Ind. Code § 34-52-1-1

Subsection (b) permits fees when a party continues litigation after discovery makes clear that its claims lack factual or legal support.

Garza v. Lorch · filed 1998-12-29(b)

Maintenance of this lawsuit became frivolous, unreasonable and groundless at least at the point of discovery. ... Moreover, we hold that the trial court did not abuse its discretion in granting attorney fees and costs to Abbott and Lorch for maintenance of a frivolous, unreasonable and groundless lawsuit.

A defense is not frivolous, unreasonable, or groundless merely because it loses on the merits, including when evidence supports contributory negligence but the jury rejects it.

Emergency Physicians of Indianapolis v. Pettit · filed 1999-06-29

Again, however, an award of attorney’s fees is not justified merely because a party loses on the merits. … In addition, we disagree with the trial court’s legal conclusion concerning Dr. Timothy’s defense of contributory negligence.

A defense is not frivolous, unreasonable, or groundless merely because it loses on the merits, including when evidence supports contributory negligence but the jury rejects it.

Emergency Physicians v. Pettit · filed 1999-06-29

Again, however, an award of attorney's fees is not justified merely because a party loses on the merits. ... Upon de novo review we disagree with the trial court's legal conclusion that Dr. Timothy's defense of contributory negligence was frivolous, unreasonable, and groundless.

Fees are unsupported when the supposedly frivolous or bad-faith position proves meritorious and the record does not establish any other statutory ground.

Williamson v. Williamson · filed 1999-08-20

As a result, the underlying basis for an award of fees and costs under I.C. 34-52-1-1 has evaporated. In sum, the evidence of record does not support the conclusion that Robert’s continued objection to the final accounting and settlement statement was frivolous, unreasonable and groundless; nor does it support the conclusion that Robert pursued the matter in bad faith. The award of attorney’s fees and costs in Donald’s favor is erroneous.

Section 34-52-1-1 does not support fees merely because medical-malpractice defenses fail when those defenses had rational legal or factual support.

Emergency Physicians of Indianapolis v. Pettit · filed 1999-11-03

We (1) grant transfer; (2) adopt and incorporate by reference Part II of the Court of Appeals’s opinion addressing the issue of attorneys’ fees; (3) vacate the remainder of the opinion of the Court of Appeals; and (4) remand to the trial court for re-computation of that amount of prejudgment interest (and court costs) attributable to the $100,000 damage award that Providers are responsible for paying.

A claim supported by proximity, legitimate concerns, and a potentially conflicted official is not frivolous, unreasonable, groundless, or litigated in bad faith merely because the claimant lacks standing.

Bagnall v. Town of Beverly Shores · filed 2000-03-30(b)

On the other hand, in light of the proximity of the Bagnall property to Lot 11, the concerns expressed in the Bagnalls’ writ petition, and the fact that Michael Pavel was a member of the Board, we cannot go so far as to conclude that the Bagnalls’ petition was frivolous, unreasonable, or groundless or litigated in bad faith. ... Therefore, we reverse the trial court’s imposition of attorneys’ fees and hold that the Board is not entitled to compensation for their legal expenses.

Subsection (b) does not support fees when a party presents reasonable arguments with authority and the record shows no intent to harass, malicious purpose, or ill will.

Turner v. Board of Aviation Commissioners · filed 2001-02-14(b)

Although the trial court ultimately found all of Turner's claims to be without merit, and we have also rejected all of his claims other than those we have remanded for further proceedings, we cannot say that his defenses are unreasonable or so lacking in factual or authoritative support that they are frivolous, unreasonable, or groundless. ... Turner has vigorously defended himself, perhaps more vigorously than the value of the Board's claims would seem to require, but there is simply no evidence of ill will on his part. ... Therefore, we reverse the trial court's award of attorney's fees.

A claim is groundless only when no facts support the legal theory; losing because the court adopts a different legal interpretation does not by itself justify fees.

SLR Plumbing & Sewer, Inc. v. Turk · filed 2001-10-22(b)

A claim or defense is groundless if no facts exist which support the legal claim relied on and presented by the losing party. ... However, an action is not groundless merely because a party loses on the merits. ... We will not punish Subcontractor for making a mistake in the application of the law to the facts. Because there are facts to support his position, Subcontractor's claim was not groundless. Accordingly, we reverse that portion of the trial court's judgment that granted attorney fees to Owners pursuant to Ind.Code § 34-52-1-1.

Subsection (b) does not support fees merely because a claim ultimately fails when the claimant presents a good-faith rational argument, the issue remains worthy of litigation, and no evidence shows harassment or malicious purpose.

Wyatt v. Wheeler · filed 2010-10-20(b)

Furthermore, Wyatt has presented a good faith and rational argument on the merits throughout this case. ... In addition, there is no evidence that Wyatt is pursuing this action to harass or maliciously injure Ellspermann. ... Thus, the Marion Superior Court did not abuse its discretion by denying Ellspermann's request for attorney's fees.

An improperly pleaded claim is not frivolous, unreasonable, or groundless when the claimant had a rational legal theory and facts supporting a valid potential claim.

White v. Rhymer · filed 2012-02-14(b)

Upon review of the record, we cannot say that the record supports the trial court’s conclusion that White’s Counterclaim, though improperly pled, constituted a frivolous, unreasonable, or groundless claim. … Because we find that White’s Counterclaim, though improperly pled, was not frivolous, unreasonable, or groundless, the trial court erred when it awarded Rhymer attorney fees.

Subsection (b)(2) does not support fees after judgment on the evidence when the losing party presented some facts potentially supporting the legal claim, even though the proof was insufficient to reach the jury.

Purcell v. Old National Bank · filed 2012-07-31(b)(2)

Thus, it cannot be said that “no facts” existed in support of his legal claim at the time Purcell went to trial. Based on this conclusion and on the strong deference afforded to the trial court in these matters, we hold that the trial court did not abuse its discretion in denying Old National’s request for costs and attorney’s fees.

Fees are properly denied when claims, though unsuccessful, are supported by a potentially meritorious constitutional theory and are not frivolous, unreasonable, groundless, or brought in bad faith.

Terry and Laura Wagler, Larry and Jennifer Wagler, Norman Wagler, and Janet and Nathan Wagler v. West Boggs Sewer Distri · filed 2012-11-29(b)

To the extent that West Boggs suggests that the Waglers’ goal in this litigation was to merely delay and frustrate the development of West Boggs’ sewer system, we find that despite the shortcomings in their briefs and arguments, their decisions to hire new counsel and file motions to have the agreed entry and judgments set aside and assert that, as members of the Old Order Amish Church, they had meritorious claims based upon freedom of religion provisions found in the First Amendment to the U.S. Constitution and Article 1, Sections 2 and 3 of the Indiana Constitution, were not frivolous, unreasonable, or groundless and were not in bad faith. Accordingly we conclude that the trial court did not abuse its discretion in denying West Boggs’ request for attorney fees and costs.

A losing claim is not sanctionable when counsel rationally considered it worthy of litigation and alleged facts supporting the legal theory, absent extreme vexatious or oppressive conduct.

Trivest Partnership, L.P. v. James Gagan, Fred Wittlinger, Jack Allen and Eugene Deutsch · filed 2013-04-01(b)

Nor can we conclude that Sellers claim is groundless. By alleging facts in support of their claim that a misuse of confidential information occurred, Sellers alleged facts to support their ultimately unsuccessful legal claim. ... For these reasons, we conclude that the trial court did not abuse its discretion in concluding that Sellers’ claim did not rise to the level of a frivolous, unreasonable, or groundless claim. ... Based on the foregoing, we conclude that the trial court did not abuse its discretion by denying Trivest’s motion for attorney fees.

Section 34-52-1-1 does not authorize fees against a party whose successful defense is not frivolous and whose position is neither unreasonable nor groundless.

Reed v. Ashcraft · filed 2013-09-24(b)

Indeed, finding as we do that the trial court’s dismissal of the ex parte Protective Order was not in error, Ashcraft’s defense to Reed’s Petition was, accordingly, not frivolous and her claim was not unreasonable or groundless. Reed has failed to establish that the trial court abused its discretion when it denied her motion for attorney fees.

An unsuccessful fraud claim is not frivolous, unreasonable, or groundless under section 34-52-1-1 when evidence supports the claim, even though the factfinder rejects it.

Thomas Moriarty, as Personal Representative of the Estate of Donna Davis v. West Morgan, LLC (mem. dec.) · filed 2016-06-08

This evidence did not convince the trial court to rule in Moriarty’s favor on his claims for fraud and payment under the land contracts, but we cannot conclude the claims were so lacking in evidentiary support as to be frivolous, unreasonable, or groundless.

Losing on the merits after presenting a sufficiently pleaded claim and supporting evidence does not make the claim frivolous, unreasonable, or groundless under section 34-52-1-1.

