Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
ERIC C. BOHNET MICHAEL D. HAWK Indianapolis, Indiana DAVID K. HAWK Hawk, Haynie, Kammeyer & Chickedantz LLP SCOTT A. WEATHERS Fort Wayne, Indiana The Weathers Law Office, PC
FILED Indianapolis, Indiana
May 31 2012, 9:18 am IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
RICHARD C. GALLOPS and ) PATRICIA A. GALLOPS, ) ) Appellants-Defendants, ) ) vs. ) No. 02A05-1107-CT-337 ) DAVID HUBBARD, Personal ) Representative of the Estate of ) Thelma M. Hubbard, Deceased, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Stanley A. Levine, Judge Cause No. 02D01-0711-CT-489
May 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge Case Summary
In a classic dispute between siblings over their mother’s assets, David Hubbard, acting
as personal representative for his mother’s estate (“the Estate”), brought an action against his
sister Patricia A. Gallops and her husband Richard C. Gallops (collectively, “the Gallopses”)
for breach of fiduciary duty. The complaint alleged that the Gallopses misappropriated
Thelma’s assets when they were acting as her attorneys-in-fact during her life. The Estate
filed a motion for partial summary judgment on the issue of liability, and the Gallopses filed
a response, accompanied by designated materials. The Estate filed a motion to strike the
Gallopses’ designated materials based on the Indiana Dead Man’s Statute. The trial court
granted the Estate’s motion to strike and eventually granted partial summary judgment in
favor of the Estate on the issue of liability. The parties proceeded to a bench trial on the
issue of damages.
After the trial court issued its judgment, the Gallopses filed a motion to correct error,
alleging that the trial court erred in striking their designated materials. The trial court held a
hearing and eventually denied the motion. The Gallopses filed a notice of appeal, again
claiming that the trial court erred in striking their designated materials. The Estate filed a
motion to dismiss the appeal as untimely, which was denied by the motions panel of this
Court. We now deny the Estate’s renewed motion to dismiss and address the appeal on its
merits. Finding that the materials were inadmissible under the Dead Man’s Statute and that
the Estate was entitled to partial summary judgment as a matter of law, we affirm.
2 Facts and Procedural History
In 2004, ninety-five-year-old Thelma Hubbard suffered a fall that required
hospitalization. She also suffered from progressive dementia. Following her release from
the hospital in May 2004, she moved from Bedford to Fort Wayne to live with her daughter
and son-in-law, Patricia and Richard Gallops. She lived at the Gallopses’ Fort Wayne
residence for approximately a year and a half before moving to a local nursing facility in
January 2006, where she remained until her death later that year. At different times during
her twilight years, Thelma had issued powers of attorney in favor of her three children,
David, Patricia, and Larry, so that they could manage her affairs. When Thelma moved in
with the Gallopses in Fort Wayne, she gave Richard a durable power of attorney.
Thelma died on November 3, 2006, and her last will and testament designated David
and Patricia as co-executors of her estate. David obtained a transfer of Thelma’s will from
Lawrence County and opened her estate in Allen County. He did not seek to have Patricia
appointed as co-executor because he had discovered financial statements implicating her in
malfeasance against Thelma, i.e., that she and Richard had depleted Thelma’s accounts by
writing numerous checks from the accounts and making electronic withdrawals for their own
3 benefit1 and that they could not account for the whereabouts of Thelma’s Buick Skylark that
she had taken with her to Fort Wayne.
In December 2007, David filed a lawsuit on behalf of the Estate, claiming that the
Gallopses had breached their fiduciary duty as attorneys-in-fact for Thelma and were
indebted to the Estate for over $84,000. The Estate filed a motion for partial summary
judgment on this issue of liability for the unaccounted-for sums. In their response in
opposition to partial summary judgment, the Gallopses designated as evidence Richard’s
affidavit, select portions of testimony from Richard’s and Patricia’s depositions, and an
accounting. The Estate then filed a motion to strike the Gallopses’ designated materials as
violating the Indiana Dead Man’s Statute. The trial court denied the Estate’s motion for
partial summary judgment but granted its motion to strike. Thereafter, the Estate filed a
motion to reconsider its motion for partial summary judgment, alleging that with the
Gallopses’ designated evidence stricken, no genuine issue of material fact remained
regarding their liability to the Estate. At a hearing on the motion to reconsider, the trial court
considered the effect of the stricken evidence as well as the Estate’s motion to exclude
1 We note that certain exhibits in the record contain Thelma’s full bank account numbers. Such account numbers ordinarily are redacted to maintain confidentiality. Ind. Administrative Rule 9(G). However, because these exhibits were offered in court without objection, we find that any confidentiality is waived pursuant to Indiana Administrative Rule 9(G)(1.2), which states,
During court proceedings that are open to the public, when information in case records that is excluded from public access pursuant to this rule is admitted into evidence, the information shall remain excluded from public access only if a party or a person affected by the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively requests that the information remain excluded from public access.
