FOR PUBLICATION
ATTORNEY FOR APPELLANT:
JACK E. ROEBEL
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WW EXTENDED CARE, INC., )
)
Appellant-Plaintiff, )
)
vs. )
)
MARY SWINKUNAS, )
)
Defendant, ) No. 02A03-0109-CV-302
)
and )
)
JOHN RUSHINSKY and )
MARIA RUSHINSKY, )
)
Appellees-Garnishees-Defendants. )
APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Stanley A. Levine, Special Judge
Cause No. 02C01-9711-MI-133
March 19, 2002
OPINION–FOR PUBLICATION
BAKER, JUDGE
WW Extended Care, Inc., (Extended Care) appeals the trial court’s
denial of its motion to correct errors and raises several issues which we
consolidate and restate as: 1) whether Judge Levine lacked jurisdiction to
rule on Extended Care’s verified motion for proceedings supplemental; and
2) whether the trial court properly assigned the burden of proof to
Extended Care to show that the appellees-garnishees-defendants, John and
Maria Rushinsky (the Rushinskys), breached their fiduciary duty as
attorneys-in-fact to defendant Mary Swinkunas.
FACTS
Extended Care obtained a judgment in Ohio state court against Mary
Swinkunas for $35,667.82, an amount that Swinkunas owed in connection with
nursing home services provided by Extended Care. On June 8, 1998, the
Allen Circuit Court domesticated the judgment. To satisfy its judgment
against Swinkunas, on August 5, 1998, Extended Care filed a Verified Motion
for Proceedings Supplemental, naming the Rushinskys as garnishees-
defendants. John Rushinsky is Swinkunas’s son, and he and his wife,
Maria, were Swinkunas’s attorneys-in-fact for health care powers.
The proceedings supplemental hearing was conducted on March 10, 2000,
before Special Judge Pro Tem Kathryn A. Brogan.[1] Following the
conclusion of Extended Care’s case-in-chief, Judge Brogan ordered the
Rushinskys to file a complete accounting of all Swinkunas’s funds and
property over which they exercised control as attorneys-in-fact.
Special Judge Levine accepted jurisdiction over this case in May 2000.
On June 28, 2000, he ordered the Rushinskys to complete the accounting and
ordered Extended Care to pay the associated costs. In response to the
trial court’s order, Extended Care filed a motion to correct errors on July
7, 2000. Extended Care’s motion alleged that Judge Levine lacked
jurisdiction to issue the June 28, 2000 order and that he erred in shifting
the costs of the accounting from the Rushinskys to itself. On August 28,
2000, Judge Levine granted Extended Care’s motion to correct errors to the
extent that he amended his June 28, 2000 order to require the Rushinskys to
complete the accounting but no longer required Extended Care to bear the
associated costs. Judge Levine did not rule on the issue of his
jurisdiction.
The Rushinskys filed their “Accounting Report” on October 16, 2000.
Shortly thereafter, on November 1, 2000, Extended Care filed a motion for
default judgment. In its motion, Extended Care alleged that 1) the
Rushinskys had breached their fiduciary duty to Swinkunas because they had
not properly accounted for the money they had administered for her, and 2)
it had a derivative right, as a creditor of Swinkunas’s, to pursue a
defalcation judgment in her name. Specifically, Extended Care claimed that
the Rushinskys had breached their fiduciary duty to keep complete records
of all transactions entered into on Swinkunas’s behalf, because they failed
to identify the source of certain income and failed to explain the purpose
of certain expenditures and cash withdrawals.
Judge Levine conducted a hearing on Extended Care’s motion for default
judgment on April 23, 2001. He subsequently denied the motion on May 29,
2001.[2] In so doing, Judge Levine found, among other things, that:
While said accounting reveals a number of checks written for either
cash, or “legal advise,” [sic] which were for a thousand dollars or
more, all of said checks were written prior to the filing of
Proceedings Supplementary to Execution in this matter.
One manner in which Plaintiff would be entitled to moneys written to
said Garnishee Defendants prior to judgment and/or prior to the
filings of Proceedings Supplementary to Execution would be to deem
said payments as fraudulent transfers.
