Blackman v. Gholson

• Decision Date: 03 December 2015
• Docket Number: No. 52A02–1412–ES–883.,52A02–1412–ES–883.
• Citation: Blackman v. Gholson, 46 N.E.3d 975 (Ind. App. 2015)
• Parties: Roger S. BLACKMAN, Appellant–Petitioner, v. Karen A. GHOLSON and James W. Blackman, Appellees–Respondents.
• Court: Indiana Appellate Court

46 N.E.3d 975

Roger S. BLACKMAN, Appellant–Petitioner

v.Karen A. GHOLSON and James W. Blackman, Appellees–Respondents.

No. 52A02–1412–ES–883.

Court of Appeals of Indiana.

Filed Dec. 3, 2015.

Rehearing Denied Jan. 29, 2016.

Shawn P. Ryan, South Bend, IN, Attorney for Appellant.

Dan J. May, Kokomo, IN, Attorney for Appellee.

BARNES, Judge.

Case Summary

[1] Roger Blackman appeals the trial court's dismissal of his will contest action and subsequent denial of his motion to correct error. We affirm.

Issues

[2] The issues before us are:

I. whether the trial court properly dismissed Roger's will contest action;

II. whether the Journey's Account Statute should permit Roger to refile that action; and

III. whether an award of appellate attorney fees against Roger is warranted.

Facts

[3] Roger, Karen Gholson, and James Blackman are the children of Lillian Blackman. On September 23, 2013, Karen and James filed a petition to open an estate for Lillian and to probate a will she executed in July 2013. On December 23, 2013, Roger filed a “Verified Contest of Will” and request to substitute the July 2013 will with one Lillian had executed in June 2013. App. p. 23. Roger filed the will contest in the same court and under the same cause number as the original probate action. Roger's attorney filed the will contest in this fashion upon the advice of the trial court's clerk. The will contest was served upon counsel for Karen and James, but no summonses were issued for Karen or James.

[4] Karen and James filed a motion to dismiss Roger's will contest for “lack of jurisdiction.” Id. at 32. The trial court granted this motion, stating that it lacked subject matter jurisdiction. Within thirty days of this ruling, Roger filed a motion to correct error and/or for relief from judgment. In this motion, Roger requested that the dismissal order be vacated and that he be permitted to file a new, separate will contest action under the Journey's Account Statute. The trial court denied Roger's motion to correct error and/or for relief from judgment. Roger now appeals.

Analysis

I. Dismissal of Action

[5] A will contest is not part of the administration of a decedent's estate. Robinson v. Estate of Hardin, 587 N.E.2d 683, 685 (Ind.1992). Will contest proceedings are governed by the Indiana Trial Rules. Avery v. Avery, 953 N.E.2d 470, 472 (Ind.2011). Thus, Karen and James's motion to dismiss Roger's will contest for lack of jurisdiction was a motion under Indiana Trial Rule 12(B)(1). Our standard of review when ruling on a motion to dismiss for lack of subject matter jurisdiction is dependent upon what occurred in the trial court. Berry v. Crawford, 990 N.E.2d 410, 414 (Ind.2013). If there are no disputed facts, the question of subject matter jurisdiction is one of law and we review the trial court's ruling de novo. Id. Because the facts here are not in dispute, our review is de novo. We may affirm a motion to dismiss based upon any theory or basis supported by the record, regardless of the explanation provided by the trial court. Munster v. Groce, 829 N.E.2d 52, 58 (Ind.Ct.App.2005).

[6] Indiana Code Section 29–1–7–17 provides:

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 court 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.

Additionally, Indiana Code Section 29–1–7–18 states:

(a) When an action is brought to contest the validity of any will as provided in this article, notice is served upon the defendants in the same manner as required by the Indiana Rules of Trial Procedure.

(b) A contesting party shall also serve a copy of the complaint on the counsel of record, if any, for the personal representative. The court may not enter a default judgment for the contesting party unless proof of service on the counsel for the personal representative is made to the court.

[7] The statute specifically references the Indiana Trial Rules. Indiana Trial Rule 3 states:

A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee or filing an order waiving the filing fee, and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.

Additionally, Indiana Trial Rule 4(A) states, “The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.” Indiana Trial Rule 4(B) requires a party filing a complaint to “furnish to the clerk as many copies of the complaint and summons as are necessary” contemporaneously with the complaint's filing.

