MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 07 2020, 9:08 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE Lawrence T. Newman Bradenton, Florida
IN THE COURT OF APPEALS OF INDIANA
In Re: The Estate of Al Katz, October 7, 2020 Deceased, Court of Appeals Case No. 20A-ES-140 and Appeal from the Marion Superior Lawrence T. Newman Court Appellant-Petitioner, The Honorable James A. Joven, Judge v. Trial Court Cause No. 49D13-1009-ES-40244 Robert W. York, Appellee-Respondent.
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 1 of 21 Case Summary [1] Lawrence Newman, pro se, appeals the trial court’s award of appellate attorney
fees to Robert York (“Attorney York”), personal representative of the Estate of
Al Katz (“Estate”). We affirm.
Issues [2] Newman raises numerous issues on appeal. We revise the issues as follows:
I. Whether Newman is entitled to raise arguments on behalf of beneficiaries to the Estate.
II. Whether Newman is entitled to raise arguments not presented to the trial court.
III. Whether the trial court properly ordered the appellate attorney fees to be paid to the Estate.
IV. Whether the trial court was biased and prejudiced against Newman.
V. Whether Newman properly challenges prior appellate court orders awarding appellate attorney fees.
VI. Whether the trial court properly awarded $167,437.50 in appellate attorney fees.
VII. Whether the appellate attorney fee award violated Newman’s constitutional rights.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 2 of 21 Facts [3] This is the fourth appeal instituted by Newman or his wife, Beverly, regarding
the Estate of Al Katz (“Estate”). Beverly was Katz’s daughter, but Katz’s last
will and testament “intentionally [left Beverly] nothing” due to an
estrangement. In re Estate of Katz, No. 18A-ES-1721 (“Appellate Cause 1721”),
slip op. at 2 (Ind. Ct. App. Dec. 31, 2018), trans. denied, cert. denied, 140 S. Ct.
534 (2019). After Katz’s death in 2010, Beverly was appointed as personal
representative, and Newman, an attorney, filed an appearance on behalf of
Beverly. The Indiana Supreme Court, however, suspended Newman in
December 2011. 1 See In re Newman, 958 N.E.2d 792 (Ind. 2011).
[4] In 2013 and 2014, Newman filed several motions for reimbursement of alleged
administrative expenses. In 2015, the trial court removed Beverly as personal
representative and appointed Attorney York to serve as the successor personal
representative and attorney of the Estate. Under Appellate Cause No. 49A02-
1506-ES-642 (“Appellate Cause No. 642”), Beverly appealed the trial court’s
order removing her, but this Court dismissed Beverly’s appeal on August 21,
2015. On November 10, 2015, this Court denied Beverly’s petition for
rehearing, and our Supreme Court denied Beverly’s petition to transfer.
[5] Newman continued filing claims and various pleadings in the Estate
proceedings, and he filed another appeal under Appellate Cause Number
1 Newman remains suspended.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 3 of 21 49A05-1710-ES-2475 (“Appellate Cause No. 2475”) regarding three of the trial
court’s orders, including an injunction order. Attorney York filed a motion to
dismiss, and on January 4, 2018, this Court entered an order which granted in
part and denied in part Attorney York’s motion to dismiss. Specifically, this
Court ordered Newman’s appeal from two of the trial court’s orders to be
dismissed with prejudice, but denied the motion to dismiss Newman’s appeal of
one of the trial court’s orders. On June 6, 2018, Attorney York filed a second
verified motion to dismiss the appeal. On September 12, 2018, this Court
granted Attorney York’s motion to dismiss the appeal, granted Attorney York’s
request for appellate attorney fees, and remanded to the trial court to calculate
the amount of appellate attorney fees.
[6] On October 12, 2018, Newman filed a petition for rehearing. On November 19,
2018, this Court denied Newman’s petition for rehearing and granted Attorney
York’s request for additional appellate attorney fees. Newman then filed a
petition to transfer, which our Supreme Court denied. Our Supreme Court
granted Attorney York’s request for attorney’s fees and remanded to the trial
court “to determine the amount of attorney’s fees the appellee is entitled to
recover from the appellant related to the transfer proceedings.” Appellate
Cause No. 2475, April 12, 2019 order.
