Petition for Writ of Certiorari — Rogers v. Wilcox
Supreme Court brief1991
Ask Donna
What actually matters in this document.
Text
In The
Supreme Court of the United States
October Term, 1990
»%
4
BETTY M. ROGERS, RAYMOND HARKRIDER,
Individually, and RAYMOND HARKRIDER,
as Personal Representative of the
Estate of Georgia Cory,
Petitioners,
v.
KATHRYN WILCOX and PHILIP E. WILCOX,
as Personal Representatives of the
Estate of Floyd E. Wilcox, Deceased,
KATHERINE WILCOX, Individually, ROY
McCANDLISH and RUBY McCANDLISH,
Respondents.
,’
4
On Petition For A Writ Of Certiorari
To The Supreme Court Of Indiana
4.
od
PETITION FOR A WRIT OF CERTIORARI
,%
—
Douc.as R. BROWN
STEWART & IRWIN
Two Market Square Center, Suite 1100
251 East Ohio Street
Indianapolis, Indiana 46204-2118
317-639-5454
Attorneys for Petitioners
COCKLE LAW BRIEF PRINTING CO., (800) 225-4964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED FOR REVIEW
1. Whether the Indiana Court of Appeals’ March 19,
1990 and March 20, 1990 Orders (collectively the “Subject
Orders”) are in error, and should be set aside, in that the
Subject Orders violate Article I, Section 12, and Article
VIL, Section 6, of the Indiana Constitution and further
violate the 5th and 14th Amendments of the United States
Constitution, in failing to afford Petitioners their consti-
tutional right to due process and equal protection under
the law, in the following and other particulars:
A. Whether Petitioners were afforded an
appropriate hearing or reasonable opportunity
to be heard in connection with the findings of
fact and conclusions of law reached and deter-
mined by the Indiana Court of Appeals concern-
ing the propriety of legal services rendered by
Petitioner’s previous appellate counsel?
B. Whether Petitioners were unjustly and
unlawfully prevented from exercising their right
to one appeal, under Article VII, Section 6 of the
Indiana Constitution?
C. Whether the Subject Orders unlawfully
penalize Petitioners for seeking to exercise their
constitutional right to one appeal and for refus-
ing to waive such right with respect to the five
count civil actior appealed from?
ii
QUESTIONS PRESENTED FOR REVIEW - continued
2. Whether the Subject Orders are unconstitutional,
and should be set aside, in that the absence of a justicia-
ble case in controversy deprived the Indiana Court of
Appeals of original or appellate jurisdiction to determine
whether Petitioners’ previous appellate counsel fully,
responsibly, professionally and ethically performed his
professional responsibilities to Petitioners in connection
with Petitioners’ appeal?
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW........... i
BE EBUILD 6 occ sccscsccccsccccnes iv
ER hn 5 kWiady woue ee cesseeversscecie 1
GROUNDS ON WHICH JURISDICTION IS
EE Ris bi bide @ CU wide cps nas redeoeces 2
CONSTITUTIONAL AND STATUTORY PROVI-
SE Se 3
UE SP ME SOO... ww ccc asec cccces 4
ARGUMENT: REASONS RELIED ON FOR THE
ALLOWANCE OF THE WRIT ................... 15
I. The Subject Orders Violate Article I, Section 12,
And Article VII, Section 6, Of The Indiana Consti-
tution And Further Violate The 5th and 14th
Amendments To The United States Constitution,
In failing To Afford Petitioners Their Constitu-
tional Right To Due Process And Equal Protection
Under The Law As Well As Their Right To One
SP DGLEAS Gh cca b anes ces ase vcssboccsvones 15
i scan can vascceesceus 24
ee es iyi asesvencesvsrsdevs App. 1
iv
TABLE OF AUTHORITIES
Page
Cases
Armstrong v. Manzo (1965), 380 U.S. 545, 14
me ee Fe Pees error er Terr re 16
Borden Kirscher v. Hayes (1978), 434 U.S. 357, 98
GAD, Bip BE AOA WOE 6 oct rie ne vaseccanscees eke
In the Matter of Briggs (1987), Ind. 502 N.E.2d 879 .16, 19
Christ v. Jovanoff (1926), Ind.App. 676, 151 N.E. 26,
Se Py Pha ces wav iceicia bp vam bse oes eeescsarsveuss 18
Ferger v. Perin Oil Refining Company, Inc. (1950),
120 Ind.App. 174, 90 N.E.2d 131.................. 18
Heck v. Selig (1963), 134 Ind.App. 336, 188 N.E.2d
RR ENS oes Sed eade ches ek be Sabie oe suAR SWS ane ee. 17
Hutts et al v. Martin (1893), 134 Ind. 587, 33 N.E.
Eg POPPE eT POTEET OCT EET ITT ee TT eee 17, 18
McFadden v. Ross (1886), 108 Ind. 512, 8 N.E. 161....17
McKee v. Hasler (1951), 229 Ind. 437, 98 N.E.2d 657,
GEES Caan todas dc vcdaetabbevecenats Cage eentcee sh ces. 16
Moore v. Moore (1924), 81 Ind.App. 169, 173, 135
P,P MEG NaidA Kencnarvcbied Clusabreamirenes<s' 18
Morrison’s Southern Plaza Corp. v. Southern Plaza
(1968), 144 Ind.App. 45, 242 N.E.2d 636........... 17
Mullane v. Central Hanover Trust Company (1950),
339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652........... 16
Podgor v. Indiana University (1978), 178 Ind.App.
Se I SE IE Bis vin oh eas scannsidewssesseecs 16
In Re Guardianship of Posey (1986), Ind.App. 513
EE I UE 6 bp Rk ES ox aeews dau cd ce dans see'es se. 8
Vv
TABLE OF AUTHORITIES - Continued
Page
In Re Guardianship of Posey (1988), Ind.App., 532
DEINE Divdncckcahnecdscwh ebS¢0¥8deb i dsen Rep ecess. 8
Powers v. State (1986), Ind.App., 498 N.E.2d 981..... 16
Ringgenberg v. Hartman (1890), 124 Ind. 186, 24
Pe WE os doe ve eAN Cees Ge Kee bess Case EE dee veces 17
Trook v. Crouch (1924), 82 Ind.App. 309, 137 N.E.
cs SP re yee TT eT Te eee TCT TT EET 18
Wayne Pike Company v. Hammons, et al. (1891), 129
oe > gf Serer er TrerT reer itt Tireeee 18
Whirlpool Corporation v. Review Board of the Indiana
Employment Security Division (1982), Ind.App.,
gf SERMON LTT eet TT TT eT Eee. 16
Zehrlaut v. State (1951), 230 Ind.App. 175, 102
SESE DEE on dbevrerrerdnnwenie hese racdcqeeesacns 23
OTHER AUTHORITIES
2B UTD. BOC TNs Se ccce ceva sccecscccevevenss 2
Freem. Judgm. 14th Ed, Section 120................. 17
Indiana Constitution — Article I, Section 12...3, 15, 16, 17
Indiana Constitution — Article VII, Section 6 ..3, 15, 17
Rule 13 - Revised Rules of the Supreme Court of
the United States (eff. January 1, 1990) ............ 2
United States Constitution - Amendment 5....3, 15, 16
United States Constitution -— Amendment 14 ..3, 15, 16
iets *
_ a eee aa s" — a=) , .- =
, ’
‘
|
;
No.
¢
In The
Supreme Court of the United States
October Term, 1990
~~
BETTY M. ROGERS, RAYMOND HARKRIDER,
Individually, asd RAYMOND HARKRIDER,
as Personal Representative of the
Estate of Georgia Cory,
Petitioners,
v.
KATHRYN WILCOX and PHILIP E. WILCOX,
as Personal Representatives of the
Estate of Floyd E. Wilcox, Deceased,
KATHERINE WILCOX, Individually, ROY
McCANDLISH and RUBY McCANDLISH,
Respondents.
a.
vy
On Petition For A Writ Of Certiorari
To The Supreme Court Of Indiana
+
PETITION FOR A WRIT OF CERTIORARI
¢-
OPINIONS BELOW
This Petition for Certiorari arises from the following
Orders of the Indiana Court of Appeals and Supreme
Court of Indiana, each of which Orders appear in the
Appendix as indicated below:
Description
March 19, 1990 Order of the Indi-
ana Court of Appeals purportedly
holding, inter alia, that the Peti-
tioners’ appellate counsel should
be absolved of responsibility for
failure to timely file the Peti-
tioners’ appellants’ brief in Peti-
tioners’ appeal
March 20, 1990 Order of the Indi-
ana Court of Appeals dismissing
the Petitioners’ appeal
April 26, 1990 Notice of Order of
the Indiana Court of Appeals
denying Petitioners’ Petition for
Rehearing
August 29, 1990 Notice of Order of
the Supreme Court of Indiana
denying Petitioners’ Petition to
Transfer
a 2
Appendix
App. 38-41
App. 42-43
App. 62
App. 78
GROUNDS ON WHICH
JURISDICTION IS INVOKED
The Order of the Supreme Court of Indiana denying
Petitioners’ Petition to Transfer was entered by the
Supreme Court of Indiana on August 29, 1990. This Peti-
tion was filed within ninety (90) days of that date. This
Court’s jurisdiction is invoked under 28 U.S.C. Section
2101(c) and Rule 13 of the Revised Rules of the Supreme
Court of the United States (eff. January 1, 1990).
A.
—
ee
3
CONSTITUTIONA\. AND STATUTORY
PROVISIONS: INVOLVED
Article I, Section 12 of tae Indiana Constitution pro-
vides the following:
“All courts shall be open; and every person, for
injury done to him in his — property, or
reputation, shall have remedy by due course of nw
Justice shall be edsataienened ly, and without
purchase; completely, and without denial;
ted). and without delay.” (Emphasis Sup-
Specifically, with respect to appellate rights, Article VII,
Section 6 of the Indiana Constitution mandates the fol-
lowing, in pertinent part:
“The Court [of Appeals] shall have no original
jurisdiction, except that it may be authorized by
rules of the Supreme Court to review directly
decisions of administrative agencies. In all other
cases, it shall exercise appellate jurisdiction
under such terms and conditions as the
Supreme Court shall — by rv'es which
shall, however, provide in all cases an absolute
right to one a and to the extent provided by
rule, review and revision of sentences for defen-
dants in all criminal cases.” (Emphasis sup-
plied).
Similarly, Amendments 5 and 14 of the United States
Constitution require the following, respectively, in perti-
nent part:
Amendment 5: “No person shall be . . . deprived
of life, liberty, or property, without due process
of law. ...
Amendment 14: Section 1: “All persons born or
naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the
4
United States and of the State wherein they
reside. No State shall make or enforce any law
which shall abridge the privileges or immunities
of citizens of the United States; nor shall any
State deprive any person of life, liberty, or prop-
erty, without due process of law; nor deny to
any person within its jurisdiction the equal pro-
tection of the laws.”
,%
_
STATEMENT OF THE CASE
Petitioners are the next of kin of Pearl Posey
(“Pearl”), who died on March 19, 1982. Thereafter, on or
about March 22, 1982, Floyd E. Wilcox (“Mr. Wilcox”) was
appointed personal representative of Pearl’s estate by the
Circuit Court of Tippecanoe County, Indiana. On or about
August 16, 1982, Petitioners commenced a five count civil
action (“Five Count Civil Action”) against Mr. Wilcox,
Mr. Wilcox’s wife, Katherine Wilcox, and Roy and Ruby
McCandlish, alleging and containing the following
Counts:
Count I: An action against Mr. Wilcox, in his
individual capacity, to recover for Pearl’s estate
title to Pearl’s eighty (80) acre farm deeded to
Mr. Wilcox while Mr. Wilcox served as Pearl’s
fiduciary;
Count II: An action against Mr. Wilcox, in his
individual capacity, to require him to render a
full and complete accounting in connection with
any and all matters and transactions in which he
was involved as Pearl's fiduciary;
Count III: An action against Mr. Wilcox, in his
individual capacity, seeking to have Mr. Wilcox
declared a constructive trustee of all assets and
benefits he had obtained while acting as Pearl's
fiduciary;
Count IV: Anaction against Mr. Wilcox seeking
to have Mr. Wilcox removed as the personal
representative of Pearl’s estate and to have June
Nelson, Pearl’s niece, appointed personal repre-
sentative of Pearl’s estate;
Count V: A will contest.
Venue was subsequently changed in the Five Count
Civil Action to the Circuit Court of Warren County, Indi-
ana. Since its inception, and prior to initiation of the
appeal giving rise to this Petition for Certiorari, exclusive
jurisdiction over the issues involved in the Five Count
Civil Action was, on change of venue, in the Warren
Circuit Court. After a trial on the merits of all five counts
of Petitioners’ Five Count Civil Action, the Warren Cir-
cuit Court, on March 23, 1989, entered its “Findings of
Fact, Conclusions and Judgment,” finding against Peti-
tioners on each of the five counts. On May 22, 1989,
Petitioners timely filed their “Motion to Correct Errors”
in the Warren Circuit Court, which motion was denied,
after hearing, on August 8, 1989. On September 6, 1989,
Petitioners timely filed their “Praecipe for the Record of
Proceedings” with the Warren Circuit Court, thereby ini-
tiating the appeal to the Court of Appeals made the
subject of this Petition for Certiorari.
On December 5, 1989, the Record of Proceedings in
Petitioners’ appeal was filed with the Clerk of the Indiana
Court of Appeals, thus establishing the time for filing of
Petitioners’ appellant’s brief as January 5, 1989. On or
about December 8, 1989, Petitioners’ previous 2ppellate
counsel, William W. Knowles (“Mr. Knowles”), filed his
first motion for extension of time within which to file
Petitioners’ appellant’s brief, which time was extended,
by December 18, 1989 Order of the Indiana Court of
Appeals, through and including February 5, 1990. Copies
of Mr. Knowles’ first motion for extension, and a notice of
the order granting same, appear at Apps. 1-3 and 4,
respectively. On January 19, 1990, Petitioners’ counsel,
Mr. Knowles, filed his second motion’ for extension of
time within which to file Petitioners’ appellant’s brief,
which time was extended, by January 24, 1990 Order of
the Indiana Court of Appeals, through and including
February 26, 1990. A copy of Mr. Knowles’ second motion
for extension, together with the Court’s “order stamp”
granting same, appear at App. 5-8. On or about February
15, 1990, Petitioners’ counsel, Mr. Knowles, filed his third
motion for extension of time within which to file Peti-
tioners’ appellant’s brief, which time was extended, by
February 22, 1990 Order of the Indiana Court of Appeals,
through and including March 7, 1990. A copy of Mr.
Knowles’ third motion for extension, and a notice of the
Order granting same, appear at Apps. 10-14 and 15,
respectively.
On or about the afternoon of February 27, 1990, less
than nine (9) calendar days and seven (7) business days before
the March 7, 1990 expiration of the Indiana Court of Appeals’
last extension, Mr. Knowles transmitted to Mr. Harkrider,
on behalf of Petitioners, a telecopy of Mr. Knowles’ pro-
posed appellant’s brief (“Proposed Brief’) which Mr.
Knowles proposed to file on behalf of Petitioners in the
appeal. Please see the sworn affidavit of Raymond Hark-
rider (“Mr. Harkrider’s Affidavit”), a copy of which was
attached to Petitioners’ Petition for Rehearing in the Indi-
ana Court of Appeals and appears as Exhibit A to App.
58-59. At the bottom of page four of the Proposed Brief,
Mr. Knowles stated the following:
“Although judgment was entered in favor of
defendants on five counts, this appeal involves
only Count 1 regarding the validity of the trans-
fer of Pearl’s 80A farm to Wilcox.”
A copy of page four of the Proposed Brief appears at
App. 9. As further verified in Mr. Harkrider’s Affidavit:
A. Prior to receipt of the Proposed Brief on the
afternoon of February 27, 1990, Petitioners had
experienced significant difficulty in obtaining
substantive information from Mr. Knowles con-
cerning Mr. Knowles’ impressions and strategies
in connection with the appeal, as well as the
proposed contents of the Proposed Brief;
B. Not until the afternoon of February 27, 1990,
upon receipt and review of the Proposed Brief,
did Petitioners have knowledge that Mr.
Knowles intended to expressly waive Peti-
tioners’ constitutional right, under Article VII,
Section 6 of the Indiana Constitution, to appel-
late review of the Warren Circuit Court’s judg-
ment against Petitioners on Counts II, III, IV and
V of the Five Count Civil Action;
C. The very next day, on February 28, 1990, Mr.
Harkrider, on behalf of Petitioners, contacted
Mr. Knowles by telephone and informed Mr.
Knowles that:
1. The Proposed Brief was unacceptable to
Petitioners;
2. Petitioners wished to exercise their con-
stitutional right to appellate review of the
Warren Circuit Court’s judgment against
8
Petitioners on all five counts of the Five
Count Civil Action;
3. Mr. Knowles was not authorized to file
or otherwise submit the Proposed Brief to
the Indiana Court of Appeals or to the
appellees in the appeal; and,
4. Mr. Knowles’ authorization to proceed
forward in the appeal was being withdrawn
by Petitioners, subject to Mr. Knowles’ and
Petitioners’ mutual agreement on the prepa-
ration of an appellant’s brief acceptable to
Petitioners.
On March 1, 1990, without the knowledge, authority
or approval of Petitioners, Mr. Knowles filed with the
Indiana Court of Appeals his fourth petition for extension
of time within which to file Petitioners’ appellant’s brief,
in which motion Mr. Knowles alleged, among other
things, the following:
“5. [The Court of Appeals] has seen fit to
award sanctions against appellants in previous
actions for (among other things) their ‘attempt
to reargue many of the same issues alrea
decided ...’ In Re Guardianship of Posey (1988),
Ind.App., 532 N.E.2d 9, 11.
6. [The Court of Appeals] has also criticized
previous briefs for ‘needless redundancy’, ‘argu-
ment which lacked cogency’, and for the manner
in which they were written which required ‘the
maximum ae of time by both [a apt
lee] and by this Court’ ”. In Re Guardianship of
Posey (1986), Ind.App. 513 N.E.2d 674, 677.
7. I have prepared the appellant’s brief in the
case at hand to the best of my ability and in
compliance with Indiana Rules of Appellate Pro-
cedure, but my client, Appellant, Raymond
9
Harkrider, disapproves of the brief and has
directed me to include several additional issues.
8. I respect my client’s wishes but I cannot in
good faith, include the issues which he has
demanded that I include.
