Robert Holland, A Concerned Citizen for the Redevelopment of Gary v. Richard Steele, Barbara Steele, First Midwest Bank, As Successor Trustee By Way of Merger to Bank Calumet, N.A.

FOR PUBLICATION

APPELLANT PRO SE: ATTORNEY FOR APPELLEE
FIRST MIDWEST BANK:
ROBERT HOLLAND
Gary, Indiana ROBERT E. STOCHEL

FILED
Robert E. Stochel, P.C.
Merrillville, Indiana
Jan 27 2012, 8:38 am

IN THE CLERK
of the supreme court,
court of appeals and
tax court

COURT OF APPEALS OF INDIANA

ROBERT HOLLAND, A Concerned Citizen For the )
Redevelopment of Gary, )
Appellant-Plaintiff, )
)
vs. ) No. 45A03-1102-PL-84
)
RICHARD STEELE, BARBARA STEELE, and All )
Unknown Heirs, Representatives, Legatees, Devisees, )
Executors, Administrators, Wives, Husbands, )
Receivers, Lessees, Successors, and Assigns, and )
All Persons Claiming from, through, or under, or any )
of them whose true Christian Names are Unknown to )
Petitioner, and All Other Persons to Quiet Title of )
the Above Property, and FIRST MIDWEST BANK, )
AS SUCCESSOR TRUSTEE BY WAY OF MERGER )
TO BANK CALUMET, N.A., AS TRUSTEE OF )
TRUST NO. P-4274, )
Appellees-Defendants. )
_____________________________________________ )
)
FIRST MIDWEST BANK, AS SUCCESSOR TRUSTEE )
BY WAY OF MERGER TO BANK CALUMET, N.A., )
AS TRUSTEE OF TRUST NO. P-4274, )
Counter-Claimant, )
)
vs. )
)
ROBERT HOLLAND, )
Counter-Defendant. )
 APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Gerald N. Svetanoff, Judge
Cause No. 45D04-0905-PL-47

January 27, 2012

OPINION - FOR PUBLICATION

BAILEY, Judge

Case Summary

Pro-se Appellant Robert Holland a/k/a “A concerned citizen for the redevelopment of

Gary,” (“Holland”) appeals the denial of his motion to correct error, which challenged a

summary judgment order ending his litigation to foreclose upon a common law lien

encumbering real estate owned by First Midwest Bank (“the Bank”) for alleged costs of

abating a nuisance. We affirm.

Issues

Holland purportedly raises thirteen issues, but his statement of the issues does not

correspond with the substance of the argument section of his brief.1 As best we can discern

Holland’s contentions, he raises the following consolidated issues:

I. Whether the trial court’s denial of a default judgment is an abuse of
discretion;

1
To the extent that Holland argues that he is entitled to summary judgment on quantum meruit (unjust
enrichment) or intentional infliction of emotional distress claims, we observe that such claims were not
denominated in his complaint or disposed of by the trial court order now being appealed. Holland merely
assigned dollar amounts in his “Verified List of Damages and Costs” that corresponded to such categories as
quantum meruit, intentional infliction of emotional distress, decrease in rental value, and punitive damages.
App. 140.

2
 II. Whether the trial court abused its discretion by granting the Bank a
continuance of time in which to respond to Holland’s summary
judgment motion;

III. Whether Holland is entitled to summary judgment enforcing his
common law lien;

IV. Whether summary judgment was improvidently granted to the Bank on
its claims; and

V. Whether Holland is entitled, under Indiana Trial Rule 60(B), to relief
from a judgment due to fraud on the part of the Bank.

The Bank cross-appeals, seeking to have its award of attorney’s fees increased and

additionally seeking an award of appellate attorney’s fees.

Facts and Procedural History

Commencing in 2002 and ending in 2009, Holland rented property at 5014 West 17th

Avenue in Gary, Indiana. The surrounding neighborhood became blighted by a number of

vacant properties.

