ILNews

Appellate court finds lawsuit brought in bad faith

Back to TopE-mailPrintBookmark and Share

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.  
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  2. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  3. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

  4. "The commission will review applications and interview qualified candidates in March and April." Riiiiiight. Would that be the same vaulted process that brought us this result done by "qualified candidates"? http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774 Perhaps a lottery system more like the draft would be better? And let us not limit it to Indiana attorneys so as to give the untainted a fighting chance?

  5. Steal a little, and they put you in jail. Steal a lot, and they make you king. Bob Dylan ala Samuel Johnson. I had a very similar experience trying to hold due process trampling bureaucrats responsible under the law. Consider this quote and commentary:"'When the president does it, that means it is not illegal,' [Richard] Nixon told his interviewer. Those words were largely seen by the American public -- which continued to hold the ex-president in low esteem -- as a symbol of his unbowed arrogance. Most citizens still wanted to believe that no American citizen, not even the president, is above the law." BWHaahaaahaaa!!!! http://www.philly.com/philly/blogs/attytood/When-the-president-does-it-that-means-it-is-not-illegal.html

ADVERTISEMENT