Ginger Hallett (nee Louder) v. Jill E. Newlin, Gregory N. Kinworthy, and Robert C. Kinworthy, II (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 07 2020, 8:37 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEES
Ginger Hallett Justin M. Gifford
Sainte-Anne-De-Kent, New Brunswick Beck Rocker & Habig, P.C.
Canada Columbus, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ginger Hallett (née Louder), July 7, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-PL-37
v. Appeal from the Bartholomew
Circuit Court
Jill E. Newlin, Gregory N. The Honorable Kelly S. Benjamin,
Kinworthy, and Robert C. Judge
Kinworthy, II, Trial Court Cause No.
Appellees-Plaintiffs 03C01-1808-PL-4731
Crone, Judge.
Case Summary
[1] Siblings Ginger Hallett, Jill E. Newlin, Gregory N. Kinworthy, and Robert C.
Kinworthy, II, inherited a house from their father. Newlin and her brothers
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(collectively Appellees) wanted to sell the house, but Hallett objected.
Appellees filed an action to partition the property, and the trial court ordered
mediation. Hallett and Appellees signed an agreement to sell the house, but the
sale fell through. Appellees found another buyer, but Hallett objected to the
sale. Ultimately, the trial court ordered the house sold at auction and granted
Appellees’ request to pay their attorney’s fees and related expenses with the sale
proceeds. Hallett now appeals, arguing that the trial court lacked jurisdiction to
order the sale after the parties signed their agreement and that the trial court
erred in allowing Appellees’ attorney’s fees and related expenses to be paid with
the sale proceeds. We hold that the trial court had legal authority to order the
sale but that it abused its discretion in allowing the payment of attorney’s fees
and related expenses. Accordingly, we affirm in part, reverse in part, and
remand.
Facts and Procedural History
[2] The relevant facts are undisputed.1 The parties’ father died in March 2018, and
they inherited his house in Columbus as tenants in common via a transfer-on-
death deed. Appellees wanted to sell the house, but Hallett objected. In August
2018, Appellees, by counsel, filed a partition action pursuant to Indiana Code
Chapter 32-17-4. See Ind. Code § 32-17-4-1(a) (providing that tenants in
common may compel partition). In December 2018, Appellees filed a motion
1
Both parties’ statements of fact are inappropriately argumentative and verbose.
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for summary judgment and motion to proceed with sale, in which they
requested that their attorney’s fees and costs be paid from the sale proceeds. In
January 2019, the trial court referred the matter to mediation and did not rule
on Appellees’ motions. See Ind. Code § 32-17-4-2.5(a) (“Not later than forty-
five (45) days after the court has acquired jurisdiction over all the parties who
have an interest in the property that is the subject of the action, the court shall
refer the matter to mediation in accordance with the Indiana rules of alternative
dispute resolution.”). In February 2019, the parties signed an agreement to sell
the house to a potential buyer for $80,000, but the sale fell apart through no
fault of any of the parties. 2
[3] Appellees found another buyer who agreed to purchase the house for $75,000,
but Hallett objected to the sale. Appellees asked the trial court to reconsider
their motion for summary judgment and motion for sale. In June 2019, the
court granted Appellees’ motions and ordered the house to be sold pursuant to
the purchase agreement. Hallett, who has appeared pro se throughout this
proceeding, filed a motion to correct error, which she later amended. Appellees
filed a response in which they requested that $1625 in attorney’s fees and costs
allegedly incurred “in responding to [Hallett’s] intentional, obstreperous, and
2
Hallett complains that Appellees did not take “a single step to avoid having their buyer back out of the
sale[,]” Appellant’s Br. at 14 n.26, but she cites no authority for the proposition that they were obligated to do
so.
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spurious litigation” be paid from Hallett’s share of the sale proceeds.
Appellant’s App. Vol. 2 at 109.
