Petition for Writ of Certiorari — Harkrider v. Lafayette Bank & Trust Co.

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In The

Supreme Court of the United States

October Term, 1987

MATTER OF THE GUARDIANSHIP OF

PEARL C. POSEY, ADULT INCOMPETENT,

RAYMOND HARKRIDER, RAYMOND HARKRIDER

AS EXECUTOR OF THE ESTATE OF GEORGIA

CORY, DECEASED, BETTY ROGERS and JUNE

NELSON,

Petitioners,

LAFAYETTE BANK AND TRUST COMPANY, IHAN-

NA GERDE & MEADE, BALL EGGLESTON BUM-

BLEBURG & McBRIDE, FLOYD WILCOX, STUART

& BRANIGIN, ANN G. DAVIS and VAUGILAN

VAUGHAN & LAYDEN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

Ricwuarp S. Ewixe

Donn H. Wray

Dovetas R. Brown

Stewart & Irwin

Two Market Square Center

Suite 1100

951 East Ohio Street

Indianapolis, Indiana 46204

(317) 639-5454

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

or call collect (402) 342-2831

ee ee

QUESTIONS PRESENTED FOR REVIEW

1. When a state appellate rule fails to provide for

any sort of notice, hearing or procedural due process prior

to imposing liability for attorney fees against a losing

party, and allows the award of such fees based solely upon

the diseretion of the court, and liability under such a rule

is imposed upon a finding of ‘‘bad faith’’ without oppor-

tunity for challenge or hearing on the record, has the

party found liable been denied due process of law con-

trary to U.S. Const. Amend. XIV, § 1?

2. When, despite the existence of express statutory

procedure specifically delineating and granting both pro-

cedural and substantive rights to parties in guardianship~

proceedings, a court consistently, throughout a protracted

series of proceedings, ignores statutorily mandated re-

quirements for the selection of a guardian, and deprives

petitioners of meaningful opportunities to respond or pre-

sent argument, and, based upon a record compiled in such

a fashion thereby rules adversely to petitioners claiming

against a guardian who conveyed his ward’s farm to him-

self, have petitioners been deprived of property contrary

to U. S. Const. Amend. XIV, § 1?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW WW. i

TABLE OF AUTHORITY eee. 3c. cectecn eee ill

OPINIONS BEM 23.2050 eee 1

GROUNDS ON WHICH JURISDICTION IS

INVORED ou icnacsdaeme ee ee eee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLY Gee 3.05.55. eee a

STATEMENT OF THe CABS... 4 ae

REASONS RELIED ON FOR THE ALLOWANCE

OF THE Wit ee eee 13

I. Indiana Rule of Appellate Procedure 15(G) al-

Il.

lows the imposition of attorney fees upon a losing

party based solely upon the discretion of the ap-

pellate tribunal and without opportunity for hear-

ing or meaningful response. The rule thereby

violates the due process guarantees of U.S.

Const. Amend, ASV, § To. ee

The conduct of the proceedings by the trial court

consistently denied petitioners’ rights to proce-

dural due process and thereby resulted in an un-

constitutional deprivation of property. 200000000.

CONCLUSION 5.

APPENDIX ......... AE App. 1

iil

TABLE OF AUTHORITIES

Page

Cases

Armstrong v. Manzo, 380 U.S. 545, 14 L.Ed.2d 62,

I ted 17,18

Baker v. Kinnett, (Ind. App.) 488 N.E.2d 1128 (1986) 17

Braley v. Campbell, 832 F.2d 1504 (10th Cir.

ahs oboe Sal SD Redes Ge END AR rt ee ee oe D 15, 16, 17

Briggs v. Clinton County Bank & Trust Co., (Ind.

App.) 452 N.E.2d 989 (1983) 0. Seeeecaaal 17

First National Bank of Danville v. Reynolds, (Ind

nee? oe. eae 216 (1966) ...tiCiéiaY

Mullane vo Central Hanover Trust Co.. 339 U.S.

306, 94 L.Ed. 865, 70 S.Ct. 652 (1950) 18

Orr v. Turco Manufacturing Co., Inc., (Ind. App.)

Sn EE UD 17

Roadway Express, Inc. v. Piper, 447 U.S. 752,

65 L.Ed.2d 488, 100 S.Ct. 2455 (1980) 00014, 15

Rodgers v. Lincoln Towing Service, Inc., 771 F.2d

194 (7th Cir. 1985) _.. Se Seen eS OE AO Ate 15

Societe Internationale. v. Rogers, 357 U.S. 197,

2 L.Ed.2d 1255, 78 S.Ct. 1087 (1958) 14

Speiser v. Randall, 357 U.S. 513, 2 L.Ed.2d 1460,

ON 19

State ex rel Shrenker v. Superior Court of

Madison County, 242 Ind. 171, 177 N.F.2d 594 (1961) 19

Textor v. Board of Regents of Northern Illinois

University, 711 F.2d 1387 (7th Cir. 1983) 00 5

TABLE OF AUTHORITIES—Continued

Page

CoNnsTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. Amend. XIV, $1 —......... hth FE im Mara 2,13

Rk tc RE Eeneapwaenennnna vate mmannontne entree nee semr on 2

Indiana Rule of Appellate Procedure 15(G) 2, 11, 12, 18,

16, 17

EO Baar Cee) oe ee 3, 8, 18

ye REE Neen

SE 8 ). __ | eaten anode nema 4,8,18

LC. -1-16-16 (963) EEE... 5, 9

BE Fe RD inner erecta atelcoesnneoncnioestinl 5, 9,17

In The

Supreme Court of the United States

October Term, 1987

ray

MATTER OF THE GUARDIANSHIP OF

PEARL C. POSEY, ADULT INCOMPETENT,

RAYMOND HARKRIDER, RAYMOND HARKRIDER

AS EXECUTOR OF THE ESTATE OF GEORGIA

CORY, DECEASED, BETTY ROGERS and JUNE

NELSON,

Petitioners,

LAFAYETTE BANK AND TRUST COMPANY, HAN-

NA GERDE & MEADE, BALL EGGLESTON BUM-

BLEBURG & McBRIDE, FLOYD WILCOX, STUART

& BRANIGIN, ANN G. DAVIS and VAUGHAN

VAUGHAN & LAYDEN,

Respondents.

ft).

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

fy.

OPINIONS BELOW

The originally unpublished opinion of the Indiana

Court of Appeals, First District, was filed September 3,

1986, and is attached as Appendix A. Said opinion was

later ordered published and may be found at 513 N.E.2d

674.

The unpublished order of the Indiana Court of Ap-

peals, First District, denying rehearing, was filed October

14, 1986, and is attached as Appendix C.

The opinion of the Indiana Supreme Court granting

the Civil Petition to Transfer was filed August 25, 1987,

is published at 512 N.E.2d 155, and is ineluded as Ap-

pendix E.

The unpublished order of the Indiana Supreme Court

denying rehearing was filed November 9, 1987, and is at-

tached as Appendix G.

—

GROUNDS ON WHICH JURISDICTION IS INVOKED

The opinion of the Indiana Supreme Court was filed

August 25, 1987. The Indiana Supreme Court denied a

petition for rehearing upon that opinion on November 9,

1987. This petition was filed within ninety (90) days of

that date. -

This Court’s jurisdiction is invoked under 28 U.S.C.,

§ 101.

aff}

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S Const. Amend. XIV, §1:

No state ... shall . . . deprive any person of life,

liberty, or property, without due process of law; .. .

Indiana Rule of Appellate Procedure 15(G) :

Damages Against Appellant. If the court on appeal

affirms the judgment, damages may be assessed in

favor of the appellee not exceeding ten percent (106 )

upon the judgment in money judgments, and in other

eases in the discretion of the court: and the court

shall remand such cause for execution.

I, C, 29-1-1-12 (1961):

**Service of Notice. Sec. 12. Unless waived and ex-

cept as otherwise provided by law, all notices required

by this code to be served upon any persons shall be

served as the court shall direct by rule or in a par-

ticular case, either:

(a) By delivering a copy of the same to such per-

son or by leaving a copy of the same at his last and

usual place of residence, at least ten (10) days be-

fore the hearing, if he is a resident of the State of

Indiana. .. .”’

I. C. 29-1-18-10 (1973):

“LC, 29-1-18-10. Appointment of Guardian; Suit-

able Persons; Requests.

Sec. 10. (a) The court shall appoint as guardian or

co-guardian of an incompetent the person, persons,

or corporate fiduciary or any combination thereof

most suitable and willing to serve, having due regard

to:

1) any request made by one for whom a guardian

is being appointed by reason of old age, infirmity or

other incapacity, other than insanity, mental illness,

mental retardation, senility, habitual drunkenness, or

exeess use of drugs:

2) any request for the appointment contained in a

will or other written instrument;

3) any request made by a minor of the age of four-

teen (14) years or over the appointment of his guardi-

an,

4) any request for the appointment made by the

spouse of an incompetent;

5) the relationship by blood or marriage to the per-

son for whom guardianship is sought;

6) the assets or interest of the incompetent and the

incompetent’s estate.’’

I, C. 29-1-18-11 (1953) :

**L.C. 29-1-18-11. Petition for Appointment.

Sec. 11. Any person may file a petition for the ap-

pointment of himself or some other qualified person

as guardian of an incompetent. Such petition shall

state:

(a) The name, age, residence, and post office ad-

dress of the incompetent;

(b) The nature of his incapacity in accordance with

the classification set forth in Section 1901(¢) hereof;

(ec) The approximate value and description of his

property, ineluding any compensation, pension, in-

surance or allowance to whieh he mav be entitled;

(d) Whether there is, in any state, a guardian for

the person or estate of the incompetent;

(e) The residence and post office address of the

person whom petitioner asks to be appointed guardi-

an:

(f) The names and addresses, so far as known or

ean reasonably be ascertained, or the nersons most

closely related by blood or marriage to the ineompe-

tent:

(g) The name and address of the person or institu-

tion having the care and custody of the incompetent:

(h) The name and addresses of persons for which

any natural person whose appointment is sought is

“lready guardian:

————————

(i) The reason why an appointment of a guardian

is sought and the interest of thc petitioner and the

appointment.

Se v

(j) The name and business address of the attorney

who is to represent the guardian.’’ (Emphasis sup-

plied.)

C. 29-1-18-16 (1953) :

29-1-18-16. Orders of court; notice of hearing

Sec. 16. Before the court enters an order upon

any petition, pleading, or other paper filed with the

court in the matter of the guardianship of the estate

or of the person, notice of hearing thereon shall be

given to the guardian of the estate unless he shall

have signed the same, consented thereto, or waived

notice of hearing thereon.

C. 29-1-18-17 (1953):

29-1-18-17 Request for notice of hearing

See. 17. At any time after the issuance of letters

of guardianship,

(a) The guardian of the person;

(b) Any department, bureau or agency of the

United States or of this state or any political sub-

division thereof which makes or awards compensa-

tion, pension, insurance or other allowance for the

benefit of the ward’s estate, or

state or any political subdivision thereof or any chari-

table organization of this state, which may be charged

with the supervision, control or custody of the incom-

petent, or

(d) Any other interested person may, in person

or by attorney, serve upon the guardian or upon his

attorney, and file with the clerk of the court. where

the proceedings are pending, with a written admis-

sion or proof of service, a written request stating that

he desires written notice of the filing of and hearings

on petitions, reports, pleadings, or other papers in

connection with the settlement of accounts, the sale,

mortgage, lease or exchange of any property of the

estate, allowances of any nature payable from the

ward’s estate, the investment of funds of the estate,

the removal, suspension, or discharge of the guardian

or final termination of the guardianship, or any other

matter as specified in such request. The applicant for

such notice must include in his written request his

post office address or that of his attorney. Unless

the court otherwise directs, upon filing the request,

the person shall be entitled to notice of all such hear-

ings or of such of them as he designates in his re-

quest. The court may, in its discretion, determine

that any person requesting notice pursuant to (d)

hereof has no interest therein, either generally or

with respect to a particular matter, and is not en-

titled to the notice requested.

co)

STATEMENT OF THE CASE

Petitioners are the next of kin and sole beneficiaries

of the estate of Pearl Posey (hereinafter ‘Petitioners’

or **Pearl’s Family’’). Respondents, Lafavette Bank and

Trust Company (hereinafter ‘‘Lafayette Bank’’) and

Floyd Wilcox (hereinafter ‘‘Wilcox’’)

guardian of Pearl’s estate and guardian of Pearl’s person,

, have acted as

respectively, Respondent, Hanna Gerde & Meade, has

acted as attorney for Lafayette Bank in Pearl’s guardian-

ship proceeding. The Respondent, Stuart & Branigin, has

acted as attorney for Wilcox in Pearl’s guardianship pro-

ceeding. The Respondent, Ann G. Davis, an associate of

the law firm of Vaughan, Vaughan & Layden, acted as

Pearl’s court appointed attorney in Pearl’s guardianship

(

proceeding. Respondent, Ball Eggleston Bumbleburg &

McBride, acted as the attorney for the Petitioner and

Purdue National Bank at the outset of Pearl’s guardian-

ship proceeding.

