Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 1 of 18

MEMORANDUM DECISION

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.

APPELLANT PRO SE

Lawrence T. Newman

Bradenton, Florida

ATTORNEYS FOR APPELLEE

Robert W. York

Robert W. York & Associates

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Estate of Al Katz, 

Deceased

Lawrence T. Newman,

Appellant,

v.

Robert W. York, as Personal 

Representative; Internal Revenue 

Service; and, State of Indiana,

Appellees.

December 31, 2018

Court of Appeals Case No.

18A-ES-1721

Appeal from the Marion Superior 

Court

The Honorable James A. Joven, 

Special Judge

Trial Court Cause No.

49D13-1009-ES-40244

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 2 of 18

[1] Lawrence T. Newman (“Newman”) appeals the trial court’s June 12, 2018 

order regarding the sale of certain property belonging to the Estate of Al Katz. 

We affirm and remand. 

Facts and Procedural History

[2] The Last Will and Testament of Al Katz nominated and appointed his son, 

Louis Howard Katz, as his personal representative. Katz’s will also stated: 

“Because of the estrangement which has developed between my daughter, 

Beverly Rochelle Newman, and me, and not for absence of love for her, I 

intentionally leave her nothing under this Last Will and Testament.” Id. at 3. 

[3] After Katz’s death in 2010, the trial court appointed Beverly Newman 

(“Beverly”), Newman’s wife, as personal representative. In October 2010, 

Newman filed an appearance for Beverly. On December 20, 2011, the Indiana 

Supreme Court suspended Newman for a period of at least eighteen months 

and required him to go through the reinstatement process before resuming 

practice.1 See In re Newman, 958 N.E.2d 792, 800 (Ind. 2011). On January 25, 

2012, Newman filed a motion to withdraw appearance, and Attorney Robert

Zaban filed an appearance for Beverly. On February 3, 2012, the court granted 

Newman leave to withdraw as counsel for Beverly. 

 

1 As of December 18, 2018, the Indiana Roll of Attorneys lists Newman’s status as suspended.
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 3 of 18

[4] In May 2013, Newman filed a motion for reimbursement of administrative 

expenses related to the Estate.2 He asserted that he paid most of the 

administrative expenses including utilities, property taxes, and legal expenses, 

and requested the court to enter an order directing the Estate to reimburse him 

in the amount of $42,284.54. Attorney Zaban filed a response in which he 

detailed the actions of Newman and Beverly and asserted that “waste and 

jeopardy of the Florida real property of this supervised estate in [sic] ongoing 

and accelerating.” Appellee’s Appendix Volume II at 10. On May 29, 2013, 

the court granted Attorney Zaban’s motion to withdraw. 

[5] On August 28, 2013, October 9, 2013, and March 19, 2014, Newman filed 

motions for reimbursement of payment of administrative expenses. On May 7, 

2014, the court entered a Rule to Show Cause Why Beverly Should Not Be 

Removed as Personal Representative for the Estate, which stated in part that 

Beverly had filed a claim against the Estate for services provided to the 

decedent during his lifetime in the amount of $233,725; Newman had filed a 

claim for services provided to the decedent during his life in the amount of 

$43,400 and had filed a claim in the amount of $50,836 against the Estate for 

expenses arising from the administration of the Estate; Newman and Beverly 

 

2 Newman asserts that he filed his “Verified Motion for Reimbursement of Payment of Al Katz Estate 

Administrative Expenses” on April 27, 2013. Appellant’s Brief at 8. He cites to a copy of the document 

which is dated April 27, 2013, but does not contain a file stamp. The chronological case summary includes 

an entry dated May 20, 2013, which states: “Document Filed[.] File Stamp: 05/15/2013[.] Verified Motion by 

Lawrence T Newman, Pro Se for Reimbursement of Payment of Al Katz Estate Administrative Expenses.” Appellant’s 

Appendix Volume II at 13 (capitalization omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 4 of 18

reside at the former residence of the decedent in Florida and said residence 

constitutes a significant asset of the Estate; Beverly had not paid homeowner 

fees for the Florida residence, which was the subject of a foreclosure action as a

result; and Beverly had not filed a Final Accounting in violation of Probate 

Local Rule 411. On June 2, 2014, Beverly filed a response to the rule to show 

cause. 

