# Petition for Writ of Certiorari — Harkrider v. Lafayette Bank & Trust Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1352%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 988 ## Text Supreme 87-1356 PILED “C8 R989 Seon } aes SPH EE soa nay = CLERK ™ In The Supreme Court of the United States October Term, 1987 ny VU 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. O PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA ty Vv 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? il 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 13 20 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 lv 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 Vv 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, a 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). Vv PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA fy. Vv 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. 1 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 ) 3 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; 4 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 I. I. (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 (c) Any department, bureau or agency of this 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). 10 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 99 Guardian.’’ A hearing was held prior to the entry of this order, but over the objection of Pearl’s Family 11 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). 12 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- 13 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 14 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. 15 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- 16 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 | 17 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 18 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 19 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¢ 2 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). 20 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, v. 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 vs 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1352%3A1. Public record. Not legal advice.