Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Guardianship of Lamey

Court of Appeals of Indiana

November 8, 2017

In the Matter of the Guardianship of Darvin Henry Lamey, An Adult Raymond L. Lamey and Ramona Lamey, Co-Guardians of the Person of Darvin Henry Lamey and Co-Personal Representatives of the Estate of Darvin Henry Lamey, Appellants-Respondents,
v.
Ziemer, Stayman, Weitzel & Shoulders, LLP and Kolb Roellgen & Kirchoff, LLP, Appellees-Petitioners.

         Appeal from the Gibson Circuit Court The Honorable S. Brent Almon, Special Judge Trial Court Cause No. 26C01-1408-GU-21

          ATTORNEYS FOR APPELLANTS Richard A. Smikle Jenny R. Buchheit Andrew J. Miroff Steven R. Latterell Ice Miller, LLP Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEES Allyson R. Breeden Jean M. Blanton Molly E. Briles Ziemer Stayman Weitzel & Shoulders, LLP Evansville, Indiana Jeffrey B. Kolb Charles E. Traylor Kolb Roellgen & Kirchoff, LLP Vincennes, Indiana.

          Riley, Judge.

         STATEMENT OF THE CASE

         [¶1] Appellants-Respondents, Raymond L. Lamey, M.D. (Raymond) and Ramona Lamey (Mona) (collectively, Appellants), Co-Guardians of the Person of Darvin Henry Lamey and Co-Personal Representatives of the Estate of Darvin Henry Lamey, appeal the trial court's findings of fact and conclusions of law granting the payment of attorney fees to Appellees-Petitioners, Ziemer, Stayman, Weitzel & Shoulders, LLP (ZSWS) and Kolb Roellgen & Kichoff, LLP (Kolb), incurred during their representation of the protected person.

         [¶2] We affirm.

         ISSUES

         [¶3] Appellants present this court with two issues on appeal, which we restate as follows:

(1) Whether the trial court properly granted payment of attorney fees to ZSWS when ZSWS entered into an attorney-client relationship with Darvin Henry Lamey (Darvin) while Darvin was a protected person and under a guardianship, and entered into this relationship without the knowledge of Darvin's Guardian ad Litem (GAL) and without contracting with the guardian of his estate; and
(2) Whether the trial court properly granted payment of attorney fees to Kolb when Kolb entered into an attorney-client relationship with Darvin, without the knowledge of Darvin's GAL, and without contracting with the guardian of his estate, for purposes of modifying Darvin's estate plan and making an election under the Virginia Lamey Trust.

         [¶4] ZSWS and Kolb present this court with two issues on appeal, which we restate as:

(1)Whether Appellants can bring this interlocutory appeal of right even though Appellants were not ordered to pay any amount of money; and
(2)Whether ZSWS and Kolb are entitled to appellate attorney fees pursuant to Indiana Appellate Rule 66(E).

         [¶5] In addition, Kolb presents this court with one issue on appeal, which we restate as: Whether Appellants have standing to pursue this appeal.

         FACTS AND PROCEDURAL HISTORY

         [¶6] A lifelong farmer with significant business acumen, Darvin accumulated substantial wealth in real estate and personal property during his lifetime. In the summer of 2014, Darvin was nearly 87 years old and resided at River Point Health Campus in Evansville, Indiana. He had been diagnosed with degenerative dementia, an enlarging abdominal aortic aneurysm, and was hospitalized for a knee infection. On June 23, 2014, Darvin's son, Raymond, an anesthesiologist in Evansville Indiana, petitioned and obtained a temporary appointment as a guardian over Darvin after Raymond became concerned his father could no longer make "informed decisions concerning his health." (Transcript, Jan. 2016, p. 200). At Darvin's request, the trial court appointed a Guardian ad Litem (GAL) to periodically prepare reports and make recommendations to the trial court.

         [¶7] Prior to the guardianship, Darvin relied on a female friend and companion (Darvin's Friend) to take him to his medical appointments and help take care of his basic needs and financial affairs. After being appointed as guardian, Raymond discovered large sums of money missing from Darvin's accounts. He was also contacted by staff at River Point with concerns for Darvin's safety, based on Darvin's Friend's means of transportation and disregard for Darvin's high risk for falling. As a result, Raymond obtained an ex parte order of protection against Darvin's Friend.

         [¶8] On August 8, 2014, Raymond filed his petition for appointment of guardian over Darvin's person and estate. Even though the GAL reported that Darvin objected to the appointment of Raymond as his guardian and the GAL expressed a concern that Raymond would not be willing or able to meet Darvin's emotional needs, the trial court appointed Raymond as guardian on September 18, 2014, due to Darvin's "degenerative dementia and general mental decline under Indiana law." (Appellant's Conf. App. Vol. II, p. 64). To abate the GAL's concerns, the trial court instituted some limitations to Raymond's guardianship, in pertinent part, as:

5. The guardian shall allow reasonable visitation of the ward by friends and family. Further, the guardian shall provide visitation with his two favorite dogs at least weekly. The guardian shall ensure that the monthly social security payments go into the guardianship account and from that $500.00 be placed into a separate account for the use and benefit of the ward.
6.The prior Order requiring the ward to remain at River Point Nursing home is hereby lifted and the guardian may place the ward at University Nursing home, or another suitable facility.

