COA affirms attorney fees in frivolous suit challenging Logansport P3 deal

March 2, 2015

A woman’s lawsuit that claimed the city of Logansport had to pass an ordinance formally adopting the Public-Private Agreements Act before entering into a P3 deal was frivolous and in bad faith, thus justifying the award of attorney fees to the city, the Court of Appeals affirmed.

Logansport resident Julie Kitchell filed a petition against Logansport Mayor Ted Franklin and the Logansport Common Council in March 2013 seeking a declaration that an ordinance authorizing the mayor to enter a memorandum of understanding and negotiate with a company regarding a P3 deal to replace its coal-powered electric facility was invalid. That ordinance was passed just before the common council passed a resolution formally adopting the PPA Act and ratified the issuance of a request for proposal and other acts in accordance with the PPA Act.

Kitchell argued that the council had to pass the PPA Act first before passing an ordinance allowing the deal. The trial court granted the city’s motion to dismiss but did not address the motion for attorney fees until after the Indiana Supreme Court took up the matter. The justices also ruled in favor of the city but did not award appellate attorney fees.

The city then asked the trial court to award it attorney fees, and the lower court entered judgment against Kitchell for $24,235. In doing so, the court adopted “verbatim” the city’s 16-page proposed findings. The court found Kitchell’s complaint was unreasonable, frivolous and groundless and brought in bad faith.

While the COA acknowledged that the verbatim adoption of a party’s findings and conclusions “leave us with a lower level of confidence” that the findings show the independent judgment of the trial judge, Chief Judge Nancy Vaidik wrote, it declined to find the findings of facts and conclusion of law are inherently suspect because they are verbatim reproductions of the city’s submission, as Kitchell claimed.

The appeals court determined that even if it disregarded entirely each of the findings Kitchell challenged, the remaining findings still amply support the conclusion that her claim was unreasonable and groundless. They also found no merit in her claim that she is shielded from the attorney-fee statute because she characterized her case as one of first impression. There is no possibility that Kitchell’s claim would prevail, Vaidik wrote in Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and The Common Council of the City of Logansport, 09A02-1405-PL-369.



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