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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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