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Court orders attorney’s fees following bad faith appeal

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The Indiana Court of Appeals found a Colorado attorney and his brother engaged in procedural bad faith in appealing the third amended final accounting of their deceased mother’s estate and ordered them to pay appellate attorney’s fees to the estate.

Attorney Robert New and his brother James appealed the St. Joseph Probate Court’s denial of Robert’s combined motion to correct error, motion for relief from judgment, and motion for reconsideration of the court’s approval of their mother Martha’s estate’s third amended final accounting. The estate sought appellate attorney’s fees and wanted the Court of Appeals to dismiss the brother’s appeal.

Robert, instead of seeking pro hac vice admission to practice in Indiana, pursued the appeal pro se. He and James appealed the division of certain assets of the estate among the four siblings; whether James was improperly deprived of reimbursement of costs advanced on behalf of the estate; whether the probate court erred in approving the estate’s attorney’s fees; whether the personal representative properly accounted for certain debts owed to the estate; and whether the probate court failed to give James and Robert adequate notice and time to respond to the estate’s third amended accounting.

In James and Robert New v. Personal Representative of the Estate of Martha New, No. 71A04-0912-CV-744, the appellate judges found the two brothers waived all of their arguments for appeal except for whether the probate court gave them adequate time and notice to respond to the accounting. The brothers’ presentation of the other issues didn’t comply with Indiana Appellate Rule 46(A)(8)(a), lacking citations to the record or to applicable authority.

James and Robert argued that the final accounting was approved by the probate court nine days after it was submitted and without notice to the parties, and thereby the court erred as a matter of law. The third amended final accounting approved is a final order subject to challenge under Trial Rule 59 or on appeal, because it constitutes a final judgment, wrote Judge L. Mark Bailey. Therefore, the brothers had no right to notice or an opportunity to be heard on it after the estate submitted it for court approval.

James and Robert argued that logic means they would have to accept whatever was reported in the final accounting without benefit of any review and pointed to errors in the second amended final accounting that were corrected as examples of the type of errors they claim would be avoided by their approach.

“This argument is simply not credible,” wrote the judge. “Moreover, under James’s and Robert’s interpretation of the statute, every accounting would require notice and a hearing. Thus the only way an estate could be closed is if all interested parties agreed to the accounting with no objection. … We refuse to adopt an interpretation that would lead to an absurd result that is so contrary to the purpose of Indiana’s probate scheme: to close the estate ‘as promptly as possible.’”

The appellate judges also found the brothers engaged in procedural bad faith. Their appellate briefs failed to present an appropriately framed statement of facts or proper argument on many points, and they presented a statement of facts littered with argumentative statements that don’t comply with the standard of review. The judges remanded for the assessment of attorney’s fees in favor of the estate.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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