[4] The trial court held a hearing on the pending motions and issued an order
giving the parties thirty days to agree upon a method of sale; if no agreement
was reached, the house would be sold at auction, by either an auctioneer agreed
upon by the parties or one appointed by the court. No agreements were
reached, so Appellees filed a motion to appoint an auctioneer. In November
2019, the court issued an order directing the sheriff to sell the property at
auction and directing the proceeds to be applied in the following order: (1)
auction costs; (2) real estate taxes and assessments; (3) expenses paid from the
father’s bank account, including “$6,723.38 for past paid insurance, utilities,
maintenance, and property taxes on the property[,] cost of title search in the
amount of $200, and attorney fees and expenses in the amount of $12,399.88”;
and (4) the parties’ respective ownership interests in the property. Id. at 209
(emphasis omitted). The court did not order any attorney’s fees or related
expenses to be paid solely from Hallett’s share of the proceeds. Hallett filed a
motion to correct error, which the trial court denied in December 2019. Hallett
appeals from that ruling.
[5] In January 2020, the house was sold at auction for $51,000. Appellees filed a
motion to disburse funds, including $14,923.38 for attorney’s fees and related
expenses and $29,144.24 to the parties; Appellees did not request that any
attorney’s fees or related expenses be paid solely from Hallett’s share of the
proceeds. The trial court granted the motion.
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Discussion and Decision
Section 1 – Hallett has failed to establish that the trial court
lacked legal authority to order the sale of the property.
[6] Hallett appeals pro se from the denial of her motion to correct error. “A litigant
who proceeds pro se is held to the same established rules of procedure that
trained counsel is bound to follow.” Health & Hosp. Corp. of Marion Cty. v.
Foreman, 51 N.E.3d 317, 318 (Ind. Ct. App. 2016) (italics omitted). “We will
not become an advocate for a party, or address arguments that are
inappropriate or too poorly developed or expressed to be understood.” Basic v.
Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016) (citation and quotation marks
omitted).
[7] “A trial court is vested with broad discretion to determine whether it will grant
or deny a motion to correct error.” Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct.
App. 2007). “A trial court has abused its discretion only if its decision is
clearly against the logic and effect of the facts and circumstances before the
court or the reasonable inferences therefrom.” Id. “The trial court’s decision
comes to us cloaked in a presumption of correctness, and the appellant has the
burden of proving that the trial court abused its discretion.” Id. In reviewing a
ruling on a motion to correct error, we also consider the standard of review for
the underlying ruling. Luxury Townhomes, LLC v. McKinley Props., Inc., 992
N.E.2d 810, 815 (Ind. Ct. App. 2013), trans. denied. For this issue, that standard
is de novo. See Doe v. Adams, 53 N.E.3d 483, 495 (Ind. Ct. App. 2016) (where
facts are undisputed on summary judgment and issue presented is pure question
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of law, we review matter de novo), trans. denied; Robinson v. Robinson, 125
N.E.3d 1, 4 (Ind. Ct. App. 2019) (“statutory interpretation presents a pure
question of law for which summary judgment disposition is appropriate”), trans.
denied.
[8] Hallett contends that the trial court lacked “jurisdiction” to order the sale of the
property because the parties had signed a mediated agreement, which she did
not breach. Appellant’s Br. at 14. This argument is more appropriately framed
as a challenge to the court’s legal authority to order the sale. See Fry v. Fry, 8
N.E.3d 209, 214-15 (Ind. Ct. App. 2014) (explaining that Indiana courts have
only two kinds of jurisdiction, subject matter and personal, neither of which is
at issue in this case). 3 Once the agreed-upon sale fell apart, through no fault of
any of the parties, the case was essentially back to square one. 4 Hallett objected
to Appellees’ proposal to sell the property to a second buyer, and she does not
contend that the trial court was required to order a second round of mediation.
The trial court held a hearing and gave the parties a final opportunity to
negotiate an agreement to sell the property; when those negotiations failed, the
court was well within its legal authority to order the property sold at auction.
