Rohrman Automotive Group v. Paul Pratico and Joy DenHouter (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 19 2017, 7:53 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Jon A. Bragalone Patrick L. Proctor
Larry L. Barnard Eilbacher Fletcher, LLP
Carson Boxberger LLP Fort Wayne, Indiana
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rohrman Automotive Group, April 19, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1604-SC-850
v. Appeal from the Allen Superior
Court, Small Claims Division
Paul Pratico and Joy DenHouter, The Honorable Brian D. Cook,
Appellees-Plaintiffs. Magistrate
Trial Court Cause No.
02D01-1404-SC-6541
Brown, Judge.
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[1] Rohrman Automotive Group (“Rohrman”) appeals from the judgment of the
small claims court in favor of Paul Pratico and Joy DenHouter (together, the
“Purchasers”) in the amount of $6,000. Rohrman raises two issues which we
consolidate and restate as whether the judgment of the court is clearly
erroneous. We affirm.
Facts and Procedural History
[2] On June 12, 2013, the Purchasers bought a 2000 Subaru Outback from
Rohrman for $5,802.50 pursuant to a purchase order which indicated the
vehicle was “SOLD AS IS, WITH ALL FAULTS.” Plaintiffs’ Exhibit 4.
Joseph Davis was a manager at the time of the sale and served as Rohrman’s
sales representative. At the time of the sale, Rohrman agreed to perform certain
repair work on the vehicle and Davis authorized the work as set forth in a work
order (the “Work Order”) which, in the fields for “Promised” and “R.O.
Opened,” provided the date of June 4, 2013, and in the field for “Ready”
provided the date of June 11, 2013. Plaintiffs’ Exhibit 3. The Work Order
identified the name of service advisor Jason Keefer, indicated the vehicle had
approximately 121,893 miles, and contained a lengthy itemized list of work to
be performed and performed on the vehicle, stating in part:
D RESURFACE BOTH FRONT BRAKE ROTORS
MACHINE RESURFACED BOTH FRONT BRAKE
ROTORS
1395 IUS 1.50 . . . . 75.00
E REPLACE REAR BRAKE PADS AND BOTH REAR
BRAKE ROTORS
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RBS REPLACED REAR BRAKE PADS AND BOTH
REAR BRAKE ROTORS
1395 IUS 1.50 . . . . 75.00
1 . . . PAD KIT DISK BRAKE R . . . 67.96
2 . . . BRAKE DISC R . . . . 159.92
Id. 1
[3] DenHouter took the vehicle back to Rohrman, and an invoice dated December
17, 2013, states: “A client states that when going 30mph and went to stop and
had trouble stopping. Check and advise.” Plaintiffs’ Exhibit 8. The invoice
identifies the name of service advisor Deborah Miller and the name of service
technician Terrence Bowen. The invoice further states “front sway bar
broken,” and notes that the vehicle had 124,897 miles and the total charge was
$98.95. Id.
[4] The Purchasers then had the vehicle towed to The Import Doctors, and Shayne
Cattron, a former Subaru certified mechanic, examined the vehicle which at
that time had approximately 124,899 miles. Cattron believed, based on
condition and wear, that the rear rotors had more than 3,000 miles on them and
that it was highly unlikely that the front rotors had been within specification
3,000 miles earlier. The invoice of the Import Doctors states “front brake pads
and rotors need replaced,” “brake master cylinder is leaking internally, needs
1
The Work Order includes a total amount billed of $1,471.63. Terrence Bowen, a service technician for
Rohrman, indicated that the amount represents the work completed and “billed to a vehicle but not to an
independent customer.” Transcript at 98.
