Julie R. Waterfield v. Richard D. Waterfield

FILED
Sep 09 2016, 8:29 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Eric E. Snouffer Larry A. Mackey
Snouffer & Snouffer Mark J. Crandley
Fort Wayne, Indiana Barnes & Thornburg LLP
Indianapolis, Indiana
Daniel Sigler
Sigler Law LLC
Fort Wayne, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Julie R. Waterfield, September 9, 2016
Appellant-Plaintiff/Counter Defendant, Court of Appeals Case No.
92A03-1511-PL-1968
v. Appeal from the Whitley Superior
Court
Richard D. Waterfield, The Honorable Douglas M. Fahl,
Appellee-Defendant/Counter-Plaintiff. Judge
Trial Court Cause No.
92D01-0311-PL-232

Riley, Judge.

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 STATEMENT OF THE CASE

[1] Appellant-Plaintiff/Counter-Defendant, Julie R. Waterfield (Julie), appeals the trial

court’s order denying her request to set aside the divorce decree entered in 1997

based on the allegation of fraud committed by Appellee-Defendant/Counter-

Plaintiff, Richard D. Waterfield (Richard), while negotiating a settlement leading to

the dissolution of the marriage. 1

[2] We affirm.

ISSUES

[3] Julie raises seven issues on appeal, which we consolidate and restate as the following

four issues:

(1) Whether the trial court properly denied Julie’s attempt to set aside the

Settlement Agreement she entered into based on fraud;

(2) Whether the trial court erred when it denied Julie’s motion for summary

judgment on Richard’s counterclaim for abuse of process;

(3) Whether the trial court properly sanctioned Julie for violating her court-

ordered discovery obligations; and

1
Even though the confidential filings were voluminous in this case, we have endeavored to maintain confidentiality
on appeal where appropriate. But an appellate judicial opinion that both decides the case and articulates the law
requires consideration of the underlying facts. Thus, we have included a number of facts derived from confidential
records in this opinion because we deem such information to be essential to the resolution of the litigation and
appropriate to further the establishment of precedent and the development of the law. See Drake v. Dickey, 2 N.E.3d
30, 32 (Ind. Ct. App. 2013, aff’d, 12 N.E.3d 875 (Ind. 2014).
Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 2 of 37
 (4) Whether the trial court properly granted Richard an award of attorney fees.

FACTS AND PROCEDURAL HISTORY

[4] Julie and Richard were married in 1968. After 29 years of marriage, Julie filed for a

decree of dissolution on May 19, 1997. On August 25, 1997, without taking any

discovery, Julie commenced settlement negotiations with an opening offer of $25

million in cash, unstructured. Meanwhile, Richard had provided Julie with an

informal preliminary spreadsheet (the Disclosure Statement), enumerating the

property that Richard assumed to be part of the marital estate. A final version of the

Disclosure Statement was served on Julie on September 22, 1997. On October 9,

1997, and upon the expiration of her offer to settle, Julie served an initial discovery

request on Richard, seeking information about the assets in the marital estate and

their corresponding value. While Julie’s counsel served the discovery, the parties

continued their settlement discussions. Simultaneously with seeking a settlement,

Julie’s counsel advised Julie not to settle without conducting detailed discovery into

the marital estate. On three separate occasions, Julie’s counsel warned her that

“based upon what [Richard] has condescended to disclose to us, it is clear that you

want to agree to substantially less than what the [c]ourt would grant you.”

(Appellant’s App. p. 568).

[5] Despite her attorney’s warnings and cautions, Julie chose to settle the dissolution

and entered into a settlement agreement (Settlement Agreement), in which Richard

agreed to provide Julie $20 million in assets, consisting of $19,477,000 in cash and a

lake cottage on Clear Lake, near Fremont, Indiana. The divorce decree was entered

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 on December 22, 1997, and incorporated the Disclosure Statement and the

Settlement Agreement. The Settlement Agreement provided that “[t]he parties agree

that the value and components of the [m]arital [e]state have previously been

discussed by them. The parties further agree that they have had the opportunity to

confer with separate counsel regarding the value and components of the [m]arital

[e]state, and the agreed-upon division of the [m]arital [e]state.” (Appellant’s App. p.

182). A handwritten annotation to this paragraph further elaborates that “[Richard]

represents that he has disclosed to [Julie] his material assets (including property

owned jointly with [Julie]) that he owned on 5-19-97 and his material liabilities on

such date.” (Appellant’s App. p. 182). On January 28, 1998, roughly a month after

the dissolution, Julie consulted with her attorney and expressed her regret to have

entered into the Settlement Agreement without full disclosure or discovery.

[6] On July 12, 2003, almost six years after the dissolution of her marriage, Julie filed a

Complaint, asserting that the Disclosure Statement provided by Richard had

undervalued assets in the marital estate and failed to identify and include others. In

her Complaint, she sought to set aside the Settlement Agreement and dissolution of

marriage decree, essentially claiming that Richard had committed fraud to the value

of $80 million. On March 1, 2004, Richard filed a counterclaim for abuse of process

and for statutory attorney fees. On July 8, 2005, Richard moved for partial summary

judgment on whether Julie could assert a fraud claim based on Richard’s alleged

misstatement on the value of the marital assets. On March 16, 2006, the trial court

granted the motion for partial summary judgment as to all of Julie’s claims based on

the valuation of assets. In its order, the trial court found, in part, as follows:

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 Valuation is an issue of opinion that must be developed as part of a
litigant’s case and can be subject to contrary arguments during a
lawsuit. The undisputed facts show that [Julie] did not use the tools of
discovery, did not retain experts or have the marital assets valued for
herself. Instead she settled the dissolution proceeding without
exploring what the value of the marital assets were or developing her
own case as to the value of those assets.

(Appellant’s App. p. 54).

[7] During these proceedings, Julie made multiple allegations regarding her knowledge

of the marital assets and their corresponding values in settling her divorce.

Specifically, she alleged that Richard had deprived her of all assets and liabilities of

the parties’ marital estate, maintaining exclusive control thereof, as well as being

dependent on Richard’s representations. To defend against these claims, Richard

sought access to the entire file of Julie’s divorce counsel. Julie objected based on

privilege grounds. After protracted litigation, the trial court ultimately found a

partial waiver of the privilege and allowed Richard to access seven documents from

Julie’s divorce attorney’s file. On March 31, 2009, Richard filed his motion for

summary judgment. After a hearing, the trial court entered summary judgment in

favor of Richard on all of Julie’s claims.

[8] On December 3, 2012, Julie moved for summary judgment on Richard’s

counterclaim for abuse of process and for statutory attorney fees, which was

subsequently denied by the trial court on October 2, 2013. On February 28, 2014,

Julie requested certain documents from Richard related to his claim for attorney fees.

