Carl Mickens v. CMFG Life Insurance Company and The Estate of Harvey Mickens, Synovia Vardiman & Pearline Harris, Individually and as Administrators of the Estate of Harvey Mickens (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 26 2016, 9:08 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE Carl Mickens Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carl Mickens, January 26, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1508-PL-1133 v. Appeal from the Marion Superior Court CMFG Life Insurance The Honorable Timothy W. Company, Oakes, Judge The Honorable Shannon L. Appellee-Plaintiff Logsdon, Commissioner and Trial Court Cause No. 49D02-1409-PL-30983 The Estate of Harvey Mickens, Synovia Vardiman & Pearline Harris, Individually and as Administrators of the Estate of Harvey Mickens. Appellees-Defendants.

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Bradford, Judge.

Case Summary [1] Appellant Carl Mickens appeals from the trial court’s determination that certain

life insurance proceeds should be paid to the Estate of his now-deceased

brother. We affirm.

Facts and Procedural History [2] Initially, we note that the record provided to the Court on appeal is incomplete

at best and lacks the transcript of the two-day evidentiary hearing before the

trial court. As such, we will rely on the trial court’s findings to determine the

facts and procedural history leading to the instant appeal. The facts as found by

the trial court are as follows: [3] At all times relevant to this appeal, Harvey Mickens had a valid $10,000 life

insurance policy through CMFG Life Insurance Company. In March of 2014,

Harvey made changes to his policy via telephone. Specifically, Harvey changed

the policy from a term life insurance policy naming his late wife as the

beneficiary to a whole life policy naming Mickens as the beneficiary. Harvey

died on July 15, 2014. [4] Following Harvey’s death, a dispute arose about whether the proceeds of

Harvey’s life insurance policy should be paid to Mickens or to Harvey’s Estate.

The trial court conducted a two-day evidentiary hearing on April 13, 2015 and

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May 4, 2015. On August 3, 2015, the trial court issued an order in which it

determined that the evidence demonstrated that the change in beneficiaries was

the result of undue influence and duress by Mickens upon Harvey. The trial

court also determined that the change in beneficiary was completed in a manner

inconsistent with the written policies of CMFG, which required that all changes

in beneficiaries be completed in writing, and that the change in beneficiary was

therefore invalid. In light of these determinations, the trial court ordered

CMFG to pay the proceeds of Harvey’s life insurance policy to Harvey’s Estate.

This appeal follows.

Discussion and Decision1 [5] Mickens raises several issues on appeal which we restate as follows: (1) whether

the trial court erred in ordering CMFG to pay the proceeds of Harvey’s life

insurance policy to Harvey’s Estate rather than to Mickens, (2) whether the trial

court’s ruling is contrary to public policy, (3) whether the trial court displayed

bias against Mickens, and (4) whether the trial court erred in taking the Estate’s

request for attorney’s fees under advisement. As we noted above, our review of

the instant matter is made more difficult by Mickens’s failure to provide a

1 We note that the Estate has filed a motion to dismiss the instant appeal, claiming that Mickens has failed to comply with the Indiana Rules of Appellate Procedure, has failed to state a claim upon which relief can be granted, and that we lack jurisdiction over Mickens’s claim relating to the Estate’s request for attorney’s fees. Given our preference for deciding appeals on the merits, where possible, we deny the Estate’s motion in an order handed down simultaneously with this memorandum decision.

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transcript of the evidentiary hearing on appeal. However, to the extent

possible, we will review the merits of Mickens’s appeal.

I. Payment of Proceeds of Life Insurance Policy [6] In concluding that the proceeds of Harvey’s life insurance policy should be paid

to Harvey’s estate, the trial court specifically found that the change in the

beneficiary from Harvey’s late wife to Mickens “was the result of undue

influence and duress” by Mickens upon Harvey. Appellant’s App. p. 8.

Mickens does not challenge this finding on appeal. This unchallenged finding

alone is sufficient to sustain the trial court’s conclusion that the proceeds of

Harvey’s life insurance policy should not be paid to Mickens. See generally, In re

Estate of Wade, 768 N.E.2d 957, 963 (Ind. Ct. App. 2002) (providing that the

undisputed evidence created the presumption that certain transactions relating

to a life insurance policy were the result of undue influence and were therefore

void). Further, in light of the trial court’s finding that the change in beneficiary

was the result of undue influence and duress, we need not consider the trial

court’s alternative reasoning, i.e., that the change of beneficiary was not

completed in a manner consistent with CMFG’s written policies.

