Court of Appeals of Indiana | Opinion 26A01-1703-GU-588 | November 8, 2017 Page 1 of 30

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

IN THE

COURT OF APPEALS OF INDIANA

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.

November 8, 2017

Court of Appeals Case No.

26A01-1703-GU-588

Appeal from the Gibson Circuit 

Court

The Honorable S. Brent Almon, 

Special Judge

Trial Court Cause No.

26C01-1408-GU-21
Court of Appeals of Indiana | Opinion 26A01-1703-GU-588 | November 8, 2017 Page 2 of 30

Ziemer, Stayman, Weitzel & 

Shoulders, LLP and Kolb 

Roellgen & Kirchoff, LLP,

Appellees-Petitioners.

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 
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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 
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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 
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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 
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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 
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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 
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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 to provide 

self-care.

2. The welfare of Darvin would be best served by limiting the 

scope of the guardianship pursuant to Indiana Code section 

29-3-5-3(b) in order to encourage development of Darvin’s 

self-improvement, self-reliance, and independence; and 

contribute to Darvin’s living as normal a life as Darvin’s 

condition and circumstances permit without psychological or 

physical harm to Darvin.

3. Darvin’s son, [Raymond], is hereby replaced as guardian over 

Darvin’s estate by German American Bank (the “Bank 

Trustee”) effective immediately subject to the requirement for 

[Raymond] to provide the [c]ourt with a final accounting of 
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the guardianship estate in accordance with the Indiana Code 

section 29-3-9-6. . . . 

* * * *

5. The [c]ourt hereby appoints the Bank Trustee to serve as 

guardian over Darvin’s estate. The Bank Trustee shall allow 

Darvin to provide input into the business and financial decisions 

of the estate. The Bank Trustee shall allow Darvin to review his 

bank and other account statements and business records on a 

monthly basis and upon reasonable request by Darvin. The Bank 

Trustee shall also allow [Raymond] and Mona to review the 

same statements and records on a quarterly basis. No counsel of 

record in this matter will represent the Bank Trustee in any 

representative capacity involving these parties. The Bank Trustee 

will distribute to Darvin $2,000 per month for his personal use 

with the manner of distribution thereof to be determined in the 

Bank Trustee’s discretion.

* * * *

8. [Raymond] and Darvin’s daughter, Mona, are hereby 

appointed co-guardians over Darvin’s person with their power 

limited to the ability to consent to medical or other professional 

care and treatment for Darvin’s health and welfare. [Raymond] 

and Mona shall allow Darvin to provide input into decisions 

involving his medical and other professional care and treatment.

* * * *

11. Darvin shall have unrestricted access to visitors of his 

choosing unless an order of the court is issued to the contrary 

after Darvin is given notice and an opportunity to be heard. 
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Family members shall be allowed reasonable private visitation 

with Darvin.

* * * *

15. Darvin shall have unrestricted access to counsel of his 

choosing during the pendency of the guardianship.

16. If Darvin desires to make any change to this trust or estate 

plan(s) or to make an election under Virginia Lamey’s Trust, a 

hearing must first be held in front of Judge Meade in the Gibson 

Circuit Court and be subject to approval by the [c]ourt. Such 

hearing will be given docket priority after notice to counsel for all 

parties. This provision does not limit the Bank Trustee’s power 

under Indiana Code section 23-3-9-4.5.

(Appellant’s App. Vol. III, pp. 25-28). 

[13] On April 29, 2016, Raymond filed a motion to intervene in the guardianship 

proceedings in his capacity as the Successor-Trustee of the Revocable 

Declaration of Trust Agreement of Darvin H. Lamey, dated September 3, 1997 

(Darvin’s Trust), for the purpose of collaborating with the guardian of Darvin’s 

estate, German American Bank (GAB), to transfer certain parcels of real estate 

and items of personal property into Darvin’s Trust, consistent with Darvin’s 

then-existing estate plan, and in order to avoid the probate process. At the 

same time, Raymond, in his capacity of Successor-Trustee, filed a petition for 

the execution of the estate plan on behalf of Darvin, seeking to execute the 

estate plan and to request a hearing pursuant to Paragraph 16 of the Agreed 

Order. The trial court set the matter for a hearing on May 6, 2016.
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[14] On May 5, 2016, after meeting with Darvin, ZSWS met with Kolb to explore a 

possible consultation and evaluation of Darvin in order to determine his 

testamentary capacity, and to prepare new estate planning documents according 

to Darvin’s wishes. During the scheduled hearing of May 6, 2016, ZSWS 

moved for a continuance and advised the trial court that Darvin intended to 

make changes to his estate plan and would file a petition with the court shortly. 

The trial court granted Raymond’s motion to intervene, took Raymond’s estate 

plan petition under advisement, and reaffirmed the scheduling of a contested 

hearing on May 20, 2016, on all remaining pending matters. On May 13 and 

16, 2016, respectively, Kolb consulted with Darvin, after which Kolb concluded 

that Darvin possessed testamentary capacity and that Darvin intended to 

include certain gifts in a revised estate plan. On May 16, 2016, ZSWS filed the 

Darvin estate plan petition, advising the trial court that Darvin anticipated to 

amend his estate plan and to exercise his power of appointment under the 

Virginia Lamey Trust. The petition sought an expedited hearing with docket 

priority on the issue of testamentary capacity pursuant to Paragraph 16 of the 

Agreed Order, and as such, requested the trial court to hear the petition at the 

already scheduled hearing of May 20, 2016. Raymond objected to the 

expedited hearing and requested additional time to address the issue of Darvin’s 

testamentary capacity. 

[15] During the proceedings on May 20, 2016, the trial court denied Darvin’s 

request for an expedited hearing and set the matter for a hearing on June 21, 

2016. However, the trial court granted the GAL’s request that any proposed 
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changes to Darvin’s estate plan be disclosed to the GAL so that she could 

“determine if the changes are in Darvin’s best interest or if Darvin [] has been 

unduly influenced to make said changes.” (Appellant’s App. Vol. III, p. 50). 

The trial court ordered Kolb to provide the GAL with a copy of the current 

draft of Darvin’s revised estate plan, over Darvin’s objection. 

[16] Meanwhile, both parties engaged expert witnesses to evaluate Darvin’s 

testamentary capacity. Raymond engaged Jeffrey Gray, Ph.D., a 

neuropsychologist, and Juan Cabrera, M.D., while ZSWS retained Nicole 

Werner, Ph.D., a forensic psychologist, and Alan Felthous, M.D. (Dr. 

Felthous), a forensic psychiatrist, both located in St. Louis, Missouri. Although 

initially Raymond attempted to prevent Darvin from leaving the nursing home 

to travel to St. Louis for evaluation with ZSWS’s experts, after consultation 

between the parties and Judge Meade on June 8, 2017, an agreement was 

reached and, that same day, Darvin met with Dr. Felthous. On June 13, 2016, 

Darvin was deposed. Based on Darvin’s testimony at the deposition, the GAL

expressed her “great concern about [Darvin’s] testamentary capacity and 

possibility of undue influence to Darvin’s counsel”:

1. [Darvin] stated that he was unsure and need it proven to him 

that the Virginia Lamey Trust even exists. I am baffled that a 

motion for power of appointment under the Virginia Lamey 

Trust could be requested when the person seeking such 

appointment does not know if the Trust exists.

2. [Darvin] had no recollection of [Kolb], meeting with [Kolb] 

or having [Kolb] prepare the estate planning documents. This 
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was in spike [sic] of you leading the witness by asking, 

“Darvin, don’t you recall going to Vincennes to meet with an 

attorney to do your estate planning?” [Darvin’s] response 

was, “No.”

3. [Darvin] testified that he did not know what changes he 

wanted to make to his Will and/or Trust, that he would have 

to think it over and would need to talk to [Darvin’s Friend] as 

to what she wanted from his estate. This is a far cry from the 

documents provided by [Kolb] at the last hearing. At the last 

hearing, you requested that the court allow [Darvin] to 

execute the documents prepared by [Kolb] in case the court 

ruled in his favor on his testamentary capacity. This morning, 

you advised that [Kolb’s] documents were only a draft. I am 

confused by the representations at our last hearing and the 

representations in our telephone conversation. The two 

positions are wholly inconsistent.

