Opinion
23A-ES-2246
05-20-2024
Earlene Blair, et al., Appellants-Plaintiffs v. William L. Goss, Appellee-Respondent
JANICE E. SMITH INDIANAPOLIS, INDIANA GEOFFREY W. WEAVER INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLANTS BRIAN C. HEWITT MICHELE L. LORBIESKI INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLEE
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable David J. Certo, Judge The Honorable Melanie L. Kendrick, Magistrate Trial Court Cause No. 49D08-2303-ES-9624
JANICE E. SMITH INDIANAPOLIS, INDIANA GEOFFREY W. WEAVER INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLANTS
BRIAN C. HEWITT MICHELE L. LORBIESKI INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLEE
MEMORANDUM DECISION
ALTICE CHIEF JUDGE
Case Summary
[¶1] Earlene Blair, Robert Cooper, Jerry Wiethop, Pamela Capps, and Michele McDonald (collectively, Siblings) appeal the trial court's denial of their Petition for Administration with Court Supervision of the Estate of Florence F. Hays (Florence), their deceased sister. Because of Siblings' disregard of our appellate rules, we do not reach the merits of this appeal. We also conclude that Siblings' procedural bad faith in this appeal warrants an award of appellate attorney fees.
[¶2] We affirm and remand.
Facts &Procedural History
[¶3] Florence died testate on October 21, 2022. At the time of her death, Florence was survived by Siblings. She never had children of her own, but she had a stepson, John Hays (John), from a prior marriage that lasted nearly thirty years and ended in the late 1990s. After the divorce, Florence remained close with John and his family. Florence also retained ownership of the marital home on Rosewood Lane in Indianapolis (the Rosewood Residence), where she lived with William Goss for about twenty-five years prior to her death.
[¶4] In October 2019, three years before her death, Florence deeded the Rosewood Residence to the Florence F. Hays Living Trust, dated June 19, 2008 (the Trust). At the time the Trust was created in 2008, Florence also executed the Last Will and Testament of Florence H. Hayes (the Will), nominating Goss as personal representative and providing for disposition of property as follows:
All of the property that I own at my death, or which shall become payable to my estate or my personal representatives, and any property that I have the power to dispose of under my Will shall be distributed to the Trustee of the Florence F. Hays Living Trust dated June 19, 2008 to be administered and distributed as provided under that Trust.Appellants' Appendix at 9.
[¶5] On November 28, 2022, under Cause No. 49D08-2211-EM-040884 (the Original Action), Goss filed a Petition for Probate of Self-Proved Will Without Administration. Goss represented in the petition, among other things, that the sole distributee of Florence's estate was the Trust and that to the best of his knowledge, the value of the gross probate estate, less liens and encumbrances, did not exceed $100,000. The probate court admitted the Will to probate the next day.
There was also a codicil to the Will admitted to probate. The codicil was executed at the same time as the Will in 2008 and granted a life estate in the Rosewood Residence and other property located therein to Goss. As noted above, however, the Rosewood Residence was deeded in 2019 to the Trust.
[¶6] On January 16, 2023, in the Original Action, Siblings filed a self-styled Verified Motion for Declaratory Judgment, seeking to have the probate estate administered with supervision, Blair appointed as personal representative of the estate and trustee of the Trust, and the court determine the interests of various parties. Siblings appended to their motion documents representing the Trust executed in 2008 and a 2019 amendment to the Trust. In their motion, Siblings raised concerns of undue influence and argued that the value of the probate estate far exceeded $100,000. The probate court held an attorney conference on February 27.
[¶7] Thereafter, on March 6, 2023, Siblings initiated the instant action, under Cause No. 49D08-2303-ES-009624, with the filing of a petition for administration with court supervision of Florence's estate. Siblings alleged that the value of Florence's estate was at least $600,000 and implied that Goss had intentionally undervalued the estate to avoid administration. Siblings requested that the court appoint Blair as personal representative/administrator and authorize her to proceed with the supervised administration of Florence's estate.
