Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: MARY F. SCHMID Stewart & Irwin, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: TERRY L. MONDAY CHRISTOPHER J. McELWEE Monday, Jones & Albright Indianapolis, Indiana MARK SMALL Indianapolis, Indiana

FILED
Jun 17 2009, 9:15 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
P&H MOTORS, INC., VIVIAN K. AICHELE, and FRANCES A. TUCKER, Appellants-Defendants, vs. PAULA M. DAILEY, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-0810-CV-907

APPEAL FROM THE MARION SUPERIOR COURT The Honorable David Shaheed, Judge Cause No. 49D01-0612-PL-48863

June 17, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION CRONE, Judge

Case Summary P&H Motors, Inc. ("P&H"), Vivian Aichele, and Frances Tucker (collectively, "Appellants") appeal a September 18, 2008 judgment of partition. Appellee Paula Dailey has filed a motion for attorneys' fees. We affirm the judgment and deny the request for attorneys' fees. Issues The parties present various issues, which we restate as follows: I. II. Whether Appellants' notice of appeal was timely; Whether Dailey had an interest in the disputed properties that would support the partition of the properties pursuant to Indiana Code Section 32-17-4-1; Whether the court committed reversible error by finding that the other two-thirds owners were Aichele and Tucker, despite a quitclaim to P&H; and Whether Appellants' appeal is frivolous and/or brought in bad faith such that an award of attorneys' fees would be appropriate. Facts and Procedural History The facts most favorable to the judgment are as follows. On December 24, 1994, Paul Hieb, the father of three daughters, Aichele, Tucker, and Dailey, died testate. At the time of his death, he was the sole owner of P&H and several Indianapolis-area properties. Thereafter, Dailey, secretary of P&H, started managing the day-to-day operations of P&H and the various properties. Her husband helped as well and eventually became a P&H employee. Although Tucker and Aichele were named as P&H president and treasurer,

III.

IV.

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respectively, neither was actively involved in daily operations at that time. In February 1995, Hieb's will was admitted to probate, and Dailey was appointed personal representative. In October 1998, the probate court entered its "Order Approving the Personal Representative's Final Report and Accounting, Petition to Allow Accounting, Petition for Order Approving Distribution and Closing Estate." App. at 68-72. As noted in that order, Dailey, Tucker, and Aichele were the sole legatees and devisees under Hieb's will. Id. at 69. The order listed nine properties that were owned by Hieb at the time of his death, seven of which were devised to the three sisters pursuant to Hieb's will. In April 1999, Dailey executed a personal representative's deed formalizing the transfer of title to five of those properties, including 716 East Bacon Street and 122 West Raymond Street, to herself and her two sisters as tenants in common. Id. at 73-74.1 No objection to, or appeal from, the October 1998 probate court's order was made. In October 2006, a dispute arose among Tucker, Aichele, and Dailey regarding the management and control of P&H. Id. at 117-18. Consequently, Tucker and Aichele assumed control of P&H, fired Dailey's husband, and ousted Dailey from her secretary position. In December 2006, Tucker and Aichele then allegedly attempted to quitclaim their interests in the Bacon Street and Raymond Street properties to P&H in exchange for issuing themselves additional shares of P&H stock, thereby increasing their percentage ownership of P&H to the detriment of Dailey. Id. at 127-41; 75-76. Around that time, Dailey filed a multi-count suit

1

The April 1999 personal representative's deed was not recorded until November 2006.

