B.R. v. Stewart

908 N.E.2d 360, 2009 Ind. App. LEXIS 915
CourtIndiana Court of Appeals
DecidedJune 25, 2009
DocketNo. 48A04-0812-CV-0744
StatusPublished
Cited by1 cases

This text of 908 N.E.2d 360 (B.R. v. Stewart) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.R. v. Stewart, 908 N.E.2d 360, 2009 Ind. App. LEXIS 915 (Ind. Ct. App. 2009).

Opinion

OPINION

BAKER, Chief Judge.

This appeal presents a tangled knot of multiple trial court orders and multiple notices of appeal. But when the knot is untangled and the vituperative language used by the appellant's attorney is removed from the snarl of issues, the correct outcome is apparent. The motions panel properly dismissed the first two notices of appeal-one for being untimely and the other for being an appeal from a non-appealable order-and the trial court properly granted the requested attorney and administrative fees at issue in the third appeal.

Appellant-respondent BR. (Daughter) appeals three orders entered by the trial court relating to attorney fee petitions filed by appellees-petitioners Irma Hampton Stewart, John W. Longnaker, III, and First Merchants Trust, as Guardian of the Estate of L.R. (collectively, the appellees). In the third appeal, Daughter argues that the trial court erred by awarding the ap-pellees' requested administrative and appellate attorney fees. Finding no error, we affirm.

FACTS

Daughter, who lives in Florida, is the only child of L.R. (Mother), who lives in Anderson. In 1996, Mother appointed Daughter to be her attorney-in-fact, giving Daughter her financial and healthcare powers of attorney. Should Daughter survive Mother, she is the sole beneficiary of her Mother's will and trust.

Sometime in 2006, Daughter became concerned about Mother's mental fitness, and on July 5, 2006, Daughter filed a petition for guardianship of Mother. On July 21, 2006, Stewart appeared on Mother's behalf to contest the petition.

On August 7, 2006, Mother executed a revocation of Daughter's power of attorney. On August 15, 2006, Daughter objected to that revocation and requested an injunction preventing anyone from altering Mother's estate documents. Mother's attorney responded, explaining that Daughter had allegedly taken control of Mother's bank accounts, that Daughter's name appeared on those accounts, and that the address on the accounts had been changed to Daughter's Florida address. Mother's attorney requested an injunction preventing Daughter from taking or redirecting anymore of Mother's funds. On September 18, 2006, the trial court held a hearing and subsequently entered an injunction preventing the alteration of Mother's estate documents and preventing anyone from removing money from Mother's accounts. The trial court has never explicitly ruled on the issue of the revocation.

Following a hearing, on September 7, 2007, the trial court granted Daughter's petition, finding, in part, as follows:

10. [Mother] recognized her signature but did not recall signing any of the legal documents placed in front of her. [Mother] did not recall signing her Will, her Trust, general durable power of attorney, health care representative form, or living will. While the guardianship case was pending [Mother] apparently [363]*363signed a revocation of her power of attorney, but did not remember.
11. At the beginning of [Mother's] testimony she recited facts from handwritten notes. These involved important dates, the medications she took, and where she banked. Shortly after this testimony, without her notes, [Mother] could not recall any of the information. [Mother] does not know how much or what she owns. She has very little understanding of the nature and extent of her property. A few years ago [Mother] had cancer surgery. At trial [Mother] thought the surgery involved a hernia. [Mother] could not recall the name of the President of the United States or Governor of Indiana. [Mother] could not recall the current day of the week, the month, or the date.
12. The Court finds that [Mother] lacks the mental capacity required to handle the financial affairs requisite to the management of the large estate which she possesses, and that she is at risk of being taken advantage of financially.
13. The Court finds that [Mother] is in need of a guardian, both personally and for her estate.
14. Two factors dissuade the Court from appointing [Daughter] as Guardian the animosity of [Mother] and her residence in Florida.

Appellant's App. p. 45. The trial court eventually appointed Ardeth Wilson as guardian of Mother's person, and appellee-petitioner First Merchants Trust (Guardian) as guardian of Mother's estate. On December 7, 2007, Daughter filed a petition for attorney fees in the amount of $52,965 and expenses of $2,873, with her attorney charging an hourly rate of $550. Following a hearing, the trial court granted the petition in part, finding that a reasonable hourly rate for Madison County is $250 and that a number of claimed fees and expenses were unreasonable, ultimately awarding attorney fees of $18,250 and no expenses.

On July 16, 2008, the Guardian filed a petition seeking Stewart's attorney fees in the amount of $4,902 and the fees of Long-naker-the Guardian's attorney-in the amount of $5,900. On August 19, 2008, the trial court entered an order (the First Order) granting the petition over Daughter's objections. On September 16, 2008, Daughter filed a motion to correct error that the trial court neither set for hearing nor ruled upon. On November 25, 2008, Daughter filed a notice of appeal (the First Notice) from the First Order. Appellate briefing commenced.

Meanwhile, on January 8, 2009, the Guardian filed a petition seeking permission to hire co-counsel to represent the Guardian on appeal: "The [Guardian may] hire as Co-Counsel, David Stone for the hourly rate of $190.00, for the limited purpose of representing the [GJuardian in the said appeal; however, before payment of the fees of David W. Stone IV, the Guardian shall submit them for Court approval." Appellant's Supp.App. p. 17. Daughter subsequently requested that the trial court reconsider its order and the Guardian requested that the trial court clarify its order. On February 27, 2009, the trial court entered a clarification of its order (the Second Order), ordering "that the seope of David W. Stone IV's representation includes the defense of the attorney fees awarded to both [Longnaker] and [Stewart], and all related issues raised by the appeal therefrom." Id. at 28.

On March 5, 2009, Daughter filed a notice appeal (the Second Notice) from the [364]*364Second Order. On April 3, 2009, the motions panel of this court ordered that the First and Second Notices be consolidated. The motions panel further ordered that the parties submit supplemental briefs on the issues presented by the Second Notice.

Meanwhile, on April 2, 2009, the Guardian filed a petition in the trial court seeking Stone's appellate attorney fees in the amount of $4,838.67. The same day, the Guardian filed a petition to approve interim accounting in which the Guardian requested administrative fees totaling $4,029.83. On April 7, 2009, the trial court granted the petition for appellate attorney fees and petition for interim accounting without a hearing (the Third and Fourth Orders, respectively), On April 9, 2009, Daughter filed a notice of appeal (the Third Notice) from the Third and Fourth Orders.

On April 10, 2009, the appellees moved to dismiss the appeal, arguing that the First Notice was untimely and the Second Notice related to a non-appealable order.1

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Related

In Re Guardianship of LR
908 N.E.2d 360 (Indiana Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
908 N.E.2d 360, 2009 Ind. App. LEXIS 915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/br-v-stewart-indctapp-2009.