Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 1 of 17

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.

ATTORNEYS FOR APPELLANTS

Jeffrey K. Graham

Micha R. Buffington

Graham, Regnier, Farrar & Wilson, P.C.

Elwood, Indiana

ATTORNEYS FOR APPELLEE

William R. Groth

David T. Vink

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Madison County Board of 

Commissioners and Madison 

County Highway Department,

Appellants-Defendants,

v.

American Federation of State 

County and Municipal 

Employees Local 3609,

Appellee-Plaintiff.

April 19, 2017

Court of Appeals Case No.

33A01-1609-PL-2136

Appeal from the Henry Circuit 

Court.

The Honorable Jack Tandy, Senior 

Judge.

Cause No. 33C01-1502-PL-8

Friedlander, Senior Judge

[1] Madison County appeals the trial court’s award of attorney’s fees. To place the 

present appeal and our decision in proper context, the following is a summary 

of the underlying facts and procedural history of this case derived from our 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 2 of 17

opinion in the first appeal involving these parties, reported in Madison County 

Board of Commissioners v. American Federation of State County and Municipal 

Employees Local 3609, 45 N.E.3d 868 (Ind. Ct. App. 2015), trans. denied, and 

from the material presented here on appeal. 

[2] Scott Amos, president of the American Federation of State County and 

Municipal Employees Local 3609 (the Union), and Travis Benfield, vicepresident of the Union, were employed by the Madison County Highway 

Department (the Department) as truck drivers. On June 23 through June 25 of 

2014, they were assigned to the same truck to repair potholes and broken 

pavement. 

[3] On June 23rd and 24th, a county commissioner observed the truck to which 

Amos and Benfield were assigned idling for some time on the road near his 

house. The commissioner observed that some, but not all, of the road had been 

repaired before the employees left the location at the end of both days. Each 

day the county commissioner reported his observations to the Department 

superintendent; however, neither Amos nor Benfield were notified or warned of 

the complaints/allegations. On June 25th, the GPS tracking device on the truck 

used by Amos and Benfield indicated, and another Department employee 

observed, that the truck used by the two was parked near two restaurants for 

over an hour. Under the Collective Bargaining Agreement (CBA) entered into 

by the County and the Union, Department employees are allowed a half hour 

at mid-day without pay to eat lunch. Appellants’ App. Vol. II, p. 52.
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 3 of 17

[4] When Amos and Benfield returned the truck to the Department garage on June 

25th, they were given “Disciplinary Notice Written Warnings dated Monday, 

June 23, 2014,” stating that they were being disciplined for a Class B 5 minor 

infraction occurring on June 23, 2014 for sleeping on the job or loafing, or 

spending excessive time at lunch. 45 N.E.3d at 871; Appellants’ App. Vol. II, 

p. 59 (defining Class B minor infractions and discipline), and p. 67. On June 

26, 2014, Amos and Benfield were suspended without pay pending an 

investigation into their alleged violations of the CBA, county personnel policies, 

and Indiana employment statutes. The allegations supporting their suspension 

contended Amos and Benfield were guilty of ghost employment for failure to 

perform their duties while on the job. Appellants’ App. Vol. II, p. 67.

[5] The CBA between the Union and the County recognized the County’s 

authority to take appropriate disciplinary action for just cause. Id. at 69-70. 

Under the CBA, employees may be disciplined for class A minor infractions, 

class B minor infractions, or major infractions of work rules. A class B 

infraction includes sleeping on the job, loafing or spending excessive time at 

lunch periods, and other actions deemed class B infractions by the Department 

superintendent. Id. p. 59. In unusual situations, class B infractions may be 

elevated to a major infraction. Major infractions include: theft or dishonesty of 

any kind; using County property or equipment for personal matters not required 

by job duties; falsification, tampering with, removing, or misusing any County 

records, documents, or reports; leaving the job during working hours without 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 4 of 17

prior authorization; and, other actions of similar consequences deemed so by 

the Department superintendent. Id. at 60. 

[6] A first violation classified as a class B infraction offense results in a written 

warning, the second offense results in a five-day layoff without pay, and the 

third offense results in the employee being subject to discharge. Id. at 59. On 

the other hand, the commission of a single major infraction results in the 

employee being subject to discharge. Id. at 60-61. Disciplinary action, if any, 

shall take place within three working days from the time the incident was 

reported to the Department superintendent or the designee. Id. at 58-59. 

[7] After a pre-deprivation hearing, held per the terms of the CBA, Amos and 

Benfield were notified that their employment was terminated immediately due 

to findings that they had committed ghost employment by submitting timecards 

representing that they were working, where the evidence showed they were not. 

