RILEY, Judge.
Appellants-Defendants, Sherry J. Chapo and Jessie A. Chapo-Stitsworth (collectively, Chapo), appeal the trial court’s Order denying their motion for costs and fees following an action stemming from the Appellee-Plaintiff’s, Jefferson County Plan Commission (Jefferson County), Verified Complaint for Permanent Injunction and Penalties.
We affirm in part, reverse in part, and remand for further proceedings.
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First, Chapo asserts that Indiana Trial Rule 41(E) which governs the dismissal of actions for failure to prosecute includes mandatory language requiring the payment of costs by the plaintiff.
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The language allocating the costs of the dismissal is cast as a mandatory, imperative duty on the court—the court shall enter an order—not as an advisory, discretionary or precatory presumption. MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 1075-76 (10th ed. 1993) defines “shall” as “will have to . . . used in laws, regulations, or directives to express what is mandatory.” In other words, as soon as the trial court enters an order of dismissal pursuant to Indiana Trial Rule 41(E), the trial court no longer has any discretion but to direct the plaintiff to bear the costs of the dismissal action.
However, neither the trial rules nor our case law have clarified the meaning of “costs” within the confines of Indiana Trial Rule 41(E). Costs were unknown at common law and may be awarded by a court only when they are authorized by statute. Agmax, Inc. v. Countrymark Coop., Inc., 661 N.E.2d 1259, 1261 (Ind. Ct. App. 1996). The statutory authority for the recovery of costs is found in Ind. Code § 34-52-1-1, the general recovery statute, which provides that “[i]n all civil actions, the party recovering judgment shall recover costs, except in those cases in which a different provision is made by law.”
The term “costs” is an accepted legal term of art that has been strictly interpreted to include only filing fees and statutory witness fees. Midland-Guardian Co. v. United Consumers Club Inc., 499 N.E.2d 792, 800 (Ind. Ct. App. 1986), reh’g denied. Thus, in the absence of manifest contrary legislative intent, the term “costs’ must be given its accepted meaning which does not include litigation expenses. Id. Specifically with respect to the trial rules, costs are addressed in Indiana Trial Rule 54(D), which provides, in relevant part that “[e]xcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs in accordance with any provision of law.”
In Calhoun v. Hammond, 345 N.E.2d 859, 860 (1976), this court addressed the meaning of “costs” in Indiana Trial Rule 54(D) in the context of a negligence action for damages arising from personal injuries. We concluded, among other things, that the recoverable costs contemplated by the rule did not include the expense incurred in the transcription of depositions. Id. at 863. We reached this conclusion on the basis that there was no statutory authority for the taxation of such an expense. Id. at 859. See also Cox v. Ubik, 424 N.E.2d 127, 131 (Ind. Ct. App. 1981) (holding, on the same grounds, that the term “costs” under Indiana Trial Rule 54(D) does not include deposition transcription expenses).
More recently, in Missi v. CCC Custom Kitchens, 731 N.E.2d 1037, 1039-40 (Ind. Ct. App. 2000), this court analyzed whether the trial court erred in taxing certain litigation expenses as a recoverable cost under Indiana Trial Rule 68. Among other things, those expenses included deposition transcription fees, preparation and printing costs for exhibits, and photocopying expenses. Id. at 1040. In reviewing the trial court’s award of costs, we first observed that the term “costs” has the same meaning in Indiana Trial Rule 68 as in Trial Rule 54(D). Id. at 1039. We concluded that the trial court erred because the costs it awarded were not of the sort contemplated by Indiana Trial Rule 54(D) or the general recovery statute, I.C. § 34-1-32-1(a). Id.
Here, Chapo indicated in her motion for costs and fees that she had incurred “costs of travel, postage, and copying in the amount of $294.00.” (Appellant’s App. p. 53). Given the absence of any indication that “costs” in Indiana Trial Rule 41(E) should be interpreted differently or more expansively than the characterization of “costs” in Indiana Trial Rules 54(D) or 68, we conclude that Chapo cannot be reimbursed for travel expenses, postage and photocopying costs. Therefore, the trial court did not abuse its discretion by denying her motion for costs.
Next, Chapo contends that Jefferson County’s action amounted to a frivolous, unreasonable and groundless action for which she should be awarded attorney fees according to I.C. § 34-52-1-1(b). Indiana adheres to the American Rule with respect to the payment of attorney fees, which requires each party to pay his or her own attorney fees absent an agreement between the parties, statutory authority, or rule to the contrary.
Breining v. Harkness, 872 N.E.2d 155, 161 (Ind. Ct. App. 2007), reh’g denied, trans. denied. Indiana Code section 34-52-1-1(b) states
In any civil action, the court may award attorney’s fees as part of the cost to the prevailing party, if the court finds that either party:
(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.
We review de novo the trial court’s legal conclusion that a party litigated in bad faith or pursued a frivolous, unreasonable or groundless claim or defense, and then review the trial court’s decision to award attorney fees and the amount thereof under an abuse of discretion standard. Breining, 872 N.E.2d at 161. A claim or defense is “frivolous” if it is taken primarily for the purpose of harassment, if the attorney is unable to make a good faith and rational argument on the merits of the action, or if the lawyer is unable to support the action taken by a good faith and rational argument for an extension, modification, or reversal of existing law. Id. A claim or defense is “unreasonable” if, based on the totality of the circumstances, including the law and the facts known at the time of filing, no reasonable attorney would consider that the claim or defense was worthy of litigation. Id. A claim or defense is “groundless” if no facts exist which support the legal claim presented by the losing party. Id. A trial court is not required to find an improper motive to support an award of attorney fees; rather an award may be based solely upon the lack of a good faith and rational argument in support of the claim. Id.
Here, Jefferson County first notified Chapo of the Zoning Ordinance violation in August of 2004. Not until three years later, in June of 2007, did Jefferson County file a Verified Complaint against Chapo. This Complaint listed the wrong address and threatened her with penalties of $2,500. Although the County’s error was pointed out by Chapo, Jefferson County failed to acknowledge its mistake until September 7, 2007. That day, Jefferson County’s counsel, by facsimile to Chapo’s counsel, conceded that the Complaint listed the wrong address and promised that she would “be filing an amended complaint in the coming week to change the address of the property.” (Appellant’s App. p. 41). Despite Jefferson County’s acknowledgment, no amended Complaint was ever filed. Meanwhile, Chapo attempted to refinance the residence incorrectly listed on the Complaint.
No further action was taken by Jefferson County. Therefore, twenty-two months later, on December 16, 2008, Chapo filed a motion to dismiss for failure to prosecute. A hearing on Chapo’s motion was set for April 9, 2009. During the hearing, Chapo’s counsel testified that for the first time since filing the motion four months prior, he had received an email from Jefferson County’s counsel the day before the hearing indicating that Jefferson County would be filing a motion to amend and a request for jury trial. No such pleadings were filed. Also, at the hearing, it became clear that Jefferson County had not taken any action to move this case along and was unable to make a good faith argument to support continuing the instant cause. Thus, Chapo established the propriety of an award of attorney fees incurred when she was forced to defend against a frivolous and groundless claim. The trial court erred when it summarily denied Chapo’s motion for attorney fees. We remand for a hearing to determine the appropriate amount of the award.
Based on the foregoing, we conclude that the trial court properly denied an award of costs; however, we find that Chapo is entitled to an award of attorney fees pursuant to I.C. § 34-52-1-1(b) and remand to the trial court to determine the appropriate amount of the award.
Affirmed in part, reversed in part, and remanded for further proceedings.
VAIDIK, J., and CRONE, J., concur.