In re the Estate of Al Katz, Lawrence T. Newman v. Robert W. York, as Personal Representative Internal Revenue Service and, State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 31 2018, 10:15 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Lawrence T. Newman Robert W. York
Bradenton, Florida Robert W. York & Associates
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Estate of Al Katz, December 31, 2018
Deceased Court of Appeals Case No.
18A-ES-1721
Lawrence T. Newman,
Appeal from the Marion Superior
Appellant, Court
v. The Honorable James A. Joven,
Special Judge
Robert W. York, as Personal Trial Court Cause No.
Representative; Internal Revenue 49D13-1009-ES-40244
Service; and, State of Indiana,
Appellees.
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 1 of 18
[1] Lawrence T. Newman (“Newman”) appeals the trial court’s June 12, 2018
order regarding the sale of certain property belonging to the Estate of Al Katz.
We affirm and remand.
Facts and Procedural History
[2] The Last Will and Testament of Al Katz nominated and appointed his son,
Louis Howard Katz, as his personal representative. Katz’s will also stated:
“Because of the estrangement which has developed between my daughter,
Beverly Rochelle Newman, and me, and not for absence of love for her, I
intentionally leave her nothing under this Last Will and Testament.” Id. at 3.
[3] After Katz’s death in 2010, the trial court appointed Beverly Newman
(“Beverly”), Newman’s wife, as personal representative. In October 2010,
Newman filed an appearance for Beverly. On December 20, 2011, the Indiana
Supreme Court suspended Newman for a period of at least eighteen months
and required him to go through the reinstatement process before resuming
practice.1 See In re Newman, 958 N.E.2d 792, 800 (Ind. 2011). On January 25,
2012, Newman filed a motion to withdraw appearance, and Attorney Robert
Zaban filed an appearance for Beverly. On February 3, 2012, the court granted
Newman leave to withdraw as counsel for Beverly.
1
As of December 18, 2018, the Indiana Roll of Attorneys lists Newman’s status as suspended.
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[4] In May 2013, Newman filed a motion for reimbursement of administrative
expenses related to the Estate.2 He asserted that he paid most of the
administrative expenses including utilities, property taxes, and legal expenses,
and requested the court to enter an order directing the Estate to reimburse him
in the amount of $42,284.54. Attorney Zaban filed a response in which he
detailed the actions of Newman and Beverly and asserted that “waste and
jeopardy of the Florida real property of this supervised estate in [sic] ongoing
and accelerating.” Appellee’s Appendix Volume II at 10. On May 29, 2013,
the court granted Attorney Zaban’s motion to withdraw.
[5] On August 28, 2013, October 9, 2013, and March 19, 2014, Newman filed
motions for reimbursement of payment of administrative expenses. On May 7,
2014, the court entered a Rule to Show Cause Why Beverly Should Not Be
Removed as Personal Representative for the Estate, which stated in part that
Beverly had filed a claim against the Estate for services provided to the
decedent during his lifetime in the amount of $233,725; Newman had filed a
claim for services provided to the decedent during his life in the amount of
$43,400 and had filed a claim in the amount of $50,836 against the Estate for
expenses arising from the administration of the Estate; Newman and Beverly
2
Newman asserts that he filed his “Verified Motion for Reimbursement of Payment of Al Katz Estate
Administrative Expenses” on April 27, 2013. Appellant’s Brief at 8. He cites to a copy of the document
which is dated April 27, 2013, but does not contain a file stamp. The chronological case summary includes
an entry dated May 20, 2013, which states: “Document Filed[.] File Stamp: 05/15/2013[.] Verified Motion by
Lawrence T Newman, Pro Se for Reimbursement of Payment of Al Katz Estate Administrative Expenses.” Appellant’s
Appendix Volume II at 13 (capitalization omitted).
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reside at the former residence of the decedent in Florida and said residence
constitutes a significant asset of the Estate; Beverly had not paid homeowner
fees for the Florida residence, which was the subject of a foreclosure action as a
result; and Beverly had not filed a Final Accounting in violation of Probate
Local Rule 411. On June 2, 2014, Beverly filed a response to the rule to show
cause.
[6] On January 12, 2015, the court entered an order removing Beverly as the
personal representative. The order also vacated certain allowances by Beverly
of Newman’s motions for reimbursement of expenses, ordered that Beverly
shall not pay any amount of the claims of her or Newman against the Estate
including for reimbursement of Estate expenses, and appointed Attorney Robert
W. York to serve as the successor personal representative of the Estate. On
February 11, 2015, Beverly filed a motion to correct errors challenging the
removal order and asserting in part that she and Newman had a long-standing
adverse relationship with Attorney York. On May 12, 2015, the court denied
the motion. On June 11, 2015, Beverly filed a notice of appeal of the January
12, 2015 order under Appellate Cause No. 49A02-1506-ES-642 (“Cause No.
642”). On August 21, 2015, this Court dismissed Beverly’s appeal with
prejudice. On November 10, 2015, this Court denied Beverly’s petition for
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rehearing, and the Indiana Supreme Court denied Beverly’s petition for
transfer.3
[7] On September 28, 2015, Attorney York as the personal representative of the
Estate filed a status report and petition for issuance of orders regarding property
of the Estate. On October 19, 2015, Newman and Beverly filed a response
requesting in part that the court:
(1) immediately approve the Estate administrative expense
reimbursement motions respectively filed by [Newman] and
[Beverly]; (2) issue an order compelling Robert York to use his
best efforts to obtain the written agreement of the Internal
Revenue Service granting priority of the Estate’s administrative
expenses claimed by [Newman] and by [Beverly] over the IRS’[s]
claim for unpaid income taxes of Al Katz, penalties, and interest
and to obtain the written agreement of the IRS to remove its
claim and lien from Al Katz’s Indianapolis home; and (3) for all
other relief just and proper in the Premises.
Id. at 96.
[8] On December 8, 2015, the court ordered that Attorney York as the personal
representative take all reasonable action required to close the sale of the Estate’s
real property located at 4727 N. Ritter Avenue in Indianapolis (the “Ritter
Property”) to Matthew G. Evans for the gross purchase price of $57,000 in
cash.
3
The Indiana Supreme Court’s order denying transfer listed Beverly and Newman as appellants.
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[9] On January 25, 2016, Newman filed a Verified Petition for Payment of Estate
Attorney Fees. On March 2, 2016, the court entered a Rule to Appear and
Show Cause Regarding December 9, 2015 Order Pertaining to Estate’s Ritter
Property in which the court ordered in part that Newman shall “show cause
why he should not be attached and punished for indirect contempt of Court for
his December 29, 2015 instituted resistance, hindrance and delay in the carrying
out of or putting into effect the lawful December 9, 2015 Order of this Court
which Ordered the sale of the Estate’s Ritter Property in the manner required by
that Order.”4 Id. at 127. On May 9, 2016, Newman filed a Notice of Court of
Transfer of Interest of Administrative Expense Claim and Motion for Approval
and Payment of Claim.
[10] On June 21, 2017, the court entered an Order of Instructions as to the Ritter
Property ordering in part that Attorney York as the personal representative
notify counsel for the United States of America, the Indiana Department of
Revenue (the “IDOR”), the Office of the Marion County Auditor, and Evans,
that he is prepared to facilitate the sale or transfer of the Ritter Property and
that Evans and those taxing authorities shall work together to agreeably resolve
all liens and claims against the Ritter Property.5
4
It appears that the trial court intended to refer to the December 8, 2015 order.
5
The chronological case summary indicates numerous filings and multiple orders were entered between
January 25, 2016, and June 21, 2017. The record does not include copies of all of the court’s orders.
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[11] On August 4, 2017, the court entered an Order Directing Sale of Ritter Avenue
Property and Distribution of Proceeds which states in part:
11. On March 2, 2016, the Court issued its Rule to Show Cause
requiring [Beverly] and [Newman] to appear and show cause as
to why they each[] should not be found in indirect contempt of
court for their resistance, hindrance, and delay in the carrying out
of or putting into effect the December 8, 2015, Order of this
Court. The Show Cause Order also relieved the Personal
Representative from selling the Ritter Avenue Property until
matters pertaining to that Rule to Show Cause were fully
resolved and the Court issued subsequent instructions to the
Personal Representative.
*****
13. [Newman] had also previously asserted (and continues to
assert) claims against the Estate totaling more than $50,000.00
purportedly expended on behalf of the Estate. With respect to
[Newman’s] claims for administrative expenses, the Court, in its
Removal Order, recognized that the Estate had de minimis assets
and that [Newman] did not assert any such claims until 16
months after he withdrew as [Beverly’s] attorney. The Court
determined that [Newman’s] claims constituted an unlawful
conflict of interest, vacated [Beverly’s] allowances of [Newman’s]
claims, and specifically directed [Beverly] not to pay those claims.
