IN RE: the Estate of Richard D. Stephan (Deceased) (2025)

MEMORANDUM DECISION

Case Summary

[1] This matter arises out of a dispute amongst the Stephan brothers, Daniel versus Douglas and William, over the Estate of their father, Richard Stephan. Daniel, as personal representative of the Estate, filed an Accounting to which his brothers objected. Following a hearing on the Accounting, the court issued findings of fact and conclusions of law related to the Estate's interest in a limited partnership and attorney fees payable to Daniel. Daniel appeals the trial court's Order, asserting that the findings of fact and conclusions of law were clearly erroneous and the attorney's fees were unreasonable. For the reasons set out below, we reverse and remand this matter to the trial court.

Facts and Procedural History

[2] The matter of Richard Stephan's Estate (the “Estate”) has a litigious history spanning almost a decade and includes a prior appeal to this Court. See Matter of Estate of Stephan, Case No. 20A-ES-1681, 2021 WL 955906, at *1 (Ind. Ct. App. Mar. 15, 2021) (mem.) [hereinafter “Stephan I”].

[3] Daniel, William, and Douglas are the sons of Richard and Audrey Stephan. Richard and Audrey owned and lived on a farm in Huntington, Indiana. Richard operated the farm, running various related businesses, and often worked with his sons in their adulthood. Richard and Audrey also owned a condominium in Florida where they spent most winters.

[4] In 2012, later in their lives, Richard and Audrey changed their estate plan by transferring their real and personal property from a revocable trust into two partnerships.¹ At issue in this appeal is the second partnership: the Dick and Audrey Stephan, Limited Partnership (the “Partnership”), into which they transferred a majority of their property consisting of the Florida condominium and most of their Indiana real estate. Richard and Audrey were the general partners of the Partnership, each holding a 1% general partnership interest and a 5% limited partnership interest. Douglas and William each received a 44% limited partnership interest. Daniel was not a part of the Partnership.

[5] That same year, Richard and Audrey executed wills. If Audrey predeceased him, Richard's will named Douglas as his personal representative, devised his 1% general interest in the Partnership to Douglas, and directed that any remaining property be split equally between William and Douglas. Audrey died in Florida in January 2016, but her will was never admitted to probate, so her assets transferred to Richard through intestacy. Richard was left with a 12% interest in the Partnership (his 6% and Audrey's 6%) until he died in August 2016 in Huntington.²

[6] In July 2017, Daniel filed a Petition for Administration in Florida seeking to be named personal representative of the Estate and expressing concern about the validity of Richard's will. Douglas and William were named as beneficiaries and received notice of the petition, but neither challenged it. In April 2018, the Florida court appointed Daniel personal representative of the Estate, directed him to issue letters of administration, and found that Richard had died intestate.

[7] On August 4, 2017, William and Douglas entered into an agreement whereby Douglas paid William $460,000 for his “rights, title, and interests” in the Partnership. Exhibits Vol. 1 at 146. Although not discussed in the brothers’ agreement, the purchase price accounted for a $40,000 debt to the Partnership owed by William. See id. at 146-48. The purchase price was not paid directly by Douglas, however. Instead, the Partnership paid the purchase price using money borrowed “by virtue of a note and a mortgage” against Partnership property. Transcript at 169. Following this transaction and with William's 44% interest, Douglas's limited partnership interest increased to 88% in the Partnership.

[8] In May 2018, Daniel filed a Petition by Domiciliary Foreign Personal Representative in Huntington County Circuit Court (“Indiana court”) (1) to provide the Indiana court with evidence of his appointment as personal representative; (2) to request the issuance of letters testamentary; and (3) to seek supervised administration of estate proceedings. The court granted the petition. In June, Douglas petitioned the Indiana court to set aside Daniel's appointment as personal representative, and in July, he moved the court to accept Richard's will into the record. Daniel responded that he only opened estate proceedings in Indiana as ancillary to the Florida proceedings to protect assets and obtain information of any undue influence Douglas exerted over his parents.