In turn, on June 17, 2014, Richard served Julie with a discovery request, seeking

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 information as to when Julie’s attorney reviewed the file of her divorce counsel, as

well as the fees and rates charged by Julie’s lawyer. When Julie objected to the

discovery, Richard moved to compel Julie’s response on September 25, 2014, which

was granted by the trial court on October 24, 2014. The trial court ordered Julie to

provide responses to Richard’s discovery within ten days, or by November 3, 2014.

On that day, Julie served discovery responses, reiterating that she continued her

objections to much of the discovery. Three days later, on November 6, 2014, Julie

sought reconsideration of the discovery order, which was subsequently denied on

November 26, 2014.

[9] On November 10, 2014, Richard moved for a default judgment as a discovery

sanction due to Julie’s non-production of the requested discovery and failure to

diligently litigate the case. Nine days later, Julie filed her response to Richard’s

motion for sanctions, again repeating the objections already rejected by the trial court

and asserting:

She is not in a position to contest the reasonableness of [Richard’s]
attorney fees. That is not to say that [Julie] is admitting that fees are
owed in any way or that the disclosed fees are admissible at trial.
Only that [Julie] is not in a position to dispute the reasonableness of
the disclosed fees during a trial in this matter.

(Appellant’s App. p. 1800).

[10] On December 2, 2014, the trial court heard argument on the motion for sanctions,

including the sanction of default. Despite the November 3, 2014 deadline, Julie still

had not complied with the order compelling responses to the counterclaim discovery

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 at the time of the hearing. Thus, Richard expressly asked the trial court to grant the

requested relief of a default judgment against Julie. At the close of the evidence, the

trial court took Richard’s request under advisement.

[11] Two days after the hearing, on December 4, 2014, Julie’s attorney commenced to

compile documents responsive to Richard’s counterclaim discovery request. On

December 29, 2014, Richard filed a notice with the trial court, notifying it of the

status on the outstanding discovery requests. At that point, Richard had still not

received complete discovery requests. On January 5, 2015, Richard again filed an

updated notice regarding Julie’s discovery responses with the trial court. The notice

indicated that although Julie had provided some additional documents, she remained

in noncompliance in many respects.

[12] On January 14, 2015, the trial court entered a default judgment as a discovery

sanction against Julie. The trial court found that Julie had engaged in a “repetitive

pattern” of disregarding the trial court’s discovery orders and her discovery

obligations. (Appellant’s App. p. 125). While the trial court opined that Julie had

been “given every opportunity to comply with the [c]ourt’s Order compelling

discovery,” the court concluded that Julie had “failed to comply with said Order.”

(Appellant’s App. p. 125). As such, allowing Julie even more time to satisfy her

obligations “would be fruitless and result only in further stalling and delay.”

(Appellant’s App. p. 126).

[13] Because the default judgment established liability on Richard’s counterclaim for

attorney fees, Richard petitioned the trial court for an award on March 5, 2015. Julie

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 responded to this petition on June 24, 2015, and informed the trial court, for the first

time, that she was prevented from responding to the counterclaim discovery due to

an illness of her attorney and acknowledged that she still had not complied with the

trial court’s order compelling discovery. In his affidavit, Julie’s attorney affirmed

that he had begun gathering documents responsive to the counterclaim discovery on

December 4, 2014. However, on December 14, 2014, he became incapacitated to the

extent that he had to be admitted to the hospital. Julie’s attorney acknowledged that

while “the total fees produced” by Julie from December 1, 2001 till November 21,

2014 amounted to “. . . approximately $3[.]659 million. The actual amount billed . .

. was considerably higher.” (Appellant’s App. p. 2002). On October 23, 2015, the

trial court awarded Richard attorney fees in the amount of $842,021.

[14] Julie now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[15] Almost twenty years after the dissolution of her marriage to Richard, Julie appeals to

this court in an effort to re-open the Settlement Agreement underlying the divorce

decree. Claiming to have been the victim of fraud, Julie maintains that Richard

misrepresented both the composition and value of the assets in the marital estate.

Specifically, she asserts that by exploiting her trust, Richard induced Julie “to accept

a divorce settlement that was more than $80,000,000 below that to which she was

entitled.” (Appellant’s Br. p. 15). Within this overarching fraud allegation, Julie

also disputes the trial court’s summary judgment rulings on her claims with respect

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 to attorney-client communications and the default judgment on Richard’s

counterclaims.

I. Fraud

[16] Indiana encourages settlement agreements to “promote the amicable settlements of

dissolution-related disputes,” on the expectation that “freedom of contract will . . . .

produce mutually acceptable accords, to which parties will voluntarily adhere.” Pohl

v. Pohl, 15 N.E.3d 1006, 1010 (Ind. 2014) (quoting Voight v. Voight, 670 N.E.2d 1271,

1277-78 (Ind. 1996)). A property settlement that is incorporated into a final divorce

decree is considered a binding contract, and the dissolution court may not modify

that settlement absent fraud, duress, or undue influence. Rothschild v. Devos, 757

N.E.2d 219, 223 (Ind. Ct. App. 2001). Because there is a strong presumption of

enforceability of contracts that represent the freely bargained agreement of the

parties, Indiana courts have not hesitated to enforce a divorce settlement agreement

that would have been in excess of the divorce court’s authority had it been crafted by

the divorce court and that was shown to be, over time, grossly inequitable. Pond v.

Pond, 700 N.E.2d 1130, 1136 (Ind. 1998). The interpretation of such an agreement,

as with any other contract, presents a question of law and is reviewed de novo. Bailey

v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008). Although a court is not bound to

accept every proffered settlement, “[i]n reviewing a settlement agreement, a court

should concern itself only with fraud, duress, and other imperfections of consent, or

with manifest inequities, particularly those deriving from great disparities in

bargaining power.” Voight, 670 N.E.2d at 1278. However, “the power to disapprove

a settlement agreement must be exercised with great restraint. A trial judge should
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 not reject such agreements just because she believes she could draft a better one.” Id.

at 1277.

[17] Here, Julie is attempting to set aside the Settlement Agreement by contending that

fraud occurred pursuant to Indiana Trial Rule 60(B) during the negotiations which

culminated in the Settlement Agreement. We review the grant or denial of a Trial

Rule 60(B) motion for relief from judgment under an abuse of discretion standard.

Ross v. Bachkurinskiy, 770 N.E.2d 389, 392 (Ind. Ct. App. 2002). The trial court must

balance the need for an efficient judicial system with the judicial preference for

deciding disputes on the merits. Id. On appeal, we will not find an abuse of

discretion unless the trial court’s decision is clearly against the logic and effect of the

facts and circumstances before it or is contrary to law. Packer v. State, 777 N.E.2d

733, 738 (Ind. Ct. App. 2002), disapproved of on other grounds by Mosley v. State, 908

N.E.2d 599 (Ind. 2009). To meet the fraud requirement, Julie must show that “a

material representation of a past or existing fact was made which was untrue and

known to be untrue by the party making it, or else recklessly made, and that another

party did in fact rely on the representation and was induced thereby to act to his

detriment.” Plymale v. Upright, 419 N.E.2d 756, 760 (Ind. Ct. App. 1981).

