                                                                           FILED
                                                                       Jan 17 2019, 8:43 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Rhonda DeLap Tipton                                        Kevin D. Koons
Indianapolis, Indiana                                      Steven E. Runyan
                                                           Kroger Gardis & Regas, LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Rhonda DeLap Tipton,                                       January 17, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-EU-1009
        v.                                                 Appeal from the Johnson Superior
                                                           Court
Estate of Virginia D. Hofmann,                             The Honorable Kevin Barton,
Appellee-Respondent.                                       Judge
                                                           Trial Court Cause No.
                                                           41D01-1505-EU-159



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019                           Page 1 of 12
                                 STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Rhonda Delap Tipton (Tipton), appeals the trial court’s

      Order on Administrator’s Final Account with respect to Appellee-Respondent,

      the Estate of Virginia D. Hofmann (Estate).


[2]   We affirm and remand.


                                                    ISSUES
[3]   Tipton presents us with one issue on appeal, which we restate as: Whether the

      trial court’s Order, approving the Final Account, is clearly erroneous.


[4]   In its Appellate Brief, the Estate requests an award of appellate attorney fees

      pursuant to Indiana Appellate Rule 66(E).


                       FACTS AND PROCEDURAL HISTORY
[5]   Virginia D. Hofmann (Decedent) died testate on March 30, 2015, leaving three

      surviving children, Tipton, Kenneth DeLap (DeLap), and Denise Webb

      (Webb), who are each equal one-third residuary beneficiaries of the Estate. On

      May 27, 2015, Tipton and DeLap filed a petition for unsupervised

      administration of the Estate and were appointed co-executors, as provided in

      the Decedent’s will. The Estate’s assets consisted mainly of non-cash illiquid

      assets, such as a residence and household goods, as well as a bank account at

      Horizon Bank, which Decedent held jointly with Tipton and DeLap and which

      held a balance of approximately $8,300 (Horizon Account). On or about June

      26, 2015, Tipton and DeLap opened a bank account on behalf of the Estate at

      Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019      Page 2 of 12
      PNC Bank (PNC Account). Both Tipton and DeLap used the PNC Account

      and the Horizon Account to pay Estate-related expenses. By August 25, 2015,

      Tipton and DeLap had each contributed $4,000 of their personal funds to these

      accounts. In late August 2015, an emotional altercation occurred between

      Tipton, Webb, and Webb’s husband concerning the Decedent’s personal

      property. In response, Tipton filed for—and later dismissed—a protective order

      against Webb and her husband. Subsequently, on September 3, 2015, the trial

      court revoked the unsupervised administration of the Estate.


[6]   In an effort to work out their differences, the three siblings reached a

      compromise which culminated in the Family Settlement Agreement

      (Agreement). This Agreement provided, in pertinent part,


              2. The Parties agree that the promises and considerations given
              by each Party are fair and reasonable, and therefore the Estate,
              [Tipton], [DeLap], and [Webb] agree to completely release and
              forever discharge one another of and from any and all past,
              present or future claims, demands, obligations, actions, causes of
              action, rights, damages, costs, loss of service, expenses,
              compensation of any nature, whatsoever, whether based on tort,
              contract, or other theory or recovery and whether compensatory
              or punitive damages which either the Estate, [Tipton], [DeLap],
              and [Webb] now has or which may hereafter accrue or otherwise
              be acquired which had resulted or may result from the alleged
              acts or omissions of the Parties relating to any action taken at any
              time prior to the date that all Parties have signed this
              [Agreement] and Mutual Release, including the incident at
              [Decedent’s] residence in late August 2015, between [Tipton],
              [Webb] and [Webb’s husband], and the resulting action of
              [Tipton] petitioning for an Order of Protection against [Webb]
              and [Webb’s husband] (which was subsequently dismissed by

      Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019       Page 3 of 12
              written request of [Tipton]). This release on the part of the
              Parties shall be a fully binding and complete settlement among
              the Parties save only the executory provisions of this
              [Agreement] and Mutual Release.


              ****


              4. [Tipton] and [DeLap] have loaned the Estate various
              amounts. Prior to any residuary distribution of the Estate,
              [Tipton] and [DeLap] shall be reimbursed for any amounts
              loaned to the Estate.


      (Appellee’s App. Vol. II, pp. 39-40). On November 30, 2015, the trial court

      approved the Agreement and allowed Tipton and DeLap to resume the

      unsupervised administration of the Estate.