Lehman v. Michele Lehman (mem. dec.) · filed 2017-04-06

In other words, Wife lost on the merits, but her loss did not render her claims frivolous, unreasonable, or groundless.

Subsection (b) supports fees for claims contradicted by a known settlement agreement and constructive notice when the claimant cannot make a good-faith rational argument for avoiding the agreement.

Stephen Levendoski, Karen Levendoski, and Kathleen (Jensema) Gross v. Stanley Stevens (mem. dec.) · filed 2019-08-20(b)

For these reasons, we conclude that the trial court acted within its discretion in finding the Levendoski Children’s argument relating to the scope of the Agreement to be frivolous. ... The trial court, therefore, acted within its discretion in finding their arguments in this regard to be frivolous. ... The Levendoski Children cannot raise a good faith and rational claim otherwise. As such, we conclude that the trial court acted within its discretion in finding that the Levendoski Children’s arguments relating to possession to be frivolous.

Unreasonable prelitigation conduct is not equivalent to presenting an unreasonable claim or defense under section 34-52-1-1, especially when the litigant substantially prevails on a counterclaim.

Abrell v. Delaware County Regional Wastewater District · filed 2019-08-27

Here, the factual determination made by the trial court that the length of time Abrell retained certain files was “unreasonable” is not equivalent to presenting an “unreasonable” claim or defense. Moreover, Abrell substantially prevailed upon his counterclaim when he recovered significant contingency fees. ... The award of attorney’s fees to the District is not supportable on grounds that Abrell engaged in meritless litigation.

A defense is not frivolous, unreasonable, or groundless under subsection (b) merely because it loses on the merits.

Meridian Mutual Insurance Company, n/k/a State Automobile Mutual Insurance Company v. Majestic Block & Supply, Inc., n/k · filed 2013-12-19(b)

The fact that a party’s legal argument to the trial court fails is not dispositive; a claim or defense is not groundless or frivolous merely because the party loses on the merits.

A request for trial-level fees under section 34-52-1-1 must be presented to and determined by the trial court rather than raised for the first time on appeal.

In Re Paternity of KH · filed 1999-03-31

A claim that a party brought an action or defense that is frivolous, unreasonable, or groundless is one for the trial court to determine pursuant to Ind.Code § 34-52-1-1, not this court. ... Accordingly, we decline to address this issue further.

A request for trial-level fees under section 34-52-1-1 must be presented to and determined by the trial court rather than raised for the first time on appeal.

Nash v. Howell · filed 1999-03-31

A claim that a party brought an action or defense that is frivolous, unreasonable, or groundless is one for the trial court to determine pursuant to Ind.Code § 34-52-1-1, not this court. ... Accordingly, we decline to address this issue further.

A subsection (b)(3) fee award cannot be affirmed on bad faith when the prevailing party did not request statutory fees below, make the bad-faith argument, or present evidence of the amount incurred.

S&C Financial Group, LLC v. Darren Gaston (mem. dec.) · filed 2019-05-08(b)(3)

However, Gaston did not make such a “bad faith” argument below, nor did he request an award of attorney’s fees, nor did he present any evidence as to the amount of attorney’s fees he had incurred. We therefore reverse the trial court’s award of attorney’s fees to Gaston.

A statutory trial-fee request raised for the first time on appeal is waived, and subsection (b) independently requires the requester to have prevailed below.

Eric Butler, $236.00 in U.S. Currency, and One 2004 Pontiac Grand Prix v. State of Indiana, Consolidated City of Indiana · filed 2019-12-27(b)

To the extent Appellants rely on Indiana Code section 34-52-1-1, this claim is waived because it is raised for the first time on appeal. ... Second, a trial court in a civil action may award attorney’s fees “to the prevailing party[,]” see Ind. Code § 34-52-1-1(b), and Appellants did not prevail below.

In a bad-faith insurance dispute, an insurer's prelitigation denial of coverage in bad faith may support a finding that it litigated in bad faith under subsection (b)(3), but whether and how much to award remains discretionary after trial.

Patel v. United Fire & Casualty Co. · filed 2000-01-25(b)(3)

As a result, Judge Cosbey concluded and, now this court holds, that in the context of a bad faith insurance dispute, an insurer’s denial of coverage in bad faith may lead to a conclusion that the insurer litigated the action in bad faith, as that term is contemplated under § 34-52-1-1(b)(3). ... There is, however, one caveat to the above holding. While § 34-52-1-1(b)(3) provides a vehicle by which an award of attorney’s fees may be assessed, the decision of whether to award them, and the amount, lie within the discretion of the trial court, post-trial.

False testimony and a litigation strategy of lying and concealing conduct constitute bad-faith litigation under subsection (b)(3), permitting a sanction of attorney fees without requiring allocation solely to fees caused by that misconduct.

SJS Refractory Co. v. Empire Refractory Sales, Inc. · filed 2011-06-28(b)(3)

A court may award attorney fees to the prevailing party if the court finds that a party litigated the action in bad faith. Ind.Code § 34-52-l-l(b)(3). ... Because the trial court’s findings state that it found the Appellants demonstrated multiple examples of bad faith litigation, we conclude that the trial court was within its discretion in ordering Johnson, Salwolke, and SJS, jointly and severally, to pay Empire’s attorneys $100,000.00.

Withholding a material judgment and sheriff's sale in violation of discovery duties, then continuing litigation through deceptive tactics, constitutes bad-faith litigation under subsection (b)(3).

Thomas A. Neu and Elizabeth A. Neu, and Wells Fargo Bank, N.A. v. Gibson · filed 2012-05-10(b)(3)

Accordingly, by blatantly ignoring the discovery rules in 2007 and continuing to engage in questionable litigation tactics, Gibson overstepped the boundaries of zealous advocacy and entered the realm of vexatious litigation. We reverse the trial court’s denial of attorney fees and remand to the trial court with instruction to award Appellants reasonable attorney fees in litigating this action since August 8, 2007, the date of the sheriff’s sale. ... Appellants established bad faith pursuant to I.C. § 34-52-1-1 when Gibson failed to disclose the Michigan foreclosure judgment and sheriff’s sale.

A self-represented litigant is held to the same statutory standard as counsel, and a personal vendetta pursued through spurious allegations may support findings of frivolousness and bad faith.

Moody v. Martin · filed 2013-05-31(b)

The court stated that it appeared that Moody had a personal vendetta against Library officials and chose to take out his vendetta by filing a lawsuit that includes spurious allegations. The court also noted that Moody has chosen to file the lawsuit pro se and is held to the same standard as an attorney. ... we cannot say that the trial court’s order finding that Moody’s lawsuit included spurious allegations and was frivolous and filed in bad faith under Ind. Code § 34-52-1-1 is clearly erroneous or that the court abused its discretion in ordering him to pay attorney fees to the Library.

Bad faith under subsection (b)(3) requires conscious wrongdoing from dishonest purpose or ill will, not mere negligence or bad judgment.

Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O'Mailia, and James O'Mailia · filed 2014-04-17(b)(3)

a finding of bad faith requires not mere negligence or bad judgment, but rather the conscious doing of wrong because of dishonest purpose or moral obliquity. ... we conclude that GEICO did not litigate in bad faith. Accordingly, we reverse the trial court’s attorney fee award under Ind. Code § 34-52-1-1(b)(3).

Subsection (b) permits fees when a party continues unsuccessful litigation to harass others and drain trust assets.

In the Matter of the Walter Penner Trust Under Agreement Created by the Grantor, Walter Penner on April 13, 2010, Stanle · filed 2014-11-17(b)

the fact remains he made a statement to Trustee and Frank indicating his intent to drain the corpus of the Trust by filing legal actions, those legal actions were unsuccessful based on the clear language of the Trust, and Stanley continued his legal harassment regardless. We find no abuse of discretion in the trial court’s award of legal fees to the Trust.

Bad faith under subsection (b)(3) requires conscious wrongdoing from dishonest purpose, moral obliquity, furtive design, or ill will, not merely losing on the merits.

Jerry Thomas Mele, Jr. v. Gary Joehlin (mem. dec.) · filed 2018-01-16(b)(3)

As discussed, a finding of bad faith requires not mere negligence or bad judgment, but rather the conscious doing of wrong because of dishonest purpose or moral obliquity, or affirmatively operating with furtive design or ill will. ... Under these circumstances, in which a Colorado settlement agreement was still being litigated upon in Colorado, we conclude that Mele did not engage in vexatious litigation here in Indiana. ... Accordingly, we reverse the trial court’s attorney fee award under Ind. Code § 34-52-1-1(b)(3).

Subsection (b) supports fees when the record establishes that a filing was frivolous, unreasonable, groundless, or made in bad faith as an abusive litigation practice.