[18] Julie’s fraud argument is essentially two-fold: first, she asserts that she did not rely

on the privileged communications with her divorce counsel, but secondly, she

maintains that she did rely on Richard’s misrepresentations of the value of certain

assets of the marital estate. Reliance upon a misrepresentation is a material element

of the cause of action in fraud. Id. Reliance consists of two distinct parts: the fact of

reliance and the right of reliance. Id. at 761. While the fact of reliance means that
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 the plaintiff actually relied on the misrepresentation, the right to rely is “more

difficult to determine.” Id. at 762. The right to rely “is bound up with the duty of

[an individual] to be diligent in safeguarding his interests.” Id. “The legal obligation

that a person exercise the common sense and judgment of which he is possessed is a

practical limitation on the actionability of various representations.” Id. Thus, “if a

party blindly trusts, where he should not, and closes his eyes, where ordinary

diligence requires him to see, he is willingly deceived and . . . cannot receive an

injury.” Pugh’s IGA, Inc. v. Super Food Services, Inc., 531 N.E.2d 1194, 1199 (Ind. Ct.

App. 1988) (quoting Frenzel v. Miller, 37 Ind. 1, 17 (Ind. 1871)), reh’g denied, trans.

denied.

A. Privileged Communications

[19] As a basis for her fraud allegation, Julie takes the position that she was ignorant of

her rights and responsibilities in choosing to settle the divorce proceedings. She

maintains that, despite the tools of civil discovery available to her, she stood in an

inferior position to Richard with respect to the composition and value of the marital

estate and had no cause, reason, nor avenue to independently discover or value the

estate. Therefore, as a result, she relied exclusively on Richard’s representations as

memorialized in the Discovery Statement. In an attempt to prevent protracted

litigation in a decade old dissolution decree, Richard sought the disclosure of Julie’s

divorce counsel’s attorney-client communications purporting to show that Julie was

warned against settling the divorce before full disclosure was made of the assets of

the marital estate. Faced with Richard’s motion to compel the production of certain

documents of Julie’s divorce attorney’s file, the trial court opined that the requested
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 discovery was critical evidence relevant to Julie’s claim of reliance, ignorance, and

inferior position. Waiving the privilege over these documents, the trial court

recognized that these documents were the only source of information that could call

the veracity of Julie’s allegations into doubt.

1. Waiving the Privilege

[20] Julie now contends that the trial court erred in waiving the privileged nature of

certain documents with attorney-client communications. “The attorney-client

privilege is one of the oldest recognized privileges for confidential communications.

Purdue University v. Wartell, 5 N.E.3d 797, 806 (Ind. Ct. App. 2014). The privilege is

intended to encourage full and frank communication between attorneys and their

clients and thereby promote broader public interests in the observance of law and the

administration of justice. Id. “The privilege applies to all communication between

the client and his attorney for the purpose of obtaining professional legal advice or

aid regarding the client’s rights and liabilities.” Corll v. Edward D. Jones & Co., 646

N.E.2d 721, 724 (Ind. Ct. App. 1995).

The attorney-client privilege protects against judicially compelled
disclosure of confidential information regardless of whether the
information is to be disclosed by way of testimony or by court-ordered
compliance with a discovery request which a party has attempted to
resist. The harm to be prevented is not the manner in which the
confidence is revealed, but the revelation itself.

P.T. Buntin, M.D., P.C. v. Becker, 727 N.E.2d 734, 740 (Ind. Ct. App. 2000). “It is

well settled, however, that the confidential relationship of attorney and client is not

absolute for all purposes, but is a privilege which belongs to the client, and the client
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 alone, to claim or waive; and where the client himself testifies concerning the

privileged matter, he then waives the privilege.” Key v. State, 235 N.E.2d 175 (Ind.

1956). Accordingly, like most privileges, the attorney-client privilege may be

expressly or implicitly waived. Brown v. Edwards, 640 N.E.2d 401, 406 (Ind. Ct. App.

1994), trans. denied.

[21] In the absence of an express waiver of the attorney-client privilege by Julie, we turn

to whether Julie implicitly waived the confidentiality of her divorce attorney’s

communications. Concluding that Julie waived the privilege, the trial court relied on

Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533 (Colo. 1989), which it found to

be on all fours with the situation before us. In DiFede, the plaintiff filed a complaint

seeking to set aside a transfer of real property and change of beneficiary executed by

her ex-husband, while the defendant asserted the claims were barred by a separation

agreement the plaintiff had signed. Id. at 537-38. The plaintiff sought to rescind the

separation agreement, contending she had been fraudulently induced to sign it

because her then-husband’s attorney, Raymond Wilder, had misled her about the

enforceability of the agreement when she signed it. Id. at 538. The defendant

responded that the plaintiff’s reliance on the attorney’s statements was unreasonable

because she had met with another attorney, Jack Foutch, ten days after she signed

the agreement who “must have told her” the agreement was enforceable. Id. The

DiFede court held that plaintiff had waived the attorney-client privilege with respect

to her conversation with Foutch, explaining:

When she alleged that she reasonably relied on Raymond Wilder’s
incorrect statement of the law, [plaintiff] injected her knowledge or
lack of knowledge of the correct statement of the law as a crucial issue
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 relevant to her claim of fraud-in-the-inducement. Only Jack Foutch
and [plaintiff] know whether Jack Foutch disabused her of the
incorrect notion that the separation agreement was not immediately
enforeceable. It would be unfair for [plaintiff] to thrust her lack of
knowledge of the correct state of the law into the litigation by her
claim of fraudulent inducement while simultaneously retaining the
attorney-client privilege to frustrate attempts by [defendant] to prove
[her] knowledge of the correct state of the law and thereby negate the
very foundation necessary to prevail in [plaintiff’s] claim of fraudulent
inducement.

Id. at 544. In reaching this conclusion, the Colorado Supreme Court articulated a

three-prong test for establishing implied waiver. Id. at 543-44. First, the “assertion

of the privilege was the result of some affirmative act, such as filing suit, by the

asserting party.” Id. at 544. Second, “through this affirmative act, the asserting

party put the protected information at issue by making it relevant to the case.” Id.

And third, applying the “privilege would [deny] the opposing party access to

information vital to his defense.” Id.

[22] In her Complaint, Julie contended that she reasonably relied on Richard’s

representations of the composition and value of the assets in the marital estate. She

asserted that Richard

maintained exclusive control over, and made all decisions concerning,
the business activities involving the parties’ marital assets. [Richard]
also maintained all information regarding the assets and liabilities of
the parties’ marital assets, depriving Julie of any access to that
information. Therefore, as [Richard] intended, Julie was dependent
on [Richard’s] representations as to the extent and value of the parties’
marital assets in making her decision to enter into the [Settlement
Agreement].

