ILNews

Man entitled to damages following excavation of home without notice

Back to TopCommentsE-mailPrintBookmark and Share

In reviewing a case in which an attorney appointed guardian of an adult male unilaterally decided to tear down his home without providing notice to the man, the Indiana Court of Appeals found the attorney violated the man’s due process rights and damages were necessary.

In David L. Stalker v. Mary C. Pierce, No. 61A04-1008-GU-562, Mary Pierce, a Parke County attorney and appointed member of the Parke County Board of Health, was appointed permanent guardian over David Stalker and his property at Stalker’s consent. The two originally had a good relationship as they had worked together when Pierce helped organize his finances so he could work on his home. Stalker has a mental disability and is unable to care for his personal needs or manage his home. His home had fallen into disrepair and needed a lot of work inside and out, but it was never condemned by the board of health.

After a few months, Stalker asked the court to end the guardianship, as he was unhappy with Pierce’s oversight. He repeatedly asked the court to remove her as his guardian, but the court refused. At some of these hearings he had a court-appointed attorney. Pierce had taken away the keys to his home and relocated him to an apartment 10 miles away. He only had a bike for transportation, so it made getting back to his house to fix it up difficult. He worked on the outside and made progress, which Pierce acknowledged. But a week after telling the court that she was willing to keep an open mind about returning the house keys to Stalker, Pierce ordered the home excavated. She did not tell Stalker, who came upon the process after he rode his bike to the house to mow the lawn. He was devastated because he wanted to move back into the home and many family photos and items were destroyed in the excavation.

Pierce never told Stalker that his home was going to be demolished and she didn’t petition to the court for permission. Stalker never was able to collect any items out of his home. The trial court later allowed her to sell the vacant land, which was purchased for $37,500. She used the proceeds to buy Pierce a scooter and prepaid funeral plan, although he wanted the money spent on a car and an attorney so he could have his brother appointed his guardian.

As a result of the demolition of the home, Stalker went to Indianapolis and opted to live homeless. He objected to the amended accounting, alleging Pierce breached her fiduciary duty, failed to act in his best interest, and denied his due process rights. The trial court denied his objection and motion to correct error.

Pierce violated her fiduciary duty to protect, preserve, and manage Stalker’s property, the appellate court determined. There was no evidence that his home had to be destroyed because it was a threat to his well being or that tearing down the house actually improved the value of the land, as she had argued.  

“We find the degree of care and prudence displayed by Pierce in her decisions as a guardian was well below that which an ordinarily prudent person would exercise in her own affairs. We are dismayed at her callousness to demolish Stalker’s property without getting a formal appraisal, without notifying Stalker or the court, and most importantly without providing him with an opportunity to, at the very least, collect his sentimental possessions. We are convinced that Pierce would not have made similar choices with respect to the management of her own property,” wrote Judge Patricia Riley.

The judges also found that Pierce breached her fiduciary duty of loyalty to him because she used information she gleaned as his guardian to fulfill her duties as a member of the board of health. By disclosing information she got about Stalker’s house without prior court approval or notice, her duty as guardian conflicted with her personal obligations as a member of the board of health.

Pierce also violated Stalker’s due process rights as she never informed him that his home was going to be torn down or gave him the chance to retrieve items from the home. As a result, Stalker is entitled to damages, which the trial court will determine on remand.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT