Harkrider v. Lafayette Nat. Bank

• Decision Date: 03 May 1993
• Docket Number: No. 79A02-9102-CV-54,79A02-9102-CV-54
• Citation: 613 N.E.2d 36
• Parties: Raymond HARKRIDER, Individually and as Personal Representative of the Estate of Georgia Cory, Betty M. Rogers, and June Nelson, Appellants-Plaintiffs, v. LAFAYETTE NATIONAL BANK, Administrator W/W/A, Kathryn Wilcox and Phillip E. Wilcox, as Personal Representative of the Estate of Floyd E. Wilcox, Deceased, Katherine Wilcox, Individually, Roy McCandlish and Ruby McCandlish, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 36

613 N.E.2d 36

Raymond HARKRIDER, Individually and as Personal Representative of the Estate of Georgia Cory Betty M. Rogers, and June Nelson Appellants-Plaintiffs, v. LAFAYETTE NATIONAL BANK, Administrator W/W/A, Kathryn Wilcox and Phillip E. Wilcox, as Personal Representative of the Estate of Floyd E. Wilcox, Deceased, Katherine Wilcox Individually, Roy McCandlish and Ruby McCandlish Appellees-Defendants.

No. 79A02-9102-CV-54.

Court of Appeals of Indiana,

Second District.

May 3, 1993.

Douglas R. Brown, Stewart and Irwin, Indianapolis, for appellants-plaintiffs.

Stephen R. Pennell, Nina B. Kirkpatrick, Stuart and Branigin, Lafayette, Robert S. Laszynski, Cynthia L. Garwood, Cooke Laszynski and Moore, Lafayette, for appellees-defendants.

FRIEDLANDER, Judge.

CASE SUMMARY

Appellants-plaintiffs Raymond Harkrider, Betty M. Rogers, and June Nelson (collectively referred to as "Harkrider") appeal the probate court's order approving the final and supplemental reports and accounts filed by Lafayette National Bank (LNB), the personal representative of the estate of Pearl C. Posey (Pearl).

We dismiss ¹ the appeal as untimely, award damages and remand for a determination of litigation costs.

FACTS

Pearl and her husband (collectively referred to as "the Poseys") were neighbors of Floyd (Floyd) and Kathryn Wilcox (collectively referred to as "the Wilcoxes") from 1949 until shortly after Mr. Posey's death in 1966. During these years, the Wilcoxes and Poseys became good friends and often visited each other. The Poseys owned a forty acre and an eighty acre farm in Tippecanoe County which, beginning in 1952, were farmed by Floyd pursuant to an agreement that the income and expenses of the farms would be split equally between the two families.

When her husband died in 1966, Pearl moved to Stockwell, Indiana and sold the forty acre farm to Floyd. Floyd continued to farm the eighty acre farm in accordance with the previous arrangement.

In 1973, Pearl was hospitalized. Concerned about her ability to deal with her personal affairs should she become incapacitated, Pearl executed a general power-of-attorney conferring broad powers on Floyd. Pearl underwent, in 1977, cataract surgery and, in 1978, an operation for cancer. During both of these periods Floyd used the power-of-attorney on Pearl's behalf. After the surgeries, Pearl recovered and was able to resume managing her own affairs.

In 1977, Pearl and Floyd met with a Lafayette, Indiana attorney, William Bennett (Bennett), to structure an agreement for Floyd to purchase the eighty acre farm. At the meeting, Pearl announced her desire to give the farm to Floyd. Bennett, who at that point became aware of Pearl's intentions, excused Floyd from the meeting to confer privately with Pearl. Concluding that Pearl was competent and acting of her own free will and in recognition of her gratitude for the assistance Floyd had provided since her husband's death, Bennett recommended that Pearl execute a deed conveying the farm to Floyd and a letter providing that the deed be held in escrow In 1979, Pearl suffered a debilitating stroke and was confined to a nursing home in Lafayette, Indiana. Pearl's brother, Raymond Harkrider, an elderly attorney residing in Chicago, Illinois, ² visited Pearl at the home and shortly thereafter began investigating Pearl's financial affairs. Harkrider had Pearl sign letters he had written authorizing banks to give him information regarding Pearl's deposits. He conferred with Bennett and, on June 22, 1979, returned to his home in Chicago with Pearl's 1973 will and addenda, copies of the 1977 deed and escrow letter to the eighty acre farm, and a copy of the 1973 power-of-attorney.

until Pearl's death at which time it would be delivered to Floyd. Pearl accepted this recommendation and Bennett prepared the necessary documents.

Approximately a month later, Harkrider contacted Floyd and demanded that he return the deed to the eighty acre farm. ³ When Floyd refused, Harkrider threatened to initiate guardianship proceedings against Pearl.

The next day the Wilcoxes visited Pearl in the nursing home. When asked about the deed to the eighty acre farm, Pearl assured the Wilcoxes she did not want the deed returned. Pearl also told the Wilcoxes she was aware that Harkrider wanted a guardianship established to handle her personal affairs, and told Floyd that should a guardianship be established, she wanted him to be appointed as her guardian. Floyd conveyed Pearl's wishes to Bennett who prepared a letter to the judge of the Tippecanoe Circuit Court, which Pearl signed, indicating Pearl's desire that Floyd be her guardian should the appointment of one become necessary.

