Opposition Brief — Harkrider v. Lafayette Bank & Trust Co.

No. 87-1356

wUDICRE LOUTT, Vel.

FILED

©) | we 7 ie

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,

Vv.

LAFAYETTE BANK AND TRUST COMPANY,

HANNA GERDE & MEADE, BALL EGGLESTON

BUMBLEBURG & McBRIDE, FLOYD WILCOX,

STUART & BRANIGIN, ANN G. DAVIS and

VAUGHAN, VAUGHAN & LAYDEN,

Respondents.

fy.

“

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

.f.

Vv

John F. Bodle Stephen R. Pennell

Stuart & ae Stuart & Branigin

801 The Life Bidg. 801 The Life Bldg.

P.O. Box 1010 P.O. Box 1010

Lafayette, IN 47902 Lafayette, IN 47902

(317) 423-1561

Counsel of Record Counsel

Attorneys for Respondent, Floyd Wilcox

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

Page

Table of Authorities , il

Grounds On Which Jurisdiction Is Invoked ....0w.. 1

Statement of the Case

TI 8 iiss ciatiittanmccdasdonen 8

THIS COURT LACKS JURISDICTION TO

CONSIDER ANY ERROR CONCERNING

CLAIMS OF DENIAL OF DUE PROCESS ........ 8

HARKRIDER’S CONTENTION THAT HE

WAS DENIED DUE PROCESS BY THE IN-

DIANA COURT OF APPEALS AND SU-

PREME COURT’S DECISIONS TO IMPOSE

SANCTIONS AGAINST HIM IS SO PLAINLY

WITHOUT MERIT AS TO BE FRIVOLOUS ..... 10

HARKRIDER WAS GIVEN DUE PROCESS

IN THE CONDUCT OF THE PROCEEDINGS 19

HARKRIDER SHOULD BE SUBJECT TO

FURTHER SANCTIONS . 23

iE ST eR Rt MEAP lh PRR ee lone Den Reale PR 25

ii

TABLE OF AUTHORITIES

Page

CasEs

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

1987) es eg

Exxon Corporation v. Eagerton, 462 U.S. 176, 103

S. Ct. 2296, 76 L. Ed. 2d 497, 504 (1983) 9

Fox Valley AMC/Jeep, Inc. v. AM Credit Corp.,

836 F.2d 366 (7th Cir. 1987) .. 16

Fuller v. Oregon, 417 U.S. 40, 50 n.11, 40 L. Ed. 2d

642, 94 S. Ct. 2116 (1974) j 10

George v. State of Texas, 788 F.2d 1099 (5th Cir.

1986), cert. den. — U.S. —, 93 L. Ed. 2d 153,

i ee Bk fe eS <a s om 18

Good Hope Refineries, Inc. v. R.D. Brashear, :

G88 F.9a 846, G48 Chat Cis. BOGE) ccc 24

Hilgeford v. Peoples Bank, 776 F.2d 176 (7th Cir.

1985), cert. den. 475 U.S. 1123, 90 L. Ed. 2d 188,

206 &. G5 TRE TR ceca oe 18

Hill v. Norfolk and Western Ratlway Company,

O36 FOR. SES Ge Se. ED cietkincicecohee 14

Hyde v. Van Wormer, 474 U.S. 992, 88 L. Ed. 2d

356-306 8. Ot. 408 CIGGR) <n enn 12

Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76

L. Ed. 2d 527 (1983), reh. den., 463 U.S. 1237,

77 L. Ed. 2d 1453, 104 S. Ct. 33 (1983) — 10

In re Cosmopolitan Aviation Corp., 763 F.2d 507,

517 (2nd Cir. 1985), cert. den., 474 U.S. 1032, 88

L. Ed. 2d 573, 106 S. Ct. 593 (1985) —.__.... 18

In re Peoro, 793 F.2d 1048 (9th Cir. 1986) 24, 25

Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 74

(1st Cir. 1984), cert. den., 469 U.S. 1018, 83 L. Ed.

ef Se £ Be Se 2). | eee |

+ eee

iii

TABLE QF AUTHORITIES—Continued

Page

Lesher v. Baltimore Football Club, 512 N.B.2d 156

(Ind. 1987) 7

McLaughlin v. Bradlee, 803 F.2d 1197, 1205 (D.C.

Cir. 1986) 18

Malhiot v. Southern California Retail Clerks Union,

735 F.2d 1133, 1138 (9th Cir. 1984), cert. den.,

469 U.S. 1189, 83 L. Ed. 2d 965, 105 S. Ct. 959

I lg ee ee 18

Orr v. Turco Manufacturing Co., Inc., 512 N.E.2d

ee 7

Rogers v. Lincoln Towing Service, Inc., 596 F.

See en 14

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

SS SERRE TAR, Se ae eae a 13

Street v. New York, 394 U.S. 576, 582, 22 L. Ed. 2d

572, 89 S. Ct. 1854 (1969) 9

Szabo Food Service, Inc. v. Canteen Corp., 823

Fae eee eee Gee Ce. 1) 15, 18

Tatum v. Regents of the University of Nebraska-

Inncoln, 462 U.S. 1117, 77 L. Ed. 2d 1346, 103

nn ne 12

Textor v. Board of Regents of Northern Illinois

University, 711 F.2d 1387 (7th Cir. 1983) oo. 13, 15

Toepfer v. Department of Transportation, FAA,

ee ee See Cee. Ge, 2S) 17

Trecker v. Scag, 747 F.2d 1176, 1179 (7th Cir. 1984),

cert. den., 471 U.S. 1066, 85 L. Ed. 2d 498, 105 S.

| _RSS, SRISREAE Seenarhe ea Oe oe 18

United States v. Carley, 783 F.2d 341 (2nd Cir.

