Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019 Page 1 of 19

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Bryan L. Ciyou

Indianapolis, Indiana

ATTORNEY FOR APPELLEES:

TANDRA S. JOHNSON AND 

TANDRA S. JOHNSON, LLC

Michael H. Michmerhuizen

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Gene Towns and Jackie Towns,

Appellants-Intervenors,

v.

Josephine Long and Joseph 

Long,

Petitioner and Respondent,

and

Tandra S. Johnson and Tandra 

S. Johnson, LLC,

Appellee.

December 3, 2019

Court of Appeals Case No.

19A-DR-1047

Appeal from the Wells Circuit 

Court

The Honorable Kenton W. 

Kiracofe, Judge

Trial Court Cause No.

90C01-0902-DR-4

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019 Page 2 of 19

Case Summary

[1] In this interlocutory appeal, Gene and Jackie Towns (“Grandparents”) appeal 

the trial court’s order denying Grandparents’ motion to disqualify Tandra 

Johnson and Tandra S. Johnson, LLC (“Attorney Johnson”) as the attorney of 

Joseph Long and the trial court’s grant of Attorney Johnson’s motion for 

sanctions.

1

 We affirm. 

Issues

[2] Grandparents raise two issues, which we restate as:

I. Whether the trial court properly denied 

Grandparents’ motion to disqualify and remove 

Attorney Johnson; and

II. Whether the trial court properly granted Attorney 

Johnson’s request for sanctions under Indiana Code 

Section 34-52-1-1.

1 This is an interlocutory appeal as of right under Indiana Appellate Rule 14(A) because it is an order “[f]or 

the payment of money.” Johnson argues that Grandparents are judicially estopped from challenging the 

denial of their motion to disqualify Johnson and that Grandparents may challenge only the award of 

sanctions. According to Johnson, Grandparents asserted to the trial court that this appeal concerned only the 

award of sanctions, not the denial of Johnson’s disqualification. See Appellee’s App. Vol. II pp. 2-3 

(“Attorney Tandra Johnson has not been disqualified, and since the sole issue on appeal is whether the 

granting of Attorney Johnson’s request for fees and expenses was error, this matter pertaining to the custody 

motion filed by [Grandparents] can proceed on the merits simultaneously with the interlocutory appeal.”). 

Although we agree that Grandparents’ assertions to the trial court were incorrect and misleading, we note 

that we have jurisdiction to consider both the denial of the motion to disqualify and the granting of the 

motion for sanctions. See Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 322 (Ind. Ct. App. 2006) (holding that 

the court had jurisdiction to review both the discovery order and the order imposing sanctions for failure to 

comply with the discovery order in the interlocutory appeal as of right). Under these circumstances, we will 

address Grandparents’ arguments regarding the denial of their motion to disqualify Johnson.
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On cross-appeal, Attorney Johnson raises one issue, which we restate as 

whether she is entitled to fees under Indiana Appellate Rule 66(E).

Facts

[3] Jackie Towns is the mother of Joseph Long, and Gene Towns is Jackie’s 

husband and Joseph’s stepfather. Joseph was married to Josephine Long in 

2006, and they are the parents of M.L., who was born in June 2006. During 

their marriage, Joseph, Josephine, and M.L. lived with Grandparents.

[4] In 2009, Joseph and Grandparents consulted with Attorney Johnson to initiate 

a dissolution of marriage action regarding Joseph and Josephine’s marriage. 

Grandparents paid Joseph’s legal bills related to the dissolution because Joseph 

did not have the funds to hire a lawyer. Attorney Johnson filed an appearance

on behalf of Joseph and filed a petition for dissolution of marriage. Joseph and 

Josephine executed a settlement agreement in July 2009. The settlement 

agreement provided for joint legal custody and shared physical custody of M.L. 

between Joseph and Josephine. The settlement agreement also provided: “The 

parties agree that Husband’s step-father, Gene Towns, shall be designated as 

the de facto custodian of said minor child, in accordance with Ind. Code § 31-9-

1-35.5.”2

 Appellants’ App. Vol. II p. 142.

