Kelly Sickafoose v. Mary Beery, Auditor of Adams County ( 2018 )

FILED
Dec 12 2018, 8:34 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William A. Ramsey Adam L. Bartrom
Barrett McNagny LLP Mark D. Scudder
Fort Wayne, Indiana Barnes & Thornburg LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelly Sickafoose, December 12, 2018
Appellant, Court of Appeals Case No.
18A-MI-1549
v. Appeal from the Adams Superior
Court
Mary Beery, Auditor of Adams The Honorable Kenton Kiracofe,
County, Special Judge
Appellee. Trial Court Cause No.
01D01-1706-MI-29
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 1 of 19
Case Summary
[1] This appeal stems from a controversy arising out of the Adams County Drug
Court. Presiding Judge Patrick Miller initiated a lawsuit against Adams
County Auditor Mary Beery (“the Auditor”) and, on June 7, 2017, ordered her
to make certain tax and retirement benefit payments in connection to the
employment of Drug Court Coordinator Kelly Sickafoose. The Auditor made
the payments at issue in July of 2017. Despite the Auditor having made full
payment, in August of 2017, Sickafoose moved for a rule to show cause,
alleging that the Auditor was in contempt of the June 7, 2017 order. The trial
court denied Sickafoose’s motion and awarded attorney’s fees in favor of the
Auditor. Sickafoose challenges these orders on appeal.
[2] Upon review, we conclude that any possible contempt by the Auditor was
cured by payment of the funds at issue. Further, because Sickafoose filed
numerous motions after payment was made despite knowing that she was not a
party to the lawsuit, we agree with the trial court’s determination that
Sickafoose’s filings were frivolous. We therefore conclude that the trial court
did not err in denying Sickafoose’s motion for rule to show cause, granting the
Auditor’s motion to dismiss, and awarding $16,463.50 in attorney’s fees to the
Auditor. In addition, because we find this appeal to be frivolous, we conclude
that an award of appellate attorney’s fees is warranted, and we remand to the
trial court for a determination of the amount of appellate fees that should be
awarded to the Auditor.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 2 of 19
Facts and Procedural History
[3] Judge Miller is the judge of the Adams County Superior Court and presiding
judge of the drug court. In 2016, Judge Miller hired Sickafoose as an
independent contractor to be the Drug Court Coordinator.
[4] Sickafoose was paid for work completed in 2016 as an independent contractor
and was provided with an IRS form indicating such status. In early 2017,
Judge Miller resolved that Sickafoose should no longer be an independent
contractor but rather an employee of the court. The Adams County Board of
Commissioners approved Sickafoose’s employment in March of 2017. After
Sickafoose was hired as an employee of the court, a dispute arose between
Judge Miller and Sickafoose and the Adams County Board of Commissioners,
County Council, Auditor’s Office, and Auditor (collectively, “the County”)
regarding retroactive application of employee status. Specifically, Judge Miller
and Sickafoose wanted the County to treat Sickafoose’s hire date as the day she
began providing services as an independent contractor and to make retroactive
tax and retirement benefits payments on her behalf. After the County rejected
this request, Judge Miller initiated the underlying lawsuit against the Auditor
over which he initially presided.
[5] On June 7, 2017, Judge Miller ordered the Auditor to pay certain tax and
retirement benefits within forty-eight hours. The order covered payment of
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 3 of 19
FICA and FICE taxes1 (collectively, “the federal taxes”) and PERF2 benefits for
the period of October 1, 2016, through March 3, 2017. The claims were “in the
nature of payroll” and were to be made for the benefit of the “Adams Superior
Court/Adams County Drug Court Coordinator.” Appellant’s App. Vol. II p.
27. Judge Miller held that failure to comply with the order “will subject the
Auditor … to indirect criminal contempt proceeding[s] including the possibility
of fines, incarceration or both.” Appellant’s App. Vol. II p. 28.
[6] The next day, the Auditor filed a motion to vacate Judge Miller’s order, arguing
that as the plaintiff to the action, Judge Miller did not have jurisdiction to issue
the order. On June 9, 2017, the Auditor filed a petition for an emergency writ
of mandamus and prohibition with the Indiana Supreme Court. That same
day, the Supreme Court issued an emergency writ and ordered Judge Miller to
stay the proceedings pending its review of the Auditor’s petition. On June 29,
2017, the Supreme Court denied the Auditor’s request for a permanent writ and
dissolved the previously-issued emergency writ. Judge Miller then issued an
order lifting the stay.3 At some point, Sickafoose filed an appearance as an
“Interested Party.” Appellant’s App. Vol. II p. 74.
