Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 1 of 28

ATTORNEY FOR APPELLANT

Michael H. Michmerhuizen

Barrett & McNagny, LLP

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Brian C. Hewitt

Mark R. Galliher

Alerding Castor Hewitt, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Irrevocable 

Trust of Mary Ruth Moeder

Susan R. Moeder,

Appellant-Respondent,

v.

Salin Bank & Trust Company,

Appellee-Petitioner.

March 5, 2015

Court of Appeals Cause No.

49A05-1403-TR-142

Appeal from the Marion Superior 

Court

The Honorable Gerald S. Zore

49D08-0510-TR-041012

Bailey, Judge.

Case Summary

[1] Salin Bank and Trust Company (“Salin”), trustee of the Mary Ruth Moeder 

Revocable Living Trust Agreement (the “Trust”), petitioned the probate court 

to approve an accounting of the Trust and to resign as trustee. Susan Moeder 
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(“Moeder”), the former trustee and current contingent remainder beneficiary of 

the Trust, objected to the accounting and alleged that Salin had breached its 

fiduciary duties by imprudently administering the Trust in violation of the 

Indiana Uniform Prudent Investor Act. The probate court entered a judgment 

in favor of Salin and ordered that Moeder personally pay the reasonable 

attorney’s fees and costs Salin incurred in defending against Moeder’s objection

and claims. We affirm. 

Issues

[2] Moeder presents four issues for review, which we reorder and restate as:

I. Whether the probate court abused its discretion in granting a 

one-day continuance at the outset of the hearing;

II. Whether the probate court’s findings of fact were clearly 

erroneous and therefore do not support the judgment;

III. Whether the probate court abused its discretion in ordering 

Moeder to pay Salin’s reasonable attorney’s fees and costs 

because she brought or continued to litigate a groundless claim; 

and

IV. Whether the probate court abused its discretion in awarding

$106,001.28 in attorney’s fees and costs.
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[3] We also address an issue raised by Salin: whether Salin is entitled to an award 

of appellate attorney’s fees.1

Facts and Procedural History

[4] Mary Ruth Moeder (“Mother”) established the Trust on November 17, 1997, 

named herself the initial trustee, and named her two children, Moeder and John 

Moeder (“John”), as the primary beneficiaries. The Trust provided that upon 

Mother’s death, the Trust assets would be divided equally between her children. 

When Mother died in 2001, the Trust became irrevocable and Moeder became 

the successor trustee. 

[5] On September 12, 2006, the probate court entered an order authorizing Moeder

to resign as trustee and appointing Salin as successor trustee. The court also 

ordered the distribution of Moeder’s half of the Trust assets to her. John’s share 

was not distributed, and thus John is the primary beneficiary of the Trust. 

 

1

Salin also asks us to decide whether Moeder’s appeal of a separate probate court order made on October 8, 

2013 is untimely and therefore forfeited. In her Notice of Appeal filed in this case, Moeder listed the October 

8, 2013 order as an “Order being appealed.” (Appellee’s App. 71.) However, in a footnote on page two of 

her brief, Moeder withdrew her appeal of the October 2013 order, concluding that it was not currently 

appealable. As Moeder has not presented her appeal of the October 2013 order to this Court, we decline 

Salin’s request to determine at this juncture whether Moeder’s appeal of that order was untimely. See In re 

Estate of Rawlings, 451 N.E.2d 1121, 1122 (Ind. Ct. App. 1983) (“We do not render advisory opinions.”).
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Pursuant to the Trust terms, Moeder is the contingent remainder beneficiary of 

John’s share of the Trust. 

[6] When Salin took over as trustee in November 2006, the Trust assets included

cash and stocks with a total portfolio value of $686,904.65. (App.2 226.) 

Among the stocks were 14,985 shares of JP Morgan Chase & Co. stock (“the 

JPM stock”), which comprised approximately 85% of the total Trust assets. At 

the time of the transfer, Salin was aware the Trust had a large concentration of 

JPM stock. 

[7] Although Moeder turned over the Trust assets to Salin in November 2006, Salin 

did not immediately receive from Moeder the necessary information to allow 

Salin to make investment decisions about the Trust portfolio. In April 2007, 

after Salin learned that the investment cost basis of the JPM stock was $38.77

per share, Salin developed a diversification plan that called for reducing the 

concentration of JPM stock and diversifying the Trust assets over two years,

2007 and 2008. Salin’s Vice-President Trust Officer and Chief Investment 

Officer John Roederer (“Roederer”) testified that Salin “wanted to diversify 

over two years to . . . keep the tax impact . . . reasonable.” (Tr. 286.) 

