# Petition for Writ of Certiorari — Rogers v. Wilcox

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1068

## Text

In The

Supreme Court of the United States
October Term, 1990

»%
4

BETTY M. ROGERS, RAYMOND HARKRIDER,
Individually, and RAYMOND HARKRIDER,
as Personal Representative of the
Estate of Georgia Cory,

Petitioners,
v.

KATHRYN WILCOX and PHILIP E. WILCOX,
as Personal Representatives of the
Estate of Floyd E. Wilcox, Deceased,
KATHERINE WILCOX, Individually, ROY
McCANDLISH and RUBY McCANDLISH,

Respondents.

,’
4

On Petition For A Writ Of Certiorari
To The Supreme Court Of Indiana

4.
od

PETITION FOR A WRIT OF CERTIORARI

,%
—

Douc.as R. BROWN
STEWART & IRWIN
Two Market Square Center, Suite 1100
251 East Ohio Street

Indianapolis, Indiana 46204-2118
317-639-5454

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Indiana Court of Appeals’ March 19,
1990 and March 20, 1990 Orders (collectively the “Subject
Orders”) are in error, and should be set aside, in that the
Subject Orders violate Article I, Section 12, and Article
VIL, Section 6, of the Indiana Constitution and further
violate the 5th and 14th Amendments of the United States
Constitution, in failing to afford Petitioners their consti-
tutional right to due process and equal protection under
the law, in the following and other particulars:

A. Whether Petitioners were afforded an
appropriate hearing or reasonable opportunity
to be heard in connection with the findings of
fact and conclusions of law reached and deter-
mined by the Indiana Court of Appeals concern-
ing the propriety of legal services rendered by
Petitioner’s previous appellate counsel?

B. Whether Petitioners were unjustly and
unlawfully prevented from exercising their right
to one appeal, under Article VII, Section 6 of the
Indiana Constitution?

C. Whether the Subject Orders unlawfully
penalize Petitioners for seeking to exercise their
constitutional right to one appeal and for refus-
ing to waive such right with respect to the five
count civil actior appealed from?

ii

QUESTIONS PRESENTED FOR REVIEW - continued

2. Whether the Subject Orders are unconstitutional,
and should be set aside, in that the absence of a justicia-
ble case in controversy deprived the Indiana Court of
Appeals of original or appellate jurisdiction to determine
whether Petitioners’ previous appellate counsel fully,
responsibly, professionally and ethically performed his
professional responsibilities to Petitioners in connection
with Petitioners’ appeal?

ili

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED FOR REVIEW........... i
BE EBUILD 6 occ sccscsccccsccccnes iv
ER hn 5 kWiady woue ee cesseeversscecie 1
GROUNDS ON WHICH JURISDICTION IS
EE Ris bi bide @ CU wide cps nas redeoeces 2
CONSTITUTIONAL AND STATUTORY PROVI-
SE Se 3
UE SP ME SOO... ww ccc asec cccces 4
ARGUMENT: REASONS RELIED ON FOR THE
ALLOWANCE OF THE WRIT ................... 15

I. The Subject Orders Violate Article I, Section 12,
And Article VII, Section 6, Of The Indiana Consti-
tution And Further Violate The 5th and 14th
Amendments To The United States Constitution,

In failing To Afford Petitioners Their Constitu-
tional Right To Due Process And Equal Protection
Under The Law As Well As Their Right To One
SP DGLEAS Gh cca b anes ces ase vcssboccsvones 15

i scan can vascceesceus 24
ee es iyi asesvencesvsrsdevs App. 1

iv

TABLE OF AUTHORITIES

Page
Cases
Armstrong v. Manzo (1965), 380 U.S. 545, 14
me ee Fe Pees error er Terr re 16
Borden Kirscher v. Hayes (1978), 434 U.S. 357, 98
GAD, Bip BE AOA WOE 6 oct rie ne vaseccanscees eke

In the Matter of Briggs (1987), Ind. 502 N.E.2d 879 .16, 19
Christ v. Jovanoff (1926), Ind.App. 676, 151 N.E. 26,

