the plaintiff must prove that false statements were made, with malice, and that the
plaintiff sustained pecuniary loss as a necessary and proximate result of the slanderous
statements. Isanogel Ctr., Inc. v. Father Flanagan’s Boys’ Home, Inc., 839 N.E.2d 237, 245-
46 (Ind. Ct. App. 2005), trans. denied. Malicious statements are those made with knowledge
of their falsity or with reckless disregard for whether they are false. Id.
The trial court determined that Holland recorded a baseless lien encumbering Bank
property and then attempted to foreclose that lien with no legal basis to do so. The
designated materials reveal that Holland trespassed, and then solicited others to perform
clean-up activities, allegedly to abate a nuisance affecting the neighborhood. After three
years, Holland filed a common law lien for $75,000, a specious sum he could not (in
deposition testimony) attribute to direct costs. The designated materials point to a sole
13 conclusion, that reached by the trial court, Holland held no enforceable lien and had
slandered the Bank’s title to the subject real estate.
The Bank’s third count alleged that Holland had pursued a frivolous action to
foreclose a common law lien and divest the Bank of its real property. A claim is frivolous
if it is taken primarily for the purpose of harassing or maliciously injuring a person, or (b) if the lawyer is unable to make a good faith and rational argument on the merits of the action, or (c) 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.
Kahn v. Cundiff, 533 N.E.2d 164, 170 (Ind. Ct. App. 1989), summarily aff’d, 543 N.E.2d
627 (Ind. 1989). Holland readily admitted that he entered onto land without permission of
the owner. He then conducted unauthorized activities, allegedly incurring costs for which he
failed to obtain receipts.
Nonetheless, he proceeded to file a common law lien based upon his valuation of his
personal efforts and his estimates of cash paid to one or more unidentified individuals. He
claimed to have damages for a reduction in property value, although he freely admitted that
he rented, as opposed to owned, his residence on 17th Avenue. The designated materials lead
to but one conclusion: Holland continued to litigate his claim that title to 5088 W. 17th
should be quieted in him long after it became apparent that he had no basis for enforcement
of the $75,000 common law lien. The Bank was entitled to judgment as a matter of law on
this claim.
14 Relief from Judgment for Alleged Fraud
Holland argues that he is entitled to relief from the judgment, pursuant to Indiana Trial
Rule 60(B)(3), because the Bank acted fraudulently.
According to Holland, the Bank “engaged in fraudulent misconduct on numerous
occasions by being an absconding debtor, by not recording the Sheriff’s Deed for 4 years
with the Lake County Recorder, not reporting the transfer of the property to the Lake County
Assessor, not reporting the transfer of the property to the Lake County Auditor, not reporting
the transfer of the property to the Lake County Treasurer, the fraudulent use of another
person’s (the Steeles’) exemption, and not paying property taxes to the Lake County
Treasurer.” Appellant’s brief at 33.
Holland may be arguing that the Steeles were defrauded, but he is not in a position to
claim that he personally suffered a demonstrable injury. He was not deprived of a tax
exemption nor was he entitled to reimbursement of property taxes. He did not own the
property at issue.
Holland further contends that the Bank perpetrated a fraud upon the court by denying
that the vacant property needed repair and maintenance. To show fraud on the court, “the
party must establish that an unconscionable plan or scheme was used to improperly influence
the court’s decision and that such acts prevented the party from fully and fairly presenting its
case or defense.” Stonger v. Sorrell, 776 N.E.2d 353, 357 (Ind. 2002). The claim has been
limited to the most egregious of circumstances involving courts. Id. Such circumstances are
not present here.
15 Holland has failed to show that he is entitled to any relief from the trial court’s
judgment.6
Cross-Appeal on Attorney’s Fees
The trial court found that the Bank had incurred “substantial” attorney’s fees in
“defending itself and its property from the baseless claims made by Holland.” (App. 20.)
Observing that “Holland is a person who is not wealthy,” the trial court limited the award of
attorney’s fees to $400.00. (App. 21.) Although not referencing a particular statute, the trial
court specified that the $400 award was “incentive to discourage [Holland] from pursuing
baseless litigation.” (App. 21.) The Bank argues that consideration of Holland’s financial
circumstances was improper and the Bank should recover all its attorney’s fees.
Indiana Code section 32-20-5-2 provides that “[i]n any action to quiet title to land, if
the court finds that a person has filed a claim only to slander title to land, the court shall”
award the plaintiff costs, attorney’s fees, and “damages that the plaintiff may have sustained
as the result of the notice of claims having been filed for record.”
