MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 22 2019, 6:22 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Timothy C. Krsak Benjamin T. Ballou Douglas Koeppen & Hurley Hodges and Davis, P.C. Valparaiso, Indiana Merrillville, Indiana
Brian P. Popp Laszlo & Popp, P.C. Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Unsupervised Estate of May 22, 2019 Margaret A. Exo Court of Appeals Case No. 18A-EU-3107 Sarah Marie Exo and Amy Elizabeth Gould, Appeal from the Porter Superior Court Appellants-Petitioners, The Honorable Roger V. v. Bradford, Judge The Honorable Mary A. DeBoer, Timothy DonLevy, in his capacity Magistrate as Personal Representative of the Trial Court Cause No. Estate of Margaret A. Exo, 64D01-1711-EU-10753 Appellee-Respondent
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 1 of 8 Case Summary [1] Margaret A. Exo’s Last Will and Testament (“the Will”) named the Margaret
A. Exo Revocable Living Trust (“the Trust”) as sole beneficiary of Margaret’s
estate (“the Estate”). The Will named Timothy DonLevy as personal
representative of the Estate, and the Trust named DonLevy as successor trustee
of the Trust upon Margaret’s death. Almost a year after Margaret’s death, her
daughters, Sarah Marie Exo and Amy Elizabeth Gould (“Daughters”) filed
petitions under two different trial court cause numbers to docket the Trust and
to compel a Trust accounting. Daughters filed one petition under a trust cause
number (“the Trust Case”), and essentially the same petition with the probate
court under the cause number associated with the unsupervised Estate (“the
Estate Case”). DonLevy, in his capacity as successor trustee of the Trust, filed
a motion to dismiss the petition filed in the Trust Case. Similarly, in his
capacity as personal representative, he filed motions to strike and to dismiss the
petition filed in the Estate Case. Separate orders granting DonLevy’s motions
and dismissing Daughters’ petitions were issued by the Porter Superior Court.
Daughters appeal the dismissal of each petition, and today we issue the current
decision affirming the trial court’s dismissal in the Estate Case and a
companion decision reversing the dismissal in the Trust Case. See Exo v. The
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 2 of 8 Margaret A. Exo Revocable Living Tr., No. 18A-TR-3106 (Ind. Ct. App. May 22,
2019).1
Facts and Procedural History [2] The facts relevant to our consideration of Daughters’ petitions under each cause
number differ slightly. On October 3, 2017, Margaret died testate while
domiciled in Porter County. The Will, dated September 28, 2013, named
DonLevy as personal representative and the Trust as the sole beneficiary of the
Estate. Margaret had originally executed the Trust on March 31, 2003, with
amendments occurring on December 16, 2010, and September 28, 2013.
Although Margaret was named as trustee of the Trust, the September 2013
amendment to the Trust named DonLevy as successor trustee. Per the terms of
the Trust, upon its termination which occurred at Margaret’s death, Daughters
are each entitled to receive annuity payments over a twenty-year term.
Following Margaret’s death, on November 9, 2017, DonLevy filed a notice to
open an estate with the probate court and a petition for “Probate of Will and
Issuance of Letters Testamentary and for Unsupervised Administration.”
Appellants’ App. Vol. 2 at 5. On November 20, 2017, the probate court entered
its order probating the will, appointing DonLevy as personal representative, and
ordering unsupervised administration of the Estate.
1 Our motions panel denied Daughters’ request to consolidate the appeals and instead directed that the appeals under each trial court cause number be assigned to the same writing panel.
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 3 of 8 [3] In May 2018, Daughters appeared by counsel in the Estate Case. Sometime
thereafter, Daughters sought certain information from DonLevy, in his capacity
as successor trustee of the Trust, regarding the Trust and its assets. When
Daughters’ efforts to obtain that information failed, on September 10, 2018,
they filed a “Verified Petition to Compel Estate Inventory, to Docket the
Margaret A. Exo Revocable Living Trust, and to Compel Trust Accounting”
under the cause number assigned to the unsupervised estate, 64D01-1711-EU-
10753, in the Estate Case. Id. at 6.2 In short, Daughters requested the probate
court to order DonLevy, in his capacity as personal representative, to file an
inventory of the Estate’s assets, and to order him, in his capacity as successor
trustee of the Trust, to docket the Trust instrument and to provide Daughters
with an accounting of Trust property. That same day, DonLevy filed an
inventory of the Estate’s assets with the probate court. The court set the
Daughters’ petition for a November 14, 2018, hearing. However, on November
7, 2018, DonLevy filed motions to strike and to dismiss Daughters’ petition
pursuant to Indiana Trial Rules 12(F) and 12(B)(6), along with a memorandum
of law in support of the motions. Daughters filed their response to DonLevy’s
motions, and DonLevy filed his reply. On November 30, 2018, the probate
court entered its order summarily granting DonLevy’s motions without a
hearing. This appeal ensued.