[7] Meanwhile, the trial court issued an order on June 12, 2018, regarding the sale
of certain property belonging to the Estate. In Appellate Cause No. 1721,
Newman appealed the order and argued:
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 4 of 21 Newman argues that Attorney York was wrongfully appointed because of his long-standing animus against [Newman]; that the trial court’s disparate treatment of [Newman] and Attorney York evidence bias; the trial court’s determinations that [Newman’s] administrative expense claims were dismissed or denied are erroneous; and that [Newman’s] administrative expense claims have statutory priority over federal and state tax claims.
Appellate Cause No. 1721, slip op. at 15. We affirmed the trial court and,
pursuant to Indiana Appellate Rule 66(E), we concluded that Attorney York as
personal representative was entitled to appellate attorney fees. We remanded
“to the trial court to determine the proper amount of the appellate fee award.”
Id. at 18.
[8] Newman filed a petition for rehearing, which this Court denied. Newman then
filed a petition to transfer, which our Supreme Court denied. Newman then
filed a petition for a writ of certiorari, which the United States Supreme Court
denied on November 18, 2019.
[9] Attorney York filed a petition with the trial court for a determination of
appellate attorney fees. Attorney York detailed all of the appellate pleadings
and proceedings and noted the following regarding Appellate Cause No. 2475:
34. In summary, Newman filed 320 pages of Motions, Briefs, Responses and the like, in addition to 599 pages of documents.
35. York in summary filed 193 pages of Motions, Responses, Briefs and the like, in addition to 366[ ]pages of documents from the record which had not been included by Newman.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 5 of 21 Appellant’s App. Vol. II p. 125. Regarding Appellate Cause No. 1721,
Attorney York detailed the pleadings and appellate proceedings and noted:
65. In summary, Newman filed 192 pages of Motions, Briefs, Responses and the like, in addition to 254 pages of documents.
66. York in summary filed 116 pages of Motions, Responses, Briefs and the like, in addition to 346[ ]pages of documents from the record which had not been included by Newman.
Id. at 128.
In the Appellate Cases Newman filed a combined total of 512 pages of Motions, Briefs, Responses and the like, in addition to a combined 853 pages of documents. In order to properly respond to Newman’s voluminous submissions, York was nevertheless required to file a combined total of 309 pages of Motions, Responses, Briefs and the like, in addition to a combined 712[ ] pages of documents from the record which had not been included by Newman.
Id. at 130. York requested that the trial court assess his fees at $375.00 an hour
for 453.20 hours.
[10] Newman filed an objection to Attorney York’s request, and the trial court set
the matter for hearing. Newman, however, did not appear for the hearing.
Attorney Robert Zaban, a claimant in the Estate, appeared. With the trial
court’s approval, Attorney York proceeded “in summary fashion.” Tr. Vol. II
p. 8. Attorney Karl Mulvaney testified as an expert on Attorney York’s behalf
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 6 of 21 regarding attorney fees in the appellate matters. Attorney York reduced his
requested fees by 6.7 hours pursuant to one of Newman’s objections.
[11] The trial court issued findings of fact and conclusions thereon granting
Attorney York’s petition for appellate attorney fees as follows:
7. The two Appellate Cases involved numerous and extensive filings by Newman, which went beyond the normal amount of briefing for appeals, and which required consideration of and responses by York. And, in addition to the initial briefing before the Indiana Court of Appeals, Newman sought rehearing, and then transfer to the Indiana Supreme Court.
8. York expended 446.5 hours in providing reasonable, just, and successful appellate services to the Estate in the Appellate Cases, as documented in York’s Appellate Time Records.