14. The Court has repeatedly denied [Newman’s] claims for
administrative expenses. Time and again, [Newman] has
(unsuccessfully) attempted to have the Court recognize that his
administrative claims were still in existence. During the July 21,
2017, hearing, the Court restated from the bench that the Court
had long ago denied [Newman’s] purported claims against the
Estate.
15. Although the Indiana Probate Code generally provides that
claims for expenses of administration take priority over claims for
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taxes, the filing of the Federal Tax Lien against the Ritter
Avenue Property invoked the following:
Nothing in this section shall affect or prevent any action or
proceeding to enforce any mortgage, pledge, or other lien
upon property of the estate.
Ind. Code § 29-1-14-1(e). Moreover, specific liens take
precedence over expenses of administration, the payment of the
reasonable expenses of decedent’s funeral, and the reasonable
expenses of decedent’s last sickness. Estate of Lammerts v. Heritage
Bank & Trust Co., 663 N.E.2d 1174, 1176-77 (Ind. Ct. App.
1996)[, trans. denied].
16. Although the Court denied [Newman’s] claims several years
ago, even if they continued to exist as administrative claims, the
liens of the tax authorities on the Ritter Avenue Property take
precedence over any such claims.
17. On October 21, 2016, a tax lien certificate for the Ritter
Avenue Property was sold at a tax sale because property taxes
had been unpaid. On or before October 21, 2017, at least
$9,390.97 (the balance due as of June 14, 2017), plus accruing
interest, must be paid to the Treasurer or a Tax Deed will be
issued to the tax sale purchaser, and the Estate will no longer be
able to sell the Ritter Avenue Property.
18. Time is of the essence in this matter, as the redemption date
for the tax lien certificate is approaching.
19. The current balance in the Estate’s checking account is
$1,913.91, and the Estate has insufficient resources to pay the
amount required to redeem the Ritter Avenue Property from the
tax sale.
*****
29. At the hearing on July 21, 2017, [Newman] was the sole
challenger to the sale of the Ritter Avenue Property. [Newman’s]
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only ground to challenge the sale was that he had not been paid
what he asserted were his claims for administrative expenses.
30. The Court again rejects [Newman’s] assertions that he has
pending claims against the Estate.
*****
36. This Order pertains solely to the sale of the Estate’s Ritter
Avenue Property, the distribution of proceeds from such sale,
and the claims and liens asserted. Other matters pertaining to the
administration of the Estate remain pending.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that Robert W. York, as the Personal
Representative, and all persons with a direct interest in the Ritter
Avenue Property, shall forthwith take all reasonable actions
required to close the sale of the Ritter Avenue Property to
Matthew G. Evans for the gross purchase price of $57,000.00 . . .
.
*****
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the sale of the Ritter Avenue Property and distribution of the
sale’s proceeds, as hereinabove Ordered, shall not be stayed by
any appeal or other action to contest this Order, unless the
person or entity seeking such appeal shall, within 15 days after
the entry of this Order, file with this Court a motion for stay
accompanied by a bond (provided for by Indiana Rule of Trial
Procedure 62) in the amount sufficient to secure any amount
recovered for the loss or detention of the property; to pay all
obligations of the Estate of Al Katz to the extent that the other
property of the Estate is insufficient to pay those obligations; the
costs of the action and costs on appeal, including any attorney
fees incurred by the Personal Representative in defending the
appeal; interest; and any other amounts as justice requires. This
potential appeal bond amount is not yet determined and is
subject to this Court’s jurisdiction, per Trial Rule 62.
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Id. at 176-183. On August 9, 2017, the court entered and order setting the
appeal bond at $125,000.
[12] On April 11, 2017, Attorney York filed “Personal Representative’s Application
for Temporary Restraining Order and for Further Injunctive Relief Regarding
Florida Lawsuit.”6 Appellant’s Appendix Volume II at 54. On August 28,
2017, the court entered an Order Granting Injunctive Relief which states in
part:
B. THE NEWMANS’ CLAIMS AGAINST THE ESTATE
6. On January 6, 2011, [Newman] filed Claim No. 2 against the
Estate in the amount of $11,600.51. On February 1, 2011,
[Beverly] filed Claim No. 3 against the Estate in the amount of
$233,725.00, for personal services alleged to have been provided
to Katz. On February 2, 2011, [Newman] filed Claim No. 4
against the Estate for personal services alleged to have been
provided to Katz, valued at $43,400.00.
