Clapp v. Evans
| Decision Date | 31 July 2012 |
| Docket Number | No. 64A04–1201–GU–13.,64A04–1201–GU–13. |
| Citation | 971 N.E.2d 1275 |
| Parties | In re The GUARDIANSHIP OF Thora MOULTON Alison E. Clapp (O'Callaghan), Appellant, v. Donald J. Evans, Appellee. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HEREAppeal from the Porter Superior Court; The Honorable Roger V. Bradford, Judge, The Honorable Mary A. DeBoer, Magistrate; Cause No. 64D01–0802–GU–1651.
Alison E. Clapp, Bangor, Pennsylvania Appellant Pro Se.
Alison Clapp (O'Callaghan) (Clapp) 1 and the Guardianship of Thora Moulton, pro se, appeal an award of attorney fees and guardianship-related fees to Donald E. Evans. Clapp initially presents her claims as sixteen numbered issues, but has organized the “argument” section of her appellate brief into seven numbered “points.” We have further winnowed the list to the following three:
1. Is Ind.Code Ann. § 29–3–3–4 () unconstitutional?
2. Did the trial court err in failing to grant Clapp's motion for summary judgment?
3. Did the trial court err in awarding attorney fees to Evans?
We reverse.
The facts underlying this dispute were set out in this court's resolution of Clapp's direct appeal as follows:
On February 19, 2008, Attorney Donald J. Evans filed a verified petition for the appointment of a temporary guardian over the person and estate of Thora M. Moulton, alleging that Moulton was “unable to maintain and care for her person or financial affairs” and “require[d] twenty-four hour, seven day a week care.” A statement from a physician attesting to the latter allegation was submitted with the petition. That same day, the trial court found “that an emergency exist[ed]” and that Moulton's “welfare ... require[d] immediate action.” It issued an order appointing Evans as temporary guardian of Moulton and her estate.
On March 7, 2008, the trial court appointed a guardian ad litem to represent Moulton. On March 20, 2008, the guardian ad litem reported to the trial court on his personal meeting with Moulton and his review of relevant circumstances. The guardian ad litem recommended that Evans be appointed guardian of her person and that 1st Source Bank (“the Bank”) be appointed guardian of her estate.
On April 1, 2008, Evans filed a petition seeking his replacement as temporary guardian over Moulton's estate. That same day, April 1, 2008, the trial court appointed the Bank as temporary guardian of Moulton's estate.
On April 28, 2008, Moulton died. On May 22, 2008, a final report and petition to terminate the guardianship was filed by the Bank and Evans; and they served O'Callaghan therewith. Also on May 22, 2008, the trial court issued its order setting a hearing for June 27, 2008, on the guardians' final report and petition to terminate the guardianship. The trial court's order directed that the guardians' filing “be served on” O'Callaghan. A letter dated June 12, 2008, from the trial court to O'Callaghan advised her that “a hearing via telephone conference” was not possible and “urge[d][her] to attend in person or by counsel.”
At the outset of the hearing on June 27, 2008, the trial court noted that “Ms. Moulton's nieces” had been “advised that they needed to be here” if they objected to the petition, and “they're not here.” Evidence was heard, and at the conclusion of the hearing, the trial court noted the statutory provision whereby “the guardianship terminates upon the death of the protected person.” See Ind.Code § 29–3–12–l(b)(2).
On August 11, 2008, the trial court issued an order approving the guardians' final report and terminating the temporary guardianship. The order expressly stated that “notice of the” June 27, 2008, hearing had been “given to ... O'Callaghan,” who did not “appear[ ] in person or by counsel.”
In re Temporary Guardianship of Moulton, No. 64A04–0809–CV–562, slip op. at 1–2 (Ind.Ct.App. March 17, 2009) (), trans. denied, cert. denied,130 S.Ct. 1147.
Clapp presented the following issues in her first appeal: (1) “Is Indiana Code [section] 29–3–3–4 [providing for the appointment of a temporary guardian] unconstitutional in any manner?”, In re Temporary Guardianship of Moulton, No. 64A04–0809–CV–562, slip op. at 2, and (2) did the trial court err in failing to grant her request to assume trusteeship over Moulton's estate? This court resolved both questions against Clapp, in each case on grounds that Clapp waived the issue by failing to support her claims with cogent argument, complete with citation to authority.
