Jones v. Bosworth

• Court: Indiana Appellate Court
• Writing for the Court: May, Judge.
• Citation: 230 N.E.3d 988
• Docket Number: Court of Appeals Case No. 23A-TR-813
• Decision Date: 15 March 2024
• Parties: IN RE: the Administration of the TRUST OF: NEAL L. BOSWORTH, Deceased. Vickie Jones, et al., Appellants-Petitioners v. Tony Bosworth, Appellee-Respondent

230 N.E.3d 988

IN RE: the Administration of the TRUST OF: NEAL L. BOSWORTH, Deceased.

Vickie Jones, et al., Appellants-Petitioners

v.Tony Bosworth, Appellee-Respondent

Court of Appeals Case No. 23A-TR-813

Court of Appeals of Indiana.

Filed March 15, 2024

Appeal from the Randolph Circuit Court, The Honorable Jay L. Toney, Judge, Trial Court Cause No. 68C01-2112-TR-163

Attorneys for Appellants: Frank D. Otte, Jennifer F. Perry, Olivia A. Hess, Clark, Quinn, Moses, Scott & Grahn, LLP, Indianapolis, Indiana

Attorneys for Appellee: Lisa M. Dillman, Applegate & Dillman Elder Law, Indianapolis, Indiana, Ben T. Caughey, Mercho Caughey, Indianapolis, Indiana

May, Judge.

[1] Vickie Jones and Karen Loser (collectively, "Sisters") appeal the trial court’s order docketing the copy of the Neal L. Bosworth Trust Agreement tendered by Tony Bosworth ("Tony"). Sisters raise three issues on appeal, which we consolidate, revise, and restate as: Whether Tony properly challenged Sisters’ verified petition to docket trust by filing a second verified petition to docket trust in the cause of action opened by Sisters. We affirm in part, reverse in part, and remand. Facts and Procedural History

[2] Jones, Loser, and Tony are the three surviving children of H. Louise Bosworth ("Louise") and Neal L. Bosworth ("Neal"). Louise died on October 19, 2019. Neal passed away on April 4, 2021.

[3]On December 22, 2021, Sisters filed a petition to docket Neal’s trust in the Randolph County Circuit Court. They attached to their petition a collection of documents (hereinafter collectively referred to as "Two-Amendment Instrument") that included the original trust agreement that Neal created on February 5, 2003, a first trust amendment that Neal signed on December 20, 2006, and a second trust amendment that Neal signed on December 22, 2011. The trial court granted Sisters’ petition on December 28, 2021, and ordered the Two-Amendment Instrument be docketed and administered. The trial court’s order stated:

WHEREFORE IT IS NOW HEREBY ORDERED, ADJUDGED, AND DECREED:

1. This Court assumes jurisdiction and venue over the administration of the Original Trust Instrument, the First Amendment, and the Second Amendment.

2. The Original Trust Instrument, the First Amendment, and the Second Amendment are hereby docketed in this proceeding, pursuant to I.C. 30-4-6-7.

3. Said written instruments shall be removed from the Court’s file upon conclusion of this matter.

4. Administration of the Original Trust Instrument, the First Amendment, and the Second Amendment shall be subject to the supervision of this Court, pending resolution of all issues related thereto.

5. Following are the interested persons entitled to Notice of all proceedings herein:

Vickie L. Jones

Beneficiary of the Original Trust Instrument, the First Trust

Amendment and the Second Trust Amendment

Karen J. Loser

Beneficiary of the Original Trust Instrument, the First Trust

Amendment and the Second Trust Amendment

Tony W. Bosworth

Beneficiary of the Original Trust Instrument, the First Trust

Amendment and the Second Trust Amendment

(Appellant’s App. Vol. II at 68-69) (formatting in original). On January 6, 2022, Sisters’ counsel sent Tony a certificate of trust. The cover letter included with the certificate of trust stated: "You must commence any judicial proceeding to contest the validity of the Trust within (90) days after your receipt of this Notice and the enclosed Certificate of Trust." (Id. at 118.)

[4] On January 20, 2022, in the cause of action commenced by Sisters, Tony filed a verified petition to docket trust. Tony attached to his verified petition a collection of documents (hereinafter collectively referred to as "Four-Amendment Instrument") that included the original trust instrument Neal created on February 5, 2003, the two amendments to the original trust instrument that Sisters had submitted, a third amendment to the original trust instrument that Neal signed on July 15, 2016, and a fourth amendment to the original trust instrument that Neal signed on August 19, 2019. The third and fourth amendments increased the share of farmland Tony was to inherit. Tony asserted in his petition to docket trust:

7. On December 22, 2021, Vickie Jones and Karen Loser submitted a Petition to Docket Trust.

8. On December 28, 2021, the Court entered an Order Docketing Trust, however such Order only referenced and gave the Court powers of supervision and administration over the Trust and two of the four amendments to the Trust.