3
Hallett claims that she did not receive notice of Appellees’ motion to reconsider, but she acknowledges that
she obtained actual notice online and has neither alleged nor established any resulting prejudice. Hallett also
asserts that a summary judgment motion is “not permitted by the partition statute[,]” Appellant’s Br. at 14,
but she cites no authority for this assertion. Indiana Code Chapter 32-17-4 does not prohibit such motions,
and this Court reviewed a summary judgment ruling in a partition action in Baker v. Chambers, 398 N.E.2d
1350 (Ind. Ct. App. 1980).
4
Consequently, we reject Hallett’s argument that the mediated agreement finally disposed of the matter and
thus Appellees’ motion to reconsider was untimely and they were required to provide her with “new service
of process[.]” Appellant’s Br. at 15.
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See Ind. Code § 32-17-4-2.5(g) (providing that if agreed settlement is not reached
in mediation, trial court shall order property sold at auction). In sum, Hallett’s
argument fails.
Section 2 – The trial court abused its discretion in allowing
Appellees’ attorney’s fees and related expenses to be paid from
the sale proceeds.
[9] Hallett also contends that the trial court erred in allowing Appellees’ attorney’s
fees and related expenses to be paid from the sale proceeds. “We review a
decision to grant attorney fees for an abuse of discretion.” Bunger v. Demming,
40 N.E.3d 887, 900 (Ind. Ct. App. 2015), trans. denied. “Indiana generally
adheres to the American rule that a party must pay his own attorney fees absent
an agreement between the parties, a statute, or other rule to the contrary.” Id.
[10] Hallett contends that Indiana Code Chapter 32-17-4 does not permit an award
of attorney’s fees in partition proceedings. Indiana Code Section 32-17-4-2.5
says the following about reimbursement for various payments and expenses:
(h) At the time the court orders the property to be sold, the court
shall notify all lienholders and other persons with an interest in
the lien or property, as identified in the title search or lien search
required under IC 29-1-17-11 or section 2 of this chapter, of the
sale. The property must be sold free and clear of all liens and
special assessments except prescriptive easements, easements of
record, and irrevocable licenses, with any sum secured by a lien
or special assessment to be satisfied from the proceeds of the sale.
(i) The person who causes a title search to be conducted under
section 2 of this chapter or a title or lien search to be conducted
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under IC 29-1-17-11 is entitled to reimbursement from the
proceeds of the sale.
(j) Any person who has paid a tax or special assessment on the
property is entitled to pro rata reimbursement from the proceeds
of the sale.
(k) Any person may advertise a sale under this section at the
person’s own expense, but is not entitled to reimbursement for
these expenses.
(l) After deduction of the amounts described in subsections (h),
(i), and (j) and the reasonable expenses of the sale, the court shall
divide the proceeds of the sale among the remaining property
owners in proportion to their ownership interest.
The statute says nothing about attorney’s fees and related expenses.
[11] Appellees essentially concede this point, but they contend that an award of
attorney’s fees and related expenses was proper based on what they characterize
as Hallett’s “vexatious” behavior during the proceeding. Appellee’s Br. at 11.
Indiana Code Section 34-52-1-1(b) provides,
In any civil action, the court may award attorney’s fees as part of
the cost to the prevailing party, if the court finds that either party:
(1) brought the action or defense on a claim or defense that is
frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party’s
claim or defense clearly became frivolous, unreasonable, or
groundless; or
(3) litigated the action in bad faith.
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Leaving aside the question of whether Appellees actually prevailed in what is
essentially an in rem action, there is no indication that the trial court awarded
attorney’s fees and related expenses on any of these grounds, even though
Appellees requested that it do so in their response to Hallett’s amended motion
to correct error. That being the case, we reverse and remand with instructions
to vacate the award of attorney’s fees and related expenses and distribute those
proceeds to the parties in proportion to their ownership interest in the property.
Because Hallett has prevailed on this issue, we deny Appellees’ request to
award them “attorney’s fees and the costs of this appeal … for Hallett’s
obdurate behavior.” Appellees’ Br. at 13.
[12] Affirmed in part, reversed in part, and remanded.
Bailey, J., and Altice, J., concur.
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