(Appellant’s App. Vol. III, pp. 99-100). Based on these apprehensions, the 

GAL advised the parties that she would “oppose any estate planning on 

[Darvin’s] part” as well as “oppose any attorney’s fees that are incurred after 

[Darvin’s] deposition.” (Appellant’s App. Vol. III, p. 100). 

[17] On June 30, 2016, after the June 21st hearing was continued, Darvin filed an 

emergency motion, requesting to set aside Paragraph 16 of the Agreed Order

which would enable him to proceed with executing estate planning documents 

because his health continued to decline. The trial court did not set a hearing on 

Darvin’s motion. On July 15, 2016, Kolb met with Darvin to review and revise 

his estate planning documents. Darvin executed a Superseding Will and 
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Superseding Trust Amendment, which diverted benefits from his family to 

various philanthropic institutions.1

 

[18] On August 29 and 30, 2016, the trial court conducted a hearing on Darvin’s 

testamentary capacity, during which both Dr. Werner and Dr. Felthous testified 

over the co-guardians’ objections. On both days, Kolb waited to testify, but was 

never called to the stand. Darvin did not attend the hearing due to his 

deteriorating health. At the close of the second day, the hearing was recessed 

and continued to September 23, 2016, without the trial court making a 

determination on Darvin’s testamentary capacity, or a decision on the estate 

planning petitions or the application of Paragraph 16 of the Agreed Order. 

Darvin passed away on September 1, 2016.

[19] On September 8, 2016, ZSWS filed its fee petition,2 seeking payment from the 

Guardianship Estate of those fees and expenses involved in establishing 

Darvin’s testamentary capacity: $95,693.25 in attorneys’ fees, $960.78 in 

expenses, and $14,006.42 in advanced costs, as well as a $10,575.00 invoice 

from Dr. Werner. The following day, Kolb submitted its fee petition in the 

amount of $15,959.80. On October 18, 2016, over Raymond’s and Mona’s 

objections, the trial court ordered GAB to pay ZSWS $86,718.25 in attorneys’ 

 

1 A related will contest is pending in the Gibson Circuit Court.

2 This is ZSWS’s second fee petition in the Guardianship Estate. Its first fee petition, which is not part of this 

appeal and which covered its fees to contest Raymond’s guardianship over Darvin, were ordered to be paid 

in full by the trial court on March 8, 2016. See Appellee’s App. Vol. III, p. 79.
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fees, $778.26 in expenses, and $14,006.24 in advanced costs. The trial court 

also ordered GAB to pay Dr. Werner’s invoice in full. 

[20] Subsequently, on October 7, 2016, ZSWS filed its verified petition for payment 

of Dr. Felthous’ incurred fees, in the sum of $42,882.96. It also filed a motion 

to correct errors, seeking to collect the unpaid $8,975.00 in fees and $182.50 in 

expenses from its original fee petition. After the original trial judge recused 

himself, the special judge set the motion to correct error, the Felthous fee 

petition and Kolb’s fee petition for hearing on February 20, 2017. After a 

contested hearing, the trial court issued its Findings of Fact and Conclusions

regarding Certain Claims,

3 granting ZSWS’s fee petition and ordering the 

payment of Dr. Felthous’ invoice and the partial payment of Kolb’s fee petition.

[21] Appellants now appeal. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

[22] For a thorough understanding and a proper framework to situate these 

proceedings, it merits reiterating that at this point in time, the guardianship 

proceedings—even as the protected person has passed away—are conducted 

side-by-side with the estate proceedings. Although legally, the guardianship 

terminates upon death and an estate is opened, due to the current dispute, the 

 

3 We would be remiss in not mentioning the detailed and thorough nature of the special judge’s findings of 

fact and conclusions of law in this matter. 
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guardianship has yet to close and the case at bar is posited squarely within its 

province. 

[23] However, before we can address the merits of Appellants’ appeal, we must 

evaluate the threshold jurisdictional issues advanced by ZSWS and Kolb. 