Additionally, Indiana Code section 34-52-1-1(b) confers upon the trial court discretion
to award attorney’s fees to the prevailing party if the other 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.
6 We observe that Indiana Trial Rule 60(D) provides that a trial court, in ruling on a motion for relief from judgment, “shall hear any pertinent evidence.” However, where there is no pertinent evidence, a hearing is unnecessary. Knowledge A-Z, Inc. v. Sentry Ins., 891 N.E.2d 581, 585 (Ind. Ct. App. 2008), trans. denied.
16 The trial court is not required to find an improper motive to support an award of attorney’s
fees; rather, an award may be based solely on a lack of good faith and rational argument in
support of the claim. Breining v. Harkness, 872 N.E.2d 155, 161 (Ind. Ct. App. 2007). The
amount of fees to be awarded is within the broad discretion of the trial court and will be
reversed only if the award is clearly against the logic and effect of the facts and
circumstances before the court. Benaugh v. Garner, 876 N.E.2d 344, 347 (Ind. Ct. App.
2007), trans. denied.
The Bank deems itself entitled to a full award of its claimed fees, without regard to a
litigant’s poverty, particularly because an award of fees is not discretionary where a slander
of title has been found. The Bank observes, correctly, that our Supreme Court has offered
guidance in the Rules of Professional Conduct concerning factors to be considered in
determining the reasonableness of attorney’s fees. Order for Mandate of Funds Montgomery
County Council v. Milligan, 873 N.E.2d 1043, 1049 (Ind. 2007). However, the factors7 are
“non-exclusive.” Benaugh, 876 N.E.2d at 348.
As the Bank points out, the statutes that would support an award of attorney’s fees in
this case – either for slander of title or a frivolous lawsuit – do not require the trial court to
7 The factors, set forth in Indiana Professional Conduct Rule 1.5(a), include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
17 consider a litigant’s personal financial circumstances. As a corollary, however, the trial court
is not prohibited from considering those circumstances. Here, too, although the trial court
did not explicitly so state, Holland’s depositions reveal that the same attorney in this case had
been involved in opposing Holland’s quiet title claim in the Holland v. Manufacturers and
Traders Trust Co. case. In that matter, which involved similar discovery, legal research, and
defenses, Holland had been ordered to pay $10,531.27 in attorney’s fees.
We also observe that the Bank was partially responsible for the generating of legal
fees. For several years, the Bank failed to take responsibility for the upkeep of the vacant
property as neighbors searched for a remedy to their plight. While the Bank wishes to enjoy
the benefits of ownership (including the right to exclude persons and claim trespass) and now
asserts that $9,983.31 is a reasonable fee to defend its title to 5088 W. 17th Avenue, the Bank
failed to timely assume the duties of ownership of valuable real property. The Bank did not
promptly record its deed, upkeep its property, or initially pay real estate taxes in its own
name. Indeed, it appears that the Bank wholly disclaimed any liability for the condition of
the property and its impact on the surrounding neighborhood. As such, the Bank has not
demonstrated an abuse of discretion on the part of the trial court in its award of partial
attorney’s fees.
Pursuant to Indiana Appellate Rule 66(E), the Bank asks this Court to order Holland
to pay the Bank for its attorney fees in contesting this appeal. “The 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 Court shall remand the case for execution.”
18 Ind. Appellate Rule 66(E). Our discretion “is limited to instances ‘when an appeal is
permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of
delay.’” Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001) (quoting Orr
v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987)).
In general, we are cautious to award attorney fees because of the potentially chilling
effect the award may have upon the exercise of the right to appeal. Knowledge A-Z, Inc.,
891 N.E.2d at 586. In light of this general principle, and the Bank’s role in the events giving
rise to litigation, we decline to award appellate attorney’s fees to the Bank.
Conclusion
Holland has not demonstrated an abuse of discretion by the trial court with respect to
his motion for a default judgment or the Bank’s motion for a continuance. The trial court
properly denied Holland summary judgment on his quiet title claim, and properly granted
summary judgment to the Bank on its trespass and slander of title claims. The trial court
properly found that Holland had filed a frivolous lawsuit, and that the Bank was entitled to
attorney’s fees. The amount of attorney’s fees awarded was within the trial court’s
discretion. Finally, we decline to award appellate attorney’s fees.
Affirmed.
BAKER, J., and DARDEN, J., concur.