Simon v. Simon

RILEY, Judge,

dissenting.

I respectfully disagree from the majority’s decision to dismiss Bren’s interlocutory appeal for lack of standing. The majority bases its conclusion on Judge Hughes’ December 15, 2010 Order that removed Bren as Personal Representative and Trustee and which, according to the majority, consequently terminated her representative capacity and her authority to litigate any further on behalf of the Estate and the Trust. In support of its analysis, the majority relies on Weiland v. Scheuch, 123 Ind.App. 421 , 111 N.E.2d 664, 664 (1953), in which we held that once a personal representative has been removed, he or she can no longer interfere in the lawsuit in his or her representative capacity, but has to intervene in an individual capacity. Because Bren failed to intervene in her individual capacity, the majority opined that she lacked standing to pursue this appeal. The majority’s operating premise is wrong.

Unlike Wetland, where the former executrix attempted to appeal her removal in her representative capacity, Bren is NOT appealing Judge Hughes’ December 15, 2010 removal Order, rather she is appealing Judge Hughes’ December 1, 2010 Order in which he refused to recuse himself. To that end, she filed her motion to certify that decision for interlocutory appeal on December 8, 2010, which was granted by Judge Hughes on December 15 prior to issuing his decision of the same date to remove Bren as Personal Representative and Trustee. In its opinion, the majority conflates the December 1 Order and the December 15 removal Order — both Orders cover different issues and were issued on different dates. By focusing on the December 15 removal Order — which Bren did not appeal — the majority concludes that Bren lacks standing to “prosecute an appeal of the removal order.” See Op. p. 988. The majority then extrapolates this conclusion retroactively to the December 1 Order by opining that “if the former representative may not appeal the removal order in her representative capacity, then it follows that she cannot appeal a collateral order such as the order here in which the trial judge refused to disqualify himself.” See Op. p. 988.

Judge Hughes’ December 1 Order refusing to recuse himself and Bren’s subsequent motion to certify this decision for interlocutory appeal on December 8, 2010 freezes the legal situation in time. As noted from the record, Judge Hughes’ grant of Bren’s motion for an interlocutory appeal was already announced in his December 1 Order and was a mere formality when it took place on December 15, 2010— any decisions made or actions taken after the certification of the interlocutory appeal by Judge Hughes are superfluous to my analysis. Because Bren was granted an interlocutory appeal of her claim, Judge Hughes’ impartiality was unresolved and remained at issue. All decisions issued by Judge Hughes since Bren raised and pursued her argument have been tainted with possible illegality, especially Judge Hughes’ December 15 decision which removed Bren as Trustee and Personal Representative: if Judge Hughes lost his ap *991 pearance of impartiality, all his decisions since December 8, 2010 are invalid; if, on the other hand, Judge Hughes has remained impartial, Judge Hughes’ order to remove Bren as Trustee and Personal Representative cannot be found defective in that respect.

Based on the facts before us, I conclude that Bren has standing to bring this appeal as she is aggrieved by Judge Hughes refusal to recuse himself. Pursuant to Indiana Code section 30-4-6-ll(a) of the Trust Code, “[a]ny person considering himself aggrieved by any decision of a court having jurisdiction in proceedings under this article may prosecute an appeal to the court having jurisdiction of such an appeal.” Likewise, Indiana Code section 29-1-1-22 of the Probate Code provides that “[a]ny person considering himself aggrieved by any decision of a court having probate jurisdiction in proceedings under this article may prosecute an appeal to the court having jurisdiction of such appeal.” In the vintage decision of McFarland v. Pierce, 151 Ind. 546 , 45 N.E. 706, 706-07 (1897), our supreme court — interpreting a statute conferring the right to appeal on any ‘person aggrieved’ by the appointment of a receiver — constructed what is still today considered the seminal definition of the term ‘aggrieved.’ The McFarland court defined it as

a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation. To be aggrieved is to have a legal right, the infringement of which by the decree complained of will cause pecuniary injury. The appellant must have a legal interest which will be enlarged or diminished by the result of the appeal.

See also Jaqua v. Reinhard, 99 Ind.App. 261 , 190 N.E. 887, 890 (1934) (citing McFarland when interpreting ‘aggrieved’ under the Probate Code). More recently, in In re Estate of Eguia, 917 N.E.2d 166, 169 (Ind.Ct.App.2009), we held that to be ‘aggrieved,’ the probate court’s judgment must be adverse to the person’s legal interests.

At the center of the dispute is the validity of the revised will, which will result in Bren either gaining or losing a considerable portion of her deceased husband’s estate. When the presiding Judge in this battle hired the law firm who is also representing one of Bren’s opposing parties in the Trust Dispute to defend his interests before the Indiana Judicial Qualifications Commission, it is understandable that Bren questioned the Judge’s impartiality, and pursued Judge Hughes’ refusal to re-cuse himself on appeal.

The majority’s decision is a disservice to justice. Accepting the majority’s premise that Judge Hughes’ decision to remove Bren as Trustee and Personal Representative, standing alone, results in Bren losing standing in the current appeal, which was initiated prior to Judge Hughes’ removal Order, a trial court could effectively shield itself from judicial scrutiny by removing or dismissing a party seeking the trial court’s recusal. In reaching this conclusion, the majority clearly affirmed Appellees’ argument which was raised as a red herring in their brief in order to obscure the pertinent issue before us. Unfortunately, the majority took the bait.