2 The de facto custodian definition is actually found at Indiana Code Section 31-9-2-35.5, which provides that 

a de facto custodian is:
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[5] After the dissolution, Joseph and Josephine had significant post-dissolution 

issues. On December 12, 2010, Joseph signed a Fee Engagement Agreement 

with Attorney Johnson. The Fee Engagement Agreement identified Joseph as 

the “Client” and provided:

I employ Tandra S. Johnson, Esq. (hereinafter “my attorney”) of 

the law firm Tandra S. Johnson, LLC (hereinafter “Firm”), and 

such of the Firm’s agents and employees as it may use to take 

such action as the Firm deems necessary, to represent me in a 

contempt, parenting time, possible custody matter action.

Id. at 57, 59. Grandparents then signed a Guarantee, which provided:

I, the undersigned, personally guarantee the performance of the 

client, to the above terms. I understand that the client is the 

person to whom Tandra S. Johnson will answer and by whom 

she will be instructed. This guarantee does not create the 

attorney client relationship between Tandra S. Johnson, LLC 

and me. I will only receive such information regarding this case 

as the client should approve. I understand that Tandra S. 

Johnson, LLC will rely on this guarantee in extending credit to 

the client. This guarantee shall be immediately binding on the 

Guarantor and shall continue in full force and effect until the 

Guarantor has given written notice by registered mail to Tandra 

[A] person who has been the primary caregiver for, and financial support of, a child who has 

resided with the person for at least:

(1) six (6) months if the child is less than three (3) years of age; or

(2) one (1) year if the child is at least three (3) years of age.

Any period after a child custody proceeding has been commenced may not be included in 

determining whether the child has resided with the person for the required minimum period. 

The term does not include a person providing care for a child in a foster family home (as defined 

in IC 31-9-2-46.9).
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S. Johnson, LLC not to extend further credit. Delivery of notice 

shall operate to prevent any liability on the part of the Guarantor 

to future indebtedness, but Guarantor shall remain liable upon all 

indebtedness then existing.

Id. at 60.

[6] Joseph and Josephine entered into a mediation agreement in September 2013, 

and Gene was removed as M.L.’s de facto custodian at that time. 

[7] In August 2018, Joseph moved out of Grandparents’ residence and took M.L. 

with him. On August 11, 2018, Grandparents informed Attorney Johnson that 

they were “no longer responsible for any of Joseph’s legal bills.” Tr. Vol. II p. 

129. In September 2018, Grandparents sought to intervene in the postdissolution proceedings and filed a claim for legal custody and parenting time of 

M.L. The trial court granted Grandparents “intervenor status to determine 

[their] de facto custodian status.” Appellants’ App. Vol. II p. 11.

[8] In November 2018, Grandparents filed a motion to disqualify Attorney 

Johnson and for sanctions. Attorney Johnson responded to Grandparents’

motion and requested that Grandparents’ motion for sanctions be denied and 

that she be granted sanctions under Indiana Code Section 34-52-1-1 because 

Grandparents’ motion was frivolous, unreasonable, and groundless. 

[9] At an evidentiary hearing in December 2018, Attorney Johnson called Donald 

Lundberg, former Executive Director of the Indiana Supreme Court 

Disciplinary Commission, to testify. Lundberg testified that, in his opinion,
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Grandparents did not have an attorney-client relationship with Attorney 

Johnson and that there was “no basis to disqualify her.” Id. at 152. Rather, 

Grandparents had “some incidental or consequential benefits from Ms. 

Johnson’s representation of Joe.” Id. at 151.

[10] The trial court entered findings of fact and conclusions of law denying 

Grandparents’ motion to disqualify Attorney Johnson; denying Grandparents’

request for sanctions; and granting Attorney Johnson’s request for sanctions 

under Indiana Code Section 34-52-1-1. The trial court ordered Grandparents to 

pay Attorney Johnson’s fees and expenses for contesting Grandparents’ motion 

to disqualify in the amount of $27,614.78. Grandparents now appeal.