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new master cylinder,” and “rear brake rotors are glazed and rust pitted, needs
rotors.” Plaintiffs’ Exhibit 2. The Import Doctors performed work on the
vehicle in January 2014 which included, among other things, replacement of
the front brake pads and rotors, the rear brake rotors, the brake master cylinder,
and the front sway bar. 2
[5] On April 30, 2014, the Purchasers filed a Notice of Claim in the Allen Superior
Court, Small Claims Division, alleging that Rohrman breached specific
warranties, breached its contract, and “committed fraud by claiming it
performed repair work that it had not in fact performed.” Appellant’s
Appendix at 7. The small claims court held a bench trial at which the
Purchasers, Davis, Bowen, and Cattron testified, and the court admitted a
number of exhibits including the Work Order of June 2013, the June 12, 2013
purchaser order, Rohrman’s December 17, 2013 invoice, and The Import
Doctors’ January 2014 invoice. 3
2
The Import Doctors’ invoice shows a total charge of $2,290.37. The invoice reflects a charge for towing
and seven line items related to parts and labor to replace the front and rear brakes and the brake master
cylinder, and the sum of those eight line items equals $714.94.
3
The transcript in the record covers the proceedings of January 27, 2015, but not those on December 8, 2014.
The Purchasers assert that no court reporter was requested during the first day of trial, that the fact no
transcript was available does not excuse Rohrman from the duty to present a verified statement of the
evidence, that Rohrman has thus waived its argument that the trial court’s findings do not support the
judgment on the claim of fraud, and alternatively the evidence from the second day of the trial is sufficient to
support the court’s finding of fraud. The record contains the exhibits presented by the parties and the
transcript for the proceedings on January 27, 2015, including all or part of the testimony of DenHouter,
Pratico, Cattron, Davis, and Bowen, and as set forth below our review of the record reveals evidence
sufficient to support the court’s judgment.
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[6] When asked what specific promises were made to her about repairs that were
supposed to have been made to the vehicle, DenHouter testified that “they were
all outlined for us” in the Work Order presented as Plaintiffs’ Exhibit 3.
Transcript at 13. She testified that she had conversations with Davis and the
mechanics at Rohrman and that she and Pratico were told the brakes needed to
be repaired. She indicated that, at the time she purchased the vehicle, she
believed Rohrman had completed the brake work. Pratico indicated that the
mechanic told him that the rear brake rotors were pitted and needed to be
replaced, that the front brakes were below the legal limit, and that his
understanding was that the work was going to be performed. When asked if the
Work Order introduced as Plaintiffs’ Exhibit 3 was “an invoice that Rohrman
had given you after the work had been done,” Pratico responded affirmatively,
and when asked “[a]nd it was given to you on June 11th . . . – or excuse on
June 11th when you bought the car – before you took possession of the car,” he
stated that was correct. Id. at 45.
[7] Davis indicated that he authorized the Work Order and it was his
understanding the work was performed. When asked “you said that it was your
understanding that the work had been done because someone told you that”
and “[w]ho told you that,” Davis answered “[t]he service manager would
have,” that at the time the service manager was Jason Keefer, and that Keefer
was no longer with Rohrman. Id. at 87. Bowen stated he was a service
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technician for Rohrman, that he was aware of the technician, Adam Raden, 4
who did the work on the Subaru, that he had no reason to believe Raden did
not do the work as stated in the Work Order, and that Raden no longer worked
for Rohrman. When shown a brake rotor in a box, 5 Bowen testified that it
looked like a rear rotor, that he would not place the rotor on a vehicle in its
current condition, that he would measure it, and that if it was within
specification he would resurface and drive it.
[8] Cattron testified that he was formerly a certified Subaru mechanic. When
asked if the rear rotor had 3,000 miles on it, Cattron testified “[n]o, it does not.
I[t] has more.” Id. at 118. When asked about the front rotor, Cattron replied
that “[t]hose are - definitely that was below spec when he came to my shop,”
that “[w]e marked them,” that “if they turn these rotors to spec you would have
to wear off pretty much a millimeter and a half in three thousand (3,000)
miles,” and it was “[h]ighly unlikely that’s going to happen.” Id. The
Purchasers’ counsel argued that attorney fees “should be part of cost and
outside the jurisdictional limit of the Court.” Id. at 121. The Purchasers
submitted “Plaintiffs’ Legal Memorandum Regarding Attorneys Fees and the
Issue of Small Claims Court’s Jurisdiction” arguing that sometimes the law
allows attorney fees to be recovered “as part of the cost” and asked the court to
4
The transcript states “Adam Raden [phonetics].” Transcript at 110.