Advocating that Appellants have neither standing nor the right to bring this 

interlocutory appeal, ZSWS and Kolb urge this court to dismiss this cause.

I. Standing

[24] Contending that Appellants have no standing to pursue this appeal either as the 

co-guardians of Darvin’s person or as the co-personal representatives of

Darvin’s estate, Kolb claims that Appellants cannot contest the trial court’s 

order on attorney fees and the award on expert witness fees and invites us to 

dismiss this appeal. 

[25] Standing is a fundamental, threshold, constitutional issue that must be 

addressed by this, or any, court to determine if it should exercise jurisdiction in 

the particular case before it. Alexander v. PSB Lending Corp., 800 N.E.2d 984, 

989 (Ind. Ct. App. 2003), trans. denied. To have standing, a party’s “interest 

‘must be a present, substantial interest, as distinguished from a mere expectancy 

or future contingency interest.’” Inlow v. Henderson, daily, Withrow & DeVoe, 787 

N.E.2d 385, 395 (Ind. Ct. App. 2003), reh’g denied, trans. denied (citing 59 Am. 

Jur. 2d Parties § 37, at 442 (2002)).
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[26] Darvin died on September 1, 2016. Upon his passing, the guardianship ended 

and an estate was opened. At that point, Raymond and Mona became the copersonal representatives of Darvin’s estate and received the remaining property 

of the guardianship into the estate. See I.C. § 29-3-12-1(e) (“When a 

guardianship terminates by reason of the death of the protected person, the 

powers of the guardian cease, except that the guardian may pay the expenses of 

administration that are approved by the court . . . and may deliver the

remaining property for which the guardian is responsible to the protected 

person’s personal representative.”). On December 23, 2016, GAB filed its final 

accounting to wind down the guardianship estate. See I.C. § 29-3-9-6(a) 

(explains the duty of the guardian to file a written verified account of the 

guardian’s administration after the termination of the appointment). While 

GAB was compiling its final accounting and prior to filing its report with the 

trial court, ZSWS and Kolb submitted petitions for the payment of their fees 

and the payment of Dr. Felthous’ expert witness fee with the guardianship 

estate. On January 18, 2017, Appellants, as co-personal representatives of 

Darvin’s estate, filed their appearance in the guardianship proceedings and 

objected to the payment of the respective fee petitions. When GAB filed its 

accounting and attempted to close the guardianship estate, ZSWS and Kolb 

objected on the basis that the guardianship could not be closed while the 

remaining fee claims were outstanding. On January 20, 2017, all parties, 

including Appellants in their capacity as co-personal representatives of the 

estate, appeared for a telephonic conference with the trial court. During this 
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hearing, the parties agreed that all fee contestations would be heard in the 

guardianship proceedings and not in the estate proceedings. 

[27] Although expectant heirs have only a future and contingent interest in the assets 

of the estate, here, by virtue of the timing of Darvin’s death, Appellants 

received a present and substantial interest in the estate’s assets on September 1, 

2017. See I.C. § 29-1-7-23; Inlow, 787 N.E.2d at 395. As the assets of the 

guardianship must pass into the estate, Appellants, as co-personal 

representatives of the estate, had an actual and substantive interest in the 

possible decline of the guardianship assets and thus had standing to oppose the 

payment of the fee petitions in the guardianship proceedings upon Darvin’s 

death. 

[28] Nevertheless, Kolb now contends that Appellants lack standing as co-personal 

representatives of the estate because they omitted to file a motion to intervene 

in that capacity. Focusing on this court’s decision in Simon v. Simon, 957 

N.E.2d 980 (Ind. Ct. App. 2011), and our supreme court’s ruling in Old Nat’l 

Bancorp v. Hanover College, 15 N.E.2d 574, 576-79 (Ind. 2014), Kolb maintains 

that the filing of a motion to intervene is “fundamental to maintaining order 

and certainty in trial court cases regarding true parties of record” and the lack 

thereof is fatal to acquiring standing. (Kolb Br. p. 11). 

