Gail Lewis Hicks and the Estate of Larry Hicks, Appellants-Plaintiffs v. Keith L. Head, American Family Mutual Insurance Company, S.I., Appellees-Defendants (2025)

MEMORANDUM DECISION

[1] Gail Lewis Hicks and the Estate of Larry Hicks appeal the trial court's order imposing sanctions against them. We dismiss this appeal and remand for a determination of appellate damages.

Facts and Procedural History

[2] On July 20, 2020, Gail Lewis Hicks and Larry Hicks (the “Hickses” or “Plaintiffs”) filed a complaint against Keith Head and American Family Insurance Company, S.I. (“American Family,” and together with Head, “Defendants”). The complaint was based upon an automobile accident that occurred on July 22, 2018. The Hickses alleged that Pamela Dickerson negligently drove a vehicle belonging to Head and insured by American Family, causing the accident, bodily injury, property damage, and emotional distress. The Hickses alleged that Head negligently allowed Dickerson to drive his vehicle. The Hickses also claimed that American Family acted in bad faith in failing to make a timely settlement offer.

[3] American Family filed a motion to dismiss and motion for judgment on the pleadings which the trial court denied. The Hickses filed a motion for sanctions against Defendants which the court granted. However, the court later entered a corrected order denying the Hickses’ motion for sanctions but failed to clarify the court's intent regarding its prior denial of American Family's motion to dismiss and motion for judgment on the pleadings.

[4] On May 18, 2021, American Family filed a motion for summary judgment, which the trial court denied. Following an interlocutory appeal, this Court reversed the trial court's decision and remanded with instructions for the court to enter summary judgment in favor of American Family. See Am. Fam. Mut. Ins. Co., S.I. v. Hicks, No. 21A-CT-1441, 2022 WL 351092, at *7-8 (Ind. Ct. App. Feb. 7, 2022) (holding in relevant part that the “Hickses cannot sue American Family directly on a claim that American Family failed to negotiate a settlement with the Hickses in good faith regardless of whether they qualify as third-party beneficiaries. American Family is therefore entitled to judgment as a matter of law and the trial court erred in denying American Family's motion for summary judgment”) (citation and footnote omitted), trans. denied, cert. denied, 143 S. Ct. 447 (2022). On February 7, 2022, the trial court entered summary judgment in favor of American Family.

[5] On February 22, 2023, the Hickses, acting through their attorney John H. Davis (“Attorney Davis”), filed a “Verified Motion for Judicial Estoppel” against American Family, arguing that the trial court's prior order denying American Family's motion to dismiss and motion for judgment on the pleadings “has never been vacated” and was still in effect. Appellees’ Appendix Volume II at 71. The trial court granted the Hickses’ motion on February 26, 2023, before the time had expired for American Family to respond. Accordingly, American Family objected to the motion and filed a motion to correct error. On March 9, 2023, the trial court granted American Family's motion to correct error, vacated its prior order, and concluded that “a final judgment has already been entered against the Plaintiffs and in favor of the Defendant, [American Family], on February 7, 2022. The Plaintiffs no longer have any grounds or standing to challenge that judgment.” Id. at 79. The court further found that the Hickses’ Motion for Judicial Estoppel was “groundless, frivolous, unreasonable, and/or filed in bad faith,” such that it was “appropriate to award sanctions against the [Hickses] pursuant to Indiana Code 34-52-1-1, for all attorney's fees, costs and expenses incurred” by American Family in responding to the motion. Id. The court directed American Family to file an affidavit “of costs for a judgment on the sanctions.” Id.

[6] The Hickses responded by filing numerous motions which the trial court set for oral argument on May 18, 2023. Following a hearing on May 18, 2023, the court entered an order concluding that the Hickses were “not entitled to any judicial estoppel against [American Family],” and reaffirming its prior orders, including its February 7, 2022 entry of summary judgment in favor of American Family. Id. at 82. The court certified the order for interlocutory appeal. The Hickses filed their notice of appeal to this Court on July 17, 2023. On December 15, 2023, this Court affirmed the trial court's order. See Hicks v. Am. Fam. Mut. Ins. Co., S.I., No. 23A-CT-1263, 2023 WL 8670977, at *2 (Ind. Ct. App. Dec. 15, 2023) (holding that “[i]f the Hickses lack standing to bring claims directly against American Family, then it follows that they lack standing to seek judicial estoppel to enforce those claims. As a result, we cannot say that the trial court abused its discretion in granting American Family's motion to correct error and consequently denying the Hickses’ motion for judicial estoppel”).

