In the Matter of the Guardianship of N.R., N.R. v. Eva Willis and Charles Reagins, Peoples Bank, SB , 30 N.E.3d 783 ( 2015 )

May 08 2015, 9:42 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Douglas M. Grimes For Eva Willis and Charles Reagins
Douglas M. Grimes, PC Mark A. Bates
Gary, Indiana Schererville, Indiana
For Peoples Bank, SB
Benjamin T. Ballou
Bonnie C. Coleman
Hodges & Davis, P.C.
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the May 8, 2015
Guardianship of N.R., Court of Appeals Case No.
45A05-1303-GU-150
N.R.,
Appellant-Protected Person, Appeal from the Lake Superior Court
The Honorable Calvin Hawkins,
v. Judge
Cause No. 45D02-1206-GU-27
Eva Willis and Charles Reagins,
Peoples Bank, SB,
Appellees-Petitioners.
Robb, Judge.
[1] Eva Willis and Charles Reagins, the former temporary guardians of N.R.
(collectively, “Former Guardians”), petition for rehearing of this court’s
Court of Appeals of Indiana | Opinion on Rehearing 45A05-1303-GU-150 | May 8, 2015 Page 1 of 4
opinion in In re Guardianship of N.R., 26 N.E.2d 97 (Ind. Ct. App. 2015). In that
opinion, we held that the trial court abused its discretion in excluding evidence
relevant to the determination of whether it was reasonable to award fees and
costs from the guardianship estate on behalf of the Former Guardians. Id. at
104. We grant rehearing to address the Former Guardians’ claims, but reaffirm
our opinion in all respects.
[2] We are not persuaded by the Former Guardians’ arguments for rehearing any
more than we were persuaded by their original arguments for affirming the trial
court. On appeal, they asserted that there had never been a finding they had
engaged in misconduct and therefore there was no basis for denying them fees
and costs—pointing out that in fact, the trial court had earlier stated that all the
parties had acted in good faith. See Brief of the Appellee at 6, 12-14. We held
that was part of the problem: the trial court did not hear any evidence on the
misconduct N.R. alleged the Former Guardians committed in order to
adequately make such a finding. In re N.R., 26 N.E.3d at 103-04. On
rehearing, the Former Guardians claim that this court “erred in assuming facts
based upon an unsworn and unverified petition executed by an attorney while a
properly entered order of guardianship went unchallenged in the trial court[.]”
Appellant’s Petition for Rehearing at 2.
[3] The Former Guardians allege the facts regarding misconduct were not properly
before the trial court because the petition was unverified in violation of a local
Court of Appeals of Indiana | Opinion on Rehearing 45A05-1303-GU-150 | May 8, 2015 Page 2 of 4
rule. That may be true,1 but that is not the reason the trial court refused to hear
evidence on those facts. And the fact that the trial court refused to hear that
evidence is the very reason we were forced to rely on the allegations of the
petition in adjudicating N.R.’s appeal. We did not find that such facts were
true and binding on the trial court, only that N.R. was entitled to the opportunity
to prove such facts.
[4] Further in contending that the order of temporary guardianship was “properly
entered,” Former Guardians fail to recognize that regardless of the factual
allegations of misconduct by Former Guardians, we also held there were
several procedural irregularities that required consideration in determining
whether the Former Guardians acted reasonably. These irregularities included
insufficient allegations in the petition for guardianship and lack of notice and a
hearing before the order was entered. In re N.R., 26 N.E.3d at 102-03. There
were myriad reasons for finding the trial court abused its discretion in this case.
[5] Finally, Former Guardians again assert that N.R. did not timely challenge the
temporary guardianship order and argue that because he ultimately consented
to a guardianship, he waived his right to contest the awarding of attorney fees
to Former Guardians. The timeliness issue has already been decided against
Former Guardians by our supreme court, see id. at 100 n.3, and we further note
that given the procedural posture of this case and the trial court’s rulings, N.R.
1
Although Former Guardians challenged the inclusion of these facts on appeal as outside the record, see Br.
of the Appellee at 8, it does not appear they challenged them on this specific basis.
Court of Appeals of Indiana | Opinion on Rehearing 45A05-1303-GU-150 | May 8, 2015 Page 3 of 4
raised the issue at his first opportunity and to the best of his ability. And as to
the ultimate result, we noted in the opinion that it is not the result of the
litigation but the necessity for the litigation that is determinative of the right to
compensation from the guardianship estate. Id. at 100. N.R. may have needed
a guardian due to his age. But he may not have needed Former Guardians to
incur over $15,000 in fees to procure one, given that he had already appointed
an attorney-in-fact of his choice.
[6] Having duly considered the arguments Former Guardians have advanced in
their petition for rehearing, we reaffirm our original opinion that the trial court
abused its discretion in awarding fees and costs out of the guardianship estate
without fully considering the evidence relevant to the award.
[7] The trial court’s judgment is reversed and the cause remanded for further
proceedings consistent with this court’s opinions.
Baker, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Opinion on Rehearing 45A05-1303-GU-150 | May 8, 2015 Page 4 of 4