1985), cert. den., — U.S. —, 90 L. Ed. 2d 697,

Ee I I a i cee 18

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Nesglo, Inc., 744 F.2d 887, 892

> Anta ee Ca nee 23

Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889, 68

mS 8 & @y. _: : omen ‘ 10

Westmoreland v. CBS, Inc., 770 F.2d 1168 (D.C.

>) Se. | Sera ina RAMEN Ree At ASRS ey

CoNSTITUTIONAL PROVISIONS AND STATUTES

Federal Rules Civil Procedural 11 ~ 24, 25

Federal Rules Civil Procedure 11 Advisory

Committee Note, 97 F.R.D. 165, 201 . 14

Federal Rules of Appellate Procedure 38 ..... 15, 16, 18, 24

Indiana Rules of Appellate Procedure 8.2(A)(1) .. 16

Indiana Rules of Appellate Procedure 8.3(A) (4) 16, 17

Inidana Rules of Appellate Procedure 8.3(A)(5) ~..... 16

Indiana Rules of Appellate Procedure 8.3(A)(7) ...... 16

Indiana Rules of Appellate Procedure 15(G) ....... 5, 6, 8, 12,

15, 16

Be I or a comeincsnaninipcceeninmeteeaoaiapiemnnapeaanies 1

RR Ee See naar e ene nen eee feed SRE MS 24

United States Supreme Court Rule 49.2 20000. 12

Ne I se sancinichencoupaicghienmansahibe 1, 21, 22

I a cestsutlgpelsieiepieianen einai 21

2a) Oe) pound eter Meenrnrnet Tf Bt V 21

eg 5 SES ROO aN =U Remean e 2, 22

Be I ND iio iiiscieicuiasennasndasilbaaniaiacdamiaheriacewnshn oni +

GROUNDS ON WHICH JURISDICTION IS INVOKED

Petitioners (hereafter referred to collectively as

‘‘Harkrider’’) seek to invoke this Court’s jurisdiction un-

der 28 U.S.C. § 101. That statute, however, does not pro-

vide any basis for jurisdiction, and therefore Harkrider

has failed to properly assert any basis for jurisdiction for

his petition.

°

STATEMENT OF THE CASE

Harkrider was sanctioned by the Indiana Court of

Appeals and Supreme Court of Indiana for having brought

an appeal which was not only frivolous, but was pursued

in bad faith. The finding of Harkrider’s bad faith was

premised not only upon his violation of the rules of In-

diana Appellate Procedure and abuse of the appellate

process, but also on his misrepresentation of the record

from the Court below. Harkrider’s statement of the case

here continues to make gross misstatements of fact and

distortions of the record, thereby manifesting the bad faith

in which even this appeal has been pursued.

The history of this long and tortured litigation began

with the filing of a petition for appointment of guardian

for Pearl Posey by Harkrider on June 30, 1981. (R. 9).

On July 21, 1981, Floyd Wilcox (Wilcox) filed his cross

petition for appointment of guardian. (R. 22). Although

Harkrider contends in his statement of the case that this

cross petition failed to conform to the requirements in

I.C, 29-1-1-12, the orly objection raised at the hearing on

2

July 21, 1981 to the cross petition was that it failed to

give proper notice under I.C. 29-1-18-14. (R. 125). Thus,

the objection which Harkrider attempts to raise now is

different from the objection raised at trial.

The hearing on the appointment of a guardian was

held on July 21 and 24, 1981. Evidence was presented on

the manner in which the Posey farm was conveyed to Wil-

cox. Harkrider states at page 7 of his Petition that on

November 9, 1977, Pearl Posey and Wilcox executed a

document styled ‘‘Escrow Agreement’’ pursuant to which

a deed to Pearl’s eighty acre farm was placed in escrow

to be transferred to Wilcox upon her death. This state-

ment is the basis for the errors alleged in Harkrider’s

second question for review which asserts that the claim is

‘against a guardian who conveyed his ward’s farm to

himself... .’’ This is a gross misrepresentation of the

record. Wilcox did not convey the Posey farm to himself

nor did he execute any ‘‘Escrow Agreement’’ nor any

other document causing it to be conveyed to him. The

only documents pertaining to this transaction were a let-

ter and deed prepared by an attorney and signed by Pear!

Posey. (See R. 154, exhibit A included herein as Appendix

A. The Appendix is being lodged with the Court under >

separate cover.) Mr. Bennett, the attorney who prepared

the deed and suggested that the deed be placed in escrow

until her death, testified that it was Mrs. Posey’s idea to

give the farm to Wilcox, and that this came as a surprise

to Wilcox who went to Bennett’s office expecting to pur-

chase the farm on contract. (R. 219-221). Thus, there can

be no justification for misrepresenting that Wilcox con-

veyed the property to himself when it is clearly apparent

from the record that the documents executed on Novem-

ber 9, 1977 were executed by Pearl Posey alone.

At the conclusion of the hearing on July 24, 1981, the

Court entered an order appointing Lafayeite Bank and

Trust as guardian of Pearl Posey’s estate. The Court

was uncertain whether there was any need to have a guar-

dian of the person appointed, and requested Ms. Davis,

the Court appointed attorney for the ward, to investigate

the matter and report back to the Court. (R. 382). Al-

though Harkrider now objects that he was not given any

notice of this report and had no opportunity to respond

to it, he fails to note that he and his attorney were both

present when the Court made this request of Ms. Davis

and yet failed to raise any objection to this procedure. Ms.

Davis reported that a guardian of the person was needed,

a view shared by Harkrider, and the Court found that

Wilcox should be appointed as guardian of the person in-

stead of Mr. Harkrider.

Following the appointment of Lafayette Bank and

Trust as guardian of the estate and Wilcox as guardian

of the person, Harkrider took his first appeal to the In-

diana Court of Appeals challenging this decision and vir-

tually every other order entered by the Court which was

adverse to him. The Court of Appeals affirmed the trial

court in a memorandum decision filed on July 20, 1983.