Dyson v. Wabash County Auditor, Wabash County Treasurer (mem. dec.) · filed 2018-11-07(b)

To the extent Dyson challenges the imposition of attorney’s fees, we conclude that the trial court did not abuse its discretion by awarding attorney’s fees to Wabash County pursuant to Ind. Code § 34-52-1-1(b). The record supports the finding that Dyson’s Notice of Defense was frivolous, unreasonable, or groundless, or filed in bad faith.

Dilatory tactics, baseless motions, and prolonged noncompliance with discovery orders can support an inference of furtive design and constitute bad-faith litigation under subsection (b)(3).

K.R. Calvert Co., LLC, and Philip Davis v. Brian Sandys and Jennifer Sandys (mem. dec.) · filed 2020-01-14(b)(3)

All of this required the unnecessary commitment of time and resources by the other parties and the trial court, supporting an inference, at the very least, of furtive design, if not actual ill will. We conclude that K.R. Calvert’s actions amount to bad faith for purposes of Indiana Code section 34-52-1-1(b)(3), supporting an award of attorney’s fees.

A losing claim on an issue of first impression is not necessarily frivolous, unreasonable, or groundless, even if basic legal reasoning suggested the court probably would reject it.

In Re Visitation of AR · filed 2000-02-11(b)(1)

However, we must view charges of "frivolous, unreasonable, or groundless" claims with suspicion. ... This is especially true where the case is one of first impression, even if "rudimentary legal reasoning" would have led a person to believe the Indiana courts probably would rule against the person raising the claim. ... Accordingly, we hold that the trial court erred in awarding attorney fees to the Rowes.

A losing claim on an issue of first impression is not necessarily frivolous, unreasonable, or groundless, even if basic legal reasoning suggested the court probably would reject it.

Sexton v. Rowe · filed 2000-02-11(b)(1)

However, we must view charges of “frivolous, unreasonable, or groundless” claims with suspicion. ... This is especially true where the case is one of first impression, even if “rudimentary legal reasoning” would have led a person to believe the Indiana courts probably would rule against the person raising the claim. ... Accordingly, we hold that the trial court erred in awarding attorney fees to the Rowes.

Section 34-52-1-1 allows court costs to be included in a money judgment.

Tracy v. Morell · filed 2011-05-19

We reverse and remand with instructions that the trial court calculate prejudgment interest at the statutory rate from the date of each $500 payment to the date of judgment, add that sum to the $8,500 in principal, and enter a money judgment for Tracy and against Steve Morell and Pauline Morell, jointly and severally, plus court costs. See Ind.Code § 34-52-1-1.

Subsection (a)'s recoverable costs are narrowly construed and do not include ordinary litigation expenses such as legal-research, exhibit-production, photography, copying, or special-process-service charges.

Missi v. CCC Custom Kitchens, Inc. · filed 2000-07-14(a)

The costs awarded by the trial court to both parties are not the sort of costs contemplated by •Triál Rule 54(D) or authorized by Indiana Code Section 34-52-1-1(a). We therefore reverse on this issue -and remand to the trial court for further proceedings consis-tént with this opinion.

Subsection (a)'s term costs is a legal term of art limited to filing fees and statutory witness fees, excluding jury expenses and other litigation expenses.

Conklin v. Fisher · filed 2004-02-19(a)

We found the term "costs" to be "an accepted legal term of art that has been strictly interpreted to include only filing fees and statutory witness fees." ... The jury costs the trial court assessed were not filing fees nor were they statutory witness fees. As a result, the trial court erred in assessing jury costs and expenses against Conklin in the absence of authorization by statute or court rule.

Under subsection (a), recoverable costs are limited to filing fees and statutory witness fees and do not include deposition or trial transcription expenses incurred at the trial level.

Weida v. City of West Lafayette · filed 2008-12-02(a)

Analyzing earlier case law, we held that ‘costs’ pursuant to the General Recovery Statute are limited to filing and witness fees. ... Thus, we conclude that the trial court erred in awarding transcription costs to the City. Accordingly, we reverse the trial court’s decision.

Subsection (b) directs an attorney-fee award to the prevailing party rather than that party's counsel, including when counsel works under a contingent-fee agreement.

Scott v. Randle · filed 2000-10-11(b)

By the plain language of the statute, attorney fee awards are to be given to the prevailing party, not the prevailing party’s counsel. Consequently, the trial court was merely acting in accordance with the statute when it awarded attorney fees to the Randle group, and we find no error.

A prevailing party under subsection (b) must successfully prosecute a claim or defense in a judgment that materially alters the parties' legal relationship; an agreed permanent injunction may satisfy that requirement.

D.S.I. v. Natare Corp. · filed 2000-12-29(b)

a party is a “prevailing party” within the meaning of IC § 34-52-1-1, if that party successfully prosecutes its claim or asserts its defense. ... the requisite successful litigation must culminate in a judgment. ... the judgment ... may take the form of an agreed entry or stipulation, so long as it resolved the dispute generally in the favor of the one requesting attorney fees and altered the litigants’ legal relationship in a way favorable to the requesting party. ... Natare was a “prevailing party” within the meaning of IC § 34-52-1-1, and therefore satisfied that criterion of eligibility for attorney fees.

Only a prevailing party that recovers a judgment satisfies the threshold for attorney fees; a favorable ruling on withdrawal of a motion is not a judgment.

In Re Paternity of PEM · filed 2004-11-22(a)

Thus, a prevailing party is one that recovers a judgment. ... Furthermore, even assuming arguendo, that the Merklers' request to withdraw their motion on the day of trial resulted in a ruling in Mazza's favor, the trial court's grant to withdraw a motion is not a judgment within the meaning of I.C. § 34-52-1-1. ... Accordingly, we hold that the trial court did not err in denying Mazza's request for attorney's fees.

Only a prevailing party that recovers a judgment satisfies the threshold for attorney fees; a favorable ruling on withdrawal of a motion is not a judgment.

Mazza v. Merkler · filed 2004-11-22(a)

Thus, a prevailing party is one that recovers a judgment. ... the trial court's grant to withdraw a motion is not a judgment within the meaning of I.C. § 34-52-1-1. ... Accordingly, we hold that the trial court did not err in denying Mazza's request for attorney's fees.

A party is not entitled to statutory attorney fees until it has become a prevailing party in court.

Watson v. Auto Advisors, Inc. · filed 2005-02-18

Ind.Code § 34-52-1-1 provides for recovery -of costs by the prevailing party and recovery of attorney fees for a prevailing party when enumerated conditions exist. Watson has not yet been the prevailing party in any court, so she has not yet been entitled to attorney fees under that statute.

A party that loses its underlying claims cannot recover subsection (b) fees as the prevailing party when the opposing defenses proved meritorious rather than frivolous or bad-faith.

Golden Years Homestead, Inc. v. Buckland · filed 2006-12-11(b)

Golden Years clearly cannot prevail on this claim, because it has not prevailed on its federal claims. Defendants’ defenses have proven meritorious, not frivolous, nullifying any showing that they were made in bad faith. Thus, summary judgment is GRANTED to Defendants on this claim for costs and attorney’s fees.

A party that prevails on none of its claims is not entitled to attorney fees under section 34-52-1-1.

Bergerson v. Bergerson · filed 2008-10-31(b)

Patrick and Patrice argue they are entitled to attorney fees pursuant to the terms of the lease, Ind.Code § 32-31-3-12 (security deposit), or Ind.Code § 34-52-1-1 (litigation that is frivolous, unreasonable, groundless, or in bad faith). Because they have not prevailed on any of their claims, we cannot say they are entitled to attorney fees.

A party who did not prevail in the trial court is not eligible for fees there under subsection (b)(2), even if the party later obtains partial appellate relief.

Ks v. Bw · filed 2011-09-28(b)(2)

However, she did not prevail at trial, and thus an award of attorney's fees is not appropriate pursuant to Ind.Code § 34-52-1-1(b)(2). Accordingly, we affirm the trial court's denial of attorney's fees.

Subsection (b) is inapplicable when voluntary dismissal produces no judgment and therefore no prevailing party, and its codification prevents circumvention through the former common-law obdurate-behavior exception.

River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., The Schlosser Family Limited Pa · filed 2019-07-15(b)

Under these circumstances, none of the Appellees were prevailing parties, and accordingly, Indiana Code Section 34-52-1-1(b) is inapplicable. ... Given our Supreme Court’s statements in Town of St. John and Loparex, we cannot say that the obdurate behavior exception to the American Rule survived the codification of Indiana Code Section 34-52-1-1 and its predecessor. ... An award of attorney fees under these circumstances would merely circumvent Indiana Code Section 34-52-1-1(b), which we cannot allow.

The General Recovery Rule is strictly construed and cannot award fees after a plaintiff voluntarily dismisses with prejudice because no qualifying prevailing party remains.

River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., the Schlosser Family Limited Pa · filed 2020-05-29(b)

The General Recovery Rule is strictly construed because it “is in derogation of the American Rule observed under the common law.” ... The common-law obdurate behavior exception and the General Recovery Rule cannot authorize a trial court to award attorney’s fees when a party voluntarily dismisses its suit with prejudice.