[6] On January 12, 2015, the court entered an order removing Beverly as the 

personal representative. The order also vacated certain allowances by Beverly 

of Newman’s motions for reimbursement of expenses, ordered that Beverly 

shall not pay any amount of the claims of her or Newman against the Estate 

including for reimbursement of Estate expenses, and appointed Attorney Robert 

W. York to serve as the successor personal representative of the Estate. On 

February 11, 2015, Beverly filed a motion to correct errors challenging the 

removal order and asserting in part that she and Newman had a long-standing 

adverse relationship with Attorney York. On May 12, 2015, the court denied 

the motion. On June 11, 2015, Beverly filed a notice of appeal of the January 

12, 2015 order under Appellate Cause No. 49A02-1506-ES-642 (“Cause No. 

642”). On August 21, 2015, this Court dismissed Beverly’s appeal with 

prejudice. On November 10, 2015, this Court denied Beverly’s petition for 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 5 of 18

rehearing, and the Indiana Supreme Court denied Beverly’s petition for 

transfer.3 

[7] On September 28, 2015, Attorney York as the personal representative of the 

Estate filed a status report and petition for issuance of orders regarding property 

of the Estate. On October 19, 2015, Newman and Beverly filed a response 

requesting in part that the court:

(1) immediately approve the Estate administrative expense 

reimbursement motions respectively filed by [Newman] and 

[Beverly]; (2) issue an order compelling Robert York to use his 

best efforts to obtain the written agreement of the Internal 

Revenue Service granting priority of the Estate’s administrative 

expenses claimed by [Newman] and by [Beverly] over the IRS’[s] 

claim for unpaid income taxes of Al Katz, penalties, and interest 

and to obtain the written agreement of the IRS to remove its 

claim and lien from Al Katz’s Indianapolis home; and (3) for all 

other relief just and proper in the Premises.

Id. at 96. 

[8] On December 8, 2015, the court ordered that Attorney York as the personal 

representative take all reasonable action required to close the sale of the Estate’s 

real property located at 4727 N. Ritter Avenue in Indianapolis (the “Ritter 

Property”) to Matthew G. Evans for the gross purchase price of $57,000 in 

cash. 

 

3 The Indiana Supreme Court’s order denying transfer listed Beverly and Newman as appellants. 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 6 of 18

[9] On January 25, 2016, Newman filed a Verified Petition for Payment of Estate 

Attorney Fees. On March 2, 2016, the court entered a Rule to Appear and 

Show Cause Regarding December 9, 2015 Order Pertaining to Estate’s Ritter 

Property in which the court ordered in part that Newman shall “show cause 

why he should not be attached and punished for indirect contempt of Court for 

his December 29, 2015 instituted resistance, hindrance and delay in the carrying 

out of or putting into effect the lawful December 9, 2015 Order of this Court 

which Ordered the sale of the Estate’s Ritter Property in the manner required by 

that Order.”4 Id. at 127. On May 9, 2016, Newman filed a Notice of Court of 

Transfer of Interest of Administrative Expense Claim and Motion for Approval 

and Payment of Claim. 

[10] On June 21, 2017, the court entered an Order of Instructions as to the Ritter 

Property ordering in part that Attorney York as the personal representative 

notify counsel for the United States of America, the Indiana Department of 

Revenue (the “IDOR”), the Office of the Marion County Auditor, and Evans, 

that he is prepared to facilitate the sale or transfer of the Ritter Property and 

that Evans and those taxing authorities shall work together to agreeably resolve 

all liens and claims against the Ritter Property.5 

 

4

It appears that the trial court intended to refer to the December 8, 2015 order.

5 The chronological case summary indicates numerous filings and multiple orders were entered between 

January 25, 2016, and June 21, 2017. The record does not include copies of all of the court’s orders.
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 7 of 18

[11] On August 4, 2017, the court entered an Order Directing Sale of Ritter Avenue 

Property and Distribution of Proceeds which states in part:

11. On March 2, 2016, the Court issued its Rule to Show Cause 

requiring [Beverly] and [Newman] to appear and show cause as 

to why they each[] should not be found in indirect contempt of 

court for their resistance, hindrance, and delay in the carrying out 

of or putting into effect the December 8, 2015, Order of this 

Court. The Show Cause Order also relieved the Personal 

Representative from selling the Ritter Avenue Property until 

matters pertaining to that Rule to Show Cause were fully 

resolved and the Court issued subsequent instructions to the 

Personal Representative.

* * * * *

13. [Newman] had also previously asserted (and continues to 

assert) claims against the Estate totaling more than $50,000.00 

purportedly expended on behalf of the Estate. With respect to 

[Newman’s] claims for administrative expenses, the Court, in its 

Removal Order, recognized that the Estate had de minimis assets 

and that [Newman] did not assert any such claims until 16 

months after he withdrew as [Beverly’s] attorney. The Court 

determined that [Newman’s] claims constituted an unlawful 

conflict of interest, vacated [Beverly’s] allowances of [Newman’s] 

claims, and specifically directed [Beverly] not to pay those claims.

14. The Court has repeatedly denied [Newman’s] claims for 

administrative expenses. Time and again, [Newman] has 

(unsuccessfully) attempted to have the Court recognize that his 

administrative claims were still in existence. During the July 21, 

2017, hearing, the Court restated from the bench that the Court 

had long ago denied [Newman’s] purported claims against the 

Estate.

15. Although the Indiana Probate Code generally provides that 

claims for expenses of administration take priority over claims for 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 8 of 18

taxes, the filing of the Federal Tax Lien against the Ritter 

Avenue Property invoked the following:

Nothing in this section shall affect or prevent any action or 

proceeding to enforce any mortgage, pledge, or other lien 

upon property of the estate.

Ind. Code § 29-1-14-1(e). Moreover, specific liens take 

precedence over expenses of administration, the payment of the 

reasonable expenses of decedent’s funeral, and the reasonable 

expenses of decedent’s last sickness. Estate of Lammerts v. Heritage 

Bank & Trust Co., 663 N.E.2d 1174, 1176-77 (Ind. Ct. App. 

1996)[, trans. denied].

16. Although the Court denied [Newman’s] claims several years 

ago, even if they continued to exist as administrative claims, the 

liens of the tax authorities on the Ritter Avenue Property take 

precedence over any such claims.

17. On October 21, 2016, a tax lien certificate for the Ritter 

Avenue Property was sold at a tax sale because property taxes 

had been unpaid. On or before October 21, 2017, at least 

$9,390.97 (the balance due as of June 14, 2017), plus accruing 

interest, must be paid to the Treasurer or a Tax Deed will be 

issued to the tax sale purchaser, and the Estate will no longer be 

able to sell the Ritter Avenue Property. 

18. Time is of the essence in this matter, as the redemption date 

for the tax lien certificate is approaching.

19. The current balance in the Estate’s checking account is 

$1,913.91, and the Estate has insufficient resources to pay the 

amount required to redeem the Ritter Avenue Property from the 

tax sale.

* * * * *

29. At the hearing on July 21, 2017, [Newman] was the sole 

challenger to the sale of the Ritter Avenue Property. [Newman’s] 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 9 of 18

only ground to challenge the sale was that he had not been paid 

what he asserted were his claims for administrative expenses.

30. The Court again rejects [Newman’s] assertions that he has 

pending claims against the Estate.

* * * * *

36. This Order pertains solely to the sale of the Estate’s Ritter 

Avenue Property, the distribution of proceeds from such sale, 

and the claims and liens asserted. Other matters pertaining to the 

administration of the Estate remain pending.

IT IS THEREFORE ORDERED, ADJUDGED AND 

DECREED that Robert W. York, as the Personal 

Representative, and all persons with a direct interest in the Ritter 

Avenue Property, shall forthwith take all reasonable actions 

required to close the sale of the Ritter Avenue Property to 

Matthew G. Evans for the gross purchase price of $57,000.00 . . . 

.

* * * * *

IT IS FURTHER ORDERED, ADJUDGED AND DECREED 

that the sale of the Ritter Avenue Property and distribution of the 

sale’s proceeds, as hereinabove Ordered, shall not be stayed by 

any appeal or other action to contest this Order, unless the 

person or entity seeking such appeal shall, within 15 days after 

the entry of this Order, file with this Court a motion for stay 

accompanied by a bond (provided for by Indiana Rule of Trial 

Procedure 62) in the amount sufficient to secure any amount 

recovered for the loss or detention of the property; to pay all 

obligations of the Estate of Al Katz to the extent that the other 

property of the Estate is insufficient to pay those obligations; the 

costs of the action and costs on appeal, including any attorney 

fees incurred by the Personal Representative in defending the 

appeal; interest; and any other amounts as justice requires. This 

potential appeal bond amount is not yet determined and is 

subject to this Court’s jurisdiction, per Trial Rule 62. 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 10 of 18

Id. at 176-183. On August 9, 2017, the court entered and order setting the 

appeal bond at $125,000. 

[12] On April 11, 2017, Attorney York filed “Personal Representative’s Application 

for Temporary Restraining Order and for Further Injunctive Relief Regarding 

Florida Lawsuit.”6 Appellant’s Appendix Volume II at 54. On August 28, 

2017, the court entered an Order Granting Injunctive Relief which states in 

part:

B. THE NEWMANS’ CLAIMS AGAINST THE ESTATE

6. On January 6, 2011, [Newman] filed Claim No. 2 against the 

Estate in the amount of $11,600.51. On February 1, 2011, 

[Beverly] filed Claim No. 3 against the Estate in the amount of 

$233,725.00, for personal services alleged to have been provided 

to Katz. On February 2, 2011, [Newman] filed Claim No. 4 

against the Estate for personal services alleged to have been 

provided to Katz, valued at $43,400.00.

* * * * *

8. On March 14, 2011, this Court dismissed Claim No. 2. On 

March 21, 2011, the Court dismissed Claims No. 3 and 4.

9. On April 12, 2011, [Beverly], in her former capacity as 

personal representative of the Estate, filed a “Claim Allowance 

Form” that purported to allow the Newmans’ separate Claims 2, 

3, and 4 against the Estate, despite the Court’s previous dismissal 

of those Claims. Also on April 12, 2011, [Beverly] filed her 

“Verified Motion To Vacate Orders Dismissing Claims 002, 003, 

and 004 And For Leave to File Claim Allowance Form.” A 

 

6 The record does not contain a copy of the April 11, 2017 filing.
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 11 of 18

review of the Record of Proceedings in this Estate does not show 

any ruling on [Beverly’s] April 11 motion to vacate the orders 

dismissing the Newmans’ claims.

10. The Record suggests, however, that the Estate did not pay 

the Newmans’ claims. Following the Court’s dismissal of his 

claims, [Newman] filed four separate motions seeking payment 

from the Estate for utility, property tax, other real property costs; 

legal expenses and costs incurred with respect to multiple 

damages lawsuits the Estate initiated in Florida; costs incurred 

with respect to the defense of a foreclosure action filed against Al 

Katz’s Florida condominium by his condominium association; 

and other expenses [Newman] asserted that he incurred to 

administer the Estate.

11. While his Claim No. 4, filed in 2011, sought payment of 

$43,400.00 from the Estate, on April 27, 2013, [Newman] sought 

payment of only $42,284.54. On August 28, 2013, [Newman] 

again sought payment of $42,284.54, plus an additional 

$2,054.11 for amounts set forth on Exhibit 1 of his August 28 

motion, for a total of $44,338.65. On October 9, 2013, 

[Newman’s] claimed payment due from the Estate rose to 

$45,414.13. On March 19, 2014, [Newman] sought $50,836.81.

