L.S., Appellant-Respondent v. A.F., Appellee-Petitioner (2026)

MEMORANDUM DECISION

Case Summary

[1] After an altercation between A.F.’s teenage son and their neighbor L.S., A.F. filed a petition for an individual protective order against L.S. Based on the allegations in the petition, the trial court entered an ex parte order of protection. At an evidentiary hearing five months later, A.F. testified that she sought the protective order to protect her children, not herself. Given A.F.’s admissions that L.S. had never hit or threatened to hit her, and after explaining to her that an individual protective order could protect her only, the court granted L.S.’s motion for a judgment on the merits. L.S. also moved for attorney's fees under Indiana Code section 34-52-1-1(b), which the court denied. L.S. appeals, arguing the trial court erred in denying his motion for attorney's fees. Finding the court did not abuse its discretion, we affirm.

Facts and Procedural History

[2] In May 2025, a heated altercation occurred between L.S., A.F., and A.F.’s seventeen-year-old son. L.S. and the teenager “were screaming at each other” in front of their homes. Transcript Vol. 2 at 11. L.S. was upset that A.F.’s son had a dog outside off its leash. At some point during the argument, A.F. came outside and tried to deescalate the situation. L.S. started filming them with his cellphone and allegedly threatened to hit A.F.’s son with a crowbar. Someone called the police, and L.S. called animal control. A police officer who responded to the scene suggested to A.F. that she obtain a protective order against L.S.

[3] A few days later, A.F. filed a petition for an individual protective order against L.S. in which she briefly described the incident with her son. In her petition, she indicated that L.S. threatened her with physical harm, placed her in fear of physical harm, and committed repeated acts of harassment against her. In another section of the petition, she checked the following boxes indicating what type of relief she was seeking from the court:

Prohibit [L.S.] from committing, or threatening to commit, acts of domestic or family violence, stalking, or sex offenses against [her];

Prohibit [L.S.] from committing, or threatening to commit, acts of domestic or family violence, stalking, or sex offenses against [her] family or household members ․

․

Prohibit [L.S.] from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [her]; [and]

Order [L.S.] to stay away from [her] residence[.]

Appellant's Appendix Vol. 2 at 11-12.

[4] Based on the allegations in the petition, the court entered an ex parte order for protection the next day. The court found that stalking had occurred and that L.S. was “a credible threat to safety of [A.F.] or a member of [her] household.” Id. at 19. The court ordered L.S. to refrain from stalking, harassing, or contacting A.F. and to stay away from her home, school, and place of employment.

[5] On June 11, L.S. requested a hearing on the petition. The court granted his request and scheduled a hearing for August 14. Later in June, L.S. began filing motions asking the court to order A.F. to provide him with her phone records. After the court admonished him “to file [an] appropriate Motion for Discovery,” id. at 45, L.S. filed a verified pro se motion for discovery seeking A.F.’s phone records and issued subpoenas to A.F.’s son, multiple animal control officers, and a police officer for them to appear at the hearing. On July 22, L.S. retained counsel, who filed a motion to continue the hearing so she could engage in further discovery. The court granted the motion and continued the hearing to October 16.

[6] L.S. then filed a motion for leave to engage in limited discovery, which the court granted. In August, L.S. served A.F. with interrogatories and requests for production of documents. A.F. did not respond to L.S.’s discovery requests, and when L.S.’s counsel contacted A.F. about her failure to do so, A.F. responded that she had not received any discovery requests. She added, in part:

I am not dismissing this case, as nothing is frivolous or based on fabricated events. I went based off the suggestion of the officer whom I spoke with during the incident in May 2025, and obtained a protective order to prevent harassment to my family from [L.S.’s] outlandish behavior.

Id. at 147. The next month, L.S. filed a motion to compel, which the court granted. Ultimately, A.F. answered L.S.’s discovery requests.