9. A reasonable rate for York’s appellate services is $375.00 per hour.
10. The Estate thereby incurred York’s reasonable appellate attorney’s fees in the total amount of $167,437.50.
11. Pursuant to Orders of the Indiana Supreme Court and the Indiana Court of Appeals, this Court determines that the amount Newman should pay the Estate for the appellate attorney’s fees the Estate incurred as Appellee in Appellate Case No. 49A05- 1710-ES-02475 and Appellate Case No. 18A-ES-01721 is $167,437.50.
Appellant’s App. Vol. II pp. 92-93. Newman filed a motion to correct error,
which the trial court denied. Newman now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 7 of 21 Analysis [12] We begin by noting that Attorney York has not filed an appellee’s brief. When
an appellee fails to submit a brief, we do not undertake the burden of
developing arguments for the appellee, and we apply a less stringent standard of
review. Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). We may
reverse if the appellant establishes prima facie error, which is error at first sight,
on first appearance, or on the face of it. Id. at 351-52. This rule relieves us of
the burden of controverting arguments advanced in favor of reversal where that
burden properly rests with the appellee. Id. at 352. We are obligated, however,
to correctly apply the law to the facts in the record in order to determine
whether reversal is required. Id.
[13] We also note that Newman is proceeding pro se. We note that “a pro se litigant
is held to the same standards as a trained attorney and is afforded no inherent
leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17
N.E.3d 259, 266 (Ind. 2014). “An appellant who proceeds pro se is held to the
same established rules of procedure that trained legal counsel is bound to follow
and, therefore, must be prepared to accept the consequences of his or her
action.” Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App.
2014), trans. denied, cert. denied, 136 S. Ct. 227 (2015). Although we prefer to
decide cases on their merits, arguments are waived where an appellant’s
noncompliance with the rules of appellate procedure is so substantial it impedes
our appellate consideration of the errors. Id. Indiana Appellate Rule
46(A)(8)(a) requires that the argument section of a brief “contain the
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 8 of 21 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 . . . .”
We will not consider an assertion on appeal when there is no cogent argument
supported by authority and there are no references to the record as required by
the rules. Id. We will not become an advocate for a party or address arguments
that are inappropriate or too poorly developed or expressed to be understood.
Id.
[14] Newman repeatedly argues in his appellant’s brief that he is entitled to relief
pursuant to Article 1, Section 26 of the Indiana Constitution 2 because the trial
court “suspended the operation of applicable law.” Appellant’s Br. pp. 10, 13,
15, 15 n.1, 17, 18, 28-29, 37, 41, 54, 57. Newman, however, cites no relevant
authority on the application of Article 1, Section 26. Accordingly, Newman’s
contentions regarding Article 1, Section 26 are waived for failure to make a
cogent argument. See Ind. Appellate Rule 46(A)(8); Loomis v. Ameritech Corp.,
764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding that the failure to present a
cogent argument waives the issue for appellate review), trans. denied.
2 Article 1, Section 26 of the Indiana Constitution provides: “The operation of the laws shall never be suspended, except by the authority of the General Assembly.”
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 9 of 21 I. Service of Fee Petition on Beneficiaries
[15] The first issue is whether Newman is entitled to raise arguments on behalf of
beneficiaries to the Estate. According to Newman, Attorney York failed to
serve his fee petition on certain beneficiaries or interested persons and, thus, the
trial court should not have considered the fee petition. Newman contends that
the failure to serve the beneficiaries violated Newman’s constitutional rights
because the beneficiaries were denied “their right to object to York’s fees and
participate in the hearing thereto, to Newman’s detriment.” Appellant’s Br. p.
14.
[16] Although Newman was an attorney in Indiana, his license has been suspended
since 2011. This Court previously informed Newman that he “may only pursue
claims on his own behalf.” Appellant’s App. Vol. II p. 94 (Appellate Cause
2475, Jan. 4, 2018 Order). We again remind Newman that, as a pro se litigant,
he cannot assert claims on behalf of others.
