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Appellate court finds lawsuit brought in bad faith

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The Indiana Court of Appeals ruled today for a fifth time on a contentious family dispute over the estate of deceased parents, affirming a small claims court judgment in favor of two of the siblings for damages and fees against their brother and his wife.

Obed Kalwitz Jr., his wife Rolene, and Obed Jr.’s siblings Eugene Kalwitz and Sharon Grieger have been involved in litigation since the death of their mother in 1995. They were in dispute over 331 acres of land that Obed Jr. had gotten his parents to transfer to him for only $40 and other issues. In the instant case, Obed Jr. and Rolene sued the siblings claiming they stole property from that 331 acres, which now belongs to Eugene and Sharon, who served as personal representatives of their parents’ estates. Obed Sr. died in 1989.

After years of litigation, the parties mediated their pending matters in October 2006. As part of the settlement agreement, Obed Jr. had 30 days to remove certain personal property from the estates. He filed an affidavit saying he removed all the property he wanted and forfeited the right to remove any other property on the 331 acres. Eugene and Sharon later discovered he had booby trapped the land.

More than a year after the judge discharged Eugene and Sharon as personal representatives and closed the estate, Obed Jr. and his wife filed the small claims action alleging his siblings stole items from the land that belonged to him. Eugene and Sharon counterclaimed for compensatory damages for abuse of process, punitive damages, and attorney’s fees. The judge ruled in favor of the siblings, awarding them a total of $5,400.

In Obed Kalwitz, Jr., et al. v. Eugene Kalwitz, et al., No. 46A03-0912-CV-574, Obed Jr. and Rolene appealed the judgment, claiming the court erred by denying their request for a change of judge, determining that their claim was barred by res judicata, and by awarding damages and attorney’s fees to Eugene and Sharon.

The appellate judges found their change of judge request to be untimely. They filed their claim in February 2009, but didn’t file their request for a special judge until August. They also failed to personally verify, make allegations of when or how the cause was first discovered, or why they couldn’t have discovered the cause earlier as required by Indiana Trial Rule 76(C)(6).

Their claims are also barred by res judicata because their claim that the record doesn’t support a finding that a former judgment was rendered by a court of competent jurisdiction failed, wrote Judge Nancy Vaidik. Their argument that there’s no indication in the record that their claim was or could have been determined in the estate proceedings also failed.

Obed Jr. and Rolene also challenged five of the small claims court’s findings as being unsupported by the evidence, but the appellate court found their challenges were supported by the record. The judges also upheld the compensatory and punitive damages award, finding the couple acted with “malice and oppressiveness” and the award was imposed to deter further litigation.

The court also awarded appellate attorney’s fees and costs to Eugene and Sharon, concluding that Obed Jr. and Rolene’s appeal, “and indeed the entire lawsuit, was brought in bad faith and for purposes of harassment,” wrote Judge Vaidik. The matter was remanded for a determination of the amount of fees and costs.  
 

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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