(Appendix B). The Court of Appeals denied Hark-

rider’s claim that he was denied due process by not hav-

ing notice or any opportunity to be heard on the question

of the award of attorney’s fees and other similar matters

holding that such orders were not yet final appealable

orders, and that the time for raising any objection to such

orders would be at the final accounting of the guardian-

ship. The Court of Appeals further held that Harkrider

did not have any property interest in the guardianship,

and therefore was not entitled at that time to any notice.

Furthermore, the Court of Appeals held that the trial

court did not abuse its discretion under I.C. 29-1-18-17(d)

by declining to give Harkrider notice of all matters affect-

ing the guardianship. Harkrider then filed a Petition for

Rehearing which was denied. He next sought transfer to

the Indiana Supreme Court, but his petition was denied.

Pearl Posey died on March 19, 1982. Because the first

appeal was still pending, the guardianship could not be

closed and the guardianship assets could not be turned

over to the ward’s estate. It was therefore necessary

for Wilcox as executor of the estate to petition the Court

for funds to pay claims against the estate. Harkrider’s

characterization of all of these expenses being used to pay

‘*fees’’ is a distortion of the record. On July 20, 1982 the

Court directed a partial distribution be made to the estate

in the sum of $5,000.00 to pay expenses of the estate such

as the funeral and burial expenses of the ward. (Appen-

dix ©). The portion of this distribution which was not

used to pay expenses is still a part of the estate. On

March 11, 1983 the Court directed distribution be made

to the estate in the sum of~$19,939.57. This money was

used to pay the Indiana inheritance tax for the estate.

(Appendix D).

Harkrider’s suggestion that he was denied due process

by not being provided with notice and an opportunity for

hearing on his objections to the attorneys’ fees is also

incorrect. Although interim petitions for fees were still

subject to review at the final accounting, Harkrider was

even afforded an opportunity for a hearing on an Interim

Petition for Attorneys’ Fees which lasted two days due

to the lengthy cross-examination of the guardian’s attor-

neys by Harkrider. This hearing was held on April 9 and

12, 1984. (R. Vol. 4, pp. 968-1104). Although the trial

court granted interim petitions for allowances of fees,

these orders for allowances were not final until the hear-

ing on the Final Accounting which was held on March 4,

1985. The attorneys for the guardians at that time pre-

sented evidence concerning their petitions for fees on

which there had not yet been a hearing, the nature of

services performed, the amount of time required to per-

form such services, and the standard hourly charges for

sach services. (R. Vol. 6). Mr. Harkrider and his attor-

ney were both present during this hearing and cross-ex-

amined the guardian’s attorneys at length regarding the

amount of their fees. Thus, only after notice and a hear-

ing in which Harkrider and his attorneys were present

and were allowed to cross-examine the guardians’ wit-

nesses did the orders of the trial court become final.

After the trial court approved the final accounting on

March 11, 1985, Harkrider then prosecuted his second ap-

peal in this case. Harkrider claims he was never given

any notice or opportunity to be heard on the issue of sanc-

tions under A.R. 15(G). This is also untrue. In his ap-

pellee’s brief, Wilcox raised the issue of whether Hark-

rider should be sanctioned under Indiana Rules of Appel-

late Procedure (A.R.) 15(G). That portion of Wilcox’s

brief which discussed the issue is included herein as Ap-

pendix E. Harkrider responded to this issue in his reply

brief, the pertinent portion of which is included herein as

Appendix F. Harkrider did not file any motion with the

Court of Appeals asking for a hearing on this issue.

On September 3, 1986 the Indiana Court of Appeals

affirmed the trial court’s approval of the guardian’s final

accounting. The Court of Appeals further held that Hark-

rider should be sanctioned pursuant to A.R. 15(@) for

having undertaken and prosecuted the appeal which was

not only frivolous but in bad faith. The Court of Appeals

gave four reasons for its imposition of sanctions which

were apparent from the record before it: 1) Numerous

significant failures to observe the Indiana Rules of Appel-

late Procedure, 2) Absence of any mention of prior appeal,

3) Ignoring or omitting facts established in the record or

misstatement of existing facts, and 4) Drafting his brief

in a manner calculated to require the maximum expendi-

ture of time by appellees and the Court.

Harkrider then filed a Petition for Rehearing in the

Indiana Court of Appeals. (Harkrider’s Appendix B).

No error was asserted based upon any claim of denial of

due process concerning the award of sanctions under A.R.

15(G). The Petition raised only one claim of constitu-

tional error. In paragraphs 18(H) and 13(1) Harkrider

asserted that his right to due process was violated as a

result of unspecified ex parte rulings of the trial court and

ex parte communications between appellee’s counsel and

the trial court. Other than the report to the Court by Ms.

Davis, it is not clear to what rulings or communications

Harkrider is referring. Harkrider’s Petition for Rehear-

ing cited to pp. 97-98 of his appellant’s brief which referred

to every order of the trial court since the litigation began,

OF ee

~]

including the order of the Court appointing Lafayette

Bank and Trust as guardian of the estate, the order ap-

pointing Wilcox as guardian of the person, and the order

approving the Final Accounting in the guardianship, all

of which were conducted after a notice and opportunity to

be heard in which Harkrider and his attorney appeared

and were allowed to present their own testimony and other

evidence.

Harkrider’s Motion for Rehearing was overruled on

October 14, 1986. He then filed his Petition to Transfer

in the Supreme Court of Indiana. (Harkrider’s Appendix

D). Like the Petition for Rehearing in the Court of Ap-

peals, no error was asserted based upon any claim of denial

of due process by the imposition of sanctions under A.R.

15(G). Again, the only constitutional errors raised con-

cerned alleged ex parte rulings and communications which

were not specified with any particularity.

The Indiana Supreme Court granted Harkrider’s

Petition to Transfer and at the same time took up two

other cases in which the question of sanctions under A.R.