On May 29, 2009, Holland, identifying himself as a concerned citizen for the

redevelopment of Gary, filed his “Complaint for Foreclosure of Lien for Costs of Abating

Nuisance and the Decrease in Value of Property.”2 (App. 52.) He named as defendants

Richard and Barbara Steele, former owners of a residence at 5088 West 17th Avenue in Gary,

Indiana, and “all unknown heirs, representatives, legatees, devisees, executors,

administrators, wives, husbands, receivers, leasees [sic], successors and assigns and all

2
This was not Holland’s first attempt to appropriate property for himself. See Holland v. Manufacturers and
Traders Trust Co., No. 45A04-1004-PL-324, slip op. at 3, (Ind. Ct. App. Aug. 4, 2011) (affirming the
dismissal of Holland’s quiet title claim which he pursued after having “squatted on” vacant real estate and
allegedly improved its condition).

3
persons claiming from, through or under, or any of them whose true Christian names are

unknown to the Petitioner, and all other persons to quiet title of the above property.” (App.

52.)

Holland alleged that the Steeles had failed to maintain their property and that the

abandoned building had become “an eyesore for the neighborhood,” inviting crime and

devaluing nearby properties. (App. 53.) Holland claimed that he had taken possession of the

property and assumed responsibility for its maintenance and repair. According to Holland’s

complaint, the Steeles had refused to pay Holland for necessary work performed. He asked

that the trial court “declare a lien” and demanded judgment for $75,000. (App. 53.) On

August 31, 2009, Holland filed his Notice of Common Law Lien,3 Lake County Recorder

Document Number 2009-059894, asserting a lien of $75,000.

After having caused service by sheriff at the abandoned property, Holland attempted

notice by publication. On November 6, 2009, Holland requested a hearing “on Entry of

Default Judgment for Foreclosure of Lien for Costs of Abating Nuisance and Decrease in

Value of Property.” (App. 12.) Hearing was set for January 4, 2010. On December 30,

2009, the Bank filed a motion to intervene, alleging that it was the owner of the subject real

estate, having been issued a Sheriff’s deed on September 1, 2006, as a result of a foreclosure

sale. Argument was heard on January 4, 2010. On March 9, 2010, the trial court granted the

motion to intervene and denied Holland’s motion for default judgment as moot.

3
Pursuant to Indiana Code Section 32-28-13-1, a “common law lien” is a “lien against real or personal
property that is not 1. a statutory lien; 2. a security interest created by agreement; or 3. a judicial lien obtained
by legal or equitable process or proceedings.”

4
 When deposed, Holland admitted that he had no permission from the Bank to enter

onto the property at 5088 W. 17th Avenue or to perform any work there. On March 26, 2010,

the Bank filed a counterclaim alleging trespass and slander of title, and further alleging that

Holland had filed a frivolous lawsuit. On May 26, 2010, Holland moved for summary

judgment. The Bank filed a cross-motion for summary judgment.

On February 4, 2011, the trial court granted the Bank’s motion for summary judgment

and denied Holland’s motion for summary judgment. The Bank was awarded nominal

damages in the aggregate amount of $3.00 and was awarded attorney’s fees of $400.00.

Finally, the trial court declared the common law lien filed by Holland invalid. Holland filed

a motion to correct error, and a motion for relief from judgment, which were denied. This

appeal ensued.

Discussion and Decision

Standard of Review – Motion to Correct Error

“The court, if it determines that prejudicial or harmful error has been committed, shall

take such action as will cure the error[.]” Indiana Trial Rule 59(J). We review for an abuse

of discretion a trial court’s decision on a motion to correct error. Knowledge A-Z, Inc. v.

Sentry Ins., 891 N.E.2d 581, 584 (Ind. Ct. App. 2008), trans. denied. An abuse of discretion

occurs when the decision is against the logic and effect of the facts and circumstances before

the court, and inferences that may be drawn therefrom. Id.

Standard of Review – Summary Judgment

Summary judgment is appropriate only if the pleadings and designated materials

5
considered by the trial court show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. Yates v. Johnson County Bd.

of Comm’rs., 888 N.E.2d 842, 846 (Ind. Ct. App. 2008). Our well-settled standard of review

is the same as it was for the trial court. Landmark Health Care Assocs., L.P. v. Bradbury,

671 N.E.2d 113, 116 (Ind. 1996).

We must construe all evidence in favor of the party opposing summary judgment, and

all doubts as to the existence of a material issue must be resolved against the moving party.