1
FICA, which stands for the Federal Insurance Contributions Act, requires payment of social security and
Medicare taxes. While it is unclear from the record what FICE stands for, counsel for the Auditor
“speculate[d] that it refers to Medicare.” Appellant’s App. Vol. II p. 101.
2
PERF stands for the Public Employees Retirement Fund.
3
Judge Miller also denied the Auditor’s pending motion to vacate his June 7, 2017 order.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 4 of 19
[7] The federal taxes were paid on July 5, 2017. The PERF benefits were paid on
July 20, 2017 after Sickafoose’s PERF profile was amended to reflect that she
was a court employee.4
[8] On July 6, 2017, the Auditor moved for a change of judge. Sickafoose, acting
as an interested party, submitted a list of acceptable judges to receive the cause
of action. Judge Miller granted the Auditor’s motion and the Honorable
Thomas M. Hakes of the Huntington Circuit Court was ultimately appointed as
the special judge.
[9] In August, Sickafoose, again acting as an interested party, moved for a rule to
show cause, alleging that the Auditor “appears to be in Indirect Criminal
Contempt of Court, as well as in Civil Contempt of Court.” Appellant’s App.
Vol. II p. 80. She further claimed that “As of the date of this motion, [the
Auditor] has failed and refused to comply with the Honorable Judge Miller’s
Order issued June 7, 2017.” Appellant’s App. Vol. II p. 81. Claiming that
Judge Miller’s June 7, 2017 order was made for her benefit, Sickafoose
requested that Judge Hakes find the Auditor in indirect criminal and civil
contempt of the court and order her to “immediately and fully comply with the
Order issued by the Honorable Patrick R. Miller on June 7, 2017.” Appellant’s
App. Vol. II p. 82.
4
Sickafoose was also required to pay a portion of the back-PERF benefits, which she paid to the Adams
County Treasurer on July 7, 2017.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 5 of 19
[10] On September 7, 2017, the Auditor responded to Sickafoose’s motion for a rule
to show cause, asserting that the motion was moot as the claims at issue had
been paid. The Auditor alternatively argued that Sickafoose did not have
standing to file the motion as she was not a party to the lawsuit and had not
sought to intervene. The Auditor requested that Judge Hakes deny Sickafoose’s
motion, award attorney’s fees to the Auditor, and dismiss the case with
prejudice.
[11] The Auditor also contemporaneously moved to dismiss, asserting that the
lawsuit had been initiated by Judge Miller for the purpose of ordering the
Auditor to make certain retroactive tax and PERF payments in connection to
Sickafoose’s employment as Drug Court Coordinator. The Auditor further
asserted that the order to pay the funds in question was the only component of
the lawsuit and that she had “fully complied with the payment and written
notification requirements of” Judge Miller’s order. Appellant’s App. Vol. II p.
84. As such, the Auditor argued that there was “no action left to be taken” in
the lawsuit. Appellant’s App. Vol. II p. 84.
[12] On September 13, 2017, Judge Miller sent a letter to Judge Hakes requesting
that Judge Hakes continue a scheduled pre-trial conference to grant him the
opportunity to respond to the Auditor’s motion to dismiss and response in
opposition to Sickafoose’s motion to show cause. In this letter, Judge Miller
acknowledged that the Auditor had paid all claims included in the June 7, 2017
order. Counsel for both the Auditor and Sickafoose were copied on Judge
Miller’s letter.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 6 of 19
[13] On September 15, 2017, the Auditor responded to Judge Miller’s letter,
asserting that because Judge Miller had not requested any relief beyond
compliance with his June 7, 2017 order, and she had fully complied with the
order, Judge Miller had no pending request for relief. On September 18, 2017,
Judge Hakes recused himself and continued the matter until a new Special
Judge could be selected. The Honorable Kenton Kiracofe of the Wells County
Circuit Court was subsequently appointed Special Judge.
[14] On March 29, 2018, Judge Kiracofe issued an order denying Sickafoose’s
motion for rule to show cause and granting the Auditor’s motion to dismiss.