12. On April 25, 2014, [Beverly], in her former capacity as 

personal representative of the Estate, filed her “Personal 

Representative’s Approval Of [Newman’s] Motions For 

Reimbursement Of Estate Expenses” (the “Approval”). On May 

1, 2014, [Beverly] filed her “Personal Representative’s Verified 

Approval of [Newman’s] Motions For Reimbursement Of Estate 

Expenses” (the “Second Approval”). As with the Claim 

Allowance Form, [Beverly] filed the Approval and the Second 

Approval despite the Court’s previous dismissal of [Newman’s] 

claims.

Appellee’s Appendix Volume II at 192-193. The court also discussed the 

lawsuit filed by the Newmans against Attorney York in Florida. The court 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 12 of 18

determined that an injunction preventing the Newmans from further 

prosecuting their lawsuit against Attorney York was appropriate, that the 

Newmans’ lawsuit frustrated policies of the court and was vexatious and 

oppressive, and that injunctive relief would prevent multiplicity of lawsuits. On 

September 29, 2017, the court denied Newman’s motion to correct errors 

regarding the injunction. 

[13] On October 22, 2017, Newman filed a notice of appeal of the August 4, 2017, 

and August 9, 2017 orders under Appellate Cause Number 49A05-1710-ES2475 (“Cause No. 2475”). That same day, Newman filed a notice of appeal of 

the court’s August 28, 2017, and September 29, 2017 orders under Cause No. 

2475. On November 27, 2017, Attorney York filed a verified motion to dismiss 

the appeal as untimely. That same day, Newman filed a Motion for Two 

Separate Appeals which stated in part that “[s]aid Appeal is substantially based 

upon the trial court’s failure and refusal to hear and determine [his] multiple 

motions for reimbursement of Estate administrative expenses prior to the 

distribution of the subject sale proceeds, such that [he] is prevented from 

sharing in said sales proceeds.” November 27, 2017 Motion for Two Separate 

Appeals at 1-2. 

[14] On January 4, 2018, this Court entered an order which granted in part and 

denied in part Attorney York’s motion to dismiss. Specifically, this Court 

ordered that Newman’s appeal of the trial court’s August 4, 2017, and August 

9, 2017 orders be dismissed with prejudice and denied the motion to dismiss 

Newman’s appeal of the trial court’s August 28, 2017 order. This Court’s order 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 13 of 18

also stated that Newman’s Motion for Two Separate Appeals was denied as 

moot because Newman’s appeal of the trial court’s August 4, 2017, and August 

9, 2017 orders had been dismissed. 

[15] On June 6, 2018, Attorney York filed a second verified motion to dismiss the 

appeal.7 On September 12, 2018, this Court granted Attorney York’s motion to 

dismiss the appeal, ordered the appeal dismissed with prejudice, granted 

Attorney York’s request for appellate attorney fees, and remanded to the trial 

court to calculate the amount of appellate attorney fees. On October 12, 2018, 

Newman filed a petition for rehearing. On November 19, 2018, this Court 

denied Newman’s petition for rehearing. 

[16] Meanwhile, on December 18, 2017, the trial court entered Additional 

Instructions Regarding the Ritter Property which found that Evans indicated his 

unwillingness to move forward with the purchase of the property due to the 

property having an undisclosed in-ground septic system rather than a municipal 

sewer system. The court instructed the personal representative to begin 

investigating the current value of the property and obtain a new appraisal. 

 

7 Attorney York argued that: “1. [Newman’s] Appendix and Brief were untimely filed; 2. [Newman] commits 

bad faith in attempting to assert the existence of issues previously dismissed with prejudice by this Court; 3. 