15(G) was raised. The Indiana Supreme Court reversed

the award of sanctions in the other two cases, Orr v. Turco

Manufacturing Co., Inc., 512 N.E.2d 151 (Ind. 1987); and

Lesher v. Baltimore Football Club, 512 N.E.2d 156 (Ind.

1987), but affirmed the award against Harkrider finding

‘‘cireumstances significantly more grave than mere lack

of merit’’ and held that ‘‘gross abuse of the right to appel-

late review ... should not go unrebuked.’’ The Indiana

Supreme Court remanded the cause to the trial court for

an award of such attorneys’ fees as may be determined to

be appropriate. (Harkrider Appendix E). The Indiana

Supreme Court did not address any of the constitutional

claims now raised by Harkrider.

Harkrider then filed his Petition for Rehearing in

the Indiana Supreme Court. (Harkrider Appendix F).

For the first time, Harkrider contended that the imposi-

tion of sanctions under A.R. 15(G) violated his constitu-

tional right to due process. The Indiana Supreme Court

denied Harkrider’s Petition for Rehearing (Harkrider

Appendix G@) without addressing the constitutionality of

the award of the sanctions under A.R. 15(G).

°

ARGUMENT

THIS COURT LACKS JURISDICTION TO

CONSIDER ANY ERROR CONCERNING CLAIMS

OF DENIAL OF DUE PROCESS

The first error alleged by Harkrider is that the de-

cisions of the Indiana Court of Appeals and the Indiana

Supreme Court imposing sanctions pursuant to Indiana

Rule of Appellate Procedure (A.R.) 15(G) violated his

right to due process under the United States Constitution.

Significantly, Harkrider failed to raise this issue before

the Indiana Court of Appeals, and did not raise it in the

Indiana Supreme Court until after that Court affirmed

the decision of the Court of Appeals. By failing to prop-

erly present this issue to the Indiana Court of Appeals

and the Supreme Court of Indiana, any error regarding

the imposition of sanctions has been waived. The issue

was not considered by the courts below and this Court

therefore lacks jurisdiction to consider the issue.

The only claim of any denial of due process presented

by Harkrider to the Indiana Supreme Court in his Peti-

tion to Transfer concerned certain alleged ex parte com-

munications. By failing to make any objection to the

Court’s request to Ms. Davis that she make a report to

the Court concerning the necessity of appointing a guar-

dian of the person, Harkrider has waived any error con-

cerning this procedure. By failing to present any cogent

argument to the Indiana Court of Appeals concerning

any other alleged ex parte communications, any error con-

cerning such matters was also waived. Thus, the Indiana

Supreme Court was not requested to address any consti-

tutional claims which had not been waived. Accordingly,

no constitutional claims of any alleged denial of due

process were addressed by the Indiana Supreme Court.

Because the constitutional claims asserted by Hark-

rider in his Petition for a Writ of Certiorari were not

properly raised before the Indiana Supreme Court and

therefore were not addressed by that Court, there is no

jurisdiction to grant Harkrider’s Petition. This precise

issue was recently considered by this Court in Exxon Cor-

poration v. Eagerton, 462 U.S. 176, 103 S. Ct. 2296, 76

L. Ed. 2d 497, 504 (1983) in which the Court concluded

that it had no jurisdiction to consider an issue which had

not been decided by the Court below. Quoting Street v.

New York, 394 U.S. 576, 582, 22 L. Ed. 2d 572, 89 S. Ct.

1354 (1969) the Court observed that the decision below

did not discuss this issue, and when ‘‘the highest state

court has failed to pass upon a federal question, it will

be assumed that the omission was due to want of proper

presentation in the state courts, unless the aggrieved party

in this Court can affirmatively show the contrary.’’ See

10

also Fuller v. Oregon, 417 U.S. 40, 50 n.11, 40 L. Ed. 2d

642, 94 S. Ct. 2116 (1974); Webb v. Webb, 451 U.S. 493,

101 S. Ct. 1889, 68 L. Ed. 2d 392 (1981); and Illinois v.

Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527

(1983), reh. den., 463 U.S. 1237, 77 L. Ed. 2d 1453, 104

S. Ct. 33 (1983). Thus, the constitutional claims which

are asserted here were not ruled upon by the Indiana Su-

preme Court because those claims had been waived. There-

fore, this Court has no jurisdiction to consider these claims.

HARKRIDER’S CONTENTION THAT HE WAS

DENIED DUE PROCESS BY THE INDIANA

COURT OF APPEALS AND SUPREME COURT’S

DECISIONS TO IMPOSE SANCTIONS AGAINST

HIM IS SO PLAINLY WITHOUT

MERIT TO BE FRIVOLOUS

Harkrider’s contention that he was never provided

with any notice or opportunity to be heard on the issue of

the imposition of sanctions is simply untrue. Further-

more, his contention that he was denied due process by

not being given an evidentiary hearing is contrary to all

precedent in which such sanctions have been imposed based

upon conduct similar to that demonstrated by Harkrider

during this appeal, which conduct is evident from the face

of the record.

Although it is certainly true that due process requires

that some notice and opportunity to be heard be provided

before sanctions may be imposed, Harkrider cannot con-

tend in good faith that he was not provided with any no-

tice or opportunity to be heard before the sanctions were

11

imposed. The issue of whether Harkrider should be sub-

ject to sanctions was raised by Wilcox in his appellee’s

brief which was filed in the Indiana Court of Appeals on

March 26, 1986. (Appendix EK). This issue having been

raised in the appellee’s brief, Harkrider was put on notice

that the Court of Appeals would consider this issue, and,

if the Court of Appeals found in the appellee’s favor, sanc-

tions could be imposed. Harkrider was not only given

the opportunity to respond to this issue, in fact, he did

respond to this issue in his reply brief filed with the In-

diana Court of Appeals. (Appendix F). Hence, Hark-

rider had notice of this issue and the opportunity to re-

spond io it before any sanctions were entered against him.