4 certain testimony and exhibits based on the Gallopses’ failure to timely exchange witness and
exhibit lists.
On February 11, 2010, the trial court granted the Estate’s motion to exclude and
motion to reconsider, entering summary judgment in favor of the Estate on the issue of
liability and ruling that the issue of damages would be determined at trial. Immediately
thereafter, the Gallopses sought an interlocutory appeal on the exclusion of witnesses. This
Court denied their petition for interlocutory appeal, and a bench trial ensued.
On February 25, 2011, the trial court issued findings of fact and conclusions thereon,
ordering the Gallopses to pay the Estate $91,323.92 in damages. The trial court also
concluded that an award of attorney’s fees may be appropriate due to a finding of
constructive fraud on the part of the Gallopses and ordered the Estate to make the proper
filings. On March 24, 2011, the Gallopses filed a motion to correct error.
On May 4, 2011, the trial court held a hearing on the motion to correct error and on
the Estate’s verified petition for attorney’s fees. At the close of the hearing, the trial judge
verbally instructed the parties to submit proposed findings of fact and conclusions thereon
within thirty days of the hearing and indicated that he would rule within thirty days after
receipt of the proposed findings. On June 3, 2011, both parties submitted their proposed
findings as instructed. On June 8, 2011, the trial court denied the Gallopses’ motion to
correct error. The court also granted the Estate’s verified petition for attorney’s fees and set
the fees issue for hearing. On July 6, 2011, the Gallopses filed this notice of appeal. The
Estate filed a motion to dismiss this appeal as untimely, which the motions panel of this
5 Court denied. The Estate now renews its motion to dismiss. Additional facts will be
provided as necessary.
Discussion and Decision
I. Timeliness of Appeal2
At the outset, we address the Estate’s renewed motion to dismiss this appeal as
untimely. Indiana Appellate Rule 9(A)(1) requires that a notice of appeal be filed within
thirty days after the trial court rules on the motion to correct error. Indiana Trial Rule 53.3
states,
In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.
Thus, the timeliness of this appeal hinges upon the timing of the trial court’s denial of the
Gallopses’ motion to correct error.
The parties dispute the exact date upon which the motion to correct error was denied
and thus the ensuing deadline for filing an appeal. The Estate asserts that the May 4, 2011
hearing triggered the thirty-day period and, with day one being May 5, 2011, the Gallopses’
motion therefore was automatically deemed denied on June 3, 2011. Ind. Appellate Rule
25(B). If that is so, then the thirty days within which the Gallopses were permitted to file a
We acknowledge the motions panel’s denial of the Estate’s motion to dismiss, but note that we may 2
reconsider the renewed motion.
6 notice of appeal would have expired on July 3, 2011. With that date falling on a Sunday and
followed by Independence Day, the appeal deadline would have fallen on July 5, 2011, one
day before the Gallopses filed their notice of appeal. Ind. Appellate Rule 25(A). In contrast,
the Gallopses argue that the hearing did not trigger the thirty-day period because, at its
conclusion, the trial court gave the parties thirty additional days to submit proposed findings
of fact and left open the issue of attorney’s fees.
In Paulsen v. Malone, 880 N.E.2d 312 (Ind. Ct. App. 2008), another panel of this
Court concluded that the thirty-day limit for a trial court to rule on a motion to correct error
under Indiana Trial Rule 53.3(A) began to run on the date of the hearing rather than on the
date parties submitted their additional authority: “Nothing in the language of the rule
suggests that the matter is still being ‘heard’ after the hearing terminates and while
supplemental authority is being offered.” Id. at 314-15.