[9] In March 2019, with Douglas's petition still pending, Daniel moved the Indiana court for declaratory relief, alleging the formation of the Partnership was a sham, and Douglas had unduly influenced his parents. He asked the court to: (1) dissolve the Partnership and return its assets to the Estate for administration, and (2) not admit the will giving full faith and credit to the Florida court's determination that Richard died intestate. A hearing on all pending matters was held in December 2019, and the Indiana court issued its findings and conclusions on May 26, 2020. The court found: (1) the formation of the Partnership was not a sham, and (2) Douglas did not exert undue influence over his parents. The court then admitted Richard's will to probate, granted Douglas's motion to set aside Daniel's appointment as personal representative, and ordered the Estate closed.

[10] Daniel appealed the trial court's findings and conclusions, and this Court's opinion in Stephan I was certified on May 10, 2021. There, a panel of this Court held that: (1) there was no undue influence in the formation of the Partnership and thus, it was valid and the only property in the Estate is Richard's 12% interest; and (2) the Florida court's judgment naming Daniel as personal representative and finding that Richard died intestate must be given full faith and credit by Indiana courts. Stephan I, 2021 WL 955906, at *4-7. This Court ordered that the 12% interest in the Partnership be distributed to the sons according to Indiana's intestacy laws. Id.

[11] Two days after Stephan I was certified, Daniel filed a motion for a change of judge pursuant to Ind. Trial Rule 76(C)(3)³ and motions to reinstate him as personal representative and to reissue letters of ancillary administration. His change of judge motion was granted, and after multiple special judges recused, Special Judge Kukelhan assumed jurisdiction on April 1, 2022, and he remained the presiding judge thereafter. Following the remand hearing, the court issued its October 3, 2022 Order reinstating Daniel as the personal representative and, because he was standing in Richard's shoes as personal representative, designating him as the acting general partner of the Partnership. Appellant's Appendix Vol. 2 at 58.

[12] Many motions were filed by Daniel and Douglas following the October 3 Order. The motions most relevant to this appeal are Daniel's three Motions for Rule to Show Cause and his Motion to Approve the Sale of Real Estate. The court held a hearing on Daniel's motions and issued its order on August 18, 2023. It found that despite its October 3 Order designating Daniel as the acting general partner, Douglas had been holding himself out as the general partner of the Partnership. In February 2023, Douglas had executed a Resolution to remove Daniel as general partner and make himself general partner, which he presented to third parties to convince them he was the general partner. Appellant's App. Vol. 3 at 68.

[13] The court held that not only did Douglas “willfully disobey[ ] the Court's October 3, 2022 Order[,]” his Resolution also “failed to comply with the Partnership Agreement and law in several respects and ․ would not have been sufficient to make Douglas General Partner.” Id. at 68-69. The court held the “February 24, 2023 Resolution [was] void, and Douglas Stephan [was] hereby restrained and enjoined from relying on [it] for any reason.” Id. at 71. Finally, the court approved and ordered Daniel to sell a five-acre parcel of real estate owned by the Partnership for 80% or more of its appraisal value before January 1, 2024.⁴

[14] On June 30, 2023, Daniel filed an Accounting of the Estate, to which Douglas and William filed objections. The Accounting included: (1) $243,313 in attorney fees paid by Daniel from 2017 through April 30, 2023; (2) accounts, real property, and personal property owned by the Partnership valued at almost $3.5 million; and (3) a list of unaccounted for assets including bank accounts, personal property, and outstanding debts owed to the Partnership. Id. at 42-44. William argued the attorney fees were unreasonable and related only to work Daniel did for his own benefit, not the Estate's. Id. at 53. He also claimed the assets included in the Accounting were irrelevant to the Estate because they belonged to the Partnership, with “the only asset of the Estate [ ] [being] a twelve [ ] percent interest in the Partnership.” Id. at 53. Douglas maintained that the Accounting contained many inaccurate values, and he offered explanations related to missing assets. Id. at 56-57. He echoed William's characterization of Daniel's attorney fees, arguing they “were not expended for the purpose of fairly administering the estate or benefiting the Limited Partnership.” Id. at 57.

[15] With a litany of new motions filed after the Accounting was filed, the parties attended a hearing on May 20, 2024 to address the Accounting and other issues. The parties informed the court of the issues they believed were necessary to address at the hearing, including: (1) dissolution of the Partnership; (2) proper distribution of assets, including the status of certain mortgages encumbering Partnership property and Daniel's sale of five acres of that encumbered property pursuant to the court's order; (3) the identity of the partners of the Partnership; and (4) whether Daniel was entitled to recoup attorney fees he alleged to have incurred in administering the Estate. Tr. at 6, 14. Daniel also wanted to address whether Douglas had authority to sell sixty-nine acres of land owned by the Partnership, but Douglas and William believed the sixty-nine acres should not be addressed as it was already the subject of separate litigation. Id. at 14.