[17] To the extent Newman attempts to argue that the failure to serve the
beneficiaries with the fee petition in some way impacts Newman’s
constitutional rights, this argument is waived for Newman’s failure to make a
cogent argument and for Newman’s failure to cite any relevant authority
supporting the argument. See Ind. Appellate Rule 46(A)(8); Loomis, 764 N.E.2d
at 668 (holding that the failure to present a cogent argument waives the issue for
appellate review).
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 10 of 21 II. Waiver of Issues
[18] Newman next argues that: (1) Attorney York was not properly sworn in as a
witness; (2) Attorney York’s fee petition was not properly introduced into
evidence; and (3) Attorney Mulvaney’s expert opinion was inadmissible and
insufficient. We afford a trial court broad discretion in ruling on the
admissibility of evidence. Sims v. Pappas, 73 N.E.3d 700, 705 (Ind. 2017). We
will disturb the trial court’s ruling only where the trial court has abused its
discretion. Id. “An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it.” Id.
[19] We note that Newman did not appear for the hearing on Attorney York’s
petition for appellate attorney fees and that the trial court conducted the
proceedings in a summary fashion. “Summary proceedings function to
efficiently resolve disputes by allowing parties and the court to forego [sic] the
use of formal rules of procedure and evidence and instead allow the court to
base its findings and conclusions upon the arguments of counsel and limited
evidence.” Bogner v. Bogner, 29 N.E.3d 733, 739 (Ind. 2015). Our Supreme
Court has required a timely objection to summary proceedings. See id. at 741
(holding that, “if Father did not want to proceed summarily and believed that a
full evidentiary hearing was necessary, that objection should have been raised at
the time of the hearing”).
[20] Because Newman did not appear at the hearing, he did not object to the
summary proceedings and did not object to the admission of any of the
evidence he now argues was inadmissible. “Generally, a party cannot raise an Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 11 of 21 argument for the first time on appeal.” Anonymous, M.D. v. Hendricks, 994
N.E.2d 324, 327 (Ind. Ct. App. 2013). Accordingly, Newman has waived his
contentions regarding the admission of this evidence.
[21] To the extent Newman argues that Attorney Mulvaney’s opinion was
insufficient because his opinion was based on “baseless and irrelevant factors”,
this argument goes to the weight of the evidence, not the admissibility.
Appellant’s Br. p. 32. “[T]he lack of facts and reasoning, which may be brought
out on cross-examination of the expert, goes to the weight to be given to the
expert’s opinion, not its admissibility.” Summerhill v. Klauer, 49 N.E.3d 175,
182 (Ind. Ct. App. 2015). Accordingly, the trial court did not abuse its
discretion.
III. Payment of Fees to the Estate
[22] Newman next argues that the trial court erred by ordering the appellate attorney
fees to be paid to the Estate. Newman contends that the fees should have been
ordered to be paid directly to Attorney York.
[23] The trial court appointed Attorney York as successor personal representative of
the Estate, and Attorney York was also attorney for the Estate. As such,
Attorney York was entitled to compensation for his services. Indiana Code
Section 29-1-10-13 provides: “An attorney performing services for the estate at
the instance of the personal representative shall have such compensation
therefor out of the estate as the court shall deem just and reasonable.” (emphasis
added). In each of the appeals, appellate attorney fees were awarded to the
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 12 of 21 Attorney York as successor personal representative of the Estate, not in his
individual capacity. Pursuant to Indiana Code Section 29-1-10-13, those
appellate attorney fees must be paid out of the estate, and accordingly, the trial
court properly ordered Newman to pay the attorney fee award to the Estate, not
Attorney York.
IV. Bias
[24] Newman argues that the trial court was biased and prejudiced against him. 3
“Adverse rulings and findings by a trial judge are not sufficient reason to believe
the judge has a personal bias or prejudice.” L.G. v. S.L., 88 N.E.3d 1069, 1073
(Ind. 2018). We “credit judges with the ability to remain objective
notwithstanding their having been exposed to information which might tend to
prejudice lay persons.” Id. “The law presumes that a judge is unbiased and
unprejudiced.” Id. “To overcome this presumption, the moving party must
establish that the judge has personal prejudice for or against a party.” Id.