More recently, in Wurster Construction Co. v. Essex Insurance Co., 918 N.E.2d 666
(Ind. Ct. App. 2009), another panel of this Court reaffirmed that Trial Rule 53.3 “denial is
automatic; it is self-activating upon the passage of the requisite number of days.” Id. at 671
(citation and internal quotation marks omitted). The Wurster court cited our supreme court’s
decision in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind. 2000), which reiterated the
automatic nature of the deemed denied rule, while emphasizing that the rule made a belated
grant “voidable and subject to enforcement of the ‘deemed denied’ provision of Trial Rule
53.3(A).” Wurster, 918 N.E.2d at 672 (quoting Cavinder, 726 N.E.2d at 288).
7 Unlike the instant case, Paulsen, Wurster, and Cavinder all involved subsequent
belated grants of motions to correct error. However, when the issue is solely a matter of
whether the appeal was timely filed, we find no basis for drawing a distinction as to whether
the court granted or denied the motion. Here, the trial court issued its order denying the
motion to correct error on June 8, 2011. Thus, the question is whether the thirty-day period
within which the Gallopses were required to file their appeal began on that date or the earlier
“deemed denied” date of June 3, 2011.
The Gallopses claim that the trial court’s verbal instructions regarding proposed
findings amounted to an extension of the time limitation for ruling on the motion to correct
error. In response, the Estate argues that the trial court failed to satisfy the requirements of
Indiana Trial Rule 53.3(D), which states in part,
The Judge before whom a Motion to Correct Error is pending may extend the time limitation for ruling for a period of no more than thirty (30) days by filing an entry in the cause advising all parties of the extension. Such entry must be in writing, must be noted in the Chronological Case Summary [“CCS”] before the expiration of the initial time period for ruling set forth under Section (A), and must be served on all parties.
(Emphasis added.) No such entry was made here.
The Gallopses concede that the trial court’s statements at the hearing “did not meet the
technical notice requirements of Rule 53.3(D).” Appellants’ Reply Br. at 11.
Notwithstanding, they contend that the trial court specifically extended the period for ruling
by instructing the parties in open court to submit proposed findings within thirty days of the
hearing, and stating, “I am going to take thirty (30) days from the time you do your findings
on the Motion to Correct Errors in which to rule on the Motion to Correct Errors and I will
8 take thirty (30) days thereafter. Mr. Hawk [counsel for the Estate], we are making a record
here[.]” MCE Tr. at 25-26 (emphases added).
The trial court did not make a written entry in the CCS indicating its thirty-day
extension to submit proposed findings. However, the CCS contains two entries for June 3,
2011, exactly thirty days after the hearing, stating that each party filed its proposed findings
as instructed at the hearing. This indicates that the parties were aware of and complied with
the trial court’s instructions despite the absence of a prior written notation in the CCS. As
such, the purpose of the writing requirement, notice to all parties, was accomplished by the
trial court’s statements in open court during the hearing on the motion to correct error. Thus,
despite their technical deficiency, the trial court’s instructions amounted to substantial
compliance with the rule. Moreover, the parties’ compliance with the trial court’s
instructions is evidence that the trial judge accomplished what he intended and attempted to
do, and, upon receipt of the proposed findings, the trial court promptly denied the motion to
correct error. Based on the foregoing, we conclude that the equities dictate that we address
this appeal on the merits.3 We therefore deny the Estate’s renewed motion to dismiss this
appeal.
3 To the extent the Gallopses argue that the trial court’s action in leaving open the attorney’s fees issue compels an extension of the deadline for filing an appeal, we disagree and note that entertaining a petition for fees post-judgment is virtually the norm and “does not disturb the merits of an earlier judgment or order, so it does not implicate Indiana Trial Rules 59(C) or 60(B).” R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 459-60 (Ind. 2012).
9 II. The Dead Man’s Statute
A. Testimony
The Gallopses first contend that the trial court erred in granting the Estate’s motion to
strike their testimony and other proffered evidence as incompetent and inadmissible pursuant
to the Dead Man’s Statute. We review a trial court’s ruling on witness competency for an
abuse of discretion. In re Unsupervised Estate of Harris, 876 N.E.2d 1132, 1135 (Ind. Ct.
App. 2007). An abuse of discretion occurs if the trial court’s decision contravenes the logic
and effect of the facts and circumstances before it or if the trial court has misinterpreted the
law. Id.
Indiana Code Section 34-45-2-4, commonly referred to as the Dead Man’s Statute,
prohibits testimony by survivors in certain circumstances in proceedings involving a
decedent’s estate. The general purpose of the Dead Man’s Statute is to protect a decedent’s
estate from spurious claims. Gabriel v. Gabriel, 947 N.E.2d 1001, 1009 (Ind. Ct. App.