[16] On August 9, 2024, the trial court issued its findings of fact and conclusions of law pursuant to Trial Rule 52. Although it ultimately ordered Daniel to distribute 8% of the Estate's interest in the Partnership to Douglas and 4% to Daniel and awarded Daniel $40,000 in attorney's fees, the trial court did not address or clearly resolve some critical issues in this case. Daniel appeals.

Discussion and Decision

[17] On appeal, Daniel asserts the trial court's August 9 Order is internally inconsistent and the court erred by failing to adequately address certain issues related to the Partnership including: (1) dissolution; (2) the status of certain assets; and (3) the identity of the partners. He also argues the trial court erred in awarding him only $40,000 in attorney fees ⁵ and summarily denying him attorney fees for any legal expenses incurred before 2022. Appellant's Brief at 25-27.

[18] We review a trial court's findings of fact and conclusions of law by applying a two-tiered standard of review. McIntosh v. McIntosh, 222 N.E.3d 998, 1003 (Ind. Ct. App. 2023). First, we will determine whether the evidence supports the findings, and then, whether those findings support the judgment. Id. “ ‘We will not disturb the trial court's findings or judgment unless they are clearly erroneous.’ ” Stanley v. Stanley, 237 N.E.3d 1133, 1138 (Ind. Ct. App. 2024) (quoting Weiss v. Harper, 803 N.E.2d 201, 205 (Ind. Ct. App. 2003)), trans. denied. Findings of fact are clearly erroneous if no reasonable inference can be made from the evidence to support them. Id. “ ‘A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made.’ ” Id. (quoting Weiss, 803 N.E.2d at 205). Any findings a party does not challenge are accepted as true. McIntosh, 222 N.E.3d at 1003.

[19] We note that the trial court's Order and its findings of fact and conclusions of law are almost verbatim the proposed findings and conclusions submitted by William Stephan with a few non-substantive changes. “[W]hen a trial court accepts verbatim a party's proposed findings of fact and conclusions thereon, that practice ‘weakens our confidence as an appellate court that the findings are the result of considered judgment by the trial court.’ ” Staff Source, LLC v. Wallace, 143 N.E.3d 996, 1009 (Ind. Ct. App. 2020) (quoting Cnty. of Lake v. Pahl, 28 N.E.3d 1092, 1100 (Ind. Ct. App. 2015) reh'g denied, trans. denied). Nonetheless, “[i]t is not uncommon or per se improper for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party.” Id. (emphasis added). We are not convinced there is a clear “prevailing” party in this case and do not encourage verbatim adoption of a party's proposed findings and conclusions, but our critical inquiry remains to determine whether the findings and conclusions are clearly erroneous. Id.

[20] We additionally note that while Daniel contends that the trial court erred in multiple respects in its conclusions of law, the only factual finding Daniel challenges on appeal, which we address in Part Four, is the finding in Paragraph 11 pertaining to his attorney fees. Thus, we accept all other findings as true. Despite such acceptance, we agree with Daniel that the Order “raises as many questions as it answers,” and for the reasons set out below, we are left with the firm conviction that a mistake has been made.⁶ Appellant's Br. at 25.

1. Dissolution

[21] Daniel contends that the issue of dissolution is unresolved and unclear. We agree.

[22] In Paragraph H of the trial court's August 9 order, the court concluded that, pursuant to paragraph 8.1(c) of the of the Partnership Agreement (governing dissolution and reformation after an event of dissolution), “the Partnership has not [been] dissolved.” Appellant's App. Vol. 2 at 38. It goes on to conclude that pursuant to paragraph 8.1(c),

[t]he evidence before the Court, now, and reflected in the Order of the [Indiana court] dated May 26, 2020, show[s] that William and Douglas owned more than fifty percent (50%) of the outstanding partnership interests, and took actions consistent with a reforming of the partnership with Douglas as general partner.

