      MEMORANDUM DECISION
                                                                                        FILED
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                   Feb 14 2018, 6:09 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                         CLERK
                                                                                    Indiana Supreme Court
      court except for the purpose of establishing                                     Court of Appeals
                                                                                         and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      APPELLANTS, PRO SE
      Lawrence Custard
      Vanessa Custard
      Fort Wayne, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lawrence Custard and Vanessa                             February 14, 2018
      Custard,                                                 Court of Appeals Case No.
      Appellants-Petitioners,                                  02A04-1704-GU-1053
                                                               Appeal from the Allen Superior
              v.                                               Court
                                                               The Honorable Phillip E. Houk,
      Annette Brooks Russell and                               Magistrate
      Jackie Brooks,                                           Trial Court Cause Nos.
      Appellees-Respondents.                                   02D01-0808-GU-159
                                                               02D01-1608-GU-193



      Pyle, Judge.


                                       Statement of the Case
[1]   Lawrence Custard (“Lawrence”) and Vanessa Custard (“Vanessa”)

      (collectively, “the Custards”) attempt to appeal, pro se, the trial court’s orders

      Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018              Page 1 of 9
      denying their motions to set aside, which they had filed in two separate

      guardianship causes. Because the Custards failed to timely file their notice of

      appeal1 and because we find no extraordinary compelling reasons to restore

      their forfeited right to this appeal, we dismiss the appeal.


[2]   We dismiss.


                                                         Issue
               Whether this appeal should be dismissed because the Custards failed
               to timely file a notice of appeal.

                                                         Facts
[3]   We have limited facts before us because the Custards have included limited

      information in their Appellant’s Appendix.2 Nevertheless, from the record

      presented on appeal, it appears that the Custards are attempting to appeal from

      two guardianship cases: (1) a guardianship over Brunette Custard (“Brunette”)

      established in 2008 under cause number 02D01-0808-GU-159 (“Brunette’s

      guardianship case”); and (2) a guardianship over Rhonda Custard (“Rhonda”)

      established in 2016 under cause number 02D01-1608-GU-193 (“Rhonda’s

      guardianship case”). Brunette is Lawrence’s mother, and Rhonda is




      1
          The Custards filed one notice of appeal containing the cause numbers from both guardianship cases.
      2
        Contrary to Indiana Appellate Rule 50(A)(2)(a), the Custards did not include all relevant pleadings in their
      Appellants’ Appendix, and they did not include a copy of the chronological case summary (“CCS”) from
      either guardianship case.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018            Page 2 of 9
      Lawrence’s sister. The current guardian over Brunette is Annette Brooks

      Russell (“Russell”), who is Brunette’s sister.


[4]   Apparently, in August 2016, Jackie Brooks (“Brooks”), who is Rhonda’s

      cousin, filed a petition to establish a guardianship over Rhonda’s person and

      estate.3 On September 26, 2016, the trial court held a hearing on Brooks’

      petition. The court-appointed guardian ad litem (“GAL”) testified that Rhonda

      needed a guardian and that Brooks was “a good person to serve as that

      guardian.” (Sept. 26, 2016 Hrg. Tr. 13). Lawrence attended the hearing pro se.

      Lawrence had not filed a petition to be appointed as Rhonda’s guardian;

      nevertheless, the trial court gave him the opportunity to speak.4 Lawrence

      acknowledged that Rhonda needed a guardian. He contended that Brooks did

      not “[t]echnically” qualify to serve as guardian but offered no reasons why.

      (Sept. 26, 2016 Hrg. Tr. 13). Lawrence indicated that he wanted to intervene

      and petition to be Rhonda’s guardian. The trial court stated that it would allow

      him to file an official petition, but, in the meantime, it would proceed with

      establishing Rhonda’s guardianship, which all parties agreed was necessary.

