Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and The Common Council of the City of Logansport

Mar 02 2015, 9:48 am

ATTORNEY FOR APPELLANT ATTORNEY FOR THE COMMON
Jim Brugh COUNCIL OF LOGANSPORT
Logansport, Indiana John R. Molitor
Indianapolis, Indiana
ATTORNEY FOR TED FRANKLIN,
MAYOR OF THE CITY OF
LOGANSPORT
Mark J. Crandley
Barnes & Thornburg, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Julie Kitchell, March 2, 2015

Appellant-Plaintiff, Court of Appeals Case No.
09A02-1405-PL-369
v. Appeal from the Cass Superior Court
The Honorable Rick A. Maughmer, Judge
Ted Franklin, as the Mayor of the Case No. 09D02-1303-PL-11
City of Logansport, and The
Common Council of the City of
Logansport,
Appellees-Defendants

Vaidik, Chief Judge.

Case Summary
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[1] Julie Kitchell appeals the trial court’s award of attorneys’ fees to Logansport Mayor Ted

Franklin and the Common Council of the City of Logansport, challenging a number of

the trial court’s findings of fact and conclusions of law. We conclude first that the

findings and conclusions are not inherently suspect even though they were adopted

verbatim from the City’s proposed findings and conclusions; moreover, we find that

even if we were to eliminate entirely the findings of fact challenged by Kitchell, the

remaining findings would amply support the conclusion that her claim was

unreasonable and groundless. We also conclude that Kitchell’s characterization of this

case as a matter of “first impression” does not shield her from attorney-fee liability.

Therefore, finding that the trial court did not abuse its discretion in awarding attorneys’

fees, we affirm.

Facts and Procedural History
[2] The City of Logansport wished to replace its coal-powered electric facility with one that

used recycled solid waste to produce energy. To that end, the City began to explore the

possibility of entering into a public-private partnership under Indiana’s Public-Private

Agreements Act (the PPA Act), Indiana Code sections 5-23-1-1 through 5-23-7-2, with a

provider that could “construct, operate, and maintain a public facility and transfer it

back to City at a future date.” Kitchell v. Franklin, 997 N.E.2d 1020 (Ind. 2013).1

Indiana Code section 5-23-1-1 applies to, among other entities, “[a] political subdivision

1
For our facts and procedural history, we rely heavily on our Supreme Court’s decision on the merits of this case. The
Supreme Court heard oral argument in this case on September 5, 2013.
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 in a county where . . . the legislative body of the political subdivision . . . adopts the

provisions of this article by resolution or ordinance.” See Ind. Code § 5-23-1-1(3)(a).

[3] In November 2012 the City issued a request for proposals (RFP) seeking providers to

enter into such a partnership. After considering proposals submitted by six vendors, the

Utility Service Board recommended at a public hearing that the City execute a

memorandum of understanding with Pyrolyzer, LLC. The Logansport Common

Council accepted the Board’s recommendation and passed Ordinance No. 2013-07

authorizing the mayor to enter into a memorandum of understanding and negotiate an

agreement with Pyrolyzer. At the same time, the Council passed Resolution No. 2013-

08, formally adopting the PPA Act under Indiana Code section 5-23-1-1 and ratifying

the issuance of the RFP and all other acts performed in accordance with the PPA Act.

[4] In March 2013 Logansport resident Julie Kitchell filed a petition against Mayor

Franklin and the Logansport Common Council, seeking a declaration that Ordinance

No. 2013-07 was invalid. Specifically, Kitchell argued that the City did not have the

authority to pass the Ordinance because under Indiana Code section 5-23-1-1 the City

was required first to adopt the provisions of the PPA Act by resolution or ordinance and

only after doing that would the City be authorized to publish an RFP. Appellant’s App.

p. 23-24.

