                                                                      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