Harkrider’s assertion at page 14 of his Petition that prior

to the imposition of sanctions by the Court of Appeals,

‘‘there was no opportunity to respond to the bases it ulti-

mately used’’ is clearly a misstatement of the record.

Moreover, not only was Harkrider provided with no-

tice and an opportunity to be heard before the Court of

Appeals imposed sanctions against him, Harkrider was

afforded numerous opportunities to be heard on this issue

after the Court of Appeals made its decision. As noted

by the court in Braley v. Campbell, 832 F.2d 1504 (10th

Cir. 1987), a petition for rehearing generaHy would be

adequate to provide a party with an opportunity to re-

spond to bring any errors to the court’s attention. Hark-

rider was provided with three opportunities to be heard

on this issue by briefs after receiving the Court

of Appeals’ decision holding that sanctions should be

imposed against him. Opportunities to be heard were

provided through the Petition for Rehearing in the In-

12

diana Court of Appeals, the Petition to Transfer to the

Indiana Supreme Court, and the Petition for Rehearing

in the Indiana Supreme Court. Furthermore, the fact that

these were meaningful opportunities is evidenced by the

fact the Indiana Supreme Court also considered two other

cases on the question of the propriety of attorney’s fees

under A.R. 15(G) together wth Harkrider’s Petition to

Transfer, and the Indiana Supreme Court reversed the

award of attorney’s fees in both of the other cases. The

award against Harkrider was affirmed because it was evi-

dent from the record before the Court that Harkrider’s

misconduct was so abusive and so flagrant that it should

not go unrebuked.

Harkrider’s contention that there is a constitutional

right to an evidentiary hearing before sanctions can be

imposed against him is totally without merit. Indeed, the

United States Supreme Court has itself awarded damages

under its Rule 49.2 without a hearing where it was ap-

parent from the record that circumstances justified such

an award. See, e.g., Hyde v. Van Wormer, 474 U.S. 992,

88 L. Ed. 2d 355, 106 8. Ct. 403 (1985), and Tatum v. Re-

gents of University of Nebraska-Lincoln, 462 U.S. 1117,

77 L. Ed. 2d 1346, 103 S. Ct. 3084 (1983). Obviously if

the United States Supreme Court has imposed sanctions

without an evidentiary hearing, it may not reasonably be

argued that due process mandates such a hearing.

The only authorities cited by Harkrider are not sup-

portive of his position. Harkrider has misstated the

holding of the court in Braley v. Campbell, 832 F.2d 1504

(10th Cir. 1987). The court did not reverse the grant of

sanctions against an attorney because he was not given

13

a de novo evidentiary hearing to argue the original pan-

el’s imposition of sanctions as Harkrider claims. To the

contrary, the court held that due process does not re-

quire an evidentiary hearing. ‘‘At the appellate level, the

right to respond does not require an adversarial eviden-

tiary hearing. (Citations omitted.) Even at the trial

court level, the sanction inquiry may properly be limited

to the record in most instances. (Citation omitted.) ”’

832 F.2d at 1515. The court in Braley concluded that a

hearing may be necessary only if factual issues arise from

the response of the sanctioned party affecting either the

amount or whether sanctions should be imposed at all.

Harkrider has also misconstrued the court’s holding

in Textor v. Board of Regents of Northern Illinois Uni-

versity, 711 F.2d 1387 (7th Cir. 1983). In Tezxtor, the

court held that the district court erred in imposing fees

withovt a prior hearing where there was a factual issue

under Rule 11 whether counsel’s conduct was indicative of

bad faith sufficient to support such sanctions, or merely of

incompetence. The court did not suggest that a hearing

would be mandated where there was no such factual dis-

pute observing that, ‘‘truly egregious conduct by counsel

may support a finding of willful abuse without any inquiry

about counsel’s intent... .’’? 711 F.2d at 1395.

Harkrider has likewise misconstrued the court’s hold-

ing in Rogers v. Lincoln Towing Service, Inc., 771 F.2d

194 (7th Cir. 1985). Harkrider cites the case for the prop-

osition that due process mandates an evidentiary hearing

before sanctions may be imposed. The court did not hold

that such a hearing is mandated or even suggest that a

hearing is necessary in all cases; in fact, the court affirmed

14

an award of sanctions which had been imposed without

hearing. The district court had imposed sanctions under

Rule 11 without a hearing finding,

‘‘A hearing would serve no meaningful purpose since

I imposed the sanction based on my conclusion that a

majority of the claims made in the amended com-

plaint were unreasonable as a matter of law... . There

is no possible justification under an objective standard

for loading down a complaint with worthless claims

such as these, which are totally unsupported by even

a single allegation of the complaint. The advisory

committee’s notes clearly contemplate that in some in-

stances a district court will know enough about a par-

ticular pleading, without conducting a hearing, to de-

cide it violates rule 11. ... Due process does not de-

mand a hearing to develop facts where the ruling is

one of law and the facts adduced at the hearing would

not alter the legal conclusion.’’ 596 F. Supp., 13 at

27-28

The Court of Appeals affirmed holding, ‘‘we agree with

the district court that the complaint was overblown and

that a hearing would have served no useful purpose.’’ 771

F.2d at 205.

This case is representative of how the drafters of Rule

11 intended for the rule to be applied in situations where

the relevant facts are already of record, and due process

does not require any further hearing. The Advisory Com-

mittee Comments indicate that although sanctions may

not be imposed without due process, ‘‘In many situations

the judge’s participation in the proceedings provides him

with full knowledge of the relevant facts and little fur-

ther inquiry will be necessary.’’ 97 F.R.D. 165, 201.