Pearl was born in 1896, and at the time of her death

on March 19, 1982, was approximately 86 years old. Upon

the death of Pearl’s husband, George Posey, in 1966, Pear!

became the owner of an eighty (80) acre farm, a forty

(40) acre farm, the couples’ residence and certain joint

cash and savings accounts. Shortly after George Posey’s

death, Wilcox purchased Pearl’s forty (40) acre farm for

approximately Thirty Thousand Dollars ($30,000.00). On

October 4, 1973, at the age of seventy-seven (77), Pear!

executed a general power of attorney appointing Wilcox

her attorney-in-fact. In 1980, pursuant to the general pow-

er of attorney, Wilcox sold Pearl’s residence for Twenty-

Kight Thousand Dollars ($28,000.00).

On November 9, 1977, Pearl and Wilcox executed a

document styled an ‘‘Escrow Agreement,’’ prepared by

Wilcox’s attorney, pursuant to which a deed to Pearl’s

eighty (80) acre farm was placed in escrow until Pearl’s

death. Under the terms of the ‘‘Escrow Agreement,’’ the

deed would be transferred to Wilcox, free and clear an}

without consideration, upon Pearl’s death. On April 28,

1979, Pearl suffered a stroke, after which she became a

permanent patient at the Americana Nursing Home in

Lafayette, Indiana. On March 22, 1982, three (3) days

after Pearl’s death, the deed granting Pearl’s eighty (80)

acre farm to Wileox was recorded in the Office of the Re-

corder of Tippecanoe County, Indiana.

On March 18, 1981, Pearl suffered a second massive

stroke, which rendered her comatose. On June 30, 1981,

the Petitioners filed a Petition for Appointment of a

Guardian of Pearl’s Person and Estate in strict compli-

ance with I, C, 29-1-18-11. In their petition, Pearl’s Fami-

ly requested that Pearl’s brother, Raymond Harkrider,

and Pearl’s bank, the Purdue National Bank, be appointed

co-guardians of Pearl’s estate. The Petition further re-

quested that, in the event the court deemed it necessary,

Pearl’s niece, June Nelson, be appointed guardian of

Pearl’s person. A hearing on the Petition was set by the

Tippecanoe Circuit Court for July 24, 1981.

On July 21, 1981, three (3) days prior to the hearing

on Pearl’s Family’s Petition, Wilcox filed a ‘‘cross-peti-

tion’? for the appointment of a guardian of Pearl’s per-

son and estate. In his ‘‘eross-petition,’? Wileox requested

that he be appointed guardian of Pearl’s person, and that

he and an unspecified local bank be appointed guardian of

Pearl’s estate. The Indiana Code does not provide for the

filing of a ‘‘cross-petition’’ for the appointment of 2

guardian. If considered a petition under I. C. 29-1-18-11

it was deficient in that: (1) the Code does specifically re-

quire that all proposed euardians be disclosed in the peti-

tion and; (2) the Code requires that ten (10) days notice

be given. I. C. 29-1-1-12.

On July 24, 1981, the trial court conducted a hearing

on Pearl’s Family’s Petition and the Respondents’ ‘‘cross-

netition,’’ and on Jnly 27, 1981, entered an order appoint-

ing Lafayette Bank guardian of Pearl’s estate. During

the July 24, 1981 hearing the court stated on the record

that Wilcox’s past dealings with Pearl made his appoint-

=o an

ment as her guardian ‘‘untenable.’’! Despite that finding,

the trial court on September 9, 1981 appointed Wilcox

guardian of Pearl’s person. In that same order the court

referred to an ex parte and extrajudicial ‘‘report’’ re-

ceived from the Respondent, Ann G. Davis, (R., at 34).

Pearl’s Family was given no notice of such ‘‘report,’’ and

had no opportunity to respond to the contents thereof.

On November 6, 1981 Pearl’s Family filed its request

for notice of hearings. Pursuant to I. C. 29-1-18-17 they

were therefore entitled to notice of all hearings. Despite

that statutory requirement, the following orders were

initially approved by the trial court without notice to

Pearl’s Family and without first conducting a hearing on

the propriety of the claims asserted therein as required

by I. C. 29-1-18-16:

11- 9-81 Fee-expense award to Davis $ 1,205.10

3- 5-82 Fee-expense award to Davis $ 655.00

8-31-82 Fee-expense award to Wilcox

as guardian of person $ 2,388.75

7-20-82 Fee-expense award to Wilcox

as executor (probate estate) $ 5,000.00

11-10-82 Fee-expense award to Davis $ 350.00

= From a legal standpoint, however, it would be

unfair to all concerned to appoint him [Wilcox] Guardi-

an. He would then be put in the position of being

called upon to review his past dealings with her, and

approve them, or disapprove them. | can’t imagine

as Guardian challenging his acts in farming her land,

accounting to her, procuring the power of attorney,

acting under it, acting with regard to the preparation

of the Will in 1980. This would put him in an unten-

able position... .”

(R., at 380).

3-11-83 Fee-expense award to Wilcox

as executor (probate) $19,939.57

12- 3-84 Hanna Gerde & Meade for bank

as guardian of estate $ 1,035.00

The following awards were made after hearing, but no

notice prior to hearing was ever given:

12- 3-84 Ball Eggleston Bumbleburg

& McBride ¢ 200.00

3- 4-85 Fee-expense award to Wilcox

as guardian of person ¢ 2,382.16

3- 4-85 Hanna Gerde & Meade (total of

(Wo Owaras) Pe $ 2,125.00

The foregoing are indicative of the manner in which

due process requirements were consistently ignored by the

trial court. In 1983, Pearl’s Family initiated an appeal

(hereinafter the ‘‘first appeal’’) to the Indiana Court of

Appeals, in which Pearl’s Family requested review of

the first five of the orders, as well as the trial court’s

appointment of Pearl’s guardians pursuant to Wilecox’s

’? In a memorandum decision filed by the

‘‘eross-petition.

Indiana Court of Appeals on July 20, 1983, the court held

that the propriety of the appointment of Pearl’s guardi-

ans was moot due to Pearl’s subsequent death, and that the

propriety of the above fee-expense orders could not re-

ceive appellate review until a final accounting of the

guardians had been approved by the trial court.

Following that initial appellate determination, on

March 11, 1985 the trial court entered its ‘‘Order Approv-

ing Supplemental Report of Distribution and Discharging

Guardian.’’ A hearing was held prior to the entry of

this order, but over the objection of Pearl’s Family

the trial court ratified the earlier ea parte orders.

Pearl’s Family then initiated the present appeal to

the Indiana Court of Appeals. One of the key errors

alleged in this appeal was the failure of the trial court to

ever grant Pearl’s Family meaningful opportunity to

challenge the orders entered previous to the first appeal

(listed supra). On September 10, 1985, Pearl’s Family

filed with the Indiana Court of Appeals a petition request-

ing that the record of proceedings in the first appeal be

considered a part of the record of proceedings in the

present appeal (Appendix H), which was granted by order

of the Indiana Court of Appeals on September 26, 1985,

(Appendix I).

In their appellees’ briefs, the Respondents requested

that the Indiana Court of Appeals, pursuant to the Indiana

Rule of Appellate Procedure, 15(G@), assess damages

against Pearl’s Family for prosecuting a bad faith appeal.

Pearl’s Family responded briefly to this request for

sanctions in their Reply Brief.

On September 3, 1986 the Indiana Court of Appeals

filed its Memorandum Decision affirming the triai court’s

approval of the guardian’s final accounting. Without giv-

ing Pearl’s I’'amily notice or an opportunity to be heard,

the court found Pearl’s Family gnilty of bad faith for the

prosecution of the present appeal and pursuant to A.R.

15(G), imposed lability for fees. Among the reasons

stated by the court of appeals for its decision was ‘‘the

absence of a mention of the previous appeal.’’ (Appendix

A at 7). Pearl’s Family’s Petition for Rehearing in the

Indiana Court of Appeals was overruled on October 14,

1986. (Appendix C).

On November 3, 1986 Pearl’s Family filed their Peti-

tion to Transfer (Appendix D) and Brief in Support of

Petition to Transfer in the Supreme Court of Indiana

which was granted by the supreme court by its opinion

filed August 25, 1987, (Appendix E). In its opinion on

transfer, the Supreme Court of Indiana summarily af-

firmed the opinion of the Indiana Court of Appeals on all

issues except that involving the imposition of sanctions

pursuant to A.R. 15(G).

In its opinion on transfer, the Supreme Court of In-

diana affirmed the court of appeals’ finding of liability

under A.R. 15(G) based partially on a renewed allegation

that Pearl’s Family failed to disclose the first appeal.

(Appendix E at 28). On September 14, 1987 Pearil’s Fam-

ily filed their Petition for Rehearing in the Supreme Court

of Indiana (Appendix F), which was overruled on Novem-

ber 9, 1987, (Appendix G). At no time in these proceed-

ings was Pearl’s Family notified, by the Indiana Court of

Appeals or the Supreme Court of Indiana, that either

court was considering finding Pearl’s Family in bad faith

for filing the present appeal and holding them liable, un-

der A.R. 15(G), for fees. Similarly, Pearl’s Family was

never given a hearing on the record as to the question of

bad faith in the prosecution of the present appeal.

ca —O-

REASONS RELIED ON FOR THE

ALLOWANCE OF THE WRIT

I. Indiana Rule of Appellate Procedure 15(G) al-

lows the imposition of attorney fees upon a losing

party based solely upon the discretion of the ap-

pellate tribunal and without opportunity for

hearing or meaningful response. The rule there-

by violates the due process guarantees of U:S.

Const. Amend XIV, § 1.

As fully set forth supra, Indiana Rule of Appellate

Procedure (hereinafter ‘‘A.R.’’) 15(G) allows either the

Indiana Court of Appeals or the Supreme Court of Indiana

to assess attorney fees against the losing party in an ap-

peal based solely upon the court’s discretion. Although in

cases with ‘‘money judgments’’ the fees awarded under

A.R. 15(G) may not exceed ten percent (10%) of the jude-

ment amount, in all other cases the courts have unfettered

discretion to impose fees in any amount. On the one hand

it could be contended that this case involves the propriety

of the approval of the guardian’s accounting and therefore

the fees are not subject to the ten percent (10%) limita-

tion. On the other hand, if the controversy is the amount

of the fee/expense awards, the ten percent (10%) limita-

tion would apply. The Indiana Supreme Court opinion

provides no guidance as to that point.

It is particularly significant that A.R. 15(G) allows

the appellate tribunal to unilaterally impose a fee award

and remand the award for execution proceedings only. The

liability of the losing party is thus established without any

evidentiary hearing and the rule only allows the party

assessed fees-a ‘‘hearing’’ for proceeding supplemental.

The constitutional shortcomings of A.R. 15(G) are

especially apparent in this case in light of uncontroverted

error on the face of both the court of appeals and Indiana

supreme court opinions. The supreme court includes, as

one of the reasons to impose fee liability, petitioner's

‘‘failure to disclose his previous appeal raising many of

the same issues’? (Appendix E at 28), yet Appendix I is

the order of the court of appeals granting petitioners’ own

motion to consider the record from the first appeal as

part of this case. Presumably a hearing on fee liability

or the opportunity for a meaningful response would allow

the appellate courts an opportunity to avoid such blatantly

erroneous factual findings.

In addressing the assessment of sanctions, this Court

has held that U.S. Const. Amend. XIV, §1 requires

that a person subjected to any sanction be given ‘‘fair

notice and an opportunity for a hearing on the record.”’

Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 65 L.Ed.

9d 488, 501-02, 100 S.Ct. 2455 (1980) ; Societe Internation-

ale v. Rogers, 357 U.S. 197, 2 L.Kd.2d 1255, 78 S.Ct. 1087

(1958). Prior to the imposition of fee liability by the court

of appeals, there was no opportunity to respond to the

bases it ultimately used. After the liability was imposed,

the only opportunities for response to the court’s imposi-

tion of fee liability were the following: The petition for

rehearing in the Indiana Court of Appeals (which was

denied without opinion, Appendix B); the petition for

transfer to the supreme court (Appendix D), which was

granted, but by an opinion perpetuating the erroneous

finding that the petitioners failed to mention the first

appeal (Appendix E) and; the petition for rehearing in

the Indiana supreme court which was also summarily

denied (Appendix G). None of those petitions provided

an opportunity for hearing on the record, and moreover

came after the burden of proof was shifted to Pearl’s

Family.

The constitutional necessity of a hearing on the record

in this case is further emphasized because, as previously

noted, ‘‘bad faith’? was a key predicate for the lposition

of fees. The court of appeals made that finding (Appendix

A at 7), which was ratified by the Indiana supreme court

(Appendix E at 28).

Textor v. Board of Regents of Northern illinois Uni-

versity, 711 F.2d 1387 (7th Cir. 1983) held that Roadway

Express, supra, mandates a hearing on the record when

bad faith forms a basis for the award of fees. See also,

Rodgers v. Lincoln Towiny Service, Inc., 771 b.2d 194, 206

(7th Cir. 1985) (‘‘the trial court has not based the sanc-

tions on bad faith, which would require a hearing. . . aat

By tinding ‘*|gjross abuse of the right to appellate re-

view’’ (Appendix E at 28) and basing fee liability upon

that finding, without a hearing, the Indiana supreme court

has denied petitioners’ procedural due process rights.

That such a denial occurred without violating the terms

of A.R. 15(G) indicates the rule itself is constitutionally

insufficient.

The Tenth Cireuit has recently addressed the need for

observance of due process in assessing sanctions. In Bra-

ley v. Campbell, 832 F.2d 1504 (10th Cir. 1987), the court

held that basic due process requires that one be given

notice that fee sanctions are being considered by the court

and a subsequent opportunity to respond. /d. at 1514.

Given that it is patently obvious that both the court of ajs-

peals and the supreme court inisread the record, one of the

observations of braley is acutely significant here:

In one sense notice may seem superfluous when an ap-

pellate court has determined, after considering briefs,

argument and the record that the appeal is so un-

meritorious as to be frivolous. The court’s determina-

tion is a judgment on the state of the law as applied

to the facts in the ‘record. The only possible rebuttal

to the court’s conclusion would be a demonstration that

the court overlooked controlling statute or ease law or

misread the record. A petition for rehearing would

seem adequate to bring such errors to the court’s at-

tention.

Id. at 1514 (emphasis added).

A.R. 15(G) requires no hearing and the courts held

none. Notwithstanding the petitions for rehearing and

transfer placed before them, the Indiana appellate courts

repeatedly misread the record and used the erroneous alle-

gation that petitioners failed to apprise the court of the

first appeal as one of the key bases for finding bad faith.

In Braley the Tenth Cireuit reversed the grant of sane-

tions against an attorney because he was not given a de

novo opportunity to argue the original three-judge panel's

imposition of sanctions. In this case, Pearl’s Family was

given no notice of what the court of appeals would con-

sider ‘*bad faith’? in assessing sanctions, or whether in

fact **bad faith’’ is encompassed under A.R. 15(G). By

the time the court enunciated the standard for imposing

liability, the burden had shifted to Pearl’s Faniilvy to show

the error in the court of appeals decision and they, like the

attorney in Braley, were denied a de novo review of the

finding of bad faith. However, unlike the attorney in

Braley, the sanctions levied against petitioners were af-

firmed. The Indiana supreme court conceded that the

standard was unknown prior to this opinion when it

stated: ‘‘In order to provide guidance to the bench and bar

as to circumstances when such fees are appropriate, we

a |

grant transfer herein solely for the purpose of addressing

the A.R. 15(G) issue.’’ (Appendix E at 27). Under color

of A.R. 15(G) petitioners were deprived of due process.

See also Armstrony v. Manzo, 380 U.S. 545, 14 L.Ed.2d 62,

89 S.Ct. 1187 (1965) (unconstitutional deprivation of due

process to improperly shift burden of proof).

Based upon the foregoing, Petitioners respectfully re-

quest that certiorari issue to the Supreme Court of In-

diana. Given the increasing litigation on the subject of

attorney fees as sanctions nationally (see, e.g. Braley,

supra) and in Indiana (see, e.g. Orr v. Turco Manufactur-

ing C'o., Inc., (Ind. App.) 496 N.E.2d 115 (1986); First Na-

tional Bank of Danville v. Tkeynolds, (Ind. App.) 491 N.E.

2d 218 (1986); Baker v. Kinnett, (Ind. App.) 488 N.E.2d

1128 (1986); Briggs v. Clinton County Bank & Trust Co..

(Ind. App.) 452 N.E.2d 989 (1983)) review of this case and

this state provision provides an opportunity for the issu-

ance of guidance to state courts with similar provisions,

and therefore similar problems, in disciplining litigants

while maintaining constitutional due process guarantees.

II. The conduct of the proceedings by the trial court

consistently denied petitioners’ rights to proce-

dural due process and thereby resulted in an un-

constitutional deprivation of property.

As detailed in the ‘‘Statement of the Case,’

supra, the

trial court consistently, over a considerable period of time,

engaged in a course of conduct detrimental to the due pro-

cess rights of petitioners. Orders were entered without

notice or hearing to Pearl's lamily despite their statutory

entitlement under I. C. 29-1-18-17. The Indiana statute

mandating preferences in the selection of guardians was

ignored, I. C, 29-1-18-10. The notice provisions pertaining

to petitions for guardianshi; were ignored by-allowing the

filing of a ‘‘cross petition’’ which did not specify the

guardian whose appointment was sought, I. C. 29-1-18-11

(e). Insufficient notice of the ‘‘cross-petition’’ was ig-

nored, I. C, 29-1-1-12. The trial court appointed as guard-

ian an individual it previously stated was incompetent to

serve. At the hearing on the final accounting following

the first appeal the trial court, over Pearl’s Family’s ob-

jections, did not attempt to eure its failure to give notice

prior to entering the earlier orders and simply ratified

those earlier, ex parte, entries,

The Petitioners were thus before the Indiana Court of

Appeals in the posture of appellants. That posture was

unconstitutionally forced upon them by the conduct of the

previous proceedings in the trial court. As such, they were

required to show the trial court abused its discretion in

ruling as it did (Appendix A at 6). At no point in this

litigation have petitioners ever been heard de novo with

respect to the entries made without notice to them.

This Court recognizes that it is wrong to deprive any

individual of property without giving notice and an oppor-

tunity for hearing appropriate to the nature of the case.

Mullane v. Central Hanover Trust Co., 339 U.S. 306, 94

L.Ed. 865, 70 S.Ct. 652 (1950). The debate often focuses

upon the particular form of notice given in a case, but as

to the basic requirement that some form of notice be given

‘

‘*there can be no doubt.”’ Armstrong, supra, at 380 U.S.

551.

Here, the procedural and substantive prejudice of the

ex parte orders was compounded by the trial court’s fail-

ure to follow the law set forth in the Indiana statutes

governing the selection of guardians. When Wilcox was

ieee ereeenen ere

appointed, the trial court contradicted both the law and

its own prior observation that Wilcox was unable to serve

as guardian as a matter of law. The entry of the orders

without notice, plus the wholesale abandonment of the sub-

stantive law, prejudiced petitioners? That conduct arose

to constitutional magnitude because it persisted for such

a period of time and involved so many factors in this case,

great and small. Taken together, the trial court’s actions

coalesce to compel the conclusion that the procedural due

process rights of petitioners were violated,

_ The Indiana appellate process did nothing to cure the

injury suffered at the trial court level. As previously

noted, petitioners were forced into the posture of appel-

lants, and thus bore the burden of showing the error of the

trial court orders and actions. This Court has held ‘‘it is

plain that where the burden of proof lies may be decisive

to the outcome.’? Armstrong, supra, at 551, citing Speiser

v. Randall, 357 U.S. 518, 525, 2 L.&d. 2d 1460, 1472, 78

S.Ct. 1382 (1958). Only a hearing de novo on the matters

ruled upon by the trial court ex parte could cure the un-

constitutional shifting of the burden to petitioners.

Given that the result of the trial court proceedings

was to deprive petitioners of the portions of Pearl’s estate

distributed by means of the ex parte orders, it is clear a

true deprivation of property occurred. The injury here

is substantial. Constitutional due process imperatives are

intended to guard against such obvious injustice as o¢

Because guardianship is not part of the common law

Indiana requires strict Compliance with the statute. State ex rel

Shrenker v. Superior Court of Madison County, 242 Ind. 171,

177 N.E.2d 594 (1961).

curred here. Petitioners, therefore, respectfully request

that certiorari issue to the Supreme Court of Indiana.

co)

CONCLUSION

Based upon the above two grounds Petitioners re-

spectfully request that a writ of certiorari issue to the

Supreme Court of Indiana.

Respectfully submitted,

Ricuarp 8S. Ewine

Donn H. Wray

Doveuas R. Brown

Attorneys for Petitioners

App. 1

APPENDIX A

ATTORNEY FOR

APPELLANTS:

RICHARD M. HOLMES

310 Fourth Street

Covington, Indiana 47932

ATTORNEYS FOR

APPELLEES:

STEPHEN R. PENNELL

JILL MILLER THEG

STUART & BRANIGIN

Sth Floor, The Life Building

P.O. Box 1010

Lafayette, Indiana 47902

GHORGE L. HANNA

HANNA & GERDE

Fifth Floor

Bank and Trust Building

I. O. Box 1098

Lafayette, Indiana 47902

IN THE

COURT OF APPEALS OF INDIANA

FIRST DISTRICT

IN THE MATTER OF THE

GUARDIANSHIP OF PEARL

C. POSEY, adult incompetent.

RAYMOND HARKRIDER,

GHORGIA CORY, BETTY

ROGERS and JUNE NELSON,

Appellants,

a, ee

NO. 1-685 A 146

(Filed September

3, 1986)

me ee ee ee ee ee ee ee ee ee

App. 2

LAFAYETTE BANK AND

TRUST COMPANY, HANNA,

GERDE & MEADE, BALL,

EGGLESTON, BUMBLEBURG

& MeBRIDE, FLOYD WILCOX,

STUART & BRANIGIN, ANN G.

DAVIS and VAUGHAN,

VAUGHAN & LAYDEN,

Appellees.

APPEAL FROM THE FOUNTAIN CIRCULT COURT

The Honorable Vincent F. Grogg, Judge

(On change of venue from Tippecanoe Circuit Court)

CAUSE NO. 84-C-215

- MEMORANDUM

ROBERTSON, P. J.

This is an appeal from a guardianship proceeding

wherein the trial court terminated the guardianship of the

deceased Pearl Posey. The appellant Raymond Hark-

rider (Harkrider), Pearl’s brother, basically challenges all

events and orders arising from her guardianship. Ap-

pellee Floyd Wilcox (Wilcox) was the guardian of her per-

son and appellee Lafayette Bank & Trust (Bank) was the

guardian of the estate.

A narrative of the facts shows that Mr. and Mrs.

Floyd Wileox became neighbors of .the..Poseys in 1949.

Thereafter, both couples became friends by frequently vis

iting, socializing at least once a week, and sharing ex-

penses and incomes in two farming operations.

Upon her husband’s death in 1966, Pearl moved to

Stockwell, Indiana. The Wilcoxes visited her there week-

App. 3

ly, acted as her attorney-in-fact when asked by Pearl in

1973, and managed her affairs while Pearl underwent

surgeries in 1977 and 1978.

After Pearl’s first stroke in April 1979, Wilcox con-

tinued to assist her by exercising a power of attorney, pre-

pared at the direction of Pearl, who was bedridden but

mentally competent. The month after her first stroke,

Pearl’s brother, Harkrider, came from Chicago and, with-

out her consent, removed papers from her lockbox and later

demanded Wilcox relinquish the power of attorney. Pearl

reiterated to Wilcox that she wished him to retain the ap-

pointment, and on April 16, 1980, had a new will drawn

which removed her brother Harkrider, as a beneficiary.

