Butler University v. Estate of Verdak

• Court: Indiana Appellate Court
• Writing for the Court: MATHIAS.
• Citation: Butler University v. Estate of Verdak, 815 N.E.2d 185 (Ind. App. 2004)
• Decision Date: 23 September 2004
• Docket Number: No. 49A04-0308-CV-431.,49A04-0308-CV-431.
• Parties: BUTLER UNIVERSITY, Appellant-Respondent, v. In the Matter of the Unsupervised ESTATE OF George C. VERDAK, Deceased, Appellee-Petitioner.

815 N.E.2d 185

BUTLER UNIVERSITY, Appellant-Respondent, v. In the Matter of the Unsupervised ESTATE OF George C. VERDAK, Deceased, Appellee-Petitioner.

No. 49A04-0308-CV-431.

Court of Appeals of Indiana.

September 23, 2004.

Philip A. Whistler, Kevin M. Alerding, Brian J. Paul, Ice Miller, Indianapolis, IN, Attorneys for Appellant.

Charles B. Huppert, Indianapolis, IN, Attorney for Appellee.

OPINION

MATHIAS, Judge.

Liene Dindonis filed a petition to reopen the estate of George Verdak ("the estate") in Marion Superior Court, Probate Division, which alleged that other property of the estate had been discovered. The probate court granted the petition and issued an order reopening the estate. Shortly thereafter, Butler University ("Butler") filed objections to Dindonis's petition. After a hearing was held on Butler's objections, the probate court issued an order overruling Butler's objections. Butler has filed this interlocutory appeal arguing that the probate court abused its discretion when it reopened the estate because Dindonis failed to prove that the property was subsequently discovered property of the estate. Dindonis cross-appeals and argues that Butler did not have standing to object and its appeal is untimely.

We affirm.

Facts and Procedural History

In 1971, Butler received an extensive collection of ballet costumes, musical scores, and painted canvas stage drops from the Ballet Russe de Monte Carlo. Butler has used numerous items from the Ballet Russe collection in its ballet performances over the past thirty-two years. George Verdak served as the Chairman of Butler's Dance Department during the 1960s and 1970s. As head of the department, he was the principal intermediary involved in Butler's receipt of the Ballet Russe collection. Verdak retired from Butler in 1978.

On September 15, 1993, Verdak died testate. Under his will, William Glenn ("Glenn") was the sole beneficiary. Verdak also named Glenn as personal representative of his estate and authorized Glenn to administer his estate in an unsupervised capacity. Appellant's App. pp. 9-10, 15-16. Glenn was a member of the Butler Dance Department faculty for approximately twenty years and was a faculty member when Butler received the Ballet Russe collection.

On July 19, 1994, Glenn filed a closing statement for the Verdak Estate, which verified that the estate had been fully administered and that Glenn had "taken possession of the personal property of the decedent and the other assets of the decedent's estate." Appellant's App. pp. 28-29. There were no Ballet Russe items listed on either the estate inventory or the inheritance tax return.

Glenn subsequently died testate on June 28, 2000. Dace Dindonis ("Dace") was the sole beneficiary and personal representative of the Glenn estate. Less than one year later, Dace died intestate. Her sole living relative is her sister, Liene Dindonis ("Dindonis"), and Dindonis is presently serving as the personal representative of Dace's estate, as well as the successor personal representative of the Glenn estate. Both estates are currently pending in Marion County.

In 2002, Butler became aware that an art dealer in Florida was offering for sale a number of Ballet Russe costumes and other artifacts. Butler subsequently learned that the source of the costumes was the Glenn estate and the costumes were found in the basement of the former Verdak residence. In July 2002, at Butler's request, the Marion Superior Court preliminarily enjoined Dindonis, the Glenn estate and the art dealers from selling the items from the Ballet Russe collection. That litigation is still pending in the Marion Superior Court.

On September 25, 2002, Dindonis filed a petition to reopen Verdak's estate. In the petition, Dindonis alleged that "during the pendency of the Butler suit against Liene Liga Dindonis certain evidence has been collected which indicates that certain property, namely ballet sets, drops and costumes (formerly known as the Ballet Russe de Monte Carlo Collection and the Ruth Page Collection), which property had been deposited with said Butler University, was in fact the property of George C. Verdak." Appellant's App. p. 32. Dindonis also asserted that she is "qualified to be appointed successor personal representative and is entitled to be appointed personal representative of said Estate under I.C. XX-X-XX-X." Id. The probate court granted Dindonis's petition on the same day it was filed and entered an order reopening the estate. The probate court also appointed Dindonis "successor Administrator of the Estate." Appellant's App. p. 5.

