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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. How do you go about each day with out having resentment or ill will towards the evil that has done this to you? Is it your faith that keeps you going and knowing that someday they will have to answer to God? At church our pastor talked about forgiveness and how Jesus forgave our sins and we should too. Its very hard knowing that we do the right thing in this world, and those that are liars, thieves, are continued in power and continue on doing their jobs, while you are banished from something that you have every right to do with out being penalized.

  2. From my post below .... I cut and pasted in error: http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468

  3. Your prayers must account for some of the wind beneath my wings. That and this: His yoke is easy, His burden light. OK, now to bring this comment thread 100% back to the topic at hand. From my secret files, never before published, a letter that Commission head Myra Selby deemed interesting, but ..... This Hail Mary was ignored by the Commission, and then cited by the Indiana bar examiners to justify the need for a lifetime banishment from the Indiana Supreme Court. I tender it as a study in anti white male anti Christian antipathy in the Indiana court system. Focused upon the Race (ie not white) and Gender (ie not male) and not religious Commission for "fairness." Uncle Karl, eat your heart out: https://www.scribd.com/document/340472424/Race-gender-request-24128-1 ... https://drive.google.com/file/d/0BznfHUztK5eTUGlxbmRvMWJsaHhLcGFuaE5KNHZWVjk3eHRn/view?usp=sharing

  4. What a disgrace of Judicial Proceedings. Can complain and write comments forever but someone needs to show the mother how to fight back before he turns this little girl against her.

  5. The truth comes out Issac Law Firm for Men helped Montgomery to get custody.Should read the lies he told them.How much was paid to the judges?

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