Id. (emphasis added). More clearly, in Paragraph I, the trial court holds that Douglas and William “exercis[ed] the prerogative expressed at paragraph 8.1(c)[.]” Id. Paragraph 8.1(c) of the Partnership Agreement states in relevant part:

8.1 Dissolution. The Limited Partnership shall be dissolved only upon the occurrence of the following events: ․

c. The bankruptcy or dissolution of a Corporate General Partner (except by way of merger, consolidation or corporate organization or reorganization) or the death, incapacity or bankruptcy of an individual General Partner when no other General Partners remain or succeed. Provided, that the Limited Partners owning more than 50% of the then outstanding Partnership interest may determine to re-form the Partnership and elect a new General Partner and continue the Partnership's business. In such event, the Partnership shall be dissolved and all of its assets and liabilities shall be contributed to a new Limited Partnership which shall be formed and all remaining parties to this agreement and such new General Partner shall become parties to such new Limited Partnership. For purpose of obtaining the required vote to reform the Partnership, Limited Partners owning 10% or more of the then outstanding Partnership interests may cause to be sent to Limited Partners of record a written notice setting forth the date and purpose of the meeting. Expenses incurred in the reformation, or attempted reformation, of the Partnership shall be deemed expenses of the Limited Partnership.

Exs. Vol. 1 at 39 (emphasis added).

[23] We first note that “[c]ontract interpretation is a question of law that we review de novo.” Caccavale v. Ranger Team Building, LLC, 246 N.E.3d 292, 299 (Ind. Ct. App. 2024), reh'g denied, trans. denied. Our goal in contract interpretation is to consider the contract as a whole and ascertain the parties’ intent. Id. “A contract's clear and unambiguous language is given its ordinary meaning. A contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless.” Id. (quoting Ryan v. TCI Architects/Eng'rs/Cont'rs, Inc., 72 N.E.3d 908, 914 (Ind. 2017).

[24] We read paragraph 8.1(c) to mean that dissolution occurs upon the death of the last general partner, unless a general partner succeeds him. We further read the provision to mean that only when no general partner remains or succeeds is the option to re-form the Partnership as a new Limited Partnership available. Giving “succeed” its plain and ordinary meaning as used in this context, it means “to come next after another in office or position or in possession of an estate.” Succeed, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/succeed [https://perma.cc/HZZ3-7SC6]; see also Succeed, American Heritage Dictionary, https://ahdictionary.com/word/search.html?q=succeed [https://perma.cc/KF6J-9KYJ] (“[t]o come next in time or order[;] ․ [t]o replace another in office or position[.]”) Here, Daniel, by virtue of his role as personal representative, succeeded Richard as general partner of the Partnership. See Appellant's App. Vol. 2 at 58. Thus, the Partnership did not dissolve upon Richard's death. Because there was no dissolution under 8.1(c) by virtue of Richard's death, the option to re-form under that same section was not and is not available while Daniel still serves as personal representative and general partner. Therefore, the trial court's conclusion that William and Douglas successfully exercised this option is clearly erroneous.

[25] Furthermore, paragraph 8.1(c) states that “in such event” of reformation, “the Partnership shall be dissolved and all of its assets and liabilities shall be contributed to a new Limited Partnership.” Exs. Vol. 1 at 39. A successful 8.1(c) reformation necessarily means the Partnership was dissolved and a new partnership was formed. Thus, concluding that the Partnership has not been dissolved in Paragraph H but that it has been reformed under 8.1(c) in Paragraph I are wholly inconsistent conclusions. Moreover, nothing in the record shows that William exercised this option prior to the sale of his interest in the Partnership, and any action he took afterward is immaterial. We also find no evidence that Douglas successfully exercised the option to reform the Partnership, as there are no facts to show he dissolved the Dick & Audrey Stephan, LP or transferred its assets and liabilities to a new limited partnership as required to reform under paragraph 8.1(c).⁷

[26] Paragraph I of the order causes further confusion. The trial court concluded that it “must [ ] determine what rights the Estate has with respect to its twelve percent (12%) Partnership interest, under Paragraph 8.4 of the Partnership Agreement.” Appellant's App. Vol. 2 at 38. Paragraph 8.4 of the agreement is titled “Winding up the Partnership” and begins with “[u]pon dissolution of the Partnership ․.” Exs. Vol. 1 at 40. It is unclear to us why this section regarding winding up the Partnership upon dissolution is relevant to the Estate's rights given the trial court's earlier conclusion that “the Partnership has not [been]dissolved.” Appellant's App. Vol. 2 at 38.