2 Daughters filed a virtually identical petition to docket the Trust and to compel a Trust accounting in the Porter Superior Court in the Trust Case under cause number 64D02-1809-TR-8722. We address the trial court’s resolution of that petition in the companion decision issued today in Exo v. The Margaret A. Exo Revocable Living Tr., No. 18A-TR-3106 (Ind. Ct. App. May 22, 2019).
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 4 of 8 Discussion and Decision [4] Daughters argue that the probate court improperly granted DonLevy’s motions
to strike and to dismiss their petition, filed in the Estate Case, to docket the
Trust and compel a Trust accounting. We disagree.
[5] Indiana Trial Rule 12(F) provides that “the court may order stricken from any
pleading any insufficient claim or defense or any redundant, immaterial,
impertinent, or scandalous matter.” A motion to strike pursuant to Trial Rule
12(F) is properly utilized to attack the sufficiency of the complaint to state a
redressable claim. Anderson v. Anderson, 399 N.E.2d 391, 407 (Ind. Ct. App.
1979). A trial court has broad discretion in ruling on a motion to strike a
pleading, and its decision will not be reversed unless prejudicial error is clearly
shown. Cua v. Ramos, 433 N.E.2d 745, 752 (Ind. 1982).
[6] Similarly, an Indiana Trial Rule 12(B)(6) motion to dismiss for failure to state a
claim tests the legal sufficiency of the plaintiff’s claim. Bellwether Prop., LLC v.
Duke Energy Ind., Inc.,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 22 2019, 6:22 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Timothy C. Krsak Benjamin T. Ballou Douglas Koeppen & Hurley Hodges and Davis, P.C. Valparaiso, Indiana Merrillville, Indiana
Brian P. Popp Laszlo & Popp, P.C. Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Unsupervised Estate of May 22, 2019 Margaret A. Exo Court of Appeals Case No. 18A-EU-3107 Sarah Marie Exo and Amy Elizabeth Gould, Appeal from the Porter Superior Court Appellants-Petitioners, The Honorable Roger V. v. Bradford, Judge The Honorable Mary A. DeBoer, Timothy DonLevy, in his capacity Magistrate as Personal Representative of the Trial Court Cause No. Estate of Margaret A. Exo, 64D01-1711-EU-10753 Appellee-Respondent
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 1 of 8 Case Summary [1] Margaret A. Exo’s Last Will and Testament (“the Will”) named the Margaret
A. Exo Revocable Living Trust (“the Trust”) as sole beneficiary of Margaret’s
estate (“the Estate”). The Will named Timothy DonLevy as personal
representative of the Estate, and the Trust named DonLevy as successor trustee
of the Trust upon Margaret’s death. Almost a year after Margaret’s death, her
daughters, Sarah Marie Exo and Amy Elizabeth Gould (“Daughters”) filed
petitions under two different trial court cause numbers to docket the Trust and
to compel a Trust accounting. Daughters filed one petition under a trust cause
number (“the Trust Case”), and essentially the same petition with the probate
court under the cause number associated with the unsupervised Estate (“the
Estate Case”). DonLevy, in his capacity as successor trustee of the Trust, filed
a motion to dismiss the petition filed in the Trust Case. Similarly, in his
capacity as personal representative, he filed motions to strike and to dismiss the
petition filed in the Estate Case. Separate orders granting DonLevy’s motions
and dismissing Daughters’ petitions were issued by the Porter Superior Court.
Daughters appeal the dismissal of each petition, and today we issue the current
decision affirming the trial court’s dismissal in the Estate Case and a
companion decision reversing the dismissal in the Trust Case. See Exo v. The
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 2 of 8 Margaret A. Exo Revocable Living Tr., No. 18A-TR-3106 (Ind. Ct. App. May 22,
2019).1
Facts and Procedural History [2] The facts relevant to our consideration of Daughters’ petitions under each cause
number differ slightly. On October 3, 2017, Margaret died testate while
domiciled in Porter County. The Will, dated September 28, 2013, named
DonLevy as personal representative and the Trust as the sole beneficiary of the
Estate. Margaret had originally executed the Trust on March 31, 2003, with
amendments occurring on December 16, 2010, and September 28, 2013.