5
Pratico had earlier indicated he brought a box of parts which he obtained from Cattron, the parts came off
the Subaru, and they were in substantially the same condition as when he received them.
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“hold that an award of appellate attorney fees under I.C. § 34-24-3-1 [the
Indiana Crime Victims Relief Act] is not part of the ‘amount sought’ within the
meaning of I.C. § 33-29-2-4, and is not subject to the small claims court’s
jurisdictional limitation.” 6 Appellee’s Appendix Volume II at 2-4.
[9] On March 14, 2016, the court issued an order in favor of the Purchasers and
against Rohrman in the amount of $6,000. The order states:
1. The [Purchasers] purchased a 2000 Subaru Outback from
[Rohrman] on June 12, 2013. The total purchase price for
the automobile was $5,802.50. The parties executed a
sales order on June 12, 2013. The automobile was
purchased “AS IS.”
*****
6. The [Purchasers’] did carry their burden of proof in
showing, more likely than not, that some of the repairs
allegedly performed by [Rohrman] prior to the original
sale were not in fact performed. Specifically, the
[Purchasers] presented the testimony of a certified
mechanic showing that the brakes on the automobile were
most likely not replaced or repaired 1000 miles prior to
their failure.[7] Rather, he stated the brakes were old and
worn and needed to be replaced. [Rohrman’s] invoice
dated June 4, 2013, clearly states that the front brake
rotors were resurfaced and the rear brake pads and rotors
6
The Purchasers’ counsel submitted the memorandum near the end of the bench trial, the court noted that it
would provide Rohrman with an opportunity to respond, and an entry in the chronological case summary
indicates that Rohrman filed a “Defendant’s Response in Opposition to Plaintiff’s Memorandum Regarding
Attorney’s Fees.” Appellant’s Appendix at 4. However, Rohrman did not include a copy of its response in
its appendix.
7
The evidence indicates the vehicle was driven approximately 3,000 miles.
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were replaced. The evidence shows more likely than not
that it did not happen. [Rohrman’s] actions amount to
fraud. They clearly, on a written invoice, stated that all
the brake work was performed, when it [sic] fact, it was
not.
7. The [Purchasers] presented evidence showing that they
had the brake system repaired at a total cost of $714.94
(this includes the tow to the repair shop). The
[Purchasers] are entitled to three (3) times that amount due
to [Rohrman’s] fraudulent behavior in the amount of
$2,144.82.
8. The [Purchasers] failed to carry their burden of proof in
showing that they are entitled to any further amounts for
repairs or service made to the automobile. They received a
general promise to make the automobile safe and
dependable. The evidence showed that some work was
performed by [Rohrman] to fulfill that promise.
9. Due to [Rohrman’s] fraudulent action the [Purchasers] are
entitled to collect reasonable attorney fees in the amount
of $3,855.18.
Judgment for [the Purchasers] and against [Rohrman] in the
amount of $6,000.00. Costs to [Rohrman].
Appellant’s Appendix at 8-9, Appellee’s Appendix Volume II at 6-7 (emphases
added).
Discussion
[10] The issue is whether the judgment of the small claims court is clearly erroneous.
Judgments in small claims actions are subject to review as prescribed by
relevant Indiana rules and statutes. Ind. Small Claims Rule 11(A); Eagle
Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013). In the
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appellate review of claims tried by the bench without a jury, the reviewing court
shall not set aside the judgment unless clearly erroneous. Ind. Trial Rule 52(A);
Eagle Aircraft, 983 N.E.2d at 657. The appellate tribunal does not reweigh the
evidence or determine the credibility of witnesses but considers only the
evidence that supports the judgment and the reasonable inferences to be drawn
from that evidence. Eagle Aircraft, 983 N.E.2d at 657. This deferential standard
of review is particularly important in small claims actions, where trials are
informal, with the sole objective of dispensing speedy justice between the
parties according to the rules of substantive law. Id. We presume that the trial
court correctly applied the law. Id. However, “this deferential standard does
not apply to the substantive rules of law, which are reviewed de novo just as
they are in appeals from a court of general jurisdiction.” Trinity Homes, LLC v.
Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). A trial court’s findings control only
as to the issues they cover and a general judgment controls as to the issues upon
which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.
1997). A general judgment entered with findings will be affirmed if it can be
sustained on any legal theory supported by the evidence. Id. Findings will be
set aside only if they are clearly erroneous. Id. In order to determine that a
finding or conclusion is clearly erroneous, an appellate court’s review of the
evidence must leave it with the firm conviction that a mistake has been made.
Id.[11] Rohrman argues that the trial court’s judgment awarding punitive damages was
clearly erroneous because the court did not find that the Purchasers presented
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clear and convincing evidence that it acted with fraud. Rohrman further argues
that the court’s judgment on the claim of fraud is clearly erroneous in that there
was no finding as to whether its representation on its invoice with respect to the
brake work was made with knowledge or reckless ignorance of its falsity. It
asserts that Davis authorized the repairs to the brakes and justifiably understood
that those repairs had been completed at the time the sale was concluded and
that “[a]ny misrepresentation of fact was not made with knowledge of its falsity
by Davis.” Appellant’s Brief at 6.
[12] The Purchasers respond that it is clear the small claims court did not award
punitive damages but rather awarded liquidated damages under the Indiana
Crime Victims Relief Act (the “CVRA”) found at Ind. Code § 34-24-3-1 and
that they raised the CVRA at trial when they filed a motion concerning the
award of attorney fees. They assert it is reasonable to infer that Rohrman knew
it had not replaced the brakes when it gave them the Work Order stating it had
done the work and that the evidence supports a judgment in their favor under
the CVRA. They argue that, even if Davis’s claim of ignorance is believed, he
was not the only employee of Rohrman who represented to the Purchasers that
the brakes had been replaced and that the evidence shows that at least
Rohrman’s mechanics and service department representatives were aware that
they had made a false representation to the Purchasers in June 2013 about
replacing the brakes. The Purchasers note that the trial court does not cite to
the CVRA but neither does it state it was awarding punitive damages, that they
argued they were entitled to attorney fees under the CVRA, and that, since this
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court presumes the trial court knows the law, we should find that the small
claims court’s judgment was a finding of criminal deception under the CVRA
because it applied the preponderance of the evidence standard, awarded treble
damages, and awarded attorney fees. They also contend they are entitled to
appellate attorney fees. In reply, Rohrman argues that the Purchasers’ notice of
claim did not seek recovery under the CVRA but simply asserted a claim for
fraud. Rohrman also argues that the Purchasers are not entitled to recover
appellate attorney fees in excess of the jurisdictional amount of $6,000 and that
attorney fees “are simply a part of ‘the amount sought’ under Ind. Code §33-29-
2-4(b), just as are treble damages.” Appellant’s Reply Brief at 9.
[13] “To prove fraud, a plaintiff must show: (i) material misrepresentation of past or
existing facts by the party to be charged (ii) which was false (iii) which was
made with knowledge or reckless ignorance of the falseness (iv) was relied upon
by the complaining party and (v) proximately caused the complaining party
injury.” Reed v. Reid, 980 N.E.2d 277, 292 (Ind. 2012) (quoting Rice v. Strunk,
670 N.E.2d 1280, 1289 (Ind. 1996)). It is well established that the actions of
employees and agents of a corporation are attributable to the corporation when
the actions are done within the scope of employment. Mid-Continent Paper
Converters, Inc. v. Brady, Ware & Schoenfeld, Inc., 715 N.E.2d 906, 909 (Ind. Ct.
App. 1999). Thus, a principal is liable for any misrepresentations of his agent
undertaken within the scope of the agency, whether or not the principal has
knowledge of the fraud. Id. This rule is grounded in the sound policy that it is
preferable to place the burden of an agent’s fraud on the principal rather than
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on an innocent third party to the agency relationship. Id. Moreover, allowing
principals to accept the benefits of their agents’ fraudulent transactions without
liability for the fraud could lead to an increase in such transactions and reduce
incentives to hire honest managers and monitor their behavior. Id.[14] The evidence establishes that Rohrman, through its manager and mechanics,
told the Purchasers that it would resurface the front brake rotors and replace the
rear brake parts of the Subaru. The Purchasers received a copy of the Work
Order indicating the brake work Rohrman agreed to perform, and Cattron
inspected the vehicle’s brakes and later testified that the rear rotors had more
than 3,000 miles on them and it was highly unlikely that the front rotors had
only 3,000 miles of wear. Pratico testified that he was given a copy of the Work
Order on June 11th after Rohrman had completed its work on the Subaru and
before the Purchasers took possession of the vehicle. The evidence supports the
court’s finding that more likely than not Rohrman did not resurface the front
brakes or replace the rear brake pads and rotors as indicated in its Work Order.