9. I have advised my client that I will not
revise the brief to include allegedly omitted
issues and that I will be filing a motion to with-
draw my appearance if he cannot approve the
filing of the brief which I have prepared.
10. I represented in my third petition for exten-
sion of time that ‘absent extreme and unforeseen
circumstances, no further extensions will be
requested and appellant’s brief will be filed on
or before March 7, 1990.’ (See paragraph 10). I,
therefore, attach a copy of the proposed appel-
lant’s brief which has been rejected by appellant
and represent that I have done everything in my
power to comply with the current March 7th
deadline.
11. I believe that my withdrawal of appearance
would constitute an extreme and unforeseen cir-
cumstance that would justify an additional
extension of time to allow Mr. Harkrider the
opportunity to hire new counsel to prepare a
brief more to his liking.”
A copy of Mr. Knowles’ fourth motion for extension
appears et App. 16-20. On March 9, 1990, the Indiana
Court of Appeals entered its “Order” providing the fol-
lowing, in pertinent part:
“IT IS THEREFORE ORDERED as follows:
1. William W. Knowles, counsel for the appel-
lants, is directed to file with the Clerk of this
Court, the Brief of the Appellants which he has
prepared in this appeal and he is granted ten
(10) days from the date of this Order within
10
which to finalize the preparation of said Brief
and to file the same with the Clerk of this Court;
2. William W. Knowles is granted leave to
withdraw his appearance from his appeal after
the filing of the appellant’s Brief if he so desires;
3. The appellants’ Fourth Verified Petition for
Extension of Time to File Appellants’ Brief is
denied in all other respects.”
A copy of the March 9, 1990 Order appears at App. 21-22.
Upon learning of the filing of Mr. Knowles’ request
for a fourth extension of time and the entry of the Indiana
Court of Appeals’ March 9, 1990 Order, Petitioners, on or
about March 11, 1990, tendered to the Indiana Court of
Appeals, pro se, their “Objections to Filing ‘Brief of
Appellants’ Proposed by William W. Knowles — Request
for Time to Obtain Other Counsel, Etc.” (“Petitioners’
Objections”), in which Petitioners alleged and confirmed
the facts and circumstances alleged in Mr. Harkrider’s
Affidavit including, inter alia, that Mr. Knowles’ represen-
tational authority in the appeal was withdrawn by Peti-
tioners on February 28, 1990, and that Mr. Knowles’ filing
of the Proposed Brief was highly prejudicial to Peti-
tioners’ rights and interests. A copy of
Petitioners’ Objections appears at App. 26-33. In Peti-
tioners’ Objections, Petitioners requested of the Indiana
Court of Appeals the following relief:
“23.1 That Pearl’s family be permitted to file
these objections and requests;
23.2 To strike from the records of this Court
Knowles’ proposed BRIEF OF APPELLANTS;
wen wn AEN han we
neha “aaa en
oes
SA att ten A. il
11
23.3 In the alternative — to disregard Knowles’
proposed BRIEF OF APPELLANTS and any
inferences therefrom or effects thereof that
might be damaging to interests of Pearl’s family;
and
23.4 To grant Pearl’s family reasonable time to
locate and retain other counsel who will enter
appearance and represent Pearl’s family in these
proceedings and to grant such other counsel
reasonable time to prepare and file on behalf of
Pearl’s family appellants’ brief and other appro-
priate documents.” (Emphasis Supplied).
Please see App. 32-33, at pp. 5-6.
On March 13, 1990, without Petitioners’ knowledge,
authority or approval, Mr. Knowles filed with the Indiana
Court of Appeals his “Request for Relief from Court
Order and Fifth Verified Petition for Extension of Time to
File Appellants’ Brief, Pursuant to IND. R. APP. P. 14(A)”
(“Request for Relief’), a copy of which appears at App.
23-25. In his Request for Relief, Mr. Knowles alleged the
following:
“1. Pursuant to this Court’s Order of March 9,
1990, the undersigned, counsel for appellants, is
directed to file appellant’s brief by March 19,
1990.
2. Pursuant to Appellant, Raymond Hark-
rider’s instruction, the undersigned, counsel for
appellants, has been directed not to file the brief.
3. Tho undersigned owes a duty to the Court
and a duty to his client and said duties are in
conflict.
4. Thus, the undersigned files his Motion for
Leave to Withdraw Appearance contemporane-
ously herewith and requests that Appellant,
12
Raymond Harkrider, be granted additional time
to seek alternate counsel.”
Please see App. 24, at p. 2. With the Request for Relief,
Mr. Knowles also filed his Motion for Leave to Withdraw
Appearance, a copy of which appears at App. 35-37.
On March 19, 1990, the Indiana Court of Appeals
entered its “Order” providing, in pertinent part:
“And the Court, having examined said Request,
Petition and Motion, taking judicial notice of its
own records in this case and being duly advised,
now finds that the record of the proceedings
was filed in this cause on December 5, 1989; that
on December 8, 1989 the pS preorty filed their
first Petition for Extension of Time to File Brief
which was granted, to and including February 5,
1990; that on January 19, 1990 the appellants
filed their Second Petition for Extension of Time
to File Appellants’ Brief which was granted to
and including February 26, 1990, said extension
being ordered as “Final Extension”; that on Feb-
ruary 15, 1990 the appellants filed their Third
Petition for Extension of Time in Which to File
Appellants’ Brief which was granted to and
including March 7, 1990; that on March 1, 1990
the appellants filed their Fourth Petition for
Extension of Time to File Appellants’ Brief alleg-
ing therein that counsel for the appellants had
prepared, what in his professional judgment,
was an appropriate appellants’ brief in this
appeal, but that the appellant Raymond Hark-
rider, was not satisfied with the brief as counsel
had prepared it, insisting that various issues
which counsel had not presented should be
advanced and argued, which counsel asserted
he could not in good conscience advance and
argue to this Court in light of previous opinions
of this Court on previous appeals brought by
Dn ge ov
<< Cer hiiacanipagal
13
the appellant Harkrider, to which the appellees
filed their Appellees’ Objections; that attached
to the appellants’ Fourth Petition for Extension
of Time to File Appellants’ Brief, as an exhibit
thereto, was a copy of the proposed appellants’
Brief as had been prepared by William W.
Knowles, counsel for the appellants, as evidence
of his good faith effort to comply with the
Court’s order granting the appellants’ Third
Petition for Extension of Time to File Brief of
Appellants, to and including March 7, 1990; that
this Court, after having examined the tendered
draft of appellants’ brief as ooo, by attor-
ney William W. Knowles, and having found the
same to have been prepared in good workman-
ship manner and in accordance with the require-
ments of Appellate Rules 8.2 and 8.3, this Court
issued its Order on March 9, 1990, directing
attorney William W. Knowles to file said brief
with the Clerk of this Court within ten (10) days
from the date of said Order, and granted Wil-
liam W. Knowles leave to withdraw his appear-
ance for the appellants, if he so desired; that the
appellant Raymond Harkrider directed attorney
William W. Knowles not to comply with the March
9, 1990 Order of this Court and the appellant
Raymond Harkrider also advised the Court, by
telephone, that he had directed attorney William
W. Knowles not to file the appellants’ brief as
had been prepared by attorney William W.
Knowles; the Court further finds that William
W. Knowles has attempted to comply with the
Order of this Court heretofore issued on March
9, 1990, but that he has been prevented from
complying by reason of the directions from his
client, the appellant Raymond Harkrider; that
the appellants must accept the consequences of
Raymond Harkrider’s obstinance in refusing to
accept and in specifically directing attorney
William W. Knowles, not to file the appellants’
brief which William W. Knowles had prepared;
14
the Court further finds that William W. Knowles
has performed his duty to prepare the appel-
lants’ brief in this appeal, and that by reason of
the specific direction of his client, Raymond
Harkrider, not to file the appellants’ brief as he
had prepared it, said Wi liam W. Knowles
should be absolved from any and all responsibility
from the failure to timely file the appellants’
brief, on or before March 19, 1990, as previously
ordered be this Court; the Court further finds
that the Motion for Leave to Withdraw Appear-
ance filed by William W. Knowles should be
granted; the Court further finds that the Fifth
Verified Petition for Extension of Time to File
Appellants’ Brief should be denied.
IT IS THEREFORE ORDERED as follows:
1. The Request for Relief from Court Order is
granted, and that part of this Court’s Order
heretofore made and entered in this cause on
March 9, 1990, which directed William W.
Knowles to file with the Clerk of this Court the
brief of the appellants which he had prepared is
vacated;
2. The Motion for Leave to Withdraw Appear-
ance filed by William W. Knowles is granted and
he is absolved from any and all responsibility to file
a brief on behalf of the appellants in this cause and
from any liability 1 on ving not filed a brief on
behalf m the appellants, due to the specific direc-
tion and instruction from the Kasia Ray-
mond Harkrider;
3. The Fifth Verified Petition for Extension of
Time to File Appellants’ Brief is denied.
ALL OF WHICH IS ORDERED this 19th day of
March, 1990.” (Emphasis Supplied).
A copy of the March 19, 1990 Order appears at App.
38-41.
15
On March 20, 1990, the Indiana Court of Appeals
entered its “Order” dismissing Petitioners’ appeal for
failure to file an appellants’ brief on or before March 19,
1990, as previously ordered by the Indiana Court of
Appeals. A copy of the March 20, 1990 dismissal Order
appears at App. 42-43. On April 9, 1990, Petitioners filed
their Verified Petition for Rehearing in the Indiana Court
of Appeals seeking rehearing on the Subject Orders,
which petition was denied by the Indiana Court of
Appeals on April 26, 1990. A copy of the Verified Petition
for Rehearing and notice of order denying rehearing
appear at Apps. 44-61 and 62, respectively. On May 16,
1990, Petitioners filed a Petition to Transfer in the
Supreme Court of Indiana, which petition was denied by
the Supreme Court of Indiana on August 29, 1990. A copy
of the Petition to Transfer and notice of order denying
transfer appear at Apps. 63-77 and 78, respectively. The
allegations of error and constitutional infirmities dis-
cussed in this Petition for Certiorari were raised by the
Petitioner in both their Verified Petition for Rehearing
and Petition to Transfer. By means of this Petition (or
Certiorari, Petitioners now seek review of, and certiorari
in connection with, the Subject Orders.
a
ARGUMENT: REASONS RELIED ON
FOR ALLOWANCE OF THE WRIT
The Subject Orders Violate Article I, Section 12, And
Article VII, Section 6, Of The Indiana Constitution, And
Further Violate The 5th and 14th Amendments To The
United States Constitution, In Failing To Afford Pearl's
Family Their Constitutional Right To Due Process And
Equal Protection Under The Law As Well As Their
Right To One Appeal.
Perhaps no previsions in the history of American
jurisprudence have given rise to more judicial inquiry
16
than the due process mandates of the 5th and 14th
Amendments of the United States Constitution. Similarly,
a wealth of case law addresses analogous mandates
appearing at Article I, Section 12 of the Indiana Constitu-
tion. Throughout the rich body of case law surrounding
and eminating from these mandates has been recognized
an inalienable right with which no court can differ: It is
unconstitutional to deprive any individual of property
without giving notice and an opportunity for a hearing
appropriate to the nature of the case. Mullane v. Central
Hanover Trust Company (1950), 339 U.S. 306, 94 L.Ed. 865,
70 S.Ct. 652; Armstrong v. Manzo (1965), 380 U.S. 545, 14
L.Ed.2d 62, 85 S.Ct. 1187; Podgor v. Indiana University
(1978), 178 Ind.App. 245, 381 N.E.2d 1274; Whirlpool Cor-
poration v. Review Board of the Indiana Employment Security
Division (1982), Ind.App., 438 N.E.2d 775; Powers v. State
(1986), Ind. App., 498 N.E.2d 981; In the Matter of Briggs
(1987), Ind., 502 N.E.2d 879. In Indiana, this mandate has
been further defined as requiring:
(a) reasonable notice,
(b) an opportunity for a fair hearing, and
(c) the right to have a court of competent juris-
diction hear one’s cause.
Powers v. State, supra, at 986; Quoting: McKee v. Hasler
(1951), 229 Ind. 437, 98 N.E.2d 657, 668.
In the Subject Orders, the Indiana Court of Appeals,
acting on an ex parte basis as a finder of fact, reached
factual and legal conclusions concerning Mr. Knowles’
legal services to Petitioners, without providing Peti-
tioners a meaningful notice or opportunity to be heard,
all in violation of the 5th and 14th Amendments of the
17
United States Constitution and Article 1, Section 12 of the
Indiana Constitution. In attempting to exercise original
jurisdiction in an appellate forum, the Indiana Court of
Appeals also violated Article VII, Section 6 of the Indiana
Constitution.
By properly and timely initiating an appeal to the
Indiana Court of Appeals from the Warren Circuit Court’s
negative judgment, the Petitioners placed before the Indi-
ana Court of Appeals only those issues relating to the
merits of the Five Count Civil Action, not issues concern-
ing the propriety of their appellate counsel’s acts. While
Indiana courts have jurisdiction to decide all issues prop-
erly brought before them, as well as those ancillary to
such issues, Indiana courts are without jurisdiction to
determine or decide issues foreign to the proceeding:
“It is a general principal of the law that courts
have no power to adjudicate matters not
involved in the issues in causes pending before
them. Litigants do not place themselves for all
purposes under the control of the court, and it is
only the interests involved in the particular suit
that can be affected by the adjudication. Over
other matters, the court has no jurisdiction, and
any decree or judgmeni relating thereto is void.”
Hutts et al v. Martin (1893), 134 Ind. 587, 33 N.E. 676, 678;
Citing: Freem. Judgm. (14th Ed.), Section 120; McFadden v.
Ross (1886), 108 Ind. 512, 8 N.E. 161; Ringgenberg v. Hart-
man (1890), 124 Ind. 186, 24 N.E. 987; Morrison's Southern
Plaza Corp. v. Southern Plaza (1968), 144 Ind.App. 45, 242
N.E.2d 636; Heck v. Selig (1963), 134 Ind.App. 336, 188
N.E.2d 118. Indeed, the Indiana Court of Appeals has
stated and the Supreme Court of Indiana has affirmed:
18
“No question of law is better settled than that a
judgment which a court attempts to render upon
an issue which is not presented is a nullity.”
Moore v. Moore (1924), 81 Ind.App. 169, 173, 135 N.E. 362,
363; Citing: Wayne Pike Company v. Hammons, et al (1891),
129 Ind. 368, 27 N.E. 487; Trook v. Crouch (1924), 82
Ind.App. 309, 137 N.E. 773; Christ v. Jovanoff (1926),
Ind.App. 676, 151 N.E. 26, 152 N.E. 2; Hutts, supra; Ferger
v. Perin Oil Refining Company, Inc. (1950), 120 Ind.App.
174, 90 N.E.2d 131.
By means of the Subject Orders, the Indiana Court of
Appeals reached the following determinations upon
issues never properly brought before the Indiana Court of
Appeals and upon which Petitioners never had an oppor-
tunity to be heard:
1. The Proposed Brief was prepared in “good
workmanship manner”;
2. Mr. Harkrider “directed attorney William W.
Knowles not to comply with the March 9, 1990
Order” of the Indiana Court of Appeals;
3. Mr. Knowles attempted to comply with the
March 9, 1990 O-“er of the Indiana Court of
Appeals, but w.s “prevented from complying
by reason of the direction of the Appellant, Ray-
mond Harkrider”;
4. The disagreement of Petitioners and Mr.
Knowles concerning the appropriate contents of
the Petitioners’ appellant’s brief was due to Mr.
Harkrider’s “obstinance”, for which Petitioners
should suffer and “accept the consequences”;
5. Mr. Knowles “has performed his duty to
prepare the appellant’s brief in this appeal”;
6. Mr. Knowles “should be absolved from any
and all pin te nang from the failure to timely
file the appellant's brief’.
19
With respect to each of the above findings, the Indi-
ana Court of Appeals had only the self-serving, ex parte
statements of Mr. Knowles before it. It is critical to note
that after February 28, 1990, Mr. Knowles’ representa-
tional authority to act on behalf of Petitioners in Peti-
tioners’ appeal was withdrawn by the Petitioners.
Despite this fact, Mr. Knowles continued to file with the
Indiana Court of Appeals unauthorized pleadings and
papers, including the Proposed Brief, solely for the pur-
pose of attempting to establish for his own benefit, his
performance of his responsibilities to the Indiana Court
of Appeals and Petitioners. The filing of self-serving,
unauthorized pleadings has previously been made the
subject of an Indiana attorney discipline action. In the
Matter of Briggs, supra. In any case, given the self-serving
nature of Mr. Knowles’ filings reflected on their face,
none of the filings made after February 28, 1990 can be
reasonably considered filings made on behalf of Peti-
tioners. Thus, after February 28, 1990, Petitioners were
unrepresented in their appeal and were never heard in
connection with any of the matters addressed in the
Subject Orders.
It is also critical in this Court’s analysis of Peti-
tioners’ Petition for Certiorari to recognize that the Indi-
ana Court of Appeals never had before it a justiciable
controversy concerning whether Mr. Knowles fulfilled his
responsibilities to his clients in connection with the
appeal. While it is not the purpose of this Petition for
Certiorari to discuss in detail the merits of that issue, it
suffices to say that where an attorney presents a “last
minute” appellant’s brief waiving appeal on four of five
appealable counts of the underlying claim, after seeking
20
three separate extensions of time within which to file
such appellant’s brief, he may reasonably expect to have
his actions and/or omissions scrutinized. One thing is
clear, upon learning on February 27, 1990 that Mr.
Knowles proposed to waive four of five appealable
counts, Petitioners had insufficient time within which to
hire substitute counsel to review the proceedings and
prepare an acceptable appellant’s brief. Issues concerning
whether Mr. Knowles’ acts and omissions surrounding
these circumstances were responsible and appropriate
were not before the Indiana Court of Appeals in a justi-
ciable form which would confer upon the Indiana Court
of Appeals either original or appellate jurisdiction to
decide whether Mr. Knowles should or should not be
absolved of liability in connection with these acts. Peti-
tioners were given no opportunity to be heard concerning
their “version of the facts”, nor to even admit or deny
any of the self-serving statements made by Mr. Knowles,
not even a party to the appeal, in his post-February 28,
1990 filings. Indeed, in a desperate attempt to inform the
Indiana Court of Appeals that their lawyer was not
speaking on their behalf, Petitioners tendered to the Indi-
ana Court of Appeals, pro se, Petitioners’ Objections, in
. which Petitioners requested leave to voice their position
concerning these matters. To date, the Indiana Court of
Appeals has neither ruled upon Petitioners’ Objections,
nor granted leave for Petitioners to even file them.
