Glock v. Hale

Decision Date16 May 2012
Docket NumberNo. 89A01–1109–PL–441.,89A01–1109–PL–441.
Citation968 N.E.2d 343
PartiesMichael Wayne GLOCK, David Nixon Glock, and Daniel Colin Glock, Appellants–Defendants, v. Sheila C. HALE, Appellee–Plaintiff.
CourtIndiana Appellate Court


Appeal from the Wayne Superior Court; The Honorable Gregory A. Horn, Judge; Cause No. 89D02–1003–PL–4.

John R. McKay, Hickam & Lorenz, P.C., Spencer, IN, Attorney for Appellants.

Ronald L. Cross, Andrew J. Sickmann, Boston Bever Klinge Cross & Chidester, Indianapolis, IN, Attorneys for Appellee.


KIRSCH, Judge.

Michael Wayne Glock (Michael), David Nixon Glock (David), and Daniel Colin Glock (Daniel) (collectively, “the Glocks”) appeal the trial court's grant of summary judgment in favor of Sheila C. Hale (Hale). On appeal, the Glocks raise the following restated issues:

I. Whether the trial court abused its discretion by denying the Glocks' motion to strike the affidavits filed in support of Hale's motion for summary judgment, which were alleged to contain inadmissible hearsay; and

II. Whether the trial court erred in granting summary judgment in favor of Hale on the basis that she is the rightful beneficiary to the proceeds of an annuity (“the Annuity”) created for the benefit of the Glocks' father, Alan Roger Glock (Alan).

We affirm.


In 2001, Alan settled a lawsuit with Kmart Corporation (“Kmart”). Under the terms of that settlement agreement, a portion of the settlement funds were to be paid to or for the benefit of Alan in recurring annual increments of $30,400 over a period of fifteen years. The payments were to begin on June 15, 2007 and end on June 15, 2021. Kmart transferred this annual obligation by means of a “Uniform Qualified Assignment” to The Canada Life Insurance Company of America (“Canada Life”), which in turn funded the obligation through the Annuity. Appellants' App. at 31–35. Great–West Life & Annuity Insurance Company (“Great–West”) was the successor company following a merger with Canada Life.

Initially, Alan designated himself as the payee of the Annuity proceeds and, because the Annuity provided for survivorship benefits in the event Alan died prior to June 15, 2021, Alan named his then-spouse Carolyn S. Glock (Carolyn) as the primary beneficiary. During his marriage to Carolyn, Alan was involved in a long-term romantic relationship with Hale. Alan and Carolyn divorced in March 2007. On or about June 20, 2007, Alan executed a “Beneficiary Designation” form to remove Carolyn and appoint Sheila Hale Glock as the primary beneficiary of the Annuity payments upon his death. Id. at 36. On the Beneficiary Designation, Alan listed Hale's “Relationship to Life Insured” as “wife.” Id. Alan and Hale, however, were not married to each other. Also on the Beneficiary Designation, Alan named three of his sons, Michael, David, and Daniel, as equal contingent beneficiaries who would receive the payments in equal one-third shares in the event the primary beneficiary did not survive Alan. Alan died on December 17, 2008. At the time of his death, both Alan and Hale were unmarried, but the two were living together.

After Alan's death, a dispute arose between Hale as primary beneficiary and the Glocks as contingent beneficiaries, concerning who was the rightful beneficiary of the Annuity proceeds. This dispute manifested itself when Hale and the Glocks served Great–West with competing and mutually exclusive demands to the Annuity proceeds. In the face of these competing demands for the Annuity proceeds, Great–West “instituted a Federal Statutory Interpleader action” in the United States District Court for the Southern District of Indiana. Appellants' Br. at 3. “By stipulation, all parties to the federal lawsuit reached a settlement, which provided, inter alia, that the Federal action be dismissed [without prejudice], and that the then current and prospective annual annuity payments would be deposited with the Clerk of the Trial Court pending resolution of the dispute between the parties.” Id.

Hale then filed a complaint in the Wayne Superior Court for declaratory judgment against the Glocks and the personal representative of Alan's Estate. The Glocks filed an answer to Hale's complaint and a counterclaim for declaratory judgment. On January 31, 2011, Hale filed a motion for summary judgment 1 and a request for judicial determination and entry of final judgment as to the claims of Michael, David and Daniel. Hale's designated evidence in support of her motion for summary judgment included ten affidavits. On March 2, 2011, the Glocks filed a motion to strike Hale's ten affidavits on the basis that each contained testimonial speculation and inadmissible hearsay. Additionally, the Glocks filed their own motion for summary judgment, including five affidavits in support of their motion.