Analysis

[11] The trial court here entered findings of fact and conclusions of law pursuant to 

Indiana Trial Rule 52(A). In reviewing findings made pursuant to Trial Rule 

52, we first determine whether the evidence supports the findings and then 

whether the findings support the judgment. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 

453, 457 (Ind. 2009). On appeal, we “shall not set aside the findings or 

judgment unless clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the credibility of the witnesses.” Id.; Ind. 

Trial Rule 52(A). A judgment is clearly erroneous when there is no evidence 

supporting the findings or the findings fail to support the judgment. K.I., 903 

N.E.2d at 457. A judgment is also clearly erroneous when the trial court 

applies the wrong legal standard to properly found facts. Id. 
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I. Disqualification of Counsel

[12] “A trial court may disqualify an attorney for a violation of the Indiana Rules of 

Professional Conduct (“IRPC”).” Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 

408, 411 (Ind. Ct. App. 2005). Grandparents argue that Attorney Johnson

violated two Indiana Rules of Professional Conduct, Rule 1.7 and Rule 1.9. 

Rule of Professional Conduct 1.7 provides:

(a) Except as provided in paragraph (b), a lawyer shall not 

represent a client if the representation involves a concurrent 

conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse 

to another client; or

(2) there is a significant risk that the representation of one 

or more clients will be materially limited by the lawyer’s 

responsibilities to another client, a former client or a third 

person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of 

interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be 

able to provide competent and diligent representation to 

each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a 

claim by one client against another client represented by 
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the lawyer in the same litigation or other proceeding 

before a tribunal; and

(4) each affected client gives informed consent, confirmed 

in writing.

[13] Rule of Professional Conduct 1.9 provides:

(a) A lawyer who has formerly represented a client in a matter 

shall not thereafter represent another person in the same or a 

substantially related matter in which that person’s interests are 

materially adverse to the interests of the former client unless the 

former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same 

or a substantially related matter in which a firm with which the 

lawyer formerly was associated had previously represented a 

client

(1) whose interests are materially adverse to that person; 

and

(2) about whom the lawyer had acquired information 

protected by Rules 1.6 and 1.9(c) that is material to the 

matter; unless the former client gives informed consent, 

confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or 

whose present or former firm has formerly represented a client in 

a matter shall not thereafter:

(1) use information relating to the representation to the 

disadvantage of the former client except as these Rules 
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would permit or require with respect to a client, or when 

the information has become generally known; or

(2) reveal information relating to the representation except 

as these Rules would permit or require with respect to a 

client.

[14] A current or former attorney-client relationship between Grandparents and 

Attorney Johnson would be required for either of these rules to be applicable 

here. Grandparents argue that Attorney Johnson should have been disqualified 

from representing Joseph in the post-dissolution proceedings because, at the 

same time, Attorney Johnson also represented Grandparents, who later 

intervened in the action. Alternatively, Grandparents argue that Attorney 

Johnson previously represented Grandparents and that Attorney Johnson owed 

them a duty not to act contrary to their interests. 

[15] Grandparents later contend that Attorney Johnson jointly represented Joseph 

and Grandparents in 2009, that Attorney Johnson acted only as Joseph’s 

attorney in 2010 and early 2011, and that Attorney Johnson had an attorneyclient relationship with Grandparents from 2011 through 2018. Attorney 

Johnson, however, argues that she never had an attorney-client relationship 

with Grandparents, and the trial court agreed.

[16] The determinative issue here is whether Attorney Johnson had an attorneyclient relationship with Grandparents. “[A]n attorney-client relationship need 

not be express, but may be implied by the conduct of the parties.” Matter of 

Kinney, 670 N.E.2d 1294, 1297 (Ind. 1996). The relationship is consensual, 
Court of Appeals of Indiana | Memorandum Decision 19A-DR-1047 | December 3, 2019 Page 10 of 19

existing only after both attorney and client have consented to its formation. Id. 

“[T]he mere provision of nominal legal advice is not automatically dispositive 

where the existence of an attorney-client relationship is disputed.” Id. at 1298. 

