This is the second time this lawsuit between Knightstown Banner, LLC (the Newspaper) on one side and Town of Knightstown (the Town), Governmental Insurance Managers, Inc. (GIM), and Governmental Interinsurance Exchange (GIE) on the other has come before us. In this appeal, the Newspaper presents the following restated issues for review:
1. Did the trial court err in denying the Newspaper’s motion for summary judgment and instead permitting the Town to dismiss its counterclaim for attorney fees?
2. Did the trial court err in determining the amount of the Newspaper’s attorney fees award?
3. Did the trial court abuse its discretion in denying the Newspaper’s motion for change of judge?
Conclusion (slip op. at 23): Here, we remanded to the trial court with instructions to deliver the settlement agreement to the Newspaper. The Newspaper did not file a request for attorney fees until after the case was remanded. Therefore, the only matter requiring a hearing was an issue not present in the earlier proceedings. Accordingly, the mandatory provision of T.R. 76(C)(3) did not apply. The trial court did not err in denying the Newspaper’s request for change of judge. Judgment affirmed in part, reversed in part, and remanded with instructions.
Key Analysis (slip op. at 9, 16, 22): Because the Newspaper was not substantially prejudiced by the voluntary dismissal of the Town’s counterclaim, the trial court did not err in doing so . . . we cannot discern which of the methods the trial court intended to use in calculating the amount of the attorney fees award . . . we remand with instruction to clarify whether the amount of attorney fees is to be calculated using the subtraction method or addition method . . . in order to give rise to a change of judge as a matter of right upon remand, the matters to be decided upon remand must require a hearing and receipt of evidence and must involve at least one issue already tried and decided by the court.