In the Matter of the Supervised Estate of Evelyn Garrard Ronald Garrard v. Debra L. Teibel and Douglas Grimmer and Debra Lindsay , 2013 Ind. App. LEXIS 117 ( 2013 )

FOR PUBLICATION
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
RONALD D. GARRARD MICHAEL L. MUENICH
Griffith, Indiana
Mar 08 2013, 9:21 am
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE SUPERVISED )
ESTATE OF EVELYN GARRARD )
)
RONALD D. GARRARD, )
)
Appellant/Plaintiff/Counterclaim and )
Third-Party Defendant, )
vs. ) No. 45A03-1111-PL-547
)
DEBRA L. TEIBEL and DOUGLAS GRIMMER, )
)
Appellees/Defendants/Counterclaim and )
Third-Party Plaintiffs, )
)
and )
)
DEBRA LINDSAY, )
)
Appellee/Third-Party Defendant. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Elizabeth F. Tavitas, Special Judge
Cause No. 45D03-1008-PL-3, 45D03-1008-ES-2, and 45D03-1008-GU-1
March 8, 2013
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
This is the second appeal stemming from a lawsuit filed by Ronald Garrard
(“Garrard”) as the attorney-in-fact for Evelyn Garrard (“Evelyn”), now deceased, against
Evelyn’s children, Debra L. Teibel (“Teibel”) and Douglas Grimmer (“Grimmer”), who
filed a counterclaim and a third-party complaint against Garrard and his daughter, Debra
Lindsay (“Lindsay”).1 The proceeding on the initial lawsuit and counterclaim has gone
before multiple trial judges, accompanied by various changes in cause numbers. This
case has also been intertwined with a separate guardianship proceeding—which
apparently resulted in the appointment of a guardian over Evelyn—and an estate
proceeding (“the Estate”)—which was filed by Teibel as personal representative for
Evelyn following Evelyn’s death and against which Garrard filed various claims.
Throughout these proceedings, Garrard, who represented himself, was repeatedly
warned by the trial court about using language in his pleadings that impugned the trial
court and opposing counsel. Garrard was ultimately held in contempt of court for failing
to comply with the trial court’s orders.
Teibel and Grimmer filed three separate summary judgment motions—one on
Garrard’s complaint, one on their counterclaim, and one on Garrard’s claims against the
Estate. The trial court granted summary judgment in favor of Teibel and Grimmer on all
three motions. Garrard now appeals the trial court’s grant of summary judgment to
Teibel and Grimmer on their counterclaim and on Garrard’s claims against the Estate.
We affirm.
1
Lindsay did not file a brief in this appeal. However, pursuant to Indiana Appellate Rule 17(A), a party
of record in the trial court shall be a party on appeal.
2
ISSUE
Whether Garrard has waived appellate review of his arguments.
FACTS
This is the second appeal Garrard has filed in this case. The underlying facts
leading up to Garrard’s action against Teibel and Grimmer were set forth in Garrard’s
first appeal as follows:
Garrard was previously married to Evelyn, but the two were divorced on
July 13, 1993. On May 13, 2003, after being diagnosed with mild dementia
which was expected to progress, Evelyn executed a durable power of
attorney appointing her children Debra T[ei]bel and Douglas Grimmer as
her attorneys-in-fact.
By September 2005, Evelyn was formally diagnosed with Pick’s disease, a
form of frontal temporal dementia. In the spring of 2006, Evelyn became
reacquainted with Garrard, and on March 3, 2006, executed a full power of
attorney naming Garrard as her attorney-in-fact. That same day, Evelyn
also revoked all prior powers of attorney, including the May 2003
document naming T[ei]bel and Grimmer as her attorneys-in-fact. On April
17, 2006, Evelyn remarried Garrard.
