Opinion
24A-EU-57
08-19-2024
Unsupervised Estate of Robert L. Stogsdill, Deceased Patricia M. Rexroat, Individually, Appellant-Respondent v. Mark Constantine, Successor Personal Representative, Appellee-Petitioner
ATTORNEY FOR APPELLANT Martha L. Westbrook Indianapolis, Indiana ATTORNEYS FOR APPELLEE Charles R. Grahn Jennifer F. Perry Clark, Quinn, Moses, Scott & Grahn, LLP Indianapolis, Indiana John A. Cremer Jonathan E. Lamb Kaleb Aaron Salisbury Cremer & Lamb Fishers, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Boone Superior Court The Honorable Matthew C. Kincaid, Judge Trial Court Cause No. 06D01-1906-EU-76
ATTORNEY FOR APPELLANT Martha L. Westbrook Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Charles R. Grahn Jennifer F. Perry Clark, Quinn, Moses, Scott & Grahn, LLP Indianapolis, Indiana John A. Cremer Jonathan E. Lamb Kaleb Aaron Salisbury Cremer & Lamb Fishers, Indiana
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] Patricia M. Rexroat appeals the trial court's order granting Mark Constantine's petition to remove her as personal representative of Robert L. Stogsdill's estate. Constantine argues that Rexroat brought this appeal in bad faith, and he requests appellate attorneys' fees pursuant to Indiana Appellate Rule 66(E). We conclude that Rexroat has failed to establish that the trial court abused its discretion in granting Constantine's petition, so we affirm that ruling. We further conclude that Rexroat brought this appeal in bad faith, so we remand for a determination of Constantine's appellate attorneys' fees.
Facts and Procedural History
[¶2] Stogsdill died testate in 2019. Rexroat, his longtime domestic partner, was the sole beneficiary under his last will. The will was admitted to probate, and Rexroat was appointed personal representative of Stogsdill's estate. A detailed account of the events leading to the dispute between Rexroat and Constantine can be found in Rexroat v. Constantine, No. 22A-PL-1100, 2023 WL 2565102 (Ind.Ct.App. Mar. 20, 2023), trans. denied. Briefly stated, Constantine filed a claim against the estate alleging that Stogsdill had breached a contract to devise him property described in an earlier will, and he sought specific performance of the contract as to the estate's probate assets. Rexroat disallowed the claim. At the ensuing bench trial, Rexroat "testified that she had no knowledge of a contract between Stogsdill and Constantine[.]" Id. at *3. In its judgment, the trial court found that Constantine and Stogsdill had "entered into a binding contract to devise" that was not limited to probate assets and that Rexroat's testimony was not credible. Id. at *5. The court granted Constantine's claim as to the probate assets and ruled that he could enforce the judgment in a separate action that he had filed to enforce a claim as to non-probate assets that Stogsdill and Rexroat had acquired as joint tenants with rights of survivorship. Rexroat appealed, and we affirmed the trial court's judgment. She then filed a petition to transfer, which our supreme court denied.
Stogsdill promised to devise the property to Constantine in exchange for the latter's promise not to tell law enforcement that Stogsdill had sexually abused him since he was thirteen.
[¶3] In August 2023, pursuant to Indiana Code Section 29-1-10-6, Constantine filed a petition to remove Rexroat as the personal representative of the estate, in which he alleged that "[t]here is a clear conflict of interest if she continues to serve." Appellee's App. Vol. 2 at 51. He further alleged that Rexroat "mismanaged the estate by consistently denying the existence of [a] contract to devise between Constantine and Stogsdill" and thus breached her fiduciary duty to him to allow his claim, which "was affirmed by the Judgment." Id. at 52.Rexroat filed a response to the petition, in which she argued that Section 29-110-6 does not list "an adversity of interests" as a basis for removing a personal representative. Id. at 78. Rexroat did not respond to Constantine's allegation of mismanagement/breach of fiduciary duty.
Indiana Code Section 29-1-10-6(b) provides,
(b) When the personal representative becomes incapacitated (unless the incapacity is caused only by a physical illness, infirmity, or impairment), disqualified, unsuitable or incapable of discharging the representative's duties, has mismanaged the estate, failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be domiciled in Indiana, the court may remove the representative in accordance with either of the following:
(1) The court on its own motion may, or on petition of any person interested in the estate shall, order the representative to appear and show cause why the representative should not be removed. The order shall set forth in substance the alleged grounds upon which such removal is based, the time and place of the hearing, and may be served upon the personal representative in the same manner as a notice is served under this article.