Had Petitioners been given notice and an oppor-
tunity to be heard concerning the matters addressed in
the Subject Orders, they would have shown, as verified in
Mr. Harkrider’s Affidavit, that:
21
1. Petitioners had experienced significant difficulty in
obtaining substantive information from Mr. Knowles con-
cerning Mr. Knowles’ impressions and strategies in con-
nection with their appeal, as well as the proposed
contents of their appellants’ brief;
2. Petitioners did not learn of Mr. Knowles’ intention to
waive four of the five appealable counts until February
27, 1990;
3. Immediately upon learning of Mr. Knowles’ intention
to waive four of the five appealable counts, Petitioners,
on February 28, 1990, informed Mr. Knowles that:
a. The Proposed Brief was unacceptable;
b. Petitioners wished to appeal all five appeal-
able counts;
c. Mr. Knowles was not authorized to submit
the Proposed Brief to the Indiana Court of
Appeals;
d. Mr. Knowles was not authorized to proceed
forward until and unless he and Petitioners
were able to reach a mutual agreement concern-
ing the appropriate contents of Petitioners’
appellants’ brief.
4. Mr. Harkrider’s direction to Mr. Knowles not to sub-
mit the Proposed Brief came before the entry of the Indi-
ana Court of Appeals’ March 9, 1990 Order and Mr.
Harkrider never directed Mr. Knowles to disregard or
otherwise violate the Court of Appeals’ March 9, 1990
Order.
From the above, it is inescapable that issues concern-
ing the propriety of Mr. Knowles’ acts and omissions, and
any potential liability flowing therefrom, were not
22
properly before the Indiana Court of Appeals, thus
depriving the Indiana Court of Appeals of both original
and appellate jurisdiction to determine such issues. More-
over, even had such issues been properly before the Indi-
ana Court of Appeals, Petitioners received no appropriate
notice or opportunity to be heard concerning these mat-
ters. Had they received such notice and opportunity, Peti-
tioners would have demonstrated to the Indiana Court of
Appeals’ satisfaction that their failure to timely file their
appellants’ brief was due not to Mr. Harkrider’s “obsti-
nance”, but rather to Petitioners’ good faith refusal to
waive their constitutional right to one appeal on all five
appealable counts of the Five Count Civil Action. It is
well settled that “to punish a person for exercising a
constitutional right is a due process violation of the most
basic sort.” Borden Kirscher v. Hayes (1978), 434 U.S. 357,
98 S.Ct. 663, 54 L.Ed.2d 604. |
The injustice of the Indiana Court of Appeals’ ex parte
ruling concerning the propriety of Mr. Knowles’ acts or
omissions is vividly demonstrated with reference to a
related proceeding. At App. 79-80 appears a copy of an
Amended Complaint, filed against Mr. Harkrider by Mr.
Knowles, seeking payment of Twenty-Three Thousand
- Three Hundred Seventy-One and 16/100 Dollars
($23,371.16), together with interest and costs, for legal
fees and expenses allegedly incurred by Mr. Knowles in
preparation of the Proposed Brief. App. 81-86 is a copy of
a “Motion for Summary Judgment” and “Memorandum
in Support of Motion” filed by Mr. Knowles in that pro-
ceeding, in which Mr. Knowles argues that he is entitled
to summary judgment based upon the Indiana Court of
Appeals’ holding that he had “performed his duty to
eT TRE eR eT TT ee ©
23
prepare the Appellants’ Brief.” Please see App. 84. The
value, if any, of Mr. Knowles’ services, in light of the
dismissal of Petitioners’ appeal due to Mr. Knowles’
attempted waiver, will be at issue in that proceeding in
the form of affirmative defenses and counterclaims raised
by Mr. Harkrider. While, as previously noted, a court’s
ruling on issues not before the court is null and void
against the parties, Mr. Knowles has demonstrated his
intention to argue that the Indiana Court of Appeals’
purported absolution of Mr. Knowles in the Subject
Orders forecloses affirmative defenses or counterclaims
otherwise available to Mr. Harkrider in the related pro-
ceeding. If Mr. Knowles is to be absolved of liability in
connection with his acts or omissions in representing
Petitioners, it should only be after a full and complete
judicial inquiry based upon the facts, circumstances and
arguments of both parties, not simply the ex parte, self-
serving, unauthorized pleadings of one. It is axiomatic
that the Indiana Court of Appeals could not have con-
ducted such an inquiry, prior to purportedly absolving
Mr. Knowles of responsibility, without granting Peti-
tioners the reasonable notice and opportunity to be heard
to which they were constitutionally entitled.
While it is undeniable that the Indiana Court of
Appeals possesses the authority and discretion to enforce
its rules and manage cases brought before it, as well as to
take judicial notice of the quality of lawyer’s work prod-
uct filed in its records, it is equally undeniable that no
court has the discretion to amend or disregard constitu-
tional mandates or exercise a judicial discretion exceed-
ing the limitations imposed thereby. Zehrlaut v. State
(1951), 230 Ind.App. 175, 102 N.E.2d 203. The Indiana
24
Court of Appeals exceeded and abused its discretion in
foreclosing Petitioners’ constitutional right to one appeal
in this proceeding and by deciding against Petitioners’
issues which were never properly before the Indiana
Court of Appeals and in connection with which Peti-
tioners never received notice or an opportunity to be
heard.
,%
» i
CONCLUSION
By means of the Subject Orders, the Indiana Court of
Appeals denied Petitioners their right to one appeal from
the Warren Circuit Court’s judgment and punished Peti-
tioners for their unwillingness to waive this right. More-
over, by means of the Subject Orders, the Indiana Court
of Appeals made factual and legal determinations upon
issues effecting Petitioners’ rights without ever having
these issues properly brought before the Indiana Court of
Appeals. Petitioners never received notice or an oppor-
tunity to be heard concerning the propriety of Mr.
Knowles’ acts in connection with the appeal, nor concern-
ing the cause for Petitioners’ inability to timely file their
appellant’s brief therein. The only allegations before the
' Indiana Court of Appeals on these issues were ex parte
ones, of a non-party, Mr. Knowles, who was acting at the
time of the allegations in a manner designed to protect
his own interests, not those of his clients. Without having
a justiciable controversy before it, the Indiana Court of
Appeals was without jurisdiction, either appellate or
original, to determine these issues. In seeking to exercise
original jurisdiction and decide nonjusticiable issues
without appropriate notice and hearing, the Indiana
25
Court of Appeals violated Petitioners’ rights under the
Indiana and United States Constitutions. As a matter of
national judicial policy, this honorable Court should not
countenance by any court, state or federal, trial or appel-
late, such blatant disregard for litigant’s constitutional
rights.
Accordingly, and for all of the foregoing reasons,
justice requires that this honorable Court:
1. Grant Petitioners’ Petition for Certiorari;
2. Vacate and set aside the Indiana Court of
Appeals’ Orders of March 19, 1990 and March
20, 1990;
3. Issue a writ of certiorari to the Supreme
Court of Indiana mandating further and appro-
priate proceedings consistent with such writ;
and,
4. Grant any and all other relief which it deems
proper in the premises.
Respectfully submitted,
Douc.as R. Brown
Stewart & IRwIN
Two Market Square Center,
Suite 1100
251 East Ohio Street
Indianapolis, Indiana 46204-2118
317-639-5454
App. 1
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO. 86A04-8912-CV-544
GEORGIA CORY, BETTY M.
ROGERS AND RAYMOND
HARKRIDER,
APPEAL FROM
THE WARREN
COUNTY
CIRCUIT COURT
o- CAUSE NO.
)
)
)
Plaintiffs-Appellants,
) 83-C-168
KATHRYN WILCOX and PHILIP
E. WILCOX, as Personal ) aaa
Representative of the Estate HALL JUDGE
of Floyd E. Wilcox, Deceased; ‘
KATHRYN WILCOX, individually, )
ROY McCANDLISH and RUBY ‘
)
)
McCANDLISH,
Defendants-Appellees.
VERIFIED PETITION FOR EXTENSION OF
TIME TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
(Filed Dec. 8, 1989)
William W. Knowles Stephen R. Pennell, Esquire
BAKER, ORBISON, BALES STUART & BRANIGAN
& KNOWLES The Life Building
811 South Rangeline Road Post Office Box 1010
Carmel, IN 46032 Lafayette, IN 47902
317/848-4360 317-423-1561
Attorney for Appellants Attorney for Appellees
App. 2
VERIFIED PETITION . OR EXTENSION OF
TIME TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
Comes now William W. Knowles, attorney for appel-
lants, and petitions the Court to extend the time in which
he has to file appellant’s brief. In support of this petition,
William W. Knowles alleges and says:
1. The Record of the Proceedings was filed on
December 5, 1989, and consists of 1,404 pages in 7 vol-
umes.
2. I was not the attorney of record for the appellants
in the trial court proceedings in this case and | did not
participate directly or indirectly in said trial court pro-
ceedings.
3. The Record of the Proceedings was prepared for
filing by attorney Donn H. Wray, who represented the
appellants in the trial court proceeding.
4. I received the Record of the Proceedings for the
first time on December 6, 1989, and said Record is the
first and only documentation which I have received
_ regarding this appeal.
5. I have had a vacation out-of-state scheduled for
the holidays for several months.
6. Due to the voluminous nature of the Record, my
complete unfamiliarity with it, and my limited time in the
office through the holidays and the press of other busi-
ness in the office, thirty (30) days is an insufficient
amount of time in which to prepare the appellant's brief.
App. 3
WHEREFORE, attorney for appellants respectfully
requests a 60-day extension, to and including March 7,
1990, in which to file appellant’s brief.
I affirm under the penalties for perjury that the fore-
going representations are true.
BAKER, ORBISON, BALES
& KNOWLES
/s/ William W. Knowles
William W. Knowles
Attorney for Appellants
CERTIFICATE OF SERVICE
I hereby certify that on the 7 day of December, 1989, a
true and complete copy of the preceding pleading was
served by depositing a copy of same in the U.S. mail,
postage prepaid, addressed as follows:
Mr. Stephen R. Pennell
STUART & BRANIGAN
The Life Building
P. O. Box 1010
Lafayette, IN 47902
/s/ William W. Knowles
William W. Knowles
William W. Knowles
BAKER, ORBISON, BALES & KNOWLES
811 South Rangeline Road
Carmel, IN 46032
317-848-4360
App. 4
STATE OF INDIANA
CLERK OF THE SUPREME COURT
Court or APPEALS AND Tax Court
DANIEL ROCK HEISER, CLERK
217 STATE HOUSE
SEAL
INDIANAPOLIS, 46204
TELEPHONE 317-232-1930
WILLIAM WESLEY KNOWLES
811 S. RANGELINE RD. '
CARMEL IN 46032-0000
Cause Number
86A04-8912-CV-00544
LOWER CAUSE
83C168
CORY, GEORGIA ET AL VS WILCOX, KATHRYN ET AL
ESTATE OF:
You are hereby notified that the COURT OF
APPEALS has on this day 12/18/89 APPELLANT’S PETI-
TION FOR EXTENSION OF TIME TO FILE BRIEF
GRANTED TO AND INCLUDING FEBRUARY 5, 1990.
WESLEY W. RATLIFF, JR., CHIEF JUDGE.
WITNESS my name and the seal of said Court.
this day of 18TH DECEMBER, 1989
/s/ Dan Heiser
Clerk Supreme Court, Court
of Appeals and Tax Court
Ce
App. 5
APPELLANTS Second FINAL EXTENSION
PETITION FOR EXTENSION
OF TIME TO FILE BRIEF
GRANTED TO AND INCLUDING FEBRUARY 26 1990
Chief Judge
/s/ Wesley W. Ratliff, Jr.
1-24-90
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO. 86A04-8912-CV-544
GEORGIA CORY, BETTY M.
ROGERS AND RAYMOND
HARKRIDER,
APPEAL FROM
THE WARREN
COUNTY
CIRCUIT COURT
ve, CAUSE NO.
)
)
)
Plaintiffs-Appellants, ‘
KATHRYN WILCOX and PHILIP ) cae
an ILI
E. WILCOX, as Personal ‘ iS rotgu
Representative of the Estate ) HALL JUDGE
of Floyd E. Wilcox, Deceased; ) :
KATHRYN WILCOX, individually,
ROY McCANDLISH and RUBY )
)
)
McCANDLISH,
Defendants-Appellees.
SECOND VERIFIED PETITION FOR EXTENSION OF
TIME TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
(Filed Jan. 19, 1990)
App. 6
William W. Knowles Stephen R. Pennell, uire
BAKER, ORBISON, BALES ART & BRANIGA
& KNOWLES The Life Building
811 South Rangeline Road Post Office Box 1010
Carmel, IN 46032 Lafayette, IN 47902
317/848-4360 317-423-1561
Attorney for Appellants Attorney for Appellees
VERIFIED PETITION FOR EXTENSION OF
TIME TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
Comes now William W. Knowles, attorney for appel-
lants, and petitions the Court to extend the time in which
he has to file appellant’s brief. In support of this petition,
William W. Knowles alleges and says:
1. The Record of the Proceedings was filed on
December 5, 1989, and consists of 1,404 pages in 7 vol-
umes.
2. I was not the attorney of record for the appellants
in the trial court proceedings in this case and | did not
participate directly or indirectly in said trial court pro-
ceedings.
3. The Record of the Proceedings was prepared for
’ filing by attorney Donn H. Wray, who represented the
appellants in the trial court proceeding.
4. I received the Record of the Proceedings for the
first time on December 6, 1989, and said Record is the
first and only documentation which I have received
regarding this appeal.
5. I vacationed out-of-state over the Christmas holi-
days.
App. 7
6. On December 7, 1989, I requested an extension of
time to March 7, 1990, to file appellant’s brief and on
December 18, 1989, I was granted an extension “to and
including February 5, 1990”.
7. I have now studied four of the seven volumes of
the record. It is a slow and tedious process, but I feel |
owe it to my clients and to this Court to study every line.
8. Due to the voluminous nature of the Record, my
complete unfamiliarity with it, my limited time in the
office through the holidays and the press of other busi-
ness in the office, the original extension to February 5,
1990, is an insufficient amount of time in which to pre-
pare appellant’s brief.
WHEREFORE, attorney for appellants respectfully
requests an additional 30-day extension, to and including
March 7, 1990, within which to file appellant's brief.
I affirm under the penalties for perjury that the fore-
going representations are true.
BAKER, ORBISON, BALES
& KNOWLES
/s/ William W. Knowles
William W. Knowles
Attorney for Appellants
App. 8
CERTIFICATE OF SERVICE
I hereby certify that on the 17 day of January, 1990, a
true and complete copy of the preceding pleading was
served by depositing a copy of same in the U.S. mail,
postage prepaid, addressed as follows:
Mr. hen R. Pennell
STU & BRANIGAN
The Life Building
P. O. Box 1010
Lafayette, IN 47902
/s/ William W. Knowles
m W. Knowles
William W. Knowles
BAKER, ORBISON, BALES & KNOWLES
811 South Rangeline Road
Carmel, IN 2
317 / 848-4360
a
—— me ee © eee
App. 9
Page 4 of Proposed Brief
* * *
It is therefore ordered, adjudged and
decreed based upon the foregoing Findings and
Conclusions that ti the plaintiffs herein shall take
nothing by way of their complaint under any of
the counts therein and therefore Judgment
should be and hereby is entered for the defen-
dants. It is lly ordered that the “deed in
escrow” of November 9, 1977 be and hereby is
declared valid; no additional accounting is
required of the estate of Mr. Wilcox (Mr. Wilcox
having died subsequent to Mrs. Posey); no con-
structive trust is created for the benefit of the
estate of Mrs. Posey; no error was committed by
the appointment of Mr. Wilcox as Executor of
the estate of Mrs. Posey; and the Last Will and
Testament of Mrs. Posey executed April 16, 1980
is hereby adjudged valid and the probate
thereof confirmed.
Judgment is therefore entered in favor of
Defendants and against Plaintiffs. All at Plain-
tiffs’ costs with this matter to be remanded to
the Tippecanoe Circuit Court for further pro-
ceedings not inconsistent with the Findings Of
Fact, Conclusions and Judgment entered herein.
Clerk is directed to forward file marked
copies of this Order to counsel of record.
Entered this 23rd day of March, 1989.
(R. vol.4 at 966-67)
Although judgment was entered in favor of defen-
dants on five counts, this appeal involves only Count 1
regarding the validity of the transfer of Pearl’s 80A farm
to Wilcox.
* » +
App. 10
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO. 86A04-8912-CV-544
KATHRYN WILCOX, individually,
ROY McCANDLISH and RUBY
McCANDLISH,
Defendants-Appellees.
GEORGIA CORY, BETTY M. ) APPEAL FROM
ROGERS AND RAYMOND ) THE WARREN
HARKRIDER, ) COUNTY
oe ) CAUSE NO.
WILCOX and Bites Heocy
KATHRYN and PHILIP
E. WILCOX, as Personal / Bee pg
Representative of the Estate ) HALL JUDGE
of Floyd E. Wilcox, Deceased; )
)
)
)
)
THIRD VERIFIED PETITION FOR EXTENSION OF
TIME TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
(Filed Feb. 15, 1990)
William W. Knowles Stephen R. Pennell, Esquire
BAKER, ORBISON, BALES STUART & BRANIGAN
& KNOWLES The Life Building
811 South Rangeline Road Post Office Box 1010
Carmel, IN 46032 Lafayette, IN 47902
317/848-4360 317-423-1561
Attorney for Appellants Attorney for Appellees
App. 11
THIRD PETITION FOR EXTENSION OF
TIME TO FILE APPELLANT'S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
Comes now William W. Knowles, attorney for appel-
lants, and petitions the Court to extend the time in which
he has to file appellant's brief. In support of this petition,
William W. Knowles alleges and says:
1. This is the third petition for extension of time to
file appellant’s brief, the first and second petitions having
been filed on December 8, 1989, and January 19, 1990,
respectively. This Court’s Order granting the second
extension of time stated that it would be the final exten-
sion. .
2. The Record of the Proceedings was filed on
December 5, 1989, and consists of 1,404 pages in 7 vol-
umes.
3. Iwas not the attorney of record for the appellants
in the trial court proceedings in this case and | did not
participate directly or indirectly in said trial court pro-
ceedings.