Appellant’s App. at 132. He then concluded that Extended Care bore the
burden of proving that any transfers of money to the Rushinskys were
fraudulent, and that Extended Care had not met its burden of proof.
Extended Care filed a motion to correct errors on June 22, 2001,
alleging that Judge Levine had confused its claim. Specifically, Extended
Care stated that it had never contended that the payments to the Rushinskys
were fraudulent. Rather, its contention was that the Rushinskys had
breached their fiduciary obligation to Swinkunas by failing to keep
complete records and properly account for the monies they had expended on
her behalf.
On August 10, 2001, Judge Levine issued an order modifying his
original judgment. In his order, he again found that the checks in
question were written prior to the filing of the proceedings supplemental
and that the Rushinskys possessed no property of Swinkunas’s at the time of
the filing. In addition, he found that counsel for Extended Care had never
reviewed the cancelled checks and other documents that the Rushinskys filed
to support the accounting. He also found that at the default judgment
hearing Extended Care had elicited no testimony from the Rushinskys
regarding any of the items they filed in the accounting. Thus, he
concluded that Extended Care had not met its burden of establishing a
breach of fiduciary duty on the part of the Rushinskys. Extended Care now
appeals from the denial of its motion to correct errors.
DISCUSSION AND DECISION
I. Standard of Review
We note at the outset that the Rushinskys have failed to file an
appellees’ brief. In such a situation, the reviewing court does not
undertake the burden of developing arguments for the appellees. White v.
Porter County Treasurer, 671 N.E.2d 1196, 1197 (Ind. Ct. App. 1996).
Applying a less stringent standard of review with respect to showings of
reversible error, we may reverse the lower court if the appellant can
establish prima facie error. Id. When, as here, we are presented with an
alleged error of law, our review is de novo. Halteman Swim Club v. Duguid,
757 N.E.2d 1017, 1020 (Ind. Ct. App. 2001).
II. Extended Care’s Claims
Extended Care first claims that Judge Levine lacked jurisdiction to
rule on its verified motion for proceedings supplemental. Specifically,
Extended Care asserts that Judge Levine improperly assumed jurisdiction
over the evidentiary phase of the proceedings supplemental rather than
permitting Judge Brogan to conclude the evidentiary hearing and rule on the
cause as required by Ind.Trial Rule 63. That rule provides in relevant
part, that the judge who presides at an evidentiary hearing “shall, if
possible, hear motions and make all decisions and rulings required to be
made . . . relating to the evidence and conduct” of the hearing after it is
concluded. T.R. 63.
We note that Extended Care did not raise the issue of Judge Levine’s
jurisdiction in its June 22, 2001 motion to correct error, which is the
subject of this appeal. Appellant’s App. at 134-35. Rather, Extended Care
raised the issue of Judge Levine’s lack of jurisdiction in an earlier
motion to correct error it filed on July 7, 2000. Appellant’s App. at 71.
The July 7, 2000 motion challenged Judge Levine’s authority to issue the
June 28, 2000 order in which he shifted the costs of the accounting from
the Rushinskys to Extended Care. Appellant’s App. at 71. Specifically,
Extended Care alleged that Judge Levine lacked jurisdiction to issue the
June 28, 2000, order according to T.R. 63, and that he erred in requiring
Extended Care to pay the accounting costs. Appellant’s App. at 71, 74.
On August 28, 2000, Judge Levine granted Extended Care’s motion to correct
error to the extent that he no longer required Extended Care to pay the
costs of accounting; however, he did not rule on the jurisdictional issue.
Appellant’s App. at 80-81.
When a party opts to file a motion to correct error, the notice of
appeal must be filed within thirty days from either the date that the trial
court rules upon the motion to correct error or the date that the motion is
deemed denied. Ind.Trial Rule 53.3(A). A motion to correct error is
deemed denied as a matter of law if the trial court fails to rule upon it
within thirty days after it was heard or forty-five days after it was
filed. T.R. 53.3(A). The timely filing of a notice of appeal is a
jurisdictional prerequisite, and failure to conform within the applicable
time limits results in forfeiture of the appeal. Ostertag v. Ostertag, 755
N.E.2d 686, 687 (Ind. Ct. App. 2001).