(2) The court may without motion, petition or application, for any such cause, in cases of emergency, remove such personal representative instantly without notice or citation.
Constantine also filed a motion to hold Rexroat in contempt of the trial court's order for an accounting, which the court granted. Rexroat does not appeal that ruling.
[¶4] In November 2023, the trial court held a hearing on Constantine's petition, at which his counsel stated that he would be presenting only argument. Rexroat's counsel moved to dismiss, stating, "This is an evidentiary hearing." Tr. Vol. 2 at 3. Constantine's counsel replied that the evidence could be found in the court's orders relating to the disposition of Stogsdill's probate and non-probate assets. Counsel further observed that Rexroat "knew of the deal" between Constantine and Stogsdill and that "[h]er testimony otherwise was not credible as found by this Court which was affirmed by our Court of Appeals . . .. That alone is a breach of her fiduciary duties by not allowing the claim[.]" Id. at 5. The trial court took Rexroat's motion to dismiss under advisement.
[¶5] On December 8, 2023, the trial court issued a four-page final appealable order granting Constantine's petition and appointing him as successor personal representative. The court also denied Rexroat's motion to dismiss and took judicial notice of its records in the foregoing causes. Among other things, the court found that Rexroat breached her fiduciary duty to Constantine by "giving non credible testimony" at the trial on his specific-performance claim and that she was "unsuitable to serve" as personal representative due to her breach. Appealed Order at 3. On January 3, 2024, Rexroat filed a motion to reconsider/request to be heard on the trial court's decision to take judicial notice. See Ind. Evidence Rule 201(e) ("On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard."). After Rexroat filed a notice of appeal on January 8, her motion/request was denied as moot.
Discussion and Decision
Section 1 - Rexroat has failed to establish that the trial court abused its discretion in granting Constantine's petition to remove her as personal representative of Stogsdill's estate.
[¶6] On appeal, Rexroat asserts that the trial court erred in granting Constantine's petition to remove her as personal representative of Stogsdill's estate. "A court with probate jurisdiction has great latitude and wide discretion in the appointment and removal of personal representatives and administrators. Its decision in such a matter will not be disturbed on appeal unless an abuse of that discretion is clear." In re Estate of Latek, 960 N.E.2d 193, 204 (Ind.Ct.App. 2012) (quoting Matter of Swank's Estate, 375 N.E.2d 238, 240 (Ind.Ct.App. 1978)). "An abuse of discretion occurs either when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or the court misinterprets the law." Konger v. Schillace, 875 N.E.2d 343, 351 (Ind.Ct.App. 2007).
[¶7] Specifically, Rexroat complains that Constantine's petition was unverified, that the trial court improperly based its order solely on matters of which it took judicial notice, and that the court did not give her an opportunity to be heard thereon. Rexroat's numerous violations of the appellate rules have unnecessarily complicated our review. "The purpose of the appellate rules, especially Indiana Appellate Rule 46, is to aid and expedite review, as well as to relieve the appellate court of the burden of searching the record and briefing the case." Drake v. Drake, 221 N.E.3d 734, 738 (Ind.Ct.App. 2023). "A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues." Young v. Butts, 685 N.E.2d 147, 151 (Ind.Ct.App. 1997).
[¶8] Rexroat's statement of the case does not include "[p]age references to the Record on Appeal or Appendix" as required by Appellate Rule 46(A)(5). It also does not sufficiently describe "the course of the proceedings relevant to the issues presented for review," id., as Constantine's own statement of the case makes clear. Rexroat's one-page statement of facts lacks page references to the record or appendix as required by Appellate Rule 46(A)(6)(a), and we agree with Constantine that it also "omits material background information about the property subject to" his claim. Appellee's Br. at 7-8. The argument section of Rexroat's brief does not include "a concise statement of the applicable standard of review" as per Appellate Rule 46(A)(8)(b). Her appellant's appendix contains only the chronological case summary and the trial court's order; thus, it lacks "pleadings and other documents from the Clerk's Record in chronological order that are necessary for resolution of the issues raised on appeal[,]" such as Constantine's petition for her removal and her response thereto, as required by Appellate Rule 50(A)(2)(f). And, of significance, Rexroat failed to request a transcript of the hearing on the petition pursuant to Appellate Rule 9(F)(5).