4. I was not involved in any way with previous
appeals which are at least tangentially related to this
appeal which are reported as follows:
a. Posey v. Wilcox (1983) Ind.App., 451
N.E.2d 1135 (unpublished Memorandum Opin-
ion July 20, 1983).
b. In re the Guardianship of Posey (1986)
Ind.App., 513 N.E.2d 674.
c. Posey v. Lafavette Bank & Trust Co. (1987)
Ind., 512 N.E.2d 155.
App. 12
d. In re Guardianship of Posey (1988)
Ind.App., 532 N.E.2d 9.
e. In re Estate of Posey No. 79A02-8801-
CV-8, Opinion For Publication issued January
24, 1990.
5. This Court has seen fit to award sanctions against
appellants in previous actions for (among other things)
their “attempt to reargue many of the same issues already
decided .. .” In re Guardianship of Posey (1988) Ind.App.,
532 N.E.2d 9, 11.
6. This Court has also criticized previous briefs for
“needless redundancy”, “argument which lacked
cogency”, and for the manner in which they were written
which required “the maximum expenditure of time by
both [appellee] and by this Court”. In re Guardianship of
Posey (1986) Ind.App., 513 N.E.2d 674, 677.
7. In addition to the voluminous record in the
instant appeal, counsel has also had to study the five
previous appeals in order to avoid reargument of issues
addressed in those previous appeals.
8. My associate and I have expended approximately
187 hours to date in studying the record, studying the
previous five appeals and honing the issues for the
instant appeal.
9. It is the desire and expectation that appellant's
brief will be in conformance with appellate rules, will not
reargue issues previously ruled upon, will be concise and
cogent, and will be written in a matter calculated to
require the minimum expenditure of time by both the
appellee and by this Court.
App. 13
10. Appellant realizes that two previous petitions
for extension of time to file appellant’s brief have been
filed, but would request only that he be granted a 9-day
extension to March 7, 1990, which was the requested
extension in the first petition for extension of time, and
would represent that, absent extreme and unforeseen cir-
cumstances, no further extensions will be requested and
appellant’s brief will be filed on or before March 7, 1990.
WHEREFORE, attorney for appellants respectfully
requests an additional 9-day extension, to and including
March 7, 1990, within which to file appellant’s brief.
I affirm under the penalties for perjury that the fore-
going representations are true.
BAKER, ORBISON, BALES &
KNOWLES
/s/ William W. Knowles
William W. Knowles
Attorney for Appellants
CERTIFICATE OF SERVICE
I hereby certify that on the 15 day of February, 1990,
a true and complete copy of the preceding pleading was
served by depositing a copy of same in the U.S. mail,
postage prepaid, addressed as follows:
Mr. Stephen R. Pennell
STUART & BRANIGAN
The Life Building
P. O. Box 1010
Lafayette, IN 47902
App. 14
/s/ William W. Knowles
m W. Knowles
William W. Knowles
BAKER, ORBISON, BALES & KNOWLES
811 South Rangeline Road
Carmel, IN 46032
317-848-4360
nee
App. 15
STATE OF INDIANA
CLERK OF THE SUPREME COURT
Court oF APPEALS AND TAx Court
DANIEL ROCK HEISER, CLERK
217 STATE HOUSE
SEAL
INDIANAPOLIS, 46204
TELEPHONE 317-232-1930
WILLIAM WESLEY KNOWLES
811 S. RANGELINE RD,
CARMEL IN _ 46032-0000
Cause Number
86A04-8912-CV-00544
LOWER CAUSE
83C168
CORY, GEORGIA ET AL VS WILCOX, KATHRYN ET AL
ESTATE OF:
You are hereby notified that the COURT OF
APPEALS has on this day 2/22/90 APPELLANT'S PETI-
TION FOR EXTENSION OF TIME TO FILE BRIEF
GRANTED TO AND INCLUDING MARCH 7, 1990.
WESLEY W. RATLIFF, JR., CHIEF JUDGE.
WITNESS my name and the seal of said Court,
this day of 22ND FEBRUARY, 1990
/s/ Dan Heiser
Clerk Supreme Court, Court
of Appeals and Tax Court
App. 16
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO. 86A04-8912-CV-544
GEORGIA CORY, BETTY M.
ROGERS and RAYMOND
HARKRIDER,
Plaintiffs-Appellar:ts,
APPEAL FROM
THE WARREN
COUNTY
CIRCUIT
vs. COURT
)
)
)
)
)
)
)
KATHRYN WILCOX and PHILIP
E. WILCOX, as Personal ee a:
Representative of the Estate of
Floyd E. Wilcox, Deceased; )
KATHRYN WILCOX, individually, )
ROY McCANDLISH and RUBY )
McCANDLISH, )
)
Defendants-Appelilees.
HONORABLE
ROBERT M.
HALL, JUDGE
FOURTH VERIFIED PETITION FOR EXTENSION
OF TIME TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
(Filed Mar 1, 1990)
William W. Knowles Stephen R. Pennell,
BAKER, ORBISON, BALES Esquire
& KNOWLES STUART & BRANIGAN
811 South Rangeline Road The Life Building
Carmel, IN 46032 | Post Office Box 1010
317/848-4360 Lafayette, IN 47902
317/423-1561
Attorney for Appellees
Attorney for Appellants
fA Rie no eects i
App. 17
FOURTH PETITION FOR EXTENSION OF TIME
TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
Comes now William W. Knowles, attorney for appel-
lants, and petitions the Court to extend the time in which
he has to file appellant’s brief. In support of this petition,
William W. Knowles alleges and says:
1. This is the fourth petition for extension of time to
file appellant’s brief, the first, second and third petitions
having been filed on December 8, 1989, and January 19,
and February 15, 1990, respectively.
2. The Record of the Proceedings was filed on
December 5, 1989, and consists of 1,404 pages in 7 vol-
umes.
3. Iwas not the attorney of record for the appellants
in the trial court proceedings in this case and I did not
participate directly or indirectly in said trial court pro-
ceedings.
4. I was not involved in any way with previous
appeals which are at least tangentially related to this
appeal which are reported as follows:
a. Posey v. Wilcox (1983) Ind.App., 451
N.E.2d 1135 (unpublished Memorandum Opin-
ion July 20, 1983).
b. In re the Guardianship of Posey (1986)
Ind.App., 513 N.E.2d 674.
c. Posey v. Lafayette Bank & Trust Co. (1987)
Ind., 512 N.E.2d 155.
d. In re Guardianship of Posey (1988)
Ind.App., 532 N.E.2d 9.
App. 18
e. In re Estate of Posey No. 79A02-8801-
CV-8, Opinion For Publication issued January
24, 1990.
5. This Court has seen fit to award sanctions against
appellants in previous actions for (among other things)
their “attempt to reargue many of the same issues already
decided ...” In re Guardianship of Posey (1988) Ind.App.,
532 N.E.2d 9, 11.
6. This Court has also criticized previous briefs for
“needless redundancy”, “argument which lacked
cogency”, and for the manner in which they were written
which required “the maximum expenditure of time by
both [appellee] and by this Court”. In re Guardianship of
Posey (1986) Ind.App., 513 N.E.2d 674, 677.
7. I have prepared the Appellant’s Brief in the case
at hand to the best of my ability and in compliance with
Indiana Rules of Appellate Procedure, but my client,
Appellant, Raymond Harkrider, disapproves of the brief
and has directed me to include several additional issues.
8. I respect my client’s wishes but I cannot in good
faith, include the issues which he has demanded that |
include.
9. Ihave advised my client that I will not revise the
brief to include allegedly omitted issues and that I will be
filing a motion to withdraw my appearance if he cannot
approve the filing of the brief which I have prepared.
10. I represented in my third petition for extension
of time that “absent extreme and unforeseen circum-
stances, no further extensions will be requested and
appellant’s brief will be filed on or before March 7, 1990.”
(See Paragraph 10). I, therefore, attach a copy of the
App. 19
proposed appellant’s brief which has been rejected by
appellant and represent that I have done everything in
my power to comply with the current March 7th dead-
line.
11. I believe that my withdrawal of appearance
would constitute an extreme and unforeseen circum-
stance that would justify an additional extension of time
to allow Mr. Harkrider the opportunity to hire new coun-
sel to prepare a brief more to his liking.
WHEREFORE, I would ask this Court to grant an
additional extension of time which would allow me to
withdraw my appearance and allow my client to retain
other counsel.
I affirm under the penalties for perjury that the fore-
going representations are true.
BAKER, ORBISON, BALES
& KNOWLES
/s/ William W. Knowles
am W. Knowles
Attorney for Appellants
CERTIFICATE OF SERVICE
I hereby certify that on the 1 day of March, 1990, a
true and complete copy of the preceding pleading was
served by depositing a copy of same in the U.S. mail,
postage prepaid, addressed as follows:
Mr. Stephen R. Pennell
STUART & BRANIGAN
The Life Building
P.O. Box 1010
Lafayette, IN 47902
App. 20
/s/ William W. Knowles
m W. Knowles
William W. Knowles
BAKER, ORBISON, BALES & KNOWLES
811 South Rangeline Road
Carmel, IN 46032
317/848-4360
(ATTACHMENT OMITTED)
App. 21
IN THE
COURT OF APPEALS OF INDIANA
FOURTH DISTRICT
GEORGIA CORY, BETTY
M. ROGERS and RAYMOND
HARKRIDER,
Appellant,
ee ee
Vs.
KATHRYN WILCOX and PHILIP } SA02E NO.
E. WILCOX, as Personal ) CV-544
Representative of the Estate of )
Floyd E. Wilcox, Deceased, )
KATHRYN WILCOX, individually, )
ROY McCANDLISH and RUBY )
McCLANDLISH, )
)
Appellees.
ORDER
(Filed Mar. 9, 1990)
Comes now William W. Knowles, attorney for the
appellants, and files herein his Fourth Verified Petition
for Extension of Time to File Appellant’s Brief, alleging
therein that he has prepared the appellants’ Brief in this
cause but that his client, appellant Raymond Harkrider,
disapproves of the brief and has directed him to include
several additional issues which counsel alleges that he
cannot in good faith include and counsel for the appel-
lants attaches to said Petition as an exhibit thereto a copy
of the Brief of Appellants which he has prepared and
prays for an additional extension of time in order to grant
the appellants the opportunity to hire new counsel in the
event the appellants do not approve of the filing of the
brief which counsel has prepared, which said Fourth
App. 22
Verified Petition is more particularly in the following
words and figures, to-wit:
(H. 1.)
And the Court, having examined these matters, and
being duly advised, now finds that William W. Knowles,
counsel for the appellants, should be directed to file with
the Clerk of this Court the brief of the appellants which
he has prepared, that he should be given ten (10) days in
which to finalize the preparation of said Brief and file the
same, and thereafter he should be granted leave to with-
draw his appearance for the appellants if he so desires.
IT IS THEREFORE ORDERED as follows:
1. William W. Knowles, counsel for the appellants,
is directed to file with the Clerk of this Court, the Brief of
the Appellants which he has prepared in this appeal and
he is granted ten (10) days from the date of this Order
within which to finalize the preparation of said Brief and
to file the same with the Clerk of this Court;
2. William W. Knowles is granted leave to withdraw
his appearance from his appeal after the filing of the
appellant’s Brief if he so desires;
3. The appellants’ Fourth Verified Petition for
Extension of Time to File Appellants’ Brief is denied in all
other respects.
ORDERED this 9th day of March, 1990.
/s/ eater W. Ratliff, Jr.
App. 23
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO. 86A04-8912-CV-544
GEORGIA CORY, BETTY
M. ROGERS and RAYMOND APPEAL FROM
McCANDLISH,
Defendants-A ppellees.
)
)
HARKRIDER, ) THE WARREN
oe ) COUNTY
Plaintiffs-Appellants, ) CIRCUIT
vs. ) COURT
KATHRYN WILCOX and PHILIP ?
E. WILCOX, as Personal ‘ “a “‘
Representative of the Estate of )
Floyd E. Wilcox, Deceased;
KATHRYN WILCOX, individually, } po ara
)
)
REQUEST FOR RELIEF FROM COURT ORDER AND
FIFTH VERIFIED PETITION FOR EXTENSION
OF TIME TO FILE APPELLANT’S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
(Filed Mar 13, 1990)
William W. Knowles Stephen R. Pennell,
BAKER, ORBISON, BALES Esquire
& KNOWLES STUART & BRANIGAN
811 South Rangeline Road The Life Building
Carmel, IN 46032 Post Office box 1010
317/848-4360 Lafayette, IN 47902
317/423-1561
Attorney for Appellees
Attorney for Appellants
App. 24
REQUEST FOR RELIEF FROM COURT ORDER AND
FIFTH PETITION FOR EXTENSION
OF TIME TO FILE APPELLANT'S BRIEF
PURSUANT TO IND.R.APP.P. 14(A)
Comes now William W. Knowles, attorney for appel-
lants, and files his Fifth Verified Petition for Extension of
Time to File Appellant’s Brief. In support of said request
and motion, the undersigned would show the Court as
follows:
1. Pursuant to this Court’s Order of March 9, 1990,
the undersigned, counsel for appellants, is directed to file
appellant’s brief by March 19, 1990.
2. Pursuant to Appellant, Raymond Harkrider’s,
instruction, the undersigned, counsel for appellants, has
been directed not to file the brief.
3. The undersigned owes a duty to the Court and a
duty to his client and said duties are in conflict.
4. Thus, the undersigned files his Motion for Leave
to Withdraw Appearance contemporaneously herewith
and requests that appellant, Raymond Harkrider, be
granted additional time to seek alternate counsel.
WHEREFORE, the undersigned respectfully requests
that he be granted relief from this Court’s order of March
9, 1990; that he be allowed to withdraw his appearance;
and, that appellants be granted an additional extension of
time to allow them to seek alternate counsel.
I AFFIRM UNDER THE PENALTIES FOR PERJURY
THAT THE FOREGOING REPRESENTATIONS ARE
TRUE.
App. 25
BAKER, ORBISON, BALES
& KNOWLES
/s/ William W. Knowles
William W. Knowles
CERTIFICATE OF SERVICE
I hereby certify that on the 13 day of March, 1990, a
true and complete copy of the preceding pleading was
served by depositing a copy of same in the U.S. mail,
postage prepaid, addressed as follows:
Mr. Stephen R. Pennell
STUART & BRANIGAN
The Life Building
P.O. Box 1010
Lafayette, IN 47902
/s/ William W. Knowles
William W. Knowles
William W. Knowles
BAKER, ORBISON, BALES & KNOWLES
811 South Rangeline Road
Carmel, IN 46032
317/848-4360
App. 26
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO 86A04-8912-CV-544
GEORGIA CORY BETTY
)
M ROGERS and RAYMOND ) APPEAL FROM
HARKRIDER ) THE WARREN
Plaintiffs-Appellants yo ed
v ) COURT
)
KATHRYN WILCOX and PHILIP
E WILCOX, as Personal yer a
Representative of the Estate of )
Floyd E Wilcox Deceased
KATHRYN WILCOX individually } pOpowr Mf HALL
ROY McCANDLISH and RUBY ) JUDGE
McCANDLISH )
Defendants-A ppellees )
OBJECTIONS TO FILING “BRIEF OF APPELLANTS”
PROPOSED BY WILLIAM W KNOWLES - REQUEST
FOR TIME TO OBTAIN OTHER COUNSEL ETC.
(Filed Mar. 12, 1990)
BETTY ROGERS RAYMOND HARKRIDER and RAY-
MOND HARKRIDER as executor of will of Georgia Cory
deceased object to filing in this Court of “BRIEF OF
APPELLANTS” proposed by William W Knowles
(Knowles) and request reasonable time to obtain other
counsel etc. and respectfully show the Court:
1. Betty Rogers (Betty) is a niece of Pearl Posey
deceased (Pearl) being daughter of Velma Pollman a
deceased sister of Pearl; Raymond Harkrider (Raymond)
is brother of Pearl; Raymond is also executor of will of
Georgia Cory a deceased sister of Pearl.
App. 27
2. Pearl never had any children. Betty Raymond
individually and Raymond as executor of will of Georgia
Cory deceased — hereinafter referred to as “Pearl’s fam-
ily” — are sole heirs at law and next of kin of Pearl and
sole beneficiaries of Pearl’s residuary estate — Betty and
Raymond each owning 50% thereof. Raymond is autho-
rized to represent Betty with respect to her interest in
Pearl's estate and in this litigation.
3. Since October 1926 Raymond has been admitted
to practice law in Illinois and since then has been actively
engaged in practice of law with offices in Chicago Illinois.
4. March 19 1982 Pearl died. August 16 1982 Pearl’s
family commenced their five count civil action against
Pearl’s fiduciary Floyd Wilcox (Wilcox) as principal
defendant and others in Tippecanoe Circuit Court case no
C-417-82 by complaint containing five counts as follows:
Count I - against fiduciary Wilcox defendant in
his individual capacity to retrieve Pearl’s 80 acre
farm for Pearl’s estate;
Count II — against fiduciary Wilcox defendant in
his individual capacity to require him to make
and render a full and complete accounting in
respect of all matters and transactions in which
he was involved as Pearl’s fiduciary;
Count III — against fiduciary Wilcox defendant
in his individual capacity to have him declared
constructive trustee of all benefits he had
obtained as trustee or fiduciary for Pearl;
Count IV — against Wilcox defendant in his indi-
vidual capacity and as purported executor of
Pearl’s purported will to have Wilcox removed
as purported executor and June Nelson appoin-
ted executor or representative of Pearl’s estate
in his stead; and
App. 28
Count V — against Wilcox defendant in his indi-
vidual capacity and one..8 ee rted executor to
have Pearl’ ted April 16 1980
declared invalid’ tn nai goaeruts thereof set aside.
5. Wilcox and Katherine Wilcox his wife and Roy
and Ruby McCandlish were made defendants in their
individual capacities to Count IV and Count V because
Pearl’s purported will contained $1000 bequest to Wilcox
and wife and $1000 bequest to Roy and Ruby
McCandlish.
6. Pearl’s family requested that five count civil
action be tried to jury.
7. On motion of Pearl’s family five count civil action
was on or about December 12 1983 venued to Warren
County Circuit Court no 83-C-168.
8. November 2 1988 Warren County Circuit Court
ruled among other things that all five counts of five count
civil action would be tried by Court and not by jury -
contrary to Pearl’s family request.
9. March 28 1989 after two days of trial by Court
without jury Warren County Circuit Court entered find-
ings conclusion and judgment denying Pearl’s family any
relief on any of five counts contained in their complaint.