The Court of Appeals for the Seventh Cireuit in Hill

v. Norfolk and Western Railway Company, 814 F.2d 1192

15

(7th Cir. 1987) recently imposed sanctions sua sponte un-

der Rule 38 of the Federal Rules of Appellate Procedure

(which is the counterpart of Indiana Rule 15(G)). Con-

sistent with its prior holding in Teztor, the court held

that due process does not mandate a hearing where the

basis for the sanction appears from the record itself.

But obviously the right to a hearing .. . is limited to

eases where a hearing would assist the court in its

decision. (Citations omitted.) Where, as in this and

most Rule 38 cases, the conduct that is sought to be

sanctioned consists of making objectively groundless

legal arguments and briefs filed in this court, there

are no issues that a hearing could illuminate. All the

relevant ‘‘conduct’’ is laid out in the briefs them-

selves; neither the mental state of the attorney nor

any factual issue is pertinent to the imposition of

sanctions for such conduct. Where a hearing would

be pointless it is not required, (citation omitted) ;

hence ‘‘if there are no contested factual issues the

district court can proceed summarily,’’ (citation omit-

ted), as we are doing here. .. . The text of Rule 38,

and our previous decisions applying it, provide all

the notice an attorney could reasonably demand that

sanctions may be imposed on counsel directly for the

making of frivolous legal arguments in this court—

and imposed without a hearing, if there are no factual

questions. ... A hearing is required in a proceeding

concerning sanctions only if there is a contested fac-

tual issue; there is not and cannot be one in this case.

814 F.2d at 1201-1203.

In Szabo Ford Service, Inc. v. Canteen Corp., 823

F.2d 1073, 1082 (7th Cir. 1987) the Court held the District

Court had erred in not awarding attorneys’ fees as sanc-

tions under Rule 11 observing, ‘‘The violatidn being estab-

lished on the legal record, a hearing is unnecessary.’’ The

16

most recent decision on point in the Seventh Cirenuit also

imposed sanctions without prior notice of a hearing pur-

suant to Fed. R. App. P. 38 for the same misconduct as

Harkrider which ineluded filing briefs replete with mis-

representations. See For Valley AMC /Jeep, Inc. v. AM

Credit Corp., 836 F.2d 366 (7th Cir. 1987). It is there-

fore plainly frivolous for Harkrider to rely upon cases

from the Seventh Cirenit in support of his contention that

A.R. 15(G) is unconstitutional for not mandating a hear-

ing before sanctions may be imposed when the Seventh

Circuit has held on numerous occasions that due process

does not require any hearing and has itself imposed sance-

tions for a frivolous appeal without notice or hearing for

the same form of misconduct which has been demonstrated

by Harkrider.

It is apparent from the decisions of the Indiana Court

of Appeals and the Indiana Supreme Court that all of the

relevant misconduct which formed the basis for the con-

clusion that Harkrider’s appeal was in bad faith was con-

tained in Harkrider’s own briefs, and there were no addi-

tional factual issues pertinent to the imposition of sanc-

tions for such misconduct. Harkrider’s bad faith was

found from 1) the disregard of the form and conduct re-

quirements of Indiana Rules of Appellate Procedure 8.2

(A) (1), 8.3(A) (4), 8.3(A)(5), and 8.3(A)(7); 2) his omis-

sion and misstatement of the facts established in the ree-

ord; 3) the brief was written in a manner calculated to

require the maximum expenditure of time by both appel-

lees and the court; and 4) the failure to disclose properly

his previous appeal raising many of the same issues and

attempt- to relitigate many of these same issues even

17

though they had been decided adversely to him in the prior

appeal.

Harkrider does not assert in his Petition that there

was any error regarding the first three of these grounds

for imposition of sanctions, but contends that the Supreme

Court’s finding that his failure to disclose his previous

appeal was ‘‘blatantly erroneous.’’ This argument dis-

torts the basis for the Court’s finding. The Indiana Rule

of Appellate Procedure 8.3(A)(4) requires that the ap-

pellant’s brief contain a statement of the case. The state-

ment of the case contained in Harkrider’s appellant’s brief

totally failed to mention the fact that there had been a

prior appeal in this case which he lost. Although the

Court of Appeals could have discovered that the prior

appeal had been undertaken from Harkrider’s motion to

include the prior appeal in the record of the second ap-

peal, it was Harkrider’s own failure to bring properly the

fact the appeal had been taken to the court’s attention and

the manner in which he totally ignored the prior decision of

the Court of Appeals which led to the finding that he had

failed to disclose his previous appeal. Harkrider’s at-

tempt to raise and argue many issues which had been de-

cided against him on the prior appeal as though they had

never before been decided was clearly inexcusable and

demonstrated bad faith.

Not only has Harkrider misstated or misconstrued

the holdings of the cases cited in his Petition as well as

distorted the facts in the record, he has also ignored those

cases which have held that there is no constitutional right

to a hearing on whether sanctions should be opposed or

what level of sanctions should apply. In Toepfer v. De-

18

partment of Transportation, FAA, 792 F.2d 1102 (D.C.

Cir. 1986) the court imposed sanctions under Fed. R. App.

P. 38 without a hearing holding, ‘‘To require a hearing for

the assessment of such damages and costs would impose

on the opposing party and on the court an even greater

burden in dealing with a frivolous appeal and entirely

defeat the purpose of Rule 38.’’ 792 F.2d at 1103. See

also, McLaughlin v. Bradlee, 803 F.2d 1197, 1205 (D.C. Cir.

1986); Szabo Food Service, Inc. v. Canteen Corp., 823

F.2d 1073, 1082 (7th Cir. 1987); and Malhiot v. Southern

California Retail Clerks Union, 735 F.2d 1133, 1138 (9th

Cir. 1984), cert. den. 469 U.S. 1189, 83 L. Ed. 2d 965, 105

S. Ct. 959 (1985). Safictions have been imposed without

a hearing in numerous other cases in which certiorari has

been denied. See, e.g., Hilgeford v. Peoples Bank, 776

F.2d 176 (7th Cir. 1985), cert. den., 475 U.S. 1123, 90

L. Ed. 2d 188, 106 S. Ct. 1644 (1985); Trecker v. Scag,

747 F.2d 1176, 1179 (7th Cir. 1984), cert. den., 471 U.S.

1066, 85 L. Ed. 2d 498, 105 S. Ct. 2140 (1985); In re Cos-

mopolitan Aviation Corp., 763 F.2d 507, 517 (2nd Cir.