The statute does not apply to a party that did not prevail.

Michelle Miller (Ross) v. David Miller (mem. dec.) · filed 2020-10-21

Mother was not the prevailing party. Indiana Code Section 34-52-1-1 simply does not apply.

Without a judgment creating a prevailing party, section 34-52-1-1 cannot support an attorney-fee award.

Snyder v. Mercedes-Benz USA, LLC · filed 2022-08-11

Without a prevailing party, there can be no award of attorneys’ fees for any of Plaintiffs’ three claims.

A party is not a prevailing party eligible for subsection (b) fees if its favorable judgment is reversed on appeal, even if the trial court had awarded damages on its claim before offsetting them.

Whitesell Precision Components Inc. v. Autoform Tool & Manufacturing LLC and Hitachi Automotive Systems Inc. · filed 2026-06-04(b)

However, because we’ve reversed the trial court’s judgment in Autoform’s favor on that counterclaim, we affirm its conclusion that Autoform is not a prevailing party for purposes of the statute. ... For these reasons, we ... affirm the trial court’s denial of Autoform’s motion to correct error.

A trial court may award fees sua sponte under section 34-52-1-1 because the statute requires no motion or prior request from the prevailing party.

Davidson v. Boone County · filed 2001-04-10

Waiver notwithstanding, we conclude that a trial court may sua sponte award attorney fees pursuant to I.C. § 34-52-1-1. The statute provides that the court "may" award attorney fees if the court finds that either party has litigated in bad faith or pursued a frivolous, unreasonable, or groundless claim. Further, the statute does not specifically require that the injured party move for an award of attorney fees under the statute before the trial court can exercise its discretion in this regard. We hold, therefore, that the trial court had authority to award attorney fees in this case without a prior request from Boone County.

A trial court may award subsection (b) fees on its own motion, and the requesting party need not cite the precise statutory basis.

Robert F. Lynn, Linda S. Lynn, and Robert Lynn Company, Inc. v. Ronnie Shaffer and Jane Shaffer · filed 2014-09-18(b)

our court has previously held that a trial court may award attorney fees sua sponte under Indiana Code section 34-52-1-1. ... the General Recovery Rule does not stipulate that a moving party must cite the specific statutory basis therefore.

A trial court may award subsection (b) fees sua sponte without first inquiring into the sanctioned party's ability to pay.

Kliman v. Mutual Wealth Management Group, Trustee Marjorie L. Kliman Christine E. Kliman and Carol L. Kliman (mem · filed 2018-05-09(b)

This argument is not supported by citation to authority; indeed, the case law is clear that a trial court may order an award of attorney’s fees sua sponte and, thus, without inquiring into a party’s ability to pay. ... We affirm the trial court’s award of attorney’s fees to the Trust.

Subsection (b) permits fees when a party knowingly pursues a groundless claim after its factual invalidity is made clear.

Harco, Inc. of Indianapolis v. Plainfield Interstate Family Dining Associates · filed 2001-11-05(b)

Harco continued to pursue litigation although it lacked credible evidence that it had performed any work within the requisite statutory period for filing a mechanic's len. Accordingly, there is evidence to support the trial court's findings that Harco knew its claim was invalid. Moreover, the evidence supports the trial court's conclusion of law that Hareo pursued a groundless foreclosure claim. Pursuant to Indiana Code section 34-52-1-1(b), Plainfield established the propriety of an award of attorney fees in its favor.

Fees are unavailable when the litigant's claim or defense had factual support and therefore was not groundless.

Sandock v. Garland Aschenbrenner (mem. dec.) · filed 2015-05-12(b)

Therefore, as Sandock’s arguments presented to the trial court advocating the continued liability of the Aschenbrenners as guarantors under the 2000 Lease were not groundless, we affirm the trial court’s denial of attorney fees pursuant to I.C. § 34-52-1-1.

Subsection (b) supports fees when a simple investigation would have shown claims were groundless, unreasonable, time-barred, and inconsistent with established law; losing parties waive an objection to a standalone statutory counterclaim if raised first on appeal.

Landmark Legacy, LP and Dennis W. Fahlsing v. Dennis Runkle, D.R. Financial Inc., and D.R. Financial Group, Inc. · filed 2017-08-10(b)

As noted by the trial court, a simple investigation could have revealed that Appellants’ arguments were utterly devoid of all plausibility and Appellants’ position was not consistent with reasonable advocacy grounded in established legal principles. ... Based on the foregoing, we hold that the trial court did not commit error by awarding attorney fees to Appellees pursuant to Indiana Code section 34-52-1-1(b).

Fees may be awarded when a party continues litigation after no good-faith rational argument remains, but not against a party as to whom a genuine merits issue exists.

Commercial Coin Laundry Systems v. Enneking · filed 2002-04-18(b)

Because we have determined that there is a genuine issue of material fact as to Debbie Enneking's lability under the lease, we are unable to say that this action was frivolous, groundless, or unreasonable as to her. ... Under these cireumstances, we hold that there was no good faith and rational argument to support the merits of Commercial Coin's claim against Stephen Enneking. We therefore reverse the award of attorney's fees as to Debbie Enneking, affirm the award as to Stephen Enneking.

Appellate attorney fees are authorized when a party continues to litigate claims after they become frivolous, unreasonable, or groundless, though courts exercise extreme restraint.

Montgomery v. Trisler · filed 2002-07-25

In addition, this court is authorized to award attorney fees pursuant to Indiana Code section 34-52-1-1 when a party continues to litigate a claim after it becomes frivolous, unreasonable or groundless. ... For all of these reasons, we find Robert's appeal to be frivolous and without merit, and we believe that an award of appellate attorney fees to Trisler is appropriate.

Subsection (b) authorizes a trial court to award appellate attorney fees without a directive from the appellate court because its text is not limited to trial-level fees.

Madison County Board of Commissioners and Madison County Highway Department v. American Federation of State County and M · filed 2017-04-19(b)

The County argues that the statute should be construed to read as solely providing for an award of attorney’s fees at the trial level. We believe that this reading of the statute is too narrow. The express language of the statute is clear and provides no such limitations. ... The trial court had the authority pursuant to statute to award appellate attorney’s fees and did not abuse its discretion when it did.

Section 34-52-1-1 permits attorney’s fees for a prevailing party when a claim or defense is frivolous, unreasonable, or groundless, or a party litigates in bad faith.

Karen L. Gilday, and James K. Gilday v. Jeanine L. Motsay, and Edward W. Ochoa · filed 2015-02-13

The trial court heard argument concerning the defenses asserted and found the defendants’ conduct did not rise to the level that would allow the imposition of attorney’s fees. There was ample evidence in the record to permit that finding, and we will not reweigh it.

Section 34-52-1-1 permits a court to award attorney fees to a prevailing party for frivolous, unreasonable, groundless, or bad-faith litigation; a petition the court cannot call frivolous does not support such an award.

In Re the Matter of Patricia Rumfelt v. Alicia Hollars and Harry Arndt (mem. dec.) · filed 2017-10-26

As for Mother’s request for attorney fees, Ind. Code § 34-52-1-1 provides in part that the court in a civil action may award attorney fees as part of the cost to the prevailing party if it finds that either party brought an action or continued to litigate an action that is frivolous, unreasonable, or groundless or litigated the action in bad faith. ... We cannot say that Rumfelt’s petition was frivolous or that her arguments are utterly devoid of all plausibility and decline to order Rumfelt to pay Mother’s attorney fees.

The fee statute must leave breathing room for zealous advocacy and access to courts, so a losing but legitimate legal argument is not fee-worthy.

Butcher v. Girl Scouts of Tribal Trails Council, Inc. · filed 2002-12-11

Application of the statutory authorization for recovery of attorney fees must leave breathing room for zealous advocacy and access to the courts to vindicate rights. Courts must be sensitive to these considerations and view with suspicion allegations of "frivolous, unreasonable, or groundless" claims or defenses. ... We accordingly decline to award attorney fees to the Council.

A reasonable, supported position—especially on issues new to the jurisdiction—is zealous advocacy rather than frivolous or groundless litigation.

Northern Elec. Co., Inc. v. Torma · filed 2004-12-13

Moreover, we find that the most Northern Electric can be accused of here is zealous advocacy. ... Even though some issues are new to this jurisdiction, this alone should not preclude a party's unbridled access to the courts and expose it to sanctions; instead, it should be lauded by the courts as a way for Indiana's case law to evolve. ... Accordingly, we reverse the trial court's award of attorneys' fees.

Subsection (b)(2) supports fees when a party continues litigation after the claim becomes frivolous, unreasonable, or groundless.