[¶9] Constantine submitted his own appendix, which contains the necessary documents missing from Rexroat's appendix, as well as a transcript of the hearing on his petition. A review of those submissions reveals that Rexroat did not object to Constantine's petition being unverified, which results in waiver of that issue on appeal. See Baird v. ASA Collections, 910 N.E.2d 780, 786 (Ind.Ct.App. 2009) ("Generally, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court. This rule exists in part to protect the integrity of the trial court because it cannot be found to have erred as to an issue or argument that it never had an opportunity to consider.") (citation omitted), trans. denied (2010). The issue is also waived because Rexroat waited until her reply brief to cite any authority for the proposition that a removal petition must be verified. See 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] As for the trial court's basing its order on matters of judicial notice, Rexroat asserts that the order relied "on unverified facts that it was wrong to consider." Appellant's Br. at 12. On the contrary, the order relied on facts found by the court in its judgment on Constantine's specific-performance claim, which was upheld by this Court on appeal. Rexroat offers no cogent argument as to why the trial court could not take judicial notice of those facts, which were also matters within her personal knowledge. Accordingly, this argument is waived. See Martin v. Hunt, 130 N.E.3d 135, 137 (Ind.Ct.App. 2019) ("Failure to present a cogent argument [as required by Appellate Rule 46(A)(8)(a)] results in waiver of the issue on appeal.").
[¶11] Finally, as for Rexroat's assertion that she was denied an opportunity to be heard on the trial court's taking of judicial notice, we observe that a court "may take judicial notice at any stage of the proceeding." Ind. Evidence Rule 201(d). As indicated above, Constantine's counsel essentially invited the court to do so at the beginning of the hearing, and Rexroat was given an opportunity to be heard on the propriety thereof and the nature of the facts to be noticed. Rexroat asked to be heard again after the trial court took judicial notice in its order, but she foreclosed that opportunity of her own accord by filing her notice of appeal. In sum, Rexroat has failed to establish that the trial court abused its discretion in granting Constantine's petition, so we affirm that ruling.
Section 2 - Constantine is entitled to appellate attorneys' fees under Indiana Appellate Rule 66(E).
[¶12] Constantine characterizes Rexroat's appeal as an attempt to "evade and delay" the order for specific performance, Appellee's Br. at 17, and he requests appellate attorneys' fees pursuant to Indiana Appellate Rule 66(E). That rule states, "The 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. The Court shall remand the case for execution." Ind. Appellate Rule 66(E).
[¶13] "Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App. 2003). "[W]e must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal." Id. "A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious." VanHawk v. Town of Culver, 137 N.E.3d 258, 270 (Ind.Ct.App. 2019).
[¶14] "Indiana appellate courts group claims for appellate damages into two categories - substantive bad faith or procedural bad faith." Id. Constantine asserts that Rexroat has engaged in procedural bad faith, which "exists when a party flagrantly disregards the form and content requirement of our rules, omits and misstates relevant facts appearing in the record, and files briefs that appear to have been written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court." Id. "Even when an appellant's conduct falls short of that which is 'deliberate or by design,' procedural bad faith can still be found." Id. (quoting Manous, LLC v. Manousogianakis, 824 N.E.2d 756, 768 (Ind.Ct.App. 2005)).
[¶15] Rexroat's numerous appellate rule violations are described above. Those violations required Constantine to fill in the factual and procedural gaps in her brief, compile his own appendix, and obtain a copy of the hearing transcript. Rexroat's meritless appeal of the trial court's order removing her as personal representative of Stogsdill's estate gives every appearance of being a deliberate attempt to delay the enforcement of the order for specific performance of Stogsdill's contract with Constantine. We agree with Constantine that Rexroat has engaged in procedural bad faith, and we conclude that an award of appellate attorneys' fees is appropriate. Accordingly, we remand for a determination of those fees.
[¶16] Affirmed and remanded.
Bradford, J., and Tavitas, J., concur.