      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                              FILED
      this Memorandum Decision shall not be                                          Nov 20 2018, 7:18 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                        CLERK
                                                                                      Indiana Supreme Court
                                                                                         Court of Appeals
      the defense of res judicata, collateral                                              and Tax Court

      estoppel, or the law of the case.


      APPELLANT PRO SE
      Charles Michael Fox
      Clarksville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Charles Michael Fox,                                    November 20, 2018
      Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                              18A-SC-1055
              v.                                              Appeal from the
                                                              Clark Circuit Court
      Thomas Wilmer Fox,                                      The Honorable
      Appellee-Defendant.                                     Kenneth R. Abbott, Magistrate
                                                              Trial Court Cause No.
                                                              10C01-1802-SC-167



      Kirsch, Judge.


                                       MEMORANDUM DECISION



[1]   Charles Michael Fox (“Charles”) appeals the trial court’s dismissal of his small

      claims case, wherein he alleged that his brother, Thomas Wilmer Fox

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018                 Page 1 of 7
      (“Thomas”), embezzled $6,000 from Charles’s trust while serving as Charles’s

      guardian. On appeal, Charles raises three issues, which we restate as 1)

      whether Charles’s small claims action was properly dismissed under the

      collateral estoppel doctrine; 2) whether the small claims action was an

      impermissible collateral attack on the guardianship; and, 3) whether the trial

      court had subject matter jurisdiction over the embezzlement claim.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Charles suffered from schizophrenia, which caused him to hear voices. Before

      his death, Charles’s father funded a trust with $150,000 that was designated for

      Charles’s care. Guardianship Tr. Vol. 3 at 15. In 1994, Thomas was appointed

      as Charles’s guardian. Tr. Vol. 2 at 6. In 2001, Thomas spent $6000 from the

      trust to rent an apartment for Charles, and in 2002, Thomas spent

      approximately $50,000 from the trust to buy Charles a condominium.

      Appellant’s Br. at 8. No other funds from the trust were expended on Charles’s

      behalf, so the balance of the trust should have been approximately $100,000.

      See Tr. Vol. 2 at 8-10.


[4]   At some point during the guardianship, Charles was put on medication, which

      eased his symptoms. Id. at 12. At Charles’s request, the guardianship was

      terminated on January 7, 2015, without Thomas having filed an accounting.

      Id. at 6; Appellant’s Non-Conforming App. Vol. 1 at 30. On February 2, 2015,

      Charles emailed Thomas, demanding that Thomas disburse the remainder of

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018   Page 2 of 7
      the trust to Charles; Thomas declined. Appellant’s Br. at 5. On July 13, 2015,

      Charles asked the probate court to re-open the guardianship, partly because

      Thomas had not filed a final accounting. Id. at 10; Tr. Vol. 2 at 7; Appellant’s

      Non-Conforming App. Vol. 1 at 30. Charles also alleged that Thomas had

      embezzled funds from the trust. Appellant’s Br. at 10.


[5]   On September 3, 2015, the probate court reopened the guardianship. Appellant’s

      Non-Conforming App. Vol. 1 at 31. Thomas eventually filed a final accounting,

      though Charles contended it was vague and inadequate. Tr. Vol. 2 at 7. On

      February 2, 2016, the probate court approved the final accounting and

      terminated the guardianship. Appellant’s Non-Conforming App. Vol. 1 at 34.


[6]   On March 28, 2017, Charles filed a Petition for Clarification, and on May 22,

      2017, the probate court heard the matter. Guardianship Tr. Vol. 3 at 4;

      Appellant’s Non-Conforming App. Vol. 1 at 35. At the hearing, Charles asked for

      guidance about the effective dates of Thomas’s discharge as the guardian and

      termination of the guardianship. Guardianship Tr. Vol. 3 at 4-6, 8-11, 13-14, 16.

      Charles sought this information because he wanted to know if he was still

      within the one-year statute of limitation prescribed by Indiana Code section 29-

      3-9-6(h) to sue a guardian after the guardian has been discharged. The probate

      court directed Charles to consult an attorney but opined that it appeared the

      statute began to run on February 1 or February 2, 2016, more than fifteen

      months earlier, and that Charles, therefore, had likely missed the deadline. Id.

      at 9, 11.



      Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018   Page 3 of 7
[7]   Believing that Thomas had embezzled about $100,000 from him, Charles filed

      suit in small claims court, seeking $6,000, because he believed Thomas had no

      more than $6,000 and because there was no documentary evidence to prove

      how much money Thomas had embezzled from the trust. Tr. Vol. 2 at 4-6.


[8]   At the small claims hearing, Charles acknowledged there was a final accounting

      in the guardianship. Id. at 7. The trial court observed that Charles should have

      filed his embezzlement claim in the guardianship case. At the end of the

      hearing, the trial court took the matter under advisement to see what had

      transpired in the guardianship case. Id. at 16-20; Appellant’s App. Vol. 2 at 4. On

      March 23, 2018, the trial court dismissed Charles’s small claims action, stating:


              [H]aving reviewed the statements and arguments of [Charles]
              and having reviewed the record of his guardianship proceeding in
              Circuit Court No. 1, and hereby finds that the issues raised in
              [Charles’s] Statement of Claim have been dealt with and resolved
              in the guardianship proceeding.