10. August 8 1989 Warren County Circuit Court
Genied Pearl’s family motion to correct errors. Pearl’s
family caused a timely praecipe for record to be filed and
on December 5 1989 caused record of proceedings -
which consisted of some 1,404 pages of 7 volumes — to be
filed in this Court.
App. 29
11. The size of the record would indicate that
Pearl’s family had invested substantial amounts for legal
expenses which together with the size and nature of their
claims against Pearl’s fiduciary Wilcox in their five count
civil action mandated that they have competent legal
counsel to represent them in their contemplated appeal to
this Court. Not being acquainted with local lawyers
Pearl’s family sought help from referral service of Indi-
anapolis Bar Association and was given the name of
Knowles among others.
12. After being apprised of the nature of the case
and the desires of Pearl’s family to appeal the action of
the Warren County Circuit Court on all five counts of
their complaint Knowles indicated he would handle the
appeal and submitted his form of LEGAL REPRESENTA-
TION AGREEMENT dated December 4 1989 which Pearl’s
family accepted and signed.
13. Knowles’ December 4 1989 LEGAL REPRESEN-
TATION AGREEMENT in PART I providec among other
things:
THIS AGREEMENT, between William W.
Knowles (“Counsel”), an attorney * * * and Ray-
mond Harkrider, Individually and as Executor
of will of Georgia Cory and as Attorney-In-Fact
for Betty Rogers (“Client”), WITNESSETH:
“That on the date written below [12-4-89]
Client has employed Counsel to act as Client’s
attorney in the following matter: To handle the
appeal of the five-count civil action styled as
Georgia Cory, et al., Plaintiffs (Appellants) v.
Kathryn Wilcox as Personal Representative of
the Estate of Floyd Wilcox, Deceased, et al.,
Defendants (Appellees), presently pending in
the Warren County Circuit Court under Cause
App. 30
No. 83C-168; and Counsel has accepted such
employment upon the following terms:”
14. Here follows various provisions including
LEGAL REPRESENTATION AGREEMENT PART II and
following provisions of PART II:
“I. Scope of Engagement
A. Matter Involved. The Client has
engaged Counsel to undertake the legal repre-
sentation of the Client in a matter described in
Part I of this Agreement (hereinafter referred to
as the “Matter”). The parties agree that Coun-
sel’s engagement also extends to related ancil-
lary matters, the resolution of which may
become required for proper representation of
the Client in the principal Matter.
B. Counsel Functions. By the terms of this
Agreement, Counsel will perform all necessary
or = legal services relevant to the Matter,
and the resolution or disposition thereof. Coun-
sel undertakes to use reasonable care, skill and
knowledge in his/her representations of Client
in regard to the aforesaid Matter, within the
bounds of the law and the Code of Professional
Responsibility.”
* * *
“D. Authorization and Decision Mak-
ing. The Client authorizes and directs the
_ Counsel to take all actions in respect to the
Matter which Counsel deems advisable on the
Client’s behalf. Counsel agrees to notify the Client
promptly of all significant developments, and to con-
sult with the Client in advance as to any significant
decisions attendant to those developments.”
(emphasis supplied)
* * *
App. 31
“Ill. Termination of Representation
Either party may terminate this Agreement
a wn? *
15. According to Knowles’ time charges he has had
custody of the record of proceedings since December 6
1989.
16. By February 15 1990 Knowles claimed that he
and his associates had expended approximately 187 hours
to this appeal.
17. Nevertheless Knowles did not until February 27
1990 submit to Pearl’s family his proposed BRIEF OF
APPELLANTS for their examination and approval. Ray-
mond hurriedly examined Knowles’ proposed BRIEF OF
APPELLANTS and concluded it was not acceptable for
various reasons. Surprisingly and without prior notice to
Pearl’s family Knowles purported without authority to
waive Pearl’s family right to appeal from Warren County
Circuit Court’s adverse rulings on their counts II III IV
and V. At page 4 Knowles said:
“Although judgment was entered in favor
of defendants on five counts, this appeal
involves only Count I regarding the validity of
the transfer of Pearl’s 80A farm to Wilcox.”
18. Knowles’ proposed BRIEF OF APPELLANTS in
opinion of Raymond contained other deficiencies which
need not be detailed here.
19. February 28 1990 Raymond promptly contacted
Knowles and in lengthy telephone conversation called his
attention to various objections to his proposed BRIEF OF
APPELLANTS. Raymond stated that Knowles did not
have authority to waive Pearl’s family rights to appeal
App. 32
from Warren County Circuit Court’s adverse rulings in
their counts II III IV and V and directed Knowles not to
file his proposed BRIEF OF APPEALS in this Court.
20. Apparently Knowles - in violation of above
mentioned direction and without authority so to do - on
March 1 1990 filed in this Court copy of his proposed
BRIEF OF APPELLANTS by way of attachment to his
FOURTH PETITION FOR EXTENSION OF TIME TO FILE
APPELLANTS’ BRIEF.
21. Pearl’s family says that Knowles’ proposed
BRIEF OF APPELLANTS is damaging to interests of
Pearl’s family has never been approved or accepted by
Pearl’s family but on contrary has been and is hereby
again rejected by Pearl’s family and that the filing thereof
in this Court by Knowles was without authority and in
violation of directions of Pearl’s family.
22. Pearl’s family is currently engaged in locating
and retaining other counsel who will enter appearance
and represent Pearl’s family in these proceedings includ-
ing preparation and filing of proper brief for and on
behalf of Pearl’s family - the appellants herein.
23. WHEREFORE Pearl’s family respectfully asks
the Court:
23.1 That Pearl’s family be permitted to
file these objections and requests;
23.2 To strike from the records of this
Court Knowles’ proposed BRIEF OF APPEL-
LANTS;
23.3 In the alternative - to disregard
Knowles’ proposed BRIEF “fF APPELLANTS
and any inferences therefrom or effects thereof
App. 33
that might be damaging to interests of Pearl’s
family; and
23.4 To grant Pearl’s family reasonable
time to locate and retain other counsel who will
enter appearance and represent Pearl’s family in
these proceedings and to grant such other coun-
sel reasonable time to prepare and file on behalf
of Pearl’s family appellants’ brief and other
appropriate documents.
Respectfully submitted
BETTY ROGERS
RAYMOND HARKRIDER
RAYMOND HARKRIDER
as executor of will of
Ceorgia Cory deceased
by /s/ _ Raymond Harkrider
Raymond Harkrider
RAYMOND HARKRIDER
3 First National Plaza
suite 1950
Chicago IL 60602
312/726-0236
AFFIRMATION
I affirm under penalties for perjury that the foregoing
representations are true.
/s/ Raymond Harkrider
Kaymond Harkrider
CERTIFICATE OF SERVICE
I hereby certify that on March 11, 1990 a true and
complete copy of above and foregoing document was
served on each person hereinafter named by depositing
App. 34
same in United States mail enclosed in envelopes prop-
erly addressed to each such person with sufficient first
class postage affixed: Stuart & Branigan The Life Building
P O Box 1010 Lafayette IN 47902; William W Knowles 811
South Rangeline Road Carmel IN 46032.
/s/ Raymond Harkrider
Raymond Harkrider
App. 35
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO 86A04-8912-CV-544
GEORGIA CORY, BETTY
M. ROGERS and RAYMOND APPEAL FROM
)
)
HARKRIDER, ) THE WARREN
Plaintiffs-Appellants, aati
vs. ) COURT
)
KATHRYN WILCOX and PHILIP
E. WILCOX, as Personal .), _—_—,
Representative of the Estate of )
Floyd E. Wilcox, Deceased;
KATHRYN WILCOX, individually,} ‘Roponr aa.
ROY McCANDLISH and RUBY ) HALL JUDGE
McCANDLISH, , ,
)
Defendants-Appellees.
MOTION FOR LEAVE TO WITHDRAW APPEARANCE
(Filed Mar. 13, 1990)
William W. Knowles Stephen R. Pennell,
BAKER, ORBISON, BALES Esquire
& KNOWLES STUART & BRANIGAN
811 South Rangeline Road The Life Building
Carmel, IN 46032 Post Office Box 1010
317/848-4360 LaFayette, IN 47902
317/423-1561
Attorney for Appellees
Attorney for Appellants
MOTION FOR LEAVE TO WITHDRAW APPEARANCE
Comes now the law firm of BAKER, ORBISON,
BALES & KNOWLES, by William W. Knowles and
App. 36
respectfully moves the Court to grant it leave to with-
draw its appearance with respect to the appellants, Geor-
gia Cory, Betty M. Rogers, and Raymond Harkrider, in
the above-referenced cause of action for the reasons set
forth in the following memorandum in support of
motion.
Respectfully submitted,
BAKER, ORBISON, BALES &
KNOWLES
/s/ William W. Knowles
m W. Knowles
MEMORANDUM IN SUPPORT OF MOTION
In support of the foregoing motion, the undersigned
would respectfully inform the Court as follows:
1. Conflicts have arisen between counsel and client
which cannot be resolved and the attorney/client rela-
tionship has deteriorated to such a point between Mr.
Harkrider and the undersigned that counsel cannot ren-
der effective assistance to appellants.
2. Counsel cannot comply with the instructions
given to him by his client, said instruction being not to
file appellant's brief, and, at the same time comply with
this Court’s order to file said brief by March 19, 1990.
3. This motion is made with the knowledge of the
defendant as is evidenced by a copy of this Motion being
served on appellants.
WHEREFORE, for the above reason, the undersigned
would respectfully request that this motion be granted.
App. 37
Respectfully submitted,
BAKER, ORBISON, BALES &
KNOWLES
/s/ William W. Knowles
William W. Knowles
CERTIFICATE OF SERVICE
I hereby certify that on the 13 day of March, 1990, a
true and complete copy of the preceding pleading was
served by depositing a copy of same in the U.S. mail,
postage prepaid, addressed as follows:
Mr. Stephen R. Pennell
STUART & BRANIGAN
The Life Building
P.O. Box 1010
Lafayette, IN 47902
/s/ William W. Knowles
William W. Knowles
William W. Knowles
BAKER, ORBISON, BALES & KNOWLES
811 South Rangeline Road
Carmel, IN 46032
317/848-4360
App. 38
IN THE
COURT OF APPEALS OF INDIANA
FOURTH DISTRICT
GEORGIA CORY, BETTY
M. ROGERS and RAYMOND
HARKRIDER,
Appellants,
vs.
)
)
)
)
)
)
KATHRYN WILCOX and PHILIP peal
E. WILCOX, as Personal » CV-544
Representative of the Estate of )
Floyd E. Wilcox, Deceased; )
KA YN WILCOX, individually, )
ROY McCANDLISH and RUBY )
McCANDLISH, )
)
Appellees.
ORDER
(Filed Mar. 19, 1990)
Comes now William W. Knowles, attorney for the
appellants, and files herein his Request for Relief From
Court Order and Fifth Verified Petition for Extension of
Time to File Appellants’ Brief Pursuant to Ind. R. App. P.
14(A), and his Motion for Leave to Withdraw Appear-
ance, which said Request, Petition and Motion are more
particularly in the following words and figures, to-wit:
(H. L)
And the Court, having examined said Request, Peti-
tion and Motion, taking judicial notice of its own records
in this case and being duly advised, now finds that the
record of the proceedings was filed in this cause on
App. 39
December 5, 1989; that on December 8, 1989 the appel-
lants filed their first Petition for Extension of Time to File
Brief which was granted, to and including February 5,
1990; that on January 19, 1990 the appellants filed their
Second Petition for Extension of Time to File Appellants’
Brief which was granted to and including February 26,
1990, said extension being ordered as “Final Extension”;
that on February 15, 1990 the appellants filed their Third
Petition for Extension of Time in Which to File Appel-
lants’ Brief which was granted to and including March 7,
1990; that on March 1, 1990 the appellants filed their
Fourth Petition for Extension of Time to File Appellants’
Brief alleging therein that counsel for the appellants had
prepared, what in his professional judgment, was an
appropriate appellants’ brief in this appeal, but that the
appellant Raymond Harkrider, was not satisfied with the
brief as counsel had prepared it, insisting that various
issues which counsel had not presented should be
advanced and argued, which counsel asserted he could
not in good conscience advance and argue to this Court
in light of previous opinions of this Court on previous
appeals brought by the appellant Harkrider, to which the
appellees filed their Appellees’ Objections; that attached
to the appellants’ Fourth Petition for Extension of Time to
File Appellants’ Brief, as an exhibit thereto, was a copy of
the proposed appellants’ Brief as had been prepared by
William W. Knowles, counsel for the appellants, as evi-
dence of his good faith effort to comply with the Court's
order granting the appellants’ Third Petition for Exten-
sion of Time to File Brief of Appellants, to and including
March 7, 1990; that this Court, after having examined the
App. 40
tendered draft of appellants’ brief as prepared by attor-
ney William: W. Knowles, and having found the same to
have been prepared in good workmanship manner and in
accordance with the requirements of Appellate Rules 8.2
and 8.3, this Court issued its Order on March 9, 1990,
directing attorney William W. Knowles to file said brief
with the Clerk of this Court within ten (10) days from the
date of said Order, and granted William W. Knowles
leave to withdraw his appearance for the appellants, if he
so desired; that the appellant Raymond Harkrider
directed attorney William W. Knowles not to comply with
the March 9, 1990 Order of this Court and the appellant
Raymond Harkrider also advised this Court, by tele-
phone, that he had directed attorney William W. Knowles
not to file the appellants’ brief as had been prepared by
attorney William W. Knowles; the Court further finds that
William W. Knowles has attempted to comply with the
Order of this Court heretofore issued on March 9, 1990,
but that he has been prevented from complying by reason
of the directions from his client, the appellant Raymond
Harkrider; that the appellants must accept the conse-
quences of Raymond Harkrider’s obstinance in refusing
to accept and in specifically directing attorney William W.
Knowles, not to file the appellants’ brief which William
W. Knowles had prepared; the Court further finds that
William W. Knowles has performed his duty to prepare
the appellants’ brief in this appeal, and that by reason of
the specific direction of his client, Raymond Harkrider,
not to file the appellants’ brief as he had prepared it, said
William W. Knowles should be absolved from any and all
responsibility from the failure to timely file the appel-
' lants’ brief, on or before March 19, 1990, as previously
App. 41
ordered by this Court; the Court further finds that the
Motion for Leave to Withdraw Appearance filed by Wil-
liam W. Knowles should be granted; the Court further
finds that the Fifth Verified Petition for Extension of Time
to File Appellants’ Brief should be denied.
IT IS THEREFORE ORDERED as follows:
1. The Request for Relief from Court Order is
granted, and that part of this Court’s Order heretofore
made and eritered in this cause on March 9, 1990, which
directed Wiliam W. Knowles to file with the Clerk of this
Court the Brief of the appellants which he had prepared
is vacated;
2. The Motion for Leave to Withdraw Appearance
filed by William W. Knowles is granted and he is
absolved from any and all responsibility to file a brief on
behalf of the appellants in this cause and from any lia-
bility from having not filed a brief on behalf of the
appellants, due to the specific direction and instruction
from the appellant Raymond Harkrider;
3. The Fifth Verified Petition for Extension of Time
to File Appellants’ Brief is denied.
ALL OF WHICH IS ORDERED this 19th day of
March, 1990.
/s/ Wesley W. Ratliff, Jr.
App. 42
IN THE
COURT OF APPEALS OF INDIANA
FOURTH DISTRICT
GEORGIA CORY, BETTY
M. ROGERS and RAYMOND
HARKRIDER,
Appellants,
vs.
KATHRYN WILCOX and PHILIP ) CAUSE NO.
E. WILCOX, as Personal CV-544
Representative of the Estate of
Floyd E. Wilcox, Deceased;
KATHRYN WILCOX, individually,
ROY McCANDLISH and RUBY
McCANDLISH,
me Ne ee ee ee ee ee ee ee ee”
)
Appellees. )
ORDER
(Filed Mar. 20, 1990)
This Court having heretofore issued its order grant-
ing the appellants’ Fourth Petition for | «tension of Time
in Which to File Appellants’ Brief, granting the appellants
to and including March 19, 1990 within which to file their
appellants’ Brief herein; and the appellants, by counsel,
having thereafter filed their Fifth Petition for Extension of
Time to File Appellants’ Brief which .his Court denied by
its Order dated March 19, 1990; and the appellants having
failed to file their brief on or before March 19, 1990, the
Court now finds that this appeal should be dismissed.
IT IS THEREFORE ORDERED that this cause is dis-
missed by the reason of the failure of the appellants to
App. 43
file their brief within the time as extended by the prior
Order of this Court.
ORDERED this 20th day of March, 1990.
/s/ pant W. Ratliff, Jr.
Pv ieee
App. 44
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO. 86A04-8912-CV-544
BETTY M. ROGERS, RAYMOND
HARKRIDER, Individually,
Wilcox, Deceased,
KATHERINE WILCOX,
Individually, ROY
McCANDLISH and RUBY
McCANDLISH,
Defendants-Appellees
)
)
and RAYMOND HARKRIDER, as ) APPEAL FROM
Personal Representative ) THE WARREN
of the Estate of ) COUNTY
Georgia Cory, ) CIRCUIT
Plaintiffs-A ) COVES
Peon) CAUSE NO
- ) 83-C-168
ad ) ROBERT M.
Personal Representatives ) HALL
of the Estate of Floyd E. ) JUDGE
)
)
)
)
VERIFIED PETITION FOR REHEARING
(Filed April 9, 1990)
Come now the Appellants, Betty M. Rogers, Ray-
mond Harkrider, Individually, and Raymond Harkrider
as Personal Representative of the Estate of Georgia Cory
(collectively “Pearl’s Family”), by counsel, pursuant to
the Indiana Rules of Appellate Procedure, Appellate Rule
11, and for their Verified Petition for Rehearing show the
Court as follows:
1. Pearl’s Family are the next of kin of Pearl Posey
(“Pearl”), who died on March 19, 1982.
App. 45
2. On or about March 22, 1982, Floyd E. Wilcox,
(“Mr. Wilcox”) was appointed personal representative of
Pearl’s estate by the Tippecanoe Circuit Court.
3. On or about August 16, 1982, Pearl’s family com-
menced a five count civil action against Mr. Wilcox, Mr.