[¶8] On March 8, 2023, Siblings filed a separate action to contest the will, Cause No. 49D08-2303-ES-009949 (the Will Contest Action). In the complaint, Siblings alleged that Blair had been told by more than one person who knew Florence that another will exists that differs from the one filed by Goss in the Original Action. Along with repeating their claim that Goss had misrepresented the value of Florence's estate, Siblings alleged that Florence was subject to undue influence and duress from Goss at the time of execution of the Will and related documents. The Will Contest Action was dismissed with prejudice by the probate court on April 17, 2023, as Siblings had filed it beyond the statutory deadline. On April 28, Siblings filed a motion to correct error (incorrectly titled as a motion to reconsider).
A will contest under Ind. Code § 29-1-7-17 must be commenced "within three (3) months after the date of the order admitting the will to probate by filing in the same court, in a separate cause of action, the person's allegations in writing verified by affidavit, setting forth [the basis for the will contest.]" (Emphasis supplied.)
[¶9] On May 18, 2023, the probate court held an attorney conference to jointly address all three pending actions. The conference resulted in the scheduling of an evidentiary hearing for August 24, 2023, in this action to determine whether to open a supervised administration as requested by Siblings. The court held the Original Action in abeyance pending resolution of the supervised administration question. Finally, the probate court denied Siblings' motion to correct error in the Will Contest Action.
[¶10] Rather than initiating a timely appeal in the Will Contest Action, Siblings filed a second motion to correct error, which was summarily denied in September 2023. Siblings then initiated an appeal in the Will Contest Action, which this court dismissed on October 24, 2023, for being filed three months after the June 19 deadline. Accordingly, the Will remains probated and valid.
[¶11] Meanwhile, the evidentiary hearing in this case was held on August 24, 2023. Goss presented testimony and documentary evidence to establish that the value of Florence's gross probate estate was less than $100,000. His exhibits included various appraisals, banking documents, the 2019 deed transferring the Rosewood Residence to the Trust, and a homeowners insurance policy from 1999/2000 that included the selection of an option for coverage of jewelry and furs up to $5,000. Goss disputed the existence of a ladies Rolex watch and diamond ring, which Siblings' asserted Florence had owned since her divorceand which one of their witnesses - John's ex-wife, Sheryl Weaver - estimated were worth $20,000 and $100,000, respectively. Goss testified there was "No Rolex. No diamond ring." Transcript at 20. And Terri Payne, Florence's close, longtime friend, testified that she never saw Florence wearing a Rolex watch or a 5-carat diamond ring. Payne explained at trial, "Florence was very, very humble, uhm, so a 5-carat ring would not have been something, in my opinion, that Florence would have worn." Id. at 106. Further, to show that the ring and watch did not even exist at the time of Florence's divorce, Goss noted the insurance policy's limited coverage for jewelry during that time and testified that an appraisal of the marital estate during her divorce listed a total value for jewelry of $5,100, which included her husband's Rolex but "no lady's Rolex" or diamond ring. Id. at 21.
John testified that his father had given a Rolex watch and diamond ring to Florence around 1987. John described the ring as "a five (5) - six (6) - seven (7) eight (8) carat ring; it was a huge stone." Id. at 50. John testified that he last saw Florence with the ring in August 2022. John's ex-wife and son also testified as to the existence of the ring and watch.
The actual 1997 appraisal of the marital estate was excluded from evidence, following a belated objection by Siblings, but Goss's unobjected-to testimony regarding the appraisal remained in evidence.
[¶12] In closing, one of Siblings' attorneys argued that administration of the estate needed to be supervised because although there was conflicting testimony, "there's been plenty of evidence to sustain the idea" that the estate's value is over hundred thousand dollars. Id. at 106. After noting the animosity that existed, which the court agreed was "evident," Counsel concluded his argument:
We note that Siblings' attorneys are the mother and current husband of Weaver, John's ex-wife.
I think the Court should just put this as a supervised estate and then we should have another hearing as to who's going to be the personal representative and the trustee of the trust because there is reason to believe, on behalf of my clients, that Mr. Goss is not trustworthy, he doesn't tell the truth and you don't want him in charge of an estate. I'm sorry to say that about you, Bill, but I think this needs to be a supervised estate not only because of the value, but because of the circumstances that exist.Id. at 107.