Pearl suffered a second stroke on March 18, 1981,

leaving her mentally incompetent as determined by the

trial court on July 24, 1981. The court also named Lafav-

ette Bank & Trust (appellee herein) as guardian of Pearl’s

estate and, on September 9, 1981, named Wilcox as the

guardian of her person, rejecting Harkrider’s and Purdue

National Bank’s applications. Pearl died on March 19,

1982.

Harkrider then filed an interlocutory appeal contest-

ing the trial court’s orders, but was denied relief on July

20, 1983, by way of memorandum opinion. Harkrider’s

petitions for rehearing and transfer were denied.

A year later, in September 1984, on Harkrider’s mo-

tion, the present case was venued from Tippecanoe County

to the Fountain Circuit Court. On March 4, 1985, the trial

court, after hearing evidence, entered its order terminating

the guardianship, approving the guardians’ final report

and two supplements, and approving various expenses and

App. 4

attorneys’ fees for the guardians for work of appellee law

firms Hanna, Gerde & Meade and Stuart & Branigan.

Harkrider appeals this judgment as well as all prior

awards of expenses and attorneys’ fees in this case.

Harkrider’s motion to correct errors attempts to raise

about fifty errors. Although Harkrider has narrowed this

down to twelve issues, we have gone further by removing

the issues decided in the previous appeal and those errors

which are waived pursuant to Appellate Rule 8.3(A)(7),

matters which will be detailed towards the end of this

opinion. The remaining issues raised by Harkrider can

be stated as:

1. Whether the trial court erred in granting peti-

tions for payment of attorney fees, guardian fees, in-

heritance taxes and expenses of the estate.

2. Whether the trial court erred in ruling against

Harkrider on any of the twenty allegations as set out

in his fifth issue.

Another issue relating to the law of the case will be com-

bined and discussed with the question addressed to dam-

ages relating to a frivolous appeal.

Assuming, without deciding, that Harkrider has

standing to contest the trial court’s judgment and that

the appellee law firins were properly joined as parties by

Harkrider on appeal, we address his allegations that the

trial court erred in granting petitions for attorney and

guardian fees, inheritance taxes and expenses of the

estate.

IND. CODE 29-1-18-45 clearly permits reasonable

compensation for attorney and guardian fees which are

discretionary matters for the trial court. Briggs v. Clin-

App. 95

ton County Bank & Trust Co., (1983) Ind.App., 452 N.E.2d

989, 1010. In the present case, the trial court heard evi-

dence on these matters in hearings for two days wherein

attorneys from each firm and the trust officer of the

guardian bank, all subject to cross examination by Hark-

rider, testified on the petitions which detailed the time

spent and hourly fees. The trial court also reduced the

amount requested in one of the petitions, thus indicating

the judge scrutinized the amounts requested. Likewise,

Harkrider fails to demonstrate how the trial court erred in

its approval of an advance to Wilcox for expenses in the

estate, payment of Indiana inheritance taxes, and the

transfer of property and cash to the exeentor of the estate

upon the court’s termination of the guardianship. We

find the trial court’s determinations entirely legitimate.

We turn next to Harkrider’s fifth issue, which con-

tains, as best as we can determine, a litany of some twenty

allegations of error. In a not very strict application of

A.R. 8.3(A)(7), which requires cogent argument and cita-

tion to aptlicable authorities, we find that only three items

appear to qualify as issues. These are:

A. Whether the trial court erred in failing to require

the guardian bank to inventory Pearl’s mineral

interest?

B. Whether the trial court erred in failing to require

guardian bank to file [a supplemental or finai]

inventory?

(. Whether the trial court erred in failing to require

guardian bank to account for income of the guar-

dianship estate after December 24, 1984.

The record shows evidence and reeords relating to the

above matters that: (A) no interest in a ‘‘mineral inter-

App. 6

est’’, purportedly located in Stephens County, Oklahoma,

was ever located, in spite of a search by the Bank; (B)

after the filing of the initial inventory, no further assets

were found which negated any need for supplemental in-

ventories; and (C) an examination of supplemental reports

shows that there was no income generated after December

24, 1984. It is patently clear, in our opinion, that Hark-

rider has failed to show an abuse of discretion.

The previously mentioned appeal was /n the Matter

of the Guardianship of Pearl C. Posey, et al v. Floyd Wil-

cox, et al, No. 2-482 A 105, filed July 20, 1983. The court

on review held: (1) any error in the trial court’s selection

of guardians was moot due to the death of the ward, Pearl;

(2) Wileox’s request for attorneys’ fees and the Bank’s

petition for guardian and attorneys’ fees were not yet im-

proper since there was not yet a final accounting, there-

fore no appealable order; and (3) there was no error in the

trial court order allowing attorney fees to Ann G. Davis

(guardian ad litem for Pearl) and Davis’s withdrawal of

appearance from the case. Harkrider’s attempt to reargue

the issues decided in the previous appeal is void.

The ‘‘law of the case’’ doctrine designates that an

appellate court’s determination of a legal issue is bind-

ing on both the trial court and the Court of Appeals

in any subsequent appeal given the same case and

substantially the same facts. Fair Share Organiza-

tion, Inc. v. Mitnick, (1964) 245 Ind. 324, 198 N.E.2d

765, cert. denied 379 U.S. 8438, 85 S.Ct. 82, 18 L.Ed.2d

48; State v. Nuespert, (1981) Ind. App., 425 N.E.2d

229, trans. denied (1982): Hinds ve MeNarr, (1980)

Ind.App., 4138 N.E.2d 586.

Cha v. Warnick (1985) Ind., 476 N.B.2d at 114.

App. 7

In conclusion, we turn to the question of damages pur-

suant to A.R. 15(G).

We observe that Harkrider’s appeal is poorly done

in a number of respects. Harkrider has filed a two-volume

appendix, totaling some 580 pages. While not a flaw of

a reversible nature, encubering the record with needless

redundaney is not to be encouraged. Harkrider’s brief

is deficient in a number of particulars. The brief is not

double-spaced as specified in A.R. 8.2(A)(1). The state-

ment of the case portion of the brief does not comply with

A.R. 8.3(A)(4) for the reason that there is no verbatim

statement of the judgment being appealed from, there are

facts which are extraneous to the purpose of this rule, and

the contents of the statement are far from being brief.

The statement of facts as contemplated by A.R. 8.3(A) (5)

is argumentative and conclusory, not in a narrative form,

and represents a needless exercise of prolixity. A.R.

8.3(A)(7) defines the requirements of the argument sec-

tion of the brief. Those authorities cited by Harkrider, in

virtually every instance, are too general to be supportive

of the purported issues being argued, and the argument

lacks a cogeney required for definitive appellate review.

Two other factors which evince bad faith, in our opin-

ion, is the absence of a mention of the previous appeal by

Harkrider and that the basis of many, if not all, of the

issues is improperly founded upon ignoring or omitting

facts established in the record or misstatement of existing

fact. Additionally, Harkrider’s brief ‘‘appears to have

been written in a manner caleulated to require the maxi-

mum expenditure of time both by [appellee] and by this

eourt’’. See: Briggs, supra.

App. 8

When viewed in its totality, Harkrider’s appeal ap-

pears to be without merit and taken in bad faith. See:

Briggs, supra; Orr v. Turco Manufacturing Co. (filed Aug.

6, 1986) Ind.App. No. 4-1084 A 292. Accordingly, we find

that appellees are entitled to attorneys’ fees.

The cause is remanded to the trial court for an award

of such attorneys’ fees as may be determined to be ap-

propriate. The trial court’s judgment is in all other re-

spects affirmed. RATLIFF, J. AND NEAL, J. CONCUR.

App. 9

APPENDIX B

IN THE COURT OF APPEALS

OF INDIANA

No. 1-685-A-146

MATTER OF

GUARITANSHIP OF

PEARL C. POSEY, ADULT

INCOMPETENT,

RAYMOND HARKRIDER,

RAYMOND HARKRIDER, AS

EXECUTOR OF ESTATE OF

GEORGIA CORY, DECEASED,

Appeal from

Fountain Circuit

Court

The Honorable

Vincent I’. Grogg

BETTY ROGERS, JUNE

NELSON,

Appellants

vs.

LAFAYETTE BANK AND

TRUST COMPANY,

HANNA GERDE & MEADE,

BALL EGGLESTONE

BUMBLEBURG & McBRIDE,

FLOYD WILCOX,

STUART & BRANIGIN,

VAUGHAN VAUGHAN &

LAYDEN,

et ll de ed ee

Appellees

PETITION FOR RE-HEARING

Come now the Appellants, Raymond Harkrider, Ray-

mond Harkrider, as Executor of the Estate of Georgia

Cory, Deceased, Betty Rogers and June Nelson, by coun-

App. 10

sel, pursuant to Indiana Rules of Appellate Procedure,

Appellate Rule 11, and for their Petition for Re-Iearing,

show the Court as follows:

1. On June 30, 1981, the Appellants filed their Peti-

tion requesting that June Nelson be appointed Guardian

of the Person, and the Purdue National Bank and Ray-

mond Harkrider be appointed co-Guardians of the Estate

of Pear! Posey (hereinafter ‘*Pearl’’).

2. On July 21, 1981, Floyd Wileox filed a Cross-Pe-

tition seeking the appointment of Flovd Wilcox. (herein-

after ‘‘Mr. Wileox’’) as Guardian of the Person and ‘ta

local bank other than the Purdue National Bank’’ as Guar-

dian of the Estate of Pearl.

3. On July 27, 1981, the trial court entered its Or-

der appointing Lafayette Bank and Trust Company (here-

inafter ‘‘Lafayette Bank’’) Guardian of Pearl's Estate.

4. On September 9, 1981, the trial court entered its

Order appointing Mr. Wilcox Guardian of Pearl’s Person.

5. In 1982, the Appellants initiated an interlocutory

appeal seeking review of the trial court’s rulings to that

date, and on June 20, 1983, this Court rendered its Mem-

orandum Decision therein.

6. On March 11, 1985, the trial court entered its Or-

der Approving Supplemental Report of Distribution and

Discharging Guardian.

7. On September 3, 1986, this Court rendered its

Memorandum Decision affirming the Judgment of the

trial court in all respects and assessing the Appellants

with costs pursuant to Appellate Rule 15(G).

App. 11

8. Said Memorandum Decision is in error in that

there exists a conflict between said Memorandum Deei-

sion and the following prior opinions of this Court, which

opinions hold that failure to comply with the Indiana

Rules of Appellate Procedure does not indicate frivolous-

ness or bad faith for purposes of Appellate Rule 15(G):

A. Briggs vs. Clinton County Bank and Trust, (Ind.

App. 2 Dist. 1983) 452 N.E.2d 989;

B. Andock vs. Taylor Construction Corp., (Ind.App.

3 Dist.) 416 N.S.2d 882;

C. Inter-City Contractors vs. Consumer Building

(3 Dist. 1978) 175 Ind. App. 665, 373 N.E.2d 903.

9. Said Memorandum Decision is in error in that

said Memorandum Decision is in conflict with this Court’s

Opinion in First National Bank of Danville vs. Reynolds,

et al., (Ind.App. 4 Dist. 1986) 491 N.1.2d 218, in which this

Court held that the mere fact that an appeal was meritless,

Wwithon! more, does not warrant imposition of appellate

costs pursuant to Appellate Rule 15(G).

10. Said Memorandum Decision is in conflict with

this Court’s Opinion in Fleetwood Corporation vs. Mirich

et al., (Ind. App. 3 Dist. 1980) 404 N.F.2d 38, in which this

Court held that imposition of costs pursuant to Appellate

Rule 15(G) is inappropriate in cases in which several close

questions of law are raised by the Appellant.

11. Said Memorandum Decision erroneously decides

the following new question of law in the State of Indiana:

Whether the Appellants’ filing of a separately bound

appendix pursuant to Appellate Rule 8.2(A)(4) evi-

dences bad faith or vexatiousness for purposes of the

sanctions contemplated in Appellate 15(G)?

