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Manous3/31/2005
Ind. Family & Soc. Serv. Admin., 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001), trans. denied.
Indiana appellate courts have formally categorized claims for appellate attorney fees into "procedural" and "substantive" bad faith claims. Thacker, 797 N.E.2d at 346. Here, Manousogianakis argues both procedural and substantive bad faith.
Procedural bad faith occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Id. at 346-47. Even if the appellant's conduct falls short of that which is "deliberate or by design," procedural bad faith can still be found. Id.
Here, Manousogianakis argues that filing the instant appeal was done for the purpose of delaying the payment of benefits to Manousogianakis, that " umerous arguments . . . are not supported by citations to authority," and that the facts are misstated. Brief of Appellee at 29. We disagree. Our review of the record reveals acts taken at the administrative level which might well support an argument that Manous sought to delay proceedings. But Manousogianakis seeks appellate attorney's fees, and she presents no evidence that this appeal was undertaken with dilatory intent. Manousogianakis's remaining procedural bad faith claims also lack merit. To the extent that Manous did not strictly comply with our procedural rules, we conclude that those flaws do not rise to the level of egregiousness punishable under Appellate Rule 66(E). See Ind. CPA Soc'y, Inc. v. GoMembers, Inc., 777 N.E.2d 747, 753 (Ind. Ct. App. 2002) (finding shortcomings in party's brief were not "so flagrant or significant as to taint the appeal as vexatious"). Therefore, Manousogianakis's procedural bad faith claim must fail.
To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility. Thacker, 797 N.E.2d at 346. As we have noted above, Manous raises an issue of first impression, namely, whether the positional risk doctrine applies when an employee is murdered without explanation. Manous's position is "consistent with reasonable advocacy grounded in established legal principles," and although we hold against Manous today, its contentions and arguments are not utterly devoid of all plausibility. GoMembers, 777 N.E.2d at 753. Therefore, an award of appellate attorney's fees pursuant to Appellate Rule 66(E) would be inappropriate. See Carter-McMahon v. McMahon, 815 N.E.2d 170, 180 (Ind. Ct. App. 2004) (denying husband's request for appellate damages and attorney's fees where wife raised an issue of first impression); GoMembers, Inc. 777 N.E.2d at 753 (concluding that award of appellate attorney's fees is inappropriate where party raised a matter of first impression).
Manousogianakis next contends that she is entitled to an increased award pursuant to Indiana Code Section 22-3-4-8(f). That statute provides, in relevant part: "An award of the full Board affirmed on appeal, by the employer, shall be increased five percent (5%), and by order of the court may be increased ten percent (10%)." Where this court affirms an award by the Board, the appeal was not frivolous, and appellate review was not thwarted by the actions of the employer, the award should be increased by five percent, but not by ten percent. Tanglewood Trace v. Long, 715 N.E.2d 410, 416 (Ind. Ct. App. 1999), trans. denied.
Manousogianakis asserts that she is entitled to a ten percent increase based upon the existence of substant
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