2011). The statute specifically “guard[s] against false testimony by a survivor by establishing
a rule of mutuality, wherein the lips of the surviving party are closed by law when the lips of
the other party are closed by death.” Id. (citation and quotation marks omitted). When an
executor or administrator of an estate is one party, adverse parties are generally not
competent to testify about transactions that took place during the lifetime of the decedent. Id.
Under the Dead Man’s Statute, a witness is incompetent to testify when: (1) an administrator or executor is a party, or one of the parties is acting in the capacity of an administrator or executor; (2) the action involves matters that occurred during the lifetime of the decedent; (3) a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator; (4) the witness is a necessary party to the issue and not merely a
10 party to the record; and (5) the witness is adverse to the estate and testifies against the estate.[4]
In re Harris, at 1135-36 (citations and internal quotation marks omitted); Ind. Code § 34-
45-2-4.
Here, David was acting as executor of Thelma’s Estate when he brought the action
against the Gallopses. In addition, the Gallopses’ alleged misappropriation of Thelma’s
assets took place when they were acting as Thelma’s attorneys-in-fact during her lifetime.
Moreover, David brought the action seeking a judgment for the Estate that he represented
and against the Gallopses. Furthermore, the Gallopses were necessary parties to their alleged
misappropriation of Thelma’s assets. Finally, the Gallopses’ interest in the assets was
adverse to the Estate, against which they sought to testify. Based on the foregoing, we
conclude that the trial court acted within its discretion in ruling that the Gallopses were
incompetent to testify about matters involving Thelma pursuant to the Dead Man’s Statute.5
B. Accounting
The Gallopses also assert that the trial court erred in ruling that the Dead Man’s
Statute barred the admission of their accounting. In this vein, they first argue that the Estate
waived the right to challenge the admissibility of the accounting by referencing it in their
amended complaint. We disagree and note that mere allegations in a complaint do not
4 “An adverse interest that would render a witness incompetent is one by which the witness will gain or lose by the direct, legal operation of the judgment. The interest must be real, present, certain, and vested[.]” In re Harris, 876 N.E.2d at 1136. 5 To the extent the Gallopses attempted to submit Richard’s affidavit and portions of their depositions as evidence, we note that such writings are testimonial in nature. Pendergrass v. State, 913 N.E.2d 703, 706 (Ind. 2009). As such, they are inadmissible under the Dead Man’s Statute.
11 constitute evidence. See McDonald v. Lattire, 844 N.E.2d 206, 215 (Ind. Ct. App. 2006)
(emphasizing that paragraphs in plaintiff’s complaint are allegations, “not testimony,
affidavits, sworn statements, or evidence of any kind.”); see also Taylor v. Taylor, 643
N.E.2d 893, 895 (Ind. 1994) (holding that seeking discovery by deposition or request for
admission does not constitute waiver of incompetency under Dead Man’s Statute). We also
note that the Estate specifically objected to the admission of the accounting when offered at
trial. As such, the Estate did not waive the issue of the admissibility of the accounting.
The Gallopses also challenge the trial court’s substantive ruling that the accounting
was inadmissible under the Dead Man’s Statute. However, we find that they have waived
this issue for failure to make an offer of proof at trial. Ind. Evidence Rule 103; see
Dennerline v. Atterholt, 886 N.E.2d 582, 594 (Ind. Ct. App. 2008) (“Failure to make an offer
of proof results in waiver of an evidentiary issue.”), trans. dismissed.
III. Partial Summary Judgment
The Gallopses also contend that the trial court erred in granting partial summary
judgment in favor of the Estate on the issue of their liability for exerting undue influence.
We review the trial court’s decision to grant or deny summary judgment using the same
standard as the trial court. Woman Enters., Inc. v. Boone Cnty. Solid Waste Mgmt. Dist., 805
N.E.2d 369, 373 (Ind. 2004). A motion for summary judgment is properly granted only when
the pleadings and designated evidence reveal that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C);
Bank of New York v. Nally, 820 N.E.2d 644, 648 (Ind. 2005). In determining whether issues
12 of material fact exist, we must accept as true those facts established by evidence favoring the
nonmoving party and resolve all doubts against the moving party. Id. A trial court’s decision
to grant summary judgment is clothed with a presumption of validity, and the appellant bears
the burden of proving that the trial court erred. Alexander v. Marion Cnty. Sheriff, 891
N.E.2d 87, 92 (Ind. Ct. App. 2008), trans. denied (2009).