1985), cert. den., 474 U.S. 1032, 88 L. Ed. 2d 573, 106 S. Ct.

593 (1985); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64,

74 (1st Cir. 1984), cert. den., 469 U.S. 1018, 83 L. Ed. 2d

359, 105 S. Ct. 483 (1984); United States v. Carley, 783

F.2d 341 (2nd Cir. 1985), cert. den., — U.S. —, 90 L. Ed.

2d 697, 106 S. Ct. 2251 (1986); and George v. State of

Texas, 788 F.2d 1099 (5th Cir. 1986), cert. den., — U.S. —,

93 L. Ed. 2d 153, 107 S. Ct. 226 (1987).

It is clear from these authorities that due process does

not require an evidentiary hearing before sanctions may

be imposed where the grounds for the imposition of such

19

sanctions are apparent from the record itself. In the

present case, bad faith was evident from Harkrider’s own

briefs which misstated the facts, failed to give an honest

statement of the case, abusively failed to comply with the

rules of Appellate Procedure, and were done in such a

manner as to oppress and harrass the appellees by re-

qufring the maximum expenditure of time by both appel-

lees and the Court. A hearing under such circumstances

would serve no meaningful purpose. Likewise, the Peti-

tion for Writ of Certiorari misstates the facts, distorts

the basis for the decisions of the Indiana Court of Ap-

peals and the Supreme Court, and either misstates, miscon-

strues, or ignores the judicial decisions on this issue. Like

the prior appeals, this appeal is frivolous and constitutes

a glaring example of abuse of the judicial process.

HARKRIDER WAS GIVEN DUE PROCESS IN

THE CONDUCT OF THE PROCEEDINGS

Assuming arguendo that this Court has jurisdiction

to consider Harkrider’s claims of denial of due process in

the conduct of the proceedings in the trial court, it is clear

that no denial of any right of due process occurred. Hark-

rider’s statement of the question presented for review is

so general and vague as to be incomprehensible. Rather

than addressing any specific incident or order, the ques-

tion broadly asserts that the entire conduct of proceedings

operated to deny him due process. Such an assertion is

patently absurd.

Harkrider had notice and an opportunity to be heard

on the matter of the selection of a guardian. He exer-

cised his right to appeal the Court’s order appointing

20

persons to serve as guardians who were not favored by

Harkrider as well as virtually every other order against

him. After losing in the Court of Appeals he sought re-

view by the Indiana Supreme Court which was denied. The

ease then returned to the trial court where Harkrider

continued to contest virtually every petition by the guar-

dians and efforts to administer the guardianship. There

was a hearing which took two days to conclude on an In-

terim Petition for Attorneys’ Fees at which time Hark-

rider was present and was allowed to cross-examine the

guardian’s attorneys on their fees. Any interim orders of

the Court which were entered ex parte remained interlocu-

tory until the hearing on the final accounting. Harkrider

filed an objection to the final accounting. A hearing was

conducted on his objections at which time Mr. Harkrider

and his counsel were present and were allowed to present

their own evidence and cross-examine the witnesses called

by the guardians. Harkrider again exercised his right to

appeal from the order approving the final accounting over

his objection in which he raised over fifty grounds for

error. His appeal was heard by both the Indiana Court

of Appeals and the Supreme Court of Indiana. To argue

that Harkrider was not given due process after having

dragged this litigation through the Indiana courts for the

past seven years during which there have been several

hundred pleadings, motions and memoranda filed in the

trial courts, numerous hearings, and two appeals com-

pletely through the Indiana Court of Appeals and the In-

diana Supreme Court is plain nonsense.

To the extent that specific arguments have been made,

they are plainly without merit. Harkrider persists in

21

arguing that I.C. 29-1-18-17 entitled him to notice. The

argument continues to ignore the holding of the Court of

Appeals from the first appeal, as the Court specifically

found that Harkrider was not entitled to notice under I.C.

29-1-18-17. Furthermore, even if Harkrider was entitled

to notice, no orders became final without notice and a

hearing provided to Harkrider.

Harkrider’s contention that the Court ignored the

statutory order of preferences in the selection of guar-

dians under I.C. 29-1-18-10 is also false. The Court did

not ignore Mr. Harkrider’s desire to be appointed as guar-

dian. To the contrary, the Court specifically found that

Mr. Harkrider was not suitable to be appointed because of

ill feelings between the ward and Mr. Harkrider. (R. 380.)

Harkrider’s claim that the trial court ignored the no-

tice provision in I.C, 29-1-18-11(e) is likewise without merit.

That statute merely requires that the petition for appoint-

ment of a guardian identify the person whose appoint-

ment is sought. Wilcox’s petition did exactly that by re-

questing that Wilcox and a corporate fiduciary besides

Purdue National Bank be appointed guardian. Moreover,

the statute does not require that the court appoint any of

the persons requested for appointment in any of the peti-

tions.

Harkrider’s claim that insufficient notice of the hear-

ing was given under I.C. 29-1-1-12 is also specious. The

hearing on the selection of a guardian was held on July

24 which was more than ten days after Harkrider’s peti-

tion was filed. The statute does not require a continu-

ance of the hearing for an additional ten days if a notice

of objections to the original petition or a cross petition is

22

filed. It is further provided in I.C. 29-1-18-14 that the

notice period may be reduced to as little as three days.

Harkrider had notice of Wilcox’s petition three days be-

fore the hearing, but did not request a continuance of the

hearing or raise any objection for insufficiency of notice

under I.C, 29-1-1-12. Moreover, Harkrider did not make

any objection at the hearing based on improper notice

under L.C, 29-1-1-12.

