MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 26 2016, 9:08 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE Carl Mickens Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl Mickens, January 26, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1508-PL-1133 v. Appeal from the Marion Superior Court CMFG Life Insurance The Honorable Timothy W. Company, Oakes, Judge The Honorable Shannon L. Appellee-Plaintiff Logsdon, Commissioner and Trial Court Cause No. 49D02-1409-PL-30983 The Estate of Harvey Mickens, Synovia Vardiman & Pearline Harris, Individually and as Administrators of the Estate of Harvey Mickens. Appellees-Defendants.
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 1 of 9 Bradford, Judge.
Case Summary [1] Appellant Carl Mickens appeals from the trial court’s determination that certain
life insurance proceeds should be paid to the Estate of his now-deceased
brother. We affirm.
Facts and Procedural History [2] Initially, we note that the record provided to the Court on appeal is incomplete
at best and lacks the transcript of the two-day evidentiary hearing before the
trial court. As such, we will rely on the trial court’s findings to determine the
facts and procedural history leading to the instant appeal. The facts as found by
the trial court are as follows:
[3] At all times relevant to this appeal, Harvey Mickens had a valid $10,000 life
insurance policy through CMFG Life Insurance Company. In March of 2014,
Harvey made changes to his policy via telephone. Specifically, Harvey changed
the policy from a term life insurance policy naming his late wife as the
beneficiary to a whole life policy naming Mickens as the beneficiary. Harvey
died on July 15, 2014.
[4] Following Harvey’s death, a dispute arose about whether the proceeds of
Harvey’s life insurance policy should be paid to Mickens or to Harvey’s Estate.
The trial court conducted a two-day evidentiary hearing on April 13, 2015 and
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 2 of 9 May 4, 2015. On August 3, 2015, the trial court issued an order in which it
determined that the evidence demonstrated that the change in beneficiaries was
the result of undue influence and duress by Mickens upon Harvey. The trial
court also determined that the change in beneficiary was completed in a manner
inconsistent with the written policies of CMFG, which required that all changes
in beneficiaries be completed in writing, and that the change in beneficiary was
therefore invalid. In light of these determinations, the trial court ordered
CMFG to pay the proceeds of Harvey’s life insurance policy to Harvey’s Estate.
This appeal follows.
Discussion and Decision1 [5] Mickens raises several issues on appeal which we restate as follows: (1) whether
the trial court erred in ordering CMFG to pay the proceeds of Harvey’s life
insurance policy to Harvey’s Estate rather than to Mickens, (2) whether the trial
court’s ruling is contrary to public policy, (3) whether the trial court displayed
bias against Mickens, and (4) whether the trial court erred in taking the Estate’s
request for attorney’s fees under advisement. As we noted above, our review of
the instant matter is made more difficult by Mickens’s failure to provide a
1 We note that the Estate has filed a motion to dismiss the instant appeal, claiming that Mickens has failed to comply with the Indiana Rules of Appellate Procedure, has failed to state a claim upon which relief can be granted, and that we lack jurisdiction over Mickens’s claim relating to the Estate’s request for attorney’s fees. Given our preference for deciding appeals on the merits, where possible, we deny the Estate’s motion in an order handed down simultaneously with this memorandum decision.
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 3 of 9 transcript of the evidentiary hearing on appeal. However, to the extent
possible, we will review the merits of Mickens’s appeal.
I. Payment of Proceeds of Life Insurance Policy [6] In concluding that the proceeds of Harvey’s life insurance policy should be paid
to Harvey’s estate, the trial court specifically found that the change in the
beneficiary from Harvey’s late wife to Mickens “was the result of undue
influence and duress” by Mickens upon Harvey. Appellant’s App. p. 8.
Mickens does not challenge this finding on appeal. This unchallenged finding
alone is sufficient to sustain the trial court’s conclusion that the proceeds of
Harvey’s life insurance policy should not be paid to Mickens. See generally, In re
Estate of Wade, 768 N.E.2d 957, 963 (Ind. Ct. App. 2002) (providing that the
undisputed evidence created the presumption that certain transactions relating
to a life insurance policy were the result of undue influence and were therefore
void). Further, in light of the trial court’s finding that the change in beneficiary
was the result of undue influence and duress, we need not consider the trial
court’s alternative reasoning, i.e., that the change of beneficiary was not
completed in a manner consistent with CMFG’s written policies.
II. Public Policy Concerns [7] To the extent that Mickens argues that the trial court’s order is contrary to the
best interests of public policy, we disagree. Mickens appears to base this
argument on the assertion that, as a matter of public policy, an individual
should be allowed to change the beneficiary of their life insurance policy via the
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 4 of 9 telephone. We cannot agree with such a broad assertion. Further, as we
discussed above, the trial court’s order was supported by the unchallenged
finding that the change in beneficiary was the result of undue influence and
duress by Mickens against Harvey. Clearly, public policy does not favor
allowing an individual to convince a family member to name him as the
beneficiary of the family member’s life insurance policy by means of undue
influence or duress.
