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,
Ziemer, Stayman, Weitzel & Shoulders, LLP and Kolb Roellgen & Kirchoff, LLP, Appellees-Petitioners.
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
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.
OF THE CASE
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
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.
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).
In addition, Kolb presents this court with one issue on
appeal, which we restate as: Whether Appellants have standing
to pursue this appeal.
AND PROCEDURAL HISTORY
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.
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.
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
(Appellant's Conf. App. Vol. II, p. 65).
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.
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.
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).
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 ...