[Newman’s] brief repeatedly violates the provisions of Ind. Appellate Rule 22(C) and Ind. Appellate Rule 46 

by failing to support his ‘fact’ statements with proper reference to his Appendix and by refusing to recite facts 

in accordance with the applicable standard of review[;] 4. [Newman] commits bad faith in attempting as a 

non-attorney to represent the interests of his wife, Beverly[;] 5. [Newman’s] brief is replete with hyperbolic 

and accusatory statements showing an inappropriate tone and lack of respect for the opposing party; and 6. 

[Newman’s] appellate materials are replete with redundant, immaterial, impertinent, scandalous or other 

inappropriate matter and fail to include necessary records.” June 2, 2018 Second Verified Motion to Dismiss 

Appeal at 1-2. 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 14 of 18

[17] On March 2, 2018, the court entered an Agreed Order Regarding Ritter 

Property which found that the purchase agreements and occupancy agreement 

between the Estate and Evans were vacated. On March 26, 2018, Newman 

filed an Objection to Donation or Discard of Al Katz’s Personal Property. On 

April 2, 2018, the trial court overruled Newman’s objection and ordered the 

personal representative to execute a listing agreement to place the Ritter 

Property on the market for sale at an initial listing price of $100,000. 

[18] On April 25, 2018, the court entered a Judgment Order Pertaining to Beverly’s 

Accounting, which ordered that “the December 16, 2017, ‘Second/Third Final 

Accounting of Dr. Beverly Newman’ is disapproved as to her administration of 

the Estate’s Ritter Avenue Property and personal property, and her improper 

expenditure of Estate assets.” Appellee’s Appendix Volume III at 74. The 

order also states in part:

25. The Court has issued multiple additional Orders pertaining 

to [Newman’s] administrative claims, including its August 4, 

2017 “Order Directing Sale of Ritter Avenue Property and 

Distribution of Proceeds,” finding that [Newman’s] said claims 

had “long ago” been denied by the Court. [Newman’s] 

attempted appeal of that Order was dismissed with prejudice by 

the Indiana Court of Appeals on January 5, 2018.

Id. at 65. The court ordered that Beverly be personally charged the sum of 

$53,362.36, and entered judgment for the Estate against her in that amount. 

[19] On June 12, 2018, the court entered an Agreed Order of Instructions as to Sale 

of Ritter Avenue Property, which instructed the personal representative to 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 15 of 18

accept the purchase offer of J & D Realty Services to purchase the Ritter 

Property for $62,000, close on the sale as soon as reasonably possible, and pay 

the normal closing costs expected to be approximately $7,809. The court 

ordered that the net sale proceeds be distributed with a total of $34,548.44 with 

interest paid to the United State Treasury, a total of $9,963.97 with interest paid 

to the State of Indiana, and the balance deposited into the Estate’s checking 

account. 

[20] On July 12, 2018, Newman filed a notice of appeal of the July 12, 2018 order 

and asserted that the appeal was from an interlocutory order taken as of right 

pursuant to Ind. Appellate Rule 14(A) or 14(D). 

Discussion

[21] Newman argues that Attorney York was wrongfully appointed because of his 

long-standing animus against him; that the trial court’s disparate treatment of

him and Attorney York evidence bias; the trial court’s determinations that his 

administrative expense claims were dismissed or denied are erroneous; and that 

his administrative expense claims have statutory priority over federal and state 

tax claims. 

[22] Attorney York as the personal representative argues that Newman’s appeal 

should be dismissed for: violation of the Appellate Rules; his bad faith attempts 

to assert issues involving Beverly’s 2015 motion to correct errors; his bad faith 

attempt to assert but not support claims of bias by the trial court; and his bad 

faith attempt to assert his previously dismissed with prejudice claims for 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 16 of 18

administrative expenses. Attorney York argues that Newman invited the error 

he now attempts to appeal and that the issues are moot because Newman 

“knew that the closing of the sale would occur soon after the June 12, 2018 Sale 

Order,” knew that “the proceeds of that sale would not be distributed to him,” 

and he “used the entire permitted 30-days to appeal that Order and did so 

without seeking a stay.” Appellee’s Brief at 36. Attorney York also asserts that 

he is entitled to appellate attorney fees based upon Newman’s wrongful conduct 

in this appeal.