The trial court held a hearing on the Glocks' motion to strike Hale's ten affidavits and on the counterclaim for summary judgment. Following the hearing, the trial court issued two orders. The first order denied the Glocks' motion to strike Hale's affidavits, while the second order granted Hale's motion for summary judgment, finding that Hale was entitled to the proceeds from the Annuity, and denied the Glocks' motion for summary judgment; it expressly directed entry of judgment for purposes of immediate appeal. The Glocks now appeal.

I. Admission of Affidavits

Before addressing the primary issue of whether summary judgment was properly granted in favor of Hale, we turn our attention to the Glocks' claim that the trial court abused its discretion in denying the Glocks' motion to strike Hale's ten affidavits because the Glocks claim that those affidavits contained inadmissible hearsay. “A trial court has broad discretion in refusing to grant a motion to strike.” In re Estate of Meyer, 747 N.E.2d 1159, 1164 (Ind.Ct.App.2001), trans. denied. To overturn the denial of a motion to strike, a trial court must have committed an abuse of discretion. McCutchan v. Blanck, 846 N.E.2d 256, 260 (Ind.Ct.App.2006). We will reverse such an exercise of discretion only when the decision is clearly against the logic and effect of the facts and the circumstances before the trial court. Nationwide Ins. Co. v. Heck, 873 N.E.2d 190, 195 (Ind.Ct.App.2007).

Neither party cites to the language in the affidavits that is claimed to be hearsay; however, the affidavits offered by both the Glocks and Hale focus on the question of whether Alan ever intended to marry Hale. The affiants who provided affidavits in support of Hale's motion for summary judgment averred, in part, that each had been told by Alan that he and Hale were committed to each other and were going to be married at some point in time. Appellee's App. at 27, 30, 33, 36, 42, 45, 48, 51. While not addressed in the Glocks' affidavits, Hale's affiants also averred that Alan said he planned to provide for Hale financially, specifically, that he would provide Hale with an annuity that would pay her about $30,000 per year after Alan's death. Appellee's App. at 26, 29, 33, 36. In contrast, the affiants who provided affidavits in support of the Glocks' motion for summary judgment averred that each had been told by Alan that he would remain with Hale as long as they made each other happy, but if they did not make each other happy, they would go their separate ways. Id. at 53, 55, 57, 59. Some of the Glocks' affiants also averred that Alan said that he would not marry Hale. Id. at 53, 55, 57, 59.

The Glocks contend that the averments contained in Hale's affidavits are inadmissible hearsay because they relate statements made by Alan in order to prove the truth of Alan's statements. Appellants' Br. at 10. The Indiana Rules of Evidence define “hearsay” as, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). “Hearsay is not admissible except as provided by law or by [the Indiana Rules of Evidence].” Evid. R. 802. Inadmissible hearsay contained in an affidavit may not be considered in ruling on a summary judgment motion. Breining v. Harkness, 872 N.E.2d 155, 158 (Ind.Ct.App.2007), trans. denied (2008). As a general rule, out-of-court statements offered in court for the truth of the matter therein are hearsay; “however, where the statements are not offered for the purpose of proving the facts asserted, they are not hearsay.” Ballard's Estate v. Ballard, 434 N.E.2d 136, 139 (Ind.Ct.App.1982). “Not all testimony about extrajudicial utterances of a third person made outside the presence of the parties qualifies as hearsay evidence. Whether it is hearsay depends on the purpose for which it is offered.” Id.

During the hearing on the Glocks' motion to strike Hale's affidavits, Hale's counsel made the following argument:

Now as noted in our Memorandum[,] insurance contracts are like other contracts, they are to be construed in accordance with laws that are applicable to contracts in general. And generally when considering an ambiguity and a designated beneficiary, uh, form such as this one the insurance company assuming that the designated beneficiaries are not material to the risk insured, is a neutral party and really doesn't care. So we look to the intent of the insured or the person who is exercising that right to change the beneficiary.

And in this regard we look at the affidavits that have been filed in this case. Now the Glocks and their counsel have filed their Motion to Strike Certain of the Affidavits, and we contend that, that motion, those Motions to Strike are not well founded. I would have to begin this with a confession, and I didn't do it inadvertently [sic] but it appears that I have created somewhat of a red herring issue in this case, that really wasn't intended.... [W]e acknowledge that whether in fact Alan Glock ever intended to marry [Hale] is...

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