 

2 All citations to “App.” are to the Appellant’s Appendix, unless otherwise noted. 
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[8] Pursuant to the diversification plan, Roederer sold 7,000 shares of the JPM 

stock on July 30, 2007 for a gain of $42,696.59 over the cost basis. 

(Respondent’s Exhibit 6.) He described the timing of the sale as “a good 

opportunity to reduce substantially the risk related to that position [the 

concentration.]” (Tr. 286.) Salin retained the remaining shares of JPM stock 

because “it still could enjoy some upside” and the plan called for diversification

over two years. (Tr. 286.) 

[9] In 2008, Salin “put on hold the diversification program” because of the 

widespread financial crisis. (Tr. 323.) Salin sold no shares of the JPM stock 

that year, as Roederer considered JP Morgan “one of the few banks that was 

reasonably fundamentally sound at that point in time” and he “didn’t want to 

sell [the JPM stock] at a distressed price.” (Tr. 337.) 

[10] In April 2009, as the stock market began to improve, Salin revised the Trust’s 

diversification plan. The revised plan called for Salin to reduce the 

concentration of JPM stock over 2009 and 2010 by selling 500 shares of the 

remaining JPM stock approximately every two months. Roederer no longer 

considered the prices distressed, but “improving.” (Tr. 337.) Salin made its 

first two sales of 500 shares each on April 20, 2009 and June 4, 2009, for losses 

of approximately $3,380 and $870 below the cost basis, respectively. 

(Respondent’s Exhibit 6.) Except for these two sales, the sales made in 2009 

and 2010 resulted in gains. (Respondent’s Exhibit 6.) The periodic sales 

continued into early 2011 until the JPM stock concentration was reduced and 

the portfolio was diversified. 
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[11] On July 29, 2011, Salin filed a “Request to Redocket Trust to File Current 

Report and Accounting, Resign as Trustee Upon Approval of Current 

Accounting and for Appointment of Successor Trustee.” At the time Salin filed 

the accounting, the diversified portfolio value was $751,214.30. (App. 234.) 

[12] In response, on September 1, 2011, Moeder filed an “Objection to Trustee’s 

Accounting,” in which she alleged that Salin “generally and consistently failed 

to administer the Trust as a ‘Prudent Investor[.]’” (Appellee’s App. 16.) 

Specifically, Moeder alleged that Salin failed to: preserve Trust property, 

maintain clear records, perform a timely initial review of the Trust assets, 

develop and implement an appropriate investment strategy, diversify the Trust 

assets at the right time, consider the Trust’s needs for liquidity, use special skills 

and expertise in investing and managing the Trust, and file an accurate 

accounting. 

[13] The probate court scheduled a hearing on Salin’s petition and Moeder’s 

objection for December 2, 3, and 4, 2013. On December 2, 2013, both parties 

appeared and discovered that Judge Zore was on medical leave. Although 

Senior Judge Goodman had reviewed the case and was prepared to proceed, 

Salin moved for a continuance, citing Judge Zore’s “prior involvement and 

familiarity with the case.” (App. 165.) Judge Goodman contacted Judge Zore 

and learned that Judge Zore was approved to return to work the next day. Over 

Moeder’s objection, Judge Goodman granted Salin’s motion for a one-day 

continuance. The hearing began on December 3, 2013 with Judge Zore 

presiding.
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[14] On February 28, 2014, the probate court entered an order containing findings of 

fact and conclusions thereon in which the court approved Salin’s tendered 

accounting and entered judgment in favor of Salin on the claims raised in 

Moeder’s objection. In addition, the court found that Moeder’s claims were 

“time-barred or otherwise unsupported by the facts” (App. 31) and that by 

bringing her objection, Moeder had “done nothing to benefit John,” who is 

blind and subject to a guardianship, but rather “eroded John’s share of the Trust 

by forcing Salin as Trustee [to] incur the expense of litigating [Moeder’s] 

objection.” (App. 31.) Consequently, the court ordered Moeder to pay Salin’s 

attorney’s fees and costs incurred in defending against Moeder’s objection

pursuant to Indiana Code section 34-52-1-1(b). The court then directed Salin to 

file a supplemental accounting and an application for attorney’s fees and costs 

incurred by Salin in litigating the objection. Finding that there was no just 

reason for delay, the court directed the entry of a final judgment pursuant to 

Indiana Trial Rule 54(B). On March 26, 2014, Moeder timely filed a Notice of 

Appeal.

[15] After Salin filed its request for attorney’s fees and costs, the probate court 

ordered on July 2, 2014 that Moeder personally pay to Salin $97,465 in 

attorney’s fees, plus $8,536.28 in litigation costs, for a total award of 

$106,001.28. (App. 34.) Moeder timely filed a Notice of Appeal from the 

attorney’s fees order on July 22, 2014. 
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[16] In this consolidated appeal, Moeder appeals the probate court’s judgment in 

favor of Salin, award of attorney’s fees and costs to Salin, and the amount of 

attorney’s fees and costs awarded. 