[29] In Simon, a removed trustee and personal representative attempted to appeal an 

order denying a motion to recuse. Simon, 957 N.E.2d at 982. She brought the 

appeal in her personal representative capacity. Id. at 983. We dismissed for 
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lack of jurisdiction, because we found that “[s]he is no longer the Personal 

Representative or Trustee and, therefore, she cannot litigate on behalf of the 

Estate or the Trust in a capacity she no longer occupies.” Id. at 989-99. 

Rejecting appellant’s argument that she could maintain the appeal in her 

individual capacity as a beneficiary of the trust and estate, this court noted that 

appellant “did not move to intervene in her individual capacity in the trial 

court,” nor did she “bring this appeal in her individual capacity.” Id. at 989-90. 

[30] Similarly, in Hanover, Old National served as trustee over two trusts, both of 

which benefitted Hanover College. Old Nat’l Bancorp., 15 N.E.3d at 575. After 

the trial court granted Hanover’s request to terminate the trusts, Old National 

did not seek a stay of the order; instead, it appealed the order in its capacity as 

trustee. Id. Hanover moved to dismiss the appeal, arguing lack of standing as 

the trial court’s order had been effectuated and Hanover’s status as trustee had 

ended. Id. In response, Old National claimed to pursue the appeal in its 

individual capacity as a bank. Id. Rejecting Old National’s argument, the 

supreme court determined that Old National had clearly appealed in its 

capacity as the trustee of the terminated trusts—a capacity it no longer 

possessed. Id. at 577. At the same time, the court refused to consider 

Hanover’s argument, which relied on Simon and which claimed that “to gain 

standing in its individual capacity, Old National must have first intervened at 

the trial court and its failure to do so is fatal to its claim of standing as an 

individual.” Id. Noting that Old National neither intervened, nor appeared in 

its individual capacity before the trial court, the supreme court dismissed the 
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appeal for lack of standing, referring extensively to Old National’s repeated 

mentioning of its status as trustee in its appellate briefing (rather than its 

individual status), and paid its attorney fees from the trust assets. Id. at 577-78. 

[31] While Appellants concede that they did not file a formal motion to intervene in 

accordance with Indiana Trial Rule 24(C), in Old Nat’l Bancorp, our supreme 

court explicitly refused to consider whether such a motion was required and 

instead focused on other factors, such as the party’s appearance below and its 

appellate representations in determining standing. Unlike the appellant in 

Simon and Old Nat’l Bancorp, Appellants here intervened before the trial court in 

their capacity of co-personal representatives of Darvin’s estate. During the trial 

court’s proceedings, neither ZSWS nor Kolb objected to the Appellants’ 

participation in the guardianship in that matter, and the trial court treated 

Appellants as intervening parties. Throughout the appellate proceedings, 

Appellants have consistently referred to themselves in their capacity of copersonal representatives of the estate. If, in light of the specific circumstances 

before us, we were now to require the actual filing of a motion to intervene to 

acquire standing, we would be elevating form over substance. Accordingly, 

Appellants have standing to appeal the trial court’s order in their status of copersonal representatives of Darvin’s estate.

II. Interlocutory Appeal
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[32] In a related argument, ZSWS and Kolb contend that this appeal should be 

dismissed because Appellants cannot bring an interlocutory appeal of right 

when they were not ordered to pay money. 

[33] The appellate authority of this court is “generally limited to appeals from final 

judgments.” Ball State University v. Irons, 27 N.E.3d 717, 720 (Ind. 2015). 

However, our Rules of Appellate Procedure also confer appellate jurisdiction 

over non-final interlocutory appeals pursuant to Appellate Rule 14. There are 

three ways a case may proceed as an interlocutory appeal: an interlocutory 

appeal of right pursuant to Appellate Rule 14(A); a discretionary interlocutory 

appeal, as provided in Appellate Rule 14(B); or an interlocutory appeal from an 

order granting or denying class-action certification in accordance with 

Appellate Rule 14(C). Appellants assert that their appeal was properly brought

as an interlocutory appeal of right under Appellate Rule 14(A)(1), which 

provides, in relevant part:

A. Interlocutory Appeals of Right. Appeals from the following 

interlocutory orders are taken as a matter of right by 

conventionally filing a Notice of Appeal with the Clerk within 

thirty (30) days after the notation of the interlocutory order in 

the Chronological Case Summary:

(1) For the payment of money;

In general, the matters appealable of right pursuant to Appellate Rule 14(A) are 

those which carry financial and legal consequences akin to those typically 

found in a final judgment. Bacon v. Bacon, 877 N.E.2d 801, 805 (Ind. Ct. App. 
Court of Appeals of Indiana | Opinion 26A01-1703-GU-588 | November 8, 2017 Page 22 of 30

2007), reh’g denied, trans. denied. Because the trial court mandated GAB, as 

representative of Darvin’s guardianship estate, to pay the approved attorney 

fees and expert witness fees, ZSWS and Kolb argue that Appellants were not 

ordered to pay any sums of money in their capacities as the co-personal 

representatives of Darvin’s estate and therefore cannot now pursue an 

interlocutory appeal of right. 

[34] However, even though GAB was ordered to pay the fees, the remainder of the 

guardian estate must be transferred into Darvin’s estate. As Darvin was 

deceased at the time of the Order, the amount payable from the assets in the 

guardianship immediately impacts the amount delivered into the estate of 

which Appellants are the co-personal representatives. See I.C. § 29-3-12-1(e). 

Accordingly, as the Appellants have an interest in the amount that is to be paid 

in response to ZSWS’s and Kolb’s fee petitions, they are entitled to pursue an 

interlocutory appeal of right.

III. Attorney fees 

[35] Turning to the merits of their appeal, Appellants contend that the trial court 

erred in awarding attorney fees to ZSWS and Kolb and in ordering the payment 

of the expert witness fees. We review the trial court’s award of attorney fees for 

an abuse of discretion. See I.C. § 29-3-2-4; In re Guardianship of Hickman, 811 

N.E.2d 843, 851 (Ind. Ct. App. 2004), trans. denied. An abuse of discretion 

occurs only if the judgment is against the logic and effect of the facts and 
Court of Appeals of Indiana | Opinion 26A01-1703-GU-588 | November 8, 2017 Page 23 of 30

circumstances before the court, together with any reasonable inferences arising 

therefrom. Hickman, 811 N.E.2d at 851. 

[36] Pursuant to Indiana Code section 29-3-9-9:

(a) Whenever a guardian is appointed for an incapacitated person 

or minor, the guardian shall pay all expenses of the 

proceeding, including reasonable medical, professional, and 

attorney’s fees, out of the property of the protected person.

(b) The expenses of any other proceeding under this article that 

results in a benefit to the protected person or the protected 

person’s property shall be paid from the protected person’s 

property as approved by the court. 

The right to compensation from the guardianship estate “should not depend 

upon the result of the litigation but rather upon the reasonable necessity for 

such litigation.” In re Guardianship of N.R., 26 N.E.3d 97, 100 (Ind. Ct. App. 

2015). Thus, when ruling on an attorney fee petition in a guardianship 

proceeding, the trial court should consider not only the outcome of the 

proceedings but also “(1) whether the parties acted reasonably and in good faith 

incurring the fees, (2) whether the facts were in dispute, (3) whether the legal 

issues were complex, and (4) whether any party’s misconduct caused the 

proceedings.” Id. 

A. ZSWS & Dr. Felthous
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[37] Appellants contend that the trial court abused its discretion when it granted 

payment of ZSWS’s fees and Dr. Felthous’ expert witness fees.4

 Focusing on 

the provision of the Agreed Order that gave Darvin the right to choose his own 

counsel, they import the distinction that a right to choose does not encompass 

the right to hire counsel, which belonged to GAB, as “ultimate decisionmaker 

on behalf of the” guardianship estate. (Appellants’ Br. p. 31). Because ZSWS 

omitted to contract with GAB to provide services to Darvin, Appellants claim 

that they are not entitled to reimbursement. Moreover, only contesting ZSWS’s

fees incurred in its involvement to change Darvin’s estate plan and establish his 

testamentary capacity, Appellants point out that these fees and expenses are not 

necessary services which benefit the guardianship proceedings.

