Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018 Page 1 of 7

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

Charles Michael Fox

Clarksville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Charles Michael Fox,

Appellant-Plaintiff,

v.

Thomas Wilmer Fox,

Appellee-Defendant.

November 20, 2018

Court of Appeals Case No.

18A-SC-1055

Appeal from the

Clark Circuit Court

The Honorable

Kenneth R. Abbott, Magistrate

Trial Court Cause No. 

10C01-1802-SC-167 

Kirsch, Judge.

MEMORANDUM DECISION

[1] Charles Michael Fox (“Charles”) appeals the trial court’s dismissal of his small 

claims case, wherein he alleged that his brother, Thomas Wilmer Fox 
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1055 | November 20, 2018 Page 2 of 7

(“Thomas”), embezzled $6,000 from Charles’s trust while serving as Charles’s

guardian. On appeal, Charles raises three issues, which we restate as 1) 

whether Charles’s small claims action was properly dismissed under the 

collateral estoppel doctrine; 2) whether the small claims action was an 

impermissible collateral attack on the guardianship; and, 3) whether the trial 

court had subject matter jurisdiction over the embezzlement claim.

[2] We affirm. 

Facts and Procedural History

[3] Charles suffered from schizophrenia, which caused him to hear voices. Before 

his death, Charles’s father funded a trust with $150,000 that was designated for 

Charles’s care. Guardianship Tr. Vol. 3 at 15. In 1994, Thomas was appointed 

as Charles’s guardian. Tr. Vol. 2 at 6. In 2001, Thomas spent $6000 from the 

trust to rent an apartment for Charles, and in 2002, Thomas spent 

approximately $50,000 from the trust to buy Charles a condominium. 

Appellant’s Br. at 8. No other funds from the trust were expended on Charles’s 

behalf, so the balance of the trust should have been approximately $100,000. 

See Tr. Vol. 2 at 8-10. 

[4] At some point during the guardianship, Charles was put on medication, which 

eased his symptoms. Id. at 12. At Charles’s request, the guardianship was 

terminated on January 7, 2015, without Thomas having filed an accounting. 

Id. at 6; Appellant’s Non-Conforming App. Vol. 1 at 30. On February 2, 2015,

Charles emailed Thomas, demanding that Thomas disburse the remainder of 
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the trust to Charles; Thomas declined. Appellant’s Br. at 5. On July 13, 2015, 

Charles asked the probate court to re-open the guardianship, partly because 

Thomas had not filed a final accounting. Id. at 10; Tr. Vol. 2 at 7; Appellant’s 

Non-Conforming App. Vol. 1 at 30. Charles also alleged that Thomas had 

embezzled funds from the trust. Appellant’s Br. at 10. 

[5] On September 3, 2015, the probate court reopened the guardianship. Appellant’s 

Non-Conforming App. Vol. 1 at 31. Thomas eventually filed a final accounting, 

though Charles contended it was vague and inadequate. Tr. Vol. 2 at 7. On 

February 2, 2016, the probate court approved the final accounting and 

terminated the guardianship. Appellant’s Non-Conforming App. Vol. 1 at 34.

[6] On March 28, 2017, Charles filed a Petition for Clarification, and on May 22, 

2017, the probate court heard the matter. Guardianship Tr. Vol. 3 at 4; 

Appellant’s Non-Conforming App. Vol. 1 at 35. At the hearing, Charles asked for 

guidance about the effective dates of Thomas’s discharge as the guardian and 

termination of the guardianship. Guardianship Tr. Vol. 3 at 4-6, 8-11, 13-14, 16. 

Charles sought this information because he wanted to know if he was still 

within the one-year statute of limitation prescribed by Indiana Code section 29-

3-9-6(h) to sue a guardian after the guardian has been discharged. The probate 

court directed Charles to consult an attorney but opined that it appeared the 

statute began to run on February 1 or February 2, 2016, more than fifteen 

months earlier, and that Charles, therefore, had likely missed the deadline. Id. 

at 9, 11.
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[7] Believing that Thomas had embezzled about $100,000 from him, Charles filed 

suit in small claims court, seeking $6,000, because he believed Thomas had no 

more than $6,000 and because there was no documentary evidence to prove 

how much money Thomas had embezzled from the trust. Tr. Vol. 2 at 4-6. 

[8] At the small claims hearing, Charles acknowledged there was a final accounting 

in the guardianship. Id. at 7. The trial court observed that Charles should have 

filed his embezzlement claim in the guardianship case. At the end of the 

hearing, the trial court took the matter under advisement to see what had 

transpired in the guardianship case. Id. at 16-20; Appellant’s App. Vol. 2 at 4. On 

March 23, 2018, the trial court dismissed Charles’s small claims action, stating:

[H]aving reviewed the statements and arguments of [Charles] 

and having reviewed the record of his guardianship proceeding in 

Circuit Court No. 1, and hereby finds that the issues raised in 

[Charles’s] Statement of Claim have been dealt with and resolved 

in the guardianship proceeding.