Countrywide Home Loans, Inc. v. Rood · filed 2003-03-18(b)(2)

The statute was enacted to deter the needless drain on the resources of prevailing parties and the courts. ... The trial court did not abuse its disceretion by awarding Good Neighbor attorney's fees pursuant to Indiana Code § 34-52-1-1.

Repeated filings unsupported by authority after clear adverse rulings can cross from novel advocacy into unnecessary and unwarranted litigation warranting fees.

French v. French · filed 2005-02-04

Even though her argument may be novel, the absolute lack of any supporting Indiana or out-of-state case law and the absence of a good faith argument after the trial court's repeated and consistent analyses, makes us hesitant to categorize Diane's actions as zealous advocacy. ... Rather, we conclude that with her continuous filings Diane crossed the boundary into unnecessary and unwarranted litigation. ... Accordingly, we affirm the trial court's award of attorney's fees.

Subsection (b)(2) permits fees when a party continues litigation after its position becomes frivolous, unreasonable, or groundless.

Hanover Community School Corporation v. L.K. (mem. dec.) · filed 2015-08-11(b)(2)

the continued litigation of the Petition by Hanover after June 30, 2014 was frivolous, unreasonable, or groundless, and, therefore, it was within the trial court’s discretion, pursuant to Ind. Code § 34-52-1-1(b)(2), to enter an award of attorney fees to L.K.

Filing an action in the wrong forum can by itself make the action frivolous and justify attorney fees.

Inlow v. Henderson, Daily, Withrow & Devoe · filed 2004-03-11

More importantly, this court has previously determined that the Inlow Children brought this action in the wrong forum, and the trial court could have awarded attorney's fees on that basis alone. ... We cannot say that the trial court abused its discretion when it awarded the Appellees attorney's fees.

Losing a case of first impression does not justify fees when the party's legal position was not frivolous, unreasonable, or groundless.

Metropolitan Development Commission of Marion County v. Pinnacle Media, LLC · filed 2004-06-30

While the City ultimately lost on the merits, its defense that the doctrine does not apply between governmental units was not unreasonable, frivolous, or groundless. ... We conclude that the trial court abused its discretion by awarding attorney fees to Pinnacle.

An erroneous joinder does not compel attorney fees where the trial court reasonably finds the claim was not frivolous, unreasonable, groundless, or litigated in bad faith.

Gaw v. Gaw · filed 2005-02-08

The trial court did not abuse its discretion when it denied Sterling's petition for attorney's fees.

A statutory fee decision does not preclude a later malicious-prosecution claim arising from the same facts, though the same attorney fees cannot be recovered twice.

Crosson v. Berry · filed 2005-06-15(c)

The elements required to be shown to obtain statutory attorney fees under Ind.Code § 34-52-1-1 are not identical to the elements to be shown to prove a malicious prosecution claim. ... Ind.Code § 34-52-1-1(c) provides that even when a trial grants fees under the statute, the "prevailing party" is not prevented from bringing an action for abuse of process "arising in any part on the same facts" as long as the prevailing party does not recover the same attorney fees twice.

Subsection (b) permits fees for a frivolous, unreasonable, or groundless affirmative defense only in the clearest cases, such as one maintained through trial despite admissions and no supporting evidence.

Stoller v. Totton · filed 2005-08-22(b)

Thus, we agree with the trial court that his affirmative defense was frivolous, unreasonable, and groundless. ... It is only in the clearest of cases where an affirmative defense is frivolous, unreasonable, or groundless, yet is maintained until liability is admitted during the trial that costs and attorney's fees will be appropriate sanctions.

A claim reasonable when filed may become frivolous, unreasonable, and groundless before trial, permitting subsection (b) fees for continued pursuit after that point.

America's Directories Inc. v. Stellhorn One Hour Photo, Inc. · filed 2005-09-08(b)

In light of the fact that ADI had three executed contracts with integration clauses, it was not unreasonable for an attorney to have filed a breach of contract action. However, prior to trial, it would have become clear that Singleton's behavior made the pursuit of charges owed under the contracts frivolous, unreasonable, and groundless. ... The trial court did not err in awarding attorney fees on the basis that ADI's breach of contract suit was frivolous.

Subsection (b) supports fees when motions rest on misstatements, lack a good-faith rational argument, and lack factual or legal support.

Knowledge A-Z, Inc. v. Sentry Insurance · filed 2006-11-27(b)

The trial court could have concluded that Knowledge's actions were frivolous, unreasonable, or groundless because of Knowledge's misstatements, lack of a good faith and rational argument, and lack of support for its claims. 1.C. § 34-52-1-1. We cannot say that the trial court abused its discretion by awarding attorney fees to Sentry.

Subsection (b) fees cannot rest merely on losing a novel legal issue, and an award requires detailed findings identifying sanctionable conduct and supporting a reasonable amount rather than simply adopting a contingency fee.

Lumbermens Mutual Casualty Co. v. Combs · filed 2007-09-20(b)

We further conclude as a matter of law that Lumbermens did not litigate the ERISA issue unreasonably or in bad faith, as it was an issue of first impression for both the trial court and this Court, and this case is not on all fours with existing precedent. ... The fact that Lumbermens ultimately did not prevail on the ERISA issue does not justify an award of attorney’s fees. ... In light of the foregoing, we vacate the award of attorney’s fees and remand for another evidentiary hearing, with instructions to enter detailed findings consistent with Indiana Code Section 34-52-1-1(b), Professional Conduct Rule 1.5(a), and relevant caselaw regarding the basis, if any, for awarding attorney’s fees and for the specific amount of such fees.

Subsections (b)(2) and (b)(3) permit fees for continuing unreasonable or bad-faith litigation through a motion that merely attempts to relitigate an already affirmed judgment.

Knowledge A-Z, Inc. v. Sentry Insurance · filed 2008-07-28(b)(2), (b)(3)

Meanwhile, as noted above, Knowledge was essentially seeking to re-litigate a judgment affirmed by this Court. The trial court did not abuse its discretion in awarding attorney fees to Sentry for litigation of Knowledge’s Motion to Correct Errors.

A subsection (b) fee award cannot stand when the findings do not identify what conduct was frivolous, unreasonable, groundless, or in bad faith, because losing on the merits alone is insufficient.

Smyth v. Hester · filed 2009-02-12(b)

None of the findings of fact contain a specific reference to problematic litigation action, and none of the conclusions of law reflect the legal authority and standard for an award of attorney fees. ... The fact that PSRB's legal argument to the trial court failed is not dispositive, however, inasmuch as a claim or defense is not groundless or frivolous merely because the party loses on the merits. ... Accordingly, we remand to the trial court for further consideration and explanation of its judgment in that regard.

A subsection (b) fee award requires findings that disclose the theory and ultimate facts supporting the conclusion that litigation was frivolous, unreasonable, groundless, or in bad faith.

Indiana High School Athletic Ass'n v. Schafer · filed 2009-09-28(b)

The findings in this case are currently insufficient to support the judgment, but as in Smyth, it appears the evidence in the record might. We accordingly remand so the trial court may further consider and explain its judgment with regard to its conclusion on the attorney fees issue.

Subsection (b)(3) authorizes fees for bad faith in litigating the action, not for bad-faith conduct occurring before the lawsuit.

Wymberley Sanitary Works v. Batliner · filed 2009-04-14(b)(3)

But there has been no allegation or finding that Wymberley has litigated in bad faith. Even if we had agreed with the trial court that Wymberley acted in bad faith in its dealings with the Landowners before the lawsuit was filed, neither case-law nor the plain language of the statute support an award of attorney fees for actions taken outside the litigation. In either event, therefore, we would have reversed the attorney fee award.

Subsection (b)(3) reaches only bad-faith conduct during litigation; an insurer's prelitigation bad-faith denial does not itself establish litigation bad faith.

Indiana GRQ, LLC v. American Guarantee and Liability Insurance Company · filed 2024-03-22(b)(3)

The statute “requires that the action must be litigated in bad faith which means that only conduct in the course of the litigation is relevant to the question of attorney’s fees.” ... IRG has not offered evidence of bad faith during the course of litigation, only the jury’s finding of bad faith that occurred by the insurers before litigation. Winning the latter does not presuppose or establish the former.

Section 34-52-1-1 does not authorize fees merely because election challenges fail when the challenger presented legitimate arguments and the disputed ballots could have changed the election result.

Mansfield v. McSHURLEY · filed 2009-05-28(b)

We affirm the trial court because Mansfield presented legitimate arguments before both this court and the trial court. ... By contrast, the record in the case before us reflects the initial election showed more voters cast ballots for Mansfield than for McShurley. The final election result turned on the exelusion of the ballots that were not properly initialed by election officials We accordingly reject MceShurley's allegations there was anything “absurd and irrational,” ... about Mansfield's complaints, or that they were “a sham,” ... or “flagrantly frivolous, unreasonable, and groundless,” ... MecShur-ley is not entitled to attorneys fees.