On April 27, 2018, Sickafoose filed a motion to correct error and a motion for a
change of judge. Judge Kiracofe denied these motions in an order dated June
7, 2018.
[15] On June 25, 2018, Judge Kiracofe conducted a hearing on the Auditor’s request
for attorney’s fees. Finding that Sickafoose’s ongoing litigation was frivolous
both because the claims at issue had been paid and Sickafoose lacked standing
as she was not a party to the lawsuit, Judge Kiracofe awarded attorney’s fees in
the amount of $16,463.50 to the Auditor.
Discussion and Decision
I. Motion for a Rule to Show Cause
[16] Sickafoose contends that the trial court erred in denying her motion for a rule
for the Auditor to show cause why she is not in contempt of court. “It is
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 7 of 19
soundly within the discretion of the trial court to determine whether a party is
in contempt, and we review the judgment under an abuse of discretion
standard.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (internal
quotation omitted). “We will reverse a trial court’s finding of contempt only if
there is no evidence or inference therefrom to support the finding.” Id. (internal
quotation omitted). Sanctions in a contempt proceeding “may seek both to
coerce behavior and to compensate an aggrieved party.”5 MacIntosh v.
MacIntosh, 749 N.E.2d 626, 631 (Ind. Ct. App. 2001), trans. denied.
[17] At the trial court level, Sickafoose repeatedly made the argument that she had
standing to participate in the lawsuit because she was an interested party. In
making this argument, she did not point to any relevant authority that would
support her position. Sickafoose acknowledged that she was not a party to the
lawsuit and never sought to intervene6 in the lawsuit. She merely claimed to be
an interested party by way of her position as Drug Court Coordinator. During
an exchange with Sickafoose’s counsel, the trial court stated
you continue to maintain that you’re an interested party despite
the fact … as counsel has pointed out and [as] this Court has also
affirmed, there’s – there is no such status as an interested party –
um – it doesn’t exist. Um – I think to allow that, to continue in
that way, opens up a host of problems, and the – and the trial
rules are clear – … the trial rules provide for a way for someone
5
At the outset, we note that even if Sickafoose was a proper party, we cannot see how the Auditor could
have been found in contempt of court given that she had complied with the June 7, 2017 order.
6
Indiana Trial Rule 24 provides a procedure by which individuals or entities may seek permission to
intervene in a lawsuit to which the individual or entity is not a party.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 8 of 19
in your client’s situation, if they feel that they have an interest at
stake in the matter to request the Court to acknowledge them and
to recognize them, and you didn’t avail yourself of that
procedure[.]
Tr. p. 17. The trial court further stated that “the very problem in this case is
that, as the Court pointed out in its order of March 29 th, there are – there is a
mechanism to deal with this very issue [i.e., intervention], and that mechanism
was not followed.” Tr. p. 16. The trial court denied Sickafoose’s motion to
show cause, making the following findings:
1. Counsel for Kelly Sickafoose filed an appearance as an
“interested party.” Said term does not exist under the Indiana
Trial Rules and counsel does not provide any legal authority for
the designation.
2. Counsel has not sought intervention as may be allowed under
the Indiana Trial Rules.
3. The Court finds Kelly Sickafoose is not a party to this matter
and, as such, lacks standing to file the Motion for Rule to Show
Cause.
4. Further, it appears from the Auditor’s Motion in Opposition,
counsel for Auditor attempted to informally resolve the issue
with counsel for Kelly Sickafoose, advising that she lacked
standing and that the monies, which were at the heart of the
controversy, were paid.
Appellant’s App. Vol. II p. 22.
[18] Again, it is undisputed that Sickafoose was not a party to the lawsuit. As the
trial court pointed out, Sickafoose could have filed a Trial Rule 24 motion to
intervene but chose not to do so. We agree with the trial court’s determination
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 9 of 19
that the Trial Rules do not provide a method by which Sickafoose could insert
herself into the proceedings and participate as an “interested party.”
[19] Sickafoose claims for the first time on appeal that Indiana Trial Rule 71 grants
her standing to join. Generally, arguments not made before the trial court are
waived on appeal. See Fox v. Rice, 936 N.E.2d 316, 323 (Ind. Ct. App. 2010).