App. 12

12. Said Memorandum Decision is in error in that

this Court abused its discretion therein in making the fol-

lowing findings:

A. The Appellants’ appellate materials reflect ‘‘the

absence of a mention of the previous appeal’’. See:

Appellants’ September 10, 1985 ‘‘ Petition that Reeord

of Proceedings in Prior Appeal be Made and Con-

sidered Part of Record of this Appeal’’, granted by

this Court on September 26, 1985, Appellants’ Pre-

Appeal Statement, at pp. 6-8; Appellants’ Brief, at

pp. 22; Appellants’ Reply Brief to Branigin, pp. 33-40.

B. ‘*The basis of many, if not all, of the issues is

improperly founded upon ignoring or omitting facts

established in the record or misstatement of existing

fact.’’

C. The Appellants’ Brief ‘‘appears to have been writ-

ten in a manner calculated to require maximum ex-

penditure of time both by [appellee] and by this

Court’’.

13. Said Memorandum Decision fails to give a state-

ment in writing on each of the following substantial ques-

tions arising on the record and argued by the parties:

A. Whether the trial court’s July 27, 1981 Order ap-

pointing Lafayette Bank Guardian of Pearl’s Estate

was void for lack of strict compliance with I.C. 29-1-18-

1 et. seq.? Said substantial issue arising on the record

was argued by the Appellants at pp. 39-47 of their Ap-

pellants’ Brief.

B. Whether, if Mr. Wilcox’s Petition for Appoint-

ment of Guardian was void for lack of compliance with

L.C. 29-1-18-1 et. seq., he, Lafayette Bank and/or their

lawyers are entitled to payment of their fees from

Pearl’s Estate? Said substantial issue arising on the

record was argued by the Appellants at pp. 39-47 and

82-84 of their Appellants’ Brief.

App. 13

C. Whether the trial court abused its discretion in

entering its March 26, 1984 Order overruling the Ap-

pellants’ March 20, 1984 Motion to Disqualify Stuart

and Branigin based upon Stuart and Branigin’s pos-

session of confidential information obtained from Ray-

mond Harkrider in his initial consultation with Stuart

and Branigin as a prospective client? Said substan-

tial issue arising on the record was argued by the Ap-

pellants at pp. 63 and 68-71 of their Appellants’ Brief.

D. Whether, if the trial court abused its diseretion

in overruling the Appellants’ Motion to Disqualify

Stuart and Branigin, Stuart and Branigin is entitled

to payment of its fees from Pearl’s Guardianship Es-

tate? Said substantial issue arising on the record was

argued by the Appellants at pp. 61-63 and 68-71 of

their Appellants’ Brief.

Kk. Whether the trial court abused its discretion in

appointing Mr. Wileox Guardian of Pearl’s Person

based upon Mr. Wileox’s conflict of interest arising

from prior dealings with Pearl expressly noted on the

record by the trial court? Said substantial issue aris-

ing on the record was argued by the Appellants at pp.

23-24 and 71-72 of their Appellants’ Brief.

F. Whether, if based upon Mr. Wiicox’s conflict of

interest, the trial court abused its discretion in ap-

pointing Mr. Wileox Guardian of Pearl’s Person, Mr.

Wilcox and/or his lawyers are entitled to payment of

their fees from Pearl’s Guardianship Estate?) Said

substantial issue arising on the record was argued by

the Appellants at pp. 61-63 and 68-71 of their Appel-

lants’ Brief.

G. Whether the trial court abused its discretion in

failing to rule upon the Appellants’ April 27, 1984 Mo-

tion to Compel Production of Documents secking pro-

duction of documentary evidence tending to prove that

fees for legal services rendered by Stuart and Brani-

gin to Mr. Wilcox individually were not ineluded in

Stuart and Branigin’s Petitions for Attorney Fees

App. 14

filed with the trial court seeking payment from Pearl's

Guardianship Estate? Said substantial issue arising

on the record was argued by the Appellants at pp. 79-

80 and 92-94 of their Appellants’ Brief.

H. Whether Appellants’ Constitutional right to due

process of law under Section 12, Article 1, of the In-

diana Constitution and Amendments V and NIV of the

U.S. Constitution, was violated as a result of ex parte

rulings of the trial court and ea parte communications

with Appellees’ counsel? Said substantial issue aris-

ing on the record was argued by the Appellants at

pages 8, 50-52 and 97-98 of their Appellants’ Brief

and pages 21-31 of Appellants’ Reply Brief to Mr.

Wilcox.

I. Whether, if Appellants’ constitutional rights to

due process were violated by ex parte rulings and com-

munications, said rulines and related rulings are void?

Said substantial issue arising on the record was ar-

gued by the Appellants at pages 50-52 of their Ap-

pellants’ Brief and pages 21-31 of their Reply Brief to

Mr. Wileox.

J. Whether the Warren Cireuit Court had exclusive

jurisdiction to decide the validity of Pearl’s April 16,

1980 Will and Appointment of Mr. Wilcox as Executor

thereunder?) Said substantial issue arising on the

record was argued by the Appellants at page 90-91 of

their Appellants’ Brief.

K. If the Warren Cireuit Court had exclusive juris-

diction to decide the validity of Pearl’s April 16, 1980

Will and Appointment of Mr. Wileox as Executor

thereunder, whether the trial court abused its disere-

tion in entering its March 11, 1985 Order Approving

Supplemental Report of Distribution and Discharging

Guardian? Said substantial issue arising on the reeord

was argued by the Appellants at pages 90-91 of their

Appellants’ Brief.

14. To the extent that said Memorandum Decision

ean be construed as having held that any of the above argu-

App. 15

ments were waived by Appellants for failure to comply

with Appellate Rule 8.38(A)(7), said Memorandum Deci-

sion is in conflict with this Court’s opinions in the follow-

ing cases expressing the Court of Appeals’ pre-disposition

for deciding cases on the merits where a brief is in substan-

tial compliance with the Appellate Rules:

1. White House vs. Quinn, (Ind.App. 2 Dist. 1982)

443 N.E.2d 332;

2. State Department of Administration vs. Sightes,

(Ind. App. 1 Dist. 1981) 416 N.1.2d 445;

3. Indiana State Board of Tax Commissioners vs.

Lyon, (3 Dist. 1977) 172 Ind. App. 272, 359 N.E.2d 931;

4. Yerkes vs. Washington Manufacturing Company,

(1 Dist. 1975) 163 Ind. App. 692, 826 N.1.2d 629;

5. Moore vs. Funk, (3 Dist. 1973) 155 Ind. App. 545,

293 N.E.2d 534.

15. To the extent that said Memorandum Decision

ean be construed as having held that any of the above is-

sues have been rendered moot by this Court’s decision in

In the Matter of the Guardianship of Pearl C. Posey, et al.

vs. Floyd Wilcox, et al., No. 2-482 A 105, filed July 20,

1983, said Memorandum Decision contravenes the follow-

ing ruling precedents of the Supreme Court and is in con-

flict with the following prior opinions of this Court in that

the facts and significance thereof giving rise to this appeal

are not substantially the same as those giving rise to said

prior interlocutory appeal:

1. Cha vs. Warnick, (Ind. 1985) 476 N.B.2d 109, cert.

denied 106 S.Ct. 249;

2. State vs. Kuespert, (Ind.App. 1 Dist. 1981) 425

N.F.2d 229, trans. denied (1982);

App. 16

3. Hinds vs. McNair, (Ind.App. 4 Dist. 1980) 413

N.E.2d 586;

4. Fair Share Organization vs. Mitnick, (1964) 245

Ind. 324, 198 N.F.2d 765, cert. denied 379 U.S. 843, 85

S.Ct. 82, 13 L.Ed.2d 48.

WHEREFORE, the Appellants respectfully pray that

this Court grant their Petition for Re-Hearing, that this

Court vacate its September 3, 1986 Memorandum Decision,

that this Court reverse the trial court’s Order Approving

Supplemental Report of Distribution and Discharging

Guardian, that Lafayette Bank be surcharged with all

credits approved by the trial court in the Guardianship

Estate of Pearl C. Posey, and for all other relief just and

proper in the premises.

Respectfully submitted,

KROGER, GARDIS & REGAS

By /s/ Douglas R. Brown, Attorneys

Douglas R. Brown, Attorneys

for Appellants

KROGER, GARDIS & REGAS

700 Guaranty Building

Indianapolis, IN 46204-3059

317 634-6328

(Proof of Service Omitted in Printing)

App. 17

APPENDIX C

STATE of INDIANA

Clerk of the Supreme Court Indianapolis, 46204

and Court of Appeals

Marjorie H. O’Laughlin,

Clerk Telephone 252-1930

217 State House

No. 1-685 A 146

Pearl C. Posey, et al —v— Lafayette Bank and Trust

Company, et al

You are hereby notified that the Court of Appeals

has on this day Appellant’s Petition for Rehearing DE-

NIED. Buchanan, C.J.

Please acknowledge receipt of this notice in order

that our records may show that you have been

notified of this action.

WITNESS my name and the seal of said Court,

this 14th day of October, 1986.

/s/ Marjorie H. O’Laughlin

Clerk Supreme Court and Court of Appeals

App. 18

APPENDIX D

IN THE

SUPREME COURT OF INDIANA

NO. 1-685 A 146

MATTER OF

GUARDIANSHIP OF

PEARL C. POSEY, ADULT

INCOMPETENT,

RAYMOND HARKRIDER,

RAYMOND HARKRIDER, AS

EXECUTOR OF ESTATE OF

GEORGIA CORY, DECEASED.,

Appeal from

Fountain Cireuit

Court

The Honoralle

Vincent I. Groge

BETTY ROGERS, JUNE

NELSON,

Appellants

vs.

LAFAYETTE BANK AND

TRUST COMPANY, HANNA,

GERDE & MEADE, BALL EG-

GLESTON, BUMBLEBURG &

McBRIDE, FLOYD WILCOX,

STUART & BRANIGIN, ANN G.

DAVIS, VAUGHAN, VAUGHAN

& LAYDEN,

eee eee ee eee ee ee eee SS — Oe Nee “ee”

Appellees

PETITION TO TRANSFER

Come now the Appellants, Raymond Harkrider, Ray-

mond Harkrider as Executor of the Estate of Georgia

Corey, Deceased, Betty Rogers and June Nelson (herein-

App. 19

after ‘‘Pearl’s Family’’), by counsel, pursuant to Indiana

Rules of Appellate Procedure, Appellate Rule 11, and for

their Petiton to Transfer, show the Court as follows:

1. On September 3, 1986, the Indiana Court of At-

peals rendered its Memorandum Decision in this Cause af-

firming the Judgment of the trial court in all respects and

assessing costs pursuant to Appellate Rule 15(G).

2. Said Memorandum Decision was against Pearl’s

Family. On September 23, 1986, Pearl’s Family timely

filed their Petition for Re-Hearing, which Petition for Re-

Hearing was denied by the Court of Appeals on October

14, 1986.

3. Said Memorandum Decision is in error in that

there exists a conflict between said Memorandum Decision

and the following prior opinions of the Court of Appeals,

which opinions hold that failure to comply with the In-

diana Rules of Aptellate Procedure does not indicate

frivolousness or bad faith for purposes of Appellate

Rule 15(G) :

A. Briggs vs. Clinton County Bank and Trust, (Ind.

App. 2 Dist. 1983) 452 N.E.2d 989;

B. Andock vs. Taylor Construction Corp., (Ind.App.

3 Dist.) 416 N. 2d 882;

©. Inter-City Contractors vs. Consumer Building, (3

Dist. 1978) 175 Ind.App. 665, 873 N.K.2d 903.

4. Said Memorandum Decision is in error in that said

Memorandum Decision is in conflict with the Court of

Appeals’ Opinion in First National Bank of Danville vs.

Reynolds, et a... (Ind.App. 4 Dist. 1986) 491 N.E.2d 218,

in which the Court of Appeals held that the mere fact that

an appeal was meritless, without more, docs not warrant

App. 20

imposition of appellate fees and costs pursuant io Appel-

late Rule 15(G).

). Said Memorandum Decision is in conflict with the

Court of Appeal’s Opinion in Fleetwood Corporation vs.

Mirich et al., (Ind.App. 3 Dist. 1980) 404 N.E.2d 38, in

which the Court of Appeals held that imposition of sane-

tions pursuant to Appellate Rule 15(G) is inappropriate

in cases in which several close questions of law are raised

by the \ppellant.