              IT IS, THEREFORE, ORDERED that [Charles’s] Statement of
              Claim is dismissed.


      Id. at 7. Charles now appeals.


                                     Discussion and Decision
[9]   Thomas has not filed an appellee’s brief. In such a situation, we do not

      undertake the burden of developing his arguments. See Hill v. Ramey, 744

      N.E.2d 509, 511 (Ind. Ct. App. 2001). We apply a less stringent standard of

      review where we may reverse the trial court if Charles establishes prima facie

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018   Page 4 of 7
       error. See id. Prima facie is defined as “at first sight, on first appearance, or on

       the face of it.” Id. If an appellant cannot meet this burden, we will affirm.

       Damon Corp. v. Estes, 750 N.E.2d 891, 892-93 (Ind. Ct. App. 2001). In

       reviewing an order of dismissal, we may affirm the ruling based on any theory

       supported by the record. See Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct. App.

       2018).


[10]   Collateral estoppel bars re-litigation of the same fact or issue where that fact or

       issue was necessarily adjudicated in a former suit. Tofany v. NBS Imaging Sys.,

       Inc., 616 N.E.2d 1034, 1037 (Ind. 1993). In that situation, the first adjudication

       will be held conclusive even if the second is on a different claim. Id. An

       appellate court considers whether the party against whom the judgment is pled

       had a full and fair opportunity to litigate the issue and whether it would be

       otherwise unfair to permit the use of collateral estoppel. Id. In the context of

       probate court proceedings, our Supreme Court has held that settlement and

       discharge of an estate bars a claim that the guardian has misappropriated funds

       from the estate. Peacocke v. Leffler, 74 Ind. 327, 330 (1881).


[11]   Here, the trial court properly concluded that the guardianship case necessarily

       adjudicated Charles’s embezzlement claim. See Tofany, 616 N.E.2d at 1037.

       One reason the guardianship was re-opened, at Charles’s request, was that

       Charles claimed Thomas was embezzling funds. See Appellant’s Br. at 10 (“I had

       told [the guardianship judge], both verbally and in my petition to reopen the

       guardianship case, of the embezzlement . . . .”) (emphasis added). The other

       reason the guardianship was re-opened, again at Charles’s request, was to
       Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018   Page 5 of 7
       compel Thomas to file a final accounting, by which Charles had hoped to prove

       that Thomas had embezzled funds. Tr. Vol. 2 at 4; 6-7. Thus, Charles had a fair

       opportunity to litigate his embezzlement claim. When he complains about the

       alleged inadequacy of the final accounting and the lack of documentary

       evidence to support his embezzlement claim, he impliedly concedes that the

       matter has been resolved, though not to his liking. Id. Thus, the embezzlement

       claim was barred once the guardianship court accepted the final accounting and

       discharged Thomas as guardian. Accordingly, the trial court did not err in

       dismissing Charles’s small claims case on the basis that the guardianship

       proceeding resolved the embezzlement claim. Charles’s dissatisfaction with

       that result does justify a second chance to relitigate the issue in another case.

       See Tofany, 616 N.E.2d at 1037.


[12]   There are two additional reasons to affirm the trial court’s decision:


[13]   First, Charles’s small claims embezzlement action was an impermissible

       collateral attack on the guardianship adjudication. A guardianship settlement

       “cannot be collaterally attacked but must be set aside by a direct proceeding.” Kuhn

       v. Boehne, 27 Ind. App. 340, 61 N.E. 199, 200 (1901) (emphasis added). Thus,

       Charles should have sought relief in a direct action in probate court.


[14]   Second, dismissal was proper because the probate court had exclusive

       jurisdiction over the guardianship. “Any person having a claim against . . . the

       guardian as such may file the claim with the court . . . .” Ind. Code. § 29-3-10-

       1(d) (emphasis added). “‘Court’ means the court having probate jurisdiction . . .


       Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018   Page 6 of 7
       .” Ind. Code § 29-3-1-3 (emphasis added). In Indiana, “the practice requires

       that disputed claims against the estate of wards, whether infants or persons of

       unsound mind, be presented by a complaint or petition against the guardian in a

       court having jurisdiction of the ward’s estate and the person of the guardian.” Stewart v.

       Unger, 44 Ind. App. 87, 88 N.E. 716, 717 (1909) (emphasis added). Charles’s

       small claims embezzlement action was an impermissible collateral attack on the

       guardianship proceeding, and the trial court lacked subject matter jurisdiction

       over that claim.


[15]   Charles has failed to meet his burden to demonstrate that the trial court’s order

       of dismissal was prima facie error. See Hill, 744 N.E.2d at 511.


[16]   Affirmed.


       Vaidik, C.J., and Riley, J., concur




       Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018   Page 7 of 7