When Judge Levine failed to rule on the jurisdictional issue within
forty-five days after Extended Care filed its July 7, 2000, motion to
correct error, that issue was deemed denied. See T.R. 53.3(A). Extended
Care then had thirty days from August 21, 2000—the date that it was deemed
denied—to file a notice of appeal.[3] However, Extended Care failed to
file a notice of appeal with respect to the July 7, 2000 motion to correct
error. Having failed to file such an appeal, Extended Care has waived that
issue for appellate review and may not raise it belatedly in its appeal of
Judge Levine’s ruling on its June 22, 2001 motion to correct error. See
Ostertag, 755 N.E.2d at 687; Ind.Appellate Rules 5(A), 2(H) (An appeal may
be taken from final appealable orders and judgments, and a judgment is
final, among other things, if it is “deemed final by law.”).
Extended Care next contends that the trial court improperly assigned
it the burden of proving that the Rushinskys breached their fiduciary duty
by failing to properly account to Swinkunas for the monies they
administered as her attorneys-in-fact. According to Extended Care, such
burden is “insurmountable” because the accounting report contains
unexplained discrepancies with respect to the source of certain income and
the purpose of certain expenditures and cash withdrawals. Appellant’s
brief at 14-15. Thus, Extended Care urges that the burden should
properly be placed on the Rushinskys to explain these discrepancies and to
prove that the transactions were legitimate. Extended Care asserts that
if the Rushinskys are unable to account for the transactions in question,
they are liable to it in garnishment. Appellant’s App. at 18.
In addressing Extended Care’s claim, we note that the Indiana Power of
Attorney Act (the Act) requires an attorney-in-fact to use due care for the
benefit of the principal and to act in a fiduciary capacity. See Ind.
Code §§ 30-5-6-2, 3. The Act also provides that the attorney-in-fact is
only liable under the powers granted in I.C. §§ 30-5-5-16 and 17 (the
healthcare powers) if the attorney-in-fact acted in bad faith. I.C. § 30-5-
9-1. One of the duties of the attorney-in-fact is to “keep complete
records of all transactions entered into . . . on behalf of the principal.”
See I.C. § 30-5-6-4(a). However, the attorney-in-fact is not required
to render a written accounting with respect to those transactions unless
ordered to do so by a court or requested to do so by certain statutorily
authorized parties. See I.C. § 30-5-6-4(a).
Where the exercise of an attorney-in-fact’s powers are brought into
question, the burden of proof is ordinarily on the party asserting breach
of fiduciary duty to establish such breach. Villanella v. Godbey, 632
N.E.2d 786, 790 (Ind. Ct. App. 1994). However, if the questionable
transactions benefited the attorney-in-fact as agent of the principal,[4]
Indiana law “imposes a presumption of undue influence and fraudulent
transfer. The burden of proof [then] shifts to the agent who must
demonstrate by clear and unequivocal evidence that he or she acted in good
faith and did not take advantage of [the] trusted relationship.” Diane L.
Liptack, Curbing Power-of-Attorney Abuse, 42 Res Gestae 14, 14 (1999)
(citing Villanella, 632 N.E.2d at 790 (determining that power of attorney
in great-nephew created fiduciary relationship between him and his great-
aunt, and this relationship coupled with inter vivos transfer of large sums
of cash and real property for nominal or no consideration, gave rise to
presumption of undue influence and fraudulent transfer)); see also Dotlich
v. Dotlich, 475 N.E.2d 331, 342 (Ind. Ct. App. 1985) (stating that “[o]nce
it is established that one with a fiduciary duty has attempted to benefit
from a questioned transaction, the law presumes fraud” and the burden of
proof then shifts to the fiduciary to overcome the presumption by showing
that his actions were honest and in good faith), trans. denied, but
abrogated on other grounds by State Bd. of Tax Comm’rs v. Town of St. John,
751 N.E.2d 657 (Ind. 2001).
In this instance, Extended Care does not contend that the transactions
the Rushinskys made on Swinkunas’s behalf constituted fraudulent
transfers[5] and it does not allege that the purported breach of fiduciary
duty inured to the Rushinskys’ benefit. Rather, Extended Care’s claim that
the Rushinskys have breached their fiduciary duty to Swinkunas is based
solely upon their failure to maintain complete records and “to properly
account for the monies in their possession during their tenure as [her]
attorney-in-fact.” Appellant’s brief at 14. Thus, the burden of proving
a breach of fiduciary duty based on the accounting claims remains squarely
with Extended Care.