[7] Despite the two clear decisions by this Court determining the Hickses did not have any direct claim against American Family, on October 22, 2024, Attorney Davis filed an “Amended Complaint Limited to Plaintiff Larry Hicks” alleging in part that American Family “had a legal responsibility to, in good faith, settle the complete claim” filed by the Hickses and that its failure to do so caused “financial harm” to “Gail Lewis Hicks and the Estate of Larry Hicks.”¹ Appellees’ Appendix Volume II at 100. The Amended Complaint requested judgment against American Family for damages, “including punitive damages for bad faith in settlement, attorney's fees ․” Id. American Family filed a motion to dismiss the Amended Complaint on November 11, 2024. The trial court granted the motion to dismiss the next day. In addition to dismissal, the court concluded that the Amended Complaint “failed to identify any legal basis for re-naming [American Family] as a Defendant” such that “these claims are frivolous, groundless, unreasonable in bad faith, such that the Defendant, [American Family] shall be entitled to an award of attorney's fees and cost[s] incurred in defending against the Amended Complaint.” Id. at 119.

[8] On November 20, 2024, Plaintiffs filed a Verified Motion to Correct Error. On December 30, 2024, Plaintiffs filed a “Verified Notice of Fraud Upon the Court Committed by Defendant Keith L. Head.” Id. at 131. The Notice begins by stating it “is submitted to comply with the requirement of misprision of a felony” which is “a legal term that describes the crime of knowingly concealing information about a felony that has been committed without reporting it to authorities.” Id. Therein, Attorney Davis accuses Head's counsel, Attorney Bridgett Nelson (“Attorney Nelson”) and American Family's counsel, Attorney Robert O'Dell (“Attorney O'Dell”) of engaging in “ploys and machinations” and “working in tandem with each other—are, and have been, deployed to confuse—both, this trial court and the appellate court” and that “this trial court should refer the clear elements of fraud to the proper authorities for disciplinary action.” Id. at 136.² By order dated January 3, 2025, the trial court denied Plaintiffs’ motion to correct error, reaffirmed its dismissal of the Amended Complaint noting that “the Court of Appeals (on two prior occasions) has previously entered final judgment against Plaintiffs,” and found that American Family was entitled to an attorney fee award of $800 “for the cost incurred in defending against the Amended Complaint.” Id. at 155.

[9] The court held a hearing on American Family's response and objection to the Verified Notice of Fraud on February 27, 2025. Attorney Casey Stafford (“Attorney Stafford”) appeared on behalf of Attorney Nelson and Attorney O'Dell to defend them against the fraud allegations. Following the hearing, Attorney Stafford submitted an affidavit of her services stating that she incurred $5,226.80 in attorney fees and mileage costs in defending Attorney Nelson and Attorney O'Dell.

[10] The court ordered Plaintiffs to clarify their fraud claim so on March 3, 2025, Plaintiffs filed a document entitled “Plaintiffs’ Verified Clarification of Fraud as Ordered by the Trial Court.” Id. at 157. The document indicated that Plaintiffs and their counsel, Attorney Davis, “were protecting themselves from committing any misprision of a felony which can occur if any individual with knowledge of a criminal act does not reveal that act to the proper authorities.” Id. The document goes on to repeat the same conclusory fraud allegations against Attorney Nelson and Attorney O'Dell.

[11] On March 12, 2025, the trial court entered its order finding that Plaintiffs’ “Verified Notice of Fraud Upon the Court failed to identify any legal or factual basis to support the allegations of fraud asserted by Plaintiffs against [Attorney O'Dell and Attorney Nelson], such that the claims are frivolous, groundless, unreasonable and made in bad faith.” Id. at 184. Accordingly, the court ordered that Attorney Nelson and Attorney O'Dell are entitled to an award of attorney fees and expenses in the amount of $5,226.80 and that “the aforementioned sanctions are hereby imposed on Plaintiffs and their counsel, [Attorney Davis].” Id. at 185.

Discussion

[12] It is well established that in cases where an appellant fails to substantially comply with the appellate rules, dismissal of the appeal is warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). Indeed, this Court has discretion to dismiss an appeal for the appellant's failure to comply with the Rules of Appellate Procedure. See Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (“Although we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal.”), reh'g denied.

