28 March 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
I received an email yesterday from a mother who filed a pro se appeal to the Indiana Court of Appeals about a week earlier. She was concerned that the father's attorney had filed a motion to dismiss her appeal. I believe her concerns are overstated as the motion filed by Russell B. Cate of Campbell Kyle Profitt LLP is without merit.
Coincidentally I posted “Why a Competent Attorney is a Must or How to Stay in Prison” just four days ago where I detailed the absurd failings of an attorney filing an appeal. Russell B. Cate seems to be on his way to upstaging the wholly incompetent Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana. The crux of Cate's support for his motion is that the petitioner failed to file an Appearance with the Indiana Court of Appeals pursuant to Rule 3.1 of the Indiana Rules of Trial Procedure. Well hold on to them there horses Cowboy Cate. I have a few points to make about this motion. To begin with if you are going to play Black Jack don't bust out the rules for Texas Hold 'em.
As prudent members of a society I feel that we are all obligated to look out for each other, alert those around us to hazards, and do what we can to protect our fellow man from harm. So, after I finished laughing following my perusal of the motion I came up with these additional thoughts which I freely share with you.
Respondent [Cate] has failed to understand or is attempting to confuse and frustrate the court in applying the Indiana Rules of Trial Procedure to a matter initiated pursuant to the rules of and is properly before the Indiana Court of Appeals.
Indiana Appellate Rule 16 provides that “[t]he filing of a Notice of Appeal pursuant to Rule 9 or Notice of Expedited Appeal pursuant to Rule 14.1 satisfies the requirement to file an appearance. Respondent in his Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court clearly demonstrates no injury from his unfounded belief that Petitioner was required to file an appearance in that he includes Petitioner's pro se service address in that document.
Regardless of Respondent's contention that Petitioner in this cause was required to file an Appearance pursuant to the Indiana Rules of Trial Procedure contemporaneous with the Notice of Appeal filed with the Indiana Court of Appeals dismissal would nonetheless be unwarranted.
Dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). However, the court prefers to resolve cases on the merits. Id. Mother did comply with the appellate rules and has not been ordered by the appellate court to supplement her filing with an Appearance. Such an order is generally presumed to be a prerequisite to entertaining a motion for dismissal.
“If an appellant inexcusably fails to comply with an appellate court order, then more stringent measures, including dismissal of the appeal, would be available as the needs of justice might dictate.” Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001).
Again, Respondent's fallacious argument aside, the courts have been reticent to award attorney fees in appellate cases except in the most egregious of circumstances. “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.” Manous v. Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005).
Respondent's motion is replete with inaccuracies, is meritless, and was brought in bad faith for the purpose of harassment, vexatiousness, or delay. Respondent's motion should be denied in its entirety. Respondent's Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court should be dismissed and the Respondent be admonished for his vexatious filing. Notice as with the recent posting regarding Mr. Thomas F. Little I refer to the actions of the attorney as the party – the Respondent – because the lawyer has no skin in the game. When you employ an attorney to represent you then you have entrusted that attorney with the decision making authority that you relinquished.
This is the hazard of hiring attorneys from firms like Campbell Kyle Profitt LLP or Power, Little, Little, & Little. If you want to be well represented in a child custody hearing or on appeal them it may be wise of you to facilitate the knowledge of someone who reads every child custody decision by the higher courts and knows who are the competent and incompetent attorneys in Indiana. If you would like for me to teach to you the procedures for appeal, how to do research and how to make cogent argument as well as follow the rules then contact my scheduler.
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