III. Alleged Bias [8] Mickens claims that the trial court acted with bias against him by erroneously
allowing “sibling rivalry to permeate the proceedings,” by unjustly refusing to
allow him to testify after allowing the other defendants, his siblings, “to provide
any manner of testimony they seemingly desired,” and by denying his motion
for summary judgment. Appellant’s Br. pp. 12, 13. We observe that in raising
these claims, however, Mickens has failed to provide cogent reasoning or
citations to relevant authority in support of them. Specifically, Mickens has
failed to provide any indication of how the trial court allowed sibling rivalry to
“permeate the proceedings.” Br. p. 12. Mickens has failed to provide this
Court with a copy of the transcript of proceedings before the trial court or any
other evidence which would show that his siblings, but not Mickens, were
allowed to “provide any manner of testimony they seemingly desired.”
Appellant’s Br. p. 13. Mickens has also failed to develop his argument that the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 26 2016, 9:08 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE Carl Mickens Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl Mickens, January 26, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1508-PL-1133 v. Appeal from the Marion Superior Court CMFG Life Insurance The Honorable Timothy W. Company, Oakes, Judge The Honorable Shannon L. Appellee-Plaintiff Logsdon, Commissioner and Trial Court Cause No. 49D02-1409-PL-30983 The Estate of Harvey Mickens, Synovia Vardiman & Pearline Harris, Individually and as Administrators of the Estate of Harvey Mickens. Appellees-Defendants.
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 1 of 9 Bradford, Judge.
Case Summary [1] Appellant Carl Mickens appeals from the trial court’s determination that certain
life insurance proceeds should be paid to the Estate of his now-deceased
brother. We affirm.
Facts and Procedural History [2] Initially, we note that the record provided to the Court on appeal is incomplete
at best and lacks the transcript of the two-day evidentiary hearing before the
trial court. As such, we will rely on the trial court’s findings to determine the
facts and procedural history leading to the instant appeal. The facts as found by
the trial court are as follows:
[3] At all times relevant to this appeal, Harvey Mickens had a valid $10,000 life
insurance policy through CMFG Life Insurance Company. In March of 2014,
Harvey made changes to his policy via telephone. Specifically, Harvey changed
the policy from a term life insurance policy naming his late wife as the
beneficiary to a whole life policy naming Mickens as the beneficiary. Harvey
died on July 15, 2014.
[4] Following Harvey’s death, a dispute arose about whether the proceeds of
Harvey’s life insurance policy should be paid to Mickens or to Harvey’s Estate.
The trial court conducted a two-day evidentiary hearing on April 13, 2015 and
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 2 of 9 May 4, 2015. On August 3, 2015, the trial court issued an order in which it
determined that the evidence demonstrated that the change in beneficiaries was
the result of undue influence and duress by Mickens upon Harvey. The trial
court also determined that the change in beneficiary was completed in a manner
inconsistent with the written policies of CMFG, which required that all changes
in beneficiaries be completed in writing, and that the change in beneficiary was
therefore invalid. In light of these determinations, the trial court ordered
CMFG to pay the proceeds of Harvey’s life insurance policy to Harvey’s Estate.
This appeal follows.
Discussion and Decision1 [5] Mickens raises several issues on appeal which we restate as follows: (1) whether
the trial court erred in ordering CMFG to pay the proceeds of Harvey’s life
insurance policy to Harvey’s Estate rather than to Mickens, (2) whether the trial
court’s ruling is contrary to public policy, (3) whether the trial court displayed
bias against Mickens, and (4) whether the trial court erred in taking the Estate’s
request for attorney’s fees under advisement. As we noted above, our review of
the instant matter is made more difficult by Mickens’s failure to provide a
1 We note that the Estate has filed a motion to dismiss the instant appeal, claiming that Mickens has failed to comply with the Indiana Rules of Appellate Procedure, has failed to state a claim upon which relief can be granted, and that we lack jurisdiction over Mickens’s claim relating to the Estate’s request for attorney’s fees. Given our preference for deciding appeals on the merits, where possible, we deny the Estate’s motion in an order handed down simultaneously with this memorandum decision.
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 3 of 9 transcript of the evidentiary hearing on appeal. However, to the extent
possible, we will review the merits of Mickens’s appeal.
I. Payment of Proceeds of Life Insurance Policy [6] In concluding that the proceeds of Harvey’s life insurance policy should be paid
to Harvey’s estate, the trial court specifically found that the change in the
beneficiary from Harvey’s late wife to Mickens “was the result of undue
influence and duress” by Mickens upon Harvey. Appellant’s App. p. 8.