[7]   On May 17, 2017, the trial court, sua sponte, issued an Order for Tipton and

      DeLap to personally appear as no closing statement for the Estate had been

      filed within one year of its opening, pursuant to Ind. Code § 29-1-7.5-3.8. After

      the parties personally appeared on June 19, 2017, the trial court issued an Order

      finding that the conflict between DeLap and Tipton prevented them from

      preparing a final account. The trial court removed Tipton and DeLap as co-

      personal representatives, and appointed Brian J. Deppe as the Administrator

      Cum Testamento Annexo of the Estate (Administrator). It instructed Tipton

      and DeLap to provide the Administrator within 30 days with the details for all

      amounts they contended the Estate owed them. The Order gave the

      Administrator 60 days to provide the trial court with an account.



      Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019     Page 4 of 12
[8]   On July 10, 2017, Tipton filed a motion to set aside the Agreement, which the

      trial court denied on August 28, 2017, after conducting an evidentiary hearing.

      On February 9, 2018, the Administrator filed a verified petition to settle and

      allow final account, which included both approvals and disapprovals of various

      amounts that Tipton and DeLap contended the Estate owed them. On March

      28, 2018, the trial court conducted a hearing on the objections to the

      Administrator’s final account and issued an Order, providing, in pertinent part:


              12. [Tipton] identifies the following objections to the Final
              Account of the [Administrator]:
                    A. Issues pertaining to a refund of fees from Brian Hewitt;
                    B. Issues pertaining to request for compensation for bills,
                    claims and loans; and
                    C. Issues pertaining to the grave marker.

              13. By Order on Attorney Fees dated May 27, 2016, the [c]ourt
              assessed attorney fees against the claimant, Jann D. Hull, in the
              amount of One Thousand Thirty-Five Dollars ($1,035.00). The
              amount was paid to Brian C. Hewitt by the claimant. Mr. Hewitt
              refunded to the Estate Nine Hundred Ninety Dollars ($990.00)
              which has been advanced by the Estate. [Tipton] deposited the
              money personally.
              [Tipton] raises an issue as the [Administrator’s] representation
              that she did not respond to the issue of the refund. By his
              Response, the [Administrator] acknowledges that the statement
              that he did not receive a response was in error. However, [the
              Administrator] correctly notes that “(t)he point was that [Tipton]
              received funds which should have been deposited in the [E]state’s
              checking account, and she retained them.”

              14. The amount due the Estate from [Tipton] is Nine Hundred
              Ninety Dollars ($990.00). The amount is not reflected in the
              Final Account. The amount is subject to being equally divided
              between [Tipton], [DeLap], and [Webb].

              15. [Tipton] seeks reimbursement for the following:


      Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019     Page 5 of 12
                 A. payment of “mom’s bills” in the amount of Three
                 Hundred Twenty-Nine Dollars and Seventy Cents
                 ($329.70).
                 B. payment of expenses of the [E]state in the amount of
                 One Hundred Fifty-Five Dollars and Eight-Five Cents
                 ($155.85);
                 C. payment of personal services provided for cleaning in
                 the amount of Two Thousand Nine Hundred Eight-One
                 Dollars and Seventy-Five Cents ($2,981.71); and
                 D. repayment of loans in the amount of Sixteen Thousand
                 One Hundred Twenty-Six Dollars and Sixty Cents
                 ($16,126.60).[]

        16. As to the request for reimbursement for payment of “mom’s
        bills,” the [Administrator] denied payment on the basis that
        [Tipton] did not file a claim. In the absence of a claim, [Tipton]
        is not entitled to payment for amounts advanced before death
        under Indiana Code [section] 29-1-14-1(a). The [c]ourt sustains
        the denial of the request for payment due to the absence of a
        claim.

        17. As to the request for payment of expenses of the [E]state, the
        [Administrator] denied payment for lack of sufficient
        documentation, some accounts were pre-death and payment was
        waived by the [Agreement].

        ****

        19. [Tipton] presents no evidence of any amounts subject to
        reimbursement subsequent to the order accepting the
        [Agreement] on November 30, 2015. Amounts incurred prior to
        November 30, 2015 would either be subject to the bar for failure
        to file a claim or would be barred by the [Agreement].

        20. [Tipton] seeks reimbursement for amounts paid for cleaning
        services or for personal services. [DeLap] acknowledges that the
        requests for reimbursement of four bills in the total amount of
        Ninety-Five Dollars and Fifty Cents ($95.50) are appropriate.
        The date of service was subsequent to the [Agreement] and
        accordingly not barred by the [Agreement].



Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019         Page 6 of 12
        21. As to the remaining amounts requested, the amounts are not
        documented. [Tipton] seeks payment for services that she
        provided in the amount of Two Thousand Five Hundred Dollars
        ($2,500.00). However, [Tipton] does not provide any time
        records to support her request.