[5] Mayor Franklin filed a motion to dismiss, motion to expedite, and motion for award of

attorneys’ fees and costs; shortly thereafter, the City joined in Mayor Franklin’s motion

to dismiss. The trial court granted the motion to dismiss, finding that Kitchell had failed

to state a claim upon which relief could be granted, but the trial court did not address

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 the motion for award of attorneys’ fees. Mayor Ted Franklin and the City (now

collectively, the City) filed a renewed motion for an award of attorneys’ fees and costs

and a motion for hearing. Attached to this motion were the following: a March 2013

letter from the Mayor to Kitchell, offering to waive the demand for attorneys’ fees if

Kitchell would dismiss her complaint, asserting that there was “no basis in law or fact

for the allegations made in the complaint[,]” Appellant’s App. p. 82, and an April 2013

newspaper article entitled “Judge dismisses suit against mayor, council,” in which

Kitchell is quoted as follows:

“The mayor’s comment at a recent city council meeting that he doesn’t expect
Duke [Energy] to approach the city to renegotiate demonstrates that he neither
cares about utility rates that will be escalating the next four years or that he
understands the issue that has been raised,” Kitchell stated. “It may only signal
that he is more concerned with working on a public/private partnership once he
leaves office, which would explain his motivations.”
Id. at 84.
[6] Kitchell filed a notice of appeal, followed by a statement in opposition to the City

regarding costs. The City filed a response to Kitchell’s statement, writing in relevant

part as follows:

The City respectfully wishes to renew its earlier requests that the Court grant the
City a hearing on the matter of its entitlement to attorneys’ fees and costs.
However, in recognition that the Court had previously scheduled a hearing in
response to the City’s April 16 Motion (for June 11, 2013) and then cancelled
that hearing after learning that [Kitchell] had filed her notice of appeal (on May
7, 2013), the City hereby defers, for the time being, making a request that the
Court reschedule that hearing. Instead, the City would ask that the Court wait
for the time being and then promptly reschedule that hearing after the appeal
filed by [Kitchell] is duly resolved by the appellate courts.
Appellant’s App. p. 107.

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[7] The City filed a verified motion to transfer jurisdiction to the Supreme Court under

Appellate Rule 56(A), which that Court granted. In Kitchell’s appellate brief to the

Supreme Court, she again argued that “[l]egislation enabling a city to use the statutory

Public-Private Agreement Law must come first; any RFPs, negotiations, or legislation

must follow[]” and “the Ordinance is invalid because the City failed to take the

mandatory first step in the multi-step procedure.” Kitchell, 997 N.E.2d at 1025 (citing

Appellant’s Br. to Supreme Court p. 18, 13-14). Kitchell further argued as follows:

It is not unusual for state legislatures, especially in the non[-]home[-] rule states,
to provide that a statute expressed in terms of general application shall take
effect in each local government only upon its acceptance by such entity, or by
the governing body thereof. A vote of the designated body accepting the
legislation for any particular local government is thus made a condition
precedent to any effectiveness of the statute in that locality.
Id. at 1026 (quoting Appellant’s Br. p. 14, which cites Antieau On Local Government Law §

25.21[1] (2d ed. 2012)).

[8] The Supreme Court found no merit in Kitchell’s argument, noting that Indiana is a

home-rule state, and as such must comply with the home-rule statute that provides in

relevant part “[i]f there is a constitutional or statutory provision requiring a specific

manner for exercising a power, a unit wanting to exercise that power must do so in that

manner.” Id. (quoting Ind. Code § 36-1-3-6). Thus, the Court continued, “[t]he

question in this case is whether ‘the specific manner’ required before a City may exercise

the power to enter into a public-private agreement includes a sequencing requirement.

We think not.” Id. The Court continued:

It is certainly the case [that] the legislature has set forth particular procedures
that must be followed in order that a political subdivision may enter into a

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 contract under the [PPA] Act. For example, the RFP must contain certain
language, offerors must be treated fairly and equally, and a public hearing must
be held and notice of such hearing must be published in a particular way and
contain particular language. I.C. §§ 5-23-5-2, -5, -9. But nowhere does the
[PPA] Act require a political subdivision to “adopt” the [PPA] Act before taking
any further action consistent with the [PPA] Act. A reading of the [PPA] Act as
a whole indicates that it is designed to promote economic development which is
executed in way that is transparent and open to public input and scrutiny. The
record before us reflects that the City complied with the [PPA] Act in every
particular. Viewing the pleadings in the light most favorable to Kitchell, and
with every inference construed in her favor, we conclude that as a matter of law
Kitchell is not entitled to relief. Thus the trial court properly granted the City’s
motion to dismiss for failure to state a claim upon which relief can be granted.
Id. at 1026-27.
[9] The Supreme Court affirmed the trial court’s judgment, but declined to award appellate

attorneys’ fees because the City “[made] no argument and cite[d] no authority that

would support such an award in these circumstances.” Id. at 1027.

