Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., No. 2-581A150

Docket NºNo. 2-581A150
Citation452 N.E.2d 989
Case DateAugust 09, 1983
CourtCourt of Appeals of Indiana

Page 989

452 N.E.2d 989
William J. BRIGGS, as Conservator, and Individually,
Appellant (Defendant Below),
v.
CLINTON COUNTY BANK & TRUST CO. OF FRANKFORT, INDIANA, as
Special Administrator of the Estate of Mary
Bernice Smoker, Deceased, substituted
party, Appellee (Plaintiff Below).
No. 2-581A150.
Court of Appeals of Indiana,
Second District.
Aug. 9, 1983.
Rehearing Denied Sept. 14, 1983.

Page 994

Florence Anne Briggs, Flora, for appellant.

Samuel H. Power, R. Adrian Marks, Frankfort, for appellee.

SULLIVAN, Judge.

William J. Briggs (Briggs) individually and as guardian or conservator of the person and estate of Mary Bernice Smoker, now deceased, (Smoker) appeals the judgment of the trial court on objections to his final report and on claims by both Smoker and Briggs. 1 Smoker died prior to the trial in this cause, and the Clinton County Bank & Trust Co. (the Bank) was substituted as her special administrator.

Page 995

FACTS

Briggs was Smoker's personal attorney over a number of years and handled numerous items of business for her. During that time, from approximately 1965 to 1976, he had charged her on only four occasions. In 1965, he charged $7.50 for evicting two of her farm tenants. In 1967, he charged her $41.00 to file a suit and $50.00 to prepare a will. In 1969, he charged $200.00 for handling negotiations with an oil company for a pipeline easement. In 1976, he charged $100.00 to prepare her income tax return.

Until 1976, Briggs had no written legal services agreement with Smoker for the payment of services. He contended that, in 1971, he and Smoker entered into an oral agreement whereby he agreed to perform all legal services for her until her death for the sum of $10,000.00. That agreement was not reduced to writing until November 1976.

In 1970, Smoker executed a will, prepared by Briggs, in which a testamentary trust was created in the residuary clause. The trust provided that the trustees were to choose one or more boys from Carroll County and to pay all college expenses for them from undergraduate through to a professional or doctoral degree. She specified that the first recipient of a scholarship should be the son of Briggs. Briggs' wife, an attorney, was named co-executrix of the will, the Briggses were named co-trustees of the trust, and the Briggses' law firm was designated as attorneys both for the estate and for the trust. The will also contained a $1,000.00 bequest to Briggs.

On November 9, 1976, Smoker executed the following documents, prepared by Briggs, and in the presence of witnesses:

1. A codicil to her will and an affidavit stating that if she ever needed a guardian, she wanted Briggs to act in that capacity;

2. A legal services agreement with Briggs for legal services and "kindnesses" he had rendered to her in the past and those he might render to her until her death, for the sum of $10,000.00. The agreement recited she had already bequeathed him $1,000.00 in her will, and the other $9,000.00 was to be paid in the form of a certificate of deposit to be issued in their joint names; and

3. A check to the bank for the purchase of the $9,000.00 C.D.

Fifteen days later, on November 24, 1976, Briggs filed a petition for the appointment of a conservator of the person and estate of Smoker. The petition had been prepared by Briggs and signed by Smoker's cousin. The court appointed Briggs as conservator. Smoker was a diabetic and had been hospitalized sometime after November 9, 1976, but before November 24, 1976, because of insulin imbalance. Because of her medical condition, Smoker had had periods of blackouts when she did not know where she was or what she had done.

In November and December, 1976, Smoker's condition worsened. However, in January 1977, her diabetes stabilized and she improved. She had no recollection of the events of November 9, 1976. She disavowed the legal services agreement and was incensed that a conservatorship had been established over her and her property. She consulted with another attorney to see what could be done to have Briggs removed as conservator.

This is but a bare-bones recitation of the facts preceding the litigation in this case. Other facts relating to the issues and the trial of this cause will be referred to, as relevant, under each issue.