[13] Here, Plaintiffs have flagrantly failed to comply with the requirements of the Indiana Rules of Appellate Procedure. Appellate Rule 46(A)(6) governs the statement of facts and requires “a narrative description of the relevant facts stated in accordance with the appropriate standard of review.” Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016), reh'g denied. The rule also provides “[t]he facts shall be supported by page references to the Record on Appeal or Appendix in accordance with Rule 22(C).” Ind. Appellate Rule 46(A)(6)(a). Under the heading “Statement of the Facts,” rather than providing a narrative description of the relevant facts stated in accordance with the appropriate standard of review, Plaintiffs’ brief includes a few statements of procedural history with no citations to the Record on Appeal or Appendix. Appellants’ Brief at 5. Similarly, Plaintiffs’ statement of the case does not lay out the relevant procedural posture of the case as required by Appellate Rule 46(A)(5); rather, it is merely a carbon copy of the statement of facts. Both of these sections of Plaintiffs’ brief are wholly lacking in proper content.

[14] Most significantly, Plaintiffs’ claims in the “Argument” section of their brief are not supported by cogent argument or citations to the record. The section in the Plaintiffs’ brief titled “Argument” begins by stating that Plaintiffs are “seeking to be candid, transparent, and limiting verbosity,” but then continues down a verbose and rambling path of nonsensical, conclusory, and unsupported allegations in opposition to the trial court's sanctions order, including salacious comments about the trial judge, as well as mere reiteration of the unfounded allegations of fraud against Attorney Nelson and Attorney O'Dell. Id. at 6-10. There is limited citation to caselaw and the record, with the lion's share of those citations being inapplicable, nonbinding, and irrelevant.

[15] Appellate Rule 46(A)(8)(a) provides “[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning” and “[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on ․” Appellate Rule 46(A)(8)(b) provides the argument “must include for each issue a concise statement of the applicable standard of review” and “a brief statement of the procedural and substantive facts necessary for consideration of the issues presented on appeal, including a statement of how the issues relevant to the appeal were raised and resolved by any ․ trial court.” This Court has previously stated:

We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator. Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990). A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. Hebel v. Conrail, Inc., 475 N.E.2d 652, 659 (Ind. 1985). On review, we will not search the record to find a basis for a party's argument ․ nor will we search the authorities cited by a party in order to find legal support for its position.

Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (footnote omitted).

[16] In sum, the brief submitted by Plaintiffs provides no material assistance to this Court in deciding the issues raised on appeal. In light of the multiple violations of the Indiana Appellate Rules and lack of a cogent argument, we dismiss this appeal. See Keller, 549 N.E.2d at 373-374 (dismissing appeal where appellant failed to provide cogent argument and adequate citation of authority).

[17] Defendants request appellate attorney fees arguing that “[t]he conduct of [Attorney Davis] in prosecuting this action on behalf of [Plaintiffs] has been persistently vexatious, harassing, and completely without merit.” Appellees’ Brief at 24. They point out that Plaintiffs “have sought to prolong the case, especially against American Family, despite clear language from the Court of Appeals in 2022 establishing that [Plaintiffs] had no legitimate claim against American Family,” and they further note that, in his appellate brief, “[Attorney] Davis still cannot identify a single authority in support of his basic proposition that formed the basis for his verified motion for fraud.” Id. at 25-26.

[18] This Court is authorized to assess damages if an appeal “is frivolous or in bad faith,” and such damages “shall be in the Court's discretion and may include attorneys’ fees.” Ind. Appellate Rule 66(E). 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. Bessolo v. Rosario, 966 N.E.2d 725, 734 (Ind. Ct. App. 2012), trans. denied. Based upon our review of the record and the briefs filed on appeal, we conclude that Defendants have made the requisite showing of egregiousness and that an award of damages pursuant to Ind. Appellate Rule 66(E) is appropriate under the circumstances. Accordingly, we remand for a determination of a reasonable amount of damages.

[19] For the foregoing reasons, we dismiss this appeal, grant Defendants’ request for damages pursuant to Ind. Appellate Rule 66(E), and remand for a determination of damages.

[20] Dismissed and remanded.

FOOTNOTES

1.   The Amended Complaint states that Larry Hicks died on February 11, 2024.

2.   The Notice claims that Attorney Nelson and Attorney O'Dell worked together to conceal a settlement in another case involving a different plaintiff arising from the same automobile accident.

Brown, Judge.

Judges Bailey and Weissmann concur. Bailey, J., and Weissmann, J., concur.