In granting partial summary judgment, the trial court found that, as a matter of law, the
Gallopses exerted undue influence upon Thelma that gave rise to a presumption of
constructive fraud. Undue influence is “the exercise of sufficient control over the person, the
validity of whose act is brought into question, to destroy his free agency and constrain him to
do what he would not have done if such control had not been exercised.” Gast v. Hall, 858
N.E.2d 154, 166 (Ind. Ct. App. 2006), trans. denied (2007). The universally recognized fact
that one who seeks to exert undue influence generally does so in privacy renders undue
influence cases rarely susceptible of direct or positive proof. Id. As a result, undue influence
may be proven by circumstantial evidence, with the only positive and direct proof being
circumstances from which one may reasonably infer that undue influence has been exerted.
Id. In these cases, “it is proper to consider the character of the proponents and beneficiaries,
and interest or motive on their part to unduly influence the testator, and facts and
surroundings giving them an opportunity to exercise such influence.” Id. (citation and
quotation marks omitted). Thus, because undue influence tends to be fact-sensitive, it is an
issue rarely disposed of via summary judgment. Id.
13 Certain legal and domestic relationships raise a presumption of trust and confidence
by the subordinate party on the one side and a corresponding influence by the dominant party
on the other. Supervised Estate of Allender v. Allender, 833 N.E.2d 529, 533 (Ind. Ct. App.
2005), trans. denied. Among those is the relationship between parent and child. Id.
Whereas in a parent-child relationship, the parent is generally the dominant party, an adult
child can be in the position of dominance by virtue of being the caretaker for the ailing
parent. Id. at 533-34.
In such cases, if the plaintiff’s evidence establishes (a) the existence of such a relationship, and (b) that the questioned transaction between those parties resulted in an advantage to the dominant person in whom trust and confidence was reposed by the subordinate, the law imposes a presumption that the transaction was the result of undue influence exerted by the dominant party, constructively fraudulent, and thus void. At that point, the burden of proof shifts to the dominant party who must demonstrate by clear and unequivocal proof that the questioned transaction was made at arm’s length and thus valid.
Id. at 533 (citations and quotation marks omitted). Thus, our review of an undue influence
finding includes whether the dominant party’s evidence was sufficient to rebut the
presumption of undue influence. Id.
Here, the trial court found that the Gallopses had used Thelma’s money to pay for
services that should have been gratuitous due to the family relationship. For example,
numerous checks were made out to Richard for financial services and mileage. Reciprocal,
natural, and moral duties of support and care give rise to a rebuttable presumption that
services are gratuitous when performed for family members. Cole v. Cole, 517 N.E.2d 1248,
1250 (Ind. Ct. App. 1988). To rebut the presumption, the family member providing services
must demonstrate the existence of an express or implied contract for remuneration. Prickett
14 v. Womersley, 905 N.E.2d 1008, 1012 (Ind. 2009). This requires the family member to
establish both “an intention on the part of [the] recipient of the services to pay or compensate
therefor, and an expectation of pay or compensation on the part of the one rendering the
services.” Id. (citation and quotation marks omitted). The record contains no such evidence
in this case.
Moreover, here, the Gallopses were not only family members, but they also served as
attorneys-in-fact for Thelma. This created an additional fiduciary relationship. Allender, 833
N.E.2d at 534. In such a case, the “fiduciary relationship coupled with the transfer of
substantial assets raises a presumption of undue influence.” Id. Although the Gallopses
correctly note that Indiana Code Section 30-5-9-2 ostensibly abrogated the common law
presumption of undue influence with respect to certain transactions benefiting an attorney-in-
fact,6 the presumption still exists where the attorney-in-fact used his power of attorney to
effect the transaction for his benefit. In re Estate of Compton, 919 N.E.2d 1181, 1186-87
(Ind. Ct. App. 2010), trans. denied.
Here, Richard was given a durable power of attorney specifically pertaining to
Thelma’s Bank One accounts. This enabled him to write checks and conduct electronic
banking vis-à-vis these accounts. The record is replete with checks made out to Richard and
electronic withdrawals and purchases with cash back. Some of the checks indicated that they
were for financial services; others contained a notation indicating a loan, yet there is no
6 Indiana Code Section 30-5-9-2(b) states that a transfer or transaction is not presumed to be valid or invalid if it is made by the principal, benefits the principal’s attorney-in-fact, and is “not made by an attorney in fact acting for the principal under a power of attorney.” (Emphasis added.)