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in Marion County Superior Court ("trial court") against her sisters, seeking, inter alia, partition of real estate, including the Bacon Street and Raymond Street properties. Meanwhile, the probate court heard evidence on April 12, 2007 and July 2, 2007 regarding requests by the three sisters to reopen their father's estate. In an October 29, 2007 order denying the petitions to reopen Hieb's estate, the probate court found that it was "not the proper forum for resolution of the current disputes between the parties." Id. at 77. Further, the probate court found that Tucker and Aichele were barred from filing an objection to the "final account or supplemental report" because they had not made a timely filing. Id. The court made clear that it "would re-appoint the personal representative for the sole purpose of executing a corrected deed to replace a deed executed during administration only if [Dailey, Tucker, and Aichele] each consent in writing to the form of an agreed order and to the form of the corrected deed." Id. at 78. Finally, the probate court denied Dailey's request that the remaining properties of Hieb's estate be partitioned. Id. Tucker and Aichele filed a motion for reconsideration and a motion to correct error regarding the October 29, 2007 order. The probate court heard argument on the matter and then denied the motions on February 13, 2008. On February 21, 2008, a hearing was held in the trial court regarding Dailey's complaint for partition. Id. at 39-66. On March 25, 2008, the trial court issued a ruling granting Dailey's partition petition; however, that order failed to appoint any commissioners or set an attorney fee amount. Thus, on July 24, 2008, the trial court issued an "Amended Judgment Order on Partition of Real Estate," granting Dailey's petition for partition and

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clarifying that Dailey, Tucker, and Aichele were each entitled to a one-third share in the five properties, including the Bacon Street and Raymond Street properties. Id. at 31-34. Within that same amended judgment, the trial court also appointed three commissioners to meet and report regarding the appropriate partition, warned that sale would result if their report indicated that partition could not occur without damage to the owners, and denied Dailey's request for attorney fees. Id. at 33-34. On August 11, 2008, the trial court held a hearing. The resulting jacket entry reads: Parties in person & by counsel. Parties stipulate that property [cannot] be partitioned and that all properties should be sold and proceeds of property except [Bacon Street and Raymond Street], shall be distributed between the parties. Defendant granted leave to appeal the court decision to partition [Bacon Street and Raymond Street]. Witness sworn evidence heard. Cause continued. Set for hearing on appointment of receiver for 102108 at 9AM, full day (4th choice jury). Id. at 22. In a September 18, 2008 "Judgment of Partition," the trial court noted the parties' decision to dispense with the report, acknowledged that the five parcels could not be divided without damage to the owners, cited the July 24, 2008 "interlocutory Amended Judgment Order on Partition of Real Estate," and appointed three commissioners to conduct the sale of the five properties. Id. at 25-29. The trial court further stated that by "entering into this agreement, the Court finds that [Appellents] have not waived their right to appeal either this Judgment of Partition or the Court's interlocutory order of July 24, 2008 entitled Amended Judgment Order regarding the partition and sale of the parcels identified as [Bacon Street and

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Raymond Street]." Id. at 28. The trial court reiterated that the "Judgment Order shall be a final, appealable order respecting [Dailey's] claim for partition" of the real estate. Id. at 29. On October 7, 2008, Appellants filed a notice of appeal. On December 31, 2008, Appellants filed their appellants' brief. Dailey requested and received an extension for the filing of her appellee's brief. On February 16, 2009, Dailey filed her appellee's brief, an appellee's appendix, a motion to dismiss the appeal, and a motion for attorneys' fees. Appellants requested an extension to respond to the two motions and to file a reply brief. We granted an extension to respond to the motion to dismiss and held the other two extension requests in abeyance until the dismissal issue was resolved. On March 13, 2009, Appellants filed a response to and motion to strike portions of Dailey's motion to dismiss appeal. Ten days later, Dailey filed a response to Appellants' motion to strike portions of Dailey's motion to dismiss. On March 25, 2009, we issued an order denying Dailey's motion to dismiss appeal and denying Appellants' motion to strike portions of Dailey's motion to dismiss appeal. On April 9, 2009, Appellants filed their reply brief and a response to Dailey's motion for attorneys' fees. Discussion and Decision I. Timeliness of Appeal Dailey contends that Appellants' October 7, 2008 notice of appeal was untimely. She asserts that Appellants should have appealed the March 25, 2008 order, the July 24, 2008 order, and/or the August 11, 2008 jacket entry. She made this same argument in her motion to dismiss the appeal. We denied that motion.

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Generally speaking, a partition proceeding is an equitable one, in which the court has great flexibility in fashioning relief for the parties. Willett v. Clark, 542 N.E.2d 1354, 1358 (Ind. Ct. App. 1989). Extensive statutory procedures have been designed to protect the rights of all parties to a partition action. Hay v. Hay, 885 N.E.2d 21, 24 (Ind. Ct. App. 2008); Ind. Code

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