Discussion and Decision 

Continuance

[17] Moeder’s first contention on appeal is that the probate court abused its 

discretion when it granted Salin’s request for a continuance made on the first 

day of the hearing. Upon a party’s motion, “trial may be postponed or 

continued in the discretion of the court, and shall be allowed upon a showing of 

good cause established by affidavit or other evidence.” T.R. 53.5. A trial 

court’s decision to grant or deny a motion to continue a trial date is reviewed 

for an abuse of discretion. Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 

2009). There is a strong presumption that the trial court properly exercised its 

discretion. Id. A trial court abuses its discretion when it reaches a conclusion 

that is clearly against the logic and effect of the facts or the reasonable and 

probable deductions that may be drawn therefrom. Evans v. Thomas, 976 

N.E.2d 125, 127 (Ind. Ct. App. 2012), trans. denied. 

[18] In this case, the hearing was scheduled for December 2, 3 and 4, 2013, and both 

parties appeared on the morning of December 2. Senior Judge Goodman was 

presiding because Judge Zore was on medical leave. Salin moved for a 

continuance, citing Judge Zore’s “prior involvement and familiarity with the 

case.” (App. 165.) Over Moeder’s objection, Judge Goodman granted Salin’s 
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motion for a one-day continuance. The hearing began the following day, 

December 3, 2013, with Judge Zore presiding. 

[19] The record reflects that the Trust is and has been since 2005 the subject of

several legal proceedings, including a prior appeal to this Court.3 We cannot 

say that the court abused its discretion by granting a one-day continuance so 

that a judicial officer already familiar with the particular complexities of this

Trust could hear the evidence. 

[20] Moeder argues, however, that she suffered prejudice as a result of the 

continuance because both she and her attorney had traveled from northern 

Indiana to Indianapolis and were prepared to proceed on December 2, 2013. 

Although we acknowledge the inconvenience to Moeder, we do not consider 

the additional travel time and expense incurred to be prejudicial. Furthermore, 

we observe that when a continuance is granted, Trial Rule 53.5 permits the 

court to “award such costs as will reimburse the other parties for their actual 

expenses incurred from the delay.” T.R. 53.5. Yet the record does not show 

 

3

See In re Revocable Trust of Mary Ruth Moeder, No. 49A02-1205-TR-377, slip op. (Ind. Ct. App. Oct. 30, 

2012). 
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that Moeder requested that these costs be awarded, nor does she allege on 

appeal that a request, if made, was erroneously denied. 

[21] Moeder also argues that she was prejudiced by the continuance because the 

hearing ended as originally scheduled on December 4, 2013, such that the 

continuance “effectively reduced the amount of trial by a third.” (Appellant’s 

Br. 26.) Moeder contends that the continuance negatively affected her ability to 

present her case because Salin, as the party seeking the accounting, presented its 

case first, and Moeder did not have ample time to present her supporting 

evidence. She argues that she was particularly prejudiced by the “shortened” 

hearing because the probate court awarded Salin attorney’s fees in part because 

the court found that Moeder presented “no evidence” that Salin engaged in any 

wrongdoing. (App. 31.) 

[22] The record shows that, on the second day of the hearing, Moeder’s counsel 

informed the court: “I don’t know that we’re going to finish today.” (Tr. 421.) 

The court responded “Oh, we are going to finish today” and then elaborated 

that the hearing would conclude at 4:30 p.m. (Tr. 421-22.) Moeder’s counsel

responded: “Okay, very good. All right.” (Tr. 422.) Moeder then called her 

next witness and, at the conclusion of that testimony, rested her case, stating:

[Moeder’s Counsel]: Your Honor, I have no further evidence to 

present in our case in chief. As entered off the record with regard to 

the exhibits which we have - - are part of our book, 1, 2 and 3, 17, 18 

and 19 have either been admitted through their evidence or we are not 

offering those.

The Court: All right.
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[Moeder’s Counsel]: With that, we rest.

(Tr. 476-77.) Moeder rested her case enough in advance of the court’s 

anticipated end time that Salin had time to present additional witness 

testimony. Moeder’s contention that she was denied ample opportunity to 

present her evidence is thus unsupported by the record. 

[23] Furthermore, at no point did Moeder object to the probate court’s management

of its schedule or otherwise argue to the court that she was not permitted 

sufficient time to present her case. Accordingly, even if Moeder’s ability to 

present her case was impeded, her argument is waived. See Ansert v. Ind. 