Mickens does not challenge this finding on appeal. This unchallenged finding
alone is sufficient to sustain the trial court’s conclusion that the proceeds of
Harvey’s life insurance policy should not be paid to Mickens. See generally, In re
Estate of Wade, 768 N.E.2d 957, 963 (Ind. Ct. App. 2002) (providing that the
undisputed evidence created the presumption that certain transactions relating
to a life insurance policy were the result of undue influence and were therefore
void). Further, in light of the trial court’s finding that the change in beneficiary
was the result of undue influence and duress, we need not consider the trial
court’s alternative reasoning, i.e., that the change of beneficiary was not
completed in a manner consistent with CMFG’s written policies.
II. Public Policy Concerns [7] To the extent that Mickens argues that the trial court’s order is contrary to the
best interests of public policy, we disagree. Mickens appears to base this
argument on the assertion that, as a matter of public policy, an individual
should be allowed to change the beneficiary of their life insurance policy via the
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 4 of 9 telephone. We cannot agree with such a broad assertion. Further, as we
discussed above, the trial court’s order was supported by the unchallenged
finding that the change in beneficiary was the result of undue influence and
duress by Mickens against Harvey. Clearly, public policy does not favor
allowing an individual to convince a family member to name him as the
beneficiary of the family member’s life insurance policy by means of undue
influence or duress.
III. Alleged Bias [8] Mickens claims that the trial court acted with bias against him by erroneously
allowing “sibling rivalry to permeate the proceedings,” by unjustly refusing to
allow him to testify after allowing the other defendants, his siblings, “to provide
any manner of testimony they seemingly desired,” and by denying his motion
for summary judgment. Appellant’s Br. pp. 12, 13. We observe that in raising
these claims, however, Mickens has failed to provide cogent reasoning or
citations to relevant authority in support of them. Specifically, Mickens has
failed to provide any indication of how the trial court allowed sibling rivalry to
“permeate the proceedings.” Br. p. 12. Mickens has failed to provide this
Court with a copy of the transcript of proceedings before the trial court or any
other evidence which would show that his siblings, but not Mickens, were
allowed to “provide any manner of testimony they seemingly desired.”
Appellant’s Br. p. 13. Mickens has also failed to develop his argument that the
trial court’s denial of Mickens’s motion for summary judgment was evidence of
bias against him by the trial court.
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 5 of 9 [9] Appellate Rule 46(A)(8)(a) provides that an appellant’s argument must be
supported by cogent reasoning and citation to relevant authorities, statutes, the
Appendix, or parts of the Record on Appeal.
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. Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999). Additionally, ‘“[w]e 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. on Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 486 (Ind. Ct. App. 2003)] (quoting Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985), trans. denied).
Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003).
[10] Mickens’s claim relating to the alleged bias demonstrated by the trial court is
too poorly developed to be understood. Mickens, who proceeded on appeal pro
se, must be 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 failure to comply with Appellate Rule 46(A)(8)(a). See id.
As such, because Mickens has failed to provide cogent argument and citations
to relevant authority relating to his claim that the trial court demonstrated bias
against him, we conclude that Mickens has waived this argument on appeal.
IV. Attorney’s Fees
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 6 of 9 [11] The trial court’s order clearly indicates that the trial court has not issued a final
ruling on the Estate’s request for attorney’s fees but rather has merely taken the
issue under advisement. Further, nothing in the record even suggests that the
trial court has certified this issue for interlocutory appeal. As there has been no
final judgment on this issue or order certifying the issue for interlocutory
appeal, we lack jurisdiction to review Mickens’s claim regarding attorney’s fees.
See generally, Dailey Oil, Inc. v. Jet Star, Inc., 650 N.E.2d 345, 347 (Ind. Ct. App.
1995) (providing that absent authority by rule of our supreme court, we are
without original jurisdiction to review issues presented on appeal).
Conclusion [12] In sum, we conclude that the trial court did not err in concluding that the
change of beneficiary on Harvey’s life insurance policy was invalid or in
ordering CMFG to pay the proceeds of Harvey’s life insurance policy to
Harvey’s estate rather than Mickens. We further conclude that the trial court’s
order is not contrary to public policy, that Mickens has waived his claim of
alleged bias by the trial court, and that we lack jurisdiction to review the trial
court’s decision to take the Estate’s request for attorney’s fees under
advisement.
[13] The judgment of the trial court is affirmed.
Pyle, J., concurs.
Baker, J., concurs in part with opinion.
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 7 of 9 IN THE COURT OF APPEALS OF INDIANA
Carl Mickens, Court of Appeals Case No. 49A05-1508-PL-1133 Appellant-Defendant,
v.
CMFG Life Insurance Company, Appellee-Plaintiff,
and
The Estate of Harvey Mickens, Synovia Vardiman & Pearline Harris, Individually and as Administrators of the Estate of Harvey Mickens,
Appellees-Defendants.
Baker, Judge, concurring in part.
[14] As I agree with the majority’s conclusion that we do not have jurisdiction to
hear this case and have voted to grant the appellees’ motion to dismiss the
appeal, I concur only with Part IV of the majority opinion.
Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 8 of 9 Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 9 of 9