Id. at 847. However, once the movant has carried its initial burden of going forward under

Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating

the existence of genuine factual issues, which should be resolved at trial. Otto v. Park

Garden Assocs., 612 N.E.2d 135, 138 (Ind. Ct. App. 1993), trans. denied. If the nonmovant

fails to meet his burden, and the law is with the movant, summary judgment should be

granted. Id.

A genuine issue of material fact exists where facts concerning an issue that would

dispose of the litigation are in dispute or where the undisputed material facts are capable of

supporting conflicting inferences on such an issue. Huntington v. Riggs, 862 N.E.2d 1263,

1266 (Ind. Ct. App. 2007), trans. denied. Questions of law are reviewed de novo and we owe

no deference to the trial court’s legal conclusions. In re Guardianship of Philips, 926 N.E.2d

1103, 1106 (Ind. Ct. App. 2010).

We may affirm the grant of summary judgment on any basis argued by the parties and

supported by the record. Payton v. Hadley, 819 N.E.2d 432, 437 (Ind. Ct. App. 2004).

6
However, neither the trial court nor the reviewing court may look beyond the evidence

specifically designated to the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702,

705 (Ind. Ct. App. 1999). Trial Rule 56(H) specifically prohibits this Court from reversing a

grant of summary judgment on the ground that there is a genuine issue of material fact,

unless the material fact and the evidence relevant thereto shall have been specifically

designated to the trial court. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816

N.E.2d 40, 45 (Ind. Ct. App. 2004).

Our standard of review is not altered by the fact that the parties made cross-motions

for summary judgment. Indiana Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind.

Ct. App. 2000). Instead, we consider each motion separately to determine whether the

moving party is entitled to judgment as a matter of law. Id.

Motion for Default Judgment

On October 20, 2009, Holland moved for the entry of default judgment, alleging that

the Steeles had failed to answer his complaint. Thus, he contended that title to the subject

property should be quieted in Holland and he should take the property free of the claims of

the Steeles and any other unknown claimants. The motion was denied and Holland now

argues he has “prove[d] that he was entitled to Default Judgment on the merits in this case on

all claims for which punitive damages are available against First Midwest Bank.”

Appellant’s Brief at 17.

Indiana Trial Rule 55(A) provides:

7
 When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise comply with these rules and that fact is made to
appear by affidavit or otherwise, the party may be defaulted by the court.

In general, default judgments are not favored in Indiana. Bedree v. DeGroote, 799 N.E.2d

1167, 1172 (Ind. Ct. App. 2003), trans. denied. “The trial court’s discretion in granting or

denying a motion for default judgment is considerable.” Delphi Corp. v. Orlik, 831 N.E.2d

265, 267 (Ind. Ct. App. 2005). The trial court should use its discretion to do that which is

“just” under the unique facts of each case. Id. We will reverse only if the decision is clearly

against the logic and effect of the facts and circumstances presented. Id.

Although he has claimed entitlement to a default judgment because the Steeles failed

to plead, Holland does not acknowledge a lack of effective service,4 nor does he dispute the

Bank’s assertion that the Steeles no longer had an interest in the subject property. He simply

asserts that he was entitled to a default judgment in June of 2009 and the Bank’s December

30, 2009 motion to intervene was untimely. Holland contends that the Bank would have

received prompt actual notice of the lawsuit had the Bank not been “an absconding debtor

that is purposely not in the record of the Lake County Recorder’s Office as owner.”

Appellant’s Brief at 18. The assertion that the Bank was less than diligent in recording its

deed does not explicitly support Holland’s claim of entitlement to default judgment. He

appears to believe that the trial court was required to quiet title as against all other potential

claimants as soon as practicable after the date an answer would have been due in the event of

effective service.

4
The existence of personal jurisdiction requires effective service of process on a defendant. See Goodson v.
Carlson, 888 N.E.2d 217, 220 (Ind. Ct. App. 2008).

8
 However, the trial court was vested with discretion to consider the facts and

circumstances before it, which include the following. The purported address for the Steeles

was obviously incorrect, as the address on the summons referenced a vacant property.