We will not reweigh the evidence, and we consider only the evidence and
reasonable inferences that support the court’s judgment. Our review of the
record does not leave us with a firm conviction that a mistake has been made.
[15] As for the court’s damage award, we note that its order does not expressly
provide the basis upon which it awarded treble damages. We will affirm a
general judgment if it can be sustained on any legal theory supported by the
evidence, Yanoff, 688 N.E.2d at 1262, and we presume that the court correctly
applied the law. Eagle Aircraft, 983 N.E.2d at 657. The Purchasers agree that
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the court did not award punitive damages as it did not find the Purchasers
established by clear and convincing evidence the facts relied upon. See Ind.
Code § 34-51-3-2 (“Before a person may recover punitive damages in any civil
action, that person must establish, by clear and convincing evidence, all of the
facts that are relied upon by that person to support the recovery of punitive
damages.”). Nevertheless, the CVRA is a basis upon which the small claims
court was authorized to award treble damages and attorney fees. 8
[16] The CVRA provides that, “[i]f a person . . . suffers a pecuniary loss as a result
of a violation of IC 35-43 . . . , the person may bring a civil action against the
person who caused the loss” for “[a]n amount not to exceed three (3) times . . .
the actual damages of the person suffering the loss,” the costs of the action, a
reasonable attorney fee, and all other reasonable costs of collection. Ind. Code
§ 34-24-3-1. The CVRA provides for recovery to those who suffer loss as a
result of a violation of Ind. Code §§ 35-43, which in turn governs the offenses,
among others, of criminal deception and making or delivering a false sales
document. 9 The Purchasers assert the evidence supports the finding that
Rohrman committed criminal deception. Ind. Code § 35-43-5-3(a) provides in
part that a person who “knowingly or intentionally makes a false or misleading
8
The Purchasers cited the CVRA in their memorandum regarding attorney fees.
9
Ind. Code § 35-43-5-2(b) provides that a person who, with intent to defraud “makes or delivers to another
person: . . . a false sales receipt [or] a duplicate of a sales receipt . . . commits making or delivering a false
sales document, a Level 6 felony.” Ind. Code § 35-43-5-16 provides that a person who, with intent to
defraud, makes a false sales receipt, commits making a false sales document, a level 6 felony.
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written statement with intent to obtain property . . . commits deception, a Class
A misdemeanor.” A person engages in conduct “intentionally” if, when he
engages in the conduct, it is his conscious objective to do so, Ind. Code § 35-41-
2-2(a), and a person engages in conduct “knowingly” if, when he engages in the
conduct, he is aware of a high probability that he is doing so. Ind. Code § 35-
41-2-2(b). A criminal conviction is not a condition precedent to recovery under
the CVRA, and the claimant merely must prove each element of the underlying
crime by a preponderance of the evidence. Klinker v. First Merchants Bank, N.A.,
964 N.E.2d 190, 193 (Ind. 2012).
[17] Through its agents Rohrman agreed to resurface the front brake rotors and
replace the rear brake parts of the Subaru in order to obtain property, i.e.