[10] After the Supreme Court issued its opinion, the City filed its request for rescheduling the

cost hearing before the trial court. Kitchell filed her request for findings of fact and

conclusions of law together with her supplemental statement in opposition to the City

regarding costs. In May 2014 the trial court held a hearing on the City’s motion for

award of attorneys’ fees. At the hearing, the trial court admitted, over Kitchell’s hearsay

objection, the March 2013 letter from the Mayor to Kitchell and the April 2013

newspaper article.

[11] Following the hearing, both parties filed proposed findings of fact and conclusions of

law. The trial court entered judgment against Kitchell, adopting “verbatim” the City’s

extremely comprehensive, sixteen-page-long proposed findings, Appellant’s Br. p. 11,

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and awarding attorneys’ fees to the City in the amount of $24,235. The trial court’s

findings of fact and conclusions of law read in relevant part as follows:

FINDINGS OF FACT
*****
7. The Plaintiff’s challenge to the City’s multi-million dollar project rested on
the sequence in which the City enacted Ordinance and Resolution.
8. The Plaintiff made no substantive challenge to the City’s actions, cited no
personal injury to her, and alleged no wrongful misconduct on the part of the
government officials she sued.
9. Instead, she claimed the City passed the Ordinance and Resolution in the
wrong order.
10. The lawsuit was filed not for its stated purpose regarding the sequence of
legislative enactments. The motive for the lawsuit was the Plaintiff’s
disagreement with the legislative decision to proceed with the Project, a
policymaking choice made by the City’s officials who are elected to make such
decisions.
11. Essentially, the Plaintiff sought to veto the Project through the judicial
branch after she disagreed with the decision of the other, coordinate branches of
government, a point the Plaintiff did not dispute either in her filings with this
Court or during the May 2, 2014 hearing on the petition for attorney’s fees.
*****
CONCLUSIONS OF LAW
*****
6. The Plaintiff’s complaint was unreasonable, frivolous, and groundless
because it is based on two fallacies that any lawyer could and should have
recognized prior to filing this lawsuit.
I. The “Condition Precedent” Fallacy
7. The Plaintiff’s primary argument in her case was that the statutes governing
public-private agreements (the “PPA Statutes”) required the City to adopt the
PPA Statutes into the City’s local law before it took any other action to create a
public-private agreement.
8. Boiled to its essence, the lawsuit sought to strip the City of its prerogative to
pursue a multi-million dollar public-private agreement simply because, in the
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 Plaintiff’s opinion, the Resolution should have been enacted before the
Ordinance.
9. The PPA Statutes say absolutely nothing about the timing of when a
municipality may incorporate the PPA Statutes into local law. [citation omitted]
...
*****
11. Simply reading the statute should have demonstrated to the Plaintiff that
she had no claim based on the sequence on which the Ordinance and the
Resolution were passed.
*****
21. Because nothing in the PPA Statutes could possibly be construed as
controlling the sequence of when the Ordinance and Resolution were passed,
the Plaintiff’s claim seeking to impose such a requirement was groundless,
frivolous, unreasonable and in bad faith.
*****
II. The Ratification Fallacy
*****
28. Indiana cities have the power to “ratify any action of the unit or its officers
or employees if that action could have been approved in advance.” Ind. Code §
36-1-4-16.
*****
35. Simply reading the ratification statute should have prevented the Plaintiff
from filing her lawsuit but she proceeded anyway. Her decision to do so was
frivolous, unreasonable, groundless and in bad faith.
Appellant’s App. p. 7-19 (formatting altered).