Wilcox’s wife, Katherine Wilcox, and Roy and Ruby
McCandlish, alleging and containing the following
Counts:
Count I: An action against Mr. Wilcox, in his
individual capacity, to recover for Pearl’s estate.
title to Pearl’s eighty (80) acre farm deeded to
Mr. Wilcox while Mr. Wilcox served as Pearl's
fiduciary;
Count II: An action against Mr. Wilcox, in his
individual capacity, to require him to render a
full and complete accounting in connection with
any and all matters and transactions in which he
was involved as Pearl’s fiduciary;
Count III: An action against Mr. Wilcox, in his
individual capacity, seeking to have Mr. Wilcox
declared a constructive trustee of all assets and
benefits he had obtained while acting as Pearl's
fiduciary;
Count IV: An action against Mr. Wilcox seeking
to have Mr. Wilcox removed as the personal
representative of Pearl’s estate and to have June
Nelson, Pearl’s niece, appointed personal repre-
sentative of Pearl’s estate;
Count V: A will contest.
4. On or about December 12, 1983, venue in Pearl's
Family’s five count civil action was ordered changed to
the Warren County Circuit Court.
App. 46
5. After a trial on the merits of all five counts of
Pearl’s Family’s complaint, on March 23, 1989 the Warren
Circuit Court entered its “Findings of Fact, Conclusions
and Judgment” finding against Pearl’s Family on each of
the five counts.
6. On May 22, 1989, Pearl’s Family timely filed their
“Motion to Correct Errors” in the Warren Circuit Court,
which motion was denied, after hearing, on August 8,
1989. |
7. On September 6, 1989, Pearl’s Family timely filed
their “Praecipe” in the Warren Circuit Court, thereby
initiating the appeal to this Court made the subject of this
Verified Petition for Rehearing.
8. On December 5, 1989, the Record of Proceedings
in this appeal was filed with the Clerk of this Court, thus
establishing the time for filing of Pearl’s Family’s Appel-
lants’ Brief on or before January 5, 1989.
9. On or about December 8, 1989, Pearl’s Family’s
counsel, William W. Knowles (“Mr. Knowles”), filed his
first motion for extension of time within which to file
Pearl’s Family’s Appellants’ Brief, which time was
extended, by December 18, 1989 Order of this Court,
through and including February 5, 1990.
10. On or about January 19, 1990, Pearl’s Family’s
counsel, Mr. Knowles, filed his second motion for exten-
sion of time within which to file Pearl’s Family’s Appel-
lants’ Brief, which time was extended, by January 24,
1990 Order of this Court, through and including February
26, 1990.
App. 47
11. On or about February 15, 1990, Pearl’s Family’s
counsel, Mr. Knowles, filed his third motion for extension
of time within which to file Pearl’s Family’s Appellants’
Brief, which time was extended, by February 22, 1990
Order of this Court, through and including March 7, 1990.
12. On or about the afternoon of February 27, 1990,
less than nine (9) calendar days and seven (7) business
days before the March 7, 1990 expiration of this Court’s
extension, Mr. Knowles transmitted to Mr. Harkrider, on
behalf of Pearl’s Family, a telefacsimile copy of Mr.
Knowles’ -proposed brief (“Proposed Brief”) which Mr.
Knowles proposed to file on behalf of Pearl’s Family in
this appeal. At the bottom of page 4 of the Proposed
Brief, Mr. Knowles stated the following:
“Although judgment was entered in favor of
defendants on five counts, this appeal involves
only Count 1 regarding the validity of the trans-
fer of Pearl’s 80A farm to Wilcox.”
13. As verified in the sworn affidavit of Raymond
Harkrider (“Mr. Harkrider’s Affidavit”), a true and accu-
rate copy of which is attached hereto as Exhibit A:
A. Prior to receipt of the Pr d Brief on the
afternoon of February 27, 1990, Pearl's Family
had experienced significant difficulty in obtain-
ing substantive information from Mr. Knowles
concerning Mr. Knowles’ impressions and strat-
egies in connection with this appeal, as well as
the proposed contents of the Proposed Brief;
B. Not until the afternoon of February 27, 1990,
upon receipt and review of the Proposed Brief,
did Pearl’s Family have knowledge that Mr.
Knowles intended to expressly waive Pearl's
Family’s constitutional right, under Article VII,
App. 48
late review of the Warren Circuit Court’s
ment against Pearl’s Family on Counts II,
and V of the five court civil action;
C. The very next day, on February 28, 1990, Mr.
Harkrider, on behalf of Pearl’s Family, contacted
Mr. Knowles by telephone and informed Mr.
Knowles that:
1. The Proposed Brief was unacceptable to
Pearl’s Family;
2. Pearl’s Family wished to exercise their
constitutional right to appellate review of
the Warren Circuit Court’s judgment against
Pearl’s Family on all five counts of the five
count civil action;
3. Mr. Knowles was not authorized to file
or otherwise submit the Proposed Brief to
this Court or to the Appellees; and,
4. Mr. Knowles’ authorization to proceed
forward in this appeal was being with-
drawn by Pearl’s rg subject to Mr.
Knowles’ and Pearl’s Family’s mutual
agreement on the preparation of an +
lants’ Brief acceptable to Pearl’s Fam
14. On or about March 1, 1990, without the know!l-
edge, authority or approval of Pearl’s Family, William W.
Knowles filed with this Court his fourth petition for
extension of time within which to file Pearl’s Family's
Appellants’ Brief, in which motion Mr. Knowles alleged,
among other things, the following:
“5. This Court has seen fit to award sanctions
against appellants in previous actions an
ca things) their “attempt to rear
of the same issues already decided . In
Re ( uardianship of Posey (1988), Ind. App. 532
N.E.2d 9, 11.
Section 6, of the Indiana Constitution, to a "hae
App. 49
6. This Court has also criticized previous briefs
for “needless redundancy”, “argument which
lacked cogency”, and for the manner in which
they were written which required “the maxi-
mum expenditure of time by both [appellee] and
by this Court”. In Re Guardianship of Posey
(1986), Ind.App. 513 N.E.2d 674, 677.
7. I have prepared the Appellants’ brief in the
case at hand to the best of my ability and in
compliance with Indiana Rules of Appellate Pro-
cedure, but my client, Appellant, Raymond
Harkrider, disapproves of the brief and has
directed me to include several additional issues.
8. I respect my client’s wishes but I cannot in
good faith, include the issues which he has
demanded that I include.
9. I have advised my client that I will not
revise the brief to include allegedly omitted
issues and that I will be filing a motion to with-
draw my appearance if he cannot approve the
filing of the brief which I have prepared.
10. I represented in my third petition for exten-
sion of time that “absent extreme and unfore-
seen circumstances, no further extensions will
be pi ar and appellant's brief will be filed
on or before March 7, 1990.” (See paragraph 10).
|, therefore, attach a copy of the aa Sage appel-
lant’s brief which has been rejected by appellant
and represent that I have done everything in my
power to comply with the current March 7th
deadline.
11. I believe that my withdrawal of appearance
would constitute an extreme and unforeseen cir-
cumstance that would justify an additional
extension of time to allow Mr. Harkrider the
opportunity to hire new counsel to prepare a
brief more to his liking.”
App. 50
15. On or about March 9, 1990, this Court entered its
“Order” providing the following, in pertinent part:
“IT IS THEREFORE ORDERED as follows:
1. William W. Knowles, counsel for the appel-
lants, is directed to file with the Clerk of this
Court, the Brief of the Appellants which he has
red in this appeal and he is granted ten
{10} da dav tim the Gith-o8 Cele’ Outer within
which to finalize the ration of said Brief
and to file the same with Clerk of this Court;
2. William W. Knowles is granted leave to
withdraw his appearance from his appeal after
the filing of the appellant’s Brief if he so desires;
3. The appellants’ Fourth Verified Petition for
Extension of Time to File Appellants’ Brief is
denied in all other respects.”
16. On or about March 11, 1990, Pearl’s Family ten-
dered to this Court their “Objections to Filing ‘Brief of
Appellants’ Proposed by William W. Knowles — Request
for Time to Obtain Other Counsel, Etc.” (“Pearl’s Family’s
Objections”), in which Pearl’s Family alleged and con-
firmed the facts and circumstances alleged in this Verified
Petition for Rehearing including, without limitation, that
Mr. Knowles’ representational authority herein was with-
drawn by Pearl’s Family on February 28, 1990, and that
Mr. Knowles’ filing of the Proposed Brief was highly
prejudicial to Pearl’s Family’s rights and interests. In
Pearl’s Family’s Objections, Pearl’s Family requested the
following relief:
“23.1 That Pearl’s family be permitted to file
these objections and requests;
23.2 To strike from the records of this Court
Knowles’ proposed BRIEF OF APPEL) ANTS;
App. 51
23.3 In the alternative — to disregard Knowles’
proposed BRIEF OF APPELLANTS and any
inferences therefrom or effects thereof that
might be daniaging to interests of Pearl’s family;
an
23.4 To grant Pearl’s family reasonable time to
locate and retain other counsel who will enter
appearance and represent Pearl's family in these
proceedings and to grant such other counsel
reasonable time to prepare and file on behalf of
Pearl's family appellants’ brief and other appro-
priate documents.” (Emphasis Supplied).
17. On March 13, 1990, without Pearl’s Family’s
knowledge, authority or approval, Mr. Knowles filed
with this Court his Request for Relief from Court Order
and Fifth Verified Petition for Extension of Time to File
Appellants’ Brief, Pursuant to IND. R. APP. P. 14(A)
(“Request for Relief”). In his Request for Relief, Mr.
Knowles alleged the following:
“1. Pursuant to this Court’s Order of March 9,
1990, the undersigned, counsel for appellants, is
directed to file appellant’s brief by March 19,
1990.
2. Pursuant to Appellant, Raymond Hark-
rider’s instruction, the undersigned, counsel for
appellants, has been directed not to file this
brief.
3. The undersigned owes a duty to the Court
and a duty to his client and said duties are in
conflict.
4. Thus, the undersigned files his Motion for
Leave to Withdraw Appearance contemporane-
ously herewith and requests that appellant, Ray-
mond Harkrider, be granted additional time to
seek alternate counsel.”
App. 52
18. On March 19, 1990, this Court entered its
“Order” providing, in pertinent part:
“And the Court, having examined said Request,
Petition and Motion, taking judicial oa Ea of its
own records in this case and poe br becom
now finds that the record of
was filed in this cause on December 5, 1989; 09, thet
on December 8, 1989 the a ts filed their
first Petition for Extension of Time to File Brief
which was granted, to and including February 5,
1990; that on January 19, 1990 the appellants
filed their Second Petition for Extension of Time
to File A nts’ Brief which was granted to
and February 26, 1990, said extension
being ord as “Final Extension”; that on Feb-
ruary 15, 1990 the appellants filed their Third
Petition for Extension of Time in Which to File
Appellants’ Brief which was granted to and
including March 7, 1990; that on March 1, 1990
the appellants filed their Fourth Petition for
Extension of Time to File Appellants Brief alleg-
ing therein that counsel for the a ts had
prepared, what in his professional judgment,
was an appropriate appellants’ brief in this
appeal, but that the appellant Raymond Hark-
rider, was not satisfied with the brief as counsel
had prepared it, insisting that various issues
which counsel had not presented should be
advanced and argued, which counsel asserted
he could not in good conscience advance and
argue to this Court in light of previous opinions
of this Court on Bay ages appeals brought by
the appellant Ha er, to which the appellees
filed f eir Appellees’ Objections; that attached
to the appellants’ Fourth Petition for Extension
of Time to File Appellants’ Brief, as be exhibit
thereto, was a copy of the Hants’
Brief as had been prepar y Willi iam W.
Knowles, counsel for the meet as evidence
of his good faith effort to comply with the
App. 53
Court’s order granting the appellants’ Third
Petition for Extension of Time to File Brief of
Appellants, to and including March 7, 1990; that
this Court, after having examined the tendered
draft of appellants’ brief as prepared by attor-
ney William W. Knowles, and having found the
same to have been prepared in good workman-
ship manner and in accordance with the require-
ments of Appellate Rules 8.2 and 8.3, this Court
issued its Order on March 9, 1990, directing
attorney William W. Knowles to file said brief
with the Clerk of this Court within ten (10) days
from the date of said Order, and granted Wil-
liam W. Knowles leave to withdraw his appear-
ance for the appellants, if he so desired; that the
appellant Raymond Harkrider directed attorney
William W. Knowles not to comply with the
March 9, 1990 Order of this Court and the appel-
lant Raymond Harkrider also ad vised this court,
by telephone, that he had directed attorney Wil-
liam W. Knowles not to file the appeilants’ brief
as had been prepared by attorney William W.
Knowles; the Court further finds that William
W. Knowles has attempted to comply with the
Order of this Court heretofore issued on March
9, 1990, but that he has been prevented from
complying by reason of the directions from his
client, the appellant Raymond Harkrider; that
the appellants must accept the consequences of
Raymond Harkrider’s obstinance in refusing to
accept and in specifically directing attorney
William W. Knowles, not to file the appellants’
brief which William W. Knowles had prepared;
the Court further finds that William W. Knowles
has performed his duty to prepare the appel-
lants’ brief in this appeal, and that by reason of
the specific direction of his client, Raymond
Harkrider, not to file the appellants’ brief as he
had prepared it, said William W. Knowles
App. 54
should be absolved from any and all respon-
sibility from the failure to timely file the rere
lants’ brief, on Or before March 19, 1
previously ordered by this Court; the Court fur-
ther finds that the Motion for Leave to With-
draw came filed by William W. Knowles
should nted; the Court further finds that
the Fifth Verified Petition for Extension of Time
to File Appellants’ Brief should be denied.
IT IS THEREFORE ORDERED as follows:
1. The Request for Relief from Court Order is
gone and that part of this Court’s Order
eretofore made and entered in this cause on
March 9, 1990, which directed William W.
Knowles to file with the Clerk of this Court the
brief of the appellants which he had prepared is
vacated;
2. The Motion for Leave to Withdraw Ap
ance filed by William W. Knowles is granted and
he is absolved from any and all res ibility to
file a brief on behalf of the appellants in this
cause and from any liability from having to file
a brief on behalf of the appellants, due to the
specific direction and instruction from the
appellant Raymond Harkrider;
3. The Fifth Verified Petition for Extension of
Time to File Appellants’ Br'ef is denied.
ALL.OF WHICH IS ORDERED this 19th day of
March, 1990.”
19. On March 20, 1990, this Court entered its
“Order” dismissing Pearl’s Family's appeal for failure to
file Pearl’s Family’s Appellants’ Brief on or before March
19, 1990, as previously ordered by this Court.
20. By means of this Petition for Rehearing, Pearl’s
Family seeks review of, and rehearing on, this Court’s
App. 55
March 19, 1990 and March 20, 1990 Orders (collectively
the “Subject Orders”).
21. The Subject Orders are in error, and should be
set aside, in that the Subject Orders violate Article I,
Section 12, and Article VII, Section 6, of the Indiana
Constitution and further violate the 5th and 14th Amend-
ments of the United States Constitution, in failing to
afford Pearl’s Family their constitutional right to due
process and equal protection under the law, in the follow-
ing and other particulars:
A. Pearl's Family was not afforded a hearing
or reasonable op 2 woman to be heard in con-
nection with the following and other findings of
fact or conclusions of law reached and deter-
mined by this Court:
1. “The appellant Raymond Harkrider
directed attorney William W. Knowles not to
comply with the March 9, 1990 Order of this
Court;”
“The appellants must accept the conse-
iinehl of Raymond Harkrider’s obstinance
in refusing to accept and in specifically
rey yr attorney William W. Knowles, not
to file the appellants’ brief which William
W. Knowles had prepared;”
3. “By reason of the specific direction of
his client, Raymond Harkrider, not to file
the appellants’ brief as he had prepared it,
said William W. Knowles should be absolved
from any and all responsibility from the failure
to timely file the appellants’ brief, on or
before March 19, 1990, as previously
ordered by this Court[.]” (Emphasis Sup-
plied).
App. 56
B. Pearl’s Family were unjustly and unlawfully
prevented from exercising their constitutional
right to one appeal;
C. The Subject Orders unlawfully oo
Pearl’s Family for seeking to exercise their con-
stitutional right to an appeal, and for refusing to
waive such right, with respect to Counts II, III,
IV and V of the five count civil action.
22. The Subject Orders are in error, and should be
set aside, in that the absence of a justiciable case in
controversy deprived this Court of Jurisdiction to deter-
mine whether Mr. Knowles fully, responsibly, profession-
ally and ethically performed his professional
responsibilities to Pearl’s Family in connection with Mr.
Knowles’ representation of Pearl’s Family in this proceed-
ing.
23. The Subject Orders are in error, and should be
set aside, in that they improperly disregard and overrule,
and are in contradiction with, the following well-rea-
soned opinions expressing Indiana appellate courts’ pre-
disposition for deciding cases on the merits where
procedural rules have been substantially complied with:
1. Soft Water Utilities, Inc., v. LeFevre (1973), 261
Ind. 260, 301 N.E.2d 745;
2. White House v. Quinn (1982), Ind.App., 443
N.E.2d 332;
3. State Department of Administration v. Sightes
(1981), Ind.App., 416 N.E.2d 445;
4. Indiana State Board of Tax Commissioners v.
Lyon (1977), 172 Ind.App. 272, 359 N.E.2d 931;
5. Yerkes v. Washington Manufacturing Company
(1975), 163 Ind.App. 692, 326 N.E.2d 629;
1 App. 57
6. Moore v. Funk (1973), 155 Ind.App. 545, 293
N.E.2d 534.
24. In the event this Court reinstates Pearl’s Fam-
ily’s appeal and considers this appeal on the merits,
Pearl’s Family should prevail on the merits.
25. Pearl’s Family submits and files herewith its
Brief in Support of Verified Petition for Rehearing, each
and every material element and portion of which it
hereby respectfully incorporates in this Verified Petition
for Rehearing as if it were fully set forth herein.
WHEREFORE, Appellants respectfully pray that:
1. This Court grant their Verified Petition for
Rehearing;
2. This Court vacate and set aside its Orders of
rch 19, 1990 and March 20, 1990;
3. This Court reinstate the Appellants’ appeal and
appellate rights in this appeal;
4. This Court grant the Appellants a reasonable
period of time within which to obtain substitute counsel
and to allow substitute counsel to familiarize himself or
herself with the record of proceedings herein and to
prepare an appropriate appellants’ brief;
5. This Court order stricken from the record and
disregard William W. Knowles’ proposed Brief of Appel-
lants, now made a part of the record of proceedings
herein; and,
6. This Court grant any and all other relief which it
deems proper in the premises.