Farmers Mut. Ins. Co., 659 N.E.2d 614, 617 (Ind. Ct. App. 1995) (“Generally, a 

party may not raise an issue on appeal which was not raised in the trial court.”), 

trans. dismissed.

[24] The probate court did not abuse its discretion when it granted Salin’s motion 

for a continuance. 
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Findings and Conclusions

[25] Moeder next argues that the probate court’s findings and conclusions were 

clearly erroneous and therefore do not support the judgment.4 

[26] In all actions tried upon facts without a jury, the court, either sua sponte or upon 

the written request of any party filed with the court prior to the admission of 

evidence, “shall find the facts specially and state its conclusions thereon.” Ind. 

Trial Rule 52(A). Where, as here, the court entered findings and conclusions 

upon a party’s written request, we apply a two-step review. In re Riddle, 946 

N.E.2d 61, 66 (Ind. Ct. App. 2011). First, we consider whether the evidence 

supports the findings, and second, whether the findings support the judgment. 

Id. We neither reweigh the evidence nor assess witness credibility, and we 

consider only the evidence most favorable to the judgment. Id. We will set 

 

4 At the outset, we note that the entire “Argument” section of Moeder’s brief, while it generally contains 

citation to relevant law, is completely devoid of citations to the appendix or record on appeal. We direct 

counsel to Indiana Appellate Rule 46(A)(8)(a), which provides that each contention made in the argument 

section of an appellant’s brief “must be supported by citations to the authorities, statutes, and the Appendix 

or parts of the Record on Appeal relied on, in accordance with Rule 22.” It is a complaining party’s duty to 

direct our attention to the portion of the record that supports its contentions. Vandenburgh v. Vandenburgh, 

916 N.E.2d 723, 729 (Ind. Ct. App. 2009). The purpose of the rule is to relieve courts of the burden of 

searching the record and stating a party's case for her. Id. Although failure to comply with the appellate 

rules does not necessarily result in waiver of an issue, it is appropriate where noncompliance impedes our 

review. Id. Although we do our best here to address Moeder’s contentions on their merits, Moeder’s 

noncompliance comes dangerously close to impeding our review. This is particularly true – and her 

noncompliance is particularly mystifying – in this section of her brief, in which her argument depends on her 

identification of evidence that supports her claim.
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aside the trial court’s findings and conclusions only if they are clearly 

erroneous, that is, if the record contains no facts or inferences supporting them. 

Id. We review conclusions of law de novo. Id. 

[27] In any case where special findings and conclusions are made, “the court shall 

allow and may require the attorneys of the parties to submit to the court a draft 

of findings of facts and conclusions thereon which they propose or suggest that 

the court make in such a case.” T.R. 52(C). Here, the probate court adopted 

verbatim Salin’s proposed findings of fact and conclusions thereon. As our 

supreme court has observed, the practice of accepting verbatim a party’s 

proposed findings “weakens our confidence as an appellate court that the 

findings are the result of considered judgment by the trial court.” In re Marriage 

of Nickels, 834 N.E.2d 1091, 1096 (Ind. Ct. App. 2005) (quoting Cook v. WhitsellSherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003)). However, it is not uncommon 

or per se improper for a trial court to enter findings that are verbatim 

reproductions of submissions by the prevailing party. Id. at 1095. In these 

cases, we urge trial courts to scrutinize parties’ submissions for 

mischaracterized testimony and legal argument rather than the findings of fact 

and conclusions thereon as contemplated by the rule. Id. at 1096. This is 

because the trial court, when it signs one party’s findings, is ultimately 

responsible for their correctness. Id. Although we by no means encourage the 

wholesale adoption of a party’s proposed findings and conclusions, the critical 

inquiry is whether such findings, as adopted by the court, are clearly erroneous. 

Id. 
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[28] Moeder argues that the probate court’s findings that Moeder “offered no

evidence that Salin did anything wrong or that the Trust suffered any loss as a 

result of Salin’s actions” were clearly erroneous. (App. 31.) Moeder insists on 

appeal that she presented evidence of wrongdoing and harm and therefore the 

court’s finding to the contrary was clearly erroneous. 

[29] Generally, a trustee bears the burden of justifying the propriety of items in a 

trust account. In re Riddle, 946 N.E.2d 61, 68 (Ind. Ct. App. 2011). But when a 

trustee files specific accounts and makes a prima facie showing that the accounts 

are proper, the burden of persuasion shifts to the beneficiaries to show specific 

instances of impropriety. Id. Accordingly, it was Moeder’s burden to establish 

the allegations she raised in her objection. 

[30] The heart of Moeder’s objection was that Salin “generally and consistently 

failed to administer the Trust as a ‘Prudent Investor[.]’” (Appellee’s App. 16.) 