Id. at 67-68. The notice further stated that they had committed major 

infractions, which subjected them to discharge and that the matter was being 

referred to the prosecutor’s office. Id. at 68. The major infractions found were 

those examples mentioned above.

[8] Amos and Benfield utilized the CBA’s grievance procedures and the matter was 

submitted to arbitration. According to the CBA, “[t]he arbitrator shall have no 

authority to add to, change, delete, or otherwise modify any part of this 

agreement. Any decision of the arbitrator shall be final and binding on all 

parties.” 45 N.E.3d at 872. The question that was stipulated to by the parties 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 5 of 17

and presented to the arbitrator was, “Were the discharges of [the Employees] 

for just cause? If not, what is the proper remedy?” Id.; Appellants’ App. Vol. 

II, p. 68. 

[9] The arbitrator issued an award finding that the County had failed to prove that 

Amos and Benfield had engaged in ghost employment. The arbitrator also 

found that Amos’ and Benfield’s actions did not fall within the categories of 

major infractions. Instead, the arbitrator found that the employees had 

committed the misconduct set forth in the initial written warnings—sleeping or 

loafing on the job and taking an excessively long lunch break—which were

identified as class B minor infractions in the written warning delivered to Amos 

and Benfield. The arbitrator adjusted the sanction of immediate termination, 

reinstating Amos’ and Benfield’s employment, and imposed a five-day layoff 

without pay as the sanction for the misconduct found by the evidence 

presented. 

[10] Next, even though the CBA provided that the decision of the arbitrator was 

final and binding on all of the parties, the County filed an application to correct 

or vacate the arbitrator’s award. Under Indiana Code section 34-57-2-14 

(1998), a provision of Indiana’s Uniform Arbitration Act, a trial court within 

the appropriate time period, “shall modify or correct the [arbitrator’s] award 

where: (1) there was an evident miscalculation of figures or an evident mistake 

in the description of any person, thing, or property referred to in the award; (2) 

the arbitrators have awarded upon a matter not submitted to them and the 

award may be corrected without affecting the merits of the decision upon the 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 6 of 17

issues submitted; or (3) the award is imperfect in a matter of form, not affecting 

the merits of the controversy. The County contended that the arbitrator had 

exceeded his authority by basing his decision on due process concerns and by 

reducing Amos’ and Benfield’s punishment. The Union, which represented 

and continues to represent Amos and Benfield throughout this matter, filed an 

answer and counterclaim, which included a request for attorney’s fees. Both 

parties filed cross-motions for summary judgment. 

[11] The trial court summarily granted the Union’s motion, denied the County’s 

motion, and confirmed the arbitrator’s award in all respects. More specifically, 

the trial court ordered that “[a]ny disputes regarding the calculation of back-pay 

and attorney fees are remanded to the Arbitrator.” Appellants’ App. Vol. II, p. 

86. 

[12] The County appealed and a panel of this Court affirmed the trial court’s 

judgment. We found that the trial court appropriately followed the standard of 

review in declining to review the merits of the decision of the arbitrator de 

novo, and found that the arbitrator did not modify the conditions of the CBA, 

but appropriately exercised his authority to modify the sanction imposed based 

upon the question presented to him. The Court found that the County had 

“established no basis for correcting or vacating the arbitrator’s award.” Madison 

Cty Bd. of Com’rs, 45 N.E.3d at 876. 

[13] Undeterred, the County sought transfer of the matter to the Indiana Supreme 

Court. Transfer was unanimously denied on February 17, 2016. See Madison
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 7 of 17

Cty Bd. of Com’rs v. Am. Fed’n of State Cty and Mun. Emp’s. Local 3609, 45 N.E.3d 

1211 (Ind. 2016). 

[14] Both parties appeared before the arbitrator for a calculation of back-pay and 

attorney’s fees. Appellants’ App. Vol. II, p. 10. The parties had stipulated that 

the Union’s attorney’s fees were $23,992.50, which included trial and appellate 

fees. In his supplemental award of April 27, 2016, the arbitrator concluded that 

he lacked statutory or contractual authority to order the County to pay the 

Union’s attorney’s fees in successfully defending the County’s attempt to vacate 

his award. Id. The arbitrator did explicitly find that “the County’s obstinate 

and repeated efforts to secure a vacatur order from all three levels of the Indiana 

judiciary can accurately be labeled as frivolous, groundless, and unreasonable.” Id. at 

11. The arbitrator further expressed that a court of competent jurisdiction, 

making the same finding, might well determine that the payment of attorney’s

fees from the County to the Union would be justified. Id. He concluded by 

stating, “because the Arbitrator has been shown no legal authority for such an 

arbitral remedy, the Union’s request for attorney’s fee[s] must be denied in this 

forum. Id. at 146. 