II. Public Policy Concerns [7] To the extent that Mickens argues that the trial court’s order is contrary to the

best interests of public policy, we disagree. Mickens appears to base this

argument on the assertion that, as a matter of public policy, an individual

should be allowed to change the beneficiary of their life insurance policy via the

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telephone. We cannot agree with such a broad assertion. Further, as we

discussed above, the trial court’s order was supported by the unchallenged

finding that the change in beneficiary was the result of undue influence and

duress by Mickens against Harvey. Clearly, public policy does not favor

allowing an individual to convince a family member to name him as the

beneficiary of the family member’s life insurance policy by means of undue

influence or duress.

III. Alleged Bias [8] Mickens claims that the trial court acted with bias against him by erroneously

allowing “sibling rivalry to permeate the proceedings,” by unjustly refusing to

allow him to testify after allowing the other defendants, his siblings, “to provide

any manner of testimony they seemingly desired,” and by denying his motion

for summary judgment. Appellant’s Br. pp. 12, 13. We observe that in raising

these claims, however, Mickens has failed to provide cogent reasoning or

citations to relevant authority in support of them. Specifically, Mickens has

failed to provide any indication of how the trial court allowed sibling rivalry to

“permeate the proceedings.” Br. p. 12. Mickens has failed to provide this

Court with a copy of the transcript of proceedings before the trial court or any

other evidence which would show that his siblings, but not Mickens, were

allowed to “provide any manner of testimony they seemingly desired.”

Appellant’s Br. p. 13. Mickens has also failed to develop his argument that the

trial court’s denial of Mickens’s motion for summary judgment was evidence of

bias against him by the trial court.

Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 5 of 9 [9] Appellate Rule 46(A)(8)(a) provides that an appellant’s argument must be

supported by cogent reasoning and citation to relevant authorities, statutes, the

Appendix, or parts of the Record on Appeal.

It is well settled that we will not consider an appellant’s assertion on appeal when he has not presented cogent argument supported by authority and references to the record as required by the rules. Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999). Additionally, ‘“[w]e will not become an advocate for a party, nor will we address arguments which are either inappropriate, too poorly developed or improperly expressed to be understood.’” [Ramsey v. Review Bd. on Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 486 (Ind. Ct. App. 2003)] (quoting Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985), trans. denied).

Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). [10] Mickens’s claim relating to the alleged bias demonstrated by the trial court is

too poorly developed to be understood. Mickens, who proceeded on appeal pro

se, must be held to the same established rules of procedure that a trained legal

counsel is bound to follow and, “therefore, must be prepared to accept the

consequences” of his failure to comply with Appellate Rule 46(A)(8)(a). See id.

As such, because Mickens has failed to provide cogent argument and citations

to relevant authority relating to his claim that the trial court demonstrated bias

against him, we conclude that Mickens has waived this argument on appeal.

IV. Attorney’s Fees

Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PL-1133 | January 26, 2016 Page 6 of 9 [11] The trial court’s order clearly indicates that the trial court has not issued a final

ruling on the Estate’s request for attorney’s fees but rather has merely taken the

issue under advisement. Further, nothing in the record even suggests that the

trial court has certified this issue for interlocutory appeal. As there has been no

final judgment on this issue or order certifying the issue for interlocutory

appeal, we lack jurisdiction to review Mickens’s claim regarding attorney’s fees.

See generally, Dailey Oil, Inc. v. Jet Star, Inc., 650 N.E.2d 345, 347 (Ind. Ct. App.

1995) (providing that absent authority by rule of our supreme court, we are

without original jurisdiction to review issues presented on appeal).

Conclusion [12] In sum, we conclude that the trial court did not err in concluding that the

change of beneficiary on Harvey’s life insurance policy was invalid or in

ordering CMFG to pay the proceeds of Harvey’s life insurance policy to

Harvey’s estate rather than Mickens. We further conclude that the trial court’s

order is not contrary to public policy, that Mickens has waived his claim of

alleged bias by the trial court, and that we lack jurisdiction to review the trial

court’s decision to take the Estate’s request for attorney’s fees under

advisement. [13] The judgment of the trial court is affirmed.

Pyle, J., concurs.

Baker, J., concurs in part with opinion.

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IN THE COURT OF APPEALS OF INDIANA

Carl Mickens, Court of Appeals Case No. 49A05-1508-PL-1133 Appellant-Defendant,

v.

CMFG Life Insurance Company, Appellee-Plaintiff,

and

The Estate of Harvey Mickens, Synovia Vardiman & Pearline Harris, Individually and as Administrators of the Estate of Harvey Mickens,

Appellees-Defendants.

Baker, Judge, concurring in part. [14] As I agree with the majority’s conclusion that we do not have jurisdiction to

hear this case and have voted to grant the appellees’ motion to dismiss the

appeal, I concur only with Part IV of the majority opinion.

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