Kikkert v. Krumm, 285S59
| Decision Date | 20 February 1985 |
| Docket Number | No. 285S59,285S59 |
| Citation | 474 N.E.2d 503 |
| Parties | Merrill KIKKERT and AAA Supply Corporation, Appellants, v. Arthur KRUMM and Gretna Krumm, Appellees. |
| Court | Indiana Supreme Court |
Joel C. Levy, Gregory R. Lyman, Singleton, Levy, Crist & Johnson, Highland, for appellants.
Saul I. Ruman, Hammond, for appellees.
This case comes to this Court on transfer from the Court of Appeals. We granted transfer in order to consider whether the trial court's judgment in awarding attorney fees for obdurate behavior was proper.
This cause of action arose on August 30, 1971. On that day, in response to a survey, Defendant-Appellants, Merrill Kikkert and AAA Supply Corporation, installed a large number of fence posts on "Junction Avenue" about four feet south of the northern edge of the road. Defendants' fence posts restricted travel on the remaining portion of the road and disrupted Plaintiff-Cross Appellants, Arthur and Gretna Krumm, concrete business.
Plaintiffs filed suit on October 5, 1971, for an injunction, compensatory, and punitive damages. In May 1972, a trial was held on the injunction and testimony was given regarding the open and continuous use of the road since the 1930's. On September 16, 1972, the trial court ordered Defendants to remove the fence posts and to refrain from any further obstruction. The trial court based its judgment on the legal theories of highway by public user, implied dedication, prescriptive easement and equitable estoppel. Defendants removed the fence posts on September 21, 1972. Subsequently, Defendants appealed the grant of injunction; however, the Court of Appeals affirmed the trial court's decision and remanded on the issue of damages. AAA Supply Corp. v. Krumm (1979), Ind.App. (Mem.).
On remand, an evidentiary hearing was held, and the trial court determined that Plaintiffs were not entitled to compensatory or punitive damages for the alleged interference with their business. However, the trial court awarded Plaintiffs' attorney fees ($10,685.00) and costs of a survey ($500.00). The basis for this award was that Defendants' conduct in erecting the fence posts was intentional, illegal and with little regard to the rights of the public and plaintiffs. The Court of Appeals affirmed the trial court's award of attorney fees, but reversed the award for survey costs. 464 N.E.2d 31.
Defendants petitioned this Court for transfer in order to challenge the award of attorney fees and to question the legal status of the drainage ditches on the side of the road. Plaintiffs petitioned this Court for transfer in order to challenge the denial of compensatory and punitive damages.
I
The general rule requires each party to the litigation to pay his own attorney fees. Attorney fees are not allowable in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing thereof; and it has been held that the rule applies equally in courts of law and in courts of equity. Trotcky v. Van Sickle (1949), 227 Ind. 441, 85 N.E.2d 638. However, recently, arms of the Indiana Court of Appeals in parallel fashion to the law of other jurisdictions have recognized an exception to the general rule through the use of their equitable powers where a party has acted in bad faith. See Cox v. Ubik (1981), Ind.App., 424 N.E.2d 127.
This is the first time the Supreme Court of Indiana has considered the obdurate...
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Prime Mortgage Usa, Inc. v. Nichols
...a plaintiff "files a knowingly baseless claim or ... discovers that the claim is baseless and fails to dismiss it." Kikkert v. Krumm, 474 N.E.2d 503, 505D (Ind. 1985). Our supreme court has held that this exception does not apply to conduct by a defendant. Mitchell, 695 N.E.2d at 923; Kikke......
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...a prevailing party who has been dragged into baseless litigation. Cox v. Ubik (1981), Ind.App., 424 N.E.2d 127. In Kikkert v. Krumm (1985), Ind., 474 N.E.2d 503, our supreme court said this exception provides a remedy for defendants who are dragged into baseless litigation. Moreover, the ty......
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Nottingdale Homeowners' Ass'n, Inc. v. Darby
...S. & L. Assn. of Champaign (1984), 101 Ill.2d 400, 411-412, 78 Ill.Dec. 369, 474, 462 N.E.2d 488, 493; Indiana, Kikkert v. Krumm (Ind.1985), 474 N.E.2d 503, 504-505; Iowa, Bethards v. Shivvers, Inc. (Iowa 1984), 355 N.W.2d 39, 47; Maine, Elliott v. Maine Unemployment Ins. Comm. (Me.1984), 4......
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Town of St. John v. STATE BD. OF TAX COM'RS
...640 (1949) (stating that American rule applies equally in courts of law and courts of equity) (citations omitted); Kikkert v. Krumm, 474 N.E.2d 503, 504-05 (Ind.1985) (noting American rule). The Indiana Court of Appeals on numerous occasions has acknowledged Indiana's adherence to the Ameri......