6. Said Memorandum Decision erroneously decides

the following new question of law in the State of Indiana:

Whether the Appellants’ filing of a separately bound

appendix pursuant to Appellate Rule 8.2(A)(4) evi-

dences bad faith or vexatiousness for purposes of the

sanctions contemplated in Appellate 15(G)?

7. Said Memorandum Decision fails to give a state-

ment in writing on each of the following substantial ques-

tions arising on the record and argued by the parties:

A. Whether the trial court’s July 27, 1981 Order ap-

pointing Lafayette Bank Guardian of Pearl’s Estate

was void for lack of strict compliance with I.C, 29-1-

18-1 et. seq.? Said substantial issue arising on the

record was argued by the Appellants at pp. 38-47 of

their Appellants’ Brief. (See also: Objections and

Exceptions to Guardians Final Report, Record p. 1216;

Motion to Correct Errors, Record, p. 1274.)

B. Whether, if Mr. Wilcox’s Cross-Petition for Ap-

peintment of Guardian was void for lack of compliance

with I.C. 29-1-18-1 et. seq., he, Lafayette Bank and/or

their lawyers are entitled to payment of their fees

from Pearl’s Estate? Said substantial issue arising

on the record was argued by the Appellants at pp.

39-47 and 82-84 of their Appellants’ Brief. (See also:

App. 21

Objections and Ex-eptions to Guardians Final Report,

Record p. 1116; Motion to Correct Errors, Record,

p. 1274.)

C. Whether the trial court abused its discretion in

entering its March 26, 1984 Order overruling the Ap-

pellants’ March 20, 1954 Motion to Disqualify Stuart

and Branigin based upon Stuart and Branigin’s pos-

session of confidential information obtained from

Raymond Harkrider in his initial consultation with

Stuart and Branigin as a prospective client? Said

substantial issue arising on the record was argued

by the Aprellants at pp. 61-63 and 68-71 of their Ap-

pellants’ Brief. (See also: Objections and Excep-

tions to Guardians Final Report, Record pp. 11%1-

1193; Motion -to Correct Errors, Record, pp. 1243-

1245.)

D. Whether, if the trial court abused its discretion

in overruling the Appellants’ Motion to Disqualify

Stuart and Branigin, Stuart and Branigin is entitled

to payment of its fees from Pearl’s Guardianship

Kstate? Said substantial issue arising on the record

was argued by the Anpellants at pp. 61-63 and 68-71

of their Appellants’ Brief. (See also: Objections

and Exceptions to Guardians Final Report, Record

pp. 1189-1208; Motion to Correct Errors, Record, pp.

1239-1256. )

EK. Whether the trial court abused its discretion in

appointing Mr. Wilcox Guardian of Pearl’s Person

based upon Mr. Wilcox’s conflict of interest arising

from prior dealings with Pearl expressly noted on the

record by the trial court? Said substantial issue aris-

ing on the record was argued by the Appellants at

pp. 23-24, 63-66 and 71-72 of their Appellants’ Brief.

(See also: Objections and Exceptions to Guardians

Final Report, Record pp. 1192, 1194; Motion to Cor-

rect Errors, Record, pp. 1270-1274,1297.)

F. Whether, if based upon Mr. Wilcox’s conflict of

interest, the trial court abused its discretion in ap-

App. 22

pointing Mr. Wilcox Guardian of Pearl’s Person, Mr.

Wilcox and/or his lawyers are entitled to payment of

their fees from Pearl’s Guardianship Estate? Said

substantial issue arising on the record was argued by

the Appellants at pp. 61-66 and 68-71 of their Appel-

lants’ Brief. (See also: Objections and Exceptions

to Guardians Final Report, Record pp. 1189-1196; Mo-

tion to Correct Errors, Record, pp. 1243-1248.)

G. Whether the trial court abused its discretion in

not granting Appellants’ April 27, 1984 Motion to

Compel Production of Documents seeking production

of documentary evidence tending to prove that fees

for legal services rendered by Stuart and Branigin to

Mr. Wileox individually were not included in Stuart

and Branigin’s Petitions for Attorney Fees filed with

the tritl court seeking payinent from Pearl’s Guard-

ianship Estate? Said substantial issue arising on the

record was argued by the Appellants at pp. 79-80 and

92-94 of their Appellants’ Brief. (See also: Objec-

tions and Exceptions to Guardians Final Report, Ree-

ord pp. 1202-1204: Motion to Correct Errors, Record.

pp. 1250-1254.)

H. Whether Appellants’ Constitutional right to due

process of law under Section 12, Article 1, of the In-

diana Constitution and Amendments V and XIV of

the U.S. Constitution, was violated as a result of ex

parte rulings of the trial court and ex parte communi-

eations with Appellees’ counsel? Said substantial is-

sue arising on the record was argued by the Appel-

lants at pages 8, 50-52 and 97-98 of their Appellants’

Brief and pages 21-31 of Appellants’ Reply Brief to

Mr. Wileox. (See also: Objections and Exeeptions

to Guardians Final Report, Record pp. 1216,1221; Mo-

tion to Correct Errors, Record, pp. 1274,1282-1295. )

I. Whether, if Appellants’ constitutional rights to

due process were violated by ex parte rulings and

communications, said rulings and related rulings are

void? Said substantial issue arising on the record

App. 23

was argued by the Appellants at pages 50-52 of their

Appellants’ Brief and pages 21-51 of their Reply

Brief to Mr. Wilcox. (See also: Objections and Ex-

ceptions to Guardians inal Report, Record pp. 1216,

1221; Motion to Correct Errors, Record, pp. 1274,1282-

1295.)

J. Whether the Warren Cireuit Court had exclusive

jurisdiction to decide the validity of Pearl’s April 16,

1980 Will and Appointment of Mr. Wilcox as Executor

thereunder? Said substantial issue arising on the

record was argued by the Appellants at page 90-91 of

their Appellants’ Brief. (See also: Objections and

Exceptions to Guardians i*inal Report, Record pp.

1222-1225; Motion to Correct HMrrors, Record, pp. 1266-

1267.)

K. If the Warren Circuit Court held exclusive jur-

isdiction to decide the validity of Pearl’s April 16,

1980 Will and Appointment of Mr. Wileox as Execu-

tor thereunder, whether the trial court abused its

discretion in entering its Mareh 11, 1985 Order Ap-

proving Supplemental Report of Distribution and

Discharging Guardian? Said substantial issue aris-

ing on the record was argued by the Appellants at

pages 90-91 of their Appellants’ Brief. (See also:

Objections and Exceptions to Guardians Final Re-

port, Record pp. 1222-1223; Motion to Correct Errors,

Record, pp. 1266-1267.)

8. ‘To the extent that said Memorandum Decision can

be construed as having held that any of the above argu-

ments were waived by Appellants for failure to comply

with Appellate Rule 8.3(.A)(7), said Memorandum Deci-

sion is in conflict with the Court of Appeals’ opinions in

the tollowing cases expressing the Court of Appeals’ pre-

disposition for deciding cases on the merits where a brief

is in substantial complance with the Appellate Rules:

App. 24

1. White House vs. Quinn, (Ind.App. 2 Dist. 1982)

443 N.E.2d 332;

2. State Department of Administration vs. Sightes,

(Ind. App. 1 Dist. 1981) 416 N.B.2d 445;

3. Indiana State Board of Tax Commissioners vs.

Lyon, (3 Dist. 1977) 172 Ind. App. 272, 359 N.B.2d 931;

4. Yerkes vs. Washington Manufacturimg Company,

(1 Dist. 1975) 163 Ind. App. 692, 326 N.E.2d 629;

5. Moore vs. Funk, (8 Dist. 1973) 155 Ind.App. 549,

293 N.E.2d 554.

9. To the extent that said Memorandum Decision

can be construed as having held that any of the above

issues have been rendered moot by the Court of Appeals’s

decision in Jn the Matter of the Guardianship of Pearl C.

Posey, et al. vs. Floyd Wilcox, et al., No. 2-482 A 105, filed

July 20, 1983, said Memorandum Decision contravenes the

following ruling precedents of the Supreme Court and is

in conflict with the following prior opinions of the Court

of Appeals in that the facts and significance thereof giv-

ing rise to this appeal are not substantially the same as

those giving rise to said prior appeal:

1. Cha vs. Warnick, (Ind. 1985) 476 N.E.2d 109, cert.

denied 106 S.Ct. 249;

2. State vs. Kuespert, (Ind.App. 1 Dist. 1981) 425

N.E.2d 229, trans. denied (1982) ;

3. Hinds vs. McNair, (Ind. App. 4 Dist. 1980) 413

N.E.2d 586;

4. Fair Share Organization vs. Mitnick, (1964) 245

Ind. 324, 198 N.E.2d 765; cert. denied 379 U.S. 843, 85

S.Ct. 82, 138 L.Ed.2d 48.

WHEREFORE, the Appellants respectfully pray that

this Court grant their Petition to Transfer, that this

App. 25

Court vacate the Court of Appeals’ September 3, 1986

Memorandum Decision, that this Court reverse the trial

eourt’s Order Approving Supplementa! Report of Dis-

tribution and Discharging Guardian, that Lafayette Bank

be surcharged with all credits approved by the trial

eourt in the Guardianship Estate of Pearl C. Posey, and

for all other relief just and proper in the premises. ‘

Respectfully submitted,

KROGER, GARDIS & REGAS

By /s/ Douglas R. Brown

Attorneys for Appellants

KROGER, GARDIS & REGAS

700 Guaranty Building

Indianapolis, IN 46204-3059

317 634-6328

(Proof of Service Omitted in Printing)

App. 26

APPENDIX E

ATTORNEYS FOR

APPELLANT

Douglas R. Brown

STEWART. IRWIN,

GILLIOM, MEYER

& GUTHRIE

251 East Ohio

Two Market Square Center

Suite 1100

Indianapolis, Indiana 46204

Richard M. Holmes

HOLMES & KORDYS

310 Fourth Street

Covington, Indiana 47932

ATTORNEYS FOR -

APPELLEE

STUART & BRANIGIN

Sth Floor, The Life Building

P. O. Box 1010

Lafayette, Indiana 47902

HANNA, GERDE &

MEADE

P. O. Box 1098

Lafayette, Indiana 47902

BALL, EGGLESTON,

BUMBLEBURG &

McBRIDE

P.O. Box 1535

Lafayette, Indiana 47902

Ann G. Davis

VAUGHAN, VAUGHAN

& LAYDEN

P.O. Box 498

Lafayette, Indiana 47902

IN THE

SUPREME COURT OF INDIANA

MATTER OF

GUARDIANSHIP OF

PEARL C. POSEY, ADULT

INCOMPETENT, RAYMOND

~XECUTOR

OF THE ESTATE OF GRORGIA

COREY, DECEASED, BETTY

ROGERS AND JUNE NELSON,

HARKRIDER AS

Appellants,

Vv.

)

No. 23S01-8708-

CV-771

in the

Supreme Court

No. 1-685-A-146

in the

)

) Court of Appeals

App. 27

LAFAYETTE BANK AND

TRUST COMPANY, HANNA,

GERDE & MEADE, BALL,

EGGLESTON, BUMBLEBURG

& MeBRIDE, FLOYD WILCOX,

STUART & BRANIGIN,

ANN G. DAVIS

AND VAUGHAN, VAUGHAN

& LAYDEN,

(Filed Aug. 25, 1987)

me ee a ee eee ee

Appellees.

APPEAL FROM THE FOUNTAIN CIRCUIT COURT

The Honorable Vincent Grogg, Judge

No. 84-C-215

ON CIVIL PETITION TO TRANSFER

DICKSON, J.

This is one of three cases! in which we have been asked

to review the propriety of a punitive award of attorney

fees under Appellate Rule 15(G) of the Indiana Rules of

' Procedure. In the other two cases, we reversed decisions

of the Court of Appeals imposing attorney fees. In order

to provide guidance to the bench and bar as to cireum-

stances when such fees are appropriate, we grant transfer

herein solely for the purpose of addressing the AR 15(G)

issue. Pursuant to Appellate Rule 11(B)(3), we decline

to address the remaining issues and summarily affirm the

opinion of the Court of Appeals thereon.

Following its discussion of issues presented by the

appeal, the Court of Appeals below, finding that the appeal

'Orr v. Turco Mfg. Co. (1987), Ind., No. 29504-8708-CV-769;

Lesher v. Baltimore Football Club (1987), Ind. No. 49S04-8708-

CV-770.