*****
8. On March 14, 2011, this Court dismissed Claim No. 2. On
March 21, 2011, the Court dismissed Claims No. 3 and 4.
9. On April 12, 2011, [Beverly], in her former capacity as
personal representative of the Estate, filed a “Claim Allowance
Form” that purported to allow the Newmans’ separate Claims 2,
3, and 4 against the Estate, despite the Court’s previous dismissal
of those Claims. Also on April 12, 2011, [Beverly] filed her
“Verified Motion To Vacate Orders Dismissing Claims 002, 003,
and 004 And For Leave to File Claim Allowance Form.” A
6
The record does not contain a copy of the April 11, 2017 filing.
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review of the Record of Proceedings in this Estate does not show
any ruling on [Beverly’s] April 11 motion to vacate the orders
dismissing the Newmans’ claims.
10. The Record suggests, however, that the Estate did not pay
the Newmans’ claims. Following the Court’s dismissal of his
claims, [Newman] filed four separate motions seeking payment
from the Estate for utility, property tax, other real property costs;
legal expenses and costs incurred with respect to multiple
damages lawsuits the Estate initiated in Florida; costs incurred
with respect to the defense of a foreclosure action filed against Al
Katz’s Florida condominium by his condominium association;
and other expenses [Newman] asserted that he incurred to
administer the Estate.
11. While his Claim No. 4, filed in 2011, sought payment of
$43,400.00 from the Estate, on April 27, 2013, [Newman] sought
payment of only $42,284.54. On August 28, 2013, [Newman]
again sought payment of $42,284.54, plus an additional
$2,054.11 for amounts set forth on Exhibit 1 of his August 28
motion, for a total of $44,338.65. On October 9, 2013,
[Newman’s] claimed payment due from the Estate rose to
$45,414.13. On March 19, 2014, [Newman] sought $50,836.81.
12. On April 25, 2014, [Beverly], in her former capacity as
personal representative of the Estate, filed her “Personal
Representative’s Approval Of [Newman’s] Motions For
Reimbursement Of Estate Expenses” (the “Approval”). On May
1, 2014, [Beverly] filed her “Personal Representative’s Verified
Approval of [Newman’s] Motions For Reimbursement Of Estate
Expenses” (the “Second Approval”). As with the Claim
Allowance Form, [Beverly] filed the Approval and the Second
Approval despite the Court’s previous dismissal of [Newman’s]
claims.
Appellee’s Appendix Volume II at 192-193. The court also discussed the
lawsuit filed by the Newmans against Attorney York in Florida. The court
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determined that an injunction preventing the Newmans from further
prosecuting their lawsuit against Attorney York was appropriate, that the
Newmans’ lawsuit frustrated policies of the court and was vexatious and
oppressive, and that injunctive relief would prevent multiplicity of lawsuits. On
September 29, 2017, the court denied Newman’s motion to correct errors
regarding the injunction.
[13] On October 22, 2017, Newman filed a notice of appeal of the August 4, 2017,
and August 9, 2017 orders under Appellate Cause Number 49A05-1710-ES-
2475 (“Cause No. 2475”). That same day, Newman filed a notice of appeal of
the court’s August 28, 2017, and September 29, 2017 orders under Cause No.
2475. On November 27, 2017, Attorney York filed a verified motion to dismiss
the appeal as untimely. That same day, Newman filed a Motion for Two
Separate Appeals which stated in part that “[s]aid Appeal is substantially based
upon the trial court’s failure and refusal to hear and determine [his] multiple
motions for reimbursement of Estate administrative expenses prior to the
distribution of the subject sale proceeds, such that [he] is prevented from
sharing in said sales proceeds.” November 27, 2017 Motion for Two Separate
Appeals at 1-2.
[14] On January 4, 2018, this Court entered an order which granted in part and
denied in part Attorney York’s motion to dismiss. Specifically, this Court
ordered that Newman’s appeal of the trial court’s August 4, 2017, and August
9, 2017 orders be dismissed with prejudice and denied the motion to dismiss
Newman’s appeal of the trial court’s August 28, 2017 order. This Court’s order
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also stated that Newman’s Motion for Two Separate Appeals was denied as
moot because Newman’s appeal of the trial court’s August 4, 2017, and August
9, 2017 orders had been dismissed.
