Blake v. Blake, 2-977A350

• Decision Date: 12 July 1979
• Docket Number: No. 2-977A350,2-977A350
• Citation: 391 N.E.2d 848,181 Ind.App. 304
• Parties: James W. BLAKE, Jr., and Diane E. Cocklin, Appellants (Plaintiffs Below), v. Patricia BLAKE, Walter C. Dietzen, and Nelson Bohannon, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 848

391 N.E.2d 848

181 Ind.App. 304

James W. BLAKE, Jr., and Diane E. Cocklin, Appellants (Plaintiffs Below), v. Patricia BLAKE, Walter C. Dietzen, and Nelson Bohannon Appellees (Defendants Below).

No. 2-977A350.

Court of Appeals of Indiana, Fourth District.

July 12, 1979.

Lewellyn H. Pratt, Bloomington, for appellants (plaintiffs below).

Nelson Bohannon, Lapel, for appellees (defendants below).

MILLER, Judge.

Plaintiff-Appellant Diane E. Cocklin ¹ appeals from the trial court's judgment which sustained the defendant's affirmative defense of res judicata. We affirm.

James W. Blake, Sr. died intestate on January 19, 1974, leaving as surviving heirs his wife, Patricia Blake (Patricia), and his sons and daughters, James W. Blake, Jr. (Blake, Jr.), Jacqueline Blake, John Blake, and Diane E. Cocklin (Cocklin). The decedent's cause of death was a gunshot wound inflicted by his wife, Patricia. Thereafter, she was indicted for voluntary manslaughter and later pled guilty to involuntary manslaughter pursuant to a plea agreement.

The Senior Blake's estate was opened and the administrator, Walter Dietzen, appointed on January 22, 1974 by the Superior Court of Madison County, No. 1, hereinafter referred to as "Superior Probate". In July of 1975, counsel for Blake, Jr. and Cocklin filed a petition to remove Walter Dietzen (Dietzen) as administrator and Nelson Bohannon (Bohannon) as attorney for the estate alleging they had an irreconcilable conflict of interest in that they had represented Patricia as co-counsel in her criminal case at the same time they were also representing Blake's estate. A hearing was held and the court denied the petition.

On January 5, 1976 the administrator filed a pleading incorrectly titled as a "Petition of Surviving Widow to Determine Interest of Patricia Blake" which actually was a petition by the administrator and signed by him praying that the court determine the title of certain parcels of real property which were held in the names of Blake, Sr. and Patricia, as husband and wife.

Subsequently, on February 25, 1976, Blake, Jr. and Cocklin filed a complaint in Madison Superior Court, No. 2 ², hereinafter referred to as "Superior Civil", naming as defendants, Patricia, Dietzen, and Bohannon. The complaint asked the court to impose a constructive trust on the properties previously held by Patricia and Blake, Sr. as tenants by the entireties. On the same date, which was also the date set for hearing on the administrator's petition in Superior Probate, Blake, Jr. and Cocklin filed a petition in the estate acknowledging that the property in question was owned as tenants by the entireties and claiming that, since no interest in the property passed into the estate, Superior Probate did not have jurisdiction to decide the administrator's petition. The petitioners further explained therein that they had filed a complaint in Superior Civil asking that a constructive trust be imposed upon the property and that, until the outcome of that case, "there can be no interest in property inside the estate upon which this court can pass a determination; there being no jurisdiction for this court to examine property located outside the estate." The petition prayed that the trial court refuse to determine any interests in the real property until "it may be judged that any of said real property falls within the jurisdiction of the estate."

On March 25, 1976, Superior Probate found that Patricia, as the surviving spouse, was "entitled to and granted all right, title and interest in and to said real property . . . ."

The defendants in the Superior Civil case then filed an affirmative answer of res judicata, alleging that the claim had been previously decided by Superior Probate.

On February 10, 1977, the judge in Superior Civil dismissed plaintiff's complaint on the grounds of res judicata. Cocklin appeals.

Cocklin preserved one issue for our review:

(1) Did the trial court err in upholding the defendant's affirmative defense of res judicata?

CONTENTIONS:

Cocklin contends her action in Superior Civil for a constructive trust should not be precluded under the doctrine of res judicata for three reasons. She claims there is no identity of issues, that Superior Probate did not have jurisdiction to enter the first judgment and that the merits of the issue were never fully litigated in Superior Probate.

The appellees respond that the issues which Cocklin wanted tried were those decided by Superior Probate, that, because Ind.Code 29-1-2-12 ³ is in the Probate Code, Superior Probate clearly had jurisdiction to decide title in this case and, finally, that the matters were fully litigated.