Although Holland averred in his complaint that the residence at 5088 W. 17th Avenue had

“not been lived in for many years,” he also claimed, in his affidavit of service, to have

achieved service by personally delivering a summons and by procuring sheriff’s service at the

same vacant address. (App. 52.)

Not surprisingly, the prior owners failed to appear in the quiet title action. The Bank,

upon acquiring knowledge of the common law lien, moved to intervene within a few months

of the filing of the complaint. The Bank produced a copy of a Sheriff’s Deed dated

September 1, 2006, conveying ownership of the property previously owned by the Steeles.

On its face, the complaint for foreclosure of a common law lien warranted inquiry

before quieting of title, as Holland claimed to have a legitimate lien against vacant property

for $75,000 worth of (non-itemized) work performed thereon. Pursuant to his Notice of

Common Law Lien, Holland had asserted a lien against 5088 West 17th Avenue, Gary,

Indiana for “the costs of abating the nuisance created by 2009 Chase Street and the decrease

in value of surrounding property.” (App. 56.) (emphasis added.) Given the preference for

deciding cases on the merits, we are not persuaded that the trial court’s decision to deny the

motion for default judgment was against the logic and effect of the facts and circumstances

presented.

9
 Continuance of Time to Respond to Summary Judgment Motion

Holland claims that the trial court abused its discretion by granting the Bank a

continuance of time in which to conduct discovery before responding to Holland’s summary

judgment motion. Holland asserts that the Bank claimed a need to depose Holland and

neighbors who had signed affidavits regarding the condition of 5088 W. 17th Avenue but

failed to specify a discovery dispute or subsequently schedule depositions of neighbors.

According to Holland, the Bank “unilaterally created a pernicious excuse for delay without

specifically stating what discovery issues of material fact remained.” Appellant’s Brief at 23.

Holland does not direct us to a corresponding portion of the appellate record. Indiana

Appellate Rule 46(A)(8)(a) requires that each contention be supported by citations to the

authorities, statutes, and the Appendix or parts of the Record on Appeal relied on. Because

we will not become an advocate for one of the parties, we decline to consider an appellant’s

assertions when he or she fails to present cogent arguments supported by authority and

references to the record, consistent with the requirements of the appellate rules. Shepard v.

Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).

Summary Judgment – Holland’s Lien Claim

Holland claims that he was entitled to summary judgment on his quiet title claim,

having demonstrated that he held a valid lien for sums expended to redress a nuisance.5

5
During discovery, Holland produced a “Verified List of Damages and Costs.” (App. 360.) In his deposition
testimony, Holland admitted that he lacked receipts for claimed expenditures to abate the alleged nuisance. He
explained that he had included $350 for the value of his own time, for “research time spent determining who
was the owner.” (App. 360.) He had also included $300 for “estimated fees for costs such as mail, telephone,
and office supplies,” and a bill for his “time and effort spent prosecuting this lawsuit” at a rate of $250 per
hour. (App. 360.) Holland testified that he had paid cash to an unidentified person to cut the lawn and replace

10
 In Indiana, nuisances are defined by statute. Indiana Code Section 32-30-6-6 defines

an actionable nuisance as: “Whatever is (1) injurious to health; (2) indecent; (3) offensive to

the senses; or (4) an obstruction to the free use of property; so as essentially to interfere with

the comfortable enjoyment of life or property[.]” A public nuisance is that which affects an

entire neighborhood or community while a private nuisance affects only one individual or a

determinate number of people. Wernke v. Halas, 600 N.E.2d 117, 120 (Ind. Ct. App. 1992).

The essence of a private nuisance is the use of property to the detriment of the use and

enjoyment of another’s property. Id. A public nuisance is caused by an unreasonable

interference with a common right. Indiana Limestone Co. v. Staggs, 672 N.E.2d 1377, 1384

(Ind. Ct. App. 1996), trans. denied.