App. 58
Respectfully submitted,
STEWART & IRWIN
By /s/ Douglas R. Brown
Douglas R. Brown
Douglas R. Brown
Stewart & Irwin
Two Market Square Center, Suite 1100 -
251 East Ohio Street
Indianapolis, Indiana 46204-2118
317-639-5454
EXHIBIT A
AFFIDAVIT OF RAYMOND HARKRIDER ATTACHED
TO APPELLANTS’ PETITION FOR REHEARING
STATE OF ILLINOIS )
) S&S
COUNTY OF COOK )
RAYMOND HARKRIDER affiant being first duly
sworn on oath deposes and says:
1. Affiant individually and as executor of will of
Georgia Cory deceased is beneficial owner of 50% of
estate of Pearl Posey deceased and is one of the appel-
lants in this appeal.
2. Affiant has read and is familiar with matters
stated in subparagraphs A B and C of paragraph 13 of
APPELLANTS’ PETITION FOR REHEARING including
matters stated in sub-subparagraphs 1 2 3 and 4 of said
subparagraph C and affiant states that all such matters
are true.
App. 59
3. Affiant further states that affiant denies he ever
requested William W. Knowles to violate or disregard any
order of this Court.
Respectfully su mitted
/s/ Raymond Harkrider
Raymond Harkrider
SUBSCRIBED AND SWORN TO
before me a notary public this
7th day of April 1990
/s/ Janet L. Peterson
Notary Public
OFFICIAL SEAL
JANET L. PETERSON
NOTARY PUBLIC STATE OF
iLLINOIS MY COMMISSION
EXP. JULY 27, 1992
Printed: Janet L. Peterson
Residing at: 1140 No. LaSalle
Street, Chicago, Illinois 60610
App. 60
IN THE
COURT OF APPEALS OF INDIANA
CAUSE NO. 86A04-8912-CV-544
BETTY M. ROGERS, RAYMOND
HARKRIDER, Individually,
KATHERINE WILCOX,
Individually, ROY
McCANDLISH and RUBY
McCANDLISH,
Defendants-Appellees )
)
)
and RAYMOND HARKRIDER, as ) APPEAL FROM
Personal Representative ) THE WARREN
of the Estate of ) COUNTY
Georgia Cory, ) CIRCUIT
) COURT
Plaintiffs-Appellants )
- CAUSE NO.
KATHRYN WILCOX and ) “ap
A a
PHILIP E. WILCOX, as ,
Personal Representatives ) HALL _
of the Estate of Floyd E. ‘ JUDGE
Wilcox, Deceased, )
)
)
)
)
PROOF OF SERVICE
I hereby certify that a copy of the foregoing Verified
Petition for Rehearing has been served upon the follow-
ing opposing counsel of record, by first class United
States mail, postage prepaid, on the 9th day of April,
1990.
Steven R. Pennell
Stuart & Branigan
The Life Building
P.O. Box 1010
Lafayette, Indiana 47902
App. 61
/s/ Douglas R. Brown
Douglas R. Brown
Douglas R. Brown
Stewart & Irwin
Two Market Square Center, Suite 1100
251 East Ohio Street
Indianapolis, Indiana 46204-2118
317-639-5454
App. 62
STATE OF INDIANA
CLERK OF THE SUPREME COURT
Court oF APPEALS AND Tax Court
DANIEL ROCK HEISER, CLERK
217 STATE HOUSE
SEAL
INDIANAPOLIS, 46204
TELEPHONE 317-232-1930
HARKRIDER, RAYMOND Cause Number
3 FIRST NATIONAL PLAZA 86A04-8912-CV-00544
SUITE 1950 LOWER CAUSE
CHICAGO IL 83C168
CORY, GEORGIA ET AL VS WILCOX, KATHRYN ET AL
ESTATE OF:
You are hereby notified that the COURT OF
APPEALS has on this day 4/26/90 APPELLANT'S PETI-
TION FOR REHEARING DENIED. WESLEY W. RATLIFF,
JR., CHIEF JUDGE.
WITNESS my name and the seal of said Court, this day of
26TH APRIL, 1990
/s/ Daniel Heiser
App. 63
IN THE
SUPREME COURT OF INDIANA
CAUSE NO. 86A04-8912-CV-544
BETTY M. ROGERS, RAYMOND
HARKRIDER, Individually, and
RAYMOND HARKRIDER, as
Personal Representative of
the Estate of Georgia Cory,
APPEAL FROM
THE WARREN
COUNTY
CIRCUIT
COURT CAUSE
Plaintiffs-Appellants NO. 83-C-168
vs HONORABLE
)
)
)
)
)
)
)
ROBERT M
KATHRYN WILCOX and PHILIP
E. WILCOX, as Personal ,
Representatives of the Estate )
of Floyd E. Wilcox, Deceased, )
KATHERINE WILCOX, )
Individually, ROY McCANDLISH )
and RUBY McCANDLISH, )
)
Defendants-Appellees
PETITION TO TRANSFER
(Filed May 16, 1990)
Come now the Appellants, Betty M. Rogers, Ray-
mond Harkrider, Individually, and Raymond Harkrider
as Personal Representative of the Estate of Georgia Cory
(collectively “Pearl’s Family”), by counsel, pursuant to
the Indiana Rules of Appellate Procedure, Appellate Rule
11, and for their Petition to Transfer show the Court as
follows:
1. Pearl’s Family are the next of kin of Pearl Posey
(“Pearl”), who died on March 19, 1982.
2. On or about March 22, 1982, Floyd E. Wilcox,
(“Mr. Wilcox”) was appointed personal representative of
Pearl’s estate by the Tippecanoe Circuit Court.
App. 64
3. On or about August 16, 1982, Pearl’s family com-
menced a five count civil action against Mr. Wilcox, Mr.
Wilcox’s wife, Katherine Wilcox, and Roy and Ruby
McCandlish, alleging and containing the following
Counts:
Count I: An action against Mr. Wilcox, in his
individual capacity, to recover for Pearl’s estate
title to Pearl’s eighty (80) acre farm deeded to
Mr. Wilcox while Mr. Wilcox served as Pearl’s
fiduciary:
Count II: An action against Mr. Wilcox, in his
individual capacity, to require him to render a
full and complete accounting in connection with
any and all matters and transactions in which he
was involved as Pearl's fiduciary;
Count III: An action against Mr. Wilcox, in his
individual capacity, seeking to have Mr. Wilcox
declared a constructive trustee of all assets and
benefits he had obtained while acting as Pearl's
fiduciary;
Count IV: An action against Mr. Wilcox seeking
to have Mr. Wilcox removed as the personal
representative of Pearl’s estate and to have June
Nelson, Pearl’s niece, appointed personal repre-
sentative of Pearl’s estate;
Count V: A will contest.
4. On or about December 12, 1983, venue in Pearl’s
Family’s five count civil action was ordered changed to
the Warren Circuit Court.
5. After a trial on the merits of all five counts of
Pearl’s Family’s complaint, on March 23, 1989 the Warren
Circuit Court entered its “Findings of Fact, Conclusions
and Judgment” finding against Pearl’s Family on each of
the five counts.
App. 65
6. On May 22, 1989, Pearl’s Family timely filed their
“Motion to Correct Errors” in the Warren Circuit Court,
which motion was denied, after hearing, on August 8,
1989.
7. On September 6, 1989, Pearl’s Family timely filed
their “Praecipe” in the Warren Circuit Court, thereby
initiating an appeal to the Indiana Court of Appeals.
8. On December 5, 1989, the Record of Proceedings
in this appeal was filed with the Clerk of the Court of
Appeals, thus establishing the time for filing of Pearl’s
Family’s Appellants’ Brief on or before January 5, 1989.
9. On or about December 8, 1989, Pearl’s Family’s
counsel, William W. Knowles (“Mr. Knowles”), filed his
first motion for extension of time within which to file
Pearl’s Family’s Appellants’ Brief, which time was
extended, by December 18, 1989 Order of the Court of
Appeals, through and including February 5, 1990.
10. On or about January 19, 1990, Pearl’s Family’s
counsel, Mr. Knowles, filed his second motion for exten-
sion of time within which to file Pearl’s Family’s Appel-
lants’ Brief, which time was extended, by January 24,
1990 Order of the Court of Appeals, through and includ-
ing February 26, 1990.
11. On or about February 15, 1990, Pearl’s Family’s
counsel, Mr. Knowles, filed his third motion for extension
of time within which to file Pearl’s Family’s Appellants’
Brief, which time was extended, by February 22, 1990
Order of the Court of Appeals, through and including
March 7, 1990.
App. 66
12. On or about the afternoon of February 27, 1990,
less than nine (9) calendar days and seven (7) business
days before the March 7, 1990 expiration of the Court of
Appeals’ extension, Mr. Knowles transmitted to Mr.
Harkrider, on behalf of Pearl’s Family, a telefacsimile
copy of Mr. Knowles’ proposed brief (“Proposed Brief”)
which Mr. Knowles proposed to file with the Court of
Appeals on behalf of Pearl’s Family. At the bottom of
page 4 of the Proposed Brief, Mr. Knowles stated the
following:
“Although judgment was entered in favor of
defendants on five counts, this appeal involves
only Count 1 regarding the validity of the trans-
fer of Pearl’s 80A farm to Wilcox.”
13. As verified in the sworn affidavit of Raymond
Harkrider (“Mr. Harkrider’s Affidavit”), a true and accu-
rate copy of which was attached as Exhibit A to Pearl’s
Family’s Verified Petition for Rehearing, filed in the
Court of Appeals on April 9, 1990:
A. Prior to receipt of the Proposed Brief on the
afternoon of February 27, 1990, Pearl’s Family
had experienced significant difficulty in obtain-
ing substantive information from Mr. Knowles
concerning Mr. Knowles’ impressions and strat-
egies in connection with this appeal, as well as
the proposed contents of the Proposed Brief;
B. Not until the afternoon of February 27, 1990,
upon receipt and review of the Proposed Brief,
did Pearl’s Family have knowledge that Mr.
Knowles intended to expressly waive Pearl’s
Family’s constitutional right, under Article VII,
Section 6, of the Indiana Constitution, to appel-
late review of the Warren Circuit Court’s judg-
ment against Pearl’s Family on Counts II, III, IV
and V of the five count civil action;
App. 67
C. The very next day, on February 28, 1990, Mr.
Harkrider, on behalf of Pearl’s Family, contacted
Mr. Knowles by telephone and informed Mr.
Knowles that:
1. The Proposed Brief was unacceptable to
Pearl’s Family;
2. Pearl’s Family wished to exercise their
constitutional right to appellate review of
the Warren Circuit Court’s judgment against
Pearl’s Family on all five counts of the five
count civil action;
3. Mr. Knowles was not authorized to file
or otherwise submit the Proposed Brief to
this Court or to the Appellees; and,
4. Mr. Knowles’ authorization to proceed
forward in this appeal was being with-
drawn by Pearl’s Family, subject to Mr.
Knowles’ and Pearl’s Family’s mutual
agreement on the preparation of an Appel-
lants’ Brief acceptable to Pearl’s Family.
14. On or about March 1, 1990, without the knowl-
edge, authority or approval of Pearl’s Family, William W.
Knowles filed with the Court of Appeals his fourth peti-
tion for extension of time within which to file Pearl’s
Family’s Appellants’ Brief, in which motion Mr. Knowles
alleged, among other things, the following:
“5. [The Court of Appeals] has seen fit to
award sanctions against appellants in previous
actions for (among other things) their ‘attempt
to reargue many of the same issues already
decided .. . ’ In Re Guardianship of Posey (1988),
Ind.App. 532 N.E.2d 9, 11.
6. [The Court of Appeals] has also criticized
previous briefs for ‘needless redundancy’, ‘argu-
ment which lacked cogency’, and for the manner
App. 68
in which they were written which required ‘the
maximum expenditure of time by both [appel-
lee] and by this Court’. In Re Guardianship of
Posey (1986), Ind.App. 513 N.E.2d 674, 677.
7. I have prepared the Appellants’ brief in the
case at hand to the best of my ability and in
compliance with Indiana Rules of Appellate Pro-
cedure, but my client, Appellant, Raymond
Harkrider, disapproves of the brief and has
directed me to include several additional issues.
8. I respect my client’s wishes but I cannot in
good faith, include the issues which he has
demanded that I include.
9. I have advised my client that I will not
revise the brief to include allegedly omitted
issues and that I will be filing a motion to with-
draw my appearance if he cannot approve the
filing of the brief which I have prepared.
10. Irepresented in my third petition for exten-
sion of time that ‘absent extreme and unforeseen
circumstances, no further extensions will be
requested and appellant’s brief will be filed on
or before March 7, 1990.’ (See paragraph 10). I,
therefore, attach a copy of the proposed appel-
lant’s brief which has been rejected by appellant
and represent that I have done everything in my
power to comply with the current March 7th
deadline.
11. I believe that my withdrawal of appearance
would constitute an extreme and unforeseen cir-
cumstance that would justify an additional
extension of time to allow Mr. Harkrider the
opportunity to hire new counsel to prepare a
brief more to his liking.”
15. On or about March 9, 1990, the Court of Appeals
entered its “Order” providing the following, in pertinent
part:
App. 69
“IT IS THEREFORE ORDERED as follows:
1. William W. Knowles, counsel for the appel-
lants, is directed to file with the Clerk of this
Court, the Brief of the Appellants which he has
prepared in this appeal and he is granted ten
(10) days from the date of this Order within
which to finalize the preparation of said Brief
and to file the same with the Clerk of this Court;
2. William W. Knowles is granted leave to
withdraw his appearance from this appeal after
the filing of the appellant’s Brief if he so desires;
3. The appellants’ Fourth Verified Petition for
Extension of Time to File Appellant’s Brief is
denied in all other respects.”
16. On or about March 11, 1990, Pearl’s Family ten-
dered to the Court of Appeals their “Objections to Filing
‘Brief of Appellants’ Proposed by William W. Knowles -
Request for Time to Obtain Other Counsel, Etc.” (“Pearl's
Family’s Objections”), in which Pearl’s Family alleged
and confirmed the facts and circumstances alleged in this
Petition to Transfer including, without limitation, that Mr.
Knowles’ representational authority herein was with-
drawn by Pearl’s Family on February 28, 1990, and tnat
Mr. Knowles’ filing of the Proposed Brief was highly
prejudicial to Pearl’s Family’s rights and interests. In
Pearl’s Family’s Objections, Pearl’s Family requested the
following relief:
“23.1 That Pearl’s family be permitted to file
these objections and requests;
23.2 To strike from the records of [the Court of
Appeals] Knowles’ proposed BRIEF OF APPEL-
LANTS;
23.3 In the alternative - to the disregard
Knowles’ proposed BRIEF OF APPELLANTS
App. 70
and any inferences therefrom or effects thereof
that might be damaging to interests of Pearl's
family; and
23.4 To grant Pearl’s family reasonable time to
locate and retain other counsel who will enter
appearance and represent Pearl’s family in these
proceedings and to grant such other counsel
reasonable time to prepare and file on behalf of
Pearl’s family appellants’ brief and other appro-
priate documents.” (Emphasis Supplied).
17. On March 13, 1990, without Pearl’s Family’s
knowledge, authority or approval, Mr. Knowles filed
with the Court of Appeals his “Request for Relief from
Court Order and Fifth Verified Petition for Extension of
Time to File Appellants’ Brief, Pursuant to IND. R. APP. P.
14(A)” (“Request for Relief”). In his Request for Relief,
Mr. Knowles alleged the following:
“1. Pursuant to [the Court of Appeals’] Order
of March 9, 1990, the undersigned, counsel for
appellants, is directed to file appellant’s brief by
March 19, 1990.
2. Pursuant to Appellant, Raymond Hark-
rider’s instruction, the undersigned, counsel for
appellants, has been directed not to file this
brief.
3. The undersigned owes a duty to the Court
and a duty to his client and said duties are in
conflict.
4. Thus, the undersigned files his Motion for
Leave to Withdraw Appearance contemporane-
ously herewith and requests that appellant, Ray-
mond Harkrider, be granted additional time to
seek alternate counsel.”
18. On March 19, 1990, the Court of Appeals
entered its “Order” providing, in pertinent part:
aes.
App. 71
“And the Court, having examined said Request,
Petition and Motion, taking judicial notice of its
own records in this case and being duly advised,
now finds that the record of the proceedings
was filed in this cause on December 5, 1989; that
on December 8, 1989 the appellants filed their
first Petition for Extension of Time to File Brief
which was granted, to and including February 5,
1990; that on January 19, 1990 the appellants
filed their Second Petition for Extension of Time
to File Appellants’ Brief which was granted to
and including February 26, 1990, said extension
being ordered as “Final Extension”; that on Feb-
ruary 15, 1990 the appellants filed their Third
Petition for Extension of Time in Which to File
Appellants’ Brief which was granted to and
including March 7, 1990; that on March 1, 1990
the appellants filed their Fourth Petition for
extension of time to File Appellants Brief alleg-
ing therein that counsel for the appellants had
prepared, what in his professional judgment,
was an appropriate appellants’ brief in this
appeal, but that the appellant Raymond Hark-
rider, was not satisfied with the brief as counsel
had prepared it, insisting that various issues
which counsel had not presented should be
advanced and argued, which counsel asserted
he could not in good conscience advance and
argue to this Court in light of previous opinions
of this Court on previous appeals brought by
the appellant Harkrider, to which the appellees
filed their Appellees’ Objections; that attached
to the appellants’ Fourth Petition for Extension
of Time to File Appellants’ Brief, as an exhibit
thereto, was a copy of the proposed appellants’
Brief as had been prepared by William W.
Knowles, counsel for the appellants, as evidence
of his good faith effort to comply with the
Court’s order granting the appellants’ Third
Petition for Extension of Time to File Brief of
Appellants, to and including March 7, 1990; that
rig
App. 72
this Court, after having examined the tendered
draft of appellants’ brief as prepared by attor-
ney William W. Knowles, and having found the
same to have been prepared in good workman-
ship manner and in accordance with the require-
ments of Appellate Rules 8.2 and 8.3, this Court
issued its Order on March 9, 1990, directing
attorney William W. Knowles to file said brief
with the Clerk of this Court within ten (10) days
from the date of said Order, and granted Wil-
liam W. Knowles leave to withdraw his appear-
ance for the appellants, if he so desired; that the
appellant Raymond Harkrider directed attorney
William W. Knowles not to comply with the
March 9, 1990 Order of this Court and the appel-
lant Raymond Harkrider also advised this court,
by telephone, that he had directed attorney Wil-
liam W. Knowles not to file the appellants’ brief
as had been prepared by attorney William W.