Waiver notwithstanding, we conclude that Sickafoose’s reliance on Trial Rule
71 is misplaced. Trial Rule 71 provides as follows:
When an order is made in favor of a person who is not a party to
the action, he may enforce obedience to the order by the same
process as if he were a party; and, when obedience to an order
may be lawfully enforced against a person who is not a party, he
is liable to the same process for enforcing obedience to the order
as if he were a party.
Even if we were to assume that Judge Miller’s June 7, 2017 order was made on
Sickafoose’s behalf, Trial Rule 71 did not grant Sickafoose standing to
participate in an unlimited fashion as if she were a party to the lawsuit.
Pursuant to the plain language of the rule, the enforcement powers provided for
by Trial Rule 71 extended only so far as to allow Sickafoose to enforce
obedience with the June 7, 2017 order. Thus, any enforcement power
Sickafoose may have had was extinguished by the Auditor’s compliance with
Judge Miller’s order. The record demonstrates that the Auditor complied with
Judge Miller’s order in July of 2017. Sickafoose did not file her motion to show
cause until August of 2017. As such, by the time Sickafoose filed her motion to
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 10 of 19
show cause, no enforcement power remained as the funds at issue had been
paid.7
II. Attorney’s Fees
[20] Sickafoose also contends that the trial court erred by awarding attorney’s fees to
the Auditor. Indiana Code section 34-52-1-1(b) provides that a trial court may
award attorney’s fees if it finds that either party litigated the action in bad faith
or continued to litigate after the party’s claim clearly became frivolous,
unreasonable, or groundless.
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. 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. A claim is groundless if no facts exist which
support the legal claim relied on and presented by the losing
party.
BioConvergence, LLC v. Menefee, 103 N.E.3d 1141, 1161–62 (Ind. Ct. App. 2018)
(quotations omitted). The trial court’s decision to award attorney’s fees under
Indiana Code section 34-52-1-1 is subject to a multi-level review: “the findings
7
We are also unpersuaded by Sickafoose’s common-law argument and note that while a person may have a
personal stake in litigation sufficient to grant them standing if they seek to join the litigation, she must do so
in a manner which complies with the Indiana Trial Rules and may not simply create her own procedure for
doing so.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 11 of 19
of fact are reviewed under the clearly erroneous standard and legal conclusions
regarding whether a party litigated in bad faith are reviewed de novo.” GEICO
Gen. Ins. Co. v. Coyne, 7 N.E.3d 300, 305 (Ind. Ct. App. 2014) (emphasis in
original).
[21] During the June 25, 2018 hearing, the Auditor’s counsel argued that the
Auditor has “been put in a position where [she] continually [has] to respond to
these groundless motions over and over again; and the County of Adams
County is – is incurring fees according to that” and it “is undisputed that [an]
interested party [designation] does not exist under the rules. [Sickafoose’s
counsel is] attempting to create a category of litigant that does not exist to
anyone else in the State, but he’s defiantly and repeatedly trying to take this
position; that is unreasonable.” Tr. p. 8. Counsel further argued
And, candidly, your Honor, this case has been egregious from
the beginning. This case was initiated by Judge Miller, who, at
the time, was the plaintiff when he initiated this. He then,
despite being a plaintiff and the sitting judge, issued his own
order, which required action by the auditor within forty-eight
hours or else face contempt or incarceration. This caused [an]
emotional toll on the auditor. This has caused a financial toll on
the county.
Tr. p. 9. The trial court accepted the Auditor’s position and, in awarding
attorney’s fees to the Auditor, found as follows:
2. As set forth in the March 29, 2018 Order, the Court found
Kelly Sickafoose was not a party and lacked standing to file a
Motion for Rule to Show Cause. As such, the Court dismissed
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 12 of 19
summarily Sickafoose’s Motion for Rule to Show Cause.
3. After the entry of the Court’s Order, Sickafoose, through
counsel, continued to file groundless and unreasonable motions.
Most notably, a Motion for Change of Judge that was meritless
because the Court had previously ruled she was not a party and
assuming arguendo she was a party, was belated.
4. At the hearing on June 25, 2018, rather than appearing in a
cordial, conciliatory manner, Counsel for Sickafoose chose to
attempt to relitigate the issues the Court had previously ruled
upon and challenge the jurisdiction of the Court.
5. Moreover, Counsel for Sickafoose conceded that she was not
a party to the matter.
6. The Court finds the Auditor of Adams County, ultimately the
citizens of Adams County, have incurred total attorney fees of
$16,463.50 responding to and defending herself from Sickafoose’s
frivolous, unreasonable, and groundless argument in this case.