In his complaint, Holland described the conditions that he was allegedly compelled to

redress as follows:

The Defendant has refused to assume responsibility for the care, maintenance
and hazards that the abandoned building creates. The abandoned building has
invited a criminal element in the neighborhood. The abandoned building has
been used for the purpose of selling and using illegal drugs. The house has
been vandalized and materials stolen from the property. The property has
become in disrepair and is an eyesore for the neighborhood. The property sits
vacant and can not be sold to an interested party that will care for it. The value
of the other homes in the neighborhood such as the Plaintiff’s go down. Taxes
in the area go up. Because taxes are not being paid revenue for public schools
and other government facilities go down. Students receive a lower quality
education and the citizens of Gary, Indiana suffer from less and less
governmental services.

a back door at the vacant property. He had also paid cash for trash hauling. Neither this deposition testimony
nor the other designated materials reveal $75,000 worth of expenditures to support the purported lien. Instead,
it appears that the $75,000 figure is largely comprised of Holland’s assessment of his “damages,” including
$5,400 for decrease in rental value or loss of quiet enjoyment, $18,000 for infliction of emotional distress, and
$50,000 for punitive damages.

11
(App. 53.) As such, Holland alleged that an entire neighborhood, community, and ultimately

a city were affected. His designated materials included a number of affidavits from

neighbors averring that the vacant property had attracted a criminal element and caused the

neighbors to feel unsafe. They also had averred that the vacant property was an

embarrassment to the community.

“Generally, a private party has no right of action under a public nuisance.” Indiana

Limestone, 672 N.E.2d at 1384. However, a party may bring a successful private action to

abate a public nuisance if the party demonstrates special and peculiar injury apart from the

injury suffered by the general public. Id. Holland’s designated materials reveal that he was

one of many neighbors upset that the vacant property was unsightly and could serve to shelter

criminal activity. On appeal, he claims only that he was more particularly affected than his

neighbors because he was closer in proximity to the vacant property than some other

neighbors. We are not persuaded that a mere difference in proximity describes a special and

peculiar injury. Holland did not establish his entitlement to judgment as a matter of law, and

thus the trial court properly denied Holland summary judgment on his quiet title claim.

The crux of Holland’s contentions is that he, as a private individual, should have an

unfettered citizen’s right to act to abate a nuisance that contributes to urban blight. However,

it is not within our purview to opine on policy questions surrounding a legislative or

governmental response to urban problems. “It is the province of the public authorities to

procure redress for public wrongs.” Adams v. Ohio Falls Car Co., 131 Ind. 375, 31 N.E. 57,

58 (1892).

12
 Summary Judgment for Bank on its Counterclaims

Count I of the Bank’s counterclaim alleged trespass by Holland. Generally, a party

bringing a trespass action must establish two elements: (1) the plaintiff must show that he

possessed the land when the alleged trespass occurred, and (2) the plaintiff must demonstrate

that the alleged trespasser entered the land without a legal right to do so. KB Home Indiana,

Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 308 (Ind. Ct. App. 2010). It is undisputed that

the Bank acquired the subject property in 2006. In his deposition, Holland testified that he

entered the property in 2008 and that he had no permission from the Bank to do so. The

Bank was entitled to summary judgment on the trespass claim.

The Bank’s second count alleged slander of title. To succeed on a claim for slander of

title, the plaintiff must prove that false statements were made, with malice, and that the

plaintiff sustained pecuniary loss as a necessary and proximate result of the slanderous

statements. Isanogel Ctr., Inc. v. Father Flanagan’s Boys’ Home, Inc., 839 N.E.2d 237, 245-

46 (Ind. Ct. App. 2005), trans. denied. Malicious statements are those made with knowledge

of their falsity or with reckless disregard for whether they are false. Id.

The trial court determined that Holland recorded a baseless lien encumbering Bank

property and then attempted to foreclose that lien with no legal basis to do so. The

designated materials reveal that Holland trespassed, and then solicited others to perform

clean-up activities, allegedly to abate a nuisance affecting the neighborhood. After three

years, Holland filed a common law lien for $75,000, a specious sum he could not (in

deposition testimony) attribute to direct costs. The designated materials point to a sole

13
conclusion, that reached by the trial court, Holland held no enforceable lien and had

slandered the Bank’s title to the subject real estate.