On June 15, 2007, Garrard filed a complaint for damages against T[ei]bel
and Grimmer alleging that, despite the revocation of their powers of
attorney, they had taken unlawful action in various accounts owned by
Evelyn. On July 26, 2007, T[ei]bel and Grimmer filed their answer and
affirmative defenses. In addition, they filed a counterclaim and third-party
complaint against Garrard seeking, inter alia, a declaratory judgment
invalidating Garrard’s power of attorney for Evelyn (Count II), and the
appointment of a guardian over Evelyn (Count III). On August 13, 2007,
Garrard moved to dismiss the counterclaim and third-party complaint.
Following T[ei]bel’s and Grimmer’s August 21, 2007 filing of an amended
counterclaim and third-party complaint, the trial court held a hearing on
October 24, 2007.2 In a January 31, 2008 order, the trial court denied
Garrard’s motion to dismiss, and it ordered that America L. McAlpin be
2
Judge Diane Kavadias Schneider was appointed special judge in September 2007. She presided over the
case until April 2009 when she recused.
3
named guardian ad litem for Evelyn. The trial court additionally issued an
injunction prohibiting the disposition of Evelyn’s property by any party.
On July 22, 2008, McAlpin filed a petition seeking emergency appointment
of a temporary guardian for Evelyn. Following a hearing on December 3,
2008, the Probate Commissioner found Evelyn to be incapacitated and in
need of a guardian.
On January 9, 2009, T[ei]bel and Grimmer moved for summary judgment
on Counts II and III of their counterclaim.[3] In support of their motion,
T[ei]bel and Grimmer designated, inter alia, affidavits from Dr. Richard
Cristea, M.D., and Dr. Joseph Fink, Ph.D., indicating that Evelyn was
incapacitated as of September 2005 and would have been unable to
understand the nature and effect of a power of attorney or the nature and
obligation of a marriage contract.
Following a hearing, on December 11, 2009, the trial court granted
summary judgment in favor of T[ei]bel and Grimmer on Counts II and III
of their counterclaim.[4] In granting summary judgment, the trial court
found that the undisputed evidence showed Evelyn was incapacitated by
September of 2005. Significantly, the trial court refused to consider
Garrard’s evidence on the grounds that it consisted of unsworn,
unauthenticated reports which were not proper designations. The court
subsequently denied Garrard’s motion to correct error.
Garrard ex rel. Garrard v. Teibel, Cause No. 45A04-1003-PL-229, *1-2 (Ind. Ct. App.
June 8, 2011), trans. denied.
Garrard, pro se, appealed the trial court’s order granting summary judgment to
Teibel and Grimmer on Counts II and III of their counterclaim. This Court initially
dismissed Garrard’s appeal due to his failure to file a brief or appendix that complied
with the Indiana Appellate Rules, but we later reinstated his appeal. After reviewing the
3
Evelyn died on January 31, 2009. Sometime thereafter, Teibel, as personal representative, opened the
Estate for Evelyn. Garrard has not included a copy of the chronological case summary (“CCS”) or the
underlying pleadings from the Estate case in the record before us.
4
Judge Calvin Hawkins presided over the summary judgment hearing and issued the summary judgment
order.
4
parties’ appellate briefs, we noted that Garrard had failed to demonstrate what designated
evidence he had presented that would show a genuine issue of material fact to overcome
the grant of summary judgment against him, and we further stated that Garrard’s
arguments in his brief left us “unable to discern Garrard’s basis for appeal.” See id. at 2.
Ultimately, we held that Garrard had waived appellate review of his challenge to the trial
court’s summary judgment order due to his failure to comply with the Indiana Appellate
Rules, and we affirmed the trial court’s judgment against Garrard. Thereafter, we granted
Teibel and Grimmer’s motion to tax costs of the appeal under Appellate Rule 67 but
denied their motion for appellate attorney fees.
This current appeal is the result of three separate motions for summary judgment,
which were filed by Teibel and Grimmer during the pendency of the appellate
proceedings on the prior summary judgment motion. On December 18, 2009, Teibel and
Grimmer filed a motion seeking summary judgment on Garrard’s claims in his complaint.