On October 3, 2002, Butler filed objections to Dindonis's petition to reopen the Verdak estate arguing that Dindonis is not an interested person in the estate, that the petition does not set forth circumstances sufficient to authorize reopening the estate, and any action to recover the property referenced in the petition is time-barred. Appellant's App. p. 38. After a hearing was held on Butler's objections, on June 18, 2003, the probate court issued its order overruling Butler's objection. The probate court specifically found:

6. While serving as personal representative, Mr. Glenn knew of the existence of the property in question.

7. However there is no evidence that Mr. Glenn was aware that the estate might have a claim to ownership of the property.

8. The estate's claim to ownership of the property is "other property of the estate" within the meaning of IC 29-1-7.5-8.

Appellant's App. pp. 7-8. At Butler's request, the trial court certified its order for interlocutory appeal, and our court accepted jurisdiction of this appeal on September 22, 2003.¹ Additional facts will be provided as necessary.

Standard of Review

The trial court entered findings of fact and conclusions of law sua sponte. We therefore apply the following two-tier standard of review: whether the evidence supports the findings, and whether the findings support the judgment. Learman v. Auto Owners Ins. Co., 769 N.E.2d 1171, 1174 (Ind.Ct.App.2002),trans. denied. Findings and conclusions of law will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. Id."A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made." Id. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility. Klotz v. Klotz, 747 N.E.2d 1187, 1190 (Ind.Ct.App.2001). Sua sponte findings control only as to the issues they cover, and a general judgment standard of review controls as to the issues upon which there are no findings. Learman, 769 N.E.2d at 1174. A general judgment will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.

I. Butler Is a Proper Party to This Action

Dindonis argues that Butler is not a party to this action because Butler 1) does not have standing to object to the petition to reopen the Verdak Estate and 2) did not move to intervene in the estate. Butler contends that it has standing in the Verdak Estate because it is an interested party and that Dindonis waived her argument with regard to intervention.

Dindonis argues that Butler does not have standing to object to the petition to reopen the Verdak Estate because it is not a claimant or beneficiary of the Estate. Br. of Appellee at 8. Butler argues that it has standing 1) because its property is being claimed by Dindonis and 2) because it is an "interested person" under the probate code. Reply Br. of Appellant at 10-12.

Under common law, to have standing a party must demonstrate a personal stake in the outcome of the proceeding and that he or she has sustained, or is in danger of sustaining, some direct injury as a result of the conduct at issue. See Ind. Civil Rights Comm'n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind.1999). Since the purpose of reopening the Verdak Estate is to allow the Estate to attempt to assert rights to the entire Ballet Russe collection, Butler's personal stake in the outcome of the probate court proceedings is evident and it is clear that the outcome of those proceedings could pose direct injury to Butler.

More importantly, Butler also has standing under the Probate Code because it is an "interested person." "Interested persons" are defined as "heirs, devisees, spouses, creditors, or any others having a property right in or claim against the estate of a decedent being administered." Ind.Code § 29-1-1-3(a)(13) (1999). Butler likely has a "claim against" the Verdak estate because the Estate is seeking to recover the Ballet Russe collection, which Butler has claimed as its own for many years. Thus, we conclude that under both common law and the probate code, Butler has standing and is a proper party to this action.

Dindonis also argues that Butler was required to file a motion to intervene, but she did not raise that argument until after Butler sought certification of the probate court's June 18, 2003 order for interlocutory appeal. Butler argues that Dindonis has waived this argument. Reply Br. of Appellant at 9. Our court has held that issues are not preserved for appeal unless a proper and timely objection is made. See Sullivan v. City of Evansville, 728 N.E.2d 182, 193 n. 8 (Ind.Ct.App.2000). We therefore conclude that Dindonis has waived her argument that Butler was required to file a motion to intervene.

Waiver notwithstanding, however, we disagree with Dindonis's argument that Butler was required to file a motion to intervene in order to become a party to this action. As an interested person, Butler properly objected to the reopening of the Estate in the manner prescribed by the probate code² and thus became a party in this matter.

II. Timeliness of the Appeal

Dindonis argues that the probate court did not properly certify its order for...