[15] On May 2, 2016, the Union filed a “Submission of Arbitrator’s Supplemental 

Award on Remand, Motion for Attorneys’ Fees Pursuant to Ind. Code § 34-52-

1-1(b), and Motion for Entry of Final Judgment,” along with a supporting 

memorandum of law and later filed a motion for special findings. Id. On May 

27, 2016, the County filed its memorandum in support of its own motion for 

attorney’s fees for defending the Union’s request along with a brief in support of 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 8 of 17

the request. The Union also filed a response in opposition to the County’s 

motion for attorney’s fees. 

[16] The trial court held a hearing on the motions for attorney’s fees and back 

wages. With respect to attorney’s fees, the Union argued that the trial court 

should find as the arbitrator did that the County’s decision to pursue complete 

judicial review of the arbitrator’s decision was frivolous, groundless, and 

unreasonable in light of the finality of the arbitrator’s decision per the terms of 

the CBA.

[17] The County contended that the Union’s claim for attorney’s fees was barred by 

res judicata, arguing that since the arbitrator concluded he was without 

jurisdiction to issue an award of attorney’s fees, he had effectively denied the 

request on the merits. The County also argued that the time to have appealed 

this denial of the Union’s request for attorney’s fees had passed pursuant to the 

time limitations of the appellate rules. Additionally, the County claimed that a 

request for appellate fees was waived because the Union did not seek appellate 

attorney fees under Indiana Appellate Rule 66(E) as the matter proceeded 

through the appellate process. The County also argued that the trial court had 

no authority to award a prevailing party appellate attorney’s fees for defending 

against a groundless appeal.

[18] On August 17, 2016, the trial court issued its findings of fact, conclusions 

thereon and judgment, finding that the County’s litigation was frivolous, 

groundless, and unreasonable. The court granted the Union’s motion for 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 9 of 17

attorney’s fees, entering a final judgment against the County in the stipulated 

amount of $23,992.50—the Union’s attorney’s fees expended in the trial court 

and on all appellate levels defending the County’s attempt to vacate the 

arbitrator’s award. 

[19] The County appeals raising the following issues: (1) whether the trial court 

could grant appellate attorney fees without a mandate from the appellate court; 

(2) whether a trial court may grant trial attorney fees where they were not 

requested, not authorized by contract or statute, and were specifically denied by 

the arbitrator; and, (3) whether the County’s act of seeking vacatur on the 

ground that the arbitrator exceeded its authority is frivolous, groundless, or 

unreasonable. The Union contends that the trial court’s award of trial and 

appellate attorney’s fees was correct and seeks attorney’s fees under Indiana 

Appellate Rule 66(E) for the present appeal.

[20] First, we consider the County’s argument that the trial court could not issue an 

award of appellate attorney fees without being directed to do so by this Court. 

Indiana’s general rule, also known as the American Rule, is that each party to 

the litigation must pay his or her own attorney’s fees. City of Jeffersonville v. 

Envtl. Mgmt. Corp., 954 N.E.2d 1000 (Ind. Ct. App. 2011). An award of 

attorney’s fees may be authorized by contract, rule, statute, or agreement, 

nonetheless. Id. The Union sought attorney’s fees under Indiana’s Attorney 

Fee Statute, which provides in pertinent part as follows:

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:
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 10 of 17

(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) (1998).

[21] The County’s contention presents a question of statutory interpretation. 

“When faced with a question of statutory interpretation, we first examine 

whether the language of the statute is clear and unambiguous . . . . The statute 

itself is the best evidence of legislative intent . . . . We construe statutes only 

where there is some ambiguity which requires construction.” Smith v. Champion 

Trucking Co., Inc., 925 N.E.2d 362, 365 (Ind. 2010) (quoting State v. American 

Family Voices, Inc., 898 N.E.2d 293, 297 (Ind. 2008)).

[22] The County argues that the statute should be construed to read as solely 

providing for an award of attorney’s fees at the trial level. We believe that this 

reading of the statute is too narrow. The express language of the statute is clear 

and provides no such limitations. If the legislature had intended a narrower 

reading, it would have drafted the statute to reflect that intention.