Harkrider incorrectly asserts that the Court appointed

Wilcox despite previously stating that he was incompetent

to serve. The record clearly shows the Court’s statement

was addressed only to Wilcox’s proposed appointment as

guardian of the estate; the Court did not suggest that Wil-

cox was incompetent to serve as guardian of the person.

Thus, here again, Harkrider’s assertion is a gross distor-

tion of the record. Harkrider quotes only a portion of the

Court’s remarks and omits that portion of the text in

which the Court found that the ward and Mr. Wilcox had

enjoyed a good personal relationship for many years and

that the ward had ‘‘expressed great confidence’’ in Mr.

Wilcox and ‘‘presumably would like for him to continue to

handle her affairs.’’ (R. 380. Appendix G.) Thus, when

placed in context, it is apparent that the trial court be-

lieved that Mr. Wilcox was competent to serve as guar-

dian of the person. Harkrider’s assertion that the trial

court made a finding that Wilcox was incompetent to serve

as guardian in any capacity is a complete fabrication.

These perceived errors were argued by Harkrider in

his first appeal to the Indiana Court of Appeals which

was decided against him. He then sought review of these

errors to the Indiana Supreme Court, but his Petition for

Transfer was denied. If there had been any errors of a

eee

23

constitutional magnitude in the selection of Mr. Wilcox

to act as guardian of the person, Harkrider should have

sought certiorari on those issues after the Indiana Su-

preme Court had denied his Petition to Transfer, but he

did not. Harkrider’s attempt to relitigate these same

issues again years later in the second appeal is but fur-

ther evidence of the frivolous nature of this appeal and

abuse of the judicial process.

HARKRIDER SHOULD BE SUBJECT

TO FURTHER SANCTIONS

Since successfully defending the award of sanctions

by the Indiana Court of Appeals in the Indiana Supreme

Court, Wilcox has now had to incur additional attorneys’

fees and expenses in opposing Harkrider’s Petition for

Writ of Certiorari. Given the circumstances of this ap-

peal, it is only appropriate and just_that the case be re-

manded to the Indiana courts for an award of such addi-

tional fees and expenses as may have been incurred in

defending this Petition pursuant to Supreme Court Rule

49.2. This Petition for Writ of Certiorari, like the pro-

eeedings from which it was taken, is frivolous and vexa-

tious. It has succeeded only in delaying the payment of

the attorneys’ fees and expenses previously awarded and

in forcing Wilcox to defend one more insubstantial appeal.

This precise issue was considered by the court in

United States v. Nesglo, Inc., 744 F.2d 887, 892 (1st Cir.

1984). That case also involved a frivolous appeal from

an award of sanctions from having prosecuted proceed-

ings which were frivolous and vexatious. Observing that

the ‘‘frivolous appeal of a sanction for bringing frivolous

24

litigation borders on abuse of process,’’ the court ordered

the appellants’ attorney to pay the costs for attorneys’

fees on the appeal under 28 U.S.C. § 1927, and further

ordered that the appellants would be assessed double costs

under Fed. R. App. P. 38. See also Good Hope Refineries,

Inc. v. R.D. Brashear, 588 F.2d 846, 848 (1st Cir. 1978).

A similar result was reached by the court in In re

Peoro, 793 F.2d 1048 (9th Cir. 1986). The district court

assessed attorneys’ fees and affirmed a bankruptcy court

order, doing so under 28 U.S.C. § 1927, due to the vexa-

tious multiplication of the proceedings. Affirming the

award, the Court of Appeals observed that the facts of the

case presented a textbook example of the use of litigation

to bludgeon opponents into submission. The court fur-

ther ordered that the appellant would be lable for the

appellee’s reasonable attorneys’ fees incurred in having

to defend the appeal under F. R. App. P. 38 holding,

‘‘?Wle think it appropriate to assess double costs and

attorneys’ fees against Eisenman for this appeal. He has

presented only frivolous arguments. We view this appeal

as just another stage in his long abuse of the federal judi-

cial system.’’ 793 F.2d at 1052.

A similar result was reached by the court in West-

moreland v. CBS, Inc., 770 F.2d 1168 (D.C. Cir. 1985).

The Court of Appeals held that the district court had

erred in not awarding sanctions under Rule 11. The court

further held that the appellant would be entitled to his

attorneys’ fees on appeal. Discussing the policy for its

decision, the court observed that it is very possible that

appellate expenses and fees might substantially exceed

the sanctions in the court below, thus foreing many liti-

ea eae

25

gants to conclude that vindication is not worth the effort.

Given the purpose of Rule 11 to deter groundless litiga-

tion, litigants who succeed on appeal in enforcing such

sanctions should not then have to bear the costs of such

an appeal.

It is all too evident from Harkrider’s brief which mis-

states both the facts and the law that this further effort

at appeal is likewise frivolous and in bad faith. Like the

Peoro case, this appeal is just another stage in the long

abuse of the judicial system. The Indiana Supreme Court

concluded that such abuse should not go unrebuked. If

Harkrider is to be deterred from continuing to pursue this

litigation in bad faith, Harkrider should be required to

bear the additional fees and expenses incurred by Wilcox

in having to defend yet another frivolous appeal.

r

CONCLUSION

For the reasons discussed, Wilcox would respectfully

request this Court to dismiss this Petition for Writ of

Certiorari for lack of jurisdiction or in the alternative,

to deny this writ. Wilcox would further respectfully re-

quest this Court to order that additional sanctions be im-

posed against Harkrider pursuant to Rule 49.2 of the

Rules of the United States Supreme Court in an amount

to be determined by the Indiana courts below, and such

other sanctions as this Court may deem appropriate.

Respectfully submitted,

SrepHen R. PENNELL

Joun F. Bopie