[27] Later in Paragraph I, the trial court concludes that

[t]he [P]artnership Agreement, at paragraph 8.4(b) and (c), obligates the Partnership to make payments of [the credit balances in partners’ drawing or capital accounts] in the event of a dissolution and winding up and the Court holds that, in exercising the prerogative expressed at paragraph 8.1(c), Douglas and William are obligated to satisfy the credit balance of the Estate in a drawing account or capital account.

Id. (emphasis added). This obligation is based on (1) the court's conclusion that there has been “a dissolution and winding up[,]” and (2) the erroneous conclusion that Douglas and William reformed the Partnership. Id. Both of which further contradict the conclusion that the Partnership has not dissolved.

[28] Whether the Partnership has dissolved directly impacts the rights and responsibilities of the parties. Thus, clarification is necessary on this issue, particularly in light of the fact that we find the trial court's conclusion as to Douglas and William's reformation under paragraph 8.1(c) to be clearly erroneous.

2. Distribution

[29] The issue of distribution is equally murky. In Paragraph P, the trial court ordered distribution of the Estate's 12% interest as follows: (1) 8% to Douglas as limited partner (representing his and William's respective intestate shares); and (2) 4% to Daniel as limited partner; with those interests carrying “the respective portion of the Capital Account credit balance of the Estate's interest.” Id. at 40 (emphasis added). This method of distribution presents three issues which we discuss in detail below: (1) if, when, or how the Estate acquired a capital account; (2) the trial court's basis for Douglas and William's obligations pertaining to the credit balance in the Estate's capital account; and (3) the trial court's failure to identify and value the Partnership's assets so as to determine the value of the Estate's 12% interest in the Partnership.

[30] First, in Paragraphs I through L the trial court discussed the Estate's capital and drawing accounts. See id. at 38-40. Specifically, in Paragraph I, the court concluded that it “must address what rights the Estate has or had for a credit balance in its ‘drawing account’ or a credit balance in its ‘capital account.’ ” Id. at 38. The court ultimately held in Paragraphs K and L that the Estate has “a credit balance in its Capital Account, which is equal to [12%] of the current value of the assets held in the Partnership[,]” and “the extent of the Estate's interest in the Partnership is the value of the Capital Account balance.” Id. at 39. The court's discussion about capital accounts derives from paragraph 8.4 of the Partnership Agreement, which governs winding up and requires the general partners to distribute the assets or its proceeds in a specific order, the last distribution being “[p]ayment to the Partners of credit balances in their capital accounts.” Exs. Vol. 1 at 40 (emphasis added). However, the record lacks any indication as to when, how, or if the Estate acquired a capital account. We recognize that paragraph 3.1 of the Partnership Agreement requires all partners to have a capital account, but nothing in the record reveals that the Estate has such an account. See id. at 29 (“Separate capital accounts shall be maintained for each Partner.”). Thus, where these conclusions came from is not evident in the findings or the record and requires clarification.

[31] Next, we turn to the trial court's basis for concluding that Douglas and William are obligated to satisfy the Estate's credit balance. In Paragraph I of the order, the court held that pursuant to paragraphs 8.4(b) and (c) of the Partnership Agreement, “in exercising the prerogative [to reform the Partnership] expressed at paragraph 8.1(c), Douglas and William are obligated to satisfy the credit balance of the Estate in a drawing account or a capital account.” Appellant's App. Vol. 2 at 38. In other words, because Douglas and William elected to reform the partnership, they are obligated to satisfy the Estate's credit balance. As discussed above, we find nothing in the record to support that Douglas and William reformed the partnership under paragraph 8.1(c). Thus, because this obligation is based on the court's erroneous conclusion that the brothers elected to reform the Partnership, it is similarly erroneous.⁸

[32] Lastly, according to paragraph 8.4 of the Partnership Agreement, the distribution Douglas and William were ordered to make is based on the Partnership's “assets and proceeds therefrom[.]” Exs. Vol. 1 at 40. However, the record does not reflect that any court has ever determined what assets belong to the Partnership. The trial court did not resolve the questions surrounding the sixty-nine-acre plot of land sold by Douglas, the five-acre plot of land the trial court ordered Daniel to sell, or the mortgages encumbering much of the Partnership's real property. If it is the trial court's intent to distribute the Estate by dissolving and either winding up or reforming the Partnership—as our reading of Paragraph I suggests—these matters must be resolved in order to determine what assets the Partnership owns and the value of those assets.