App. 28

was without merit and taken in bad faith, remanded to the

trial court for determination of the appropriate appellee’s

attorney fees to be imposed upon appellant.

The Court of Appeals found bad faith from appel-

lant’s disregard of the form and content requirements of

Appellate Rules 8.2(A)(1), 8.8(A)(4), 8.38(A)(5), and 8.3

(A)(7); failure to disclose his previous appeal raising

many of the same issues; omission and misstatement of

facts established in the record; and because appellant’s

brief appeared ‘‘to have been written in a manner calcu-

lated to require the maximum expenditure of time both by

[appellee] and by this Court.’? See, Briggs v. Clinton

County Bank and Trust Co. (1988), Ind. App., 492 N.E.2d

989, 1010.

These are circumstances significantly more grave than

mere lack of merit. Gross abuse of the right to appellate

review *‘crowds our court to the detriment of meritorious

actions, and should not go unrebuked.’’ Marshall v. Reeves

(1974), 262 Ind. 403, 404, 316 N.E.2d 828, 830 (quoting

Vandalia Railroad Co, v. Walsh (1909), 44 Ind. App. 297,

299, 89 N.E. 320).

- We affirm the decision of the Court of Appeals re-

manding this cause to the trial court for an award of such

attorney fees as may be determined to be appropriate.

SHEPARD, C.J., and DeBRULER, GIVAN and PIVAR-

NIK, JJ., coneur.

App. 29

APPENDIX F

IN THE

SUPREME COURT OF INDIANA

NQ, 23501-8708-CV -00771

MATTER OF

GUARDIANSHIP OF

PEARL C, POSEY, ADULT

INCOMPETENT

RAYMOND HARKRIDER,

RAYMOND HARKRIDER, AS

EXECUTOR OF ESTATIO OF

GHORGIA CORY, DIECHASED.,

Appeal from the

Fountain Cireuit

Court

The Honorable

Vineent F. Grogg

BETTY ROGERS, JUNE

NELSON,

Appellants (Filed September

14, 1987)

VS.

LAFAYETTE BANK AND

TRUST COMPANY, HANNA,

GERDE & MEADE, BALL,

KGGLESTON, BUMBLEBURG &

MceBRIDE, FLOYD WILCOX,

STUART & BRANIGIN, ANN

G. DAVIS, VAUGHAN,

VAUGHAN & LAYDEN,

me me em a a ee ee eee eee ee

Appellees.

PETITION FOR REHEARING

Come now the Appellants, Raymond Harkrider, Ray-

mond Harkrider as Executor of the Estate of Georgia

App. 30

Cory, Deceased, Betty Rogers and June Nelson (herein-

after ‘‘Pearl’s Family’’), by counsel, pursuant to Indiana

Rules of Appellate Procedure, Appellate Rule 11, and for

its Petition for Rehearing, shows the Court as follows:

1. On September 3, 1986, the Indiana Court of Ap-

peals rendered its Memorandum Decision in this cause

affirming the Judgment of the trial court in all respects

and assessing costs against Pearl’s Family pursuant to

Indiana Rules of Appellate Procedure, Appellate Rule

15(G@).

2. On September 23, 1986, Pearl’s Family timely filed

its Petition for Rehearing, which Petition for Rehearing

was denied by the Court of Appeals on October 14, 1986.

3. On November 3, 1986, Pearl’s Family timely filed

its Petition to Transfer with this Court.

4. On August 25, 1987, this Court filed its Opinion

granting Pearl’s Family Petition to Transfer and affirm-

ing the Court of Appeal’s Memorandum Decision in all

respects.

d. Said Opinion is in error in that it improperly over-

rules the following well reasoned opinions of the Court of

Appeals, which opinions hold that failure to comply with

the Indiana Rules of Appellate Procedure does not indi-

cate frivolousness or bad faith for purposes of Appellate

Rule 15(G):

A. Briggs vs. Clinton County Bank and Trust, (Ind.

App. 2 Dist. 1983) 452 N.E.2d 989;

B. Andock vs. Taylor Construction Corp., (Ind.App.

3 Dist.) 416 N.E.2d 882;

C. Inter-City Contractors vs. Consumer Building,

(3 Dist. 1978) 175 Ind. App. 665, 373 N.EB.2d 903,

App. 31

6. Said Opinion is in error in that it improperly

overrules the Court of Appeals’ well reasoned opinion in

First National Bank of Danville vs. Reynolds, et al., (Ind.

App. 4 Dist. 1986) 491 N.E.2d 218, in which the Court of

Appeals held that the mere fact that an appeal was merit-

less, without more, does not warrant imposition of appel-

late fees and costs pursuant to Appellate Rule 15(G).

7. Said Opinion is in error in that it improperly

overrules the Court of Appeals’ well reasoned opinion in

Fleetwood Corporation vs. Mirich et al., (Ind.App. 3 Dist.

1980) 404 N..2d 38, in which the Court of Appeals held

that imposition of sanctions pursuant to Appellate Rule

15(G) is inappropriate in eases in which several close ques-

tions of law are raised by the Appellant.

8. Said Opinion erroneously decides the following

new question of law in the State of Indiana:

Whether the Appellants’ filing of a separately bound

appendix pursuant to Appellate Rule 8.2(A)(4) evi-

dences bad faith or vexatiousness for purposes of the

sanctions contemplated in Appellate 15(G)?

9. In simply incorporating the Court of Appeals’

Memorandum Decision by reference, said Opinion errone-

ously affirms the Court of Appeals’ failure to give a state-

ment in writing on each of the following substantial ques-

tions arising on the record and argued by the parties, both

on appeal and on transfer:

A. Whether the trial court’s July 27, 1981 Order ap-

pointing Lafayette Bank Guardian of Pearl’s Estate

was void for lack of strict compliance with I.C. 29-1-

18-1 et. seq.? Said substantial issue arising on the

record was argued by the Appellants at pp. 20-24 of

App. 32

their Brief in Support of Petition to Transfer and

pp. 38-47 of their Appellants’ Brief. (See also: Ob-

jections and Exceptions to Guardians Final Report,

Record, p. 1216; Motion to Correct Errors, Record,

p. 1274.)

B. Whether, if Mr. Wileox’s Cross-Petition for Ap-

pointment of Guardian was void for lack of compli-

ance with I.C. 29-1-18-1 et. seq., he, Lafayette Bank

and/or their lawyers are entitled to payment of their

fees from Pearl’s Estate? Said substantial issue

arising on the record was argued by the Appellants

at p. 29 of their Brief in Support of Petition to Trans-

fer and pp. 39-47 and 82-84 of their Appellants’ Brief.

(See also: Objections and Exceptions to Guardians

. Final Report, Record, p. 1116; Motion to Correct Er-

rors, Record, p. 1274.)

C. Whether the trial court abused its discretion in

entering its Mareh 26, 1984 Order overruling the Ap-

pellants’ March 20, 1984 Motion to Disqualify Stuart

and Branigin based upon Stuart and Branigin’s pos-

session of confidential information obtained from

Raymond Harkrider in his initial consultation with

Stuart and Branigin as a prospective client? Said

substantial issue arising on the record was argued by

the Appellants at pp. 35-40 of their Brief in Support

of Petition to Transfer and pp. 61-63 and 68-71 of

their Appellants’ Brief. (See also: Objections and

Exceptions to Guardians Final Report, Record, pp.

1191-1193; Motion to Correct Errors, Record, pp. 1248-

1245.)

D. Whether, if the trial court abused its discretion

in overruling the Appellants’ Motion to Disqualify

Stuart and Branigin, Stuart and Branigin is entitled

to payment of its fees from Pearl’s Guardianship

Estate? Said substantial issue arising on the record

was argued by the Appellants at pp. 35-40 of their

Brief in Support of Petition to Transfer and pp. 61-

63 and 68-71 of their Appellants’ Brief. (See also:

App. 33

Objections and Exceptions to Guardians Final Report,

Record, pp. 1189-1208; Motion to Correct Errors,

Reeord, pp. 1239-1256.)

EK. Whether the trial court abused its diseretion in

appointing Mr. Wilcox Guardian of Pearl’s Person

based upon Mr. Wilcox’s conflict of interest arising

from prior dealing with Pearl expressly noted on the

record by the trial court? Said substantial issue aris-

ing on the record was argued by the Appellants at

pp. 25-28 of their Brief in Support of Petition to

Transfer and pp. 23-24, 63-66 and 71-72 of their Ap-

pellants’ Brief. (See also: Objections and Exceptions

to Guardians Final Report, Record, pp. 1192, 1194;

Motion to Correct Errors, Record, pp. 1270-1274,

1297.)

F. Whether, if based upon Mr. Wileox’s conflict of

interest, the trial court abused its discretion in ap-

pointing Mr. Wileox Guardian of Pear]’s Person, Mr.

Wileox and/or his lawyers are entitled to payment

of their fees from Pearl’s Guardianship Estate? Said

substantial issue arising on the record was argued by

the Appellants at pp. 25-28 of their Brief in Support

of Petition to Transfer and pp. 61-66 and 68-71 of

their Appellants’ Brief. (See also: Objections and

Exceptions to Guardians Final Report, Record, pp.

1189-1196; Motion to Correct Errors, Record, pp.

1243-1248.)

G. Whether the trial court abused its diseretion in

not granting the Appellants’ April 27, 1984 Motion

to Compel Production of Documents seeking produc-

tion of docnmentary evidence tending to prove that

fees for legal services rendered by Stuart and Bran-

igin to Mr. Wilcox individually were not ineluded in

Stuart and Branigin’s Petitions for Attorney Fees

filed with the trial court seeking payment from

Pearl’s Guardianship Estate? Said substantial issue

arising on the record was argued by the Appellants

at pp. 79-80 and 92-94 of their Appellants’ Brief. (See

App. 34

also: Objections and Exceptions to Guardians Final

Report, Record pp. 1202-1204: Motion to Correct Er-

rors, Record, pp. 1250-1254.)

H. Whether Appellants’ Constitutional right to due

process of law under Article 1, Section 12, of the In-

diana Constitution and Amendments V and XIV of

the U.S. Constitution, was violated as a result of ex

parte rulings of the trial court and ea parte communi-

cations with Appellees’ counsel? Said substantial

issue arising on the record was argued by the Appel-

lants at pp. 42-44 of their Brief in Support of Petition

to Transfer, pp. 8, 50-52 and 97-98 of their Appel-

lants’ Brief and pp. 21-31 of Appellants’ Reply Brief

to Mr. Wileox. (See also: Objections and Exceptions

to Guardians Final Report, Record, pp. 1216, 1221;

Motion to Correct Errors, Record, pp. 1274, 1282-

1295.)

I. Whether, if Appellants’ constitutional rights to

due process were violated by ex parte rulings and

communications, said rulings and related rulings are

void? Said substantial issue arising on the record

was argued by the Appellants at pp. 42-44 of their

Brief in Support of Petition to Transfer, pp. 50-52

of their Appellants’ Brief and pp. 21-31 of their Reply

Brief to Mr. Wileox. (See also: Objections and Ex-

ceptions to Guardians Final Report, Record, pp. 1216,

1221: Motion to Correct Errors, Record, pp. 1274,

1282-1295.)

J. Whether the Warren Cireuit Court had exclusive

jurisdiction to decide the validity of Pearl’s April 16,

1980 Will and Appointment of Mr. Wileox as Execu-

tor thereunder? Said substantial issue arising on the

record was argued by the Appellants at pp. 32-35 of

their Brief in Support of Petition to Transfer and

pp. 90-91 of their Appellants’ Brief. (See also: Ob-

jections and Exceptions to Guardians Final Report,

Record, pp. 1222-1223; Motion to Correct Errors,

Record pp. 1266-1267.) ~

App. 35

K. If the Warren Ciremt Court has exclusive juris-

diction to decide the validity of Pearl’s April 16, 1980

Will and Appointment of Mr. Wileox as Executor

thereunder, whether the trial court abused its dis-

cretion in entering its Mareh 11, 1985 Order Approv-

ing Supplemental Report of Distribution and _ Dis-

charging Guardian? Said substantial issue arising

on the record was argued by the Appellants at pp.

32-35 of their Brief in Support of Petition to Transfer

and at pp. 90-91 of their Appellants’ Brief. (See

also: Objections and Exceptions to Guardians Final

Report, Record, pp. 1222-1223; Motion to Correct Er-

rors, Record, pp. 1266-1267.)