[17] “‘Attorney-client relationships have been implied where a person seeks advice 

or assistance from an attorney, where the advice sought pertains to matters 

within the attorney’s professional competence, and where the attorney gives the 

desired advice or assistance.’” Douglas v. Monroe, 743 N.E.2d 1181, 1184 (Ind. 

Ct. App. 2001) (quoting In re Anonymous, 655 N.E.2d 67, 71 (Ind. 1995)). “‘An 

important factor is the putative client’s subjective belief that he is consulting a 

lawyer in his professional capacity and on his intent to seek professional 

advice.’” Id. (quoting Anonymous, 655 N.E.2d at 70)). “[A] ‘would-be client’s 

unilateral belief cannot create an attorney-client relationship.’” Id. at 1185 

(quoting Hacker v. Holland, 570 N.E.2d 951, 955 (Ind. Ct. App. 1991), trans. 

denied). The trial court concluded that no attorney-client relationship existed, 

and we must determine whether the trial court’s conclusion is clearly erroneous.

[18] At the evidentiary hearing, Gene testified that he believed Attorney Johnson

represented “all of us.” Tr. Vol. II p. 30. Grandparents occasionally had 

conversations with Attorney Johnson about the dissolution and post-dissolution 

proceedings, they provided information to Attorney Johnson, and they 

occasionally emailed with Attorney Johnson. Gene also attended a mediation 

with Joseph and was named de facto custodian of M.L. in Joseph’s settlement 

agreement with Josephine. According to Grandparents, Attorney Johnson

never told Grandparents to obtain their own counsel.
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[19] The trial court, however, was also presented with evidence that: (1) Attorney 

Johnson represented Joseph in his dissolution proceedings with Josephine; (2) 

when post-dissolution issues arose, Attorney Johnson and Joseph entered into a 

written Fee Engagement Agreement by which Joseph employed Attorney 

Johnson as his attorney in the post-dissolution proceedings; (3) Grandparents

entered into a Guarantee by which they agreed to guarantee Joseph’s payments 

to Attorney Johnson; (4) the Guarantee specifically provided that no attorneyclient relationship existed between Attorney Johnson and Grandparents; (5) 

Grandparents were never a party to the dissolution or post-dissolution 

proceedings prior to intervening; (6) correspondence from Attorney Johnson

was addressed to Joseph; (7) Attorney Johnson’s bills were sent to Joseph 

although they were paid by Grandparents; (8) Attorney Johnson’s bills clearly 

identified Joseph as the client; (9) Lundberg gave an expert opinion that 

Attorney Johnson did not have an attorney-client relationship with 

Grandparents and that there was no valid reason for Attorney Johnson’s 

disqualification; (10) Attorney Johnson testified that she told Grandparents that 

she represented only Joseph and that Joseph gave her permission to share 

information with Grandparents as Attorney Johnson “saw fit”; and (11) Joseph 

testified that he heard Attorney Johnson tell Grandparents that she was only 

Joseph’s attorney on more than one occasion. Tr. Vol. II p. 183.

[20] There was no express agreement to create an attorney-client relationship 

between Grandparents and Attorney Johnson. As such, the trial court 

addressed whether the evidence established an implied attorney-client 
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relationship. After discussing and weighing the evidence at length, the trial 

court found:

27. The Court finds that the conduct of Johnson towards 

[Grandparents] is insufficient to establish an attorney-client 

relationship was impliedly formed with either Gene or Jackie.

28. The Court specifically finds that an attorney-client 

relationship was not implied by the conduct of Johnson and 

[Grandparents].

Appellants’ App. Vol. II p. 29.

[21] Our Supreme Court, however, has held that, in reviewing findings of fact and 

conclusions of law, “[a]ppellate judges are not to reweigh the evidence nor 

reassess witness credibility, and the evidence should be viewed most favorably 

to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Grandparents’

argument that they had an attorney-client relationship with Attorney Johnson is 

merely a request that we reweigh the evidence, which we cannot do. Given the 

evidence presented at the hearing, we cannot say that the trial court’s findings 

are clearly erroneous or that its conclusion that no attorney-client relationship 

existed between Attorney Johnson and Grandparents is clearly erroneous. 