To the extent that Extended Care urges that the Rushinskys should be
required to explain the alleged discrepancies in their accounting, we note
that Extended Care had the opportunity at the default judgment hearing to
extensively examine the Rushinskys regarding their administration of
Swinkunas’s funds. Nevertheless, it appears from the trial court’s
finding that Extended Care failed to take advantage of that opportunity and
“elicited no testimony from the Rushinskys regarding any items filed in the
accounting.”[6]
This court will not compensate Extended Care for its failure to examine the
Rushinskys about alleged discrepancies in their accounting by shifting the
burden of proof. Moreover, it was within the trial court’s discretion to
determine from the evidence before it that the accounting report was
credible. Thus, we conclude that the trial court properly assigned the
burden of proof to Extended Care to show that Rushinskys breached their
fiduciary duty as attorneys-in-fact to Swinkunas.[7]
Judgment affirmed.
NAJAM, J., and MATTINGLY-MAY, J., concur.
-----------------------
[1] Judge Norman E. Baker was originally appointed to hear the case but
recused himself. Judge Paul D. Mathias was then appointed Special Judge,
but was unavailable to conduct the hearing on Extended Care’s motion for
proceedings supplemental. Consequently, Kathryn A. Brogan was appointed as
Special Judge Pro Tem to act in his stead. Appellant’s App. at 8, 15.
Judge Mathias subsequently recused himself from this case on March 29,
2000, when he was appointed as a Judge to this court. Appellant’s App. at
8. Judge Stanley A. Levine was then selected as the Special Judge on April
20, 2000, and he accepted jurisdiction over this case on May 8, 2000.
Appellant’s App. at 7.
[2] This order was entered nunc pro tunc on August 10, 2001.
[3] We note that when Judge Levine granted Extended Care’s motion to
correct errors in part on August 28, 2000, he did so after expiration of
the time limits prescribed in T.R. 53.3(A). Thus, while he granted the
July 20, 2000, motion to the extent that he required the Rushinskys to bear
the costs of the accounting, the motion was already deemed denied.
However, our supreme court has determined that a grant of a motion to
correct error after expiration of the prescribed time limits “is not
necessarily a nullity, but rather is voidable and subject to enforcement of
the ‘deemed denied’ provision of Trial Rule 53.3(A) in the event the party
opposing the motion to correct error promptly appeals.” Cavinder
Elevators, Inc. v. Hall, 726 N.E.2d 285, 288 (Ind. 2000). In this
instance, the Rushinskys did not appeal the trial court’s ruling, and thus
the trial court’s judgment granting Extended Care’s motion with respect to
the issue of who should bear the costs of the accounting stands.
[4] “A power of attorney creates an agency relationship between the
person granting the power of attorney (the principal) and the designated
attorney-in-fact (the agent).” Pollas v. Hardware Wholesalers, Inc., 663
N.E.2d 1188, 1190 (Ind. Ct. App. 1996).
[5] Extended Care made clear in its motion to correct errors filed June
22, 2001, that: “[It] has never contended that these payments [by the
Rushinskys] constituted fraudulent transfers.” Appellant’s App. at 134.
Extended Care also reiterates this point in its brief. Appellant’s brief
at 12 n.4, 14.
[6] We note that Extended Care did not provide this court with a
transcript of the default judgment hearing. However, Extended Care does
not contest Judge Levine’s finding that it did not attempt to elicit
testimony from the Rushinskys regarding the items filed in the accounting.
[7] Extended Care also asserts that the trial court may have improperly
considered cancelled checks and other documents to support the Rushinskys’
accounting that were never introduced into evidence. Appellant’s App. at
11. However, Extended Care can find nothing in the record establishing
that the trial court considered any such additional evidence or even that
such evidence even exists. See Appellant’s brief at 11 n.3. Thus, we need
not address this issue.
