Hanover Community School Corporation v. L.K. (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 11 2015, 10:03 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Nicholas T. Otis Tula Kavadias
Newby, Lewis, Kaminski, & Jones, LLP Kavadias & Associates, P.C.
LaPorte, Indiana Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hanover Community School August 11, 2015
Corporation, Court of Appeals Case No.
45A03-1410-PO-344
Appellant,
Appeal from the Lake Superior
v. Court
The Honorable John M. Sedia,
Judge
L. K.,
Cause No. 45D01-1407-PO-55
Appellee.
Brown, Judge.
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[1] Hanover Community School Corporation (“Hanover”) appeals from the trial
court’s order awarding attorney fees in favor of L.K.1 The parties present
several issues, which we consolidate and restate as whether the trial court
abused its discretion in awarding attorney fees of $2,000 to L.K.2 We affirm in
part and remand.
Facts and Procedural History
[2] On May 16, 2014, E.H., an employee of Hanover, was providing instruction
to L.K.’s seven-year-old son, C.K., in L.K.’s home. As stated in a police
report taken regarding the incident giving rise to this litigation (the “Police
Report”), while E.H. was conducting class with C.K.,
[C.K.] became very aggressive with [E.H.] and began throwing small
items at her. When she took a small metal object away from him
after he threw it at her and hit her with it, he went to the kitchen and
grabbed a large butcher knife and verbally stated that he was going to
kill her while waving it in the air.
1
In its order, the court observed that L.K. “averred that the filings in this matter may have an adverse affect
[sic] on her immigration status” and “to the extent that any part of the record of this case that is not already
deemed confidential pursuant to statute or rule, it would not be prejudicial to either party to order the entire
file be made confidential and not available for public access,” and it ordered the entire case file sealed. See
Ind. Administrative Rule 9(D)(1) (2014) (“A court record is accessible to the public except as provided in
sections (G) and (H) of this rule, or as otherwise ordered sealed by the trial court.”) (subsequently amended
by Order Amending Indiana Administrative Rules, No. 94S00-MS-57 (Sep. 8, 2014) (eff. Jan. 1, 2015)).
On October 9, 2014, L.K. filed a Request to Maintain Exclusion of Confidential Documents/Information
from Public Record, which this court granted on October 14, 2014. We accordingly refer to the Appellee
by her initials in both the caption and body of this opinion.
2
We observe that on October 31, 2014, L.K. filed in the trial court a motion for appellate attorney fees. At
that time, however, this court had already acquired jurisdiction because the notice of completion of clerk’s
record had been filed on October 15, 2014. See Ind. Appellate Rule 8 (“The Court on Appeal acquires
jurisdiction on the date the Notice of Completion of Clerk’s Record is noted in the Chronological Case
Summary.”). The record does not reveal that L.K. filed a motion seeking appellate attorney fees in this
court.
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While [C.K.] waved around the knife and threatened [E.H.] the
mother, [L.K.] (involved) stood off to the side speaking in Greek, but
made no attempt to disarm [C.K.]. It is unknown what she said.
After waving the knife and making the threat [C.K.] put the knife in
the sink, at which time the Mother said “good choice”.
It was at this time that [E.H.] became worried for her safety, gathered
her belongings and left the residence.
[E.H.] returned to the school to make an official statement to the
Principal. Principal Snedden contacted the School Superintendent
and Cedar Lake Police Department, to file an official report as part of
their standard procedure. She also stated she was going to contact
the Department of Child Services.
Appellant’s Appendix at 15. The Police Report indicated that police later
made contact with L.K., who “stated that [E.H.] provoked her son, and
accused [E.H.] of taking things from her home in the past. [L.K.] also stated
that she has been unhappy with [E.H.’s] treatment of [C.K.], and in her
country she would be in her rights to kill her.” Id.
[3] After receiving a copy of the Police Report, E.H. became upset and concerned
for her safety. Based on E.H.’s concern, on May 29, 2014, Hanover filed a
Petition of Employer for Injunction Prohibiting Violence or Threats of
Violence Against an Employee (the “Petition”) against L.K. under the
provisions of the Workplace Violence Restraining Orders Act (the
“WVROA”) and attached the Police Report to the Petition. On the same day,
the trial court entered an order to show cause and temporary restraining order
and set the matter for hearing on June 26, 2014.
[4] On June 25, 2014, L.K. filed a Motion for Change of Venue from Judge and
in the Alternative for Transfer to Lake Superior Court, Domestic Relations
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Division. As scheduled, the trial court held a hearing on June 26, 2014, after
which it granted L.K.’s motion for change of venue from judge. The parties
stipulated to the appointment of Judge Sedia, who scheduled a hearing on the
Petition for July 22, 2014. On June 30, 2014, counsel for L.K. contacted
counsel for Hanover, and requested that the Petition be dismissed. Counsel
for Hanover refused.