      Lawrence stated he also would be filing a petition to have the guardian

      removed from Brunette’s guardianship case and that he wanted to have both




      3
          The Custards did not include a copy of Brooks’ petition in their Appendix.
      4
       The transcript indicates that Lawrence had filed an objection to Brooks’ guardianship petition, but the
      Custards have not included that pleading in their Appendix.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018           Page 3 of 9
      guardianship petitions reviewed at the same time. 5 The trial court indicated

      that it would grant Brooks’ petition and appoint her as temporary guardian in

      Rhonda’s guardianship case. The trial court specified that the temporary

      guardianship would convert to a permanent guardianship after ninety days if

      Lawrence did not file a petition. Thereafter, the trial court issued an order

      granting Brooks’ petition and appointing her as guardian in Rhonda’s

      guardianship case.6


[5]   On December 2, 2016, the Custards filed, pro se, a “Verified Petition for

      Successor Guardianship(s) /Suit for Warsaw Property.” (App. Vol. 2 at 19).7

      They filed this motion in reference to Rhonda’s guardianship case and

      Brunette’s guardianship case.8 The Custards asserted that both Rhonda and

      Brunette were “in need of Guardians because of their incapacity” and that it

      was “in the best interest of Rhonda and Brunette Custard that a Successor

      Guardian be appointed over the Person and Estate.” (App. Vol. 2 at 20). The

      Custards requested the trial court to “terminate” the current court-appointed

      guardians and to appoint the Custards as successor guardians over the two




      5
       When requesting that both guardianship petitions be heard at the same time, he referenced Indiana Trial
      Rule 81.1.
      6
          The Custards did not include a copy of the trial court’s order in their Appendix.
      7
       Apparently, the Custards also filed a “Motion to Set Aside Order” and a “Verified Petition for Removal of
      Guardians.” (February 8, 2017 Hrg. Tr. 5). They, however, have not included those pleadings in their
      Appendix.
      8
        The Custards filed the petition under the cause number for Rhonda’s guardianship case but captioned the
      case to be for both guardianship cases. Within the petition, the Custards stated, without further explanation,
      the following: “Judicial Notice to prior Case Brunette #02D01-0808-GU-000159[.]” (App. Vol. 2 at 20).

      Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018           Page 4 of 9
      guardianship cases. (App. Vol. 2 at 22). Additionally, within their petition, the

      Custards asserted that they were bringing a “suit for recovery of damages to

      property[.]” (App. Vol. 2 at 26). The Custards alleged that Russell and Brooks

      had allowed Brunette’s “Warsaw property” to be “trashed[,]” and they sought

      “money damages in the amount of $180,000” from Russell and Brooks. (App.

      Vol. 2 at 29).


[6]   On February 8, 2017, the trial court held a hearing on the Custards’ petition.

      Lawrence represented the Custards pro se. At the beginning of the hearing, the

      trial court noted that Lawrence had cited multiple trial rules, including Trial

      Rule 59, 60, and 81, in his petition. The trial court asked Lawrence to explain

      the legal theory under which he was proceeding and inquired into what

      evidence he had to show that the current guardians had not properly performed

      their fiduciary responsibilities that would warrant their removal. Lawrence

      stated that he was not alleging that the guardians had not performed their

      responsibilities. Instead, he stated that his argument was that both guardians

      should be removed because Brunette had intended that Lawrence serve as

      guardian over her and Rhonda. The trial court explained to Lawrence that if he

      wanted to have the current guardians removed, then he needed to present

      evidence that they had improperly performed their role as guardians. The trial

      court stated that it had appointed the guardians and that it was “going to let

      them continue to do that job because there is no reason for them not to do their

      job.” (February 8, 2017 Hrg. Tr. 26). In reference to the Custards’ claim for

      property damage, the trial court explained to Lawrence that his property


      Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018   Page 5 of 9
      damage claim was a civil action separate from the guardianship proceeding and

      that he could not file his civil action for damages “by just mentioning it in a

      pleading that [he] fil[ed] inside a guardianship.” (February 8, 2017 Hrg. Tr.

      19).


[7]   Thereafter, on February 21, 2017, the trial court entered an order in Rhonda’s

      guardianship case (“February 2017 Order”).9 This order provided as follows:


               The Court, having had under advisement the pending Petition for
               Successor Guardianship(s) /Suit for Warsaw Property, now rules
               as follows:


                        1. The portion of the Petitioner’s filing, which references
                           a claim against Annette Brooks-Russell and Jackie
                           Brooks, is improperly filed under this cause and is
                           dismissed without prejudice.


                        2. The Court fails to find grounds for the removal of
                           Annette Brooks as Guardian and therefore denies the
                           Petition for Successor Guardianship.


      (App. Vol. 2 at 2).