[12] The findings and conclusions also listed “five other indicia demonstrating that [Kitchell]

proceeded in bad faith in this matter,” including citing a vacated Court of Appeals

opinion as a Supreme Court opinion; “continually fail[ing] to meaningfully distinguish

recent Indiana authority under the Home Rule Act,” “publicly declar[ing] an animus

toward the City and its officials,” and relying on irrelevant, repealed zoning statutes. Id.

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 at 19-19(a). The findings regarding bad faith relied in part on the April 2013 newspaper

article quoting Kitchell.

[13] Kitchell now appeals.

Discussion and Decision
[14] Kitchell presents one issue for our consideration: whether the trial court abused its

discretion in awarding trial-level attorneys’ fees. On appeal, the trial court’s decision to

award attorneys’ fees under this section is subject to a multi-level review: the 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. Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 843 (Ind. 2012). Finally, the trial court’s

decision to award attorneys’ 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.

[15] The trial court awarded attorneys’ fees to the City after finding that Kitchell’s claim was

unreasonable, frivolous, groundless, and in bad faith. See Appellant’s App. p. 21.

Indiana Code section 34-52-1-1(b)(1), (3) provides: “In 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: [] brought the action . . . on a claim . . . that is frivolous, unreasonable, or

groundless; . . . [or] litigated . . . in bad faith.” Broadly stated, the attorney-fee statute

strikes a balance between respect for an attorney’s duty of zealous advocacy and “the

important policy of discouraging unnecessary and unwarranted litigation.” Mitchell v.
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 Mitchell, 695 N.E.2d 920, 924 (Ind. 1998) (quoting Kahn v. Cundiff, 533 N.E.2d 164, 170

(Ind. Ct. App. 1989), aff’d and adopted by 543 N.E.2d 627 (Ind. 1989)). Subsection (b)(1)

of the statute focuses on the legal and factual basis of the claim and the arguments

supporting the claim. Id.

[16] A claim 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. W. Boggs

Sewer Dist., Inc., 980 N.E.2d 363, 383 (Ind. Ct. App. 2012), reh’g denied, trans. denied. A

claim is “unreasonable” if, based on 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 that

support the legal claim relied on and presented by the losing party. Id. However, the

law is settled that a claim is neither groundless nor frivolous merely because a party

loses on the merits. N. Elec. Co., Inc. v. Torma, 819 N.E.2d 417, 431 (Ind. Ct. App. 2004),

reh’g denied, trans. denied. Bad faith is demonstrated where the party presenting the claim

is affirmatively operating with furtive design or ill will. Wagler, 980 N.E.2d at 383.

[17] As a general matter, Kitchell contends first that the trial court’s findings of fact and

conclusions of law as a whole are “suspect” because they are a verbatim adoption of the

City’s proposed findings. As support, Kitchell cites Cook v. Whitsell-Sherman, 796

N.E.2d 271, 273 n.1 (Ind. 2003), in which the Supreme Court wrote as follows:

The trial court made these findings by accepting verbatim Whitsell-Sherman’s
proposed findings of fact. This practice weakens our confidence as an appellate
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 court that the findings are the result of considered judgment by the trial court.
Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001). Here, the adoption of the
proposed findings was not by an entry that recited the findings. Rather, it was by a one-
line order reciting in relevant part, “Findings of fact and conclusions of law approved as
per order.” This practice leaves us with an even lower level of confidence that all
findings reflect the independent evaluation by the trial court.
Id. (emphasis added). As seen from the above-quoted text, Cook does not stand for the

proposition that findings of fact and conclusions of law adopted verbatim are inherently

suspect; instead, the case calls attention to the fact that the trial court in that case merely

“approved as per order” the party’s submitted findings and conclusions. See id.

[18] Indeed, in the case cited in the Cook opinion, Prowell v. State, the Court expanded on the

practice of adopting a party’s findings:

It is not uncommon for a trial court to enter findings that are verbatim
reproductions of submissions by the prevailing party. The trial courts of this
state are faced with an enormous volume of cases and few have the law clerks
and other resources that would be available in a more perfect world to help craft
more elegant trial court findings and legal reasoning. We recognize that the
need to keep the docket moving is properly a high priority of our trial bench.
For this reason, we do not prohibit the practice of adopting a party’s proposed
findings. But when this occurs, there is an inevitable erosion of the confidence
of an appellate court that the findings reflect the considered judgment of the trial
court.
Prowell, 741 N.E.2d at 708-09. In In re Marriage of Nickels, 834 N.E.2d 1091, 1096 (Ind.