During the next few months, the Wilcoxes continued to visit Pearl in the nursing home while Floyd handled Pearl's personal affairs. In early January 1980, Pearl contacted Bennett about Harkrider's failure to return her financial records. Bennett drafted a letter to Harkrider requesting that the papers be returned. Receiving no response, Bennett sent another letter asking for the records. Bennett still received no response from Harkrider.

In April 1980, Pearl asked Bennett to prepare a new will disinheriting Harkrider because, according to Pearl, her brother had no financial need and she was angry with him for not returning her financial records. Bennett drafted a new will, which was executed by Pearl, and it disinherited Harkrider. On March 18, 1981, Pearl suffered a second stroke. In June of 1981, Harkrider petitioned the Tippecanoe Circuit Court to appoint himself and Purdue National Bank as guardians for Pearl's estate and June Nelson as guardian of her person. Floyd cross-petitioned and asked that he and a corporate fiduciary be appointed. Following a two day hearing, the court on July 27, 1981, established a guardianship and appointed LNB as the guardian of her estate and Floyd as guardian of Pearl's person. Harkrider took an interlocutory appeal and in the first of seven appeals relating to the guardianship and probate estates of Pearl, this court affirmed the appointments by memorandum decision. Posey v. Wilcox (1983), Ind.App., 451 N.E.2d 1135 (Table) (Posey I ).

Pursuant to Harkrider's request, Posey I was venued to the Fountain County Circuit Court. After an evidentiary hearing, that court, on March 4, 1985, entered an order terminating the guardianship, approving the guardians' final report and two supplements, and approving various expenses and attorney's fees. Harkrider filed a motion to correct errors citing approximately fifty errors. On appeal, Harkrider narrowed the issues down to twelve, including one issue that cited twenty different sub-issues, only three of which this court found qualified for consideration on appeal. This court found against Harkrider on those sub-issues, and determined that, of the twelve issues raised by Harkrider, ten had been decided in Posey I. In addition, this court On transfer of Posey II, our supreme court declined to address the substantive issues raised by Harkrider, but expressly approved the award of appellate attorney's fees based on Harkrider's improper handling of the appeal. Posey v. Lafayette Bank and Trust Co., Ind., 512 N.E.2d 155, cert. denied, 485 U.S. 988, 108 S.Ct. 1292, 99 L.Ed.2d 502.

concluded that the trial court properly awarded attorney's fees and ordered Harkrider to pay appellate attorney's fees because Harkrider had failed to disclose the previous appeal which raised many of the same issues; had omitted and misstated facts; and had written his brief in a manner calculated to require the maximum expenditure of time by LNB and this court. The case was remanded to the Fountain Circuit Court for a determination of the appropriate amount of appellate attorney's fees. Posey v. Lafayette Bank and Trust Co. (1986), Ind.App., 513 N.E.2d 674. (Posey II ).

Following the Fountain Circuit Court's entry of two money judgments against Harkrider for appellate attorney's fees incurred during Posey II, Harkrider appealed. This court approved the award of appellate attorney's fees pursuant to the remand order in Posey II, and again determined that Harkrider's latest appeal (Posey III ) was meritless and ordered the case remanded to the Fountain Circuit Court for an award of appellate attorney's fees. Matter of Guardianship of Posey (1988), Ind.App., 532 N.E.2d 9, trans. denied. (Posey III ).

Pursuant to the remand order in Posey III, the Fountain Circuit Court again entered a money judgment against Harkrider for appellate attorney's fees. Again, Harkrider appealed the entry of judgment. This court approved the award of appellate attorney's fees for Posey III, but refused to award appellate attorney's fees for the instant appeal. Matter of Guardianship of Posey (1991), Ind.App., 583 N.E.2d 149, trans. denied. ⁴ (Posey IV ).

Pearl died in March of 1982 in the midst of this flurry of litigation. Despite Pearl's instructions as to her funeral arrangements, Harkrider caused her to be buried as a pauper. Pearl's 1980 will was admitted to probate in the Tippecanoe Circuit Court and, as requested in her will, Floyd was appointed executor of her estate. On August 16, 1982, Harkrider filed a five count complaint against Floyd individually and as executor of Pearl's estate in the Tippecanoe Circuit Court, seeking: 1) that the deed for the eighty acre farm to Floyd be set aside; 2) that Floyd be ordered to render to the Posey family an accounting of all his dealings on behalf of Pearl; 3) that Floyd be declared a constructive trustee for the benefit of Pearl's estate; 4) that Floyd be removed as the executor of Pearl's estate; and 5) that Pearl's will be declared invalid and its probate set aside. This complaint was venued to the Warren Circuit Court.

On March 23, 1989, the Warren Circuit Court entered judgment denying Harkrider's requested relief finding specifically that the conveyance of the eighty acre farm was a valid transfer;...