Benjamin F. Russell and Lisa Ramsey-Russell, Appellants-Plaintiffs v. Eric R. Erwin and Joyce Lynn Erwin, Appellees-Defendants (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Benjamin F. Russell (“Benjamin”) and Lisa Ramsey-Russell (collectively, “the Russells”) appeal the trial court's judgment that ordered them to pay the attorney fees of Eric R. Erwin and Joyce Lynn Erwin (collectively, “the Erwins”). The Russells argue that the trial court abused its discretion when it ordered them to pay the Erwins’ attorney fees. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether the trial court abused its discretion when it ordered the Russells to pay the Erwins’ attorney fees.

Facts

[3] The Russells and the Erwins are neighbors. The Russells’ property (“the Russells’ property”) and the Erwins’ property (“the Erwins’ property”) share a common side yard, and the Russells’ property is at a lower elevation than the Erwins’ property. The land behind both of the properties, which includes a wooded area behind the Russells’ property, is at a higher elevation than both properties. The Russells’ property is also at the lowest elevation of the homes on the street and, because of its lower elevation, surface water flows onto the Russells’ property from multiple directions. The Erwins have a septic system on their property, which includes a septic mound, near the property line of the Russells’ property. In 2017, the Erwins constructed a garage on their property.

[4] In the summer of 2018, the Russells and the Erwins hired Tom Mullins (“Mullins”) to set up a retention wall or berm to help divert ground water away from the two properties, but Benjamin fired him before he could complete the work. In August 2018, the Erwins hired Shawn Flanagan (“Flanagan”), who constructed a berm behind the Erwins’ property to stop the surface water from entering the Erwins’ property, a ditch to channel the water along the edge of the Erwins’ property to the street, and a silt fence along the property line.

[5] In August and October 2018, the Russells lodged complaints with the Floyd County Department of Health (“the County Health Department”) about the Erwins’ septic system. In November 2018, employees with the County Health Department inspected the Russells’ property and did not notice anything that would indicate a failure of the Erwins’ septic system. After receiving more complaints from the Russells, the County Health Department and State Health Department (“the State Health Department”) inspected the Erwins’ septic system in February 2019. The County Health Department conducted multiple tests, including a dye test and a water sample test, on the Erwins’ septic system and concluded that the system was functioning properly. In March 2019, the County Health Department Health Officer Dr. Thomas Harris (“Health Officer Harris”) sent a letter to the Russells that stated that the Erwins’ septic system was functioning properly.

[6] Civil Engineer Jonathan McCoy (“Engineer McCoy”), who was hired by the Russells, sent letters to the County Health Department challenging their testing methods. Engineer McCoy did not test the Erwins’ septic system. In April 2019, the Russells collected soil samples from their yard and submitted them to a third-party laboratory for E. coli testing. The samples tested at a high level of E. coli. In May 2019, the Erwins hired Septic Inspector Kyle Nix (“Inspector Nix”), who inspected the Erwins’ septic system and also found that it was functioning properly.

[7] In August 2019, the Russells filed a complaint against the Erwins. In their complaint, the Russells alleged three claims against the Erwins and requested injunctive relief and damages. The Russells alleged that, during the construction of the Erwins’ garage, the Erwins’ septic system had been damaged. The Russells also alleged that the construction of the Erwin garage had changed the landscape in a manner that caused effluent and water to flow onto the Russells’ property and damage the Russells’ topsoil. First, in their trespass claim (“the trespass claim”), the Russells alleged that the Erwins’ acts constituted trespass, theft, and conversion. The Russells alleged generally that the acts of the Erwins constituted trespass and conversion but specifically alleged that the Erwins had committed theft when they had taken soil from the Russells’ property during the construction of the berm and channel. In their septic claim (“the septic claim”), the Russells alleged that the Erwins’ septic system was malfunctioning, was violating Indiana Administrative Code, and was disposing effluent onto the Russells’ property. Finally, in their subdivision restrictive covenants claim (“the restrictive covenants claim”), the Russells alleged that the Erwins had violated the subdivision's restrictive covenants when the Erwins had constructed a garage and had modified the drainage of the Erwins’ property.¹

[8] In response, the Erwins filed a counterclaim against the Russells. In their counterclaim, the Erwins alleged that the Russells’ claims were groundless, frivolous, and unreasonable and requested attorney fees pursuant to Indiana Code § 34-52-1-1.²

[9] In July 2021, the State Department of Health Environmental Senior Manager Alice Quinn (“Environmental Manager Quinn”) inspected the Erwins’ septic system. Based on her visual inspection, Environmental Manager Quinn concluded that the septic system was functioning properly. Sometime in late 2021, the Russells left their property and began living elsewhere. The Russells returned to their property in late 2023.

