Harper v. Boyce
| Decision Date | 24 May 2004 |
| Docket Number | No. 11A01-0301-CV-21.,11A01-0301-CV-21. |
| Parties | Terry HARPER, Angelica Dawn Harper, and Heidi Harper, Appellants, v. Karen BOYCE, as Personal Representative of the Estate of Jessie L. Harper, Appellee. |
| Court | Indiana Appellate Court |
Darrolyn A. Ross, Indianapolis, IN, Attorney for Appellants.
ERIC D. SOMHEIL, Brown & Somheil, Brazil, IN, Attorney for Appellee.
Terry Harper and his daughters, Angelica Dawn and Heidi, (collectively "the Harpers") appeal from the dismissal of their action to contest the will of Terry's mother, Jessie Harper, following a petition to the trial court requesting that Karen Boyce, Terry's sister, be allowed to proceed as personal representative of the estate ("Estate"). The Harpers present several issues for our review:
I. Whether a trial court may rule upon motions during the time period in which a party may file a motion for a change of judge;
II. Whether a personal representative of an estate may file certain motions without first filing responsive pleadings;
III. Whether the trial court should have treated the personal representative's motion to dismiss as a motion for summary judgment; and
IV. Whether the Harpers were denied procedural due process.
We affirm.
Terry and Karen's parents, William and Jessie, established a trust of which William and Jessie were the beneficiaries during their lifetimes. In the event of their deaths, the trust assets were to be used for the benefit of Terry and Karen and upon their deaths, for the respective children of Terry and Karen. After William died in December 2001, Jessie amended the trust so that the beneficiaries at the time of her death were Karen and her children. On the same day, Jessie executed a will naming Karen as the sole beneficiary.
Upon Jessie's death, Karen became personal representative of the Estate and, on March 12, 2002, filed a petition requesting that she be allowed to proceed in the unsupervised administration of the Estate. The Harpers subsequently filed their complaint to contest the will. Additionally, they filed a motion entitled "Motion to Intervene," requesting that the original trust document be submitted to the court for review. The trial court denied the motion to intervene upon learning that a copy of the trust document had been provided to the Harpers. On June 19, 2002, the Estate filed a motion requesting that the trial court set a bond, pursuant to Indiana Code § 29-1-7-19 (Burns Code Ed. Repl.2000), in the amount of $2,500. The trial court, Judge Ernest Yelton, granted the motion on that same day and ordered that the Harpers file a bond on or before June 28, 2002 or the will contest would be dismissed.
The following day, the Harpers filed a motion for change of judge. A new judge, R. Jerome Kearns, was appointed and as special judge assumed jurisdiction of the cause on August 20, 2002. On August 23, 2002, the Estate filed a motion to dismiss because the Harpers had not filed a bond as ordered by Judge Yelton. On August 28, Judge Kearns dismissed the Harpers' complaint to contest the will for failure to follow Judge Yelton's order requiring that they comply with I.C. § 29-1-7-19.
Trial Rule 76 provides that in civil actions in which a change may be taken from a judge, a change of judge motion shall be granted upon the filing of an unverified application or motion by a party. Furthermore, a party is entitled to one change of judge so long as the motion for change of judge is filed within the applicable period of time set forth in Trial Rule 76. As a general proposition, when a proper and timely motion for change of judge is filed, the trial court is divested of jurisdiction to take further action except to grant the change of judge. See In re Marriage of Brown, 180 Ind.App. 1, 4, 387 N.E.2d 72, 74 (1979).
The Harpers assert that the prohibition upon a trial court ruling on motions after a motion for change of judge is filed should be taken one step further, such that trial courts should not be allowed to rule upon substantive, non-emergency matters during the period of time in which a party is entitled to file a change of judge motion. Without this additional restriction, the Harpers contend that the ability of a party to protect himself when faced with a trial court with whom he fears he may be disadvantaged would be lost and Trial Rule 76 would be eviscerated because the trial court could rule upon motions before a change of judge could be sought.
The Harpers have provided no authority which supports their position. Indeed, no such authority exists. Consequently, the Harpers rely solely upon the stated policy that Trial Rule 76 is to guarantee a fair and impartial trial to the parties. See Marriage of Brown, 180 Ind.App. at 4, 387 N.E.2d at 74. While we recognize the policy and wholeheartedly agree that parties should be protected from those situations in which they may not receive a fair and impartial trial, we decline the Harpers' invitation to prohibit trial courts from ruling upon substantive, non-emergency matters prior to the time in which a change of judge motion may be filed.
Nothing in Trial Rule 76 indicates an intent that a trial court should be prohibited from ruling upon motions or other matters during the time period in which a change of judge motion may be filed. For this court to now implement that policy would effectively divest trial courts of the ability to take any meaningful action upon cases during a period in which much can be done to address matters which may appropriately be before the trial court. Additionally, a prohibition against ruling upon matters has the potential to lead to a back log of issues which must be dealt with after the time for the change of judge has expired and may lead to parties filing motions which would be unnecessary had the trial court been able to rule upon matters as they came before the court. Finally, were we to adopt the interpretation of the Rule which the Harpers offer, trial courts would have to determine whether an action which a party requested it to take was truly procedural or whether it had substantive implications. In many cases, procedural rulings directly impact substantive matters which are to occur later in a proceeding. The differences of opinion among the parties about what is or is not a substantive matter likely would lead to claims that the trial court had inappropriately ruled upon substantive matters in the restricted time period. This in turn would lead to additional litigation and appeals.1
Trial Rule 76 is written so that a party who feels that a change of judge is necessary may receive it. In those instances in which a party feels strongly that a fair trial cannot be had from the start, the party should immediately file a motion for change of judge. Urgency in filing the motion precludes the trial court's general ability to rule upon any matter in the cause of action. This is all the protection that is needed. We see no reason to amend the interpretation of the Rule to preclude the ability of parties and trial courts to advance their cases when no intention to file a change of judge motion exists or has been proposed.
The Harpers also claim that the Estate should not have been allowed to file a motion to set bond or a motion to dismiss for failure to file a bond because Trial Rule 12(B) requires that a responsive pleading be filed before each of those motions may be filed. Trial Rule 12(B) reads:
(3) Incorrect venue under Trial Rule 75, or any statutory provision. The disposition of this motion shall be consistent with Trial Rule 75.
We have found no case which has addressed whether a motion requesting that a trial court set a bond when one is required falls within the contemplation of Trial Rule 12(B). Given the nature of the proceedings in a will contest, we conclude that it does not.
Indiana Code § 29-1-7-19 requires that at the time a verified complaint is filed contesting a will, the plaintiff to the action shall file a bond with sufficient sureties in an amount approved by the court, conditioned for the due prosecution of the proceedings and for payment of all costs if in the proceedings judgment is rendered against the plaintiff. It has been consistently held that the filing of a bond in a will contest is not jurisdictional nor a condition precedent to the filing of a complaint. See, e.g., Manring v. Hodson, 142 Ind.App. 356, 361, 234 N.E.2d 870, 873 (1968)
. However, it has also been the law of this State for over one hundred years that before being permitted to proceed with the contest, the contestant is required to file a bond and the failure to file a bond in a will contest may result in a dismissal of the proceedings. See Harrison v. Stanton, 146 Ind. 366, 45 N.E. 582 (1896).
In Harrison, our Supreme Court was faced with the question of whether it was proper for a court to dismiss a will contest because a party failed to file the bond as required by statute. According to the statute in effect at the time, Indiana Code Ann. § 2767 (1894), the individual contesting the will was required to file a bond. In Harrison, the individual contesting the will sought the ability to proceed...
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