[23] Additional support for this interpretation can be found in cases deciding 

whether an award under other statutes can include an award of appellate 

attorney fees. In Benge v. Miller, 855 N.E.2d 716 (Ind. Ct. App. 2006), we held 

that an award under Indiana Code section 34-24-3-1 (1998) (Crime Victim’s 

Relief Act), and Indiana Code section 24-5-0.5-4 (1995) (damages for deceptive 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 11 of 17

consumer sales), included appellate attorney’s fees where both statutes 

contained language about awarding a reasonable attorney’s fee. We followed 

this holding in Heartland Resources, Incorporated v. Bedel, 903 N.E.2d 1004 (Ind. 

Ct. App. 2009), with respect to the Crime Victim’s Relief Act. 

[24] The language of Indiana’s Attorney Fee Statute is similar in that it authorizes 

an award of attorney’s fees. The trial court had the authority pursuant to 

statute to award appellate attorney’s fees and did not abuse its discretion when 

it did.

[25] The County argues that the Union’s request for appellate fees is waived because 

the Union did not request them during the original appeal. The County argues 

that it had no opportunity to defend against the Union’s request. Indiana 

Appellate Rule 66 (E) 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.” By the plain language of the rule, it is not the 

exclusive means by which a party can recover appellate attorney’s fees. Indeed, 

attorney’s fees may be recovered by contract, rule, statute, or agreement. City of 

Jeffersonville, 954 N.E.2d 1000. 

[26] With respect to the County’s argument that it had no opportunity to defend

against the Union’s request, we observe that the County stipulated to the 

amount of the Union’s attorney’s fees, which included appellate attorney’s fees. 

Additionally, the County had the opportunity to challenge the Union’s request 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 12 of 17

when the matter was presented to the arbitrator, who declined to rule on the 

merits of the request for jurisdictional reasons, and the trial court, which 

entered the order deciding the issue.

[27] Also, the County asserts that the arbitrator denied the Union’s request for 

attorney’s fees on the merits, and as such, the trial court abused its discretion by 

granting the Union’s request for fees. The language used in the arbitrator’s 

award clearly expressed that if the arbitrator had the authority to rule on the 

Union’s request for fees, it would have granted that request. Because the 

arbitrator lacked contractual or statutory authority, and the Union presented no 

evidence to suggest that the arbitrator had such, the arbitrator concluded that 

“the Union’s request for attorney’s fee[s] must be denied in this forum.” 

Appellants’ App. Vol. II, p. 146. 

[28] The principle behind the doctrine of res judicata is the prevention of repetitive 

litigation of the same dispute. MicroVote Gen. Corp. v. Ind. Election Com’n, 924 

N.E.2d 184 (Ind. Ct. App. 2010). For a claim to be precluded under this 

doctrine, four requirements must be satisfied, of which the following one is 

dispositive in this action: the former judgment must have been rendered on the 

merits. Id. The arbitrator’s decision plainly limits his denial of the Union’s 

request to his lack of authority to decide the issue on the merits.

[29] The County further argues that the Union was required to file an action for 

vacatur of the arbitrator’s decision on the issue of attorney’s fees instead of 

making its application to the trial court. We disagree. The Union sought 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 13 of 17

enforcement of the arbitrator’s award after the County’s efforts on appellate 

review had been exhausted. After the arbitrator concluded that he was without 

authority to determine the issue of attorney’s fees on the merits, the Union 

proceeded under a statute authorizing a trial court to decide the issue. We find 

no abuse of discretion. 

[30] Next, the County argues that a trial court may not grant trial attorney fees 

where they were not requested, not authorized by contract or statute, and were 

specifically denied by the arbitrator. The same analysis, used with respect to 

appellate attorney’s fees, applies with respect to this issue. The trial court was 

authorized by statute to determine this issue on the merits. We find no abuse of 

discretion here.

[31] The County also argues that the trial court abused its discretion by awarding 

trial and appellate attorney’s fees because its pursuit of appellate review of the 

arbitrator’s award was not groundless, frivolous, or unreasonable.

[32] Appellate review of the decision to award attorney’s fees under the statute 

involves multi-level review. Purcell v. Old Nat. Bank, 972 N.E.2d 835 (Ind. 

2012). First, we review the trial court’s findings of fact under the clearly 

erroneous standard, and legal conclusions about whether the litigant’s claim 

was frivolous, unreasonable, or groundless are reviewed de novo. Id. The trial 

court’s decision to award attorney’s fees and any amount thereof is reviewed for 

an abuse of discretion. Id. A trial court abuses its discretion if its decision is 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 14 of 17

clearly against the logic and effect of the facts and circumstances or if the trial 

court has misinterpreted the law. Id.

