In re Guardianship of Hickman
| Decision Date | 13 July 2004 |
| Docket Number | No. 53A01-0306-CV-220.,53A01-0306-CV-220. |
| Citation | 811 N.E.2d 843 |
| Parties | In the Matter of the GUARDIANSHIP OF Josephine A. HICKMAN. Leo E. Hickman, Jr., Appellant-Respondent, v. Irwin Union Bank, as guardian of the estate of Josephine A. Hickman, Appellee-Movant, and Joseph Hickman as guardian of the person of Josephine A. Hickman, Appellee-Movant. |
| Court | Indiana Appellate Court |
Curtis E. Shirley, Indianapolis, IN, Eric Allan Koch, The Koch Law Firm, Bloomington, IN, Attorneys for Appellant.
Jarrell B. Hammond, Anthony M. Eletheri, Stefanie R. Crawford, Lewis & Wagner, Indianapolis, IN, Attorneys for Appellee, Irwin Union Bank.
Peter J. Rusthoven, Bart A. Karwath, Barnes & Thornburg, Indianapolis, IN, Attorneys for Appellee, Joseph Hickman.
Leo Hickman, Jr., appeals the trial court's granting of a motion to rescind a stock transfer from his mother, Josephine Hickman, to him.1 Leo also appeals the trial court's award of attorney fees from Josephine's estate to his brother, Joseph Hickman. We affirm in part and reverse in part.
Leo raises several issues, which we consolidate and restate as:
This is the third of what now appears to be four appeals stemming from a family dispute over the guardianship of Josephine.2 The Hickman family owns Hoosier Outdoor Advertising Corporation ("Hoosier Outdoor"). Leo's father was the president of Hoosier Outdoor from the 1950's until his death in 1977. After his father's death, Leo's mother, Josephine, became the president. Over the years, Leo and his six siblings have been involved in Hoosier Outdoor in various capacities. Leo was the vice-president from 1975 until 2001. Prior to July 2001, the remaining siblings were shareholders and officers or directors of Hoosier Outdoor. Joseph and Jamie Hickman were also employees of Hoosier Outdoor.
On February 14, 1988, Josephine fell and hit her head. Josephine was severely injured and never fully recovered from the fall. She now resides in a nursing home. Despite her condition, Josephine retained her position as president of Hoosier Outdoor.
Prior to her accident, Josephine gave gifts of stock to her children. Leo received gifts of voting stock, and his siblings received gifts of non-voting stock. This gift-giving continued after her accident but ended in 1997, before Leo could receive a controlling share of Hoosier Outdoor. By all accounts, Leo will receive a controlling share of Hoosier Outdoor upon Josephine's death. However, if Leo predeceases Josephine, his wife and children will not receive anything under Josephine's will.
On July 19, 2001, Leo and his wife visited Josephine in the nursing home. Leo presented Josephine with a document prepared by his attorney, which Josephine signed. The document evidenced a gift of 120 shares of voting stock to Leo and 124 shares of non-voting stock to each of his siblings. This gift of stock was sufficient to give Leo control over the corporation. Josephine consulted neither her attorney nor any other family members before signing the document.
That same day, Leo removed his siblings from their positions as officers and directors and replaced them with his wife and daughter. Leo also named himself as president of Hoosier Outdoor. Leo eventually terminated Joseph's and Jamie's employment with the corporation and attempted to terminate the health insurance provided by Hoosier Outdoor to his siblings and Josephine.
Since then, almost continuous litigation has ensued. On August 1, 2001, Joseph petitioned for temporary guardianship over Josephine and later petitioned for a permanent guardian to be appointed over Josephine's person and estate. All of the siblings consented to the guardianship petitions except Leo. While Joseph remained as the petitioner for the guardianship, the trial court appointed a guardian ad litem to represent Josephine, and Leo participated in the proceedings as an interested person.