Section 34-52-1-1 limits statutory costs to filing and witness fees, while subsection (b) entitles a prevailing defendant to reasonable attorney fees incurred defending a claim that the plaintiff continued without a good-faith basis.

Chapo v. Jefferson County Plan Commission · filed 2010-05-05

Given the absence of any indication that 'costs' in Indiana Trial Rule 41(E) should be interpreted differently or more expansively than the characterization of 'costs' in Indiana Trial Rules 54(D) or 68, we conclude that Chapo cannot be reimbursed for travel expenses, postage and photocopying costs. ... Thus, Chapo established the propriety of an award of attorney fees incurred when she was forced to defend against a frivolous and groundless claim. The trial court erred when it summarily denied Chapo's motion for attorney fees. We remand for a hearing to determine the appropriate amount of the award.

Fees under subsection (b) may be limited to the portion of litigation conducted in baseless defiance of a court order and must exclude periods when the losing party advanced viable claims or defended against damages.

Estate of Collins v. McKinney · filed 2010-10-22(b)

Simply put, Ray Collins's conduct after the order for specific performance and through the period of the sale of the real estate-including the Estate's attempt to void the Option one day before Lake City Bank filed its notice of sale-appears to constitute open defiance of the trial court's order without basis for refusal grounded in an appeal or other good-faith claim. ... Before the order of specific performance and after the sale, the Estate articulated viable legal claims, and "[a] claim or defense is not groundless or frivolous merely because the party loses on the merits." ... As a result, we vacate the award of attorney's fees and remand to the trial court for further proceedings to determine an award of attorney's fees related to McKinney's efforts to close on the property, exclusive of the periods of time before the order for specific performance and after the closing between McKinney and Lake City Bank in April 2009.

Section 34-52-1-1 makes both the decision to award fees and the amount discretionary, so a court need not award every fee accumulated defending a frivolous, unreasonable, or groundless claim.

In Re the Estate of James E. Hurwich, Scott D. Hurwich v. Stacey MacDonald (mem. dec.) · filed 2019-05-28

The statute does not require the probate court to award attorney’s fees nor does it require the entire amount accumulated defending the claims be awarded if the probate court chooses to award fees. Given the discretionary nature of the statute coupled with the probate court’s explanation in its order, we cannot say that the amount awarded was an abuse of discretion.

Subsection (b)(2) supports fees when a party continues a claim after controlling authority makes it clearly frivolous and the party offers no good-faith rational argument to extend, modify, or reverse existing law.

Lacey v. Indiana Department of State Revenue · filed 2011-12-28(b)(2)

Given the totality of the facts in this case, the Court must conclude that Lacey continued to pursue his claim when any reasonable attorney would have understood that the claim was frivolous. ... Because Lacey failed to make a good faith or rational argument for the extension, modification, or reversal of existing law with respect to his 2008 AGIT claim, the Court finds that an award of attorney fees under Indiana Code § 34-52-1-1(b)(2) is proper.

Subsection (b)(2) permits fees incurred after discovery establishes that a claimant lacks evidence for an essential element but the claimant continues litigating.

Adkins v. Judy Saunders, Individually and d/b/a Prevention and More Herbs · filed 2012-10-26(b)(2)

The trial court ordered Adkins to pay Saunders’ attorney fees incurred after Dr. Moen’s deposition because it was clear after Dr. Moen’s deposition that Adkins had no evidence to prove causation. By continuing to litigate without such evidence, the trial court concluded that Adkins’ claim became groundless. ... We find no abuse of discretion regarding the trial court’s award of attorney fees under these circumstances.

A claim that adequately states a claim at the pleading stage may later become groundless under subsection (b)(2), requiring dismissal once post-pleading facts and law clearly eliminate its support.

Indiana Commissioner of Labor, on the Relation of Heather Chamness v. J.D. Byrider Systems, LLC (mem. dec.) · filed 2019-04-16(b)(2)

Indeed, Indiana Code Section 34-52-1-1(b)(2) expressly permits attorney’s fees for groundless claims when the plaintiff has “continued to litigate the action . . . after the party’s claim . . . clearly became . . . groundless . . . .” ... Yet, despite that knowledge, the Commissioner refused to voluntarily dismiss the complaint and instead required J.D. Byrider to continue to employ counsel to contact the Commissioner and file motions and documents in the trial court. Accordingly, we reject the Commissioner’s first argument.

Subsection (b) permits fees when a party continues litigating after a claim or defense clearly becomes frivolous, unreasonable, or groundless.

Saylor v. State of Indiana ex rel. Department of Workforce Development (mem. dec.) · filed 2020-11-25(b)

the trial court in a civil action may order a party to pay the opposing party’s attorney fees if the party continues to litigate an “action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless[.]” Ind. Code § 34-52-1-1(b). Thus, Saylor has not demonstrated error.

A postjudgment petition for subsection (b) fees is collateral to the merits and is not governed by the deadlines for motions to correct error or for relief from judgment, although the trial court may deny an extremely tardy request that causes unfair surprise or prejudice.

R.L. Turner Corp. v. Town of Brownsburg · filed 2012-03-09(b)

A petition for fees does not disturb the merits of an earlier judgment or order, so it does not implicate Indiana Trial Rules 59(C) or 60(B). As such, none of those respective time limits govern a petition for attorneys’ fees. … Instead, trial courts must use their discretion to prevent unfairness to parties facing petitions for fees.

A fee award cannot stand when the record identifies neither the statutory basis for the request nor facts supporting frivolousness, unreasonableness, groundlessness, continued litigation, or bad faith.

Dunno v. Rasmussen · filed 2012-11-20(b)

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. ... Accordingly, we conclude that Dunno has made a prima facie showing that the award of attorney fees was improper. ... For the foregoing reasons, we reverse the trial court’s judgment ordering Dunno to pay Rasmussen’s attorney fees.

A subsection (b) fee award requires a reviewable basis and evidence supporting both entitlement and a reasonable amount; an unexplained award without a hearing record or timely fee documentation must be remanded.

D.P. and G.P. v. J.H. and T.H. · filed 2013-05-28(b)

Because the trial court failed to indicate the basis upon which it awarded $2,000, to review evidence related to an appropriate amount of attorney fees, or to identify any factors which may bear on the reasonableness of the award, we remand to the trial court to hold a new hearing on Foster Parents’ Motion to Tax Fees and Costs.

Subsection (c) prohibits recovering the same attorney fees twice, including overlapping awards in state and federal proceedings.

Dempsey v. JPMorgan Chase Bank, N.A. · filed 2013-10-07(c)

Chase is entitled to an award as compensation for its attorneys’ work, but it is not entitled to a double recovery. See Ind. Code § 34-52-1-1(c) (“The prevailing party may not recover the same attorney’s fees twice.”).

Subsection (b) permits fees upon any one finding that a claim was frivolous, unreasonable, groundless, or litigated in bad faith.

Aleesha Duensing, Erica Buzalski, Kristi Buzalski and Ray Buzalski v. Wendy Johnson and Kris A. Frazier · filed 2013-10-15(b)

Indiana Code section 34-52-1-1(b) provides for the award of attorney’s fees for litigating in bad faith or for pursuing “frivolous, unreasonable, or groundless” claims. Such an award may be made upon a finding of any one of these statutory bases.

Subsection (b)'s grounds are disjunctive, so a fee award requires only one finding of frivolousness, unreasonableness, groundlessness, or bad faith.

Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and The Common Council of the City of Logansport · filed 2015-03-02(b)(1), (b)(3)

But the attorney-fees statute is written in the disjunctive, requiring only that the trial court find the claim frivolous, unreasonable, groundless, or in bad faith. See Ind. Code § 34-52-1-1(b)(1), (3).

Subsection (b)'s grounds for fees are disjunctive, allowing an award based on continued groundless litigation alone.

In the Matter of the Irrevocable Trust of Mary Ruth Moeder Susan R. Moeder v. Salin Bank & Trust Company · filed 2015-03-05(b)

The statute lists the grounds for awarding attorney’s fees in the disjunctive.

A request for statutory fees based on a frivolous claim is a distinct issue that must be raised in the opening brief, not first in reply.

Marcus Anthony Johnson Revocable Trust v. Westchester Estates Homeowners Association · filed 2013-10-30

Therefore, an argument that a claim is frivolous is a distinct issue that should be raised in an appellant’s brief, and is not appropriately raised for the first time in a reply brief. ... Therefore, in a separate order issued contemporaneously with this opinion, we grant Appellees’ motion to strike section II.C.1 of Appellants’ Reply Brief.

A fee applicant must identify and argue the specific statutory ground for fees and ordinarily request fees by postjudgment motion.

BMO HARRIS BANK N.A. v. SALIN BANK AND TRUST COMPANY · filed 2020-05-21

Salin has not identified the specific basis on which it seeks attorney's fees, even though such identification (and accompanying argumentation) is required for the Court to determine whether an award of fees is appropriate here. ... Accordingly, we deny Salin's request for attorney's fees at this time.

