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Daughter’s estate appeal backfires; COA awards fees

January 17, 2019

The Indiana Court of Appeals found a trial court’s decision to approve an estate administrator’s final account was not clearly erroneous. Instead, it noted that a woman appealing the order acted in procedural bad faith, and thus ordered her to pay appellate attorney fees.

After her revocation as the unsupervised administration of her deceased mother’s estate, Rhonda DeLap Tipton made amends with her two siblings in a family settlement agreement. But when ordered to personally appear for failing to offer a closing statement on the estate, a trial court found the conflict remained between the siblings almost two years later. It thus removed Tipton and her brother as co-personal representatives and appointed an Administrator Cum Testamento Annexo of the estate.

The administrator filed a verified petition to settle and allow final account, which included both approvals and disapprovals of various amounts that Tipton and her brother contended the estate owed them. In March 2018, the trial court conducted a hearing on the objections to the administrator’s final account and issued an order finding distribution to Tipton in the amount of repayment of loans and advances $5,186.83.

On appeal, Tipton requested a review of the trial court’s order and to close the estate “correctly” by granting her claim for reimbursement of $9,009.86.

The appellate court noted that Tipton’s appellate brief failed to comply “in virtually every respect” with Indiana Appellate Rule 46. Specifically, the panel found Tipton violated Appellate Rule 46(A)(2) by omitting the table of authorities and Appellate Rule 46(A)(4) by only including arguments and self-serving facts in her statement of the issues.

“Tipton’s nature of the case description, statement of facts, and summary of the argument pursuant to Appellate Rule 46(A)(5);-(6);-(7) are completely nonexistent and missing from her appellate brief,” Judge Patricia A. Riley wrote for the court. “Although Tipton’s brief fails to include a separate argument section as required by Appellate Rule 46(A)(8), it could be argued that the section titled ‘Issues’ presents Tipton’s analysis. However, Tipton fails to support her bare assertions with cogent reasoning, citations to the record, or to legal authorities.”

In finding her contentions too poorly expressed and developed to be understood, the appellate court determined it prevented the court’s appellate analysis and consideration of Tipton’s alleged errors. Thus, her issue was found waived.

Additionally, finding Tipton to have engaged in procedural bad faith before the court, the panel remanded Rhonda DeLap Tipton v. Estate of Virginia D. Hofmann, 18A-EU-1009 to the trial court with instructions to calculate the amount of appellate attorney fees the estate is entitled to recover.

“Keeping in mind our duty to use great restraint when determining that an award of appellate attorney fees is warranted, we nonetheless find that such an award is appropriate under the facts of this case,” Riley concluded. “Moreover, we find that Tipton has engaged in procedural bad faith in her pursuit of this appeal, and appellate attorney fees should therefore be assessed against her share of the Estate.”

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