        22. [Tipton] is allowed reimbursements for cleaning in the
        amount of Ninety-Five Dollars and Fifty Cents ($95.50).
        [Tipton’s] request for reimbursement is otherwise denied.

        23. [Tipton] seeks reimbursement for loans. Some of the loans
        for which reimbursement is sought have been allowed by the
        [Administrator]. The request for one-half of the joint bank
        account in the amount of $3,689.00 is dealt with separately. The
        loans at issue are in the amount of $112.00, $200.00 and $80.00.
        The [c]ourt does not find evidence to support loans.
        Reimbursement of the loans of $112.00, $200.00 and $80.00 is
        denied.

        24. [Tipton] lastly raises the issue of the grave marker.

        ****

        26. It was the intent of the December 5, 2017 Order that the
        design be finalized on the basis of [Tipton’s] design. While any
        differences between the design as set by Forest Lawn and
        [Tipton’s] final version may be minor, [Tipton] disputes that the
        result was consistent with her artistic standards. The intent was
        to remove [the Administrator] from the design process and
        without requirement of exercising any judgment.

        27. [Tipton will have [a] period of sixty (60) days to obtain and
        have installed a grave marker through Forest Lawn Cemetery or
        another company that Forest Lawn Cemetery will permit to be
        installed in the cemetery in accordance with the design that she
        filed on December 27, 2017. The cost may be up to the cost of
        the grave marker obtained through Forest Lawn.

        ****

        Distribution shall be made as follows:
        D. [Tipton]: repayment of loans/advances:

Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019        Page 7 of 12
                      1) $4,337.50 (paragraph 6(C)(1) of Final Account based
                      upon testimony [])
                      2) $753.83 (Paragraph 6(C)(2) of Final Account)
                      3) $95.50 Reimbursement for cleaning services
               Total: $ 5,186.83.

               ****

               I. [Tipton]: $49,165.41 (1/3rd of residuary estate).

       (Appellee’s App. Vol. II, pp. 19-25).


[9]    Tipton now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                               I. Trial Court’s Order


[10]   A careful reading of Tipton’s appellate brief indicates that Tipton is requesting

       this court to review the trial court’s Order and to close the Estate “correctly” by

       granting her claim for reimbursement of $9,009.86. (Appellant’s Br. p. 4). An

       appellant who proceeds pro se is “held to the same established rules of procedure

       that a trained legal counsel is bound to follow and, therefore, must be prepared

       to accept the consequences of his or her actions.” Thacker v. Wentzel, 797

       N.E.2d 342, 345 (Ind. Ct. App. 2003). While we prefer to decide cases on their

       merits, we will deem alleged errors waived where appellant’s noncompliance

       with the rules of appellate procedure is so substantial it impedes our appellate

       consideration of the errors. Id. The purpose of our appellate rules, especially

       Indiana Appellate Rule 46, is to aid and expedite review and to relieve the

       appellate court of the burden of searching the record and briefing the case. Id.


       Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019      Page 8 of 12
[11]   Here, Tipton’s appellate brief fails to comply in virtually every respect with

       Indiana Appellate Rule 46. Tipton violates Appellate Rule 46(A)(2) by

       omitting the table of authorities, presumably because she fails to cite to any

       authorities in her brief. The brief violates Appellate Rule 46(A)(4) by only

       including arguments and self-serving facts in her statement of the issues.

       Tipton’s nature of the case description, statement of facts, and summary of the

       argument pursuant to Appellate Rule 46(A)(5);-(6);-(7) are completely non-

       existent and missing from her appellate brief. Although Tipton’s brief fails to

       include a separate argument section as required by Appellate Rule 46(A)(8), it

       could be argued that the section titled “Issues” presents Tipton’s analysis.

       However, Tipton fails to support her bare assertions with cogent reasoning,

       citations to the record, or to legal authorities. One of her allegations is

       articulated as follows:


               Financial issues listed in the “Final Account” (see copy, marked
               and delineated, # 12, 12a – 12g) are corrected point by point,
               also “Chargeable and Credits” #12 h-n). Spread sheets of
               financial loans to be reimbursed are enclosed (#13 a – d).
               Support materials are also copied and attached (#14, 14a-r) to
               prove [the Administrator’s] mistakes.


       (Appellant’s Br. p. 4). The documents she is referring to are not enclosed in her

       Appendix; rather, her Appendix merely consists of two letters that she sent to

       the trial court. She did not submit the materials admitted before the trial court,

       nor did she request the transcript of the proceedings and therefore, none has

       been provided. Even though she appears to entreat this court to award her a


       Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019          Page 9 of 12
       certain reimbursement amount, she fails to include the details or materials

       which would support the calculation and origin of this amount.