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 (Appellant’s App. p. 155). In her answers to counterclaims, Julie claimed that she

“was never provided with an honest and complete explanation with regard to the

meaning, significance or consequence of the documents she was asked to sign by

[Richard], including the Settlement Agreement.” (Appellant’s App. p. 219). And in

her response to requests for admissions, when asked to admit that she could have

obtained an independent valuation, Julie asserted that she was not “given reason to,

or would have thought to ask for such.” (Appellant’s App. p. 1961).

[23] By Julie placing her complete and ultimate reliance on Richard’s representations at

the core of her fraud allegation, Richard sought to refute these claims by requesting

access to Julie’s divorce attorney’s file as these “communications with Julie are the

only source of the information regarding what [her divorce attorney] told her about

the marital estate, the process for discovery of it, and the settlement.” (Appellee’s Br.

p. 28). Julie objected, claiming that those communications were shielded by the

client-attorney privilege.

[24] Similar to the plaintiff in DiFede, when Julie alleged that she had relied exclusively

on Richard’s representations and Disclosure Statement, Julie injected her knowledge

or lack of knowledge of her alternatives and legal discovery tools as a crucial issue

relevant to her claim of fraud. Only Julie’s divorce attorney and Julie would know

whether her divorce counsel disabused her of the incorrect notion that she had no

other alternatives than to rely on Richard. Although Julie now contends that

Richard could have obtained this information through her deposition, Julie’s

argument simply changes the forum in which the privilege would have been raised.

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 Regardless of the discovery device, Julie would have continued to shield herself

behind the privileged nature of the attorney-client communication.

[25] Indiana courts have previously held that evidentiary privileges created “to shield

selected information from discovery . . . may not be wielded as swords at the will of a

party.” Madden v. Ind. Dept. of Transp., 832 N.E.2d 1122, 1128 (Ind. Ct. App. 2005).

In other words, “a party may not place an issue before the trier of fact and then assert

a privilege to prohibit the introduction of evidence regarding that issue.” Id. Julie

may not repeatedly testify to her alleged inferior standing, claim ignorance of the

right to conduct discovery and independent valuations, and use that testimony as a

sword against Richard while, at the same time, shielding Richard’s effort to obtain

evidence to the contrary by asserting the privilege. By repeatedly disclaiming her

divorce attorney’s influence and advice in the matter and stating that she only relied

upon Richard’s representation, Julie relinquished her right to hide evidence to the

contrary behind her privilege. By having chosen the sword, Julie must now

relinquish the shield. Accordingly, the trial court did not abuse its discretion by

waiving the privilege.

2. Right to Rely

[26] The disclosed privileged communications unequivocally establish that Julie was

advised not to settle the dissolution proceeding before full discovery was conducted.

Julie’s divorce attorney cautioned Julie on at least three separate occasions that her

share of the marital estate would increase beyond what she was willing to settle for if

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she engaged in discovery. Specifically, on October 9, 1997, divorce counsel sent a

letter to Julie, informing her:

Without conducting discovery, there is no way that we know how
much your marital estate is worth, how it is structured, or how it is in
your best interest to divide it. Basically, I cannot advise you to make
any proposal to settle and strongly advise you against making any
decisions before having full disclosure and appraisals.

(Appellant’s App. p. 567). Julie signed an acknowledgment, foregoing her attorney’s

legal advice to conduct discovery. On November 13, 1997, Julie’s divorce counsel

again required Julie to sign a similar acknowledgment. In this letter, Julie was

advised:

Once again, I must advise you against proceeding in this manner.
You have not allowed me to conduct discovery, obtain appraisals, or
consult financial experts as is necessary with this type of marital estate.
Further based upon what [Richard] had condescended to disclose to
us, it is clear that you want to agree to substantially less than what the
[c]ourt would grant you. There is no doubt in my mind that you
would receive 50%, if not more, of the marital net worth. Based upon
[Richard’s] disclosure which I would presume offer low valuations,
you are accepting less than one third. Clearly, this is not in your best
interest. Please acknowledge your understanding of my advice by
signing below.

(Appellant’s App. p. 574). Julie signed the letter. Shortly before the settlement, Julie

received a third caution from her attorney. On December 12, 1997, Julie was

informed:

Once again, I must advise you against entering into the property
settlement your husband is proposing. Without a doubt the settlement
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 to you therein of $20,000,000 is substantially less than that which a
court would order. I strongly advise you to turn down this offer,
arrange for appraisals and conduct full discovery, and negotiate for a
minimum of 50%. As you are aware, I have been extremely unhappy
with the limited and incomplete documentation which [Richard] has
condescended to give us. Its incomplete nature makes me highly
suspicious that even the limited disclosure is not accurate. Based even
upon that limited disclosure, you are accepting substantially less than
50% of what he is willing to admit the net worth of the marital estate
is.

Please reconsider your decision to enter this [Settlement Agreement].
In the event that you do wish to proceed, please indicate that you
understand my concerns and advice by signing below.

(Appellant’s App. p. 575). Again, Julie acknowledged her attorney’s caution but

entered into the Settlement Agreement within days of the letter.

[27] Accordingly, Julie was aware that unless she conducted discovery into the assets and

liabilities of the marital estate, she would receive substantially less by entering into

the Settlement Agreement. Now, nearly two decades later, Julie decides she wants

to follow her divorce attorney’s advice and probe the values of the marital assets by

alleging Richard committed fraud by misrepresenting the net worth of the marital

estate—misrepresentations upon which she claimed to have relied on exclusively.

[28] However, by acknowledging that she understood the risk when declining to conduct

a full discovery, Julie surrendered her right to rely on Richard’s representations.

Because Julie “blindly trusted,” against the advice of her attorney, and “closed her

eyes, where ordinary diligence required her to see,” she became willingly deceived

and therefore cannot claim to have exclusively relied on Richard. See Pugh’s IGA,
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 Inc., 531 N.E.2d at 1199. Thus, “[o]ne who knows of a risk and voluntarily exposes

one’s self to that risk cannot later recover for a resulting injury.” Kaken

Pharmaceutical Co., Ltd. v. Eli Lilly and Co., 737 F. Supp. 510, 519 (S.D. Ind., 1989)

(applying Indiana law); Frenzel, 37 Ind. at 17. Parties on notice to a possible

misrepresentation cannot refuse to use tools available to them to learn of the true

facts and later claim a right to rely on the misrepresentation. See, e.g., McCutchan v.