[33] A claim is groundless where no facts exist to support the legal claim relied on 

and presented by the losing party. Id. Claims or defenses are frivolous (a) if 

made primarily for the purpose of harassing or maliciously injuring a person, or 

(b) if the lawyer does not make a good faith and rational argument on the 

merits of the action, or (c) if the lawyer does not support the action taken by a 

good faith and rational argument for an extension, modification, or reversal of 

existing law. Wolfe v. Eagle Ridge Holding Co., LLC., 889 N.E.2d 521 (Ind. Ct. 

App. 2007). Claims or defenses are unreasonable if, based on a totality of the 

circumstances, including the law and facts known at the time of the filing, no 

reasonable attorney would consider that the claim or defense was worthy of 

litigation or justified. Lockett v. Hoskins, 960 N.E.2d 850 (Ind. Ct. App. 2012). 

[34] By statute, the County, in its request for vacatur, had to establish that: (1) there 

was an evident miscalculation of figures or an evident mistake in the description 

of any person, thing, or property referred to in the award; (2) the arbitrators had 

awarded upon a matter not submitted to them and the award may be corrected 

without affecting the merits of the decision upon the issues submitted; or (3) the 

award is imperfect in a matter of form, not affecting the merits of the 

controversy. Ind. Code § 34-57-2-14. The parties, by entering into the CBA, 

agreed that the arbitrator’s decision was final. During the appeal process, the 

County consistently argued that the arbitrator exceeded his authority by basing 

his decision to reinstate Amos’ and Benfield’s employment and impose a five-
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 15 of 17

day suspension, in part, on due process concerns. The County also challenged 

the new sanction as being in excess of authority. The question presented to the 

arbitrator was “Were the discharges of [the Employees] for just cause? If not, 

what is the proper remedy?” Appellants’ App. Vol. II, p. 68. The arbitrator’s 

decision squarely addressed the questions placed before him. The County’s 

claim at trial and on appeal was groundless. Further, the County did not 

establish any of the conditions for vacatur. 

[35] The trial court’s findings of fact and conclusions thereon reveal its own 

rationale for finding that the County’s actions in seeking vacatur of the 

arbitrator’s award were frivolous, groundless, and unreasonable. While doing 

so, the court noted that a panel of this Court had concluded that “the County 

has established no basis for correcting or vacating the arbitrator’s award.” 

Madison Cty Bd. of Com’rs, 45 N.E.3d at 876. The court also observed that the 

arbitrator opined, without deciding, that the County’s actions could be 

characterized by a court of competent jurisdiction to be frivolous, groundless, 

and unreasonable. At some point during the County’s efforts, after losing 

before the arbitrator, the trial court, the Indiana Court of Appeals, and the 

Indiana Supreme Court, the County should have realized that it was continuing 

to litigate after its claim had clearly become frivolous, unreasonable, or 

groundless.

[36] The Union has asked for appellate attorney fees for the present appeal under 

Indiana Appellate Rule 66(E). We first observe that our discretion to award 

attorney fees under Indiana Appellate Rule 66(E) is limited to instances when 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 16 of 17

an appeal is permeated with meritlessness, bad faith, frivolity, harassment, 

vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342 (Ind. Ct. 

App. 2003). We strive to use extreme restraint when exercising this power 

because of the potential chilling effect upon the exercise of the right to appeal. 

Id.

[37] In this present appeal the County raised the following issues: (1) whether the 

trial court could grant appellate attorney fees without a mandate from the 

appellate court; (2) whether a trial court may grant trial attorney fees where 

they were not requested, not authorized by contract or statute, and were 

specifically denied by the arbitrator; and, (3) whether the County’s act of 

seeking vacatur on the ground that the arbitrator exceeded its authority is 

frivolous, groundless, or unreasonable. 

[38] The County stipulated to the amount of the Union’s attorney’s fees at trial and 

on appeal. The Union’s request for attorney’s fees was made pursuant to 

statute. The award of appellate attorney’s fees by a trial court has been allowed 

under other statutes without an order from this Court. The award of trial 

attorney’s fees is authorized by the statute under which the Union proceeded. 

Additionally, the County’s conduct in its quest for vacatur has been rejected at 

every step of this litigation. Consequently, we award the Union attorney’s fees 

for defending this present appeal and remand to the trial court for a calculation 

of the same.

Judgment affirmed and remanded. 
Court of Appeals of Indiana | Memorandum Decision 33A01-1609-PL-2136 | April 19, 2017 Page 17 of 17

[39] Bailey, J., and Robb, J., concur.