[7] At the October 16 hearing, A.F. appeared pro se and L.S. came with counsel. The court started by questioning A.F., specifically asking her to explain why she sought the protective order. She testified about the incident from May 2025 as described above. The following discussion then ensued:

THE COURT: Okay. So, he has never hit you, correct?

[A.F.]: He has never hit me. He has never threatened me, but he has threatened [m]y children.

THE COURT: Okay. And just to confirm for the record, this is your individual Protection Order - -

․

[A.F.] No, this was supposed to be my whole family.

THE COURT: Okay. So, let me clarify that. So, you are the named party on this Protective Order, correct?

[A.F.]: Yes, because I filed it.

․

THE COURT: Okay. Um, now sometimes household parties can be added, but they are not the holders of, or protected by their own Protective Order. We also have a Protective Order that would be on behalf of a minor. We call it by Next Friend Petition.

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THE COURT: ․ [O]ne ․ more time [to be] abundantly clear for the record, ․ he has not hit you, and he has not threatened to hit you.

[A.F.]: Correct.

THE COURT: You're here for the children.

[A.F.]: Yes.

․

THE COURT: ․ So, as we sit here today, what is your ongoing safety concern for you specifically, [A.F.]?

[A.F.]: The harassment of my children, and the safety of my children.

Tr. Vol. 2 at 11-14. After A.F.’s testimony, L.S. moved for a judgment on the merits on the grounds that A.F. did not meet her burden of proof. He also moved for attorney's fees “as a sanction for [A.F.] having filed” the petition. Id. at 15. In a written motion supplementing that request, L.S. claimed that A.F's petition was frivolous and had been pursued in bad faith. See Appellant's App. Vol. 2 at 163-64.

[8] The court granted L.S.’s motion for a judgment on the merits and denied the protective order. It took the motion for attorney's fees under advisement. A month later, the court denied L.S. motion for attorney's fees, finding that

[a]fter careful review and consideration, ․ Respondent has not met his burden to demonstrate this case rises to the level of an exception to the American Rule regarding attorney fees.

The Petition for Order of Protection was denied on the merits and the Court cannot say that the Petition ․ filed by Petitioner was filed primarily for the purpose of harassment, or was otherwise unreasonable, groundless, or in bad faith.

For these reasons, the Court, having heard evidence and weighing the evidence before it, denied Respondent's request for attorney fees.

Id. at 154. L.S. now appeals.

Discussion and Decision

[9] L.S. argues the trial court erred in denying his motion for attorney's fees under Indiana Code section 34-52-1-1. We first note that A.F. did not file an appellee's brief in this matter. In its absence, we will not develop arguments on her behalf “but instead will reverse the trial court's judgment if [L.S.’s] brief presents a case of prima facie error.” Coronado v. Coronado, 243 N.E.3d 1121, 1124 (Ind. Ct App. 2024) (quoting In re Adoption of E.B., 163 N.E.3d 931, 935 (Ind. Ct. App. 2021)). “Prima facie error means ‘at first sight, on first appearance, or on the face of it.’ ” Id. (quoting Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind. Ct. App. 2014)). Nonetheless, we must still apply the relevant law to the facts of the case “to determine whether reversal is required.” Jenkins, 17 N.E.3d at 352.

[10] Generally, Indiana follows the American Rule in regard to attorney's fees, meaning each party is responsible for his own fees absent some exception. Abrell v. Delaware Cnty. Reg'l Wastewater Dist., 131 N.E.3d 725, 729 (Ind. Ct. App. 2019). Indiana Code section 34-52-1-1 constitutes one exception, and it provides that,

[i]n 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.

Ind. Code § 34-52-1-1(b). Whether a claim is frivolous, groundless, or brought in bad faith implicates distinct considerations. “A claim or defense is groundless if no facts exist which support the legal claim relied on and presented by the losing party.” Gilday v. Motsay, 26 N.E.3d 123, 130 (Ind. Ct. App. 2015) (quoting Dunno v. Rasmussen, 980 N.E.2d 846, 851 (Ind. Ct. App. 2012)). In contrast, a frivolous claim is one “made primarily to harass or maliciously injure another[,]” and a claim is made in bad faith if the asserting party “is affirmatively operating with furtive design or ill will.” Id. (quoting Dunno, 26 N.E.3d at 850-51).

