Bona Lou Press v. The Estate of Lorien Cress, The Estate of Halden Schueler, Kenneth Schueler, Marlene Schueler, and The 2016 Haspel Family Trust Dated July 15, 2016 (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 12, 2018
• Docket: 18A-MI-1609
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing the defense of res judicata, collateral Dec 12 2018, 9:09 am

estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES John J. Schwarz, II Katherine Ridenour Schwarz Law Office, PC Nathan S.J. Williams Hudson, Indiana Shambaugh Kast Beck & Williams, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bona Lou Press, Guy S. Cress, December 12, 2018 Kimsey C. Cress, Court of Appeals Case No. Appellants-Petitioners, 18A-MI-1609 Appeal from the Adams Circuit v. Court The Honorable Chad E. Kukelhan, The Estate of Lorien Cress, The Judge Estate of Halden Schueler, Trial Court Cause No. Kenneth Schueler, Marlene 01C01-1711-MI-56 Schueler, and The 2016 Haspel Family Trust Dated July 15, 2016, Appellees-Respondents.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018 Page 1 of 6 Bradford, Judge.

Case Summary [1] Bona Lou Press, Guy S. Cress, and Kimsey C. Cress (collectively,

“Appellants”) filed an action contesting the validity of Lorien Cress’s will. The

action was subsequently dismissed after Appellants failed to timely serve

summonses upon the Estate of Lorien Cress, the Estate of Halden Schueler,

Kenneth Schueler, Marlene Schueler, and the 2016 Haspel Family Trust

(collectively, “Appellees”). Appellants contend that the trial court erred in

dismissing the action. Alternatively, Appellants contend that even if the trial

court properly dismissed the action, they should be able to re-file their action

pursuant to the Journey’s Account Statute (“the JAS”). Because we conclude

that the trial court did not err in dismissing Appellants’ action and that

Appellants’ reliance on the JAS is misplaced, we affirm.

Facts and Procedural History [2] Lorien Cress died on July 17, 2017. Approximately one month later, Kenneth

Schueler petitioned to probate Cress’s will, which was dated November 24,

2015. The trial court entered an order to probate the will on August 22, 2017.

[3] Appellants initiated a will contest on November 17, 2017. In doing so,

Appellants tendered their complaint and summonses to the Adams County

Clerk. The tendered summonses indicated that rather than have the Clerk’s

Office or the Sheriff serve the summonses, Appellants elected to serve Appellees Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018 Page 2 of 6 with process by their attorney “sending a copy of the summons and petition by

registered or certified mail, return receipt requested, to [Appellees] at [their]

address[es] set forth in the summons.” Appellees’ App. Vol. II p. 21. The

Clerk returned the summonses to Appellants’ counsel for service to Appellees.

Counsel, however, did not serve or even attempt to serve the summonses on the

Appellees.

[4] On January 18, 2018, Appellees moved to dismiss the action, claiming that they

had not been timely served with the summonses. Soon thereafter, Appellants

served copies of the summonses and complaint upon Appellees by certified

mail. The trial court granted Appellees’ motion to dismiss on April 19, 2018.

Appellants filed a motion to correct error on May 21, 2018, which motion the

trial court denied on June 8, 2018.

Discussion and Decision I. Dismissal of Action [5] Appellants contend that the trial court erred by denying their will contest

following their failure to timely serve Appellees with summonses. Because the

relevant facts are undisputed, the question before us is one of law and we

review the trial court’s ruling de novo. Blackman v. Gholson, 46 N.E.3d 975, 977

(Ind. Ct. App. 2015). In such cases, we may affirm an order granting “a motion

to dismiss based upon any theory or basis supported by the record, regardless of

the explanation provided by the trial court.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018 Page 3 of 6 [6] Indiana Code section 29-1-7-17 provides that

Any interested person may contest the validity of any will in the court having jurisdiction over the probate of the will within three (3) months after the date of the order admitting the will to probate by filing in the same court, in a separate cause of action, the person’s allegations in writing verified by affidavit, setting forth: (1) the unsoundness of mind of the testator; (2) the undue execution of the will; (3) that the will was executed under duress or was obtained by fraud; or (4) any other valid objection to the will’s validity or the probate of the will. The executor and all other persons beneficially interested in the will shall be made defendants to the action.

“When an action is brought to contest the validity of any will … notice is

served upon the defendants in the same manner as required by the Indiana

Rules of Trial Procedure.” Ind. Code § 29-1-7-18(a). This includes issuing

summonses to all interested parties. See Ind. Trial Rules 3 & 4(A).

[7] It has long been established that a “proceeding to contest a will is a statutory

action; it may be filed only within the time and upon grounds prescribed by the

statutes.” Matter of Niemiec’s Estate, 435 N.E.2d 999, 1001 (Ind. Ct. App. 1982).

Although Appellants acknowledge this, they claim that their failure to timely

issue the summonses was not grounds for dismissal. In support, they cite to

Milligan v. Denham, 553 N.E.2d 1265 (Ind. Ct. App. 1990). In Milligan, the

plaintiffs filed a timely will contest and provided the necessary summonses to

the court. 553 N.E.2d at 1266. Service was to be completed by the sheriff,

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018 Page 4 of 6 who, for some reason, failed to complete service within the statutorily-

mandated timeframe. Id. On appeal, we found that the trial court erred in

dismissing the action because the lack of service was of no fault of the plaintiffs.

Id. Unlike in Milligan, however, the failure to serve Appellees with the

summonses was the fault of Appellants’ attorney. Such a distinction is

especially relevant because it demonstrates that the failure of service was caused

by negligence on the part of Appellants and their representative, not a third

party.

[8] Again, it is undisputed that Appellants failed to serve Appellees with the

summonses within the time set forth in the will contest statutes. In Blackman,

we concluded that plaintiff’s failure to comply with the will contest statutes and

Trial Rules “properly subjected his filing to dismissal.” 46 N.E.3d at 980. We

reach the same conclusion in this case. The trial court did not err in dismissing

the Appellants’ will contest.

II. The JAS [9] Appellants alternatively contend that even if dismissal was proper, they should

be permitted to re-file their will contest pursuant to the JAS. The JAS, codified

at Indiana Code section 34-11-8-1(a)(1), provides that if a plaintiff “fails in the

action from any cause except negligence in the prosecution of the action,” the

plaintiff may initiate a new action no later than three years after the failure or

reversal of the cause of action. “The purpose of the JAS is to provide for

continuation of a cause of action when a plaintiff fails to obtain a decision on

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018 Page 5 of 6 the merits for some reason other than his or her own neglect and the statute of

limitations period expires while the suit is pending.” Blackman, 46 N.E.3d at

980–81 (emphasis added).

[10] Appellants do not dispute that under the JAS relief is not available where a

dismissal resulted from a plaintiff’s negligence in the prosecution of the action.

In this case, the dismissal resulted from Appellants’ failure to even attempt to

serve Appellees with the summonses within the statutorily-mandated three-

month period. Appellants’ only explanation for this failure was that they were

“partially impeded in issuing the summons, complaint and appearance due to

the Thanksgiving and Christmas Holidays following the filing of the will

contest.” Appellees’ App. Vol. II, p. 10. The trial court found that Appellants’

failure to diligently ensure that Appellees were timely notified of the action

constituted negligence by Appellants in prosecuting the action. We agree, and,

as a result, conclude that Appellants are not entitled to relief pursuant to the

JAS.

[11] The judgment of the trial court is affirmed.

Bailey, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018 Page 6 of 6