The statute authorizes fees for bad-faith litigation or frivolous, unreasonable, or groundless claims, but losing on the merits alone is insufficient.

Calumet Township Trustee v. Hall · filed 2014-04-29

Indiana Code section 34-52-1-1 authorizes the award of attorney fees for litigating in bad faith or for pursuing frivolous, unreasonable or groundless claims. ... “An award of attorney fees is not justified merely because a party loses on the merits.”

A successful defense does not automatically entitle the prevailing party to fees absent frivolousness, unreasonableness, groundlessness, or bad faith.

Bruce and Sybil Scheffer v. Centier Bank (mem. dec.) · filed 2015-03-12(b)

Given our resolution of the Scheffers’ appeal, we cannot say that Centier is entitled to costs and attorney fees under either Indiana Code Section 34-52-1-1 or Indiana Appellate Rule 66(E).

A party is not entitled to subsection (b) fees when the opposing claim was supported enough to avoid being frivolous.

Roberts v. Unlimited, LLC d/b/a Remax Unlimited and Matthew A. Gunning · filed 2014-07-25(b)

“[Seller] is not entitled to recover his fees and costs pursuant to [Ind. Code] § 34-52-1-1” because Brokers’ lawsuit was not frivolous.

A trial court's statutory fee decision receives clear-error review for facts, de novo review for legal conclusions, and abuse-of-discretion review for the award.

Haehn v. F.A. Wilhelm Construction Co., Inc., and Wilhelm Construction, Inc. · filed 2014-10-06

A trial court’s decision to award attorney fees under the General Recovery Rule Statute, I.C. § 34-52-1-1 et seq., is subject to a multiple-level review. ... We review the trial court’s findings of fact for clear error, and review de novo the court’s legal conclusions as to whether a claim was frivolous, unreasonable, or groundless.

Attorney fee rulings under Ind. Code § 34-52-1-1 receive clear error review for factual findings and de novo review for legal conclusions about whether a claim was frivolous, unreasonable, or groundless.

BioConvergence, LLC, and Alisa K. Wright v. Menefee · filed 2018-06-01

“The trial court’s decision to award attorney’s 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.”

A fee request under subsection (b) is waived if first raised in a motion to correct error, and a party whose summary-judgment victory is reversed is not yet a prevailing party entitled to fees.

R.P. Leasing, LLC, Robert C. Waite, and Ilene A. Waite v. Chemical Bank · filed 2015-12-11(b)

R.P. Leasing’s claim fails for two reasons. First, R.P. Leasing waived its claim for attorney’s fees by failing to raise that issue until its motion to correct error. ... Second, even if R.P. Leasing had timely raised the attorney’s fee claim, it was not the “prevailing party” on summary judgment, as required by the statute for an award of attorney’s fees. ... The trial court did not err in denying R.P. Leasing’s request for attorney’s fees.

Subsection (b)(3) requires bad-faith conduct that is vexatious and oppressive in the extreme; repeatedly appearing to challenge a void default judgment does not satisfy that standard.

Hinman v. Members Choice Federal Credit Union (mem. dec.) · filed 2016-04-19(b)(3)

To constitute bad faith in this regard, the conduct must be vexatious and oppressive in the extreme. ... The record does not support a finding of bad faith. The original default judgment was void for lack of personal jurisdiction due to insufficient service of process. Hinman had every right to challenge that void judgment at the second hearing, which resulted in the judgment being set aside. Consequently, a third hearing – or first hearing after proper service – was necessary. ... He has done so with respect to the award of attorney fees, and therefore we reverse that portion of the judgment.

An attorney representing himself may recover reasonable compensation for his time defending a frivolous action under section 34-52-1-1 and as abuse-of-process damages.

Leroy Burke, Jr. v. Matthew Elkin (mem. dec.) · filed 2016-04-20(b), (c)

Despite the American Rule, Ind. Code § 34-52-1-1(b) makes clear that a party to a civil action may recover attorney fees incurred defending against a frivolous action or an action litigated in bad faith. Similarly, attorney fees may be awarded as damages in an action for abuse of process. See I.C. § 34-52-1-1(c). The issue in this case is whether Elkin may recover attorney fees for representing himself. ... Pursuant to Ziobron, the trial court properly awarded Elkin reasonable compensation for the time and effort he spent as an attorney defending himself below.

Subsection (b) permits fees incurred before an opposing party abandons a prolonged unreasonable, groundless, or bad-faith contract defense.

South Indiana Propane Gas, Inc. v. John Caffrey and Leola Caffrey · filed 2016-07-15(b)

Accordingly, it is clear that the trial court’s award was based on SIPG’s continued unreasonable, groundless, and/or bad faith defense that it was not liable under the contract due to the national propane shortage, not its defense that it was not liable for attorney fees under the Agreement. ... We are not convinced that this delay and SIPG’s continuance of its defense that it was excused from performance for such an extended period was not unreasonable, groundless, or in bad faith. Accordingly, we conclude that the trial court did not err in awarding the Caffreys a portion of their attorney fees.

Subsection (b) supports fees for improperly filing a new complaint to circumvent the original court rather than seeking reinstatement after dismissal without prejudice.

Elayan v. Vincent M. Campiti (mem. dec.) · filed 2016-08-25(b)

Because Elayan had not filed a motion for reinstatement and had offered no good cause to support reinstatement of the case in the ten months since dismissal, the court dismissed the case with prejudice. Additionally, finding that the proceedings in the Circuit Court were “clearly improper and clearly contrary to law”, the trial court granted Campiti’s request for attorney fees incurred as a result of those proceedings. ... Accordingly, Elayan has failed to establish that the trial court erred in awarding attorney fees under Ind. Code § 34-52-1-1(b).

Subsection (b) does not require a separate hearing on fee entitlement, and its permissive “may” allows a trial court to deny fees even after finding a claim frivolous, unreasonable, or groundless.

Larry W. Hollerbach and Jerri A. Hollerbach v. Kerri English and Steven English (mem. dec.) · filed 2017-03-15(b)

Finally, the ultimate decision to award attorney’s fees is subject to the trial court’s discretion as the statute is written with the permissive word “may.” Ind. Code § 34-52-1-1(b). The use of the word “may” indicates a trial court is not required to act, but may do so within its discretion. ... In other words, the trial court could find the claim to be frivolous, unreasonable, or groundless and still properly decline to award attorney’s fees. ... The trial court did not err in failing to hold a hearing pursuant to Indiana Code section 34-52-1-1 or Indiana Rule of Trial Procedure 37(A)(4).

Section 34-52-1-1 does not warrant fees merely because a small-claims appellant loses when the appeal is not frivolous, unreasonable, groundless, or in bad faith.

Rohrman Automotive Group v. Paul Pratico and Joy DenHouter (mem. dec.) · filed 2017-04-19(b)

For the foregoing reasons, we affirm the judgment of the small claims court in favor of the Purchasers and decline to award appellate attorney fees. ... Ind. Code § 34-52-1-1 provides a court may award attorney fees if the court finds an action or defense is frivolous, unreasonable, or groundless.

Subsection (b) does not permit fees against a nonparty absent evidence that it was responsible for initiating or pursuing the allegedly groundless action, and success on a procedural ruling alone does not establish groundlessness.

Plunkitt v. DLJ Mortgage Capital Inc. (mem. dec.) · filed 2017-07-13(b)

As found by the trial court, there is nothing in the record that suggests U.S. Bank was in any way responsible for initiating or pursuing the foreclosure actions. ... The trial court did not abuse its discretion in denying Plunkitt’s request for attorney fees as against U.S. Bank. ... The trial court did not make any substantive findings that would support a conclusion that the foreclosure actions were groundless. To the extent Plunkitt suggests he was entitled to an award of attorney fees because he was successful in both foreclosure actions, he is mistaken.

Statutory fees cannot include work performed after the frivolous claim is withdrawn merely to deter future misconduct under a private-attorney-general theory.

In re Petition of Wiper Corporation for Tax Deed,Wiper Corporation v. Patricia E. Godwin, Barbara S. Sanders, Joseph Kau · filed 2017-08-16

Our supreme court refused to adopt the private attorney general doctrine as a basis for awarding fees in Town of St. John, id. at 664, and we must follow that precedent here. Consequently, we conclude that the trial court abused its discretion in awarding the Owners attorney’s fees and costs incurred after February 25, 2013, when Wiper withdrew its petition for tax deed. Therefore, we reverse and remand with instructions to amend the Fees Order accordingly.

Subsection (b) permits fees when a lawsuit lacks a good-faith factual basis and the party continues pursuing it after evidence makes its groundlessness clear.