[¶13] In response, Goss's counsel argued:
I think it's important at the outset to remember this is a pour over will into a trust, so the only thing that would have to happen to any quote unquote probate assets is to move them to the trust, right? And the cost associated with the three (3) cases that are pending make this estate insolvent and transferring this to a supervised estate will make it further insolvent.... I think this estate should stop bleeding money on attorney fees and just allow it to wrap up.Id. at 107-08. Counsel added that the Rosewood Residence was clearly not part of the estate (as it was transferred to the Trust years prior) and questioned the credibility of Siblings' witnesses' testimony about values for the personal property at issue.
[¶14] After taking the matter under advisement, the trial court issued its order on September 12, 2023, denying Siblings' petition for administration with court supervision. Citing I.C. § 29-1-8-3, the probate court observed: "Probate administration is warranted only if the value of a decedent's gross probate estate, less liens and encumbrances, costs and expenses of administration, and reasonable funeral expenses exceeds $100,000." Appellants' Appendix at 9. It then expressed two bases for the denial of Siblings' request for supervised administration. First, the court determined that the Will conveyed all of Florence's property to the Trust, "making all property non-probate assets." Id. Second, the court concluded alternatively that even if the property constituted probate assets, "the value of Decedent's gross probate estate, less liens and encumbrances, costs and expenses of administration, and reasonable funeral expenses does not exceed $100,000." Id. at 11.
[¶15] The probate court's latter determination was based on specific findings regarding the value of particular assets. And the court made an express finding that it had weighed the credibility of witnesses and evidence and that it accepted the value of disputed assets as calculated by Goss. The court also rejected Weaver's opinion of the value of other assets alleged to be part of the estate (that is, Grainware, other fine jewelry, and kitchen equipment), noting that her estimates were based on the items in "new, retail condition" and that her qualifications to appraise items in their condition at the time of Florence's death had not been established. Id. In sum, the probate court determined that the total value of the assets of the estate was only $27,452.18 and that the costs of administration exceeded this amount.
There was testimony at the hearing regarding a 401k, and the parties supplemented the record after the hearing. Based on the testimony and submissions, the probate court found that it did not "have enough evidence to decide whether or not the 401k is a probate asset." Id. The court's order continued:
However, the Court reiterates its previous finding that pursuant to the Will, all property is to be transferred to the trust. Thus, even if the Court found the property to be part of the estate, pursuant to the Will it would be transferred to the trust and thus not estate property.Id.
The court noted that Siblings did not dispute the evidence Goss presented establishing the costs of administration.
Discussion &Decision
1. Siblings have waived consideration of the issue presented by failing to comply with the Indiana Rules of Appellate Procedure.
[¶16] Siblings argue that the probate court erred in denying their petition for administration with court supervision "when the weight of the evidence was counter to that decision." Appellants' Brief at 3. But, of course, this is not a proper issue for appeal as our well established standard of review does not permit us to reweigh the evidence:
When a probate court enters findings of fact and conclusions of law, we apply a two-tiered standard of review. We first consider whether the evidence supports the findings and second, whether the findings support the judgment. Considering only the evidence favorable to the judgment, we do not reweigh the evidence and we do not assess witness credibility. We will set aside the findings and conclusions only if they are clearly erroneous; that is, if the
record lacks facts or inferences supporting them. However, we apply a de novo standard of review to conclusions of law.Trowbridge v. Est. of Trowbridge, 131 N.E.3d 630, 632 (Ind.Ct.App. 2019) (internal citations omitted and emphasis added), trans. denied.
[¶17] Siblings would have discovered this critical error had they researched the applicable standard of review, which they failed to include in their appellate brief in violation of Ind. Appellate Rule 46(A)(8)(b). And Siblings did not follow App. R. 46(A)(6)(b)'s mandate that their statement of facts section be stated in accordance with the applicable standard of review. In fact, their statement of facts section does not even address the evidence presented regarding valuation of the assets at issue, contrary to App. R. 46(A)(6)'s direction that the statement "shall describe the facts relevant to the issues presented for review." Rather, the facts offered by Siblings focus on each witness's purported positive (their witnesses) or negative (Goss) relationship with Florence and claims that Goss began dissipating assets of the estate on the day of Florence's death.