Appellant’s App. Vol. II pp. 25–26.
[22] Given our conclusion that Sickafoose did not have standing to insert herself
into the litigation as an “interested party,” we conclude that the trial court did
not err in finding that Sickafoose’s act of making continued filings in the matter,
despite knowing that the funds at issue had been paid, she was not a party, and
she had not taken the steps necessary to intervene, was unreasonable.
Sickafoose’s unreasonable actions have cost the citizens of Adams County
unnecessary financial resources and warrant an award of attorney’s fees to the
Auditor.8
8
Although awards of attorney’s fees are generally imposed upon and awarded to parties to the lawsuit, we
have previously concluded that it is within the power of trial courts to hold a non-party financially liable for
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 13 of 19
[23] Alternatively, Sickafoose contends that the trial court erred in awarding fees
incurred in preparing and defending the Auditor’s request for fees. “The trial
court’s decision to award attorney fees and any amount thereof is reviewed for
an abuse of discretion.” GEICO, 7 N.E.3d at 305. “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.
[24] Sickafoose challenges $4,978.50 of the $16,463.50 award, arguing that the fees
were incurred in relation to the preparation and defense of the Auditor’s request
for fees. In making this challenge, Sickafoose acknowledges that she “has
found no case specifically holding whether attorney fees awarded under
[Indiana Code section] 34-52-1-1 may include fees for seeking fees.”
Appellant’s Br. p. 23. She also acknowledges authority indicating that, at least
under some circumstances, such an award is permissible. See Appellant’s Br. p.
23 (acknowledging Walton v. Claybridge Homeowners Ass’n, Inc., 825 N.E.2d 818(Ind. Ct. App. 2005)). She nevertheless argues that the trial court abused its
discretion by including such fees. The Auditor asserts that it “is nonsensical for
Sickafoose to acknowledge that she is unaware of any law which prohibits the
his actions. See generally Daurer v. Mallon, 597 N.E.2d 334, 336 (Ind. Ct. App. 1992) (providing that it was
within the power of the trial court to order a non-party attorney to pay attorney’s fees after the attorney filed
an unreasonable complaint for trespass against a police officer in the officer’s individual capacity when the
officer was only at the property in question in his official capacity and during the normal course of his duties
as a police officer). The conclusion that a non-party may be ordered to pay attorney’s fees is consistent with
the rule that under some circumstances, the trial court may award attorney’s fees to a non-party. See
Srivastava v. Indpls. Hebrew Congreg., Inc., 779 N.E.2d 52, 59 (Ind. Ct. App. 2002) (providing that an award of
attorney’s fees to a non-party is not inappropriate per se); see also Ind. Trial Rule 34 (providing that a trial
court may award attorney’s fees to a non-party for fees incurred in connection to responding to a request that
the non-party provide certain evidence during discovery).
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 14 of 19
Court from awarding fees to the Auditor for preparing for and participating in
the [June 25, 2018] Hearing, yet implies that it ‘misinterpreted the law’ by
doing so.” Appellee’s Br. p. 26. We agree with the Auditor and conclude that
in the absence of relevant authority clearly indicating that it was inappropriate
for the trial court to award the fees in question, the trial court did not abuse its
discretion by doing so.
III. Appellate Attorney’s Fees
[25] The Auditor seeks to recover attorney’s fees for funds expended responding to
what it characterizes as a frivolous appeal.
Indiana Appellate Rule 66(E) provides, in pertinent part, “[t]he
Court may assess damages if an appeal ... is frivolous or in bad
faith. Damages shall be in the Court’s discretion and may
include attorney’s fees.” Our discretion to award attorney fees
under Indiana Appellate Rule 66(E) is limited, however, to
instances when an appeal is permeated with meritlessness, bad
faith, frivolity, harassment, vexatiousness, or purpose of delay.
Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152 (Ind. 1987).
Additionally, while Indiana Appellate Rule 66(E) provides this
Court with discretionary authority to award damages on appeal,
we must use extreme restraint when exercising this power
because of the potential chilling effect upon the exercise of the
right to appeal. Tioga Pines Living Ctr., Inc. v. Indiana Family and
Social Svcs. Admin., 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001),
trans. denied.
Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003).
