Petition for Writ of Certiorari — Rogers v. Wilcox

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Text

In The

Supreme Court of the United States

October Term, 1990

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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

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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 *

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No.

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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.

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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.”

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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;

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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

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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.

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