Bruce and Sybil Scheffer v. Centier Bank · filed 2018-04-26(b)

The evidence establishes that the warranty deed conveying the property to the Scheffers and the mortgage signed by the Scheffers granting a security interest in the Wexford Road property to Indiana Federal Savings and Loan Association were both recorded with the Porter County Recorder on July 25, 1985, and thus the 1985 deed and mortgage have been part of the public record since that date. The Scheffers nevertheless filed this lawsuit, designated their own affidavit in response to Centier’s summary judgment request stating that they had assigned the life insurance policies as collateral on a promissory note and mortgage on their residential property in 1985, and did not dismiss their action even after Centier produced evidence and Bruce Scheffer acknowledged that the life insurance policy assignments were not given in connection with a 1985 residential loan from Centier’s predecessor. Bruce Scheffer testified in some detail regarding his business and various business dealings over the years. Based upon the evidence and testimony, we cannot conclude that the trial court’s findings are clearly erroneous or that the court abused its discretion in ruling that an award of attorney fees in favor of Centier is appropriate.

When a trial court awards subsection (b) fees without findings, the appellate court reviews the result for abuse of discretion and may affirm if the record circumstances support the award.

Jackson v. Kenneth S. Jackson (mem. dec.) · filed 2018-08-21(b)

Although the trial court here did not state the basis of its award of attorney fees, it appears to have awarded fees pursuant to our General Recovery Statute. ... Under these facts and circumstances, the trial court did not abuse its discretion when it awarded Father $780 in attorney fees for responding to Mother’s motion in limine.

Subsection (b) requires litigants to investigate before filing and continuously reevaluate claims; a dismissal with prejudice can make defendants prevailing parties eligible for fees.

Staff Source, LLC v. Christine A. Wallace, Milan Kesic, Slobodan Kesic, The Resolve Group, LLC, and Resolve HR, LLC · filed 2020-03-13(b)

Ind. Code § 34-52-1-1(b) “places an obligation on litigants to investigate the legal and factual basis of the claim when filing and to continuously evaluate the merits of claims and defenses asserted throughout litigation.” ... The trial court did not abuse its discretion by ordering Staff Source to pay Defendants’ attorney fees.

A federal court may apply subsection (b) to pre-removal state-court filings and award fees for claims frivolous from inception.

Gregorich v. Tyson Foods, Inc. · filed 2020-07-07(b)

Since this case was filed in state court before Tyson removed it to federal court, the court appraises Mr. Gregorich’s pre-removal filing pursuant to Indiana Code § 34-52-1-1(b). ... Accordingly, the court GRANTS Tyson’s motion for attorney’s fees.

A federal court may apply subsection (b) to frivolous pleadings filed in state court before removal.

Smith v. Department of Education · filed 2021-05-05(b)

Since this case was filed in state court before [defendant] removed it to federal court, the court appraises [plaintiff’s] pre-removal filing pursuant to Indiana Code § 34-52-1-1(b). ... For the reasons explained above, the Motion for Sanctions and an Award of Attorneys’ Fees filed by Defendant Pioneer Credit Recovery, Inc. (ECF No. 30) is GRANTED.

Section 34-52-1-1 is procedural and therefore does not provide a fee basis for ordinary conduct in federal diversity litigation.

Cintas Corporation v. Jupiter Aluminum Corporation · filed 2020-08-10

Indiana’s frivolous litigation statute is “procedural because it allows for the award of fees based upon the conduct of the parties and the attorneys in filing and litigating the claim, rather than on a claim’s underlying merits.” ... Inapplicable in federal court, IC ¶34-52-1-1 cannot provide a basis for Cintas to recover attorney’s fees.

Section 34-52-1-1 is procedural and does not apply to conduct occurring in federal court.

Browne v. Waldo · filed 2020-12-01

While Ind. Code § 34-52-1-1 permits a prevailing party to recover fees if the action was frivolous, unreasonable, or groundless or was litigated in bad faith, the statute does not apply in federal court. ... Therefore, the court STRIKES Browne’s request for attorneys’ fees and costs pursuant to Ind. Code § 34-52-1-1.

Section 34-52-1-1 is procedural and cannot support a fee counterclaim in federal diversity court.

BirchRea Partners, Inc. v. Regent Bank · filed 2021-06-15

in both Cintas and Williams, the court concluded that Ind. Code § 34-52-1-1 is inapplicable in federal court and cannot provide a basis for the recovery of attorney's fees. ... The Plaintiff’s Motion for Summary Judgment regarding the Defendants’ counterclaim (ECF No. 142) is, therefore, GRANTED.

Subsection (b) is substantive law applicable in federal diversity cases, although whether it conflicts with Federal Rule 11 remains unresolved; a fee claim survives dismissal when factual and legal questions remain about the challenged defense.

Great American Insurance Company v. Lexington Insurance Company · filed 2023-04-27(b)

The Seventh Circuit Court of Appeals in Birch|Rea Partners, Inc., a diversity case filed in federal court, recently considered a claim for fees under Indiana Code § 34-52-1-1(b) and treated the attorneys’ fee statute as substantive. ... Yet, the Seventh Circuit declined to decide the question in relation to the Indiana statute because the plaintiff’s claim was not frivolous in the case before it. ... Accordingly, the Court denies the motion to dismiss the claim for attorneys’ fees.

A losing claim is not frivolous, unreasonable, groundless, or in bad faith when supported by a rational merits argument and colorable authority.

Birch REA Partners, Inc. v. Regent Bank · filed 2022-03-02(b)(1), (b)(3)

Birch|Rea did not file a frivolous, unreasonable, or groundless lawsuit against Regent Bank. ... Indeed, Birch|Rea made a rational argument on the merits, albeit an unconvincing one. ... While Birch|Rea ultimately cannot prevail, its actions do not rise to bad-faith litigation.

Subsection (b) does not support fees merely because a government agency loses a novel statutory-authority issue when it had a compelling regulatory purpose and advanced a good-faith rational interpretation, then ceased pressing the point after definitive appellate resolution.

Indiana Board of Pharmacy v. Elmer · filed 2023-03-30(b)

This is not one of those cases. ... While the Board ultimately did not prevail in its attempt to revoke Elmer’s license due to a lack of statutory authority to revoke an expired license, we cannot say that the State’s attempt to do so was frivolous. ... Moreover, we cannot say the Board pursued this action despite being unable to make a good-faith or rational argument on the merits. ... We reverse the trial court’s award of attorney’s fees to Elmer pursuant to Indiana Code section 34-52-1-1.

Subsection (b) fees are unwarranted when a claim had a valid basis at filing but ultimately failed on the facts, absent intentional litigation bad faith.

Autism Home Services, LLC v. The Piece That Fits Daycare and ABA Therapy, Inc. · filed 2024-06-20(b)

All in all, it seems to me that Autism Home had a valid basis to file this lawsuit but it simply fell short on the facts. The record before me does not suggest the sort of intentional bad faith conduct warranting fee-shifting as a sanction.

Because subsection (b) is disjunctive, one statutory ground suffices; an unsupported demand assigning hourly values and pain-and-suffering amounts to ordinary events may be frivolous, unreasonable, and groundless.

Williams v. Kirch · filed 2025-08-18(b)

Because this statute is written in the disjunctive, the court need only find that one of the grounds is satisfied to justify an award of attorney’s fees. ... Williams hasn’t shown that his damages claim was reasonable or well-founded. ... And he doesn’t identify any authority under which he would be entitled to recover these costs as damages. The small-claims court did not err in concluding that Williams’s claims were frivolous, unreasonable, and groundless. Nor did the court abuse its discretion in ordering Williams to pay $650 in attorney’s fees—a fraction of the $3,611.28 Kirch incurred defending against this action.

Subsection (b) supports substantial fees when a party deliberately prolongs litigation with baseless assertions, concealment, and a course of conduct intended to punish the opponent financially.

Beckman v. Beckman · filed 2025-10-17(b)

Ultimately, the trial court determined that “four years and over two hundred thousand dollars in fees and expenses later, support [Penni’s] contention that the position of [Kenneth] in this cause ha[s] been frivolous, unreasonable, and/or groundless, and certainly in furtherance of his avowed intent to use these proceedings to punish [Penni] financially.” ... In light of the trial court’s conclusion that Penni had incurred significant litigation expenses that had been necessitated by Kenneth’s conduct, we cannot say that the trial court abused its discretion in awarding $200,000.00 attorney’s fees, which only represented a part of the total fees incurred, to Penni.

Subsection (b) permits fees for an unreasonable and groundless motion to strike, and a litigant who challenges the award solely through an unsuccessful merits argument fails to show abuse of discretion.

Haug v. Starke County · filed 2026-03-11(b)

The Haugs’ argument regarding the award of attorney fees is wholly dependent on their argument that the trial court erred by denying their motion to strike. ... Consequently, we cannot say that the trial court abused its discretion by awarding the County attorney fees based upon the frivolousness of the Haugs’ motion to strike.