On January 11, 2010, Teibel and Grimmer filed a motion seeking summary judgment on
Counts IV and V in their counterclaim.5 On February 17, 2010, Teibel and Grimmer
filed a summary judgment motion on Garrard’s claims against the Estate.6 Garrard filed
5
In Count IV, Teibel and Grimmer asserted a claim of fraudulent transfer of the marital residence in
violation of the Fraudulent Transfer Act, and in Count V, they asserted a claim of fraud and sought treble
damages and attorney fees under the Crime Victim Compensation Act.
6
From the record before us, it appears that Garrard filed the following claims against the Estate: (1)
spousal claims, including a surviving spouse allowance and a distribution to the second childless spouse;
(2) funeral expenses; and (3) attorney fees for being attorney-in-fact. Again, neither the CCS nor any
pleadings from the Estate case have been included in the record on appeal.
5
responses to these summary judgment motions but has not included a copy of them in his
Appellant’s Appendix.7
The trial court set a combined summary judgment hearing and bench trial for April
29 and 30, 2011. Judge Hawkins commenced the hearing/bench trial but then recused
from the case on April 30, 2011.
Thereafter, in July 2010, Judge Elizabeth F. Tavitas accepted jurisdiction of the
case. In February 2011, Garrard filed various motions, including the following: (1)
motion for change of venue; (2) motion for Judge Tavitas to recuse; (3) motion to dismiss
Teibel and Grimmer’s counterclaim; and (4) motion to void all prior orders of Judge
Hawkins.8 On February 17, 2011, the trial court denied these orders and “admonished
[Garrard] []not to file material in the future which is redundant, immaterial, impertinent
or scandalous.” (Teibel & Grimmer’s App. 7).9
On August 16, 2011, the trial court held a hearing on the three pending summary
judgment motions. The trial court took the summary judgment motions under
advisement and directed the parties to file three proposed summary judgment orders
within one week. The trial court also instructed Teibel and Grimmer’s counsel to deliver
a copy of the proposed summary judgment orders to her court reporter or bailiff in the
courtroom so that they would “get to [her] quicker[.]” Supplemental Tr. at 14.
7
Garrard also failed to include a copy of Teibel and Grimmer’s summary judgment motions in his
Appellant’s Appendix. However, Teibel and Grimmer filed an Appellees’ Appendix and included copies
of their summary judgment motions.
8
Garrard has not included a copy of these motions in his Appellant’s Appendix.
9
We note that Teibel and Grimmer’s Appellees’ Appendix contains highlighted portions of the CCS. We
are unaware of who highlighted the appendix, but we discourage such a practice.
6
Also during this hearing, the trial court addressed whether Garrard should be held
in contempt of court for failing to comply with the trial court’s previous order regarding
“scandalous” pleadings. The trial court found Garrard in “‘direct criminal contempt of
Court’” and instructed him not to file any further pleadings that violated the trial court’s
previous order.10 (Teibel & Grimmer’s App. 6).
Thereafter, the parties filed their proposed summary judgment orders, with Teibel
and Grimmer filing theirs on August 23, 2011, and Garrard filing his on August 25, 2011.
Based on the content of Garrard’s proposed order, Teibel and Grimmer filed a motion to
strike Garrard’s proposed summary judgment orders.
On September 1, 2011, the trial court held a pretrial hearing. During this hearing,
the trial court heard argument on various motions, including Teibel and Grimmer’s
motion to strike Garrard’s proposed summary judgment orders. When Garrard offered
excuses of why his proposed orders were filed late, the trial court stated that it was not
concerned with the filing time of the orders as it was with the content of the orders. The
trial court noted that Garrard’s proposed summary judgment orders were in the nature of
a brief and contained “scandalous” material. Tr. at 28. As a result, the trial court ruled
that Garrard’s proposed summary judgment orders would be struck.
At the end of the pretrial hearing, counsel for Teibel and Grimmer expressed his
concern to the trial court that the clerk’s office had file stamped his proposed summary
judgment orders as being filed on August 26th instead of August 23rd, when he brought
them to the trial court’s staff in open court as instructed by the trial judge. That same
10
Garrard did not include a copy of the trial court’s contempt order in his Appellant’s Appendix.
7
day, the trial court issued an order, finding that Teibel and Grimmer’s proposed summary
judgment orders were filed on August 23, 2011.