IT IS, THEREFORE, ORDERED that [Charles’s] Statement of 

Claim is dismissed.

Id. at 7. Charles now appeals.

Discussion and Decision

[9] Thomas has not filed an appellee’s brief. In such a situation, we do not 

undertake the burden of developing his arguments. See Hill v. Ramey, 744 

N.E.2d 509, 511 (Ind. Ct. App. 2001). We apply a less stringent standard of 

review where we may reverse the trial court if Charles establishes prima facie
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error. See id. Prima facie is defined as “at first sight, on first appearance, or on 

the face of it.” Id. If an appellant cannot meet this burden, we will affirm. 

Damon Corp. v. Estes, 750 N.E.2d 891, 892-93 (Ind. Ct. App. 2001). In 

reviewing an order of dismissal, we may affirm the ruling based on any theory 

supported by the record. See Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct. App. 

2018).

[10] Collateral estoppel bars re-litigation of the same fact or issue where that fact or 

issue was necessarily adjudicated in a former suit. Tofany v. NBS Imaging Sys., 

Inc., 616 N.E.2d 1034, 1037 (Ind. 1993). In that situation, the first adjudication 

will be held conclusive even if the second is on a different claim. Id. An 

appellate court considers whether the party against whom the judgment is pled 

had a full and fair opportunity to litigate the issue and whether it would be 

otherwise unfair to permit the use of collateral estoppel. Id. In the context of 

probate court proceedings, our Supreme Court has held that settlement and 

discharge of an estate bars a claim that the guardian has misappropriated funds 

from the estate. Peacocke v. Leffler, 74 Ind. 327, 330 (1881). 

[11] Here, the trial court properly concluded that the guardianship case necessarily 

adjudicated Charles’s embezzlement claim. See Tofany, 616 N.E.2d at 1037. 

One reason the guardianship was re-opened, at Charles’s request, was that 

Charles claimed Thomas was embezzling funds. See Appellant’s Br. at 10 (“I had 

told [the guardianship judge], both verbally and in my petition to reopen the 

guardianship case, of the embezzlement . . . .”) (emphasis added). The other 

reason the guardianship was re-opened, again at Charles’s request, was to 
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compel Thomas to file a final accounting, by which Charles had hoped to prove 

that Thomas had embezzled funds. Tr. Vol. 2 at 4; 6-7. Thus, Charles had a fair 

opportunity to litigate his embezzlement claim. When he complains about the 

alleged inadequacy of the final accounting and the lack of documentary 

evidence to support his embezzlement claim, he impliedly concedes that the 

matter has been resolved, though not to his liking. Id. Thus, the embezzlement 

claim was barred once the guardianship court accepted the final accounting and 

discharged Thomas as guardian. Accordingly, the trial court did not err in 

dismissing Charles’s small claims case on the basis that the guardianship 

proceeding resolved the embezzlement claim. Charles’s dissatisfaction with 

that result does justify a second chance to relitigate the issue in another case. 

See Tofany, 616 N.E.2d at 1037. 

[12] There are two additional reasons to affirm the trial court’s decision:

[13] First, Charles’s small claims embezzlement action was an impermissible 

collateral attack on the guardianship adjudication. A guardianship settlement 

“cannot be collaterally attacked but must be set aside by a direct proceeding.” Kuhn 

v. Boehne, 27 Ind. App. 340, 61 N.E. 199, 200 (1901) (emphasis added). Thus, 

Charles should have sought relief in a direct action in probate court.

[14] Second, dismissal was proper because the probate court had exclusive 

jurisdiction over the guardianship. “Any person having a claim against . . . the 

guardian as such may file the claim with the court . . . .” Ind. Code. § 29-3-10-

1(d) (emphasis added). “‘Court’ means the court having probate jurisdiction . . . 
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.” Ind. Code § 29-3-1-3 (emphasis added). In Indiana, “the practice requires 

that disputed claims against the estate of wards, whether infants or persons of 

unsound mind, be presented by a complaint or petition against the guardian in a 

court having jurisdiction of the ward’s estate and the person of the guardian.” Stewart v. 

Unger, 44 Ind. App. 87, 88 N.E. 716, 717 (1909) (emphasis added). Charles’s 

small claims embezzlement action was an impermissible collateral attack on the 

guardianship proceeding, and the trial court lacked subject matter jurisdiction 

over that claim.

[15] Charles has failed to meet his burden to demonstrate that the trial court’s order 

of dismissal was prima facie error. See Hill, 744 N.E.2d at 511. 

[16] Affirmed.

Vaidik, C.J., and Riley, J., concur