Ct. App. 2005), this Court wrote: “[A]lthough we by no means encourage the wholesale

adoption of a party’s proposed findings and conclusions, the critical inquiry is whether

such findings, as adopted by the court, are clearly erroneous.” We agree. While we

acknowledge that the verbatim adoption of a party’s findings and conclusions leaves us

with a lower level of confidence that the findings reflect the independent judgment of the

trial court, we nonetheless decline to find that the trial court’s findings of fact and
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 conclusions of law in this case are inherently suspect because they are verbatim

reproductions of the City’s submission. See Cook, 796 N.E.2d at 273 n.1; see also Prowell,

741 N.E.2d at 708.

[19] Kitchell also challenges numerous specific findings of fact and conclusions of law. As to

the findings of fact, Kitchell objects first to the trial court’s admission of the April 2013

newspaper article. Second, Kitchell disputes the findings regarding her alleged true

motive in bringing this lawsuit; in particular, that Kitchell sought to “stop the City in its

efforts to modernize its power plant” (Paragraph 1), “sought to veto the Project”

(Paragraph 11), and that “[t]he lawsuit was filed not for its stated purpose regarding the

sequence of legislative enactments” (Paragraph 10). Appellant’s Br. p. 13-14. Third,

Kitchell disputes that she was making a “challenge to the City’s multi-million dollar

project” (Paragraph 7) because there is “no evidence in the record that the City had a

project worth one dollar, let alone a multi-million dollar project.” Id. at 14. Fourth,

Kitchell challenges the trial court’s finding that she “made no substantive challenge to

the City’s actions, cited no personal injury to her, and alleged no wrongful conduct on

the part of the government officials she sued” (Paragraph 8). Id. Fifth, Kitchell disputes

two findings regarding her presence at the hearing and decision not to testify or call

witnesses (Paragraphs 12 and 22). Finally, Kitchell asserts that Paragraphs 26-412 “are

not findings of fact. The findings extol the professional practices of the City’s counsel

2
Paragraphs 26-41 of the findings of fact outline in detail the legal education, areas of practice, and qualifications of the
City’s attorneys, presumably to support the amount of attorneys’ fees requested.
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 [Mark J.] Crandley and [John R.] Molitor, while depicting (without naming) counsel

[Jim] Brugh as the ‘unreasonable man.’” Id. at 16-17.

[20] Kitchell also challenges three of the conclusions of law, arguing that they are

unsupported by the evidence. See id. at 17. Essentially, Kitchell takes umbrage at the

trial court’s use of the term “fallacies” in Paragraph 6, and at being characterized as

“unreasonable” in Paragraphs 19 and 32. See id. at 18 (“There is no legal definition of

‘fallacy.’ . . . That term is demeaning and argumentative.”), 17 (“[T]he trial court should

not clothe findings with the imprimatur of judicial approval when they are used to

exaggerate the City’s attorneys’ expertise and denigrate Kitchell’s attorney; that is, that

he is not a reasonable man. That is, he pursued two ‘fallacies.’”).

[21] Both the first and second of Kitchell’s challenges to the findings of fact—that the

newspaper article was improperly admitted hearsay, and that the findings regarding

Kitchell’s alleged true motive in bringing the lawsuit were unsupported by evidence—go

to the issue of “bad faith.” Bad faith is demonstrated where the party presenting the

claim is affirmatively operating with furtive design or ill will. Wagler, 980 N.E.2d at

383. 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).3

3
Because we do not reach the issue of bad faith, we also do not reach the issue of whether the April 2013 newspaper
article was improperly admitted by the trial court.
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[22] Moreover, we find that even if we disregard entirely each of the findings Kitchell

challenges, the remaining, unchallenged findings still amply support the conclusion that

Kitchell’s claim was (at least) unreasonable and groundless. See Wagler, 980 N.E.2d at

383. Thus, we do not need to analyze the remaining challenged findings individually.

As to the three conclusions of law Kitchell challenges, we find that they are supported

by the evidence. Paragraph 6 of the conclusions of law reads as follows: “The Plaintiff’s

complaint was unreasonable, frivolous, and groundless because it is based on two

fallacies that any lawyer could and should have recognized prior to filing this lawsuit.”