On September 8, 2011, the trial court entered three separate summary judgment
orders, all granting summary judgment to Teibel and Grimmer. Specifically, the trial
court: (1) granted summary judgment to Teibel and Grimmer on all claims in Garrard’s
complaint; (2) granted summary judgment to Teibel and Grimmer on Counts IV and V of
their counterclaim; and (3) granted summary judgment to Teibel and Grimmer on
Garrard’s claims against the Estate. In these summary judgment orders, the trial court
indicated that the documents attached to Garrard’s summary judgment responses were
not supported by affidavit or certification. As a result, the trial court struck these
documents from consideration on summary judgment.
On September 12, 2011, the trial court held a bench trial on the issue of damages
relating to Garrard’s fraudulent transfer. Before proceeding to the bench trial, Teibel and
Grimmer requested that the trial court enter final judgment, pursuant to Trial Rule 54(B),
on the prior summary judgment orders. Additionally, the trial court heard argument on
some of Garrard’s various motions, including: (1) his motion objecting to the trial
court’s September 1st order regarding the time of filing of Teibel and Grimmer’s
proposed summary judgment orders, in which Garrard accused the trial court of setting
forth “falsified and untrue assertions”; and (2) his motion for Judge Tavitas to recuse, in
which Garrard accused the trial judge and counsel for Teibel and Grimmer of collusion
and ex parte communication in relation to the trial judge’s instructions to counsel to
deliver copies of the proposed summary judgment orders to her court staff. The trial
8
court allowed Garrard to present evidence and argument regarding his motions.
Thereafter, the trial court heard evidence regarding damages on the fraudulent transfer
issue and took all matters under advisement.
On September 14, 2011, the trial court entered an order, denying Garrard’s recusal
motion and granting Teibel’s motion for entry of final judgment on the previous
summary judgment orders. In relevant part, the trial court entered final judgment on the
following summary judgment orders: (1) Judge Hawkins’ December 11, 2009 summary
judgment order on Counts II and III in Teibel and Grimmer’s counterclaim; (2) the
December 8, 2011 summary judgment order on Garrard’s complaint; (3) the December 8,
2011 summary judgment order on Counts IV and V in Teibel and Grimmer’s
counterclaim; and (4) the December 8, 2011 summary judgment order on Garrard’s
claims against the Estate.
Thereafter, on October 13, 2011, Garrard filed a motion to correct error on the trial
court’s order granting summary judgment against Garrard on his claims against the
Estate, and he filed a separate motion to correct error on the trial court’s order granting
summary judgment on Counts IV and V in Teibel and Grimmer’s counterclaim.11 The
trial court denied Garrard’s motions to correct error on October 25, 2011.
11
Garrard did not include a copy of either motion to correct error in his Appellant’s Appendix. He did,
however, attach a file-stamped copy of both motions to his Appellant’s Case Summary. Teibel and
Grimmer argue that Garrard did not file a motion to correct error from the summary judgment order on
their counterclaim. Given the file-stamped copies of the two motions to correct error and the trial court’s
entry in the CCS indicating that it denied “Motions to Correct Error filed by Garrard[,]” we cannot agree.
(Teibel & Grimmer’s App. 4).
9
On November 14, 2011, Garrard filed two notices of appeal: one from the trial
court’s order granting summary judgment against Garrard on his claims against the Estate
and the other from the trial court’s order granting summary judgment on Counts IV and
V in Teibel and Grimmer’s counterclaim.12
On November 21, 2011, the trial court issued an order from the bench trial on
damages. The trial court entered judgment against Garrard for $601,315.44. Garrard did
not file a notice of appeal from this order.
DECISION
Garrard, pro se, is appealing from two of the trial court’s orders granting summary
judgment against him.13 Summary judgment is appropriate only where the designated
evidence shows “that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). A trial court’s
grant of summary judgment is “‘clothed with a presumption of validity,’” and an
appellant has the burden of demonstrating that the grant of summary judgment was
erroneous. Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009) (quoting Rosi v. Bus.
Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993)).
