In re Estate of Carnes, 90A02-0511-CV-1082.
| Decision Date | 28 February 2007 |
| Docket Number | No. 90A02-0511-CV-1082.,90A02-0511-CV-1082. |
| Citation | 866 N.E.2d 260 |
| Parties | In the Matter of the ESTATE OF Lawrence Medeford CARNES. John M. Carnes, Appellant, v. Estate of Lawrence M. Carnes, Appellee. |
| Court | Indiana Appellate Court |
John M. Carnes, Yuma, AZ, pro se.
George Sistevaris, Law Office of George Sistevaris, Fort Wayne, IN, James E. Beitler, Jr., Baumgartner & Beitler, Berne, IN, Attorneys for Appellee.
Pro-se appellant-petitioner John Carnes ("Carnes") appeals from a default judgment in the Wells Circuit Court after he failed to appear for the hearing. Concluding that Carnes failed to first file a Trial Rule 60(B) motion with the trial court and that he has also failed to make any cogent argument, we affirm. In addition, as per its request, we award the Estate of Lawrence Carnes ("the Estate") appellate attorney's fees and remand this cause to the trial court for a determination as to the amount of fees.
This case is predicated upon a will contest. Lawrence Carnes ("Lawrence"), the decedent, at one time lived in Indiana where he owned and farmed several tracts of land. In his later years, he moved to Arizona to be closer to his daughter, Lynette Rice ("Rice"). While living in Arizona, Lawrence executed a will dated November 28, 2001, which was prepared by attorney Calvin Allred ("Allred") in Cochise County, Arizona. This will divided the estate between his two daughters, Rice and Charlene Louise Stevens ("Stevens"). The will also provided, "I leave nothing to my two sons, George Larry Carnes and John M. Carnes." Appellee's App. p. 26.
The will executed on November 28, 2001, replaced a will and codicil that Lawrence had executed on July 17, 1988, and October 18, 2000, respectively. The July 17th will executed by Lawrence provided, Id. at 94. And again in the October 18, 2000 codicil to the will, Lawrence included the same provision disinheriting Carnes. Id. at 99.
On November 28, 2001, at the same time that Lawrence executed his last will, he also executed a financial durable general power of attorney, naming Rice as his attorney in fact. Carnes subsequently filed a petition in the Wells Circuit Court in Indiana, seeking appointment as a temporary guardian over Lawrence, which was denied on October 15, 2002. Rice, acting as Lawrence's attorney in fact, then sold some of his real estate located in Wells County, Indiana, in November of 2002.
Carnes then challenged the validity of Rice's power of attorney in the Superior Court of Arizona, Cochise County, arguing that Lawrence lacked the requisite capacity to appoint Rice as his attorney in fact. The court held a hearing on March 18, 2003. After hearing testimony, it concluded that Lawrence was capable of understanding the nature and effect of executing a power of attorney on November 28, 2001, and the court further appointed Rice as Lawrence's guardian as he was incapacitated at that time due to Alzheimer's disease. Carnes appealed the trial court's order, but the Arizona Court of Appeals dismissed the appeal as being moot since Lawrence was deceased at that time.
Upon Lawrence's death, a domiciliary estate was opened in Cochise County, Arizona, to probate Lawrence's November 28, 2001 will. Pursuant to Lawrence's will, Rice, also an Arizona resident, was named personal representative of his estate. Carnes contested this will in the Arizona Superior Court of Cochise County, arguing that his father did not have the requisite testamentary capacity to execute the document and that Rice unduly influenced him in the preparation of his will. On January 29, 2004, the Arizona court ruled that Lawrence did have the requisite testamentary capacity to sign the will and that there was no undue influence. From the record before us, it appears that this case was never appealed.
On March 18, 2005, Rice petitioned the Wells Circuit Court in Indiana as a Domiciliary Foreign Personal Representative to place on file with the court evidence of her appointment as personal representative of Lawrence's estate and her intent to distribute the tracts of land located in Indiana pursuant to the provisions of Lawrence's will. On March 18, 2005, the Wells Circuit Court issued an order authorizing the appointment of Rice and allowing her to proceed in collecting and disbursing Lawrence's assets in Indiana.
