Carrell v. Ellingwood

Decision Date21 July 1981
Docket NumberNo. 1-1080A300,1-1080A300
PartiesBeverly J. CARRELL, Robert E. Ellingwood, Ilene Hedrick, Rita Jones, Loyd A. Ellingwood and Barbara S. Ellingwood, Plaintiffs-Appellants, v. Don E. ELLINGWOOD, Henraetta I. Hudson and Harry Eugene Ellingwood, Defendants-Appellees.
CourtIndiana Appellate Court

Page 630

423 N.E.2d 630
Beverly J. CARRELL, Robert E. Ellingwood, Ilene Hedrick,
Rita Jones, Loyd A. Ellingwood and Barbara S.
Ellingwood, Plaintiffs-Appellants,
Don E. ELLINGWOOD, Henraetta I. Hudson and Harry Eugene
Ellingwood, Defendants-Appellees.
No. 1-1080A300.
Court of Appeals of Indiana, First District.
July 21, 1981.

Page 632

William K. Bennett, Bennett, Boehning, Poynter & Clary, Lafayette, for plaintiffs-appellants.

James R. Earnshaw, Harding & Henthorn, Crawfordsville, for defendants-appellees.

NEAL, Presiding Judge.

Plaintiffs-appellants Beverly J. Carrell, Robert E. Ellingwood, Ilene Hedrick, Rita Jones, Loyd A. Ellingwood, and Barbara S. Ellingwood (Grandchildren), all grandchildren of Edna A. Ellingwood, deceased (Decedent), instituted an action to contest the will of Decedent in the Montgomery Circuit Court. From a judgment dismissing the action because it was filed beyond the statutory five months limitation, they appeal. We reverse.


The record discloses that Edna A. Ellingwood died testate on August 4, 1979, and her Last Will and Testament was thereafter offered and admitted to probate in the Montgomery Circuit Court on August 8, 1979. The defendants-appellees, Don E. Ellingwood, Henraetta I. Hudson, and Harry Eugene Ellingwood (Children), are the only surviving children of Decedent, and all were appointed joint personal representatives of the estate. The Grandchildren are all children of a predeceased son of Decedent.

A complaint to contest the Will was filed by Grandchildren on January 11, 1980, and showed on its face the date of probate. Children filed their unverified motion to dismiss under Ind.Rules of Procedure, Trial Rule 12(B)(6) on January 24, 1980, for failure to state a claim upon which relief could be granted, specifying that the complaint had not been filed within five months after the Will had been offered for probate as required by Ind.Code 29-1-7-17. Objections to the motion to dismiss were filed by Grandchildren on February 11, 1980, which objections were accompanied by the affidavit of William K. Bennett, the attorney for Grandchildren.

The affidavit recited in substance the following: Bennett had been retained on September 20, 1979, by Grandchildren to contest the Will or to effect a settlement. He was without actual knowledge of the date the Will was offered for probate, but understood from his clients that it was sometime during the month of September. This belief was transmitted to Carl Henthorn, attorney for Children, on several occasions prior to and including January 4, 1980. Settlement negotiations proceeded throughout the fall of 1979, and the respective lawyers prepared a settlement proposal which had been accepted in principle by Grandchildren. Bennett was absent from his office from December 20, 1979, until January 2, 1980, due to health problems. On his return, on January 4, 1980, he called Henthorn and told him that time was running short and he needed an answer to the settlement proposal. Henthorn replied that he (Bennett) had plenty of time to file his action because the Will was probated in November. Bennett told him that he understood the Will to have been probated in September. Henthorn then said he would get back to him by January 11. On January 11, Henthorn called Bennett and told him that the children would not settle. Bennett stated that he would file his suit and Henthorn replied that the Will was probated on August 8, and the time had expired. Bennett stated that this was the first actual knowledge of the true date of the probate of the Will.

Page 633

The parties made no request for hearing on the motion. On the same day it was filed, February 11, 1980, without any notice, hearing or further proceedings, the trial court entered the following judgment:

"Comes now the plaintiffs, by counsel, and file Objections to Defendants' Motion to Dismiss, and William K. Bennett, for plaintiffs, files Affidavit in Opposition to Motion to Dismiss Plaintiffs' Complaint, which read as follows: (H.I.) Court, having had under advisement defendant's motion to dismiss and plaintiff's objection thereto and affidavit in support thereof, now finds that the complaint was not filed within the five month period required by the statute; that any misrepresentation of defendant's attorney which may have occurred as suggested in the supporting affidavit of plaintiffs does not give rise to excuse or justification for such untimely filing in that defendants attorney had ample opportunity to fully inform itself as to all facts and circumstances surrounding the alleged will and its probate, and his failure to determine the critical date which determined the time within which suit must have been filed cannot be attributed to a last minute statement of opposing counsel; that the motion to dismiss should be granted and the cause dismissed with prejudice.

IT IS THEREFORE ORDERED ADJUDGED AND DECREED that this cause be and is hereby dismissed with prejudice, costs taxes against plaintiffs in the amount of $____________."


Grandchildren present the following issues for resolution:

I. Whether the trial court erred in not scheduling a hearing on the motion of the Children and not treating the motion as one for summary judgment; and

II. Whether the trial court erred in granting the motion to dismiss in light of the facts set forth in the affidavit of William K. Bennett.


Issue I.

Upon examination of the judgment it is clear that the trial court did not exclude the affidavit but, rather, considered the affidavit in reaching its decision. However, the judgment contains no statement that the trial court was treating the motion to dismiss under Ind.Rules of Procedure, Trial Rule 12(B) (6) as a motion for summary judgment under T.R. 56. Grandchildren assert that the trial court committed error in (1) not treating the motion as one for summary judgment, and (2) not holding a hearing on the motion.

By way of clarification of its treatment of the motion, the trial court stated in its ruling on the motion to correct errors that:

"The court further finds that no error was committed in granting the motion to dismiss under Trial Rule 12(B)(6) and Trial Rule 56(C) and the motion to correct errors should be denied."

Indiana Rules of Procedure, Trial Rule 12(B)(8) states in part:

"If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." (Emphasis added.)

Insomuch as the date the Will was first offered for probate was stated in the complaint, a motion to dismiss under T.R. 12(B)(6) was an appropriate procedural device to raise the question of the limitations imposed by the statute. Brown v. Gardner, (1974) 159 Ind.App. 586, 308 N.E.2d 424. However, when the affidavit, constituting matters outside the pleadings, was presented, and not excluded, the court was required to treat the motion as one for summary judgment. T.R. 12(B)(8); Domain Industries v. Universal Pool Supply, (1980)

Page 634

Ind.App., 403 N.E.2d 889; Indiana & Michigan Electric Company v. City of Anderson, (1978) Ind.App., 376 N.E.2d 114; Middelkamp v....

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