CONCLUSION:

We find that the elements of res judicata do exist and uphold the trial court's dismissal of Cocklin's cause of action.

This Court has enumerated the elements required for the application of the doctrine of res judicata as follows:

"The basic elements of res adjudicata are fourfold: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the matter now in issue was, or might have been, determined in the former suit; (3) the particular controversy adjudicated in the former action must have been between the parties to the present suit; and (4) judgment in the former suit must have been rendered on the merits . . . ."

Middlekamp v. Hanewich (1977), Ind.App., 364 N.E.2d 1024, 1033; Crown Point School Corp. v. Richards (1973), 154 Ind.App. 545, 549, 290 N.E.2d 449, 452; Wright v. Kinnard (1970), 147 Ind.App. 484, 488, 262 N.E.2d 196, 199-200.

We first address Cocklin's claim of a lack of identity of issues.

It is fundamental, we think, that facts or questions which were in issue in a former action and were there judicially determined are conclusively settled by a judgment rendered therein, and that such facts or questions become res adjudicata and may not be litigated in a subsequent action between the same parties or their privies regardless of the form the issue may take in the subsequent action. 30 Am.Jur., Judgments, § 178, p. 920. See also Mutual Benefit Life Ins. Co. v. Bachtenkircher, 1935, 209 Ind. 106, 198 N.E. 81, 104 A.L.R. 1135; Cutler v. Cox, 1828, 2 Blackf. 178.

Kielczewski v. Rochwalik (1955), 126 Ind.App. 206, 130 N.E.2d 785, 788. As the Indiana Supreme Court explained in Howe v. Lewis (1889), 121 Ind. 110, 22 N.E. 978, the difficulty arises not in ascertaining what the rule is, but in determining just what has been litigated and settled in application of the rule.

What was in issue is determined by the questions presented in the pleadings. Howe, supra.

The March 25, 1976 Order of Heirship During Administration which Patricia claims barred this action, was granted in response to three pleadings. The first was the petition filed by the administrator erroneously titled "Petition of Surviving Widow to Determine Interest of Patricia Blake". Therein, the administrator stated in part:

2. That the inventory of the estate discloses certain pieces of real property and that controversy has arisen reference to the rights of survivorship in said real property under the laws of the State of Indiana and under the rights of intestacy of the heirs of JAMES BLAKE, deceased.

3. That said real properties were held in the names of JAMES BLAKE and PATRICIA BLAKE as husband and wife and that said real properties pass under the laws of intestacy and under the laws of the State of Indiana to the surviving spouse.

4. That the interest of the estate and said real properties needs to be determined in order to make disposal of said real property for the settlement of the debts in the estate and to liquidate claims and make distribution to the heirs of the decedent.

WHEREFORE, petitioner prays the Court to determine the interest of the property in the estate including the real property and personal property as set forth in the inventory and any other properties which may preferably be the object of determination of ownership. (Our emphasis)

This first petition identifies the issue as a controversy between rights of survivorship and rights of intestacy of the heirs in certain real property formerly held by the decedent and Patricia, as husband and wife. The administrator also, significantly, makes reference to the necessity for a determination of the interest of the estate for possible disposal of the property for payment of debts and claims against the estate.

In her Answer, the second pleading, Cocklin requested a copy of the inventory, and in her prayer she requested that the court:

2. Postpone the determination of any interests in property held by the estate until such time as the interested parties can have sufficient information and time to protect their interests.

3. That the Court refuse to determine any interests in certain real property set forth in the Surviving Children's Petition to Remove Determination of Interests in Real Property as filed on February 25, 1976.

Finally, in the third pleading entitled "Surviving Children's Petition to Remove Determination of Interests in Real Property and to Remove the Administrator", Blake, Jr. and Cocklin represented that the estate had no interest in the real estate at that time narrowing the issue to a controversy between the widow's title and that claimed by the children as heirs. ⁴

There is no question that the statute, which imposes a constructive trust on property of the decedent acquired by one who has been convicted of intentionally causing the death of said decedent, Ind.Code 29-1-2-12, had no application to either action. Patricia Blake was not so convicted and the property was not acquired by her because of such death but through her survivorship interest in property held as tenants by the entirety. National City Bank of Evansville v. Bledsoe (1957), 237 Ind. 130, 144 N.E.2d 710.

The only interest in title that could cause the controversy mentioned in the administrator's petition, or could oppose the...