Although Margaret was named as trustee of the Trust, the September 2013
amendment to the Trust named DonLevy as successor trustee. Per the terms of
the Trust, upon its termination which occurred at Margaret’s death, Daughters
are each entitled to receive annuity payments over a twenty-year term.
Following Margaret’s death, on November 9, 2017, DonLevy filed a notice to
open an estate with the probate court and a petition for “Probate of Will and
Issuance of Letters Testamentary and for Unsupervised Administration.”
Appellants’ App. Vol. 2 at 5. On November 20, 2017, the probate court entered
its order probating the will, appointing DonLevy as personal representative, and
ordering unsupervised administration of the Estate.
1 Our motions panel denied Daughters’ request to consolidate the appeals and instead directed that the appeals under each trial court cause number be assigned to the same writing panel.
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 3 of 8 [3] In May 2018, Daughters appeared by counsel in the Estate Case. Sometime
thereafter, Daughters sought certain information from DonLevy, in his capacity
as successor trustee of the Trust, regarding the Trust and its assets. When
Daughters’ efforts to obtain that information failed, on September 10, 2018,
they filed a “Verified Petition to Compel Estate Inventory, to Docket the
Margaret A. Exo Revocable Living Trust, and to Compel Trust Accounting”
under the cause number assigned to the unsupervised estate, 64D01-1711-EU-
10753, in the Estate Case. Id. at 6.2 In short, Daughters requested the probate
court to order DonLevy, in his capacity as personal representative, to file an
inventory of the Estate’s assets, and to order him, in his capacity as successor
trustee of the Trust, to docket the Trust instrument and to provide Daughters
with an accounting of Trust property. That same day, DonLevy filed an
inventory of the Estate’s assets with the probate court. The court set the
Daughters’ petition for a November 14, 2018, hearing. However, on November
7, 2018, DonLevy filed motions to strike and to dismiss Daughters’ petition
pursuant to Indiana Trial Rules 12(F) and 12(B)(6), along with a memorandum
of law in support of the motions. Daughters filed their response to DonLevy’s
motions, and DonLevy filed his reply. On November 30, 2018, the probate
court entered its order summarily granting DonLevy’s motions without a
hearing. This appeal ensued.
2 Daughters filed a virtually identical petition to docket the Trust and to compel a Trust accounting in the Porter Superior Court in the Trust Case under cause number 64D02-1809-TR-8722. We address the trial court’s resolution of that petition in the companion decision issued today in Exo v. The Margaret A. Exo Revocable Living Tr., No. 18A-TR-3106 (Ind. Ct. App. May 22, 2019).
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 4 of 8 Discussion and Decision [4] Daughters argue that the probate court improperly granted DonLevy’s motions
to strike and to dismiss their petition, filed in the Estate Case, to docket the
Trust and compel a Trust accounting. We disagree.
[5] Indiana Trial Rule 12(F) provides that “the court may order stricken from any
pleading any insufficient claim or defense or any redundant, immaterial,
impertinent, or scandalous matter.” A motion to strike pursuant to Trial Rule
12(F) is properly utilized to attack the sufficiency of the complaint to state a
redressable claim. Anderson v. Anderson, 399 N.E.2d 391, 407 (Ind. Ct. App.
1979). A trial court has broad discretion in ruling on a motion to strike a
pleading, and its decision will not be reversed unless prejudicial error is clearly
shown. Cua v. Ramos, 433 N.E.2d 745, 752 (Ind. 1982).
[6] Similarly, an Indiana Trial Rule 12(B)(6) motion to dismiss for failure to state a
claim tests the legal sufficiency of the plaintiff’s claim. Bellwether Prop., LLC v.
Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017). We review a Rule
12(B)(6) dismissal de novo, and we accept as true the facts alleged, viewing the
pleadings in the light most favorable to the nonmoving party, with “every
reasonable inference construed in the nonmovant’s favor.” BloomBank v. United
Fid. Bank F.S.B., 113 N.E.3d 708, 720 (Ind. Ct. App. 2018) (citation omitted),
trans. denied (2019). Our review of the trial court’s decision under Trial Rule
12(B)(6) is de novo because “deciding a motion to dismiss based upon failure to
state a claim involves a pure question of law.” Gordon v. Purdue Univ., 862
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 5 of 8 N.E.2d 1244, 1250 (Ind. Ct. App. 2007). When, as here, a court grants a
motion to dismiss without reciting the grounds relied upon, it must be
presumed on review that the court granted the motion to dismiss on all the
grounds in the motion. Lawson v. First Union Mortg. Co., 786 N.E.2d 279, 281
(Ind. Ct. App. 2003).
[7] DonLevy’s motions to strike and dismiss Daughters’ petition in the Estate Case
were based upon the assertion that Daughters are not “interested persons” as
defined by the Probate Code, and therefore they cannot pursue remedies and/or
claims in the Estate Case regarding the Trust. The Probate Code “specifically
circumscribes” the instances when “interested persons” may “inject themselves
into the administration of [an] estate.” Inlow v. Henderson, Daily, Withrow &
DeVoe, 787 N.E.2d 385, 393 (Ind. Ct. App. 2003), trans. denied. The term
“interested persons” is defined in Indiana Code Section 29-1-1-3 as “heirs,
devisees, spouses, creditors, or any others having a property right in or claim
against the estate of a decedent being administered. This meaning may vary at
different stages and different parts of a proceeding and must be determined
according to the particular purpose and matter involved.”
[8] At this stage of the unsupervised Estate Case, and according to the particular
purpose of Daughters’ petition (which is to compel the docketing of the Trust
and a Trust accounting), we agree with DonLevy that Daughters are not
interested persons as contemplated by the Probate Code. It is undisputed that
the Trust is the sole beneficiary of the Estate. Daughters make no assertion in
their petition that they have a property right or claim against the Estate, and
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 6 of 8 they seek no remedy from the Estate itself.3 From our thorough review of
Daughters’ petition, it is clear that at this late juncture, they do not seek to
inject themselves into the administration of the Estate, but they do seek to inject
themselves into the administration of the Trust.
[9] We further observe that Daughters’ petition in the Estate Case is redundant of
their almost identical petition filed in the Trust Case, which, as we already
noted, we address by separate decision issued today.4 Daughters concede that
they filed duplicative petitions because they were simply “unsure” whether to
seek relief from the probate court under the Estate cause number or under an
independent cause number. Appellants’ Br. at 5.5 We think the filing of a
petition under an independent trust cause number was the proper avenue, see
Ind. Code § 30-4-6-5 (providing that “[a]ny proceedings under this article may
be initiated on either petition or complaint and upon notice provided” in
Indiana Code Section 30-4-6-6), and Daughters have shown no prejudicial error
3 Daughters briefly mention that by seeking to docket the Trust, they are simply “pursu[ing] assets on behalf of the Estate.” Reply Br. at 4. However, Daughters have no such authority, as it is well settled that only DonLevy, in his capacity as personal representative, is entitled to pursue assets on behalf of the Estate. See Ind. Code § 29-1-13-1 (personal representative shall have right to take, and shall take, possession of all real and personal property of decedent); Ind. Code § 29-1-13-3 (personal representative shall have power to maintain any suit for any demand of whatever nature due the decedent or his estate). 4 The only difference in the current petition is Daughters’ request for the court to compel DonLevy to file an inventory of the Estate’s assets, and Daughters admit that he has since done so. Accordingly, that portion of the petition has been rendered moot. Horseman v. Keller, 841 N.E.2d 164, 170 (Ind. 2006) (mootness doctrine leads courts to decline to address merits of claims that have otherwise been resolved). 5 Daughters suggest that they filed duplicative petitions because it was possible that the Estate court would have continuing jurisdiction over the administration of the Trust even after the distribution was made from the Estate to the Trust. However, the default rule is that “with respect to a decedent’s estate docketed for the purpose of probate administration … the court shall have no continuing jurisdiction over the administration of the trust after any distribution from the estate is paid or delivered to the trustee.” Ind. Code § 30-4-6-4(2); In re Edwardson Revocable Trust, 949 N.E.2d 851, 854 (Ind. Ct. App. 2011), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 7 of 8 as a result of the dismissal of their redundant petition. Therefore, we affirm the
probate court’s order striking and dismissing Daughters’ petition filed in the
Estate Case.
[10] Affirmed.
Bradford, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019 Page 8 of 8