On June 25, 2002, the trial court granted Joseph's petition for a temporary restraining order preventing Leo from terminating the health insurance coverage of their siblings, Josephine, and him. On July 24, 2002, the trial court granted Joseph's motion for a preliminary injunction, from which Leo appealed. We affirmed the trial court's decision in In re Hickman, 792 N.E.2d 106 (Ind.Ct.App.2003).
On September 3, 2002, the trial court impaneled an advisory jury, and a four-day trial on the guardianship began. Following the trial, the trial court determined that Josephine was incapacitated and was in need of a guardian. In its findings and conclusions, the trial court recognized, "At the outset of the trial, the Court limited the matters to be heard on whether Josephine is incapacitated and whether a guardian is necessary for her estate and her person." Appellant's App. Vol. I. p. 70. The trial court concluded that a person is incapacitated when he or she is unable to manage her property in whole or in part or to provide self care because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity. See Appellant's App. Vol. I. p. 72 (citing Ind.Code § 29-3-1-7.5). The trial court concluded, "Undue influence occurs when a person imposes his power and will on another so that the victim of undue influence performs an act that is not the victim's voluntary act but rather the act of the perpetrator." Id.
In determining whether Josephine's incapacity arose as a result of Leo's undue influence on July 19, 2001, as alleged by Joseph, the trial court concluded, "Josephine had been the victim of undue influence therefore needed a guardian of the estate." The trial court went on to conclude in part:
Appellant's App. Vol. I. p. 74. The trial court appointed Joseph as the guardian of Josephine's person and Irwin Union Bank ("Irwin Union") as the guardian of Josephine's estate.
On October 7, 2002, Leo filed a notice of appeal. On November 20, 2002, Joseph filed a motion to instruct the guardian of the estate to pay his attorney fees.3 On February 18, 2003, a notice of completion of the clerk's record was filed.4 On March 12, 2003, Irwin Union filed a motion to rescind the July 19, 2001 stock transfer based on the findings of undue influence in the guardianship proceeding. On June 2, 2003, the trial court granted Irwin Union's motion to rescind the transfer of stock.5 On June 9, 2003, the trial court granted Joseph's motion for attorney fees. Leo now appeals.
Leo argues the trial court erred in granting Irwin Union's motion to rescind the July 19, 2001 stock transfer from Josephine to Leo. He asserts in part that the trial court was without jurisdiction to issue such an order because an appeal concerning the guardianship proceeding was pending.7
Generally, we acquire jurisdiction over a matter on the date the trial court clerk issues its notice of completion of the clerk's record. Ind. Appellate Rule 8. "Once an appeal has been perfected to the Court of Appeals or the Supreme Court, the trial court has no further jurisdiction to act upon the judgment appealed from until the appeal has been terminated." Schumacher v. Radiomaha, 619 N.E.2d 271, 273 (Ind.1993). "The rule does not promote form over substance; it facilitates the orderly presentation and disposition of appeals and prevents the confusing and awkward situation of having the trial and appellate courts simultaneously reviewing the correctness of the judgment." Donahue v. Watson, 413 N.E.2d 974, 976 (Ind.Ct.App.1980). Here, the last notice of completion of the clerk's record was filed on February 18, 2003; Irwin Union filed its motion to rescind on March 12, 2003; and the trial court granted the motion on June 2, 2003. Thus, the trial court ruled on Irwin Union's motion to rescind after we acquired jurisdiction over the case.
However, we have recognized situations in which a trial court may retain jurisdiction over certain matters notwithstanding a pending appeal. City of New Haven v. Allen County Bd. of Zoning Appeals, 694 N.E.2d 306, 310 (Ind.Ct.App.1998), trans. denied."Specifically, a trial court retains jurisdiction to perform such ministerial tasks as reassessing costs, correcting the record, or enforcing a judgment." Id. Our supreme court has recognized that where the subject of the appeal is "`entirely independent of the issues to be tried[,]'" subsequent trial court action does not interfere with the jurisdiction of the appellate court. Bradley v. State, 649 N.E.2d 100,...
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