[5] On July 18, 2014, Hanover filed a motion to dismiss the Petition, which the
trial court granted on July 21, 2014. On July 21, 2014, after Hanover’s motion
to dismiss was granted, L.K. filed an objection to the court’s order of dismissal
in which she sought sanctions and attorney fees, and, on July 23, 2014, the
trial court scheduled a hearing on that motion for September 2, 2014.
Hanover filed its response to L.K.’s objection to dismissal on July 23, 2014.
On September 2, 2014, the trial court conducted a hearing on L.K.’s motion
objecting to the order of dismissal, in which the parties agreed to summary
proceedings, and at which L.K. submitted a fee affidavit of her counsel. On
September 3, 2014, Hanover filed its response to L.K.’s request for sanctions
and attorney fees. On September 4, 2014, the trial court entered its order
requiring Hanover to pay L.K. attorney fees in the amount of $2,000 for fees
incurred after the date of June 30, 2014, pursuant to Ind. Code § 34-52-1-
1(b)(2), the general recovery rule. On November 18, 2014, the trial court
granted Hanover’s motion to stay enforcement of the judgment pending
appeal.
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Discussion
[6] The issue is whether the trial court abused its discretion in awarding attorney
fees to L.K. The court entered its award of attorney fees pursuant to Ind.
Code § 34-52-1-1(b)(2), which provides that “[i]n any civil action, the court
may award attorney’s fees as part of the cost to the prevailing party, if the
court finds that either party . . . continued to litigate the action or defense after
the party’s claim or defense clearly became frivolous, unreasonable, or
groundless . . . .” A claim or defense is frivolous if it is made primarily to
harass or maliciously injure another; if counsel is unable to make a good faith
and rational argument on the merits of the action; or if counsel is unable to
support the action by a good faith and rational argument for extension,
modification, or reversal of existing law. Wagler v. West Boggs Sewer Dist., Inc.,
980 N.E.2d 363, 383 (Ind. Ct. App. 2012), reh’g denied, trans. denied, cert.
denied, 134 S. Ct. 952 (2014). A claim or defense is unreasonable if, based
upon the totality of the circumstances, including the law and facts known at
the time, no reasonable attorney would consider the claim justified or worthy
of litigation. Id. A claim or defense is groundless if no facts exist which
support the legal claim relied on and presented by the party. Id.
[7] The trial court’s decision to award attorney fees under Ind. Code § 34-52-1-1 is
subject to a multi-level review: the trial court’s findings of fact 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. GEICO Gen. Ins. Co v. Coyne, 7 N.E.3d 300, 305 (Ind. Ct. App. 2014)
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(citing Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 843 (Ind. 2012)), trans. denied.
Finally, the trial court’s decision to award attorney fees and any amount
thereof is reviewed for an abuse of discretion. Id. A trial court abuses its
discretion if its decision clearly contravenes the logic and effect of the facts and
circumstances or if the trial court has misinterpreted the law. Id.
[8] Hanover filed the Petition under the provisions of the WVROA, which is
codified at Ind. Code §§ 34-26-6. Ind. Code § 34-26-6-6 governs the authority
of an employer to file a petition under the WVROA and provides:
An employer may seek a temporary restraining order or injunction
on behalf of an employee to prohibit further violence or threats of
violence by a person if:
(1) the employee has suffered unlawful violence or a credible
threat of violence from the person; and
(2) the unlawful violence has been carried out at the
employee’s place of work or the credible threat of violence can
reasonably be construed to be carried out at the employee’s
place of work by the person.
Ind. Code § 34-26-6-7 governs the filing of a petition under the WVROA and
provides:
A plaintiff may obtain a temporary restraining order under section 6
of this chapter by filing a petition for an injunction if the plaintiff:
(1) files an affidavit that shows, to the satisfaction of the court,
reasonable proof that an employee has suffered unlawful
violence or a credible threat of violence by the defendant; and
(2) demonstrates that great or irreparable harm has been
suffered by the employee or will be suffered by the employee.
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[9] At the outset, we note that both parties make arguments regarding the facts
the court weighed in reaching its decision. Hanover argues that there was an
absence of admissible evidence entered supporting the trial court’s findings.
As noted above, the September 2, 2014 hearing was conducted in summary
fashion and the court based its ruling primarily on what was discussed at the
hearing. Our review of the record reveals that Hanover did not object to the
summary form of the proceedings. Rather, when asked by the court whether
Hanover had a problem with proceeding summarily, Hanover’s counsel
responded, “No, your Honor, that’s how I intended we would proceed.”