15 evidence that any such loan was ever repaid. In short, Richard used the power of attorney to
transact banking for his own benefit. Thus, the record supports the trial court’s finding of
undue influence as a matter of law. Consequently, the trial court did not err in granting the
Estate’s motion for partial summary judgment.
IV. Damages
In their reply brief, the Gallopses challenge the $91,323.92 damage award as
excessive. In their initial appellant’s brief, they make scattered references to sums that
allegedly were not used for their benefit in conjunction with their challenge to the undue
influence finding. However, they did not raise damages as a separate issue until their reply
brief. Thus, we find that they have waived this issue for failure to develop it and provide
cogent argument in their initial appellant’s brief. See Monroe Guar. Ins. Co. v. Magwerks
Corp., 829 N.E.2d 968, 977 (Ind. 2005) (stating that grounds for error may be framed only in
appellant’s initial brief and if raised for first time in reply brief, they are waived); see also
Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”); Ind. Appellate
Rule 46(A)(8) (stating that in appellant’s brief, argument on each issue must be supported by
cogent reasoning).
V. Attorney’s Fees
Finally, the Gallopses challenge the trial court’s decision to award attorney’s fees to
the Estate. We review a trial court’s decision to grant a petition for attorney’s fees for an
abuse of discretion. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind.
2012).
16 In addressing the attorney’s fees issue, we first note that Indiana generally adheres to
the American rule that a party must pay his own attorney’s fees absent an agreement between
the parties, a statute, or other rule to the contrary. Id. at 458. Here, the parties did not have
an agreement regarding attorney’s fees. With respect to any statutory proscription for
attorney’s fees, we note that subsequent to the transactions giving rise to this cause, the
Indiana General Assembly enacted Indiana Code Section 30-5-9-11, which states, “An
attorney in fact that violates this article is liable to the principal or the principal’s successors
in interest for damages and an amount required to reimburse the principal or the principal’s
successors in interest for the attorney’s fees and costs paid as a result of the violation.”
(Effective July 1, 2009.) Because the transactions at issue occurred before July 1, 2009, the
statute is inapplicable.
Notwithstanding this statute’s inapplicability, in In re Bender, 844 N.E.2d 170 (Ind.
Ct. App. 2006), trans. denied, another panel of this Court affirmed the trial court’s award of
attorney’s fees where the personal representative breached his fiduciary duty to the estate and
the court had imposed a constructive trust to recover property that the personal representative
had improperly transferred from the estate. Id. at 185. In the absence of a statutory provision
for attorney’s fees in the Probate Code, the trial court cited an attorney’s fees provision in the
Trust Code as support for its decision to award attorney’s fees.7 The Bender court noted that,
as a matter of deterrence, equity demands that the fiduciary personally pay for the attorney’s
7 The Bender court cited Indiana Code Section 30-4-3-11(b), which states that a trustee who commits a breach of trust is liable to the trust beneficiary for a reasonable attorney’s fees incurred by the beneficiary in bringing an action on the breach. Bender, 844 N.E.2d at 184-85.
17 fees incurred to prevent him from acting outside his own fiduciary powers. Id. In citing the
Trust Code by analogy, the Bender court concluded,
The probate court did not err in citing to the Trust Code to support an award of attorney fees. A personal representative, like a trustee, is a fiduciary who acts on behalf of the beneficiary. It was proper for the probate court to conclude that attorney fees available for a fiduciary’s wrongdoing in a trust are equally available for a fiduciary’s wrongdoing in an estate, and that these fees should be paid by the fiduciary personally.
Id.
Likewise, here, the Gallopses were Thelma’s attorneys-in-fact and owed a fiduciary
duty to use the powers bestowed on them to protect Thelma and preserve her assets for her
benefit. As discussed supra, they exerted undue influence on Thelma, giving rise to the
unrebutted presumption that their transactions were constructively fraudulent. As a matter of
equity, they must bear the burden of paying the attorney’s fees incurred by the Estate in its
efforts to recoup the funds which would have been part of the Estate absent their
misappropriation. To hold otherwise would require the Estate, already depleted by these
wrongful acts, to be further depleted by legal fees. Equity will not tolerate such a result.
Thus, we find no abuse of discretion in the trial court’s decision to award attorney’s fees to
the Estate. Accordingly, we affirm.
Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.