8

 

[23] To the extent Newman argues that Attorney York was wrongfully appointed as 

the personal representative because of Attorney York’s long-standing animus 

against him, we observe that a similar argument was addressed by the trial 

court when it denied Beverly’s motion to correct error following the trial court’s 

order removing her as the personal representative. This Court dismissed that 

appeal with prejudice under Cause No. 642, denied rehearing, and the Indiana 

Supreme Court denied Beverly’s petition for transfer. We observe that 

Newman is appealing only the July 12, 2018 order. Accordingly, we do not 

address this issue. See Reiswerg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010)

 

8 On November 20, 2018, Newman filed a verified motion to strike Attorney York’s Appellee’s Brief. 

(Odyssey) By separate order, we deny Newman’s motion. In his brief, Attorney York argues that we should 

strike Newman’s brief because it includes hyperbolic and inappropriate language. We decline to strike 

Newman’s appellate brief.
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 17 of 18

(holding that the only issues presented in the appeal were those raised by the 

trial court’s order certified for interlocutory appeal).

[24] With respect to Newman’s argument that the trial court erred in determining 

that his administrative claims were dismissed or denied, Newman cites the 

court’s August 4, 2017 order in which the trial court stated that it had 

repeatedly denied Newman’s claims for administrative expenses. Newman also 

cites the trial court’s August 28, 2017 order in which the court mentioned it had 

previously dismissed his claims. However, Newman already sought an 

interlocutory appeal of these orders under Cause No. 2475 and the appeal was 

dismissed with prejudice. “It is generally recognized that a dismissal with 

prejudice is a dismissal on the merits.” In re Guardianship of Stalker, 953 N.E.2d 

1094, 1102 (Ind. Ct. App. 2011) (citing MBNA America Bank, N.A. v. Kay, 888 

N.E.2d 288, 292 (Ind. Ct. App. 2008)). As such it is conclusive of the rights of 

the parties and res judicata as to the questions which might have been litigated. 

Id. As we dismissed Newman’s appeal with prejudice, we do not disturb the 

trial court’s finding that it had denied Newman’s claims for administrative 

expenses, and this issue is foreclosed for our review. 

[25] With respect to Attorney York’s request for attorney fees, Ind. Appellate Rule 

66(E) provides that this Court “may assess damages if an appeal, petition, or

motion, or response, is frivolous or in bad faith. Damages shall be in the 

Court’s discretion and may include attorneys’ fees.” Our discretion to award 

attorney fees under Ind. Appellate Rule 66(E) is limited to instances when “an 

appeal is permeated with meritlessness, bad faith, frivolity, harassment, 
Court of Appeals of Indiana | Memorandum Decision 18A-ES-1721 | December 31, 2018 Page 18 of 18

vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 

(Ind. Ct. App. 2003). To prevail on a substantive bad faith claim, a party must 

show that the appellant’s contentions and arguments are utterly devoid of all 

plausibility. Id. Procedural bad faith occurs when a party flagrantly disregards 

the form and content requirements of the rules of appellate procedure, omits 

and misstates relevant facts appearing in the record, and files briefs written in a 

manner calculated to require the maximum expenditure of time both by the 

opposing party and the reviewing court. Id. at 346-347. In light of Newman’s 

appellate briefs and arguments, we conclude that Attorney York as personal 

representative is entitled to appellate attorney fees, and we remand to the trial 

court to determine the proper amount of the appellate fee award.

Conclusion

[26] For the foregoing reasons, we affirm the trial court’s order, grant Attorney 

York’s request for appellate attorney fees, and remand for a determination of 

Attorney York’s reasonable appellate attorney fees.

[27] Affirmed and remanded.

Riley, J., and Bradford, J., concur.