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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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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