Briggs presents issues on appeal with respect to:

I. Allegedly libelous statements in Smoker's Petition to Discharge;

II. The trial court's determination that the legal services contract and certificate of deposit were the result of undue influence;

III. A requirement that recission of the contract and certificate of deposit depends upon prior disaffirmance and return to the status quo;

IV. Entitlement to quantum meruit payment for past legal services;

Page 996

V. Denial of petitions for change of judge;

VI. Curtailment of cross examination during the deposition of Smoker and premature consideration of deposition;

VII. Denial of Conservator Fees;

VIII. Exclusion of prior testimony of an unavailable witness;

IX. The attorney-client privilege concerning prior wills executed by Smoker;

X. Disallowance of a portion of the costs for duplication of a deposition; and

XI. Newly discovered evidence.

In addition, the Bank, as appellee, seeks to recover the costs of additional transcripts filed by it in this appeal and to recover, as damages, attorney fees for defending the appeal. We consider these matters respectively as Issues XII and XIII.

I.

LIBELOUS STATEMENTS IN PETITION TO DISCHARGE CONSERVATOR

Briggs first argues that the trial court erred:

(A) In failing to hear evidence on Smoker's Petition to Discharge him as conservator thus denying Briggs the opportunity to defend himself against allegations therein;

(B) In finding that the Petition to Discharge was absolutely privileged;

(C) In finding against Briggs on his claim alleging libelous statements in documents filed by counsel for Smoker; and

(D) In awarding Briggs only nominal damages for libel contained in certain pleadings filed July 14, 1977.

This issue represents a consolidation of a number of issues on appeal. We have consolidated them because they are related and may be disposed of together.

(A)

Smoker instituted this action by filing her "Petition to Discharge and Remove Conservator and to Appoint a Successor Conservator" (Petition to Discharge). In the petition, she made various allegations as grounds for Briggs' removal. She also alleged that two doctors had recently examined her and found her to be of sound mind and capable to manage her own affairs, but she did not request termination of the conservatorship.

Thereafter, Briggs filed a "Petition to Court to Determine that Mary Bernice Smoker Is Mentally Sound, Is Legally Competent, and Is Capable of Managing Her Person and Her Estate and Terminate Conservatorship" (Petition to Terminate). In it, he referred to the doctors' reports of Smoker's competency and alleged that Smoker did not want a change of conservator, but wanted no conservator at all.

The trial court ordered a hearing on the Petition to Terminate, stating that if that petition were denied, it would hear the Petition to Discharge. After hearing, the trial court terminated the conservatorship and ordered Briggs to file his final report. After Briggs filed the final report, Smoker filed various objections to it and filed claims against the conservator. Briggs filed claims for libel in the allegations of the Petition to Discharge, for damage to his reputation, and for compensation for past services. Although no hearing was ever had on the Petition to Discharge, substantially all the allegations therein were actually litigated in the trial of Smoker's objections to the final report and the various claims.

Briggs argues that it was error for the trial court to hear only his Petition to Terminate and to refuse to require the allegations in the Petition to Discharge to be proved. However, his Petition to Terminate took priority over the Petition to Discharge, and, upon the trial court's determination that the conservatorship should be terminated, the issue whether the conservator should be discharged for cause was moot. Further, as we have noted, substantially all the allegations in the Petition to Discharge were actually litigated in the trial

Page 997

on the objections and the claims. Briggs was not prejudiced by the trial court's refusal to hear the Petition to Discharge.

(B)

Briggs next argues that the trial court erred in finding that the Petition to Discharge was absolutely privileged and, therefore, not libelous. The gravamen of his argument is that the pleading was not absolutely privileged because the pleader abused the occasion by publishing defamatory words even though the words were not necessary to accomplish the purpose for which any privilege existed. Briggs alleges that because Smoker wanted the conservatorship ended completely, Smoker's counsel had the duty to seek the shortest and most direct way out of the conservatorship, i.e., to file a petition to terminate the conservatorship altogether. Because Smoker chose to file a petition to discharge him for cause, she abused the absolute privilege granted to allegations made in pleadings in a lawsuit and, therefore, Smoker should be held accountable for defamatory statements therein.