[15] On June 6, 2018, Attorney York filed a second verified motion to dismiss the
appeal.7 On September 12, 2018, this Court granted Attorney York’s motion to
dismiss the appeal, ordered the appeal dismissed with prejudice, granted
Attorney York’s request for appellate attorney fees, and remanded to the trial
court to calculate the amount of appellate attorney fees. On October 12, 2018,
Newman filed a petition for rehearing. On November 19, 2018, this Court
denied Newman’s petition for rehearing.
[16] Meanwhile, on December 18, 2017, the trial court entered Additional
Instructions Regarding the Ritter Property which found that Evans indicated his
unwillingness to move forward with the purchase of the property due to the
property having an undisclosed in-ground septic system rather than a municipal
sewer system. The court instructed the personal representative to begin
investigating the current value of the property and obtain a new appraisal.
7
Attorney York argued that: “1. [Newman’s] Appendix and Brief were untimely filed; 2. [Newman] commits
bad faith in attempting to assert the existence of issues previously dismissed with prejudice by this Court; 3.
[Newman’s] brief repeatedly violates the provisions of Ind. Appellate Rule 22(C) and Ind. Appellate Rule 46
by failing to support his ‘fact’ statements with proper reference to his Appendix and by refusing to recite facts
in accordance with the applicable standard of review[;] 4. [Newman] commits bad faith in attempting as a
non-attorney to represent the interests of his wife, Beverly[;] 5. [Newman’s] brief is replete with hyperbolic
and accusatory statements showing an inappropriate tone and lack of respect for the opposing party; and 6.
[Newman’s] appellate materials are replete with redundant, immaterial, impertinent, scandalous or other
inappropriate matter and fail to include necessary records.” June 2, 2018 Second Verified Motion to Dismiss
Appeal at 1-2.
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[17] On March 2, 2018, the court entered an Agreed Order Regarding Ritter
Property which found that the purchase agreements and occupancy agreement
between the Estate and Evans were vacated. On March 26, 2018, Newman
filed an Objection to Donation or Discard of Al Katz’s Personal Property. On
April 2, 2018, the trial court overruled Newman’s objection and ordered the
personal representative to execute a listing agreement to place the Ritter
Property on the market for sale at an initial listing price of $100,000.
[18] On April 25, 2018, the court entered a Judgment Order Pertaining to Beverly’s
Accounting, which ordered that “the December 16, 2017, ‘Second/Third Final
Accounting of Dr. Beverly Newman’ is disapproved as to her administration of
the Estate’s Ritter Avenue Property and personal property, and her improper
expenditure of Estate assets.” Appellee’s Appendix Volume III at 74. The
order also states in part:
25. The Court has issued multiple additional Orders pertaining
to [Newman’s] administrative claims, including its August 4,
2017 “Order Directing Sale of Ritter Avenue Property and
Distribution of Proceeds,” finding that [Newman’s] said claims
had “long ago” been denied by the Court. [Newman’s]
attempted appeal of that Order was dismissed with prejudice by
the Indiana Court of Appeals on January 5, 2018.
Id. at 65. The court ordered that Beverly be personally charged the sum of
$53,362.36, and entered judgment for the Estate against her in that amount.
[19] On June 12, 2018, the court entered an Agreed Order of Instructions as to Sale
of Ritter Avenue Property, which instructed the personal representative to
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accept the purchase offer of J & D Realty Services to purchase the Ritter
Property for $62,000, close on the sale as soon as reasonably possible, and pay
the normal closing costs expected to be approximately $7,809. The court
ordered that the net sale proceeds be distributed with a total of $34,548.44 with
interest paid to the United State Treasury, a total of $9,963.97 with interest paid
to the State of Indiana, and the balance deposited into the Estate’s checking
account.
[20] On July 12, 2018, Newman filed a notice of appeal of the July 12, 2018 order
and asserted that the appeal was from an interlocutory order taken as of right
pursuant to Ind. Appellate Rule 14(A) or 14(D).
Discussion
[21] Newman argues that Attorney York was wrongfully appointed because of his
long-standing animus against him; that the trial court’s disparate treatment of
him and Attorney York evidence bias; the trial court’s determinations that his
administrative expense claims were dismissed or denied are erroneous; and that
his administrative expense claims have statutory priority over federal and state
tax claims.