Because no attorney-client relationship was established, Grandparents failed to 

demonstrate a violation of the Indiana Rules of Professional Conduct. 

Accordingly, the trial court’s denial of Grandparents’ motion to disqualify 

Attorney Johnson is not clearly erroneous. 
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II. Attorney Fees

[22] Grandparents also appeal the trial court’s grant of Attorney Johnson’s motion 

for sanctions pursuant to Indiana Code Section 34-52-1-1. Indiana Code 

Section 34-52-1-1(b) 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] 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.” 

Am.’s Directories Inc., Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059, 

1070-71 (Ind. Ct. App. 2005), trans. denied. A claim is “unreasonable” if, 

“based upon 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.” Id. at 1071. A claim is “groundless” if “no facts exist 

which support the claim relied upon by the losing party.” Id.
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[24] The trial court concluded that Grandparents’ motion to disqualify Attorney 

Johnson was frivolous, unreasonable, and groundless. Specifically, the trial 

court found:

52. There was never an attorney-client relationship created 

between Johnson and [Grandparents].

53. From the very beginning, [Grandparents’] relationship with 

Johnson was centered around Joe and his marriage to Josephine, 

and then, subsequently, around Joe and post-dissolution matters 

related to Josephine and their son, [M.L.].

54. Although [Grandparents] accompanied Joe to his initial 

appointment with Johnson, their purpose was to finance 

Johnson’s representation of Joe in a dissolution of his marriage 

to Josephine.

55. Subsequently, [Grandparents] signed an agreement that 

specifically distinguished between Joe as the client and 

themselves as the guarantors of any financial responsibility Joe 

had with Johnson. This agreement says the exact opposite which

they have attempted to bring the court’s attention in the Verified 

Motion to Disqualify and Remove Counsel of Record and for 

Sanctions.

56. [Grandparents] cited no case law that remotely supports the 

conclusion that if two parties agreed to the appointment of a de 

facto custodian . . . that it is sufficient to create an attorney-client 

relationship between the de facto custodian and counsel for one 

of the parties. Further, [Grandparents] have cited no case law 

that remotely supports the conclusion that sending a courtesy 

copy of a letter directed specifically to a client creates an 

attorney-client relationship with the copied parties. Gene Towns 

admitted that he knew that Joe was the client, but testified that 
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that was just a “technicality.” Rule 3.7 of the Indiana Rules of 

Professional Conduct does not support disqualifications, and 

[Grandparents’] reliance on this Rule was wholly and completely

without merit. The Court finds that [Grandparents’] Verified 

Motion to Disqualify and Remove Counsel of Record and for 

Sanctions is “frivolous” as defined in the law.

57. The Verified Motion to Disqualify and Remove Counsel of 

Record and for Sanctions is “unreasonable” because, based upon 

all of the circumstances[,] no reasonable attorney would consider 

the claim worthy of raising. As Donald Lundberg pointed out, 

there is simply no basis to find that Johnson was also an attorney 

for [Grandparents]. [Grandparents] had no pending claims and 

specifically signed an agreement that Johnson was not their 

attorney. Johnson never appeared for [Grandparents] in this

action nor did she perform any legal services on behalf of 

[Grandparents]. All of Johnson’s efforts were directed solely 

toward Joe. No reasonable attorney, after reading Rule 3.7 and 

the comments thereto, would assert that Rule 3.7 dictates that 

Johnson be disqualified.

58. The Court finds no facts supporting the creation of an 

attorney-client relationship, thus [Grandparents’] Verified 

Motion to Disqualify and Remove Counsel of Record and for 

Sanctions is “groundless.”

59. The Court’s decision to award attorney’s fees is buttressed by 

the fact that it appears to the Court that the attempt to disqualify 

Johnson was an abuse of the legal process designed to deprive 

Joe of one of his fundamental rights—the right to choose his own 

counsel.

Appellants’ App. Vol. II pp. 32-33. The trial court noted that Attorney Johnson

resisted the motion to disqualify at her own expense because Joseph had very 
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limited financial resources and did not have the funds to hire another attorney 

who would have to familiarize himself or herself with ten years of litigation. 