[8] In Smith v. Estate of Mitchell, 841 N.E.2d 215 (Ind.Ct.App.2006), we addressed the effect of a party's failure to comply with these statutes and the Indiana Trial Rules when initiating a will contest action. In that case, a party attempted to file a petition to the challenge a will, but the petition named no defendants and no summons was issued to any beneficiaries of the will. Later, a summons was served upon counsel for the estate's personal representative. The estate subsequently filed a motion for summary judgment against the will contest, claiming that the party bringing the action had failed to comply with the statutes governing will contests and, therefore, the trial court lacked jurisdiction to consider the case. The trial court granted the summary judgment motion.

[9] On appeal, we began by stating, “The right to contest a will is statutory, and if it is not executed within the allotted time period, it is lost.” Smith, 841 N.E.2d at 218 (citing Estate of Kitterman v. Pierson, 661 N.E.2d 1255, 1257 (Ind.Ct.App.1996), trans. denied ). We then engaged in a review of the caselaw regarding initiation of a will contest. First, we reviewed Milligan v. Denham, 553 N.E.2d 1265 (Ind.Ct.App.1990). Id. In Milligan, we had held there was sufficient compliance with the will contest statute where the contest was timely filed, but proper summonses were not issued to the will beneficiaries until after the time limit had passed. Milligan, 553 N.E.2d at 1267. We had noted in Milligan that the will contest statute explicitly referred only to the necessity of “filing” an action, which was sufficient to “commence” a civil action and which was a different procedure than serving summonses or giving notice. Id. Our supreme court subsequently adopted our opinion in that case. Milligan v. Denham, 563 N.E.2d 595 (Ind.1990).

[10] However, as we next observed in Smith, our supreme court subsequently decided Boostrom v. Bach, 622 N.E.2d 175 (Ind.1993), cert. denied. Smith, 841 N.E.2d at 218. In Boostrom, which concerned a small claims action and not a will contest action, the court indicated that there were three documents necessary to commence a suit: the complaint, the summons, and the filing fee. Boostrom, 622 N.E.2d at 177 n. 2. There was some disagreement on this court as to whether issuance of a summons was truly required by Boostrom in order to commence a suit, but our supreme court later positively stated that a summons must be tendered along with the filing fee and the complaint in order to “commence” a lawsuit for statute of limitations purposes under Indiana Trial Rule 3. Ray–Hayes v. Heinamann, 760 N.E.2d 172, 174–75 (Ind.2002). Ray–Hayes did not concern a will contest action.

[11] In Smith, we discussed Kitterman. Smith, 841 N.E.2d at 218–19. In that case, a will contest was filed within the statutory time limit and it was served upon the executor of the estate and counsel for the estate's personal representative but not upon the will beneficiaries, nor were the beneficiaries named as defendants in the will contest. On appeal, we held the will contest should have been dismissed because “the court never obtained jurisdiction over even a portion of the subject matter....” Kitterman, 661 N.E.2d at 1258.

[12] Applying Milligan, Boostrom, Ray–Hayes, and “particularly” Kitterman, we held in Smith that the trial court had properly granted summary judgment to the will beneficiaries. Smith, 841 N.E.2d at 219. We concluded, “it appears to have been settled that a plaintiff must fulfill all the obligations of Ind. Trial Rules 3 and 4 to commence a lawsuit, including an action to contest a will.” Id.

[13] After Smith was decided, our supreme court handed down K.S. v. State, 849 N.E.2d 538 (Ind.2006). That opinion urged courts to cease mischaracterizing mere procedural error as true defects in subject matter or personal jurisdiction. K.S., 849 N.E.2d at 542. “Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. Personal jurisdiction requires that appropriate process be effected over the parties.” Id. at 540. In K.S., the court held that a juvenile court's failure to follow all of the statutory procedures for initiating a delinquency petition did not affect either subject matter or personal jurisdiction, but was mere procedural error. Id. at 542. A number of subsequent cases likewise have made clear that failure to follow statutory guidelines for initiating a particular action do not affect subject matter jurisdiction, so long as the action was filed in the proper court for such an action. See, e.g., Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 805 (Ind.Ct.App.2015) (holding alleged defect in...