The Indiana Court of Appeals has affirmed an order requiring a Johnson County man to pay his public adjuster for negotiating a settlement on his damaged home. The court found appellate review of his issues were waived, also noting with distaste his words about the trial judge in his case.
In January 2019, Dennis Fulner’s Greenwood home, which was insured with American Family Mutual Insurance Company, was damaged in a fire. After the fire, Fulner executed a power of attorney naming his daughter, Michelle Dridi, attorney in fact so she could negotiate a settlement with American Family.
Unsatisfied with the proposed settlement figure, Fulner, through Dridi, entered into a contract with Cole Kline LLC, owner of Hope Public Adjusters, in which Hope would discuss and negotiate the settlement for Fulner’s home with American Family in exchange for payment of 10% of the settlement “to assist in the preparations and adjusting the coverages attached to the policy that apply to the loss and/or settlement awarded from the date of loss.”
American Family eventually increased its settlement offer to an actual cash value loss determination of $237,892.71, and Hope advised Fulner that he owed Hope $32,337.27. That included $23,789.27, which was 10% of the settlement that Hope had negotiated with American Family; $6,872.50, which Hope had paid an appraiser; and $1,675.50, which Hope had paid an umpire.
Fulner refused to pay, prompting Hope to file a breach of contract action against Fulner and Dridi. The Johnson Superior Court found Fulner in breach and ordered him to pay the full amount requested.
On appeal, the COA found that Fulner’s appellate brief contained “a multitude of deficiencies and violates nearly every provision of App. R. 46(A) in some way.” The court also frowned on Fulner’s “disparaging and disrespectful language in briefs” regarding the trial court judge in his case, Judge Kevin M. Barton of the Johnson Superior Court.
“Further, the statement of facts must also be devoid of argument. … Here, however, Fulner’s statement of facts is almost purely argument and certainly does not provide a narrative statement of the facts presented in a light most favorable to the judgment. More troubling is that Fulner’s facts section again contains argument and unsupported accusations against the trial court judge,” Judge Rudolph Pyle wrote for the appellate court.
“For example, Fulner argues that Kline, the appraiser, and the trial court judge worked together with American Family to ‘force [a] change [in] the policy[.]’ Fulner also accuses Kline, the appraiser, and the trial court judge of acting fraudulently and in bad faith,” Pyle wrote.
Additionally, the panel said Fulner’s argument section did not contain a clear and accurate statement of the arguments.
“Rather, Fulner merely continues to accuse the trial court judge of ‘help[ing] [Kline and the appraiser] on doing the Fraud by making these Lies and Fraud all legal even though they break the Rules of the court, laws of Indiana, and laws of our country,’” Pyle wrote.
On a final note, the appellate court found Fulner’s arguments were not supported by cogent reasoning and relevant authority as to why the trial court committed reversible error. It observed that Fulner cited no caselaw and that his brief continued to be “unnecessarily hostile in tone throughout and impugns Kline, the appraiser, and the trial court judge.”
“‘Petulant grousing’ and ‘hyperbolic barbs’ do not suffice as cogent argument as required by our appellate rules. Moreover, a brief cannot be used as a vehicle for the conveyance of hatred, contempt, insult, disrespect, or profession[al] discourtesy of any nature for the court of review, trial judge, or opposing counsel,” Pyle wrote. “… Here, because Fulner’s noncompliance with the appellate rules substantially impedes us from reaching the merits of this appeal, we are compelled to find that the issues raised are waived.”