On appeal, Moeder points to several actions in which Salin engaged (or did not 

engage) as evidence of imprudent trust administration. Moeder neatly sums up 

the majority of this “evidence” in her argument:

[T]he initial Investment Policy Statement noted no unusual 

circumstances when it should have noted a concentration. There was 
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no evidence that AIRC[5]reviewed the [Trust] prior to April 24, 2008. 

There was no written plan of “sound diversification” in at least 2007. 

The AIRC minutes that do exist do not reflect any meaningful 

consideration of the [Trust] and the testimony of [two of Salin’s trust 

administrators] gave the impression that Roederer was acting 

essentially without review. There were no limit orders in place to 

protect the over-concentration of JP Morgan stock from entering into a 

freefall. In April 2009, Salin adopted a rigid, inflexible plan to sell 500 

shares of JP Morgan stock every two months which was more or less 

implemented. 

(Appellant’s Br. 42-43.)

[31] Despite her numerous allegations, Moeder presented at the hearing no credible 

evidence that any of the actions or omissions to which she points constituted

imprudent investment practices in contravention of the Indiana Uniform 

Prudent Investor Act (“the Act”). See I.C. § 30-4-3.5-1 et seq. For example, the 

Act provides: “Within a reasonable time after accepting a trusteeship or 

receiving trust assets, a trustee shall review the trust assets and make and 

implement decisions concerning the retention and disposition of assets . . . .” 

I.C. § 30-4-3.5-4. The Act therefore demands only that the initial review occur 

within a “reasonable time.” Moeder points to the fact that Salin presented “no 

 

5 AIRC is Salin’s Administrative Investment Review Committee. The committee consists of four trust 

officers who periodically review the trust accounts, including annual reviews required by law. (Tr. 104, 111.)
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evidence of an initial review being conducted within 60 days” as supporting 

evidence that Salin failed to meet the standards of a prudent investor. 

(Appellant’s Br. 31.) Yet Moeder failed to present at the hearing any evidence 

that more than sixty days is an unreasonable amount of time to conduct an 

initial review. 

[32] On the other hand, Salin’s former Vice President Trust Officer and the original 

administrator of the Trust, Rhonda King (“King”), testified that Salin’s normal 

practice was to review trust assets within sixty days of receiving them. 

However, King testified that Salin was unable to do so in this case because 

Moeder, the former trustee, failed to provide Salin with the relevant investment 

information to permit Salin to complete the review. After receiving the 

investment cost basis information from Moeder in April 2007, King testified 

that she and Roederer reviewed the assets and developed a diversification plan. 

Thomas Jenkins (“Jenkins”), Salin’s trust expert, testified:

Well, the initial review generally and I think Salin policy manual is 

two months and [sic] sixty days or something like that, which is, I 

would say, the industry standard. But in order to do that review, you 

have to have all of the information available to make the decisions that 

you need to make. And reviewing the documents that I was given, the 

depositions and other related material, Salin didn’t have that 

information to make those decisions until the following year. 

(Tr. 481.) Jenkins further opined that, in light of the problems Salin 

encountered in receiving the information from Moeder, Salin complied with its 

fiduciary duties in conducting the initial review. Moeder presented no evidence 

to refute Jenkins’s testimony. 
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[33] At best, Moeder’s arguments amount to a request to reweigh the evidence, 

which we decline to do. See Massey v. St. Joseph Bank & Trust Co., 411 N.E.2d 

751, 753 (Ind. Ct. App. 1980) (“Upon the review of a negative judgment, this 

Court will not reweigh the evidence nor resolve issues of credibility, but will 

scrutinize the evidence in the record most favorable to the judgment.”). Yet our 

close scrutiny of the evidence reveals that, as the probate court concluded, 

Moeder presented no evidence to support her claims regarding Salin’s initial 

review. 

[34] Beyond Moeder’s arguments about perceived paperwork deficiencies, the 

gravamen of Moeder’s appeal is that there was an “issue of fact” as to whether 

Salin properly diversified the Trust. (Appellant’s Br. 30.) The facts show that, 

after Salin made the initial sale of 7,000 shares of the JPM stock on July 30, 

2007, no more sales were made until April 2009. Moeder points to several days 

between July 31, 2007 and April 2009 when JPM stock sold on the open market

for more than $46.90 per share, the price per share on the day Salin received the 

Trust assets.6 (Appellant’s Br. 31.) She thus argues that the Trust “could have 

 

6 Moeder alleges that Salin’s diversification plan caused harm because Salin sold “all but 500 of the shares for 

a price less than their initial value.” (Appellant’s Br. 42.) Throughout her argument, Moeder uses $46.90 as 

the “initial value” of the JPM stock and the benchmark for gains and losses. However, taxable gains and 

losses are calculated as the difference between the investment cost basis, which in this case was $38.77 per 

share, and the sale price. (Tr. 295.) As such, only two sales were made for losses. 
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been completely diversified in 2007-08 with no loss whatsoever.” (Appellant’s 

Br. 33.) To support her arguments at the hearing, she introduced into evidence 

a listing of JPM stock per share values at close from November 1, 2006 through 

September 29, 2010. 