[¶18] Other flagrant violations of our appellate rules have further hindered our review. Most notable are the lack of any citations to the appendix throughout Siblings' brief and the failure to back their appellate argument with cogent reasoning supported by citations to relevant authorities. See App. R. 46(A)(8)(a) ("The argument section must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22."); see also Basic v. Amouri, 58 N.E.3d 980, 985 (Ind.Ct.App. 2016) ("[A]s the party with the burden of establishing error on appeal, Appellants must cite pertinent authority and develop reasoned arguments supporting their own allegations."). Siblings did not cite even a single case or statute in their appellants' brief.
Siblings did not file an appendix until ordered by this court in February 2024, after Siblings had filed their brief and reply brief. Upon discovering the absence of an appellant's appendix, this court ordered Siblings to file an appendix in full compliance with Ind. Appellate Rule 50(A) within ten days.
[¶19] In response to Goss's argument that we should find waiver based on violations of the appellate rules, Siblings assert that they "believe their appeal brief is in substantial compliance with the rules of this Court" and ask that we reach the merits of their appeal. Appellants' Reply Brief at 4. On the contrary, Siblings flagrantly disregarded the appellate rules and the applicable standard of review and failed to provide cogent argument supported by relevant authority. We have little difficulty finding waiver here. See Basic, 58 N.E.3d at 984 ("While we prefer to decide issues on the merits, where the appellant's noncompliance with appellate rules is so substantial as to impede our consideration of the issues, we may deem the alleged errors waived.").
[¶20] Moreover, even if we were to reach the merits, Siblings' argument is nothing more than an improper request to reweigh the evidence, judge witness credibility, and consider witness testimony that the probate court found lacking and that is not favorable to the judgment. For example, they direct us to the testimony of their witnesses, whom they claim all "gave credible testimony" regarding "a very expensive five caret [sic] diamond ring and a valuable Rolex watch with a bezel surrounded by diamonds[.]" Appellants' Brief at 7. Siblings claim that Goss's denial of the existence of these items "defies common sense" and that Payne's relationship with Florence was "rather sketchy." Id. at 8, 14. Further, disputing appraisals submitted by Goss and relying on values assigned by Weaver, Siblings contend that "if one adds up the assets [Siblings'] witnesses state should have been claimed in the decedent's estate, the value would be in excess of one million, seven hundred thousand dollars." Id. at 13. Siblings sum up their argument on appeal as follows:
We are unsure how Siblings arrived at the figure of $1,700,000, as their own evidence presented at the hearing did not begin to approach this amount. Further, on appeal, Siblings reference "an extensive art collection by artist Beverly Doolittle" with a "substantial" value, but there was not even a mention of this art collection at the hearing. Id. at 8-9.
The choice as to the weight of the evidence comes down to four credible [Siblings'] witnesses testifying to items worth thousands of dollars being omitted from the asset inventory versus two opposing witnesses, one being an elder man who denied the very existence of items he was seen standing next to and the other who essentially did not contribute any evidence worth noting.Id. at 14.
[¶21] As it is the probate court's job to weigh the evidence, not ours, Siblings' argument on appeal wholly lacks merit. Moreover, their argument ignores the other independent basis offered by the probate court - that all of Florence's assets at death went directly into the Trust and thus were not probate assets -and they offer no authority to dispute this legal conclusion by the trial court.
2. Goss is entitled to recover appellate attorney fees from Siblings based on their procedural bad faith.
[¶22] Goss requests that we order Siblings to pay his appellate attorney fees pursuant to Ind. Appellate Rule 66(E), which provides us with discretion to assess damages, including attorney fees, "if an appeal, petition, or motion, or response, is frivolous or in bad faith." Id.
Our discretion to impose damages is limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. The sanction is not imposed to punish mere lack of merit but something more egregious. As such, we exercise caution in awarding appellate attorney's fees because of the potentially chilling effect the award may have upon the exercise of the right to appeal.Basic, 58 N.E.3d at 986 (internal citations and quotation marks omitted).
[¶23] Procedural bad faith, as is relevant here, 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. (quoting Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App. 2003)). The bad faith need not be deliberate or by design. Id.
[¶24] We agree with Goss that Siblings' appellate failures amount to procedural bad faith, and we conclude that an award of appellate attorney fees is appropriate here. Accordingly, we affirm and remand for a determination of Goss's appellate attorney fees.
[¶25] Judgment affirmed and cause remanded.
Bradford, J. and Felix, J., concur.