[33] To the extent the trial court's chosen method of distribution relies on its erroneous conclusion that Douglas and William reformed the Partnership, we are left with the firm conviction that the trial court erred. As the order stands, the existence or status of the Estate's capital account and the court's overall method of distribution is unclear. We remand to the trial court for further clarification of these issues.

3. Identity of the Partners

[34] Daniel also argues, and we agree, that the trial court was inconsistent throughout its order as to the brothers’ statuses and roles as partners of the Partnership.

[35] First, the trial court referred to William throughout the order as if he were still a partner despite finding in Paragraph 12 that William sold his entire partnership interest to Douglas in 2017. Appellant's App. Vol. 2 at 37. For example, the court concluded in Paragraph H that “William and Douglas owned more than [50%] of the outstanding partnership interests, and took actions consistent with reforming of the [P]artnership[.]” Id. at 38. However, there is no evidence that William took this kind of action prior to the sale of his interests, and anything afterward is irrelevant. In Paragraph I, the trial court held that William was also obligated to satisfy the Estate's capital account credit balance, but it is unclear why he is obligated to do so after selling Douglas his entire interest in the Partnership. See id. Based on the findings and the record, we conclude that any reference to William as a partner of the Partnership after 2017 is clearly erroneous.

[36] Second, the trial court seems to suggest, but does not specifically conclude, that Douglas is now a general partner. Paragraph I makes Douglas and William “obligated to satisfy the credit balance of the Estate in a drawing account or capital account” pursuant to paragraphs 8.4(b) and (c) of the Partnership Agreement. Id. at 38. Paragraph 8.4 of the Partnership Agreement states in relevant part that

[i]n liquidating the Partnership business, the General Partners may either sell all or part of the Partnership assets and distribute the proceeds or make distributions completely or partially in kind pro rata or non-pro rata as to specific assets. Such assets or proceeds therefrom, to the extent sufficient, shall be applied and distributed in the following order:

a. Payment to creditors of the Partnership, other than partners, in the order of priority provided by law.

b. Payment to Partners for unpaid salaries and for the credit balances in their drawing accounts.

c. Payment to the Partners of credit balances in their capital accounts.

Exs. Vol. 1 at 40 (emphasis added).

[37] Concluding that Douglas, and for some reason William, are required to act under paragraph 8.4 seems to imply that they are both acting as general partners charged with disposing of assets and making the distributions required under that provision. Again, William's original partnership interest was bought by Douglas in 2017, so it is unclear why the trial court requires William to act as if he is a partner at all, let alone a general partner. The trial court did not explicitly state whether Daniel remains a general partner or not, but it nonetheless ordered Douglas to perform general partner functions under the Partnership Agreement, thereby blurring the parties’ roles.

[38] The lines are further blurred by the trial court's conclusion in Paragraph H that Douglas and William “took actions consistent with a reforming of the [P]artnership with Douglas as a general partner” pursuant to paragraph 8.1(c) of the Partnership Agreement. Appellant's App. Vol. 2 at 38 (emphasis added). The court then held in Paragraph I that “Douglas and William exercised the prerogative [to reform the Partnership] given at paragraph 8.1[.]” Id. Together, these conclusions seem to imply that Douglas is now a general partner. However, nowhere did the trial court address its October 3 Order which concluded that Daniel is the acting general partner or its August 18 Order which found Douglas in contempt for wrongfully holding himself out as the general partner.⁹ See id. at 58; see also Appellant's App. Vol. 3 at 68.

[39] In sum, any conclusion that William remains a partner of the Partnership is unsupported by the record and therefore clearly erroneous. Additionally, due to the trial court's inconsistent references and implications as to the current partners of the Partnership and their roles, we remand for clarification of the partners’ identities and roles consistent with this opinion.