Blanck, 846 N.E.2d 256, 265 (Ind. Ct. App. 2006) (“[A] purchaser of property has no

right to rely upon the representations of the vendor of the property as to its quality,

where he has a reasonable opportunity of examining the property and judgment for

himself as to it qualities.”). Julie’s acknowledgment of her counsel’s advice but

subsequent denial to comply with it prevent her now from bringing a fraud claim as

she cannot establish a right to rely on Richard’s alleged misrepresentations of the

marital estate. 2

II. Abuse of Process

[29] Next, Julie contends that the trial court erred by denying her summary judgment on

Richard’s counterclaim of abuse of process. Our standard of review for summary

judgment appeals is well established. We review summary judgment de novo,

applying the same standard as the trial court: “Drawing all reasonable inferences in

favor of . . . the nonmoving parties, summary judgment is appropriate of the

designated evidentiary matter shows that there is no genuine issue as to any material

2
Because we affirm the trial court’s decision based on the ground that Julie cannot establish a right to rely, we do
not need to analyze whether Richard misrepresented the composition and value of the marital estate.
Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 19 of 37
 fact and that the moving party is entitled to judgment as a matter of law.” Williams v.

Tharp, 914 N.E.2d 756, 761 (Ind. 2009). The initial burden is on the summary-

judgment movant to “demonstrate[] the absence of any genuine issue of fact as to a

determinative issue,” at which point the burden shifts to the non-movant to to “come

forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62

(internal quotation marks and substitution omitted). And “[a]lthough the non-

moving party has the burden on appeal of persuading us that the grant of summary

judgment was erroneous, we carefully assess the trial court’s decision to ensure that

he or she was not improperly denied his or her day in court.” McSwane v.

Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal

quotation marks omitted).

[30] A party claiming abuse of process must show a misuse or misapplication of process

for an end other than that which it was designed to accomplish. I.A.E., Inc. v. Hall,

49 N.E.3d 138, 157 (Ind. Ct. App. 2015), trans. denied. The two elements of abuse of

process are: (1) ulterior purpose or motives; and (2) a willful use of process not

proper in the regular conduct of the proceedings. Id. “If a party’s acts are

procedurally and substantively proper under the circumstances, then the party’s

intent is irrelevant.” Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 256 (Ind. Ct. App.

2013) (quoting Watson v. Auto Advisors, Inc., 822 N.E.2d 1017, 1029 (Ind. Ct. App.

2005), trans. denied), trans. denied. There is no basis for an abuse of process claim if

legal process is used to accomplish an outcome that the process was designed to

accomplish. Id. “The purpose for which the process is used is the only thing of

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 importance.” Nat’l City Bank of Ind. v. Shortridge, 689 N.E.2d 1248, 1252 (Ind. 1997),

supplemented at 691 N.E.2d 1210 (Ind. 1998).

[31] “The gravamen of [abuse of process] is not the wrongfulness of the prosecution but

some extortionate perversion of lawfully initiated process to illegitimate ends.” Id.

Unlike a malicious prosecution action, an action for abuse of process does not

necessarily require proof that the action was brought without probable cause or that

the action terminated in favor of the party alleging abuse of process. Lindsay v.

Jenkins, 574 N.E.2d 324, 326 (Ind. Ct. App. 1991), trans. denied. It does appear,

however, that an action’s lack of validity can be highly relevant in examining an

abuse of process claim. Our supreme court has held that the reasonableness of an

attorney’s action instituting litigation should be judged by an objective standard and

whether “‘no competent and reasonable attorney familiar with the law of the forum

would consider that the claim was worthy of litigation on the basis of the facts

known by the attorney who instituted suit.’” Shortridge, 689 N.E.2d at 1253 (quoting

Wong v. Tabor, 422 N.E.2d 1279, 1288 (Ind. Ct. App. 1981)). There must be

evidence that an attorney filed a claim for a purpose other than aiding his or her

client in adjudicating his or her claim. Id. Additionally, there must be evidence that

the attorney “‘knowingly initiated proceedings for a clearly improper purpose,’”

which requires more than evidence of a questionable belief as to the merits of a case,

or the failure to fully investigate all facts before filing suit. Id. (quoting Wong, 422

N.E.2d at 1287).

[32] On November 12, 2003, Julie initiated the lawsuit by claiming that Richard had

undervalued and understated the marital assets in his Disclosure Statement
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 incorporated in the 1997 divorce decree. Denying these allegations, Richard filed a

counterclaim for abuse of process on March 1, 2004. Julie filed a motion for

summary judgment on Richard’s counterclaims, which was subsequently denied by

the trial court on October 2, 2013.

[33] In denying summary judgment, the trial court concluded, in pertinent part,

12. Taken in the light most favorable to Richard, the facts show that
in a short span between 2002 and 2003, the following events occurred:
(1) Richard re-married; (2) Julie’s attitude toward him worsened; (3)
she gradually cutoff communications with him; (4) she began claiming
that she was wronged in the divorce; (5) she retained as her lawyer an
individual with whom she had previously maintained a serious
romantic relationship; and (6) she filed the lawsuit.

13. These facts create an inference that Julie filed her lawsuit for the
ulterior motive of causing stress and emotional damage to Richard.

14. Julie’s desire to hold this lawsuit over Richard’s head as a punitive
measure is further demonstrated by her actions in prosecuting it.
While her claims were still pending, she did not even take a single
deposition but allowed the case to linger on the [c]ourt’s docket for
years. She refused to communicate with Richard, work to resolve
family differences, or even come to any [c]ourt hearings at which
Richard would be in attendance.

15. Indeed, Julie has told her children and family counselor that she
did not bring this action to recover damages or obtain the type of
monetary relief she claims is the appropriate remedy for her fraud
claim. She has specifically told Richard’s daughter that the case was
not about obtaining the very monetary recovery she claims is her
motive.

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 16. Richard is entitled to all inferences from the facts to be taken in
his favor. Given the context out of which this lawsuit arose and
Julie’s own statements and conduct, there is at a minimum a dispute
of fact about whether she engaged in this frivolous and failed litigation
for an ulterior motive of spite, revenge and a desire to cause harm,
harassment and emotional distress to Richard.

17. Julie is also not entitled to summary judgment on the second
element of the abuse of process claim, which involves “a willful act in
the use of process not proper in the regular conduct of the
proceeding.”

***

20. Julie’s lawsuit was not an “authorized or “proper use of process
but has instead been found to be legally and factually deficient in the
[c]ourt’s earlier two summary judgment orders.

