Indiana Court of Appeals, 2018

Sickafoose v. Beery

Sickafoose v. Beery
Indiana Court of Appeals · Decided December 12, 2018 · Bailey, Kirsch
116 N.E.3d 486 (North Eastern Reporter, Third Series)

Counsel

[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., [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., [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., [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 *490writ 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., [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., [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., [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., 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 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 ., [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:, 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 show cause, no enforcement power remained as the funds at issue had been paid.7, [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 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., [25] The Auditor seeks to recover attorney's fees for funds expended *495responding to what it characterizes as a frivolous appeal., [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 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.

Sickafoose v. Beery

Opinion of the Court

Kirsch, J., concurs.

Bailey, J., dissents with opinion.

Dissenting Opinion

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.

[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 involved11 proceeded as if Sickafoose were a party *496until 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 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.

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).

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."

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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.