ILNews

Court orders attorney’s fees following bad faith appeal

Back to TopCommentsE-mailPrintBookmark and Share


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.

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Two cops shot execution style in NYC. Was it first amendment protest, or was it incitement to lawlessness? Some are keeping track of the body bags: http://www.breitbart.com/big-government/2014/12/13/al-sharpton-leads-thousands-in-saturday-march-on-washington-dc/

  2. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  3. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  4. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  5. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

ADVERTISEMENT