[35] However, as Moeder recognizes, “[a] breach of trust does not lie simply because 

the shares were sold for an amount below the value for which they were 

received.” (Appellant’s Br. 37.) To satisfy her burden of proof, Moeder was 

required to show that Salin’s actions did not meet the standard of a prudent 

investor as outlined in the Act. To evaluate such a claim, the Act explicitly 

provides that “[c]ompliance with the prudent investor rule is determined in light 

of the facts and circumstances existing at the time of a trustee’s decision or 

action and not by hindsight.” I.C. § 30-4-3.5-8. 

[36] To that end, Moeder failed to support her objections to Salin’s investment 

decisions with any competent evidence. Moeder, who is not an investment 

professional or expert in trust administration, relied on her own testimony that 

she believed that Salin acted imprudently in holding the stock in 2008 and then 

resuming sales in 2009. Specifically, she testified that in 2009, she saw an 

interview with Jamie Dimon, the Chief Executive Officer of JP Morgan Chase 

& Co., which “encourage[d] me to believe that JPM will -- will weather this 

situation [the financial crisis] quite well.” (Tr. 463.) She then testified that she

personally disagreed with Salin’s decision to sell the JPM stock in 2009 because 

she believed it was still selling at distressed prices. In short, Moeder’s evidence 

boiled down to Moeder’s own lay testimony that she believed Salin should have 
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done things differently. However, she did not produce credible, expert 

testimony or any other competent evidence that Salin’s diversification plan and 

its steps taken in furtherance of that plan failed to meet the standard of a 

prudent investor.

[37] On the other hand, in response to Moeder’s objections, Salin introduced 

Jenkins’s expert testimony that Salin’s diversification plan appeared to be “a 

rational plan.” (Tr. 504.) Jenkins testified that Salin’s 2007 “decision to sell 

seven thousand shares was in all probability prudent. Because right out of the 

box at that point, you at least only have half as big a problem as you had the 

day before.” (Tr. 487.) Roederer testified that he declined to sell the remaining 

stock in early to mid-2008 because the market had changed and his research 

and extensive experience indicated the prices were distressed. Jenkins 

confirmed that “[t]he plan of diversification . . . by its nature has to be flexible, 

has to take certain things into account; market conditions, other things like 

that.” (Tr. 485.) Roederer testified that he resumed sales in 2009 because JPM 

stock was “improving” and no longer distressed (Tr. 337), and Jenkins 

described that approach as “appropriate.” (Tr. 492.) As to the two sales made 

in 2009 at modest losses, Jenkins testified that occasionally a trustee may need 

to sell a stock at a loss to reduce a concentration. Overall, Jenkins described 

Roederer’s process of watching the JPM stock prices daily and making sales 

based on this information as “very prudent.” (Tr. 492.) 

[38] More importantly, Moeder points to no evidence that the overall Trust value 

was actually harmed by these sales. Moeder’s own evidence establishes that 
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Salin made all but two sales for a taxable gain over the investment cost basis of 

$38.77 per share. Contrary to Moeder’s contention that Salin failed to preserve 

the Trust property, the total Trust portfolio value increased by $64,309.65 under 

Salin’s management, despite $156,265.86 in disbursements.

7

 (App. 234.) In 

fact, Moeder’s own objection to Salin’s accounting indicates that the Trust assets 

had greater fair market value in 2011, after Salin allegedly mismanaged the 

Trust assets, than when Salin’s received the Trust assets in 2006. Although 

Moeder seems to allege that the value could have increased more during that 

time, Moeder points to no evidence introduced at the hearing that shows how 

much additional value Salin allegedly could have added. This lack of evidence 

supports the probate court’s finding that Moeder “presented no competent 

evidence that some other approach would have been better.” (App. 28-29.)

[39] It seems that by pointing to certain facts, or the absence of certain facts, Moeder 

asks us to infer that wrongdoing occurred. Mere facts and assertions, however, 

are not evidence of wrongdoing. Our review of the record shows that Moeder 

failed to support her bare assertions with competent evidence of legal 

wrongdoing or harm. Based on this absence of evidence, the probate court’s

 

7

Salin’s accounting, which was ultimately approved by the court, listed the initial portfolio value as 

$686,904.65. (App. 234.) The total value on the date of filing was $751,214.30. (App. 234.) 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 21 of 28

conclusory statement that Moeder “offered no evidence that Salin did anything 

wrong or that the Trust suffered any loss as a result of Salin’s actions” was not 

clearly erroneous. (App. 31.) 

[40] The probate court’s findings of fact and conclusions thereon were not clearly 

erroneous.

Attorney’s Fees

[41] Moeder also argues that the probate court abused its discretion when it ordered 

her to pay Salin’s reasonable attorney’s fees and costs because she brought or 

continued to litigate a groundless claim.

[42] The probate court’s attorney’s fees award was made pursuant to Indiana Code 

section 34-52-1-1(b), which provides:

(b) 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.

I.C. § 34-52-1-1(b). 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 22 of 28

[43] The court’s decision to award attorney’s fees under Indiana Code section 34-52-

1-1 is subject to a multi-level review. Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 

843 (Ind. 2012). First, the trial court’s findings of fact are reviewed under the 

clearly erroneous standard. Id. Next, the court’s legal conclusions regarding 

whether the litigant’s claim was frivolous, unreasonable, or groundless are

reviewed de novo. Id. Finally, the 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 clearly against the logic and effect of the 

facts and circumstances or if the court has misinterpreted the law. Id.

[44] 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. Branham Corp. v. Newland Res., LLC, 

17 N.E.3d 979, 992 n.12 (Ind. Ct. App. 2014) (citing Kahn v. Cundiff, 533 

N.E.2d 164, 167 (Ind. Ct. App. 1989), aff'd, 543 N.E.2d 627 (Ind. 1989)). A 

claim or defense is “unreasonable” if, based on the totality of the circumstances, 

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

attorney would consider that the 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.” GEICO Gen. Ins. Co. v. Coyne, 7 N.E.3d 300, 305 (Ind. Ct. App. 2014), 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 23 of 28

trans. denied. A claim or defense is not, however, groundless or frivolous merely 

because the party loses on the merits. Smyth v. Hester, 901 N.E.2d 25, 33 (Ind. 

Ct. App. 2009), trans. denied. 

[45] Here, the probate court did not specify under which prong of Indiana Code 

section 35-52-1-1(b) it awarded the attorney’s fees, but found that the evidence 

supported the award for two reasons: 1) the claims Moeder raised at the hearing 

focused on Salin’s actions taken between 2007 and the spring of 2009 and 

therefore the claims were barred by the two-year statute of limitations, and 2) 

even if the Moeder’s claims were not time-barred, Moeder “offered no evidence 

that Salin did anything wrong or that the Trust suffered any loss as a result of 

Salin’s actions.” (App. 31.) The court also rejected Moeder’s claim that she 

pursued the litigation “in a good-faith effort to protect the interests of her 

brother,” finding her claim “not credible.” (App. 31.) The court found that 

Moeder’s action “eroded John’s share of the Trust by forcing Salin as Trustee 

[to] incur the expense of litigating [Moeder’s] objection.” (App. 31.) The court 

concluded that “in justice, [Moeder] must be required to reimburse the Trust for 

the attorney[’s] fees and other litigation costs incurred by Salin in defending 

against [Moeder’s] Objection, pursuant to Ind. Code § 34-52-1-1(b).” (App. 

31.)

[46] The statute lists the grounds for awarding attorney’s fees in the disjunctive;

therefore, a litigant is required to demonstrate the existence of only one ground 

in order to justify an award of attorney’s fees. Charles Downey Family Ltd. P’ship 

v. S & V Liquor, Inc., 880 N.E.2d 322, 328-29 (Ind. Ct. App. 2008), trans. denied. 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 24 of 28

Because we find it dispositive of Moeder’s claims on appeal, we address only 

the court’s conclusion that Moeder’s claims were “frivolous, unreasonable and 

groundless, inasmuch as [Moeder] offered no evidence” of wrongdoing by Salin 

or resulting harm to the Trust. (App. 31.) 

[47] As discussed above, Moeder raised an objection to Salin’s accounting and 

alleged that Salin breached its fiduciary duties. Although she pointed at the 

hearing to several actions taken (or not taken) by Salin, she failed to provide the 

court with any competent evidence that such action constituted legal 

wrongdoing. Instead, Moeder relied on her own lay testimony that Salin’s 

actions or omissions constituted imprudent management of the Trust assets. 

Overall, the value of the Trust grew under Salin’s management, and Moeder 

offered no evidence that any other approach Salin could have taken would have 

resulted in a greater benefit. Because Moeder presented to the probate court no 

evidence to support her objection and claims, the court did not err in 

concluding that Moeder brought or continued to litigate a groundless claim. 