[26] While we are generally reluctant to grant an award of appellate attorney’s fees,
we conclude that given the specific facts of the case before us, such an award is
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 15 of 19
warranted. Sickafoose has continued to pursue this matter, at great taxpayer
expense, even after her actions had been deemed frivolous. We therefore
remand to the trial court for a hearing to determine the appropriate appellate
award of the attorney’s fees.
[27] The judgment of the trial court is affirmed, and we remand with instructions.
Kirsch, J., concurs.
Bailey, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 16 of 19
IN THE
COURT OF APPEALS OF INDIANA
Kelly Sickafoose, Court of Appeals Case No.
18A-MI-1549
Appellant,
v.
Mary Beery, Auditor of Adams
County,
Appellee.
Bailey, Judge, dissenting.
[28] This appeal should be dismissed. I cannot join in affirming the award of
attorney fees to be paid by Sickafoose to the Auditor pursuant to Indiana Code
Section 34-52-1-1(b), which provides that a party who has litigated in bad faith
may be ordered to pay another party’s fees. The reason is simple. Sickafoose,
having never availed herself of the Trial Rule 24 avenue for intervention, was
not a party in the proceedings below. Consequently, she is not a party-
appellant.9 The appeal is not properly before us.
9
Nor did Sickafoose timely pursue a claim that she had a right to enforce an order for her benefit under
Indiana Trial Rule 71. She raised this claim of entitlement for the first time on appeal. If she were a party,
this would amount to waiver. See Fox v. Rice, 936 N.E.2d 316, 323 (Ind. Ct. App. 2010).
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 17 of 19
[29] No doubt, Sickafoose’s insistence that she be allowed to pursue matters already
resolved is a clear example of frivolous litigation that wasted taxpayer
resources. The litigation was facilitated by her lawyer in having pursued this
course of action although, clearly, the Auditor had complied with the original
order.10 The litigation was entertained by the trial court when even a cursory
reading of the trial rules would have revealed the absence of an “interested
party” status to be conferred. Nonetheless, all entities involved 11 proceeded as if
Sickafoose were a party until taxpayers incurred $16,463.50 in unwarranted
attorney’s fees.
[30] After the needless waste of judicial resources, with the acquiescence of all of the
aforementioned, the trial court decided both that Sickafoose lacked standing
and that she could be liable for attorney’s fees under Indiana Code section 34-
52-1-1(b). It is true, as the majority notes in footnote 8, that a panel of this
Court has affirmed an attorney fees order against a nonparty, pursuant to a
then-existing statute referencing frivolous litigation by a “party.” I.C. 34-1-32-
1. See Daurer v. Mallon, 597 N.E.2d 334 (Ind. Ct. App. 1992). However, the
obligor was a party’s attorney, in essence, the party’s agent. “[T]his Court has
found it within the power of trial courts to hold non-party attorneys financially
10
Indiana Rule of Professional Conduct 3.1 provides in relevant part: “A lawyer shall not bring or defend a
proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is
not frivolous, which includes a good faith argument for an extension, modification or reversal of existing
law.”
11
I observe that even the Auditor lodged no objection on the basis that the trial court had no jurisdiction to
entertain motions by Sickafoose, a non-party.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 18 of 19
liable for their acts.” Id. at 336. Also, in some circumstances, a trial court may
award attorney’s fees to a non-party. Srivastava v. Indpls. Hebrew Congreg., Inc.,
779 N.E.2d 52, 59 (Ind. Ct. App. 2002). However, neither of these cases has
application here, where a non-party, non-attorney, devoid of standing, litigated
absent restraint by the court or a motion to strike from a party. At no point did
the trial court find Sickafoose in contempt, nor did it make a factual finding that
she had made a false representation (as was the case in Srivastava). The trial
court simply permitted nonparty filings with the court and then declared
Sickafoose fully liable for the wasted resources, upon the basis of statutory
authority applicable to a party or a party’s agent.
[31] I do not suggest that the Auditor is liable for the entirety of these attorney’s fees
without recourse. There may have been an abuse of process such that a claim is
available for the trial court’s consideration and fact-finding. However, we are
not positioned to remand the matter with specific instructions, as it is not
properly before us. Because Sickafoose was the subject of the litigation but not
a party to it, she lacks standing to bring this purported appeal, and I would vote
to dismiss.
Court of Appeals of Indiana | Opinion 18A-MI-1549 | December 12, 2018 Page 19 of 19