4. Attorney Fees

[40] Lastly, Daniel argues the trial court erred in awarding him only $40,000 in attorney fees and finding that “the attorney's fees incurred prior to and including 2021 were for [his] own benefit” and not on behalf of the Estate. Appellant's Br. at 43.

[41] Indiana Code section 29-1-10-13 authorizes an award of “just and reasonable” attorney's fees to “[a]n attorney performing services for the estate at the instance of the personal representative[.]” The amount awarded is within the trial court's discretion, and we will disturb the award only when there has been an abuse of that discretion. Ford v. Peoples Tr. and Sav. Bank, 651 N.E.2d 1193, 1194 (Ind. Ct. App. 1995), trans. denied. To determine what is reasonable, the trial court may consider the labor performed, the nature of the estate, any difficulty in recovering assets or locating devisees, and the qualifications of the administrator. Id.

[42] In Paragraph 11 of its order, the trial court found that “all of the work done on behalf of Daniel” before this Court's decision in Stephan I on May 10, 2021, “was related to his individual capacity and litigation which challenged the validity of the Partnership, the transfers to the Partnership, and the transfers of Partnership interests.” Appellant's App. Vol. 2 at 37. In Paragraph M, the trial court held “that the attorney fees incurred and paid by Daniel for the calendar years 2021 and prior were for his own, individual benefit, and not ‘for the [E]state.’ ” Id. at 39. Based on the “limited extent of the assets of the [E]state,” it found that the fees Daniel paid after 2021 were unreasonable, and that an award of $40,000 was “just and reasonable.” Id. (quoting I.C. § 29-1-10-13).

[43] Paragraphs 11 and M are inconsistent. The trial court specifically found that Daniel's actions before May 10, 2021 were for his own benefit, so it is not clear why expenses incurred by Daniel after that date—for the entirety of 2021—are summarily excluded. The record reveals there were legitimate fees incurred by Daniel after May 10, namely the preparation of motions to reinstate him as personal representative and reissue letters of ancillary administration. See Exs. Vol. 1 at 200. The trial court failed to explain its exclusion of such fees from its award, and we conclude that its chosen cut-off date is arbitrary. Thus, because the trial court's $40,000 award was largely based on its summary exclusion of fees incurred by Daniel during and prior to 2021 without clear support in the record or the findings for doing so, we find that the attorney fees award was an abuse of discretion.

Conclusion

[44] Though we address the issues with the trial court's order that have been presented to us on appeal, we are perplexed as to why Daniel has yet to distribute the Estate's 12% interest in the Partnership as ordered by this Court in 2021 and can find nothing in the record to explain such failure. The issues brought before and addressed by the many judges who have played a role in adjudicating this matter are Partnership issues, not probate issues. The only asset of the Estate is a 12% interest in the Dick and Audrey Stephan, LP. We see no reason why Daniel cannot distribute the interests in-kind. The Estate would then be closed and, to the extent justiciable non-probate controversies exist between these individuals with respect to business related to the Partnership, those issues would be more appropriately addressed in separate proceedings.

[45] With respect to the trial court's order before us in the present appeal, we find that order to be internally inconsistent as many of its conclusions find no support in the findings or record. We hold as follows:

1. The trial court's conclusion that Douglas reformed the Partnership according to paragraph 8.1(c) of the Partnership Agreement is clearly erroneous.

2. William is no longer a partner of the Partnership and any reference to him as such is clearly erroneous.

3. Because the trial court's award of attorney's fees was based in large part on its arbitrary exclusion of fees incurred by Daniel in 2021 and the years prior, we find the trial court abused its discretion.

[46] Thus, we reverse and remand back to the trial court for further proceedings and clarifications consistent with this opinion. Additionally, we reiterate the previous directive from this Court to distribute the sole asset of Richard Stephan's estate, which is a 12% interest in the Dick and Audrey Stephan, LP.

[47] Reversed and remanded.

FOOTNOTES

1.   They transferred a thirteen-acre parcel of Indiana land to the Richard & Audrey Stephan, LP (the “General Partnership”), and at their deaths, the parcel was to transfer to Daniel. The General Partnership and the thirteen-acre parcel are not at issue in this appeal.