(Appellant's Conf. App. Vol. II, p. 65).

         [¶9] On November 26, 2014, the GAL filed a report with the trial court detailing recent meetings and communications with Darvin. Commenting on Darvin's health, the GAL reported a "decline in Darvin['s] mental status, specifically his memory and escalation of anger and frustration[.]" (Appellant's Conf. App. Vol. II, p. 67). She observed that as Darvin's mental health declines, he "becomes more vocal, paranoid and angry over the circumstances he has found himself." (Appellant's Conf. App. Vol. II, p. 67). The GAL detailed Darvin's numerous apprehensions regarding Raymond's behavior as his guardian, as well as her investigations into his concerns, and concluded that "there is no evidence to support that [Raymond] is not meeting Darvin's needs." (Appellant's Conf. App. Vol. II, p. 71). Although "Darvin tells everyone who will listen to him that [Raymond] is stealing his money, mishandling his assets and not showing him the documentation, " and despite the fact that the GAL herself had "shown Darvin the evidence that [Raymond] is not stealing his money[, ] . . . Darvin refuse[d] to believe it." (Appellant's Conf. App. Vol. II, p. 71). "Darvin has accused the [GAL] of being on [Raymond's] side despite being shown the bank records." (Appellant's Conf. App. Vol. II, p. 71). The GAL twice alerted the trial court in her report that one of Darvin's friends, Charlie Schmitt, had contacted her regarding Raymond's perceived mishandling of Darvin's money and alleged refusal to produce the appropriate documentation. Subsequently, in January 2015, the trial court authorized the removal of the limitations on the guardianship and authorized Darvin's placement in a more secure nursing home facility.

         [¶10] In mid-January of 2015, ZSWS became aware that Darvin was seeking counsel to terminate Raymond's guardianship over his person and estate. ZSWS gathered information from collateral sources and attempted to meet with Darvin prior to entering its appearance but Raymond prevented ZSWS from consulting with Darvin. On February 17, 2015, ZSWS filed its appearance and several emergency motions with the trial court seeking access to Darvin, as well as a petition to terminate the guardianship. The trial court granted ZSWS's emergency motions on April 7, 2015. On March 31, 2015, the GAL filed an additional report with the trial court, reporting that Darvin had been moved to the West River Health Campus' Legacy Unit and alerting the court that:

When [Darvin's Friend] and Charlie Schmitt visit, Darvin's frustration intensified and he cannot be redirected. Staff reported the Schmitt's [sic] have conversations with Darvin regarding court. Staff has had to tell Darvin to stop talking in front of the other residents. Staff reported on a scale of 1 to 10, with one (1) being a normal day, Darvin's frustration level reaches an eight (8) after the Schmitt's [sic] leave. Staff reported they witness an obvious change in Darvin's demeanor on Monday after the Schmitt's [sic] have visited over the weekend. Staff reported it takes a couple of days to calm Darvin. Staff reported Darvin will also have a list of questions or things he wants taken care of by [Raymond] or staff after the Schmitt's [sic] have visited.

(Appellant's Conf. App. Vol. II, p. 101). The GAL explicitly noted her

ongoing concerns regarding the number of people who are attempting to micromanage and interfere in [Darvin's] life based on their own value system and presumptions of what is in his best interest. The GAL questions the motivating factors of the individuals given Darvin's considerable assets. The GAL read a letter written by [Darvin] in which he offers $100, 000 to any Evansville attorney who "takes Guardianship Power attorney from [Raymond].

(Appellant's Conf. App. Vol. II, p. 103). On August 18, 2015, the trial court struck Darvin's petition to terminate the guardianship and denied his emergency motions to replace Raymond as a guardian.

         [¶11] Darvin, via ZSWS, appealed the trial court's order striking his petition to terminate the guardianship. Due to Darvin's life expectancy, which at that time was six to nine months, we granted an expedited appeal. On December 15, 2015, this court suspended consideration of the appeal and ordered the trial court to conduct a full evidentiary hearing within thirty days of the order addressing "(1) whether Darvin is incapacitated; (2) what limitations shall be placed on any guardian's powers; (3) what is the least-restrictive placement appropriate for Darvin's care; and (4) who is the best family member or other person to serve as Darvin's guardian given the obvious animosity and estrangement between Darvin and [Raymond]." (Appellant's App. Vol. III, p. 23).

         [¶12] Pursuant to the Court of Appeal's order, on January 4 through January 7, 2016, the trial court conducted an evidentiary hearing. At the conclusion of the fourth day of testimony, the parties presented the trial court with an Agreed Order of Limited Guardianship (Agreed Order), representing their jointly negotiated resolution of all pending matters. The Agreed Order was signed by the trial court on January 8, 2016, and stipulated, in pertinent part:

1. [Darvin] is an incapacitated person due to his inability to manage in whole or in part his property and/or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.