[10] Three years after filing their complaint, in September 2022, the Russells filed a motion for a preliminary injunction. That same month, the Erwins moved for summary judgment on the Russells’ claims.

[11] Also in September 2022, the trial court held a hearing on the Russells’ motion for a preliminary injunction. Benjamin and Engineer McCoy testified at this hearing. Benjamin testified that the effluent on his property smelled like “human waste” and was coming from the Erwin property. (Tr. Vol. 2 at 12). Benjamin also testified that, when it rained, there was significant water runoff that flowed onto his property and damaged his topsoil. Further, Benjamin admitted that he was aware that the Erwin septic system had passed multiple inspections. Engineer McCoy testified that he had not personally tested the Erwin septic system and that the testing done by the two health departments was “normal protocol” but “inconclusive.” (Tr. Vol. 2 at 51).

[12] The County Health Department Environmental Manager Dawn Stackhouse (“Manager Stackhouse”) testified at length about the testing that the County Health Department had conducted on the Erwins’ septic system and testified that the septic system was functioning properly. After the hearing, the trial court issued an order denying the Russells’ motion for preliminary injunction.

[13] In April 2023, the trial court held a hearing on the motion for summary judgment. After the hearing, the trial court issued an order denying the Erwins’ motion for summary judgment.

[14] In August 2024, the trial court held a three-day bench trial. The Russells presented three witnesses, which included themselves and Engineer McCoy. The Russells both testified that effluent was flowing onto their property from the Erwins’ property. During Benjamin's testimony, the Russells admitted several photos of the Russells’ property. Benjamin testified that the effluent coming from the Erwins’ property was damaging his yard, that grass would not grow in his yard, and that he sprayed his yard with weed killer to stop the growth of weeds. Further, Benjamin explained that the Russells had left their property due to “harassment” from “an enormous amount of electromagnetic pulse” that he had detected on his camera system. (Tr. Vol. 3 at 23).

[15] Engineer McCoy reiterated his previous testimony that he had not personally tested the septic system and that he believed that better methods of testing existed to ensure that the Erwins’ septic system was functioning adequately. The Russells did not present any evidence in support of their restrictive covenants claim or damages.

[16] After the Russells had rested, the Erwins moved for a directed verdict on all three claims. Specifically, on the restrictive covenants claim, the Erwins argued that the restrictive covenants had not been entered into evidence and that there was no proof that any restrictive covenants had been violated by the Erwins. The trial court granted the Erwins’ motion for directed verdict on the restrictive covenants claim but denied the Erwins’ motions for directed verdict on the trespass claim and septic claim.

[17] The Erwins presented several witnesses. Mullins testified that, during his work, he had not taken any dirt from the Russells’ property. Additionally, Mullins noted that the Russells’ property was at a lower elevation than its neighboring properties and that ground water was coming into the Russells’ property from behind it. Flanagan testified that the surface water was coming onto the two properties from the wooded area behind the properties. Further, Inspector Nix, Health Officer Harris, and Environmental Manager Quinn all testified that the Erwin septic system was functional, and Inspector Nix and Environmental Manager Quinn testified that nothing that they had seen indicated that the septic system was discharging effluent.

[18] During their closing argument, the Erwins argued that the Russells’ claims were frivolous. Specifically, the Erwins argued that there was a “lack of evidence” supporting the Russells’ claims against the Erwins. (Tr. Vol. 4 at 6). In regard to the restrictive covenants claim, the Erwins argued that the Russells brought the claim to trial “when they knew they didn't have any evidence to support the case[.]” (Tr. Vol. 4 at 6). The Erwins also argued that the Russells presented only circumstantial evidence to support their septic claim and brought an expert to trial who did not even test the Erwins’ septic system. Further, the Erwins pointed out that the Russells knew about all of the testing conducted by the State Department of Health, County Department of Health, and Inspector Nix, and still brought the septic claim to trial despite all of the findings.

[19] In March 2025, the trial court issued a detailed forty-eight-page order. After entering judgment against the Russells on their trespass and septic claims, the trial court addressed the Erwins’ request for attorney fees, in relevant part, as follows:

196. Finally, however, as alleged in Count 3 of Erwin's Counterclaim, there comes a time when it should have been obvious to Russell that the entirety of this litigation was frivolous, baseless, and without merit.

197. Despite thorough investigation and presentment of scientific evidence to the contrary, Russell brought this action with no reliable evidence that any actions by Erwin were violative of any law or statute, and in spite of the fact that Russel knew they had suffered surface water issues in the past, unrelated to any actions by Erwin.

* * * * *

202. In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party: (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. IC 34-52-1-1(b).

203. The extreme weight of the evidence is that Erwin's septic system is functioning, that issues suffered by Russell are from surface water or his own action or inactions (like killing his own grass).

204. The only evidence presented by Russell is a “logical” guess by McCoy, who never tested the Erwin system, self-administered and self-serving E. coli samples from Russell, and Russell's uncorroborated and rebutted “observation” that the mound system had been disturbed and had “spewed,” -- all of which have been controverted by actual, qualified expert testing and multiple qualified experts reports and opinions.

205. Even after the lawsuit was filed, and over the course of five years of litigation, Russell did not make a request or Motion to this Court for their own expert to inspect the Erwin septic system and did not do any testing on their own property aside from the self-administered water sample.

206. During the same five years and prior to, Erwin has proven time and time again to Russell that the septic system is operational and is not discharging untreated septic effluent onto Russell's property.

207. Even if Russell was believed to have valid concerns at the outset of this case, those concerns were proven long ago to be unfounded and unreasonable. Yet, Russell pushed forward, asking for an injunction and restraining order, rather than dismissing his frivolous claims, nearly six years after he had knowledge of the test results evidenced by Erwin herein.

208. The great weight of the evidence also leads to the conclusion that Russell is experiencing, and knew prior to filing suit that they were experiencing, surface water that was not the result of any action or inaction of Erwin.

209. All evidence points to Erwin as the neighbor who continually tried to cooperate with Russell to remedy his concerns, and when Russell chose to disengage, Erwin on his own property and with his own money finished the grading work.

210. Russell's primary complaints as to damages was the removal of his topsoil, dead yard, and that his family was forced from their home due to the alleged sewage from the Erwin Property.

* * * * *

212. Russell contradicts himself as to the reason they fled their home, being due to fear of an alleged, unverified, and unproven “electromagnetic pulse” versus the effluent from the Erwin septic system.

213. Even if Russell had met his burden of proof and convinced this Court that Erwin had any liability, which they have not, Russell failed to present any evidence of consequential and compensable damages to support a Judgment in their favor.

214. Additionally, upon Motion by Erwin at the conclusion of the Russell's case-in- chief, the Court granted directed verdict as to Count 3 of the Russell's Complaint, finding in favor of Erwin as to the alleged violations of the subdivision's restrictive covenants.

215. Russell chose not to dismiss Count 3 prior to trial, warranting attorney time and fees in preparation to defend said claims. Had Russell dismiss[ed] this claim prior to trial, these attorney fees would have been avoidable.

216. Russell continued to litigate Count 3 after his claim clearly became frivolous, unreasonable, or groundless.

217. Similarly, with Count 2 as to violations of the Indiana Onsite Septic System Regulations, Russell not only presented zero testimony of any violation, but failed to even cite to any regulation at all.

218. Nevertheless, Russell continued to litigate Count 2 after his claim clearly became frivolous, unreasonable, or groundless[.]

219. Erwin was forced to prepare this case for trial, to subpoena witnesses and has committed an enormous amount of attorney time and money to defend the claims made by Russell.

220. Had Russell dismiss[ed] this claim prior to trial, these costs would have been avoidable.

221. Russell could have dismissed any portion of their Complaint once they learned of the unsurmountable facts but chose not to do so.

222. As a result of Russell's choice to file suit and continue to litigate these claims after the claims clearly became frivolous, unreasonable, or groundless, Erwin is entitled to a Judgment for attorney fees and costs related to their defense pursuant to the provisions of I.C. § 34-52-1-1.

(App. Vol. 2 at 72-76) (emphasis in original).

[20] The Russells now appeal.

Decision

[21] The Russells argue that the trial court abused its discretion when it ordered them to pay the Erwins’ attorney fees. We disagree.

[22] The trial court ordered the Russells to pay the Erwins’ attorney fees under Indiana Code § 34-52-1-1(b), which provides:

In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party:

(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.

[23] The trial court's decision to award attorney fees pursuant to Indiana Code § 34-52-1-1 is subject to a multi-level review. In re Moeder, 27 N.E.3d 1089, 1101 (Ind. Ct. App. 2015), reh'g denied, trans. denied. First, we review the trial court's findings of fact under the clearly erroneous standard. Id. Next, we review de novo the court's legal conclusions regarding whether the parties’ claim was frivolous, unreasonable, or groundless. Id. Finally, we review the trial court's decision to award attorney fees for an abuse of discretion. Id. at 1101-02. A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances or if the trial court has misinterpreted the law. Id. at 1102.