[12]   “A brief is not to be a document thrown together without either organized

       thought or intelligent editing on the part of the brief-writer.” Frith v. State, 325

       N.E.2d 186, 189 (Ind. 1975). “It is well-settled that the duty of presenting a

       record adequate for intelligent appellate review on points assigned as error falls

       upon the appellant, as does the obligation to support the argument presented

       with authority and references to the record pursuant to Indiana Appellate Rule

       46(A)(8). AutoXchange.com, Inc. v. Dreyer & Reinbold, Inc., 816 N.E.2d 40, 44

       (Ind. Ct. App. 2004). Because Tipton’s contentions are too poorly expressed

       and developed to be understood, it has prevented our appellate analysis and

       consideration of her alleged errors. See Davis v. State, 835 N.E.2d 1102, 1113

       (Ind. Ct. App. 2005) (noting that the failure to present a cogent argument or

       citation to authority constitutes waiver of the issue for appellate review), trans.

       denied. “While we are often tolerant of minor infractions of the appellate rules

       so that we may decide appeals on their merits, those rules are nonetheless

       binding on all persons bringing appeals to this court.” Ramsey v. Review Bd. of

       Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 490 (Ind. Ct. App. 2003). In the

       instant case, because Tipton’s noncompliance with the appellate rules

       substantially impeded us from reaching the merits of this appeal, we are

       compelled to find the issue waived.


                                           II. Appellate Attorney Fees



       Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019       Page 10 of 12
[13]   In its appellate brief, the Estate requests this court to award it attorney fees

       incurred in defending against Tipton’s appeal and “to charge them against

       Tipton’s distributive share of the Estate’s assets for her frivolous and bad faith

       appeal.” (Appellee’s Br. p. 26).


[14]   Indiana Appellate Rule 66(E) provides, in pertinent part, “[t]he Court may

       assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in

       the Court’s discretion and may include attorney’s fees.” Our discretion to

       award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to

       instances where an appeal is permeated with meritlessness, bad faith, frivolity,

       harassment, vexatiousness, or purpose of delay. Thacker, 797 N.E.2d at 346.

       Additionally, while Indiana Appellate Rule 66(E) provides this court with

       discretionary authority to award damages on appeal, we must use extreme

       restraint when exercising this power because of the potential chilling effect upon

       the exercise of the right to appeal. Tioga Pines Living Ctr., Inc. v. Ind. Family and

       Soc. Servs. Admin, 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001), trans. denied.


[15]   Indiana appellate courts have formally categorized claims for appellate attorney

       fees into “substantive” and “procedural” bad faith claims. Boczar v. Meridian

       Street Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001). To prevail on a

       substantive bad faith claim, the party must show that the appellant’s

       contentions and arguments are utterly devoid of all plausibility. Id. Procedural

       bad faith, on the other hand, occurs when a party flagrantly disregards the form

       and content requirements of the rules of appellate procedure, omits and

       misstates relevant facts appearing in the record, and files briefs written in a

       Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019       Page 11 of 12
       manner calculated to require the maximum expenditure of time both by the

       opposing party and the reviewing court. Id. Finally, we note that even pro se

       litigants are liable for attorney’s fees when they disregard the rules of procedure

       in bad faith. Thacker, 797 N.E.2d at 347.


[16]   As pointed out, Tipton’s brief violates all provisions of Indiana Appellate Rule

       46(A). Her non-compliance with our appellate rules of procedure permeates

       her entire brief, and precludes our review of her allegations of error on appeal.

       Keeping in mind our duty to use great restraint when determining that an

       award of appellate attorney fees is warranted, we nonetheless find that such an

       award is appropriate under the facts of this case. See id. at 348. Finding Tipton

       to have engaged in procedural bad faith before this court, we remand this cause

       to the trial court with instructions to calculate the amount of appellate attorney

       fees the Estate is entitled to recover.


                                              CONCLUSION
[17]   Based on the foregoing, we hold that Tipton has waived the issue she raised

       before this court because her brief is not in compliance with Indiana Appellate

       Rule 46(A). Moreover, we find that Tipton has engaged in procedural bad faith

       in her pursuit of this appeal, and appellate attorney fees should therefore be

       assessed against her share of the Estate.


[18]   Affirmed and remanded.


[19]   Kirsch, J. and Robb, J. concur


       Court of Appeals of Indiana | Opinion 18A-EU-1009 | January 17, 2019     Page 12 of 12
