Drake v. Old National Trust Co.

871 N.E.2d 352, 2007 Ind. App. LEXIS 1802, 2007 WL 2257161
CourtIndiana Court of Appeals
DecidedAugust 8, 2007
DocketNo. 77A01-0610-CV-463
StatusPublished
Cited by1 cases

This text of 871 N.E.2d 352 (Drake v. Old National Trust Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drake v. Old National Trust Co., 871 N.E.2d 352, 2007 Ind. App. LEXIS 1802, 2007 WL 2257161 (Ind. Ct. App. 2007).

Opinion

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Ralph Drake appeals the trial court’s grant of summary judgment to Old National Trust Co. and other defendants on Drake’s action seeking an order that he held the right to purchase certain real estate (“the Property”) owned by the late Frances G. Birdsong.

We affirm.

ISSUE

Whether the trial court erred in granting the motion for summary judgment.

FACTS

On October 4, 1994, Birdsong executed her last will and testament (“Will”). In Item I, the Will directed that from her estate, her personal representative pay her debts, the expenses of her last illness and burial, and the administration costs and taxes resulting from her death. The next [353]*353provision, Item 2, “g[a]ve, devise[d] and bequeath[ed] all the rest and residue of [her] estate, real or personal and wheresoever situate, to [the predecessor of Old National], as Trustee and in trust, on terms and conditions and for the uses and purposes” provided in the nine articles that followed. (App.66).

The articles named the Frances G. Birdsong Testamentary Trust (“Testamentary Trust”), and granted Old National “full power and authority ... to sell or otherwise dispose of all or any part of’ the assets of the trust, including “real” property, “according to its sole judgment and discretion without limitation.” (App.66, 67). Article 5 specified that upon the sale of any asset, the proceeds were to be added to the principal of the Testamentary Trust. Article 7 provided that the Testamentary Trust income was to “be paid to and or for the benefit of [her] daughter, Sue Darlene Birdsong,1 for and during her lifetime,” and that Old National was authorized to “invade the principal” for her “care, comfort and support.” (App.69). Further, upon the daughter’s death, the Testamentary Trust was to terminate, with one-third “of the trust Estate” to be distributed to “Conrad Griffith and Mahala Griffith, husband and wife, if living, or if both of them are deceased, ... to Terry Griffith,” with “the remaining Trust Estate” to be distributed equally among her nieces and nephews and those of her deceased husband. Id.

Following the nine articles of the Testamentary Trust, Item III of her will provided that in the event her daughter predeceased Birdsong, the estate would be distributed in the same manner as provided for in the Testamentary Trust upon death of the daughter. Item IV of her will requested that one of the Griffiths be named her daughter’s guardian if “either needed or required.” (App.70). Then, Item V of her will states as follows:

I hereby request and direct that Ralph Drake shall have the first option to purchase the real estate I own on the date of my death in Sullivan County, Indiana,2 at the time of sale of said real estate.

Id. Item VI of the Will named attorney Jeffrey A. Boyll as Personal Representative of the Will.

On November 19, 1999, as attorney-in-fact for Birdsong pursuant to a power of attorney dated March 30, 1993, Conrad Griffith created the Frances G. Birdsong “Revocable Trust” on her behalf. (App.73). The Revocable Trust designated Old National as Trustee and directed Old National to pay the entire net income of the Revocable Trust for the benefit of Frances G. Birdsong. Further, Old National was granted “complete power to do all things which it may deem desirable or expedient” to do for the benefit of “the [Revocable] Trust Estate,” including the power to convey or sell property “on such terms and conditions as [Old National] should deem best.” (App.74, 75).

On December 30, 1999, Birdsong executed a quitclaim deed conveying the Property to Old National, as trustee under the Revocable Trust. On June 3, 2001, Birdsong died.

Counsel for Birdsong’s estate sent a letter dated September 3, 2001, to Drake informing him that the Property had been appraised at $608,500.00, the details of which were available for his review, and [354]*354that he could purchase the Property for that amount within thirty days of receiving the letter. Drake requested an additional sixty days “to consider purchasing the real estate.” (App.171). He was granted “until December 12, 2001 to complete the purchase” of the Property, and was advised that “his option to do so” would “expire” if he did not act accordingly. (App.172). Drake did not proceed with the purchase.

On February 7, 2002, an auction of the Property was conducted by Johnny Swalls Auction and Appraisal, Inc. Some of the co-defendants in this action bid on parcels of the Property. Drake attended the auction, but he did not bid. The highest auction bids for the Property, totaling $515,445.00, were accepted by Boyll, as personal representative of Birdsong’s estate and agent for Old National.

On March 6, 2002, Drake advised Boyll by letter that “the language of the will is that the option is activated at the time of sale of said real estate,” which he believed was set when the purchase price for the Property was determined. (App.175). The letter further stated that Drake was now “exercising his option to purchase” the Property, and sought “documentation to allow [him] ninety (90) days to complete his option on the same terms as the bidders at the auction.” Id. Apparently, an agreement to rescind the auction results could not be reached with the successful bidders/purchasers of the Property.3

Therefore, on March 27, 2002, Drake filed a complaint against Old National and Boyll, the personal representative of Birdsong’s estate, seeking an order for specific performance of his alleged right to purchase the Property.4 On April 14, 2003, Drake filed an amended complaint, adding the auction company and successful bidders as defendants. The amended complaint sought a determination that Drake possessed a “right and option to purchase” the Property and an order for specific performance in that regard. (App.32). The amended complaint also alleged that the December 20, 1999, quitclaim deed executed by Birdsong that conveyed the Property to Old National was “void and of no force and effect by reason” Birdsong’s “lack of capacity” or being “not mentally competent to execute a deed or transact business on” the date thereof. (App.29). Thereafter, the parties engaged in discovery.

On January 20, 2006, Old National filed a motion for summary judgment, with designated evidence and a memorandum of law in support. Subsequently, the other defendants filed similar motions. Drake filed a memorandum opposing summary judgment, with designated evidence. The trial court heard oral argument on August 22, 2006.

On August 23, 2006, the trial court granted summary judgment to Old National and the other defendants. The trial court found that it was not until “March 6, 200[2] (27 days after the auction)” that Drake “attempted to assert his rights, if any, under Item V” of the Will. (App.20). The trial court then concluded that by waiting “until twenty-seven days after the sale to attempt to exercise his first option to purchase at the time of the sale,” Drake had “waived whatever rights he was given, if any, under Item V” of the Will. (App.21). It further found that “[h]aving waived” any rights given to him under the Will, he did “not have standing to attempt to set [355]

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Bluebook (online)
871 N.E.2d 352, 2007 Ind. App. LEXIS 1802, 2007 WL 2257161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-old-national-trust-co-indctapp-2007.