[38] Indiana law allows for the appointment of a guardian to act in the best interest 

of a person who is unable to care for himself or for his property. Estate of 

Prickett v. Womersley, 905 N.E.2d 1008, 1010 (Ind. Ct. App. 2009). In general, a 

guardian of a protected person “is responsible for the incapacitated person’s 

care and custody and for the preservation of the incapacitated person’s property 

to the extent ordered by the court.” I.C. § 29-3-8-1(b). As such, a court has 

discretion to “limit the scope of a guardianship by restricting the responsibilities 

and powers a guardian would otherwise have under the Guardianship Code.” 

I.C. § 29-3-5-3(b). Availing themselves of this provision, the parties, as affirmed 

 

4 Appellants do not object to the payment of fees incurred by ZSWS to challenge and terminate the 

guardianship.
Court of Appeals of Indiana | Opinion 26A01-1703-GU-588 | November 8, 2017 Page 25 of 30

by the trial court, established certain boundaries to the guardianship and 

determined in the Agreed Order that:

15. Darvin shall have unrestricted access to counsel of his 

choosing during the pendency of the guardianship.

16. If Darvin desires to make any change to his trust or estate 

plan(s) or to make an election under Virginia Lamey’s Trust, a 

hearing must first be held in front of Judge Meade in the Gibson 

Circuit Court and be subject to approval by the Court. []

(Appellants App. Vol. III, p. 28).

[39] By granting Darvin the right to choose his own counsel, the parties implicitly 

granted him the corresponding right to hire this counsel. Requiring preapproval from GAB or Appellants to hire counsel of his choice, would have 

eroded Darvin’s right to choose and interjected a measure of interference by the 

guardians. It would also have placed Darvin’s chosen counsel in the 

unenviable position to be cautious for a possible future conflict of interest 

between their client and the parties that had approved counsel’s hire. 

Accordingly, we find that, based on the Agreed Order, ZSWS did not have to 

engage with GAB separately to negotiate a fee arrangement.5

 

[40] In Wyneken v. Long, 400 N.E.2d 1147, 1148 (Ind. Ct. App. 1980), relied upon by 

Appellants, an adult protected person, already represented by an appointed 

 

5 This would not leave a guardian at the mercy of the fee structure of the ward’s counsel, as the guardian can 

always contest the reasonableness of the incurred fees in a separate petition.
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attorney, entered into a contract with an attorney for legal services. When the 

attorney requested payment for his services from the guardian, the guardian 

refused reimbursement. Id. Upon review, we noted that if the attorney had 

provided legal services to terminate the guardianship, he would have been 

entitled to compensation; however, his services were not rendered for that 

purpose. Id. Nonetheless, the Wyneken court stated that “the law will allow a 

recovery against the incompetent’s estate for the reasonable value of the 

necessary services rendered at the request of the incompetent.” Id. Applying 

the principle of “necessary services,” the court concluded that these did not fall 

within that definition as the services “did not involve matters of such exigency 

that guardian approval could not have been obtained before the services were 

rendered” and most of these “were rendered after an attorney from a legal aid 

staff had entered an appearance” for the ward. Id. Analogizing to Wyneken, 

Appellants now contend that ZSWS’s and Dr. Felthous’ fee were not necessary 

as they were not provided in conjunction with Darvin’s subsistence, health, 

comfort, and education, nor were they exigent. 

[41] We find Wyneken to be inapposite to the particular facts of this case. Through 

the Agreed Order, establishing the limited guardianship, the parties 

incorporated estate planning services squarely within the administration of the 

guardianship and allowed Darvin the limited authority to make a “change to 

his trust or estate plan(s) or to make an election under the Virginia Lamey’s 

Trust” subject to “approval by the [c]ourt.” (Appellants’ App. Vol. III, p. 28). 