[22] Attorney York as the personal representative argues that Newman’s appeal
should be dismissed for: violation of the Appellate Rules; his bad faith attempts
to assert issues involving Beverly’s 2015 motion to correct errors; his bad faith
attempt to assert but not support claims of bias by the trial court; and his bad
faith attempt to assert his previously dismissed with prejudice claims for
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administrative expenses. Attorney York argues that Newman invited the error
he now attempts to appeal and that the issues are moot because Newman
“knew that the closing of the sale would occur soon after the June 12, 2018 Sale
Order,” knew that “the proceeds of that sale would not be distributed to him,”
and he “used the entire permitted 30-days to appeal that Order and did so
without seeking a stay.” Appellee’s Brief at 36. Attorney York also asserts that
he is entitled to appellate attorney fees based upon Newman’s wrongful conduct
in this appeal.8
[23] To the extent Newman argues that Attorney York was wrongfully appointed as
the personal representative because of Attorney York’s long-standing animus
against him, we observe that a similar argument was addressed by the trial
court when it denied Beverly’s motion to correct error following the trial court’s
order removing her as the personal representative. This Court dismissed that
appeal with prejudice under Cause No. 642, denied rehearing, and the Indiana
Supreme Court denied Beverly’s petition for transfer. We observe that
Newman is appealing only the July 12, 2018 order. Accordingly, we do not
address this issue. See Reiswerg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010)
8
On November 20, 2018, Newman filed a verified motion to strike Attorney York’s Appellee’s Brief.
(Odyssey) By separate order, we deny Newman’s motion. In his brief, Attorney York argues that we should
strike Newman’s brief because it includes hyperbolic and inappropriate language. We decline to strike
Newman’s appellate brief.
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(holding that the only issues presented in the appeal were those raised by the
trial court’s order certified for interlocutory appeal).
[24] With respect to Newman’s argument that the trial court erred in determining
that his administrative claims were dismissed or denied, Newman cites the
court’s August 4, 2017 order in which the trial court stated that it had
repeatedly denied Newman’s claims for administrative expenses. Newman also
cites the trial court’s August 28, 2017 order in which the court mentioned it had
previously dismissed his claims. However, Newman already sought an
interlocutory appeal of these orders under Cause No. 2475 and the appeal was
dismissed with prejudice. “It is generally recognized that a dismissal with
prejudice is a dismissal on the merits.” In re Guardianship of Stalker, 953 N.E.2d
1094, 1102 (Ind. Ct. App. 2011) (citing MBNA America Bank, N.A. v. Kay, 888
N.E.2d 288, 292 (Ind. Ct. App. 2008)). As such it is conclusive of the rights of
the parties and res judicata as to the questions which might have been litigated.
Id. As we dismissed Newman’s appeal with prejudice, we do not disturb the
trial court’s finding that it had denied Newman’s claims for administrative
expenses, and this issue is foreclosed for our review.
[25] With respect to Attorney York’s request for attorney fees, Ind. Appellate Rule
66(E) provides that this Court “may assess damages if an appeal, petition, or
motion, or response, is frivolous or in bad faith. Damages shall be in the
Court’s discretion and may include attorneys’ fees.” Our discretion to award
attorney fees under Ind. Appellate Rule 66(E) is limited to instances when “an
appeal is permeated with meritlessness, bad faith, frivolity, harassment,
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vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346
(Ind. Ct. App. 2003). To prevail on a substantive bad faith claim, a party must
show that the appellant’s contentions and arguments are utterly devoid of all
plausibility. Id. Procedural bad faith occurs when a party flagrantly disregards
the form and content requirements of the rules of appellate procedure, omits
and misstates relevant facts appearing in the record, and files briefs written in a
manner calculated to require the maximum expenditure of time both by the
opposing party and the reviewing court. Id. at 346-347. In light of Newman’s
appellate briefs and arguments, we conclude that Attorney York as personal
representative is entitled to appellate attorney fees, and we remand to the trial
court to determine the proper amount of the appellate fee award.
Conclusion
[26] For the foregoing reasons, we affirm the trial court’s order, grant Attorney
York’s request for appellate attorney fees, and remand for a determination of
Attorney York’s reasonable appellate attorney fees.
[27] Affirmed and remanded.
Riley, J., and Bradford, J., concur.
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