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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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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