[24] 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. A claim or defense is “unreasonable” if, based on the totality of the circumstances, including the law and facts known 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. Bad faith is demonstrated where the party presenting the claim is affirmatively operating with furtive design or ill will. Id. A claim or defense is not groundless or frivolous merely because a party loses on the merits. Id.

[25] Broadly stated, Indiana Code § 34-52-1-1 strikes a balance between respect for an attorney's duty of zealous advocacy and the important policy of discouraging unnecessary and unwarranted litigation. Mitchell v. Mitchell, 695 N.E.2d 920, 924 (Ind. 1998) (citing a prior version of the statute). Subsections (b)(1) and (b)(2) of the statute focus on the legal and factual basis of the claim or defense and the arguments supporting the claim or defense. Id. On the other hand, subsection (b)(3), by its terms, requires scrutiny of the motive or purpose of the non-prevailing party. Id. Further, because the statute lists the grounds for awarding attorney fees in the disjunctive, a party is required to demonstrate the existence of only one ground in order to justify an award of attorney fees. In re Moeder, 27 N.E.3d at 1102.

[26] Here, the trial court awarded attorney fees based on the fact that the Russells continued to litigate after it was clear that the claims were clearly frivolous, unreasonable, or groundless. Our review of the record leads us to the same conclusion. For example, the trial court found that the Russells brought the restrictive covenants claim to trial and did not present any evidence supporting this claim. The trial court specifically noted the fact that the Russells could have dismissed this claim before trial and avoided the cost and time required to defend against it. The Russells act of bringing the restrictive covenants claim to trial and presenting no evidence at trial to support the claim was groundless.³ The trial court also found that the Russells brought the septic claim to trial despite the overwhelming evidence from multiple parties that had tested the Erwins’ septic system and had found that it had been functioning properly. Further, the trial court noted that the Russells presented no septic system regulation or evidence that the Erwins had violated any such regulation at trial. Thus, bringing this claim to trial was also groundless. The trial court also noted that the Russells brought this action, which included the trespass claim, “with no reliable evidence that any actions by Erwin were violative of any law or statute[.]” (App. Vol. 2 at 72). Thus, the trespass claim was also frivolous, unreasonable, or groundless.

[27] The Russells argue that, because their claims survived summary judgment and two claims survived a directed verdict, their claims were not frivolous, unreasonable, or groundless. However, the trial court specifically found that the restrictive covenants claim was frivolous, unreasonable, or groundless because the Russells had not presented any evidence at trial supporting this claim. Further, the trial court granted the Erwins’ request for a directed verdict on this claim for that reason. Accordingly, the trial court did not abuse its discretion when it ordered the Russells to pay the Erwins’ attorney fees.⁴

[28] Affirmed.⁵

FOOTNOTES

1.   In their complaint, the Russells also alleged a claim against the County Health Department. But, the County Health Department filed a motion to dismiss, and in April 2023, the trial court granted the County Health Department's motion.

2.   In their counterclaim, the Erwins also brought two other claims, but after the bench trial, the trial court found in favor of the Russells on those two claims. Those two claims are not relevant to this appeal.

3.   The Russells argue that the record shows that the restrictive covenants claim was not frivolous, unreasonable, or groundless because the parties, at the summary judgment hearing, had argued about and read portions of the restrictive covenants. However, the trial court's conclusion was that the restrictive covenants claim was frivolous, unreasonable, or groundless because the Russells had continued to litigate this claim and did not present the covenants or any evidence that the Erwins had violated the restrictive covenants at trial.

4.   We note that the Russells only challenged the trial court's findings that it gave little weight to the Russells’ soil sample testing results. The Russells argue that, because this evidence was admissible, the trial court clearly erred by “diminish[ing] their evidentiary value[.]” (Russells’ Br. 17, n.1). This argument amounts to a request to reweigh evidence or assess witness credibility, which we cannot do. See Landmark Legacy, LP v. Runkle, 81 N.E.3d 1107, 1114 (Ind. Ct. App. 2017) (noting that “[i]n reviewing the findings of fact, we neither reweigh the evidence nor judge witness credibility, but rather we review only the evidence and reasonable inferences drawn therefrom that support the trial court's findings and decision”).

5.   After submitting briefing for their appeal, the Erwins filed a motion for appellate attorney fees. Contemporaneously with this opinion, we have issued an order denying the Erwins’ motion for appellate attorney fees. 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. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). While we agree with the trial court's award of attorney fees, we choose to deny the Erwins’ request for appellate attorney fees and bring this litigation to a close.

Pyle, Judge.

Vaidik, J., and Mathias, J., concur.