In Utica billboard fight, COA reverses order for attorney fees

An acrimonious court fight over seven billboards outside Utica, Indiana, will not conclude with a military reuse authority paying attorney fees to the entities it sued, as a trial court ordered. The Indiana Court of Appeals on Monday reversed an order for the suing party to pay more than $237,000 to opposing counsel in litigation over highway sign permits in Clark County.

The lawsuit River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., The Schlosser Family Limited Partnership, The Town of Utica, and the Utica Board of Zoning Appeals, 18A-PL-2347, dates to events beginning in 2015, when Outfront Media sought to construct seven billboards on property owned by No Moore and the Schlosser Family near land owned by River Ridge Development Authority. The military reuse authority is a governmental entity overseeing development of a business and manufacturing park near the Ohio River and State Road 265, near the Lewis and Clark Bridge, which spans the river into Kentucky and opened in late 2016.

After the town of Utica and the Indiana Department of Transportation signed off on the billboard permits by April 2017, River Ridge joined state and regional efforts to nominate State Road 265 as a scenic byway. In September of that year, River Ridge asked the Utica Board of Zoning Appeals to reconsider its approval of the permits, which it declined to do, and River Ridge also filed the instant lawsuit seeking to nullify the permits, among other things.

In April 2018, the Indiana Scenic Byway Committee designated the road a scenic byway, prohibiting the construction of future billboards, and on the same day, River Ridge dropped its lawsuit. Outfront then asked the court for attorney fees of $149,918; the Town of Utica asked for fees of $51,824.52; and No Moore/the Schlosser Family petitioned for $35,698.10, for a total of $237,440.63.

Clark Circuit Senior Judge Richard Striegel granted the fees, but the COA reversed, finding he had no grounds to do so, and explicitly taking exception to the court’s findings.

“We have significant concerns about some of the trial court’s findings. There was no weighing of the evidence demonstrated in the findings. Rather, many of the findings are merely unsupported accusations, argumentative, and inappropriate,” Judge Elizabeth Tavitas wrote for the panel. “Although the trial court has wide discretion in weighing evidence and entering findings, the completely one-sided nature of the findings of fact and conclusions of law in this case gives us pause.”

“… We find that the trial court’s findings of fact are clearly erroneous,” Tavitas wrote.

Opposing parties were not entitled to attorney fees as a prevailing party, for a frivolous action, litigating in bad faith, for “obdurate behavior” or under a trial court’s inherent authority to award attorney fees.

The COA, in a footnote, also noted the terse litigation atmosphere in this case.

“We recognize that the parties and attorneys involved here appear to have significant personal animosity. See, e.g., Tr. Vol. II p. 111 (arguing that a letter from River Ridge’s attorney was ‘an attempt to harass Utica. Probably an attempt to crush them . . . .’); Id. at 121 (arguing that the ‘bad faith ranking’ was ‘a 10’); Id. at 140 (‘Now we know from the time that we’ve spent here today that the Defendants are really irritated with River Ridge and they’re even emotional about having gone through this process . . . .’); Id. at 169 (‘We’re filing pleadings in what has to be the worst bad faith in the last ten years by an appointed group of people against elected officials.’); Id. at 173 (‘I’m gonna forgive Mr. [Michael] Maschmeyer and unhear him to the extent maybe he might have called me a liar in open court,’),” the panel noted.

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