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Kitchell v. Franklin

Court of Appeals of Indiana

March 2, 2015

Julie Kitchell, Appellant-Plaintiff,
Ted Franklin, as the Mayor of the City of Logansport, and the Common Council of the City of Logansport, Appellees-Defendants

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Appeal from the Cass Superior Court. The Honorable Rick A. Maughmer, Judge. Case No. 09D02-1303-PL-11.

ATTORNEY FOR APPELLANT: Jim Brugh, Logansport, Indiana.


ATTORNEY FOR TED FRANKLIN, MAYOR OF THE CITY OF LOGANSPORT: Mark J. Crandley, Barnes & Thornburg, LLP, Indianapolis, Indiana.

Vaidik, Chief Judge. Baker, J. and Riley, J., concur.


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Vaidik, Chief Judge.

Case Summary

[¶ 1] Julie Kitchell appeals the trial court's award of attorneys' fees to Logansport Mayor Ted Franklin and the Common Council of the City of Logansport, challenging a number of the trial court's findings of fact and conclusions of law. We conclude first that the findings and conclusions are not inherently suspect even though they were adopted verbatim from the City's proposed findings and conclusions; moreover, we find that even if we were to eliminate entirely the findings of fact challenged by Kitchell, the remaining findings would amply support the conclusion that her claim was unreasonable and groundless. We also conclude that Kitchell's characterization of this case as a matter of " first impression" does not shield her from attorney-fee liability. Therefore, finding that the trial court did not abuse its discretion in awarding attorneys' fees, we affirm.

Facts and Procedural History

[¶ 2] The City of Logansport wished to replace its coal-powered electric facility with one that used recycled solid waste to produce energy. To that end, the City began to explore the possibility of entering

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into a public-private partnership under Indiana's Public-Private Agreements Act (the PPA Act), Indiana Code sections 5-23-1-1 through 5-23-7-2, with a provider that could " construct, operate, and maintain a public facility and transfer it back to City at a future date." Kitchell v. Franklin, 997 N.E.2d 1020 (Ind. 2013).[1] Indiana Code section 5-23-1-1 applies to, among other entities, " [a] political subdivision in a county where . . . the legislative body of the political subdivision . . . adopts the provisions of this article by resolution or ordinance." See Ind. Code § 5-23-1-1(3)(A).

[¶ 3] In November 2012 the City issued a request for proposals (RFP) seeking providers to enter into such a partnership. After considering proposals submitted by six vendors, the Utility Service Board recommended at a public hearing that the City execute a memorandum of understanding with Pyrolyzer, LLC. The Logansport Common Council accepted the Board's recommendation and passed Ordinance No. 2013-07 authorizing the mayor to enter into a memorandum of understanding and negotiate an agreement with Pyrolyzer. At the same time, the Council passed Resolution No. 2013-08, formally adopting the PPA Act under Indiana Code section 5-23-1-1 and ratifying the issuance of the RFP and all other acts performed in accordance with the PPA Act.

[¶ 4] In March 2013 Logansport resident Julie Kitchell filed a petition against Mayor Franklin and the Logansport Common Council, seeking a declaration that Ordinance No. 2013-07 was invalid. Specifically, Kitchell argued that the City did not have the authority to pass the Ordinance because under Indiana Code section 5-23-1-1 the City was required first to adopt the provisions of the PPA Act by resolution or ordinance and only after doing that would the City be authorized to publish an RFP. Appellant's App. p. 23-24.

[¶ 5] Mayor Franklin filed a motion to dismiss, motion to expedite, and motion for award of attorneys' fees and costs; shortly thereafter, the City joined in Mayor Franklin's motion to dismiss. The trial court granted the motion to dismiss, finding that Kitchell had failed to state a claim upon which relief could be granted, but the trial court did not address the motion for award of attorneys' fees. Mayor Ted Franklin and the City (now collectively, the City) filed a renewed motion for an award of attorneys' fees and costs and a motion for hearing. Attached to this motion were the following: a March 2013 letter from the Mayor to Kitchell, offering to waive the demand for attorneys' fees if Kitchell would dismiss her complaint, asserting that there was " no basis in law or fact for the allegations made in the complaint[,]" Appellant's App. p. 82, and an April 2013 newspaper article entitled " Judge dismisses suit against mayor, council," in which Kitchell is quoted as follows:

" The mayor's comment at a recent city council meeting that he doesn't expect Duke [Energy] to approach the city to renegotiate demonstrates that he neither cares about utility rates that will be escalating the next four years or that he understands the issue that has been raised," Kitchell stated. " It may only signal that he is more concerned with working on a public/private partnership once he leaves office, which would explain his motivations."

Id. at 84.

[¶ 6] Kitchell filed a notice of appeal, followed by a statement in opposition to the City regarding costs. The City filed a

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response to Kitchell's statement, writing in relevant part as follows:

The City respectfully wishes to renew its earlier requests that the Court grant the City a hearing on the matter of its entitlement to attorneys' fees and costs. However, in recognition that the Court had previously scheduled a hearing in response to the City's April 16 Motion (for June 11, 2013) and then cancelled that hearing after learning that [Kitchell] had filed her notice of appeal (on May 7, 2013), the City hereby defers, for the time being, making a request that the Court reschedule that hearing. Instead, the City would ask that the Court wait for the time being and then promptly reschedule that hearing after the appeal filed by [Kitchell] is duly resolved by the appellate courts.

Appellant's App. p. 107.

[¶ 7] The City filed a verified motion to transfer jurisdiction to the Supreme Court under Appellate Rule 56(A), which that Court granted. In Kitchell's appellate brief to the Supreme Court, she again argued that " [l]egislation enabling a city to use the statutory Public-Private Agreement Law must come first; any RFPs, negotiations, or legislation must follow[]" and " the Ordinance is invalid because the City failed to take the mandatory first step in the multi-step procedure." Kitchell, 997 N.E.2d at 1025 (citing Appellant's Br. to Supreme Court p. 18, 13-14). Kitchell further argued as follows:

It is not unusual for state legislatures, especially in the non [-] home [-] rule states, to provide that a statute expressed in terms of general application shall take effect in each local government only upon its acceptance by such entity, or by the governing body thereof. A vote of the designated body accepting the legislation for any particular local government is thus made a condition precedent to any effectiveness of the statute in that locality.

Id. at 1026 (quoting Appellant's Br. p. 14, which cites Antieau On Local Government Law § 25.21[1] (2d ed. 2012)).

[¶ 8] The Supreme Court found no merit in Kitchell's argument, noting that Indiana is a home-rule state, and as such must comply with the home-rule statute that provides in relevant part " [i]f there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise that power must do so in that manner." Id. (quoting Ind. Code § 36-1-3-6). Thus, the Court continued, " [t]he question in this case is whether 'the specific manner' required before a City may exercise the power to ...

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