ILNews

Man entitled to damages following excavation of home without notice

Back to TopCommentsE-mailPrintBookmark and Share

In reviewing a case in which an attorney appointed guardian of an adult male unilaterally decided to tear down his home without providing notice to the man, the Indiana Court of Appeals found the attorney violated the man’s due process rights and damages were necessary.

In David L. Stalker v. Mary C. Pierce, No. 61A04-1008-GU-562, Mary Pierce, a Parke County attorney and appointed member of the Parke County Board of Health, was appointed permanent guardian over David Stalker and his property at Stalker’s consent. The two originally had a good relationship as they had worked together when Pierce helped organize his finances so he could work on his home. Stalker has a mental disability and is unable to care for his personal needs or manage his home. His home had fallen into disrepair and needed a lot of work inside and out, but it was never condemned by the board of health.

After a few months, Stalker asked the court to end the guardianship, as he was unhappy with Pierce’s oversight. He repeatedly asked the court to remove her as his guardian, but the court refused. At some of these hearings he had a court-appointed attorney. Pierce had taken away the keys to his home and relocated him to an apartment 10 miles away. He only had a bike for transportation, so it made getting back to his house to fix it up difficult. He worked on the outside and made progress, which Pierce acknowledged. But a week after telling the court that she was willing to keep an open mind about returning the house keys to Stalker, Pierce ordered the home excavated. She did not tell Stalker, who came upon the process after he rode his bike to the house to mow the lawn. He was devastated because he wanted to move back into the home and many family photos and items were destroyed in the excavation.

Pierce never told Stalker that his home was going to be demolished and she didn’t petition to the court for permission. Stalker never was able to collect any items out of his home. The trial court later allowed her to sell the vacant land, which was purchased for $37,500. She used the proceeds to buy Pierce a scooter and prepaid funeral plan, although he wanted the money spent on a car and an attorney so he could have his brother appointed his guardian.

As a result of the demolition of the home, Stalker went to Indianapolis and opted to live homeless. He objected to the amended accounting, alleging Pierce breached her fiduciary duty, failed to act in his best interest, and denied his due process rights. The trial court denied his objection and motion to correct error.

Pierce violated her fiduciary duty to protect, preserve, and manage Stalker’s property, the appellate court determined. There was no evidence that his home had to be destroyed because it was a threat to his well being or that tearing down the house actually improved the value of the land, as she had argued.  

“We find the degree of care and prudence displayed by Pierce in her decisions as a guardian was well below that which an ordinarily prudent person would exercise in her own affairs. We are dismayed at her callousness to demolish Stalker’s property without getting a formal appraisal, without notifying Stalker or the court, and most importantly without providing him with an opportunity to, at the very least, collect his sentimental possessions. We are convinced that Pierce would not have made similar choices with respect to the management of her own property,” wrote Judge Patricia Riley.

The judges also found that Pierce breached her fiduciary duty of loyalty to him because she used information she gleaned as his guardian to fulfill her duties as a member of the board of health. By disclosing information she got about Stalker’s house without prior court approval or notice, her duty as guardian conflicted with her personal obligations as a member of the board of health.

Pierce also violated Stalker’s due process rights as she never informed him that his home was going to be torn down or gave him the chance to retrieve items from the home. As a result, Stalker is entitled to damages, which the trial court will determine on remand.
 

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

ADVERTISEMENT