Se Py Pha ces wav iceicia bp vam bse oes eeescsarsveuss 18
Ferger v. Perin Oil Refining Company, Inc. (1950),

120 Ind.App. 174, 90 N.E.2d 131.................. 18
Heck v. Selig (1963), 134 Ind.App. 336, 188 N.E.2d

RR ENS oes Sed eade ches ek be Sabie oe suAR SWS ane ee. 17

Hutts et al v. Martin (1893), 134 Ind. 587, 33 N.E.
Eg POPPE eT POTEET OCT EET ITT ee TT eee 17, 18

McFadden v. Ross (1886), 108 Ind. 512, 8 N.E. 161....17
McKee v. Hasler (1951), 229 Ind. 437, 98 N.E.2d 657,

GEES Caan todas dc vcdaetabbevecenats Cage eentcee sh ces. 16
Moore v. Moore (1924), 81 Ind.App. 169, 173, 135

P,P MEG NaidA Kencnarvcbied Clusabreamirenes 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.
—

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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11

23.3 In the alternative — to disregard Knowles’
proposed BRIEF OF APPELLANTS and any
inferences therefrom or effects thereof that
might be damaging to interests of Pearl’s family;
and

23.4 To grant Pearl’s family reasonable time to
locate and retain other counsel who will enter
appearance and represent Pearl’s family in these
proceedings and to grant such other counsel
reasonable time to prepare and file on behalf of
Pearl’s family appellants’ brief and other appro-
priate documents.” (Emphasis Supplied).

Please see App. 32-33, at pp. 5-6.

On March 13, 1990, without Petitioners’ knowledge,
authority or approval, Mr. Knowles filed with the Indiana
Court of Appeals his “Request for Relief from Court
Order and Fifth Verified Petition for Extension of Time to
File Appellants’ Brief, Pursuant to IND. R. APP. P. 14(A)”
(“Request for Relief’), a copy of which appears at App.
23-25. In his Request for Relief, Mr. Knowles alleged the
following:

“1. Pursuant to this Court’s Order of March 9,
1990, the undersigned, counsel for appellants, is
directed to file appellant’s brief by March 19,
1990.

2. Pursuant to Appellant, Raymond Hark-
rider’s instruction, the undersigned, counsel for
appellants, has been directed not to file the brief.

3. Tho undersigned owes a duty to the Court
and a duty to his client and said duties are in
conflict.

4. Thus, the undersigned files his Motion for
Leave to Withdraw Appearance contemporane-
ously herewith and requests that Appellant,

12

Raymond Harkrider, be granted additional time
to seek alternate counsel.”

Please see App. 24, at p. 2. With the Request for Relief,
Mr. Knowles also filed his Motion for Leave to Withdraw
Appearance, a copy of which appears at App. 35-37.

On March 19, 1990, the Indiana Court of Appeals
entered its “Order” providing, in pertinent part:

“And the Court, having examined said Request,
Petition and Motion, taking judicial notice of its
own records in this case and being duly advised,
now finds that the record of the proceedings
was filed in this cause on December 5, 1989; that
on December 8, 1989 the pS preorty filed their
first Petition for Extension of Time to File Brief
which was granted, to and including February 5,
1990; that on January 19, 1990 the appellants
filed their Second Petition for Extension of Time
to File Appellants’ Brief which was granted to
and including February 26, 1990, said extension
being ordered as “Final Extension”; that on Feb-
ruary 15, 1990 the appellants filed their Third
Petition for Extension of Time in Which to File
Appellants’ Brief which was granted to and
including March 7, 1990; that on March 1, 1990
the appellants filed their Fourth Petition for
Extension of Time to File Appellants’ Brief alleg-
ing therein that counsel for the appellants had
prepared, what in his professional judgment,
was an appropriate appellants’ brief in this
appeal, but that the appellant Raymond Hark-
rider, was not satisfied with the brief as counsel
had prepared it, insisting that various issues
which counsel had not presented should be
advanced and argued, which counsel asserted
he could not in good conscience advance and
argue to this Court in light of previous opinions
of this Court on previous appeals brought by

Dn ge ov

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3176%3A1. Public record. Not legal advice.