[8]   On March 23, 2017, Lawrence filed a “Motion to Set Aside Order” in both

      Rhonda’s guardianship case and Brunette’s guardianship case. (App. Vol. 2 at




      9
       The record on appeal does not indicate whether the trial court also entered this order in Brunette’s
      guardianship case.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018           Page 6 of 9
       8, 13).10 In these two motions, Lawrence argued that the trial court should set

       aside its February 2017 Order; remove Brooks as Rhonda’s guardian and

       remove Russell as Brunette’s guardian; “[t]erminate[]” both guardianships; and

       appoint Lawrence as guardian over Rhonda and appoint Lawrence and

       Vanessa as guardians over Burnette. (App. Vol. 2 at 10, 15). Additionally, he

       requested that “money damages be awarded for property damage.” (App. Vol.

       2 at 16).


[9]    The following day, March 24, 2017, the trial court entered an order in both

       Rhonda’s guardianship case and Brunette’s guardianship case and denied

       Lawrence’s motions. The Custards filed their notice of appeal, covering both

       guardianship causes, on April 27, 2017.


                                                      Decision
[10]   Initially, we note that neither Russell nor Brooks filed an Appellee’s Brief.

       When an Appellee fails to submit an appellate brief, “‘we need not undertake

       the burden of developing an argument on the [A]ppellee’s behalf.’” Front Row

       Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting Trinity Homes, LLC

       v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we will reverse the trial

       court’s judgment if the appellant’s brief presents a case of prima facie error.’” Id.

       (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima facie error in this context




       10
          In these motions, the Custards referenced, among other rules, Trial Rule 59(B), which relates to a motion
       to correct error. For purposes of this appeal, we will treat the Custards’ pleadings as such.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018          Page 7 of 9
       is defined as, at first sight, on first appearance, or on the face of it.” Id. (internal

       quotation marks and citation omitted).


[11]   Turning to this appeal, we recognize that our Indiana Appellate Rules provide

       that a party who wishes to appeal must “initiate[] an appeal by conventionally

       filing a Notice of Appeal with the Clerk (as defined in Rule 2(D)) [11] within

       thirty (30) days after the entry of a Final Judgment is noted in the

       Chronological Case Summary.” Ind. Appellate Rule 9(A)(1). Additionally,

       Appellate Rule 9(A)(5) provides that “unless the Notice of Appeal is timely

       filed, the right to appeal shall be forfeited[.]”


[12]   Here, the Custards are attempting to appeal from two trial court orders—one in

       Brunette’s guardianship case and one in Rhonda’s guardianship case. The trial

       court entered these orders on March 24, 2017. Therefore, the Custards’ notice

       of appeal was due on or before April 24, 2017.12 The Custards, however, filed

       their notice of appeal on April 27, 2017. Thus, their notice of appeal was three

       days late. Pursuant to Appellate Rule 9(A)(5), the Custards’ failure to timely

       file their notice of appeal with our Court results in their “right to appeal . . .

       be[ing] forfeited[.]”




       11
         Appellate Rule 2(D) defines “Clerk” as “the Clerk of the Indiana Supreme Court, Court of Appeals[,] and
       Tax Court.”
       12
         Thirty days from March 24, 2017 was Sunday April 23, 2017; however, because that day was a non-
       business day, the due date for the notice of appeal was Monday April 24, 2017. See Ind. Appellate Rule 25.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018         Page 8 of 9
[13]   Our supreme court, however, has explained that an appellate court may restore

       a right of appeal that has been forfeited if there are “extraordinarily compelling

       reasons to do so.” In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). In

       O.R., our supreme court concluded that, in an appeal of a father seeking to

       challenge the adoption of his child, there were extraordinarily compelling

       reasons that existed to restore the father’s forfeited right to appeal. Id. at 972.

       In so finding, the O.R. Court cited to: (1) Appellate Rule 1, which provides that

       our Court may permit deviation from the Appellate Rules; (2) the father’s

       timely attempt to initiate an appeal before the deadline for filing his notice of

       appeal; and (3) the significance of the parent-child relationship as a

       fundamental liberty interest and one of the most valued relationships of our

       culture. Id.


[14]   We do not find any extraordinary compelling reasons to restore the Custards’

       forfeited right to this appeal, and we dismiss the appeal. See, e.g., Blinn v. Dyer,

       19 N.E.3d 821, 822 (Ind. Ct. App. 2014) (explaining that “while we may waive

       the apparent Appellate Rule 9(A)’s forfeiture requirement, we need not do so”).


[15]   Dismissed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1704-GU-1053 | February 14, 2018   Page 9 of 9