2.   Daniel received the thirteen-acre parcel left to him through the General Partnership. Under Richard and Audrey's estate plan, that was all Daniel was to receive. However, in May 2017, Daniel filed suit against the Partnership, Douglas, and William in Brevard County, Florida, asserting the deed conveying the Florida condominium to the Partnership was invalid. The Florida court agreed, and as a result, the condominium remained an asset of Richard and Audrey's revocable trust. The terms of the trust required that the condominium be split evenly among the brothers, and Douglas and Daniel entered into an agreement for Douglas to purchase Daniel's interest for $64,051.51, which is approximately one-third of the condominium's value.

3.   “[I]f a court on appeal [ ] remands a case such that a further hearing and receipt of evidence are required to reconsider all or some of the issues[,] ․ the parties thereto shall have ten [10] days from the date ․ the order of the court on appeal is certified” to file an application for change of judge. T.R. 76(C)(3).

4.   The trial court found Douglas in contempt again on November 6, 2023, for failing to remove his cattle from Partnership land. Appellant's App. Vol. 3 at 152-54. He filed a motion to correct error which was deemed denied after the trial court failed to hold a hearing or issue an order on his motion. Id. at 159. Douglas then appealed the November 6 Order to this Court, but his untimely appeal was dismissed pursuant to Daniel's motion. Id.

5.   Douglas contends the trial court's $40,000 attorney fees award to Daniel is excessive, especially in light of the $13,774 Daniel was previously awarded in attorney fees. Appellee (Douglas's) Br. at 15. Douglas further argues that Daniel “should be ordered to pay fees for having pursued a position without merit[.]” Id. at 16. First, as discussed below, we reverse the trial court's award of attorney fees on other grounds. Second, we are unpersuaded by Douglas's arguments. He provides no evidence for his excessiveness claim, referencing only his disagreement with the trial court's determination as to what it found “just and reasonable” and the previous attorney fee award Daniel received. Douglas's disagreement and a previous attorney fees award that is not the subject of this appeal are insufficient to find the award here to be excessive. Similarly, he fails to support the claim that Daniel has “pursued a position without merit” with citations to the record or explanation of relevant case law. A mere assertion that Daniel's position lacks merit is not enough and we decline to award Douglas fees on such grounds.

6.   We note that Douglas's brief, specifically its lack of citations in accordance with our appellate rules, hampered our review of Douglas's responses to the arguments on appeal. While we do not believe that the deficiencies in the brief rise to the level of procedural bad faith worthy of sanction or were so egregious as to warrant granting Daniel's motion to strike, we nonetheless caution litigants that arguments presented on appeal must be supported by cogent reasoning and citations to legal authority and the record in accordance with Indiana Appellate Rules 46 and 22.

7.   While Douglas, and for some reason William, executed a Resolution on February 24, 2023, purporting to exercise this reformation, it was insufficient to meet the requirements under paragraph 8.1(c). The Resolution did not purport to or operatively dissolve the Partnership, did not transfer the Partnership's assets and liabilities, and did not create a new limited partnership. See Exs. Vol. 1 at 50 (purporting to continue the business of the Partnership with Douglas as “sole successor General Partner”). Notably, the trial court's October 3 Order specifically concluded that the Resolution “failed to comply with the Partnership Agreement and law in several respects and ․ would not have been sufficient to make Douglas General Partner.” Appellant's App. Vol. 3 at 68-69. It further held that the “Resolution is void” and enjoined Douglas from relying on the Resolution for any reason. Id. at 71. We find no other evidence in the findings or the record showing that Douglas took the actions required under paragraph 8.1(c) to reform the Partnership.

8.   We also note that the Partnership Agreement states that “in no event shall any Limited Partner be liable for any amount beyond the balance in such Partner's capital account.” Exs. Vol. 1 at 30. Requiring Douglas and William to satisfy the balance in a capital account other than their own—here, the Estate's—also appears to contradict the language of the Partnership Agreement.

9.   We note that throughout his brief, Douglas asserts that pursuant to the May 26, 2020 Order, and prior to the court's October 3 Order, he had been the acting general partner of the Partnership. However, Douglas fails to include any citation to the record he draws that conclusion from beyond his and William's Resolution that has been declared void. See, e.g., Appellee's (Douglas's) Br. at 16.

DeBoer, Judge.

Chief Judge Altice and Judge Pyle concur. Altice, C.J., and Pyle, J., concur.