[11] On appeal, L.S. asserts he is entitled to attorney's fees because A.F.’s petition was groundless. However, L.S. did not argue that A.F.’s motion was groundless in either his oral or written motions for attorney's fees. Rather, he claimed the petition was frivolous and brought in bad faith. Because arguments cannot be asserted for the first time on appeal, and L.S. did not present any argument below that A.F.’s claim was groundless, L.S. has waived the issue for appeal. Holtswarth v. Oliver, ––– N.E.3d ––––, 2026 WL 796741, at *4 (Ind. Ct. App. 2026) (“Issues raised for the first time on appeal are waived[.]”).

[12] Waiver notwithstanding, we find the trial court did not err in denying L.S.’s motion for attorney's fees. Our review of a trial court's decision to award or deny attorney's fees under section 34-52-1-1(b) involves three steps:

First, the trial court's findings of fact are reviewed under the clearly erroneous standard. Next, the court's legal conclusions regarding whether the litigant's claim was frivolous, unreasonable, or groundless are reviewed de novo. Finally, the court's decision to award attorney's fees and any amount thereof is reviewed for an abuse of discretion. A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances or if the court has misinterpreted the law.

In re Moeder, 27 N.E.3d 1089, 1101-02 (Ind. Ct. App. 2015) (internal citations omitted), reh'g denied, trans. denied. “[W]e will not reweigh the evidence or disturb the trial court's decision absent an abuse of discretion.” Gilday, 26 N.E.3d at 130. L.S. has the burden to prove that attorney's fees were warranted. Id.

[13] L.S. claims the trial court misapplied “the legal standard for ‘groundless’ claims” under the statute. Appellant's Brief at 7. As noted above, a claim is groundless when it is wholly unsupported by the facts alleged by the losing party. Gilday, 26 N.E.3d at 130. Here, the trial court specifically found that A.F.’s petition “was denied on the merits” and it could not say that A.F. had filed it “primarily for the purpose of harassment, or [that it was] otherwise unreasonable, groundless, or in bad faith.” Appellant's App. Vol. 2 at 154. This conclusion is not clearly erroneous. A.F.’s petition alleged that L.S. threatened and harassed her teenage son, and that he had done so more than once, which would have supported seeking a protective order on his behalf. While A.F. herself was admittedly not the target of L.S.’s threats—and she should have pursued the protective order on behalf of her minor children— there was no evidence that this was anything other than a mistake on A.F.’s part. Her confusion is understandable, as the court's form for an individual protective order included a section in which the petitioner may request protection for their family and household members as well. Indeed, A.F. filled out that section and listed the names of everyone in her household. In light of the May 2025 altercation between A.F.’s son and L.S., the allegation that L.S. had harassed her children in the past, and A.F.’s misunderstanding as to who her individual protective order covered, we conclude the court did not err in finding that A.F.’s claim was not groundless.

[14] Even if we were to accept L.S.’s contention that the petition was groundless, the court still had discretion to decide whether attorney's fees were appropriate. I.C. § 34-52-1-1(b) (if a party's action was groundless, “the court may award attorney's fees”) (emphasis added). We agree with the trial court that although L.S. “incurred significant attorney fees defending against this [petition], [he] did so voluntarily and without and assurance of repayment.” Appellant's App. Vol. 2 at 154. And in light of the circumstances here, we cannot say the trial court abused its discretion in denying his motion for attorney's fees.

Conclusion

[15] We affirm the trial court's denial of L.S.’s motion for attorney's fees.

[16] Affirmed.

DeBoer, Judge.

Brown, J., and Altice, J., concur.