The Bank’s third count alleged that Holland had pursued a frivolous action to

foreclose a common law lien and divest the Bank of its real property. A claim is frivolous

if it is taken primarily for the purpose of harassing or maliciously injuring a
person, or (b) if the lawyer is unable to make a good faith and rational
argument on the merits of the action, or (c) if the lawyer is unable to
support the action taken by a good faith and rational argument for an
extension, modification, or reversal of existing law.

Kahn v. Cundiff, 533 N.E.2d 164, 170 (Ind. Ct. App. 1989), summarily aff’d, 543 N.E.2d

627 (Ind. 1989). Holland readily admitted that he entered onto land without permission of

the owner. He then conducted unauthorized activities, allegedly incurring costs for which he

failed to obtain receipts.

Nonetheless, he proceeded to file a common law lien based upon his valuation of his

personal efforts and his estimates of cash paid to one or more unidentified individuals. He

claimed to have damages for a reduction in property value, although he freely admitted that

he rented, as opposed to owned, his residence on 17th Avenue. The designated materials lead

to but one conclusion: Holland continued to litigate his claim that title to 5088 W. 17th

should be quieted in him long after it became apparent that he had no basis for enforcement

of the $75,000 common law lien. The Bank was entitled to judgment as a matter of law on

this claim.

14
 Relief from Judgment for Alleged Fraud

Holland argues that he is entitled to relief from the judgment, pursuant to Indiana Trial

Rule 60(B)(3), because the Bank acted fraudulently.

According to Holland, the Bank “engaged in fraudulent misconduct on numerous

occasions by being an absconding debtor, by not recording the Sheriff’s Deed for 4 years

with the Lake County Recorder, not reporting the transfer of the property to the Lake County

Assessor, not reporting the transfer of the property to the Lake County Auditor, not reporting

the transfer of the property to the Lake County Treasurer, the fraudulent use of another

person’s (the Steeles’) exemption, and not paying property taxes to the Lake County

Treasurer.” Appellant’s brief at 33.

Holland may be arguing that the Steeles were defrauded, but he is not in a position to

claim that he personally suffered a demonstrable injury. He was not deprived of a tax

exemption nor was he entitled to reimbursement of property taxes. He did not own the

property at issue.

Holland further contends that the Bank perpetrated a fraud upon the court by denying

that the vacant property needed repair and maintenance. To show fraud on the court, “the

party must establish that an unconscionable plan or scheme was used to improperly influence

the court’s decision and that such acts prevented the party from fully and fairly presenting its

case or defense.” Stonger v. Sorrell, 776 N.E.2d 353, 357 (Ind. 2002). The claim has been

limited to the most egregious of circumstances involving courts. Id. Such circumstances are

not present here.

15
 Holland has failed to show that he is entitled to any relief from the trial court’s

judgment.6

Cross-Appeal on Attorney’s Fees

The trial court found that the Bank had incurred “substantial” attorney’s fees in

“defending itself and its property from the baseless claims made by Holland.” (App. 20.)

Observing that “Holland is a person who is not wealthy,” the trial court limited the award of

attorney’s fees to $400.00. (App. 21.) Although not referencing a particular statute, the trial

court specified that the $400 award was “incentive to discourage [Holland] from pursuing

baseless litigation.” (App. 21.) The Bank argues that consideration of Holland’s financial

circumstances was improper and the Bank should recover all its attorney’s fees.

Indiana Code section 32-20-5-2 provides that “[i]n any action to quiet title to land, if

the court finds that a person has filed a claim only to slander title to land, the court shall”

award the plaintiff costs, attorney’s fees, and “damages that the plaintiff may have sustained

as the result of the notice of claims having been filed for record.”

Additionally, Indiana Code section 34-52-1-1(b) confers upon the trial court discretion

to award attorney’s fees to the prevailing party if the other party:

(1) brought the action or defense on a claim or defense that is frivolous,
unreasonable, or groundless;
(2) continued to litigate the action or defense after the party’s claim or
defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.

6
We observe that Indiana Trial Rule 60(D) provides that a trial court, in ruling on a motion for relief from
judgment, “shall hear any pertinent evidence.” However, where there is no pertinent evidence, a hearing is
unnecessary. Knowledge A-Z, Inc. v. Sentry Ins., 891 N.E.2d 581, 585 (Ind. Ct. App. 2008), trans. denied.