12
The trial court initially entered an order finding that Garrard’s notices of appeal were untimely and that
the clerk or court reporter did not need to prepare a record or transcript. Shortly thereafter, the trial court
vacated that order.
13
In his Reply Brief, Garrard suggests that he is appealing the monetary judgment entered on November
21, 2011. Because he did not file a notice of appeal from this judgment within thirty days of the trial
court’s order, he has forfeited his right to appeal that judgment. See Ind. Appellate Rule 9(A). See also
Monroe Guar. Ins. Co. v. Magwerks Corp, 829 N.E.2d 968, 977 (Ind. 2005) (“The law is well settled that
grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in
the reply brief, they are waived.”).
.
10
Garrard’s appellate brief and arguments contained therein are not the model of
clarity. He appears to argue that: (1) the trial court erred by denying discovery; (2) the
trial court erred by granting summary judgment to Teibel and Grimmer; (3) the trial court
erred by not allowing him to submit evidence; and (4) the trial court falsified orders and
committed fraud upon the court with opposing counsel.
As he did in his pleadings during the trial proceedings, Garrard continues to use a
contentious tone in his appellate brief. Furthermore, as with his prior appeal, Garrard has
failed to comply with our Appellate Rules. Due to the deficient nature of Garrard’s brief,
Teibel and Grimmer request that we find that Garrard has waived all issues on appeal.
We agree.
Indeed, we have explained that
one who proceeds pro se is held to the same established rules of procedure
that a trained legal counsel is bound to follow and, therefore, must be
prepared to accept the consequences of his or her action. While we prefer to
decide cases on the merits, we will deem alleged errors waived where an
appellant’s noncompliance with the rules of appellate procedure is so
substantial it impedes our appellate consideration of the errors. The
purpose of our appellate rules, Ind. Appellate Rule 46 in particular, is to aid
and expedite review and to relieve the appellate court of the burden of
searching the record and briefing the case. We will not become an advocate
for a party, nor will we address arguments which are either inappropriate,
too poorly developed or improperly expressed to be understood.
Ramsey v. Review Bd. of Indiana Dept. of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct.
App. 2003) (internal quotation marks and citations omitted) (emphasis added).
Garrard has failed to comply with our Appellate Rules in both his appendix and
brief. For example, contrary to Appellate Rule 50(A)(2), Garrard has failed to include a
copy of the CCS in his appendix. Furthermore, he did not include a copy of either
11
parties’ summary judgment motions or designated evidence. “[B]oth our appellate rules
as well as applicable case law clearly indicate that when appealing the grant or denial of a
motion for summary judgment, the moving party must file with the appellate court those
materials that were designated to the trial court for purposes of reviewing the motion for
summary judgment.” Yoquelet v. Marshall County, 811 N.E.2d 826, 829–30 (Ind. Ct.
App. 2004). See also Hughes v. King, 808 N.E.2d 146, 148 (Ind. Ct. App. 2004)
(dismissing appeal of grant of summary judgment when appellant failed to include all
designated evidence in the appendix). Moreover, Garrard has failed to include copies of
some of the trial court’s orders that he appears to be arguing were erroneous.
Garrard’s brief also fails to comply with multiple Appellate Rules. Appellate Rule
46(A)(5) provides that an appellant’s Statement of the Case “shall briefly describe the
nature of the case, the course of the proceedings relevant to the issues presented for
review, and the disposition of these issues by the trial court[.]” It also requires an
appellant to provide page references to the record on appeal or the appellant’s appendix.
However, Garrard’s Statement of the Case is argumentative in nature and does not
contain any references to the course of the summary judgment proceedings or disposition
of the issues relevant to this appeal.