On May 2, 2005, Carnes filed a motion with the Wells Circuit Court, again contesting the validity of the will and petitioning for the removal of Rice as personal representative of Lawrence's estate. Carnes also filed a motion petitioning the Wells Circuit Court to disallow the testimony of Lawrence's attorney, Allred, in the will contest. In support of his request, Carnes stated, "Mr. Allred and Ms. Rice are being `thoroughly' investigated in Arizona at this time, about illegal activities!!" Appellant's App. p. 30 (emphasis in original). The trial court held a hearing on October 24, 2005. Rice flew in from Arizona for this hearing, and Stevens, her sister, flew in from Oregon to be present. However, Carnes did not appear at this hearing. The trial court issued a default judgment in favor of the Estate, but nevertheless heard testimony and issued findings of fact and conclusions of law regarding Carnes's claims. Carnes directly appealed to this court from the trial court's default judgment.
Initially, we note that Carnes filed a notice of appeal following the entry of the trial court's order of default judgment for his failure to appear at the hearing in October 2005, but he did not first file a motion to set aside the default judgment under Indiana Trial Rule 60(B) (2007).
However, Indiana Trial Rule 55(C) provides that "[a] judgment by default which has been entered may be set aside by the court for the grounds and in accordance with the provisions of [Indiana Trial] Rule 60(B)." In Siebert Oxidermo Inc. v. Shields, 446 N.E.2d 332, 337 (Ind.1983), the Indiana Supreme Court addressed the procedure for challenging an entry of default judgment. Specifically, the court held that "the proper procedure in the Indiana Rules of Trial Procedure for setting aside an entry of default or grant of default judgment thereon is to first file a Rule 60(B) motion to have the default or default judgment set aside." Siebert Oxidermo, 446 N.E.2d at 337. Thereafter, an appeal may be taken from the trial court's ruling. Id.
Maust v. Estate of Bair ex rel. Bair, 859 N.E.2d 779, 783 (Ind.Ct.App.2007).
Carnes never filed a motion with the trial court alleging that his failure to appear at the hearing was due to excusable neglect, and that he should therefore be afforded relief from the default judgment under Indiana Trial Rule 60(B). Consequently, Carnes's attempt to appeal the merits of the trial court's order of default judgment is not properly before us. See Siebert Oxidermo, 446 N.E.2d at 337; see also Sekerez v. Jasper County Farm Bureau Co-op. Ass'n, Inc., 458 N.E.2d 286, 286 (Ind.Ct.App.1984) ().
In addition, Carnes's brief fails to make any cogent legal argument. See Ind. Appellate Rule 46(A)(8)(a) (2007). On appeal, Carnes has failed to comply with many of our appellate rules. It is well settled that pro se litigants are held to the same standard as are licensed lawyers. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind.Ct.App.2005) (citation omitted). Carnes's statement of issues does not conform to our appellate rules as it is merely a list of the trial court's findings. See App. R. 46(A)(4). His brief also fails to set forth any applicable standard of review. See App. R. 46(A)(8)(b). Furthermore, his statement of facts is a numbered list of his contentions, such as Rice's power of attorney not being legally obtained, Rice defrauding the courts in two states and libeling Carnes, and Allred being "conflicted" in the matter of Lawrence's will. See App. R. 46(A)(6). Carnes has also not supported the majority of his contentions with page references to the record or appendix, as is required by our rules. See App. R. 46(A)(7). For example, at one point Carnes contends that Lawrence's property in Indiana was resold at a large profit, and unacceptably directs us to "documents at Wells County Recorder's Office." Br. of Appellant at 7.
More importantly, in his argument section Carnes fails to make any cogent argument regarding his claims, nor does he cite to case or statutory authority in a manner that would allow us to find such cases.1
While it is the policy of the Appellate Court to determine the causes before them upon the merits, if such can reasonably be done, the rules of the Supreme Court relating to matters to be contained in the appellant's brief must be substantially observed in order to present the question to the court. The appellant's brief should be so prepared that each Judge considering the brief alone and independently of the transcript can intelligently consider the questions presented to the court. It is not the duty of the court to search the record to reverse the lower court.
In re Stuart's Estate, 130 Ind.App. 130, 131, 159 N.E.2d 321, 322 (1959).
In his brief, Carnes claims that Rice defrauded him, that the validity of the will is still pending in Arizona courts, that Rice did not hold a valid power of attorney to sell property in Indiana before their father's death, and that attorney Calvin Allred had a conflict of interest and should not have given testimony regarding the validity of Lawrence's will....
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