“Such bias or prejudice exists only where there is an undisputed claim or the
judge has expressed an opinion on the merits of the controversy before him [or
her].” Id. “[P]rejudice must be shown by the judge’s trial conduct; it cannot be
inferred from his [or her] subjective views.” Richardson v. Richardson, 34 N.E.3d
696, 703 (Ind. Ct. App. 2015). A party “must show that the trial judge’s action
3 There is no indication that Newman filed a motion for the recusal of the trial court.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 13 of 21 and demeanor crossed the barrier of impartiality and prejudiced” that party’s
case. Id. at 703-04.
[25] In support of his argument that the trial court was biased against him, Newman
contends: (1) in its order, the trial court called him “Newman” throughout the
order rather than first calling him “Lawrence Newman”; (2) during the hearing,
the trial court said it was “well aware of [Attorney York’s] credentials”; (3) the
trial court noted in its order that Newman was a suspended attorney,
“diminished the weight given to Newman’s legal position,” and “ostensibly
intended to embarrass Newman”; (4) the trial court failed to discuss a long
history of disputes between Newman and Attorney York; (5) during the
hearing, the trial court asked Attorney Zaban if he had any questions for the
witnesses; and (6) the case was withdrawn from the trial court pursuant to Trial
Rule 53.1 on August 27, 2017, but remanded to the trial court by our Supreme
Court on September 12, 2017. Appellant’s Br. p. 25.
[26] None of Newman’s allegations overcomes the presumption that the trial court
was unbiased and unprejudiced. Rather, Newman’s allegations are frivolous
and fail to demonstrate that the trial court’s “action[s] and demeanor crossed
the barrier of impartiality and prejudiced” Newman’s case in any way; has
personal prejudice for or against Newman; or expressed an opinion on the
merits of the controversy before him. Richardson, 34 N.E.3d at 703-04; L.G., 88
N.E.3d at 1073. Newman’s argument fails.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 14 of 21 V. Challenges to Prior Appellate Orders
[27] Newman repeatedly challenges the orders from our Supreme Court and this
Court awarding Attorney York, as appellee in the appeals, appellate attorney
fees. We remind Newman that “[t]he doctrine of res judicata bars relitigation
of an issue where there has been a final adjudication on the merits of the same
issue between the same parties or their privies by a court of competent
jurisdiction.” Counceller v. Counceller, 810 N.E.2d 372, 376 (Ind. Ct. App. 2004).
To the extent Newman seeks to relitigate the final orders awarding appellate
attorney fees by our Supreme Court and this Court, those issues are barred by
res judicata.
VI. Appellate Attorney Fee Award
[28] Newman challenges the trial court’s award of $167,437.50 in appellate attorney
fees. “We review a trial court’s award of attorney’s fees for an abuse of
discretion.” River Ridge Dev. Auth. v. Outfront Media, LLC, 146 N.E.3d 906, 912
(Ind. 2020). “An abuse of discretion occurs when the court’s decision either
clearly contravenes the logic and effect of the facts and circumstances or
misinterprets the law.” Id. “To make this determination, we review any
findings of fact for clear error and any legal conclusions de novo.” Id.
[29] Newman raises several challenges to the appellate attorney fee award. He
contends: (1) the trial court applied the wrong legal standard; (2) the trial court
awarded appellate attorney fees for time periods not covered by the orders
awarding such fees; (3) the trial court awarded appellate attorney fees for time
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 15 of 21 that was not related to appellate work; (4) Attorney York’s claimed hours were
“grossly-inflated”; and (5) the trial court should have sanctioned Attorney York
for his “documented perjuries, false statements under oath, gross overcharging,
charging for matters not connected with Newman’s Appeals, and charging for
matters not subject to the appellate court’s orders granting appellate attorney
fees.” Appellant’s Br. pp. 38, 54.