Knowles; the Court further finds that William
W. Knowles has attempted to comply with the
Order of this Court heretofore issued on March
9, 1990, but that he has been prevented from
complying by reason of the directions from his
client, the appellant Raymond Harkrider; that
the appellants must accept the consequences of
Raymond Harkrider’s obstinance in refusing to
accept and in specifically directing attorney
William W. Knowles, not to file the appellants’
brief which William W. Knowles had prepared;
the Court further finds that William W. Knowles
has performed his duty to prepare the appel-
lants’ brief in this appeal, and that by reason of
the specific direction of his client, Raymond
Harkrider, not to file the appellants’ brief as he
had prepared it, said William W. Knowles
should be absolved from any and all respon-
sibility from the failure to timely file the appel-
lants’ brief, on or before March 19, 1990, as
App. 73
previously ordered by this Court; the Court fur-
ther finds that the Motion for Leave to With-
draw Appearance filed by William W. Knowles
should be granted; the Court further finds that
the Fifth Verified Petition for Extension of Time
to File Appellants’ Brief should be denied.
IT IS THEREFORE ORDERED as follows:
1. The Request for Relief from Court Order is
granted, and that part of this Court’s Order
heretofore made and entered in this cause on
March 9, 1990, which directed William W.
Knowles to file with the Clerk of this Court the
brief of the appellants which he had prepared is
vacated;
2. The Motion for Leave to Withdraw Appear-
ance filed by William W. Knowles is granted and
he is absolved from any and all responsibility to
file a brief on behalf of the appellants in this
cause and from any liability from having to file
a brief on behalf of the appellants, due to the
specific direction and instruction from the
appellant Raymond Harkrider;
3. The Fifth Verified Petition for Extension of
Time to File Appellants’ Brief is denied.
ALL OF WHICH IS ORDERED this 19th day of
March, 1990.”
19. On March 20, 1990, the Court of Appeals
entered its “Order” dismissing Pearl’s Family’s appeal for
failure to file Pearl’s Family’s Appellants’ Brief on or
before March 19, 1990, as previously ordered by the Court
of Appeals.
20. On April 9, 1990, Pearl’s Family filed in the
Court of Appeals, their Verified Petition for Rehearing
and Brief in Support of Verified Petition for Rehearing,
App. 74
which Verified Petition for Rehearing was denied by the
Court of Appeals on April 26,1990.
21. By means of this Petition to Transfer, Pearl's
Family seeks transfer to this Court from the Court of
Appeals’ March 19, 1990 and March 20, 1990 Orders
(collectively the “Subject Orders”).
22. The Subject Orders are in error, and should be
set aside, in that the Subject Orders violate Article I,
Section 12, and Article VII, Section 6, of the Indiana
Constitution and further violate the 5th and 14th Amend-
ments of the United States Constitution, in failing to
afford Pearl’s Family their constitutional right to due
process and equal protection under the law, in the follow-
ing and other particulars:
A. Pearl’s Family was not afforded a hearing
or reasonable opportunity to be heard in con-
nection with the following and other findings of
fact or conclusions of law reached and deter-
mined by the Court of Appeals:
1. “The appellant Raymond Harkrider
directed attorney William W. Knowles not to
comply with the March 9, 1990 Order of this
Court;”
2. “The appellants must accept the conse-
quences of Raymond Harkrider’s obstinance
in refusing to accept and in specifically
directing attorney William W. knowles, not
to file the appellants’ brief which William
W. Knowles had prepared;”
3. “By reason of the specific direction of
his client, Raymond Harkrider, not to file
the appellants’ brief as he had prepared it,
said William W. Knowles should be absolved
from any and all responsibility from the failure
a Papper gs aren ‘ ay ietes ° eg
PPE PEL GN EE TEN AD FR LE WI IY (ithaca cob sedi Drak dic ppt seerarn
SA eile Banrlg
App. 75
t> timely file the appellants’ brief, on or
before March 19, 1990, as previously
ordered by this Court[.]” (Emphasis Sup-
plied).
B. Pearl’s Family were unjustly and unlawfully
prevented from exercising their constitutional
right to one appeal;
C. The Subject Orders unlawfully penalize
Pearl’s Family for seeking to exercise their con-
stitutional right to one appeal, and for refusing
to waive such right with respect to Counts II, III,
IV and V of the five count civil action.
23. The Subject Orders are in error, and should be
set aside, in that the absence of a justiciable case in
controversy deprived the Court of Appeals of jurisdiction
to determine whether Mr. Knowles fully, responsibly, pro-
fessionally and ethically performed his professional
responsibilities to Pearl’s Family in connection with Mr.
Knowles’ representation of Pearl’s Family in this proceed-
ing.
24. The Subject Orders are in error, and should be
set aside, in that they improperly disregard and overrule,
and are in contradiction with, the following well-rea-
soned opinions expressing Indiana Appellate Court’s pre-
disposition for deciding cases on the merits where
procedural rules have been substantially complied with:
1. Soft Water Utilities, Inc., v. LeFevre (1973), 26:
Ind. 260, 301 N.E.2d 745;
2. White House v. Quinn (1982), Ind.App., 443
N.E.2d 332;
3. State Department of Administration v. Sightes
(1981), Ind.App., 416 N.Ed.2d 445;
App. 76
4. Indiana State Board of Tax Commissioners v.
Lyon (1977), 172 Ind.App. 272, 359 N.E.2d 931;
5. Yerkes v. Washington Manufacturing Company
(1975), 163 Ind.App. 692, 326 N.E.2d 629;
6. Moore v. Funk (1973), 155 Ind.App. 545, 293
N.E.2d 534.
25. In the event this Court grants Pearl’s Family’s
Petition to Transfer, reinstates Pearl’s Family’s appeal and
orders the Court of Appeals to consider this appeal on
the merits, Pearl’s Family should prevail on the merits.
26. Pearl’s Family submits and files herewith its
Brief in Support of Petition to Transfer, each and every
material element and portion of which is hereby
respectfully incorporated in this Petition to Transfer as if
it were fully set forth herein.
WHEREFORE, Appellants respectfully pray that:
1. This Court grant their Petition to Transfer;
2. This Court vacate and set aside the Court of
Appeals’ Orders of March 19, 1990 and March 20, 1990;
3. This Court reinstate the Appellants’ appeal and
appellate rights in this appeal;
4. This Court grant the Appellants a reasonable
period of time within which to obtain substitute counsel
and to allow substitute counsel to familiarize himself or
herself with the record of proceedings herein and to
prepare an appropriate appellants’ brief;
5. This Court order stricken from the record and
order disregarded William W. Knowles’ proposed Brief of
Appellants, now made a part of the record of proceedings
herein; and,
App. 77
6. This Court grant any and all other relief which it
deems proper in the premises.
Respectfully submitted,
STEWART & IRWIN
By /s/ Douglas R. Brown
Douglas R. Brown
Douglas R. Brown
Stewart & Irwin
Two Market Square Center, Suite 1100
251 East Ohio Street
Indianapolis, Indiana 46204-2118
317-639-5454
App. 78
STATE OF INDIANA
CLERK OF THE SUPREME CoOuRT,
CourT OF APPEALS AND Tax Court
DANIEL ROCK HEISER, CLERK
217 STATE HOUSE
SEAL
INDIANAPOLIS, 46204
TELEPHONE 317-232-1930
STEPHEN RICHARD PENNELL
P.O. BOX 1010
LAFAYETTE IN 47902-0000
Cause Number
86A04-8912-CV-00544
LOWER CAUSE
83C168
CORY, GEORGIA ET AL VS WILCOX, KATHRYN ET AL
ESTATE OF:
You are hereby notified that the SUPREME COURT has
on this day 8/29/90 APPELLANTS’ PETITION TO
TRANSFER IS HEREBY DENIED. RANDALL T. SHEP-
ARD, CHIEF JUSTICE ALL JUSTICES VOTE TO DENY,
EXCEPT DICKSON, J., WHO IS NOT PARTICIPATING.
APPELLANTS’ REQUEST FOR ORAL ARGUMENT IS
HEREBY DENIED. RANDALL T. SHEPARD, CHIEF JUS-
TICE ALL JUSTICES VOTE TO DENY, EXCEPT DICK-
SON, J., WHO IS NOT PARTICIPATING.
WITNESS my name and the seal of said Court,
this day of 29TH AUGUST, 1990
/s/ Dan Heiser
Clerk Supreme Court, Court
of Appeals and Tax Court
STATE OF INDIANA IN THE HAMILTON
SUPERIOR COURT 1
COUNTY OF HAMILTON
)
)
SS:
CAUSE NO: 29D01-
9003-CP109
)
WILLIAM W. KNOWLES, )
Plaintiff,
vs. )
RAYMOND HARKRIDER,
Defendant. )
AMENDED COMPLAINT
Comes now plaintiff, William W. Knowles, and for his
complaint against the defendant herein alleges and says:
1. Plaintiff is an attorney in private practice with an
office located at 811 South Range Line Road, Carmel,
Hamilton County, Indiana.
2. Defendant telephoned plaintiff at plaintiff’s office
in November, 1989, at which time defendant requested
that plaintiff represent defendant in a civil appeal.
3. Plaintiff sent a contract to defendant and said
contract was signed by defendant and returned to Mr.
Knowles’ office with the $5,200.00 retainer on December
4, 1989. A copy of said contract is attached hereto and
labeled Exhibit A.
4. Plaintiff provided legal services to defendant
pursuant to the terms of the contract and defendant cur-
rently owes plaintiff $29,804.09. Copies of attorney fee
statements are attached hereto and labeled Exhibit B in 7
parts.
App. 80
5. Defendant has wholly failed and refused to pay
said fees, despite demand from plaintiff.
WHEREFORE, plaintiff, William W. Knowles,
demands judgment against defendant in the amount of
$29,804.09, pre-judgment interest, costs of this action,
reasonable attorney fees with respect to this action [in
accordance with Legal Representation Agreement Part II,
paragraph II(C) (6) (pp. 5 and 6)], and all other proper
relief.
KNOWLES & ASSOCIATES
/s/ William W. Knowles
William W. Knowles
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of July, 1990, a
true and complete copy of the preceding pleading was
served by depositing a copy of same in the U.S. mail,
postage prepaid, addressed as follows:
Douglas R. Brown
STEWART & IRWIN
Two Market Square Center
Suite 1100
251 East Ohio Street
Indianapolis, IN 46204
/s/ William W. Knowles
William W. Knowles
KNOWLES & ASSOCIATES
811 South Range Line Road
Carmel, IN 46032
317/848-4360
(EXHIBITS OMITTED)
App. 81
JIN THE TIPTON CIRCUIT
STATE OF INDIANA ) COURT
>
COUNTY OF TIPTON ) CAUSE NO.
) 80C01-9007-CP163
WILLIAM W. KNOWLES,
)
Plaintiff, }
vs. )
RAYMOND HARKRIDER,
Defendant. )
MOTION FOR SUMMARY JUDGMENT
Comes now the plaintiff, William W. Knowles, and
respectfully moves the Court to grant summary judgment
in this cause for the reason that there is no genuine issue
as to any material fact, and the plaintiff is entitled to
judgment as a matter of law.
Respectfully submitted,
KNOWLES & ASSOCIATES
/s/ William W. Knowles
William W. Knowles
MEMORANDUM IN SUPPORT OF MOTION
Comes now the plaintiff, William W. Knowles and in
support of his Motion for Summary Judgment would
show the Court as follows:
Facts:
William W. Knowles is an attorney engaged in pri-
vate practice. On November 27, 1989, Mr. Knowles was
App. 82
contacted by telephone by Raymond Harkrider, who was
calling from Chicago, Illinois, where he resides. Mr. Hark-
rider explained that he was an attorney who had prac-
ticed law in Chicago for over fifty (50) years and he was
searching for an attorney in Indiana who would prepare
an appeal for him. Mr. Harkrider was a plaintiff in an
action for which judgment had been entered against him
and he wished to appeal. His counsel at trial had been
Richard Ewing and Donn Wray of Stewart & Irwin and
they did not wish to handle the appeal, but had recom-
mended Mr. Knowles. Mr. Knowles forwarded a contract
to Mr. Harkrider which he signed and returned on
December 4, 1989, with a $5,000.00 retainer (Copy of
contract attached as Exhibit A).
The Motion to Correct Errors had been prepared by
Stewart & Irwin prior to Knowles’ being retained. The
transcript of the case for appeal was also prepared by
Stewart & Irwin and was filed on December 8, 1989. Mr.
Knowles received the transcript on that date, and began
work on the appellate brief which was due January 4,
1990. The transcript consisted of 1,404 pages in seven
volumes and it was immediately apparent that Mr.
Knowles would be unable to familiarize himself with the
case and prepare a brief in thirty (30) days; consequently,
a verified petition for extension of time to file appellant’s
brief was filed and the extension was granted to and
including February 5, 1990.
During the next 60 days, Mr. Harkrider communi-
cated with Mr. Knowles by way of extensive telephone
conferences and lengthy correspondence. These commu-
nications and independent legal research revealed that
Mr. Harkrider had already litigated, appealed and lost
App. 83
five other appeals at least tangentially related to the
instant appeal. These were: Posey v. Wilcox (1983)
Ind.App.; 451 N.E.2d 1135 (unpublished Memorandum
Opinion July 20, 1983); In re the Guardianship of Posey
(1986) Ind.App., 513 N.E.2d 674; Posey v. Lafayette Bank &
Trust Co. (1987) Ind., 512 N.E.2d 155; In re the Guardianship
of Posey (1988) Ind.App., 532 N.E.2d 9; and, In re Estate of
Posey (1990) Ind.App., 548 N.E.2d 1205. Not only did Mr.
Harkrider lose these five appeals, but he was criticized
for his “needless redundancy”, “argument which lacked
cogency”, and for the manner in which his briefs were
written to require “the maximum expenditure of time by
both [appellee] and by this Court”. In re Guardianship of
Posey (1986) Ind.App., 513 N.E.2d 674, 677. The Court also
saw fit to award sanctions against Mr. Harkrider for his
“attempt to reargue many of the same issues already
decided ...” In re Guardianship of Posey (1988) Ind.App.,
532 N.E.2d 9, 11.
Mr. Knowles filed for a second extension of time
which was granted to and including February 26, 1990,
and proceeded to prepare the brief. The appellate brief
was ready for filing on February 26th, but Mr. Harkrider
insisted on arguing several additional issues. The issues
which Mr. Harkrider insisted upon had all been decided
in previous appeals, had no factual basis, or were not
supported by the law. They had also not been included in
the motion to correct errors. Mr. Knowles filed a request
for a third extension of time (attached as Exhibit B) in
order to work out a compromise with Mr. Harkrider and
to impress upon him the importance of briefing only
those issues which had a basis in fact and in law and
App. 84
which were relevant to the instant case. A third extension
was granted to and including March 7, 1990. (Exhibit C).
By March 1, Mr. Harkrider was still insisting that
several additional issues be briefed and he ordered Mr.
Knowles not to file the brief which had been prepared.
Mr. Knowles filed a fourth petition for extension of time
and requested leave to withdraw his appearance, stating
that the brief was ready for filing, but the client would
not authorize the filing (Exhibit D). As a gesture of good
faith and in an effort to impress upon the court the
seriousness of the situation, Mr. Knowles attached a copy
of his proposed appellant’s brief as an exhibit to his
petition (Exhibit E).
On March 9, 1990, Mr. Harkrider telephoned Mr.
Knowles’ secretary and left a message that Knowles no
longer had authority to act for Harkrider. On that same
day, the Court of Appeals ordered Mr. Knowles to file the
brief within 10 days and further ruled that his motion to
withdraw appearance would not be granted until the
brief was filed (Exhibit F). Knowles then filed a Request
for Relief From Court Order and Fifth Petition for Exten-
sion of Time (Exhibit G).
On March 19, 1990, The Court of Appeals granted the
request for relief from court order, granted Mr. Knowles’
motion to withdraw his appearance and absolved him
from all liability to file a brief finding that the proposed
brief had been “prepared in good workmanship manner
and in accordance with the requirements of Appellate
Rules 8.2 and 8.3”, and that Mr. Knowles had “performed
his duty to prepare the appellant’s brief in this appeal.”
(Exhibit H).
App. 85
Pursuant to the terms of the contract between Mr.
Knowles and Mr. Harkrider, Mr. Knowles performed his
duty to prepare appellant’s brief and Mr. Harkrider owes
attorney fees in the sum of $29,804.09. (Copies of attorney
fee statements attached as Exhibit I).
Issue:
Is there a genuine issue as to a material fact which
would make summary judgment inappropriate at this
time?
Law:
Although Summary judgment should be applied with
considerable caution and is not an appropriate vehicle in
some cases, construction of a written contract is generally
a question of law for which summary judgment is partic-
ularly appropriate. Kordick v. Merchants Nat. Bank and
Trust Co. of Indianapolis (1986) 496 N.E.2d 119. The con-
tract in question clearly provides that Mr. Harkrider will
pay the hourly rate of $125.00 to Mr. Knowles and Mr.
Knowles will “handle the appeal of the five-count civil
action styled as Georgia Cory, et al, Plaintiffs (appellants)
v. Kathy Wilcox as Personal Representative of the Estate
of Floyd Wilcox, Deceased, et al., Defendants (Appellees),
presently pending in the Warren County Circuit Court
under Cause No. 83C-168.” Furthermore, the Indiana
Court of Appeals has stated that Mr. Knowles performed
his duty to prepare the appellant’s brief in this appeal
and that the appellant’s “must accept the consequences of
Raymond Harkrider’s obstinance in refusing to accept
and in specifically directing attorney, William W.
App. 86
Knowles, not to file the appellant’s brief which William
W. Knowles had prepared.” (Exhibit H).
Conclusion:
There is no genuine issue of material fact in the case
at hand and summary judgment should be entered in
favor of William W. Knowles in the sum of $29,804.09.
Respectfully submitted,
KNOWLES & ASSOCIATES
/s/ William W. Knowles
William W. Knowles
CERTIFICATE OF SERVICE
I hereby certify that on the 24 day of October, 1990, a
true and complete copy of the foregoing pleading was
deposited in the United States mail, postage prepaid,
addressed as follows:
Douglas R. Brown
STEWART & IRWIN
Two Market Square Center, Suite 1109
251 East Ohio Street
Indianapolis, IN 46204
Ben B. Hobbs
125 North Main Street
Tipton, IN 46072
/s/ William W. Knowles
William W. Knowles
KNOWLES & ASSOCIATES
811 South Range Line Road
Carmel, IN 46032
317/848-4360
(EXHIBITS OMITTED)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.