16
The trial court is not required to find an improper motive to support an award of attorney’s

fees; rather, an award may be based solely on a lack of good faith and rational argument in

support of the claim. Breining v. Harkness, 872 N.E.2d 155, 161 (Ind. Ct. App. 2007). The

amount of fees to be awarded is within the broad discretion of the trial court and will be

reversed only if the award is clearly against the logic and effect of the facts and

circumstances before the court. Benaugh v. Garner, 876 N.E.2d 344, 347 (Ind. Ct. App.

2007), trans. denied.

The Bank deems itself entitled to a full award of its claimed fees, without regard to a

litigant’s poverty, particularly because an award of fees is not discretionary where a slander

of title has been found. The Bank observes, correctly, that our Supreme Court has offered

guidance in the Rules of Professional Conduct concerning factors to be considered in

determining the reasonableness of attorney’s fees. Order for Mandate of Funds Montgomery

County Council v. Milligan, 873 N.E.2d 1043, 1049 (Ind. 2007). However, the factors7 are

“non-exclusive.” Benaugh, 876 N.E.2d at 348.

As the Bank points out, the statutes that would support an award of attorney’s fees in

this case – either for slander of title or a frivolous lawsuit – do not require the trial court to

7
The factors, set forth in Indiana Professional Conduct Rule 1.5(a), include:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite
to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

17
consider a litigant’s personal financial circumstances. As a corollary, however, the trial court

is not prohibited from considering those circumstances. Here, too, although the trial court

did not explicitly so state, Holland’s depositions reveal that the same attorney in this case had

been involved in opposing Holland’s quiet title claim in the Holland v. Manufacturers and

Traders Trust Co. case. In that matter, which involved similar discovery, legal research, and

defenses, Holland had been ordered to pay $10,531.27 in attorney’s fees.

We also observe that the Bank was partially responsible for the generating of legal

fees. For several years, the Bank failed to take responsibility for the upkeep of the vacant

property as neighbors searched for a remedy to their plight. While the Bank wishes to enjoy

the benefits of ownership (including the right to exclude persons and claim trespass) and now

asserts that $9,983.31 is a reasonable fee to defend its title to 5088 W. 17th Avenue, the Bank

failed to timely assume the duties of ownership of valuable real property. The Bank did not

promptly record its deed, upkeep its property, or initially pay real estate taxes in its own

name. Indeed, it appears that the Bank wholly disclaimed any liability for the condition of

the property and its impact on the surrounding neighborhood. As such, the Bank has not

demonstrated an abuse of discretion on the part of the trial court in its award of partial

attorney’s fees.

Pursuant to Indiana Appellate Rule 66(E), the Bank asks this Court to order Holland

to pay the Bank for its attorney fees in contesting this appeal. “The Court may assess

damages if an appeal … is frivolous or in bad faith. Damages shall be in the Court’s

discretion and may include attorneys’ fees. The Court shall remand the case for execution.”

18
Ind. Appellate Rule 66(E). Our discretion “is limited to instances ‘when an appeal is

permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

delay.’” Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001) (quoting Orr

v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987)).

In general, we are cautious to award attorney fees because of the potentially chilling

effect the award may have upon the exercise of the right to appeal. Knowledge A-Z, Inc.,

891 N.E.2d at 586. In light of this general principle, and the Bank’s role in the events giving

rise to litigation, we decline to award appellate attorney’s fees to the Bank.

Conclusion

Holland has not demonstrated an abuse of discretion by the trial court with respect to

his motion for a default judgment or the Bank’s motion for a continuance. The trial court

properly denied Holland summary judgment on his quiet title claim, and properly granted

summary judgment to the Bank on its trespass and slander of title claims. The trial court

properly found that Holland had filed a frivolous lawsuit, and that the Bank was entitled to

attorney’s fees. The amount of attorney’s fees awarded was within the trial court’s

discretion. Finally, we decline to award appellate attorney’s fees.

Affirmed.

BAKER, J., and DARDEN, J., concur.

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