***

25. Julie’s own affidavit creates an issue of fact about her proper use
of process. [Julie’s divorce attorney’s] notes show that she met with
Julie about a month after the divorce became final and that Julie
acknowledged her regret about the settlement, stating that it was
without full disclosure or discovery. In a note in her file, [Julie’s
divorce attorney] stated that: “Near end of meeting, client tells me that
she really appreciated everything I did for her, realizes she really
restricted me by refusing to allow pursuit of full discovery. Says that
looking back, she knows I was right and that she should have
permitted it, as she could have still decided to take the same agreement
she did (but be fully informed).” However, Julie’s own affidavit
creates an issue of fact on this issue by directly contradicting what [her
divorce attorney] said: “In the weeks and months following the
divorce settlement, I never expressed to [my divorce attorney] the
statements she attributed to me in her January 1998 notes, namely,
Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 23 of 37
 that I regretted the settlement or that I apologized for any actions I
took with respect to the divorce litigation.” Far from supporting
summary judgment in her favor, Julie’s statement contesting [her
divorce attorney’s] notes itself creates an issue of fact that cannot be
resolved on her motion for summary judgment.

(Appellant’s App. pp. 103-104, 106) (internal references omitted).

[34] The designated facts reflect that Julie, even though the divorce decree was issued in

1997, waited until 2003 before filing the current lawsuit, alleging fraud in an attempt

to set aside the divorce decree. Shortly before the filing, counsel from both parties

met to discuss the merits of Julie’s anticipated suit. Nevertheless, after the meeting,

she filed the lawsuit without waiting for the letter that her own counsel had requested

regarding the issues addressed at the meeting. Julie’s current counsel did not review

her divorce counsel’s file, which would have revealed her divorce counsel’s advice

pertaining to the settlement and which could have prevented these proceedings.

During the ensuing litigation, Julie did not take a single deposition and allowed the

case to remain inactive on the trial court’s docket. Accordingly, we cannot say that

Julie used the legal process to accomplish an outcome which the process was

designed to accomplish. See Estate of Mayer, 998 N.E.2d at 256.

[35] Julie now maintains that there must be some action other than pursuing a lawsuit to

support abuse of process. However, misusing the process is the core of the tort—

once that burden of proof is satisfied, no other action needs to be established. “There

is no liability for use of the legal process unless it has been used to achieve an end

other than one which the process was designed to accomplish.” Central Nat’l Bank of

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 Greencastle v. Shoup, 501 N.E.2d 1090, 1095 (Ind. Ct. App. 1986), reh’g denied. “The

only important factor is the purpose for which the process is utilized.” Id.

[36] Turning to Julie’s intention, we note, like the trial court, that there is a genuine issue

of material fact that Julie’s motive in pursuing a ‘do-over’ of the divorce decree was

honorable. Although Richard appeared to try to repair their relationship even after

the divorce was finalized, Julie told her friends that she filed for divorce to “teach

[Richard] a lesson” and to impress upon him the need to prioritize “her needs and

giv[e] her more respect.” (Appellant’s App. p. 1654). Despite Julie’s claim that her

motivation for bringing the suit rested on her desire to re-litigate the marital estate

after discovering the alleged fraud in 1999, the designated evidence reflects that

Julie’s attitude worsened after she realized that Richard “had moved on and began

traveling with [his] new companion and future wife.” (Appellant’s App. p. 1654).

Julie gradually lessened communications while her hostility increased, resulting in an

escalation of the situation with Richard’s remarriage in 2002. Even though she knew

about the purported fraud, she did not file the present suit until 2003, after Richard

had remarried.

[37] Our supreme court has held that the reasonableness of an attorney’s action instituting

litigation should be judged by an objective standard and whether “‘no competent and

reasonable attorney familiar with the law of the forum would consider that the claim

was worthy of litigation on the basis of the facts known by the attorney who

instituted suit.’” Shortridge, 689 N.E.2d at 1253 (quoting Wong, 422 N.E.2d at 1288).

The facts before us, especially the timing of the lawsuit together with the absence of

an investigation into Julie’s divorce attorney’s file prior to initiation, lead us to
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 conclude that there is a genuine issue of material fact that Julie misapplied the

judicial process for an end other than that which it was designed to accomplish. See

I.A.E., Inc., 49 N.E.3d at 157. Accordingly, we affirm the trial court’s denial of

Julie’s motion for summary judgment on Richard’s counterclaim for abuse of

process.

III. Default Judgment

[38] Lastly, Julie disputes the trial court’s award of a default judgment as a discovery

sanction in favor of Richard. The trial court issued the default judgment in Richard’s

counterclaim proceedings. Specifically, in an effort to fully litigate his counterclaim,

Richard attempted discovery, seeking to establish when, if ever, Julie’s counsel had

reviewed Julie’s divorce counsel’s file and to obtain the fees and rates of Julie’s

attorney to demonstrate the reasonableness of his own attorney’s fees. Finding, after

two months, that Julie was not in compliance with Richard’s discovery requests and

motion to compel, the trial court entered a default judgment against her and

subsequently awarded Richard attorney fees in the amount of $842,021. After an

unsuccessful motion to set aside the default judgment pursuant to T.R. 60(B), Julie

now appeals the decision.

[39] The trial court may relieve a party from a default judgment upon one of several

grounds set forth in Indiana Trial Rule 60(B). King v. United Leasing Inc., 765 N.E.2d

1287, 1289 (Ind. Ct. App. 2002). A trial court’s decision as to whether to set aside a

default judgment is given substantial deference on appeal. Charnas v. Estate of Loizos,

822 N.E.2d 181, 184 (Ind. Ct. App. 2005). Our review of the trial court’s refusal to

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 set aside a default judgment is limited to determining whether there has been an

abuse of discretion. Id. Thus, on appeal, the burden is on the appellant to

demonstrate that the trial court’s decision was clearly against the logic and effect of

the facts and circumstances before the court, or that the trial court misinterpreted the

law. Id. Although a default judgment plays an important role in the maintenance of

an orderly, efficient judicial system as a weapon for enforcing compliance with the

rules of procedure and for facilitating the speedy determination of litigation, in

Indiana there is a marked judicial deference for deciding disputes on their merits and

for giving parties their day in court, especially in cases involving material issues of

fact, substantial amounts of money, or weighty policy determinations. Id.

[40] In her appellate brief, Julie advances several arguments on which the trial court’s

default judgment could be reversed—none of which explicitly invoke any of the

grounds of T.R. 60(B). Nevertheless, we will attempt to address Julie’s claims.

A. Relevance of the Discovery on Attorney Fees

[41] Julie’s main contention centers on the continued relevancy of her attorney fees in

light of her acceptance of the reasonableness of Richard’s attorney fees. She

maintains that because she did not contest the reasonableness of Richard’s attorney

fees, the rate charged by her own attorneys became irrelevant and, thus, the trial

court’s order to compel was erroneous and, she was entitled to ignore it.

[42] Generally, Indiana follows the American Rule, which requires each party to pay his

or her own attorney fees absent an agreement between the parties, statutory

authority, or rule to the contrary. Fackler v. Powell, 891 N.E.2d 1091, 1098 (Ind. Ct.
Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 27 of 37
 App. 2008), trans. denied. Here, the trial court awarded the fees pursuant to Indiana

Code section 34-52-1-1, which provides in relevant part, that the trial court

[m]ay award attorney’s fees as part of the cost to the prevailing party,
if the court finds that either 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
clearly became frivolous, unreasonable, or groundless; or

(3) Litigated the action in bad faith.