The additional facts relevant to the present dispute commence with an August 5, 2009 “Guardian's Petition for Attorney and Guardian Fees” filed by Evans. Appellants' Appendix at 309. In this petition, Evans sought “a reasonable fee for the guardian for the person, attorney for the guardianship and attorney for Thora M. Moulton prior to her death”, in the amount of the funds then remaining in the Moulton's estate after payment of all creditors, i.e., $16,569. On September 11, 2011, Clapp submitted a filing entitled “Motion for Summary Judgment, Intervention, and Declaratory Relief.” Id. at 151. In it, Clapp requested a change of judge, sought a declaration that I.C. § 29–3–3–4 is unconstitutional, and asked the court to
grant summary judgment against all of Evans' claims for ‘fees' and all/any other Evans requests, grant summary judgment in reimbursement to Affiant for out-of-pocket expenses, enter an order which closes this case in all respects and grants to Affiant and sister Jennifer Moulton Clapp Spiegel all remaining assets of Thora Moulton and directs that First Source Bank transfer to Affiant and sister all remaining assets.
Id. at 155. According to the corresponding CCS entry, however, “NO MOTION FOR SUMMARY JUDGMENT IS FOUND TO BE ATTACHED, ENCLOSED WAS AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, INTERVENTION, AND DECLARATORY RELIEF, AN AFFIRMATION OF SERVICE OF MOTION FOR SUMMARY JUDGMENT, ETC[.] AND A MEMORANDOM OF LAW.” Id. at 26. Approximately forty-five days later, Clapp filed a Praecipe for Change of Judge, detailing her reasons for requesting the change of judge, based generally upon rulings by the court in this case, noting, among other things, that the court had not set a hearing date for her summary judgment motion. The court informed her at that time that it had not set the matter for hearing because she had failed to submit the motion itself.
Evans's August 5, 2009 petition for fees finally came to a hearing on December 6, 2011. Clapp failed to appear at the hearing. Following the hearing, the trial court granted Evans's petition and awarded him the requested funds. In a December 8, 2011 “Order Pertaining to Alison E. Clapp's Motion for Summary Judgment”, the trial court set forth the chronology of events from that point forward, as follows:
5. On December 6, 2011, the Clerk received (via certified mail) Ms. Clapp's Motion for Summary Judgment, Intervention, and Declaratory Relief.
6. The Clerk, pursuant to Trial Rule 5(F) file stamped her filing September 1, 2011 and the Magistrate of Porter Superior Court # 1 received her filing in the mail for consideration on December 7, 2011.
7. Ms. Clapp had notice of the two-day hearing scheduled on December 6 and 7, 2011 commencing at 9:00 a.m. for Attorney Donald Evan's [sic] petition requesting attorney and guardian fees.
8. Ms. Clapp in her Affidavit in Support of Motion for Summary Judgment, Intervention, and Declaratory Relief acknowledges the hearings in this Cause held on May 23, 2011 and December 6, 2011; however, Ms. Clapp failed to appear for either.
9. The Court conducted both hearings in her absence.
10. Had Ms. Clapp attended the hearing, she could have informed the Court that she had resent her motion and presented evidence in support of her Motion for Summary Judgment to the Court. Instead, Ms. Clapp relied upon her filings and chose not to appear.
11. On December 6, 2011, the Court waited until at least 10:30 a .m. to provide more than adequate time for Ms. Clapp to appear. After finding that she had notice of the hearing (as acknowledged in her September 1 filing), the Court heard evidence on Attorney Evan's [sic] petition for fees, found his petition had merit, and granted his petition.
12. Given the litigiousness Ms. Clapp has demonstrated throughout the history of this Cause, the Court had scheduled two days for the hearing related to Attorney Evan's [sic] motion to allow adequate time for both Attorney Evans and Ms. Clapp to present everything they needed to present for the Court to rule.
13. The Court denies Ms. Clapp's Motion for Summary Judgment, Intervention, and Declaratory Relief. Her improper filing of her original motion resulted in the Court's receipt of the back-dated motion the day after the hearing on Attorney Evan's [sic] petition had been held. Despite that, had Ms. Clapp appeared for the hearing, she could have presented evidence on her motion.
14. All prior and non-conflicting orders remain in full force and effect.
Id. at 37–38. Clapp appeals from the denial of her motion for summary judgment and from the granting of Evans's petition for fees. Further facts will be provided where relevant.
We note at the outset two facts that affect our review. First, Clapp is representing herself upon appeal. There is indication in the record that she has a law degree and, at least at some point in her life, “pursued a legal career.” Appellant's Appendix at 210.2 There is no indication, however, that she is licensed to practice law in the State of Indiana. Indeed, she does not claim that she is. Whether she is or is not, and regardless of whether she is currently a licensed attorney in any jurisdiction, she will be held to the same standards as trained counsel. See Daher v. Sevier, 954 N.E.2d 469 (Ind.Ct.App.2011).
We note also that Evans did not file an appellee's brief. When an appellee fails to submit a brief, we apply a...
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