Yesterday, the Indiana Court of Appeals demonstrated the potential consequences of failing to file the Appellate Rules in a memorandum decision, uncitable as authority under
, Case No. 82A01-1006-DR-267. This case, in which the appellant was represented by counsel, should serve as an object lesson in what not to do when arguing an appeal.
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In this case, an ex-wife sought an order finding her husband in indirect contempt for failing to pay her certain money. The trial court held a hearing on the ex-wife's motion. After the trial court entered its order, the ex-wife filed a motion to correct error, which the trial court denied.
On appeal, the wife argued that the trial court erred when ruling on the information for indirect contempt, but failed to request a copy of the transcript of the relevant hearing. The ex-wife's brief maintained the following:
A lengthy transcript of "he said, she said" cannot overcome the overwhelming evidence presented in the form of exhibits, receipts and documented unreimbursed expenses by [the ex-wife].
The Court disagreed, citing
Appellate Rule 9(F)(4)'s requirement that an appellant supply a transcript, if that appellant is going to argue that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence. Because the ex-wife did not request a transcript, she waived all of her arguments on appeal.
The ex-husband requested attorney's fees for the appeal. Despite the Court's recognition that it uses "extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right of appeal," the Court found that the award of attorney's fees was appropriate in this case.
By not requesting a transcript, when such was necessary for resolution of issues raised, Charleen failed to comply with Indiana Appellate Rule 9(F)(4). Nor was this a mere oversight — Charleen acknowledged the lack of transcript but argued in her brief that a transcript was not necessary for appellate review. As such, she has willfully disregarded our rules.
Additionally, her appendix does not conform to
Indiana Appellate Rule 50 because she did not include a chronological case summary from the trial court, did not include the appealed judgment or order, and did not include any pleadings necessary for resolution of the issues on appeal. While she included the trial court's order from January 27, 2010, she did not include her motion to correct error or "Motion to Reinstate Motion to Correct Error and/or Motion to Reconsider Dismissal" or any documentation from the trial court denying these motions.
Moreover, her brief contains several defects.
Indiana Rule of Appellate Procedure 46(A)(2) requires page citations in the Table of Authorities, which Charleen's does not include. Her brief also does not include the appealed order in accordance with Appellate Rule 46(A)(10); instead, she recites the language of the January 27, 2010 order in the body of her brief under the heading "Appealed Order."
Charleen's non-compliance with the Indiana Rules of Appellate Procedure was considerable, and, in the case of her missing transcript, willful. Rather than requesting a transcript, Charleen instead submitted a lengthy brief summarizing the exhibits presented at trial. While we are reluctant to exercise our discretion to award appellate attorney's fees, we find that Charleen's conduct in this case warrants such an award. Accordingly, we remand this case to the trial court for a hearing on the appropriate amount of attorney's fees Kenny is entitled to recover as a result of the instant appeal.
What more need we say?