9. Accordingly, Tony Bosworth submits that the granting of relief in the form of the docketing of the complete Trust Agreement including all four amendments thereto is appropriate.

(Id. at 71.) The trial court set a hearing for March 15, 2022, on Tony’s petition, but the hearing was reset and vacated multiple times.

[5] On December 30, 2022, the trial court entered an order directing the parties to submit briefs regarding Tony’s verified petition and set a hearing on the petition for March 9, 2023. Sisters argued in their brief in opposition to Tony's verified petition that Tony had waived his right to contest the validity of the copy of Neal’s trust that Sisters filed on December 22, 2021, because his purported action contesting the validity of the trust was procedurally improper and untimely. In Tony’s brief, he argued that the copy of the trust instrument he filed was "self-proving," and that if Sisters wished to assert Neal lacked the capacity to enter the third and fourth amendments to the instrument, they bore the burden of proving Neal lacked such capacity. (Appellee’s App. Vol. II at 112.)

[6] On March 9, 2023, the trial court began the hearing¹ by stating:

COURT: We are here this morning on two Trust matters. The Matter of the Administration of the Trusts of Neal Bosworth, 2112-TR-163 and Trust of H. Louise Bosworth, 2112-TR-164…. These causes are scheduled today for argument essentially and the Court will take testimony also with regard to the issue of whether Mr. Bosworth acted appropriately and in a timely manner in the filings that he made in each of these cases. The Court will then take that matter under advisement pursuant to conversations with both counsel in chambers this morning, how the case would proceed after that point would depend upon my determination of that issue. For example, if the Court determined that Mr. Bosworth was not timely, and his filing was not appropriate then the Court would proceed with the Trust [sic] as they are already filed and if the Court determined Mr. Bosworth did act timely and appropriately in what he filed then we would proceed with evidentiary hearings as to which of the amendments, well there actually may be other filings that will be made. The Court will make that determination first and then the parties can make their decisions as to how to proceed at that point. Counsel does that accurately reflect our conversations this morning.

[Sisters:] Yes, Your Honor.

[Tony:] I believe it does Judge.

(Appellant’s Supp. App. Vol. II at 3.) Tony testified at the hearing that he and his wife partnered with Neal and Louise in taking care of the farm, and he and his wife took on more of the responsibilities for the farm as his parents aged. Tony also testified that Sisters were aware of the Four-Amendment Instrument before they filed the Two-Amendment Instrument. Tony explained that he and Sisters "had two meetings and they asked me if I would change idlings so they could have ground. I said, no we’re going with the Trust like dad wanted it." (Id. at 9.) Sisters did not testify or present any evidence at the hearing.

[7] On March 17, 2023, the trial court issued an order granting Tony’s petition. The order provided, in relevant part:

A. Tony Bosworth’s Petition should be, and hereby is, granted.

B. The Neal L. Bosworth Trust Agreement dated as of February 5, 2003 together with each of the four amendments thereto … is hereby docketed in this proceeding pursuant to Ind. Code § 30-4-6-7.

* * * * *

D. The Neal L. Bosworth Trust Agreement dated as of February 5, 2003 together with each of the [four] amendments thereto … shall be administered under the supervision of this Court.

E. This Order shall supersede and take precedence over this Court’s Order Docketing Trust entered on December 28, 2021.

(Appellant’s App. Vol. II at 8-9.) On April 11, 2023, Sisters filed a motion for the trial court to certify for interlocutory appeal its order docketing the Four-Amendment Instrument. The trial court certified the order for interlocutory appeal on April 17, 2023. We accepted interlocutory jurisdiction on June 26, 2023.

Discussion and Decision

[1–5] [8] Sisters assert Tony failed to comply with the statutory procedure for contesting a trust, and therefore, the trial court lacked the requisite authority to docket the Four-Amendment Instrument. Sisters ask us to vacate the trial court’s order docketing the Four-Amendment Instrument and reinstate the trial court’s December 28, 2021, order docketing the Two-Amendment Instrument. We review the trial court’s order de novo because it turns on a question of statutory interpretation. Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). "[O]ur goal in statutory interpretation is to determine, give effect to, and implement the intent of the legislature as expressed in the plain language of its statutes." Metro. Dev. Corp. v. Powell, 162 N.E.3d 1100, 1103 (Ind. Ct. App. 2020). "The rules of statutory interpretation mandate that we assign words their plain and ordinary meaning unless the statute provides definitions otherwise." Montgomery v. State, 878 N.E.2d 262, 266 (Ind. Ct. App. 2007). We pay attention both to what the statute says and to what it does not say. ESPN Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016). "[W]e may not add new words to a statute which are not the expressed intent of the legislature." Ramey v. Ping, 190 N.E.3d 392, 403 (Ind. Ct. App. 2022), trans. denied.

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