By awarding statutory fees, the trial court may look at the responsibility of the parties

in incurring the attorney fees. Ind. High School Athletic Ass’n, Inc. v. Schafer, 913

N.E.2d 789, 794 (Ind. Ct. App. 2009). The trial court has personal expertise he or

she may use when determining reasonable attorney fees. Id.

[43] In considering the reasonableness of an attorney’s fees, it makes no difference

whether the obligation to pay the fee is based on a statutory provision or on a prior

agreement. Boonville Convalescent Ctr., Inc. v. Cloverleaf Healthcare Servs., Inc., 834

N.E.2d 1116, 1127 (Ind. Ct. App. 2005), trans. denied. Instead, the determination of

reasonableness of an attorney’s fee requires consideration of all relevant

circumstances. Id. Specifically, we must look to Professional Conduct Rule 1.5(a),

which lists the following non-exclusive factors to be considered:

Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 28 of 37
 (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.

[44] Despite Julie’s allegation that she did not dispute the reasonableness of Richard’s

attorney fee request, we conclude that Richard’s discovery request for Julie’s

attorney’s fees remained relevant. We emphasize that it is the trial court’s

responsibility—and not Julie’s—to determine the reasonableness of Richard’s request

for an attorney fee award. As such, relevant evidence to absolve this responsibility is

evidence which “is of consequence in determining the action.” Ind. Evidence Rule

401(b). Faced with claims which sought an award of $80 million dollars, impugned

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 Richard’s integrity, and resulted in numerous repetitive filings with voluminous

discovery over more than a decade, the trial court would have been hard pressed to

compare this situation with other “similar legal services.” See Prof. Conduct R.

1.5(a). Accordingly, the amount that Julie expended for the exact same lawsuit

reflects on the reasonableness of Richard’s fees. The relevance of Julie’s fees to

Richard’s fee petition is furthermore underscored by what this discovery disclosed.

Although by her own admission her disclosure is “substantially” underreported, Julie

has paid more than $3 million in fees and costs, while, by contrast, Richard

expended $842,000. Because the amount Julie paid in fees and the rate charged by

her attorneys is relevant to the fee issues remaining, the trial court did not abuse its

discretion by compelling the discovery.

[45] Moreover, it should be noted that even though Julie persisted in arguing that she

conceded the reasonableness of Richard’s attorney fees, we conclude otherwise.

Julie did not stipulate to the reasonableness of Richard’s fees in her objection and

response to the counterclaim discovery request, nor did she raise this issue until after

Richard sought a default for her non-compliance with the order to compel discovery.

Specifically, it is not until November 19, 2014, when Julie asserted that she “is not in

a position to contest the reasonableness of [Richard’s] attorney fees. That is not to

say that [Julie] is admitting that fees are owed in any way or that the disclosed fees

are admissible at trial. Only that [Julie] is not in a position to dispute the

reasonableness of the disclosed fees during a trial in this matter.” (Appellant’s App.

p. 1800). Mindful of the litigious character of this suit, we agree with Richard that

“Julie’s carefully chosen words freed her for a future flip-flop at a time when she

Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 30 of 37
 decided she was ‘in the position’ to contest Richard’s fees.” (Appellee’s Br. p. 44).

Therefore, we decline to categorize Julie’s statement as a stipulation to the

reasonableness of Richard’s fees.

B. Lack of Warning before Entry of Default Judgment

[46] Next, Julie contends that the trial court abused its discretion in entering a default

judgment as a discovery sanction because it had failed to give her advance warning

of this possible sanction. Indiana’s discovery rules are designed to “allow a liberal

discovery process, the purposes of which are to provide parties with information

essential to litigation of the issues, to eliminate surprise, and to promote settlement.”

Brown v. Katz, 868 N.E.2d 1159, 1165 (Ind. Ct. App. 2007). Discovery is intended to

require “little, if any supervision or assistance by the trial court.” Hatfield v. Edward J.

DeBartolo Corp., 676 N.E.2d 395, 399 (Ind. Ct. App. 1997), reh’g denied, trans. denied.

Although “concealment and gamesmanship were [once] accepted as part and parcel

of the adversarial process,” we have unanimously declared that such tactics no

longer have any place in our system of justice. Outback Steakhouse of Florida, Inc., v.

Markley, 868 N.E.2d 65, 77 (Ind. 2006). Today, “the purpose of pre-trial discovery is

‘to make a trial less of a game of blindman’s bluff and more a fair contest with the

basic issues and facts disclosed to the fullest practicable extent.’” Id. (quoting United

States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2L.Ed.2d 1077 (1958)).

[47] However, when the goals of discovery are not being met, Indiana Trial Rule 37

provides the trial court with tools to enforce compliance. Brown, 868 N.E.2d at 1165

(citing Hatfield, 676 N.E.2d at 399). Indiana Trial Rule 37(B)(2) permits the trial

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 court to sanction a party for its failure to comply with discovery orders by, among

other things, entering a default judgment against the party. As the Supreme Court

has explained, the purpose of sanctioning discovery violations is “not merely to

penalize those whose conduct may be deemed to warrant such a sanction, but to

deter those who might be tempted to such conduct in the absence of such a

deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 US. 639, 643, 96 S.Ct.

2778, 49 L.Ed.2d 747 (1976).

[48] Despite Julie’s argument to the contrary, we have previously held that T.R. 37 does

not require a trial court to impose a lesser sanction or warning before entering a

default judgment. Brown, 868 N.E.2d at 1169; Burns v. St. Mary Med. Ctr., 504

N.E.2d 1038, 1039 (Ind. Ct. App. 1987). Furthermore, even if the trial rules would

have required a warning before imposing a default judgment as a discovery sanction,

Julie had ample notice that her actions could trigger a default judgment. On

November 10, 2014, Richard moved for a default judgment due to Julie’s disregard

of the trial court’s motion to compel. At that point, Julie was warned that a future

default judgment was a possibility. During the December 2, 2014 hearing, the

parties extensively discussed the sanction of default. Nevertheless, instead of issuing

a ruling, the trial court took the matter under advisement, allowing Julie time to

comply with Richard’s counterclaim discovery request. On January 14, 2015, the

trial court issued the default judgment, after entering a finding that Julie had engaged

in a “repetitive pattern” of disregarding the trial court’s discovery order. (Appellant’s

App. p. 125). Accordingly, under these facts, Julie had a two-month warning that a

default judgment had been requested and was impending.