We therefore cannot say that the probate court abused its discretion in 

awarding Salin attorney’s fees and cost incurred in defending against Moeder’s 

groundless objection and claim.

Amount of Attorney’s Fees

[48] Moeder’s next issue on appeal is that the probate court abused its discretion in 

ordering Moeder to pay $106,001.28 in attorney’s fees to Salin. 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 25 of 28

[49] We review the trial court’s decision to award attorney’s fees and the amount 

thereof under an abuse of discretion standard. St. Mary Med. Ctr. v. Baker, 611 

N.E.2d 135, 137 (Ind. Ct. App. 1993), reh’g denied, trans. denied. What 

constitutes reasonable attorney’s fees is a matter largely within the trial court’s 

discretion. Chicago Southshore & South Bend R.R. v. Itel Rail Corp., 658 N.E.2d 

624, 634 (Ind. Ct. App. 1995). Since the judge is considered an expert, we

continue to adhere to the view that the judge may judicially know what 

constitutes a reasonable fee. Id. 

[50] Moeder argues that the probate court abused its discretion for four reasons: 1)

the probate court did not enter findings of fact and conclusions thereon to 

support its order; 2) Salin’s application for attorney’s fees was not supported by 

an affidavit attesting to the reasonableness of the fees; 3) Salin chose to proceed 

to the hearing rather than filing a motion for summary judgment on its 

affirmative defense that Moeder’s claims were time-barred; and 4) Salin had 

two attorneys present during the hearing, thus unnecessarily increasing Salin’s 

litigation costs.

[51] Salin filed with the probate court a detailed list of attorney’s fees incurred in 

defending against Moeder’s groundless objection. Salin also redacted fees and 

costs not directly related to this litigation. On appeal, Moeder presents no 

citations to authority that support her arguments that the court’s order was 

deficient or that Salin’s request was unreasonable. Accordingly, these 

arguments are waived. See App. R. 46(A)(8). 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 26 of 28

[52] Because the probate court may use its expertise to determine what constitutes 

reasonable attorney’s fees and Salin provided evidence of the fees it incurred, 

the court did not abuse its discretion in awarding the sum of $106,001.28 in 

attorney’s fees and costs. (App. 34.)

Appellate Attorney’s Fees

[53] In its brief, Salin asks this Court to award it attorney’s fees for defending against 

Moeder’s claims on appeal. 

[54] Indiana Appellate Rule 66(E) provides that this 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.” 

App. R. 66(E). Generally, “a discretionary award of damages has been 

recognized as proper when an appeal is permeated with meritlessness, bad faith, 

frivolity, harassment, vexatiousness, or purpose of delay.” Orr v. Turco Mfg. Co., 

512 N.E.2d 151, 152 (Ind. 1987). In considering a request for appellate 

attorney’s fees, we use extreme restraint 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).

[55] Salin argues that this Court should award it appellate attorney’s fees because

Moeder “has offered nothing but a rehash of the specious arguments that Judge 

Zore rightly rejected” and that by pursing this appeal, she “is imposing huge 

litigation expenses on a fund her mother placed in trust to provide care for her 

disabled son John.” (Appellee’s Br. 50.) 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 27 of 28

[56] The probate court did not err in finding that Moeder’s claims were groundless 

and the court did not abuse its discretion in awarding Salin attorney’s fees and 

costs because Moeder brought or continued to litigate a groundless claim. 

However, we are not convinced that Moeder, facing personal liability for a 

discretionary $106,001.28 attorney’s fee award, instituted this appeal with the

“meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of 

delay” our standard requires. Orr, 512 N.E.2d at 152. And we believe that an 

award of appellate attorney’s fees in this case would likely create a “chilling 

effect” on future litigants who also face personal liability for substantial 

attorney’s fees awards made at the discretion of trial courts. Thacker, 797 

N.E.2d at 346. Furthermore, we observe that Moeder, as the contingent 

remainder beneficiary, also stands to benefit from the Trust, should she survive 

her brother. We are thus not convinced by Salin’s argument that Moeder 

brought an appeal only to drain Trust assets that would otherwise benefit her 

brother. 

[57] Salin’s request for appellate attorney’s fees is denied. 

Conclusion

[58] The probate court did not abuse its discretion in granting Salin’s motion for a 

one day continuance. The probate court’s findings and conclusions were not 

clearly erroneous. The probate court did not err in concluding that Moeder 

brought or continued to litigate a groundless claim and did not abuse its 
Court of Appeals of Indiana | Opinion 49A05-1403-TR-142 | March 5, 2015 Page 28 of 28

discretion in awarding Salin $106,001.28 in attorney’s fees and costs. Salin’s 

request for appellate attorney’s fees is denied. 

[59] Affirmed. 

Robb, J., and Brown, J., concur.