The prevailing rule is that judges, counsel, parties and witnesses are absolutely privileged to publish defamatory matter in the course of judicial proceedings, with the qualification that the statements must be pertinent and relevant to the case. Stahl v. Kincade (1963) 135 Ind.App. 699, 192 N.E.2d 493. See also 50 Am.Jur.2d Libel & Slander Sec. 231 (1970); Restatement (Second) of Torts Secs. 586, 587 (1977). The reason underlying this doctrine is that public interest in the freedom of expression by participants in judicial proceedings, uninhibited by the risk of resultant suits for defamation, is so vital and necessary to the integrity of our judicial system...

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70 practice notes
  • Heckler & Koch, Inc. v. German Sport Guns GmbH, No. 1:11–cv–01108–SEB–TAB.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • December 24, 2014
    ...be made paramount to the right of the individual to a legal remedy when he has been wronged.”Briggs v. Clinton Cnty. Bank & Trust Co., 452 N.E.2d 989, 997 (Ind.Ct.App.1983). Because it embodies the value of “freedom of expression,” the privilege originally applied only to bar actions for de......
  • Estate of Mayer v. Lax, Inc., No. 37A03–1207–PL–323.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 2013
    ...Feelings are often wounded and reputations are sometimes maligned.” Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., 452 N.E.2d 989, 998 (Ind.Ct.App.1983). Lax and Lasco seem to assert in part that the irrelevancy of the second lawsuit counterclaims was established by the trial......
  • Jackson v. Farmers State Bank, No. 4-284
    • United States
    • Indiana Court of Appeals of Indiana
    • August 5, 1985
    ...ruling on a T.R. 76(8) motion may be reviewed only for an abuse of discretion. Briggs v. Clinton County Bank & Trust (1983), Ind.App., 452 N.E.2d 989, 1008, trans. denied. Thanks to the appellee's citation to specific pages in the record, we need not search the record to find the pertinent ......
  • J.A.W. v. Roberts, No. 30A05-9108-CV-248
    • United States
    • Indiana Court of Appeals of Indiana
    • January 13, 1994
    ...or delay, or when issues presented are wholly without substance or merit. Briggs v. Clinton County Bank & Trust Co. (1983), Ind.App., 452 N.E.2d 989. Such damages are an extraordinary measure. In re Estate of Watson (1983), Ind.App., 449 N.E.2d 1156. Punitive sanctions may not be imposed to......
  • Request a trial to view additional results
70 cases
  • Heckler & Koch, Inc. v. German Sport Guns GmbH, No. 1:11–cv–01108–SEB–TAB.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • December 24, 2014
    ...be made paramount to the right of the individual to a legal remedy when he has been wronged.”Briggs v. Clinton Cnty. Bank & Trust Co., 452 N.E.2d 989, 997 (Ind.Ct.App.1983). Because it embodies the value of “freedom of expression,” the privilege originally applied only to bar actions for de......
  • Estate of Mayer v. Lax, Inc., No. 37A03–1207–PL–323.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 2013
    ...Feelings are often wounded and reputations are sometimes maligned.” Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., 452 N.E.2d 989, 998 (Ind.Ct.App.1983). Lax and Lasco seem to assert in part that the irrelevancy of the second lawsuit counterclaims was established by the trial......
  • Jackson v. Farmers State Bank, No. 4-284
    • United States
    • Indiana Court of Appeals of Indiana
    • August 5, 1985
    ...ruling on a T.R. 76(8) motion may be reviewed only for an abuse of discretion. Briggs v. Clinton County Bank & Trust (1983), Ind.App., 452 N.E.2d 989, 1008, trans. denied. Thanks to the appellee's citation to specific pages in the record, we need not search the record to find the pertinent ......
  • J.A.W. v. Roberts, No. 30A05-9108-CV-248
    • United States
    • Indiana Court of Appeals of Indiana
    • January 13, 1994
    ...or delay, or when issues presented are wholly without substance or merit. Briggs v. Clinton County Bank & Trust Co. (1983), Ind.App., 452 N.E.2d 989. Such damages are an extraordinary measure. In re Estate of Watson (1983), Ind.App., 449 N.E.2d 1156. Punitive sanctions may not be imposed to......
  • Request a trial to view additional results

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