The trial court also noted:

It is unfortunate [Grandparents] have elected to pursue a motion 

to disqualify, using resources and court time, which could have 

been better spent resolving [Grandparents’] custody motion on 

the merits. Their choice of action has only further prolonged this

matter and caused uncertainty for all parties, including the minor 

child.

Id. at 33. 

[25] According to Grandparents, there was substantial evidence that Attorney 

Johnson was their attorney; they made a “rational, good faith argument that 

Johnson should be disqualified”; and there is no evidence that Grandparents

made the motion to disqualify Attorney Johnson primarily to “harass or injure”

Joseph. Appellants’ Br. p. 20. Grandparents also argue that Lundberg’s 

opinion was not based on a complete review of the record and that they had the 

right to contest Lundberg’s opinion without being subject to sanctions.

[26] The trial court’s decision, however, was not based solely on Lundberg’s 

opinion. Although there was undeniably contact between Grandparents and 

Attorney Johnson during Joseph’s dissolution and post-dissolution proceedings, 

there was also significant evidence that there was no attorney-client relationship 

between Grandparents and Attorney Johnson. The trial court weighed the 

evidence and assessed the witnesses’ credibility and found that Grandparents’

actions were frivolous, unreasonable, groundless, and an abuse of process. On 
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appeal, we cannot reweigh the evidence or judge the credibility of the witnesses. 

The trial court was in the best position to determine Grandparents’ motives in 

bringing the action to disqualify Attorney Johnson. Under these circumstances, 

the trial court’s findings of fact and conclusions of law regarding Attorney 

Johnson’s request for sanctions under Indiana Code Section 34-52-1-1 are not 

clearly erroneous.3

III. Indiana Appellate Rule 66(E)

[27] Attorney Johnson argues that she is entitled to damages under Indiana 

Appellate Rule 66(E), which provides: “The Court may assess damages if an 

appeal, petition, or motion, or response, is frivolous or in bad faith. Damages 

shall be in the Court’s discretion and may include attorneys’ fees. The Court 

shall remand the case for execution.” Our discretion to award attorney fees 

under Indiana Appellate Rule 66(E) is “limited to instances when an appeal is 

permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or 

purpose of delay.” Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1033 (Ind. 

Ct. App. 2018), trans. denied. While Appellate Rule 66(E) provides us 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.” Id. “A strong showing is required to justify 

3 Grandparents do not challenge the trial court’s calculation of fees and expenses in the amount of 

$27,614.78.
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an award of appellate damages, and the sanction is not imposed to punish mere 

lack of merit, but something more egregious.” Id.

[28] We have categorized claims for appellate attorney fees into “procedural” and 

“substantive” bad faith claims. Id. “Procedural bad faith occurs when a party 

flagrantly disregards the form and content requirements of the rules of appellate 

procedure, omits and misstates relevant facts appearing in the record, and files 

briefs written in a manner calculated to require the maximum expenditure of 

time both by the opposing party and the reviewing court.” Id. “To prevail on a 

substantive bad faith claim, the party must show that the appellant’s 

contentions and arguments are utterly devoid of all plausibility.” Id.

[29] Attorney Johnson argues that Grandparents exhibited both procedural and 

substantive bad faith in their appeal. As for procedural bad faith, although 

Grandparents did not strictly comply with our appellate rules, we cannot say 

that Grandparents flagrantly disregarded those rules or that the briefs were 

written to require maximum expenditure of time. Regarding substantive bad 

faith, although Grandparents’ arguments are unsuccessful, we cannot say that 

their contentions are utterly devoid of all plausibility. Given our responsibility 

to use “extreme restraint” in awarding damages under Appellate Rule 66(E), we 

decline to award damages here. Id.

Conclusion

[30] The trial court’s denial of Grandparents’ motion to disqualify Attorney Johnson

is not clearly erroneous, and the trial court’s grant of Attorney Johnson’s 
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motion for sanctions under Indiana Code Section 34-52-1-1 is not clearly 

erroneous. We decline to award damages under Indiana Appellate Rule 66(E). 

We affirm.

[31] Affirmed.

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