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[49] Moreover, we cannot say that this sanction is unduly harsh or unjust. As a general

matter, trial courts “should seek to apply sanctions which have a minimal [e]ffect on

the evidence presented at trial and the merits of the case.” Wright v. Miller, 989

N.E.2d 324, 330 (Ind. 2013). In the instant case, the evidence reflects that the trial

court entered the default judgment based on a lengthy and continuous history of

disregard for the trial court’s orders. Richard served Julie with the discovery request

on his counterclaim on June 17, 2014. After Julie’s objection, Richard filed a motion

to compel, which was granted by the trial court on October 24, 2014. The trial court

informed Julie that she had to comply by November 3, 2014. However, instead of

serving the requested information on that day, Julie reiterated her objections to

Richard’s discovery. Three days later, Julie sought reconsideration of the trial

court’s order to compel, which was subsequently denied on November 24, 2014. On

November 10, 2014, Richard requested a default judgment as a discovery sanction.

Again, Julie objected, repeating the objections which had been rejected by the trial

court twice already. On December 2, 2014, the trial court heard arguments and took

the matter under advisement, to ultimately enter a default judgment on January 14,

2015.

[50] Throughout these proceedings, Julie offered no abatement of her misconduct; rather,

her counsel admitted under oath that he did not even begin to gather the compelled

discovery until the trial court took the matter under advisement. While we

empathize with counsel’s health problems, these did not incapacitate him until

December 14, 2014, more than a month after the order to compel discovery had been

entered. Given the trial court’s earlier orders, Julie’s insistence that the evidence

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 sought was not relevant or discoverable 3 was in bad faith and in contumacious

disregard of the trial court’s discovery order and motion to compel. Therefore, based

on the unique facts before us, we agree with the trial court that the imposition of a

default judgment was not unduly harsh.

IV. Attorney Fees Award

[51] Lastly, Julie contends that the trial court erred when entering the order awarding

attorney’s fees without requiring Richard to litigate the underlying merits of his

counterclaim. In Shoulders v. State, 462 N.E.2d 1034, 1035 (Ind. 1984), our supreme

court noted that “[t]he effect of the default judgment is that the facts as alleged in the

petition are deemed admitted. However, the court must determine whether as a

matter of law the facts as alleged in the petition entitle the petitioner to relief.” The

record reflects that the underlying merits had been litigated and determined by the

trial court when it rejected Julie’s motion for summary judgment on Richard’s

counterclaim by order of October 2, 2013. At that point, the trial court concluded

that “Richard can establish a misuse of process and Julie is not entitled to summary

judgment.” (Appellant’s App. p. 108). By thereafter entering the default judgment

against Julie on Richard’s counterclaims, the trial court clearly established Julie’s

liability. By affirming the default judgment, we—by logical extension—also affirm

3
Julie insisted that the Rules of Professional Conduct prevented her from complying with the discovery order, as the
information requested was privileged information. However, as a general rule, information regarding a client’s
attorney fees is not protected by the attorney-client privilege because the payment of fees is not considered a
confidential communication between attorney and client. See, e.g., Hueck v. State, 590 N.E.2d 581, 585 (Ind. Ct.
App. 1992), reh’g denied, trans. denied.
Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 34 of 37
 Julie’s liability on Richard’s counterclaims. Julie may not now collaterally attack her

liability on the counterclaims through the award of attorney fees.

[52] Furthermore, we cannot conclude that the trial court abused its discretion by

entering an award of statutory attorney fees in favor of Richard. Indiana Code

section 34-52-1-1(b) provides, in relevant part, that the trial court

May award attorney’s fees as part of the cost to the prevailing party, if
the court finds that either 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.

[53] Mindful of these criteria, the trial court awarded fees “in light of Julie’s conduct

through this litigation, including but not limited to her disobedience of the [c]ourt’s

discovery order and the misrepresentation to the [c]ourt made relating to that order.”

(Appellant’s App. p. 147). Specifically, the trial court noted that either Julie or her

counsel have engaged in a pattern of misconduct that includes:

(1) Misrepresenting (under oath) when her counsel reviewed the critical
documents in [Julie’s divorce attorney’s] file. While counsel and
Julie claim to have not reviewed that file until the [c]ourt ordered it
disclosed in June of 2005, her counsel’s own billing records reflect
time entries for [the file’s review] as early as February of 2004;

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 (2) Billing astronomical sums throughout the lawsuit, including more
than 200 hours of meetings and telephone calls that apparently did
not occur; and

(3) Continuing to delay resolution of a lawsuit that had no basis in law
or fact years after that reality should have been obvious to any
reasonable person.

(Appellant’s App. p. 147).

[54] We review de novo the trial court’s legal conclusion that a party litigated in bad faith

or pursued a frivolous, unreasonable or groundless claim or defense, and then review

the trial court’s decision to award attorney fees and the amount thereof under an

abuse of discretion standard. Chapo v. Jefferson Co. Plan Com’n, 926 N.E.2d 504, 509

(Ind. Ct. App. 2010). A claim or defense is “frivolous” if it is taken primarily for the

purpose of harassment, if the attorney is unable to make a good faith and rational

argument on the merits of the action, or 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. Id. at 509-510. A claim or defense is unreasonable if, based

on the totality of the circumstances, including the law and the facts knows at the time

of filing, no reasonable attorney would consider that claim or defense was worthy of

litigation. Id. A claim or defense is “groundless” if no facts exist which support the

legal claim presented by the losing party. Id. A trial court is not required to find an

improper motive to support an award of attorney fees; rather, an award may be

based solely upon the lack of a good faith and rational argument in support of the

claim. Id.

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[55] The facts, as recounted in this lengthy opinion, more than sufficiently justify the trial

court’s statutory fee award. The trial court was addressed by an attorney who failed

to diligently research the file of his predecessor prior to launching into a protracted

litigation, who filed motions in which he reiterated claims already rejected by the

court, who was nonresponsive to discovery, and who persisted in litigation claims

that had become clearly groundless or unreasonable. Mindful that “the statute

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

important policy of discouraging unnecessary and unwarranted litigation,” here,

Julie’ attorney blatantly ignored his discovery obligations, trial court’s orders, and

continued to engage in questionable litigation tactics, overstepping the boundaries of

zealous litigation and entering the realms of vexatious litigation. Mitchell v. Michell,

695 N.E.2d 920, 924 (Ind. 1998). Accordingly, we affirm the trial court’s imposition

of an attorney fee award.

CONCLUSION

[56] Based on the foregoing, we conclude as follows: (1) the trial court properly decided

that Julie failed to establish that Richard had committed fraud during the

negotiations leading to the Settlement Agreement; (2) the trial court properly denied

Julie’s motion for summary judgment on Richard’s counterclaim for abuse of

process; (3) the trial court’s imposition of a default judgment was just; and (4)

Richard is entitled to an award of attorney fees.

[57] Affirmed.

[58] Kirsch, J. and Pyle, J. concur
Court of Appeals of Indiana | Opinion 92A03-1511-PL-1968 | September 9, 2016 Page 37 of 37