[30] “In assessing what qualifies as a reasonable fee, trial courts have broad
discretion in determining a fee award and may consider several factors.”
Rainbow Realty Grp., Inc. v. Carter, 131 N.E.3d 168, 178 (Ind. 2019). “When
evaluating the reasonableness of an attorney fee award, the starting point is the
hours worked and the hourly rate charged.” Himsel v. Indiana Pork Producers
Ass’n, 95 N.E.3d 101, 113 (Ind. Ct. App. 2018). “The trial court may consider a
number of other factors, including the responsibility of the parties in incurring
the attorney fees and the judge’s personal expertise and knowledge.” Id. “In
addition, a court may consider the factors listed in Indiana Professional
Conduct Rule 1.5(a) governing the reasonableness of a fee for disciplinary
purposes, but it is not required to expressly do so.” Id. at 113-14.
[31] At the hearing on Attorney York’s petition for appellate attorney fees, Attorney
York presented evidence that he spent 453.20 hours addressing appellate issues.
He conceded, based upon Newman’s response to his petition, that he
improperly included 6.7 hours for addressing the petition to transfer in
Appellate Cause No. 1721, for which Attorney York had not requested an
award of appellate attorney fees. Accordingly, the trial court did not award
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 16 of 21 appellate attorney fees for those 6.7 hours. Attorney Mulvaney testified that:
(1) an hourly rate of $375.00 per hour was reasonable; (2) a typical appeal
usually costs a minimum of $30,000.00; and (3) the two appeals brought by
Newman involved extraordinarily extensive, lengthy pleadings, including
petitions for rehearing and petitions for transfer.
[32] In its order, the trial court found that: “[t]he two Appellate Cases involved
numerous and extensive filings by Newman, which went beyond the normal
amount of briefing for appeals, and which required consideration of and
responses by York”; “York expended 446.5 hours in providing reasonable, just,
and successful appellate services to the Estate in the Appellate Cases, as
documented in York’s Appellate Time Records”; and “[a] reasonable rate for
York’s appellate services is $375.00 per hour.” Appellant’s App. Vol. II p. 92.
We find no indication that the trial court used the wrong standard in assessing
the attorney fees, as alleged by Newman.
[33] Newman challenges Attorney York’s claim of forty-two hours of work between
October 26, 2017, and January 6, 2018, for Attorney York’s first motion to
dismiss in Appellate Cause No. 2475. On September 12, 2018, this Court
granted Attorney York’s second motion to dismiss the appeal, granted Attorney
York’s request for appellate attorney fees, and remanded to the trial court to
calculate the amount of appellate attorney fees. Our order did not limit the
appellate attorney fees to those that addressed the second motion to dismiss.
Accordingly, the trial court did not abuse its discretion by awarding appellate
attorney fees for those forty-two claimed hours.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 17 of 21 [34] Newman also challenges the trial court’s award of appellate attorney fees for
Attorney York’s claimed hours on September 26, 2018, for Appellate Cause
No. 2475. Attorney York’s time entry for that date provides: “Consider and
research regarding Motion to Reconsider Appellate Order. Research and
memo regarding appellate attorneys’ fees. Review Beverly’s deposition. Work
on Response to Motion to Reconsider.” Appellant’s App. Vol. II p. 136.
Newman claims that Beverly’s deposition did not relate to the appeal. At the
hearing, Attorney York, however, testified that Beverly’s deposition related to
the injunction, which was a subject of the appeal. Accordingly, the trial court
did not abuse its discretion by awarding those appellate attorney fees.