Furthermore, Appellate Rule 46(A)(6) requires an appellant’s brief to have a
Statement of Facts section that “shall describe the facts relevant to the issues presented
for review . . . .” This rule also requires that the facts be in narrative form and supported
by citations to the record on appeal or the appellant’s appendix. Garrard’s facts,
however, are not in a narrative format and do not include relevant citations to his
12
appendix. More troubling is that Garrard’s facts section contains argument and
unsupported accusations against the trial court judge, such as (1) “Judge Tavitas
committed perjury, relevant to the to her [sic] falsified court order of September 1,
2011[;]” (2) the trial court “set forth absolute ‘outright lies’” in its final judgment against
Garrard; (3) “it appears obvious that Judge Tavitas lied and committed perjury in the
process, a sign of unbridled corruption by a sitting judge, validating [Garrard’s]
assertions that Judge Tavitas is both biased, partial, and prejudiced.” Garrard’s Br. at 7,
8, 9. Finally, in his facts section, Garrard sets forth allegations, which are derogatory in
nature, against this Court in relation to his prior appeal: “This denial of [Garrard’s] first
appeal appears to set forth the abject bias and prejudice exhibited by the sitting judges of
the Court of Appeals, towards pro-se litigants.” Id. at 5.
Garrard also violates Appellate Rule 46(A)(8) by failing to support his bare
assertions of error with cogent argument or relevant citations to the record on appeal or
legal authority. A party waives an issue where the party fails to develop a cogent
argument or provide adequate citation to authority and portions of the record. See
Ramsey, 789 N.E.2d at 490; see also Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct.
App. 2003) (“It is well settled that we will not consider an appellant’s assertion on appeal
when he has not presented cogent argument supported by authority and references to the
record as required by the rules.”).
Garrard’s lack of cogent argument impedes our ability to provide meaningful
appellate review of any of his apparent issues. For example, Garrard generally alleges
that the trial court erred by granting summary judgment against him but makes absolutely
13
no cogent argument to show how the trial court erred. Moreover, he utterly fails to show
that a genuine issue of material fact existed. Additionally, Garrard seems to suggest that
the trial court erred by denying discovery and by not allowing him to submit evidence,
but he does not specify or point to the record to show what discovery was denied or what
evidence he sought to submit.14 Finally, in relation to Garrard’s allegation that the trial
court committed fraud by entering an order specifying the date that Teibel and Grimmer’s
counsel filed their proposed summary judgment orders, Garrard fails to provide any
cogent argument showing that the trial court erred in its order. Furthermore, he does not
explain how the trial court’s order regarding the date that a party’s proposed summary
judgment orders were filed affects the trial court’s ultimate decision to grant summary
judgment.
Finally, we note that Garrard’s argument section is also rife with unsupported
accusations and derogatory comments against opposing counsel, the trial judge, and the
trial bench as a whole. For example, he accuses the trial court judge and Teibel and
Grimmer’s attorney of committing fraud upon the court by engaging in “collusion,
conspiracy, perjury, and falsification of orders of the court[,]” Garrard’s Br. at 23, and he
calls the judges in Northwest Indiana “corrupt” and asserts that they are a “pitiful and
despicable group[.]” Id. at 45. We warn Garrard that “we do not look favorably upon
disparaging and disrespectful language in briefs with regard to this Court or the trial
14
His challenge to the alleged denial of discovery would also be waived because Garrard admits that he
already unsuccessfully raised this issue in his prior appeal.
14
courts of this state.” Small v. Centocor, Inc., 731 N.E.2d 22, 31 (Ind. Ct. App. 2000),
trans. denied.15
Here, Garrard’s noncompliance with the Appellate Rules—most notably his
failure to provide cogent argument—substantially impedes us from reaching the merits of
this appeal. Thus, we find that he has waived all issues in this appeal. See, e.g., Ramsey,
789 N.E.2d 486 (holding that the appellant’s substantial noncompliance with rules of
appellate procedure resulted in waiver of his claims on appeal). See also Thacker, 797
N.E.2d at 345 (finding that appellant waived summary judgment challenge where his
unsupported assertions were “too poorly developed to be understood”).
Affirmed.
ROBB, C.J., and MAY, J., concur.
15
Indeed, “[t]he use of impertinent, intemperate, scandalous, or vituperative language in an appellate
brief opens it to being stricken by this court.” Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844
N.E.2d 157, 162 (Ind. Ct. App. 2006), trans. denied.
15