10. To the extent that said Opinion ean be construed

as having affirmed a holding by the Court of Appeals that

any of the above issues have been rendered moot or res

judicata by the Court, of Appeals’ prior decision in In the

Matter of the Guardianship of Pearl C. Posey, et al. vs.

Floyd Wilcox, et al., No. 2-482 A 105, filed July 20, 1983,

said Opinion is in conflict with the following ruling prece-

dents of this Court, and improperly overrules the follow-

ing well reasoned opinions of the Court of Appeals, in that

the facts and significance thereof giving rise to this appeal

are not substantially the same as those give rise to said

prior appeal :

1. Cha vs. Warnick, (Ind. 1985) 476 N.E.2d 109, cert.

denied 106 S.Ct. 249;

2. State vs. Kuespert, (Ind.App. 1 Dist. 1981) 425

N.E.2d 229, trans. denied (1982) ;

3. Hinds vs. McNair, (Ind.App. 4 Dist. 1980) 413

N.E.2d 586 ;

4. Fair Share Organization vs. Mitnick, (1964) 245

Ind. 324, 198 N.E.2d 765, cert. denied 379 U.S. 843, 85

S.Ct. 82, 18 L.Ed.2d 48.

App. 36

11. To the extent that said Opinion can be construed

as having affirmed a holding by the Court of Appeals that

any of the above arguments were waived by Appellants

for failure to comply with Appellate Rule 8.5(A)(7), said

Opinion violates Article 7, Section 6 of the Indiana Con-

stitution and is in error in that it denies Pearl’s Family

its right to one appeal and improperly overrules the fol-

lowing well reasoned opinions expressing Indiana Appel-

late Court’s pre-disposition for deciding eases on the

merits where procedural rules have been substantially

complied with:

1. Soft Water Utilities Inc. v. LeFevre, (Ind. 1973)

301 N.E.2d 745.

2. White House vs. Quinn, (Ind.App. 2 Dist. 1982)

443 N.E.2d 332;

3. State Department of Administration vs. Sightes,

(Ind.App. 1 Dist. 1981) 416 N.E.2d 445;

4. Indiana State Board of Tax Commissioners vs.

Lyon, (3 Dist. 1977) 163 Ind.App. 272, 359 N.E.2d

931;

5. Yerkes vs. Washington Manufacturing Company,

(1 Dist. 1975) 163 Ind.App. 692, 326 N.E.2d 629;

6. Moore vs. Funk, (3 Dist. 1973) 155 Ind.App. 545,

293 N.E.2d 534.

12. Said Opinion violates Article 1, Section 12, and

Article 7, Section 6, of the Indiana Constitution, and fur-

ther violates the 14th Amendment to the United States

Constitution, in failing to afford Pearl’s Family its con-

stitutional right to due process and equal protection after

denial of said right in the trial court.

13. The Court of Appeals’ imposition of Appellate

costs pursuant to Appellate Rule 15(G), and this Court’s

App. 37

affirmation thereof, violate Pearl’s Family’s right to due

process and equal protection under the law guaranteed it

by Article 1, Section 12, of the Indiana Constitution and

the 14th Amendment to the United States Constitution.

14. Said Opinion is in conflict with the following

opinions of this Court:

1. Orr v. Turco Mfg. Co. (1987), Ind., No. 29S04-

8708-CV-769 ;

2. Lesher v. Baltimore Football Club (1987) Ind.,

No. 49804-8708-CV-770.

15. On or about May 28, 1982, one of the Appellant’s,

Raymond Harkrider, consulted with Justice Brent E. Dix-

on, concerning the facts and allegations made the subject

of this section, for the purpose of retaining the honorable

Justice’s services in his prior capacity as a Lafayette trial

lawyer. The occurrence of this conference was brought

to the attention of the undersigned counsel at 11:00 acn.,

Monday, September 14, 1987, and has been made the sub-

ject of Pearl’s Family’s Notice of Newly Discovered Cir-

cumstances filed contemporaneously herewith.

WHEREFORE, the Appellants respectfully pray that

this Court grant their Petition for Rehearing, that this

Court vacate its August 25, 1987 Opinion, that this Court

vacate the Court of Appeals’ September 3, 1986 Memo-

randum Decision, that this Court reverse the trial court’s

Order Approving Supplemental Report of Distribution

and Discharging Guardian, that Lafayette Bank be sur-

charged with all credits approved by the trial court in the

Guardianship Estate of Pearl C. Posey, and for all other

relief just and proper in the premises.

App. 38

Respectfully submitted,

STEWART & IRWIN

By: /s/ Douglas R. Brown

Douglas R. Brown

Attorney for Appellants

STEWART & IRWIN

Two Market Square Center

Suite 1100

951 E. Ohio Street

Indianapolis, IN 46204

(317) 639-5454

(Proof of Service Omitted in Printing)

App. 39

APPENDIX G

IN THE

SUPREME COURT OF INDIANA

MATTER OF

GUARDIANSHIP OF

PEARL C, POSEY, ADULT

INCOMPETENT

RAYMOND HARKRIDER,

RAYMOND HARKRIDER, AS

EXECUTOR OF ESTATE OF

GEORGIA CORY, DECEASED,

No. 23801-8708-

CV-771

(Filed November

BETTY ROGERS, JUNE 9, 1987)

NELSON,

Appellants,

LAFAYETTE BANK AND

TRUST COMPANY, HANNA,

GERDE & MEADE, BALL,

EGGLESTON, BUMBLEBURG &

. MeBRIDE, FLOYD WILCOX,

STUART & BRANIGIN, ANN G.

DAVIS, VAUGHAN, VAUGHAN

& LAYDEN,

Appellees.

a i ee i

ORDER DENYING PETITION FOR REHEARING

In an opinion handed down August 25, 1987, this Court

granted transfer and affirmed the Court of Appeals. This

was done ‘‘in order to provide guidance to the bench and

Bar as to the circumstances when such fees are appropri-

App. 40

ate.’’ Although at the time of the writing of Justice Dick-

son’s opinion, the opinion of the Court of Appeals had

not been published, Judge Robertson has since entered

an Order that said opinion be published.

In view of the allegations by appellants, Justice Dick-

son has stated that he has no recollection of a meeting

with Raymond Harkrider concerning this case, however,

‘tin deference to the spirit and the letter of Canon 2” he

disqualified himself from participation.

Following Justice Dickson’s disqualification the case

was assigned to Justice Givan for examination of the ‘‘ Pe-

tition for Rehearing.’’ After consideration of Justice

Givan’s memorandum on this case, it is the dee'sion of the

members of this Court that the petition for rehearing

should be denied.

It is THEREFORE ORDERED that appellant’s

‘*Petition for Rehearing’’ heretofore filed in this cause

is DENIED.

The Clerk of this Court is hereby ordered to forward

a copy of this Order to all parties of record.

DONE this 9th day of November, 1987, in Indian-

apolis, Indiana.

/s/ Randall T. Shepard

Chief Justice of Indiana

Shepard, C.J., DeBruler, Givan and Pivarnik, JJ., vote to

deny. Dickson, J., not participating.

App. 41

APPENDIX H

IN THE

COURT OF APPEALS OF INDIANA

NO. 1-685 A 146

GUARDIANSHIP OF

MATTER OF

PEARL C. POSEY—ADULT

INCOMPETENT

Judge: HON.

VINCENT F.

GROGG

RAYMOND HARKRIDER,

GEORGIA CORY, BETTY

ROGERS AND JUNE NELSON,

Trial court no.

84-C-215

appellants

Court:

FOUNTAIN

CIRCUIT COURT

on change of venue

from

TIPPECANOE

CIRCUIT COURT

no. G-58-81

LAFAYETTE BANK AND

TRUST COMPANY, HANNA,

GERDE & MEADE, BALL,

EGGLESTON, BUMBLEBURG &

MeBRIDE, FLOYD WILCOX

STUART & BRANIGIN, ANN G.

DAVIS AND VAUGHAN,

VAUGHAN & LAYDEN, (Filed September

10, 1985)

ee eee a a ee a ee ee ae ee ee ee as

appellees

PETITION THAT RECORD OF PROCEEDINGS IN

PRIOR APPEAL BE MADE AND CONSIDERED PART

OF RECORD OF PROCEEDINGS IN THIS APPEAL

Appellants RAYMOND HARKRIDER, GEORGIA

CORY, BETTY ROGERS and JUNE NELSON petition

the Court that record of proceedings in prior appeal! no.

2-482 A 105 be made and considered part of record in this

appeal no. 1-685 A 146 and respectfully show:

App. 42

1. In prior appeal no. 2-482 A 105 to this Court from

various orders entered by Tippecanoe circuit court in

matter of guardianship of Pearl C. Posey no. G-58-81 ap-

pellants on dates indicated filed following as record and

supplemental record of proceedings in that appeal:

1.1—on June 38, 1982—RECORD OF PROCEEDINGS

VOLUME I—containing pages numbered 1 thru 122;

1.2—on June 3, 1982—TRANSCRIPT OF EVI-

DENCE AND EXHIBITS VOLUME I]—containing

pages numbered 123 thru 385;

1.3—on June 3, 1982—TABLE OF CONTENTS—in

separate volume containing approximately 6 pages;

and

1.4—on October 12, 1982—SUPPLEMENTAL REC-

ORD OF PROCEEDINGS—containing pages num-

bered 386 thru 435.

2. Items referred to in foregoing paragraph 1 and

subparagraphs 1.1 thru 1.4 thereof are hereinafter col-

lectively referred to as ‘‘record of proceedings in prior

appeal.’’

3. Record of proceedings in prior appeal is duly cer-

tified and contains copies of pleadings and papers filed

orders entered evidence and exhibits offered and received

in Tippecanoe circuit court in matter of guardianship of

Pearl C. Posey no. G-58-81 from commencement of those

proceedings June 30, 1981, to and ineluding August 5, 1982.

4. From appellants’ pre-appeal statement and _ peti-

tion for permission to file appellants’ brief in excess of

50 pages it appears that appellants present many issues

for review in this appeal 1-685 A 146.

App. 438

Dd. Appellants believe that most if not all of record

of proceedings in prior appeal is pertinent and should be

made and considered part of record of proceedings in this

appeal 1-685 A 146, >

WHEREFORE appellants respectfully petition the

court that record of proceedings in prior appeul 2-482 A

105 referred to in paragraph 1 and subparagraphs 1.1 thru

1.4 thereof be made and considered part of record of

proceedings in this appeal 1-685 A 146 and for all other

proper relief.

Respectfully submitted,

HOLMES & KORDYS

310 Fourth Street

Covington, Indiana 47932

317-793-2266

Attorneys for Appellants

AFFIDAVIT

STATE OF INDIANA )

COUNTY OF FOUNTAIN )

) ss

RICHARD M. HOLMES—affiant—being first duly

sworn on oath deposes and says that affiant is attorney at

law admitted to practice in Indiana and is attorney for

appellants; that affiant has read appellants’ petition that

record of proceedings in prior appeal be made and con-

sidered part of record of proceedings in this appeal and is

familiar with contents thereof; and affiant states he verily

believes that statements therein contained are true.

Richard M. Holmes

SUBSCRIBED AND SWORN TO before me a notary pub-

lic this -- day of September 1985.

App. 44

notary public

My commission expires: printed:

Residing at:

(Certificate of Service Omitted in Printing)

App. 45

APPENDIX I

STATE of INDIANA

Clerk of the Supreme Court INDIANAPOLIS, 46204

and Court of Appeals

Marjorie H. O’Laughlin, Telephone 232-1930

Clerk

217 State House

No. 1-685 A 146

Matter of Guardianship of Pearl C. Posey, et al —v—

Lafayette Bank and Trust Company, et al

You are hereby notified that the Court of Appeals has on

this day Appellee’s Motion to Dismiss DENIED. Bu-

chanan, C.J.

Petition GRANTED. Clerk Directed to Transfer

Reeord from cause number 2-482 A 105 to the Cause.

Buchanan, C.J.

Please acknowledge receipt of this notice in order

that our records may show that you have been

notified of this action.

WITNESS my name and the seal of said Court,

this 26th day of September, 1985

/s/ Marjorie H. O’Laughlin

Clerk Supreme Court and Court of Appeals

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.