As a corollary of Darvin’s limited authority in the estate planning realm, it was 
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incumbent to establish Darvin’s testamentary capacity. See I.C. § 29-3-9-4.5 (if 

a guarding lacks testamentary capacity, the guardian over the estate may take 

certain actions to effectuate estate planning purposes). To that end, ZSWS 

engaged Dr. Felthous to evaluate Darvin’s competency to support his estate 

planning decisions. Accordingly, as ZSWS’s and Dr. Felthous’ fee petitions 

were for services which had been included by express agreement into the 

guardianship proceedings, the trial court properly ordered payment from the 

guardianship estate. See I.C. § 29-3-9-9. 

B. Kolb

[42] Again contending that estate planning services are not a necessary service in the 

guardianship proceedings, Appellants dispute the trial court’s grant of Kolb’s 

fee petition. Although Kolb was retained to consult with Darvin on his estate 

plan, prior to establishing Darvin’s testamentary capacity6

, we agree with the 

trial court’s perception that “[g]iven the terminal and rapidly progressive nature 

of Darvin’s illness and the protracted nature the litigation took on, it was not 

unreasonable to seek to have the new estate plan ready to execute should 

Darvin have been successful in gaining authority to change his estate plan.” 

(Appellants’ App. Vol. II, p. 37). For the same reasons we affirmed the trial 

court’s Order with respect to ZSWS’s and Dr. Felthous’ petitions, we conclude 

 

6 We hasten to point out that nothing in this opinion should be read or constructed to establish the existence 

or lack of Darvin’s testamentary capacity. As emphatically repeated by the trial court several times in its 

Order, the issue of Darvin’s testamentary capacity is not before this court and will not be decided by this 

court in this appeal. 
Court of Appeals of Indiana | Opinion 26A01-1703-GU-588 | November 8, 2017 Page 28 of 30

that the trial court did not abuse its discretion with respect to Kolb’s fee 

petition.

III. Appellate Attorney Fees

[43] ZSWS and Kolb request an award of appellate attorney fees pursuant to 

Indiana Appellate Rule 66(E), which provides, in pertinent part, “[t]he Court 

may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall 

be in the Court’s discretion and may include attorney’s fees.” Our discretion to 

award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to 

instances when an appeal is permeated with meritlessness, bad faith, frivolity, 

harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 

342, 346 (Ind. Ct. App. 2003). While Indiana Appellate Rule 66(E) provides 

this court with the discretionary authority to award damages on appeal, we 

must use extreme restraint when exercising this power because of the potential 

chilling effect on the exercise of the right to appeal. Id. A strong showing is 

required to justify an award of appellate damages, and the sanction is not 

imposed to punish mere lack of merit, but something more egregious. In re 

Estate of Carnes, 866 N.E.2d 260, 267 (Ind. Ct. App. 2007). 

[44] Indiana appellate courts have formally categorized claims for appellate attorney 

fees into “substantive” and procedural bad faith claims. Bozcar v. Meridian Street 

Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001). To prevail on a substantive 

bad faith claim, the party must show that the appellant’s contentions are 

arguments are utterly devoid of all plausibility. Id. Procedural bad faith, on the 
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other hand, 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. Even if the appellant’s conduct falls short of that which is 

“deliberate or by design,” procedural bad faith can still be found. Id. 

[45] In support of their procedural and substantive bad faith claims, Kolb points to 

numerous specific instances ranging from the content of Appellants’ arguments 

to their strategy and purported deficiencies in their Appendices. However, we 

find that Appellants’ challenge is consistent with reasonable advocacy and 

cannot conclude that they flagrantly disregarded the form and content 

requirements of the rules of appellate procedure. Although Appellants are 

ultimately unsuccessful in this appeal, we cannot say that it was permeated in 

bad faith or litigated with frivolity or vexatiousness. Accordingly, we affirm the 

judgment of the trial court and deny ZSWS’s and Kolb’s request for appellate 

attorney fees. 

CONCLUSION

[46] Based on the foregoing, we hold that while Appellants have standing to pursue 

this interlocutory appeal of right, the trial court did not abuse its discretion in 

granting ZSWS’s and Kolb’s fee petitions and in ordering the payment of the 

expert witness fees. We deny ZSWS’s and Kolb’s request for appellate attorney 

fees.
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[47] Affirmed. 

[48] Robb, J. and Pyle, J. concur