Transcript at 20. Failure to make a contemporaneous objection before the
trial court results in a waiver of the issue on appeal. Neese v. Kelley, 705
N.E.2d 1047, 1050 (Ind. Ct. App. 1999) (holding that failure to make a
contemporaneous objection to a court holding summary proceedings results in
waiver of that issue upon appeal). Moreover, Hanover’s argument is
unpersuasive based upon the invited error doctrine. See Countrymark Coop.,
Inc. v. Hammes, 892 N.E.2d 683, 695 (Ind. Ct. App. 2008) (“A party may not
take advantage of an error that he commits, invites, or which is the natural
consequence of his own neglect or misconduct.”) (citing White v. State, 687
N.E.2d. 178, 179 (Ind. 1997)), trans. denied. Because Hanover agreed to the
summary proceedings, we conclude that any error made by the court in
entering findings based upon the arguments heard at the September 2 hearing
was invited error, which “is not subject to review by this court.” Id.
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[10] Similarly, L.K. challenges the evidence discussed at the September 2, 2014
hearing and used by the trial court in deciding whether an award of attorney
fees was appropriate. Specifically, she alleges that it was error for the court to
rely on the Police Report because it was not offered into evidence or
authenticated. For the same reasons as discussed above, we conclude that
L.K. has waived this challenge by failing to contemporaneously object to the
court’s decision to proceed summarily or the court’s statement that it intended
to use the Police Report in deciding whether the Petition was frivolous,
unreasonable, or groundless, and that, waiver notwithstanding, the invited
error doctrine precludes L.K.’s evidentiary challenge.
[11] Next, Hanover argues the evidence does not support the findings, and, more
specifically, challenges the findings in Paragraphs 8 and 10. In part, those
Paragraphs provide:
8. An examination of the Petition and attachments demonstrate to
the Court that the only act that could be construed to be a credible
threat of violence suffered by [E.H.] was [L.K.]’s son picking up a
butcher knife and waving it at her. [L.K.]’s statement purportedly
made to the police that: “. . . in her country she would be in her
rights to kill her . . . .”, meaning [E.H.], cannot be construed to be a
threat of violence to [E.H.], since it was not communicated to [E.H.]
by [L.K.]. . . .
*****
10. Here, Hanover was confronted with an employee who was quite
justifiably upset at an incident in which she was confronted with a
child holding a butcher knife in front of her. It cannot be said, under
the totality of the circumstances, including the law and facts known
at the time, for Hanover to seek a Workplace Violence Restraining
Order was frivolous, unreasonable, or groundless: [E.H.] was
employed [by] Hanover and engaged in the duties of her employment
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at a workplace, albeit [L.K.]’s home, where she received a credible
threat of violence. This was supported by her statement to the police.
However, as time passed, [L.K.] hired counsel, who had
conversations with the attorney and staff of Hanover about the
incident. It soon became obvious that it was the child, and not
[L.K.], who waved the butcher knife at [E.H.], and that [L.K.]’s
statement to the police, even if not misinterpreted, was not directed at
[E.H.] as a threat. It was at this point that Hanover’s claim became
unsupportable on its merits by any good faith and rational argument.
From an examination of the timeline of events, as illustrated by
[L.K.]’s counsel’s itemized billing, the time that Hanover’s action
became unsupportable on its merits by any good faith and rational
argument was after June 30, 2014, when [L.K.]’s counsel asked
Hanover’s counsel for the second time to dismiss the action, which
Hanover ultimately did nearly a month later, during which time
[L.K.][] incurred substantial attorney fee expenses necessary to
defend the case.
Appellant’s Appendix at 61-62.
[12] The record reveals that, in the Petition, Hanover alleged that “[L.K.] told
police officers that [E.H.]’s conduct would result in [E.H.]’s death in [L.K.]’s
home country.” Id. at 10. This allegation in the Petition, on the basis of
which the trial court granted a temporary restraining order, does not align
exactly with the statements contained within the Police Report considered by
the court in issuing its September 4, 2014 order. As written in the Police
Report, L.K. stated that she would be “in [her] rights to kill [E.H.]” if she were
in her home country, id. at 16, which L.K. asserts was written into the police
report due to the police officer’s “difficulty understanding her speak English
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with a Greek accent.”3 Transcript at 23. On at least three occasions, counsel
for L.K. spoke to Hanover’s counsel and “explained to him all of the facts and
circumstances of the case” and asked him to dismiss the Petition on the basis
that L.K.’s statement to the police was not a credible threat of violence. Id. at
29. Based upon the record, we cannot say that it was clearly erroneous for the
court to find that the statement made by L.K. was not directed at E.H. as a
threat, and that Hanover became aware of this no later than June 30, 2014
when L.K.’s counsel conversed with Hanover’s counsel for a second time
explaining the circumstances of the case and requesting that the Petition be
dismissed.