[35] Additionally, Newman challenges 25.7 hours that Attorney York claimed
between January 29, 2019, and February 5, 2019, for preparing a response to
Newman’s petition for rehearing in Appellate Cause No. 1721. In our
memorandum decision in Appellate Cause No. 1721, we held: “[W]e conclude
that Attorney York as personal representative is entitled to appellate attorney
fees, and we remand to the trial court to determine the proper amount of the
appellate fee award.” Appellate Cause No. 1721, slip op. at 18. Newman then
filed a petition for rehearing, which Attorney York responded to, and this Court
denied the petition for rehearing. Our memorandum decision was broadly
worded and did not limit the appellate attorney fee award; we cannot say the
trial court abused its discretion by awarding appellate attorney fees for Attorney
York preparing the response to Newman’s petition for rehearing.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 18 of 21 [36] Next, Newman contends that Attorney York spent too much time responding
to several of Newman’s pleadings. Newman instituted several frivolous
appeals; filed numerous, lengthy petitions at every opportunity; and has been
generally overly-litigious. Given the number, length, and often rambling nature
of Newman’s filings, we find Newman’s argument that Attorney York spent
too much time responding to Newman to be unavailing.
[37] Newman also argues that the trial court should have sanctioned Attorney York
rather than awarding him appellate attorney fees. We see no indication that
Newman requested such a sanction. Moreover, given Newman’s litigiousness
and the difficulty involved in addressing Newman’s filings, we find no
indication that Attorney York’s requested fees were “obviously inflated,”
“shocking to the conscience,” or “grossly excessive” as Newman contends.
Appellant’s Br. p. 54. Newman’s contention that the trial court should have
sanctioned Attorney York fails.
[38] Attorney York’s requested appellate attorney fees were reasonable, and the trial
court did not abuse its discretion by awarding Attorney York, as personal
representative, $167,437.50 in appellate attorney fees. Although it is a large
attorney fee award, it is warranted by Newman’s conduct. We note that
“[g]ross abuse of the right to appellate review ‘crowds our court to the
detriment of meritorious actions, and should not go unrebuked.’” Posey v.
Lafayette Bank & Tr. Co., 512 N.E.2d 155, 156 (Ind. 1987) (quoting Marshall v.
Reeves, 262 Ind. 403, 404, 316 N.E.2d 828, 830 (1974)), cert. denied, 485 U.S.
988, 108 S. Ct. 1292 (1988).
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 19 of 21 VII. Constitutional Claims
[39] Finally, Newman contends that the appellate attorney fee award violated his
rights under the Eighth Amendment and the Fourteenth Amendment of the
United States Constitution and Article 1, Section 16 of the Indiana
Constitution.
[40] The Eighth Amendment provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
Similarly, Article 1, Section 16 of the Indiana Constitution provides: “Excessive
bail shall not be required. Excessive fines shall not be imposed. Cruel and
unusual punishments shall not be inflicted. All penalties shall be proportioned
to the nature of the offense.” Newman seems to argue that the appellate
attorney fee award is an excessive fine. Newman, however, cites no authority
for the proposition that appellate attorney fees awarded in an estate matter,
pursuant to Indiana Appellate Rule 66, qualify as an “excessive fine” under
either constitutional provision. This argument is waived for Newman’s failure
to make a cogent argument. See Ind. Appellate Rule 46(A)(8); Loomis, 764
N.E.2d at 668 (holding that the failure to present a cogent argument waives the
issue for appellate review).
[41] Newman also argues that the appellate attorney fee award violates his rights
under the Privileges and Immunities Clause of the Fourteenth Amendment,
which provides: “No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States.” Newman argues
that the appellate attorney fees award was an excessive fine prohibited by the Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 20 of 21 Privileges and Immunities Clause. Newman, however, again cites no authority
for the proposition that appellate attorney fees awarded in an estate matter
pursuant to Indiana Appellate Rule 66 qualify as an “excessive fine.” This
argument is waived for Newman’s failure to make a cogent argument. See Ind.
Appellate Rule 46(A)(8); Loomis, 764 N.E.2d at 668 (holding that the failure to
present a cogent argument waives the issue for appellate review).
Conclusion [42] The trial court properly awarded $167,437.50 in appellate attorney fees
pursuant to multiple orders in Appellate Cause No. 2475 and Appellate Cause
No. 1721. We affirm.
[43] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-ES-140 | October 7, 2020 Page 21 of 21