concurrence">KIRSCH, Judge,

concurring.

The final issue is whether the trial court’s judgment awarding attorney fees to Conforti from the Fieldses is clearly erroneous. The trial court concluded that the Fieldses were liable for Conforti’s attorney fees under Ind.Code § 34 — 52—1—1(b), which provides:

In any civil action, the court may award attorney 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 became frivolous, unreasonable, or groundless; or

(3)litigated the action in bad faith.

The trial court concluded that the Fieldses “continued to litigate the action for specific performance after it should have become clear to them that they had no right to exercise the option to purchase under the Lease. They were not parties to the Lease and no written assignment was made to them whereby they legally stepped into Marlow’s shoes.” Appellants’ Appendix at 20-21.

The trial court does not identify at what point “it should have become clear to [the Fieldses] that they had no right to exercise the option to purchase under the lease.” This matter was decided by a trial on the merits. It was not until the trial court entered its judgment that it was clear that the Fieldses had no right to exercise the option. If it had been clear earlier, this matter could have been terminated much less expensively by a motion to dismiss, a motion for summary judgment or, at the least, a motion for judgment on the evidence at trial. Rather, the parties took two days litigating this matter, and the trial court took six weeks deciding it. In deciding this case, the trial court did not find that the parties to the contract did not have the intent that the Fieldses would have an option to purchase the property, but rather concluded that any such option was unenforceable due to the Indiana Statute of Frauds. The vagaries of the statute and its numerous exceptions do not provide fertile ground for concluding that a lawsuit seeking to give effect to the parties’ intent is frivolous. The fact that the Fieldses did not prevail on their claim at trial does not make their claim frivolous. Something more is required and that something is not present here.

*517Here, the trial court concluded that “this case represents a classic example of two people not trained in the preparation of legal documents failing to record accurately their intended agreement as to the option to purchase the real estate.” Appellants’ Appendix at 22. We agree. We reverse the award of attorney fees to Con-forti from the Fieldses.

In summary, all judges on the panel concur in reversing on Issue I and affirming on Issues II and III. Judge Kirsch and Judge Mathias concur in reversing on Issue IV.

Affirmed in part, reversed in part, and remanded.

MATHIAS, J., concurs.

SHARPNACK, J., dissents as to Issue IV with separate opinion.SHARPNACK, Judge,

dissenting.

I am unable to concur in the conclusion that the trial court erred by awarding attorney fees to Conforti from the Fields-es. The trial court concluded that the Fieldses were liable for Conforti’s attorney fees under Ind.Code § 34 — 52—1—1(b), which provides:

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.

On appeal, the Fieldses argue that the assignment was not required to be in writing. Further, the Fieldses contend that the argument that they were Marlow’s assignees rather than sublessees was reasonable. In response, Conforti argues that it is not possible to consider the Fieldses’ argument in light of their failure to provide this court with a transcript of the evidence. In their reply brief, the Fields-es contend that we are able to review this issue despite their failure to provide the transcript based upon the findings of fact viewed in conjunction with the definition of assignment and established caselaw.

The Fieldses make much of the fact that the trial court’s finding that any assignment had to be in writing because the Lease contained an option to purchase the property. However, I conclude that even if we assume that the Fieldses are correct and an assignment was not required to be in writing, the Fieldses’ argument fails. “An assignment is the transfer by a lessee of one’s entire leasehold interest, while a sublessor transfers less than his entire leasehold interest so that he retains an interest in the leasehold.” Lions Delaware County Fair, 580 N.E.2d at 284. The trial court’s findings indicate that, in addition to the Lease, which permitted assignment and subletting, Marlow and Conforti signed a Permission to Sublet, which specifically allowed Marlow to sublet the property to the Fieldses. The Fields-es lived at the residence and paid rent directly to Conforti. However, the findings of fact contain no other information regarding Marlow’s transfer of his interest in the property to the Fieldses. I am *518unable to review the testimony concerning whether Marlow and the Fieldses entered into an assignment or a sublease because we were not provided with that testimony. Without the transcript of the evidence, I conclude that we simply cannot say that the trial court’s conclusion regarding the Fieldses’ behavior is clearly erroneous. See, e.g., Kocher, 824 N.E.2d at 675 (holding that, where the appellant failed to provide a transcript of the trial court’s hearing on his motion to stay execution and request for bond less than the full amount of the judgment, appellant failed to demonstrate that the trial court abused its discretion). Accordingly, I would affirm the trial court’s grant of attorney fees from the Fieldses, and I dissent as to Issue IV.

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