money, from the Purchasers. It then provided the Purchasers with the Work
Order, stating that it had performed repair work on the vehicle. The Work
Order specifically itemized the costs for resurfacing the front brake rotors and
the costs and parts for replacing the rear brake pads and rotors. After the
vehicle had been driven approximately 3,000 miles, the Purchasers had the
vehicle inspected by Cattron, who testified his inspection revealed that the rear
rotors had more than 3,000 miles on them and it was highly unlikely that the
front rotors had only 3,000 miles of wear. The trier of fact could reasonably
conclude by a preponderance of the evidence that Rohrman by its employees or
agents knowingly or intentionally made a false or misleading written statement
to obtain the Purchasers’ money or delivered a false sales receipt to the
Purchasers. The evidence before the small claims court supports its award of
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treble damages and attorney fees under the CVRA. See Palmer Dodge v. Long,
791 N.E.2d 788, 792 (Ind. Ct. App. 2003) (observing that, although the trial
court did not expressly state that it had found criminal conversion, the only
theory which could be advanced based upon the evidence which would have
made an award of attorney fees proper was criminal conversion, that the
evidence supported a finding of criminal conversion, that we presume a trial
court knows the law, and concluding that the court awarded attorney fees under
the CVRA). 10
[18] Turning to the Purchasers’ request for appellate attorney fees, we observe that
the CVRA provides that a person may recover a reasonable attorney fee, Ind.
Code § 34-24-3-1(3), and an award of attorney fees under the CVRA includes
appellate attorney fees. See Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004, 1008
(Ind. Ct. App. 2009) (“This Court has held that a plaintiff is entitled to
attorney’s fees, including appellate attorney’s fees, when she prevails under the
[CVRA].”). However, the small claims docket has jurisdiction over civil
actions in which “the amount sought or value of the property sought to be
recovered” is not more than $6,000. Ind. Code § 33-29-2-4. The CVRA
provides a person may bring a civil action for six enumerated losses, including
an amount not to exceed three times actual damages, costs of the action, a
10
Further, to the extent Rohrman asserts the notice of claim did not cite the CVRA, we note that the notice
of claim alleged fraud, the elements of fraud and criminal deception overlap significantly, see Wysocki v.
Johnson, 18 N.E.3d 600, 604 (Ind. 2014), the evidence demonstrates Rohrman committed criminal deception
or making or delivering a false sales document, and the Purchasers referenced the CVRA in their
memorandum in support of their request for attorney fees.
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reasonable attorney fee, certain travel expenses, an amount to compensate for
loss of time used for certain activities, expenses incurred to compensate
employees and agents for time used for certain activities, and all other
reasonable costs of collection. Ind. Code § 34-24-3-1. We conclude that a
reasonable attorney fee under the CVRA, which includes appellate attorney
fees, see Heartland, 903 N.E.2d at 1008, constitutes together with the other
enumerated recoverable losses in the statute the “amount sought” under Ind.
Code § 33-29-2-4. Thus, as the small claims court has already entered a
judgment in the maximum statutory amount, the Purchasers are not entitled to
an additional amount under the CVRA for appellate attorney fees. See Klotz v.
Hoyt, 900 N.E.2d 1, 7 (Ind. 2009) (observing that the plaintiff’s total claims
which included a claim for attorney fees exceeded the $6,000 small claims
jurisdictional limit and remanding for entry of a judgment in the sum of
$6,000); Pinnacle Properties v. Saulka, 693 N.E.2d 101, 106 (Ind. Ct. App. 1998)
(observing the statute setting forth the jurisdictional amount of the small claims
court does not distinguish between damages and attorney fees in setting the
total jurisdictional amount recoverable), 11 trans. denied. Also, we cannot say
that Rohrman’s arguments on appeal are utterly devoid of all plausibility, that it
flagrantly disregarded the rules of appellate procedure, or that its defense was
unreasonable or groundless, and thus we conclude that appellate attorney fees
11
The court in Pinnacle Properties also noted that the Indiana Small Claims Rules “make no provision for the
recovery of attorney’s fees in addition to the jurisdictional amount” and Indiana Small Claims Rule 11(B)
provides that the party recovering judgment shall recover costs regardless of the amount. 693 N.E.2d at 106,
106 n.5.
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are not warranted under Ind. Appellate Rules 66(E) or 67 or Ind. Code § 34-52-
1-1. 12
Conclusion
[19] 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.
[20] Affirmed.
Robb, J., and Mathias, J., concur.
12
This court may assess attorney fees under Ind. Appellate Rule 66(E) where an appeal is frivolous or in bad
faith and may award costs under Appellate Rule 67, and 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.
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