[13] We next turn to whether the trial court erred in concluding that Hanover’s
claim became frivolous, unreasonable, or groundless after June 30, 2014,
which conclusion we review de novo. As noted above, the WVROA requires
that the employee for whom the restraining order is sought must have suffered
unlawful violence or a credible threat of violence. I.C. § 34-26-6-6(1).
Hanover asserts that the statement made by L.K. to the police constituted a
credible threat of violence sufficient to support a WVROA petition. The trial
court concluded that “under the totality of the circumstances, including the
law and facts known at the time,” that Hanover’s initial pursuit of the Petition
3
L.K. asserts that she did not say “in her country she would be in her rights to kill her.” Appellant’s
Appendix at 61. L.K. insists that she told the police officer that “‘in my country I would be in my rights to
sue her . . .’ and that her pronunciation of ‘sue’ must have sounded like ‘shoot’ to the police officer” who
then wrote in his report that she said “kill.” Id.
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was not frivolous, unreasonable, or groundless, but that “[i]t soon became
obvious that it was the child, and not [L.K.], who waved the butcher knife at
[E.H.], and that [L.K.]’s statement to the police, even if not misinterpreted,
was not directed at [E.H.] as a threat.” Appellant’s Appendix at 62. We
cannot say the court erred in concluding that, at the time it became obvious
that L.K.’s statement to the police was not directed at E.H. as a threat, the
Petition became unsupportable by any good faith and rational argument,
because the statutory requirement of a credible threat of violence was then
lacking. I.C. § 34-26-6-6(1); see also Wagler, 980 N.E.2d at 383. Accordingly,
we conclude that Hanover continued to litigate its claim after the claim clearly
became frivolous, unreasonable, or groundless.
[14] We next review the trial court’s decision to award attorney fees and any
amount awarded for an abuse of discretion. As the trial court found and as we
concluded above, 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. However, we find that the amount
awarded by the trial court clearly contravenes the logic and effect of the facts
and circumstances presented to the trial court on the basis that “[a]n award of
attorney fees is appropriately limited to those fees incurred because of the basis
underlying the award.” Brant v. Hester, 569 N.E.2d 748, 755 (Ind. Ct. App.
1991). Here, the basis of the underlying award is that Hanover litigated the
Petition, and L.K. was obliged to continue defending against the Petition,
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after it became frivolous, unreasonable, or groundless to continue doing so.
At the September 2, 2014 hearing, L.K. submitted a verified affidavit for costs
and attorney fees revealing that she had incurred attorney fees on July 2, 2014,
in the amount of $357.50, for legal research on the issue of bad faith and
damages, and on July 18, 2014, in the amount of $68.75, for her counsel
having received and reviewed Hanover’s motion to dismiss, calling Hanover’s
counsel, and leaving him a message. All other fees incurred by L.K. after June
30, 2014, the date on which the Petition became unsupportable, were incurred
not in defending against the Petition, but in objecting to Hanover’s motion to
dismiss the Petition. Accordingly, we conclude that the trial court abused its
discretion by awarding attorney fees to L.K. not related to defending against
the Petition after it became frivolous, unreasonable, or groundless, and we
revise the fee award to $426.25.
[15] Finally, L.K. alleges a number of errors in the Petition, including that
Hanover failed to attach an affidavit alleging personal knowledge of L.K.’s
purported threat as required by Ind. Code § 34-26-6-7, that Hanover failed to
provide a statement “describing ‘what happened’” as required by State Form
TCM-WV-101, Appellee’s Brief at 11, that Hanover made a false statement in
the Petition when it misquoted L.K.’s purported threat, and that Hanover “did
not complete the attorney certification section of the state prescribed form
petition regarding notice to L.K. and failed to comply with the related
provisions of Trial Rule 65(B).” Id. at 12. L.K. asserts that, as a consequence
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of such errors, the court abused its discretion in limiting its consideration of
her request for attorney fees to the period after June 30, 2014.
[16] We observe that the issue of whether the court’s initial decision to enter an
order granting a temporary restraining order based on the Petition was error is
not presented to this court. The appealed order concerns only the award of
attorney fees in favor of L.K. However, even if L.K. is correct that those
various technical errors were present when the court initially granted Hanover
a temporary restraining order, we cannot say that such errors lead to the
conclusion that the allegations contained in the Petition had no merit and that
such litigation was frivolous, unreasonable, or groundless. Therefore, we
cannot say that the trial court abused its discretion by limiting its award of
attorney fees to L.K. for those fees incurred only after June 30, 2014.
Conclusion
[17] For the foregoing reasons, we affirm the trial court’s award of attorney fees to
L.K. and remand with instructions to enter an award of attorney fees in the
amount of $426.25.
[18] Affirmed in part and remanded
Crone, J., and Pyle, J., concur.
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