Appellant’s App. p. 14. The evidence supports the conclusion that Kitchell’s complaint

was unreasonable and groundless and arguably frivolous, and we do not find that it was

erroneous—let alone “demeaning and argumentative,” as Kitchell asserts, Appellant’s

Br. p. 18—to characterize Kitchell’s arguments in this matter as “fallacies.” “Fallacy” is

defined as “[a]ny unsound, and usu[ally] deceptive, argument or inference. . . . The

presence of a fallacy in a legal argument is a defect . . . in the legal reasoning.” Black’s

Law Dictionary 718 (10th ed. 2014). “Unsound” means “not valid or well founded.” Id.

at 1772. The term “fallacies” accurately captures the nature of Kitchell’s legal

arguments in this matter: while it does not appear that they were deceptive, they were

unsound and defective.

[23] Kitchell also complains about being characterized as “unreasonable” by the trial court.

Specifically, the trial court in Paragraph 19 wrote, “Because Indiana is a home rule

state, it would be obvious to any reasonable attorney that this language [from Antieau’s

treatise] offered no support to the Plaintiff’s position[,]” Appellant’s App. p. 17, and in

Paragraph 32 the trial court wrote, “No reasonable person would believe the ratification

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 to be ineffective or that the Plaintiff could assert a claim.” Id. at 19. Under Indiana law,

a claim is “unreasonable” if “no reasonable attorney would consider the claim justified

or worthy of litigation.” See I.C. § 34-52-1-1; see also Wagler, 980 N.E.2d at 383.

Therefore, it makes sense that the trial court would use the same language in concluding

that the claim was, indeed, unreasonable. We also find adequate support for the

conclusion in Paragraph 32—that “no reasonable person” would believe there was a

valid claim on the ratification issue—in light of Indiana Code section 36-1-4-16, the

statute explicitly authorizing ratification of any action. See I.C. § 36-1-4-16 (“A unit may

ratify any action of the unit or its officers or employees if that action could have been

approved in advance.”). Therefore, we find that the evidence supports the three

conclusions of law challenged by Kitchell.

[24] As a final matter, we find no merit in Kitchell’s claim that she is shielded from the

attorney-fee statute because she characterizes this case as a matter of first impression. In

support of this claim, Kitchell cites In re Visitation of A.R., in which this Court wrote as

follows:

[W]e 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.
723 N.E.2d 476, 480 (Ind. Ct. App. 2000) (internal citations omitted).

[25] In response to this argument, the City disputes the applicability of that case and the

notion that this is a case of first impression at all, in light of the “wholly unsupported

theories” that formed the basis of Kitchell’s claims. Appellee’s Br. p. 22. When

reviewing an award of attorneys’ fees, this Court must remain cognizant of the fine
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 balance between respect for an attorney’s duty of zealous advocacy and “the important

policy of discouraging unnecessary and unwarranted litigation.” See Kahn, 533 N.E.2d

at 170. And indeed, there is support for refraining from awarding attorneys’ fees in

order to avoid a chilling effect in legitimate cases of first impression, even in cases where

“rudimentary legal reasoning” would have led a person to believe the Indiana courts

probably would rule against the person raising the claim. A.R., 723 N.E.2d at 480. But

in this case, for the reasons discussed above, there was no possibility that Kitchell’s

claim would prevail. As stated by the City, “An entirely frivolous argument is not a

question of first impression. It is not a question at all.” Appellee’s Br. p. 22.

[26] In light of the foregoing, we cannot say the trial court abused its discretion in awarding

attorneys’ fees in this matter.4

Affirmed.

Baker, J. and Riley, J., concur.

4
We do not review the amount of the award because Kitchell only challenges the decision to award fees, not the
amount.
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