Keck v. Walker
| Decision Date | 03 March 2010 |
| Docket Number | No. 69A01-0909-CV-467.,69A01-0909-CV-467. |
| Parties | Robert F. KECK, Janet L. Russell, Appellants-Plaintiffs, v. Mary Ann WALKER, Individually, And as Personal Representative of the Estate of Edith M. Dawdy, et al., Appellees-Defendants. |
| Court | Indiana Appellate Court |
David D. Deeter, Wade D. Fulford, Dale & Eke Professional Corporation, Indianapolis, IN, Attorneys for Appellants.
John L. Kellerman, II, Batesville, IN, for Attorney for Appellees.
Robert F. Keck ("Keck") and Janet L. Russell ("Russell") (collectively "the Plaintiffs") filed a complaint in Ripley Circuit Court against Mary Ann Walker, individually and as the personal representative of the Estate of Edith M. Dawdy ("the Estate"), challenging the validity of the probated will and codicils of the decedent. The trial court granted summary judgment in favor of the Estate. The Plaintiffs appeal and claim that the trial court erred in concluding that the bequest to their deceased mother lapsed.
We affirm.
The underlying facts are mostly undisputed. Edith M. Dawdy ("Dawdy") executed her Last Will and Testament ("the Will") on April 13, 1994. The Will included a residuary clause which provided that Luella Keck ("Luella"), who was Dawdy's first cousin and the mother of the Plaintiffs, would receive a share of the residue of the Estate:
"I give, bequeath and devise all the rest and residue of my property to Luella Keck, Edith Zimmer, Jean Frazier, Bill Frazier and Margaret Ruger in equal shares, share and share alike."
On July 8, 1995, Luella died. Less than six months later, on December 26, 1995, Dawdy executed a Codicil to her Will. This first Codicil amended the residuary clause to include Mary Ann Walker as a beneficiary but still listed the now-deceased Luella:
I give, bequeath and devise all the rest and residue of my property to Luella Keck, Edith Zimmer, Jean Frazier, Bill Frazier, Margaret Ruger and Mary Ann Walker in equal shares, share and share alike.
On February 6, 2001, over five years after Luella died, Dawdy executed another Codicil to her Will. This second Codicil amended the residuary clause yet again, but still included Luella as a beneficiary:
I give, bequeath and devise 1/5 of all the rest and residue of my property to Luella Keck, Jean and Bill Frazier, or the survivor of them, Margaret Ruger and Mary Ann Walker, and the remaining 1/5 to be divided equally among Edith Zimmer, Leslie Smith and Paul Smith.
Appellant's App. p. 40. Dawdy died on April 28, 2006, almost five years after executing the Second Codicil.
On May 3, 2006, Mary Ann Walker, as the named personal representative, petitioned to probate Dawdy's Will and the two Codicils. The trial court entered an order on May 8, 2006, admitting the Will and Codicils to probate. The Plaintiffs filed a verified complaint on August 4, 2006, contesting the validity of the Will and Codicils. In Count I of their complaint, the Plaintiffs alleged that, based on statements by Dawdy, the probated Will and Codicils had been superseded by a subsequent will. In Count II, the Plaintiffs argued in the alternative that the inclusion of their long-deceased mother, Luella, in the residuary clause, coupled with alleged oral statements by Dawdy, evidenced an intent that the Plaintiffs were to receive Luella's share of the residual estate.
On May 14, 2007, the Plaintiffs filed a motion for summary judgment claiming that they were entitled to their mother's share of the residual estate. In support of their motion, the Plaintiffs designated an affidavit of Russell, which averred: (1) that Luella died on July 8, 1995 and that her funeral was held on July 11, 1995; (2) that Dawdy had sent flowers to Luella's funeral and personally attended the services; (3) that Dawdy had sent the Plaintiffs $50 to help pay for the expense of Luella's funeral; and (4) that after Luella died, Dawdy repeatedly told Russell that she and Keck would be taken care of in Dawdy's will by receiving Luella's share of the estate. Appellant's App. pp. 20-21, 26-36. Based on this, the Plaintiffs argued that they should receive their mother's share of Dawdy's estate.
On June 15, 2007, the Estate responded to the Plaintiffs' motion for summary judgment, arguing that the bequest to Luella had lapsed, that the Will and Codicils were not ambiguous, and that Russell's affidavit was inadmissible pursuant to Indiana Code section 34-45-2-4, commonly known as the Dead Man's Statute. The trial court entered an order on July 19, 2007, concluding that the bequest to Luella had lapsed and that the Estate was entitled to summary judgment on that issue.
The Plaintiffs then filed a motion to correct error on July 26, 2007, which the trial court denied on August 15, 2007. On September 13, 2007, the Plaintiffs filed a request that the trial court certify its order denying their motion to correct error for interlocutory appeal.1 This court initially accepted interlocutory jurisdiction. However, we later issued a memorandum decision holding that the Plaintiffs' motion to correct error was properly considered a motion to reconsider, concluding as follows:
Because the trial court's order was not a final order, Keck and Russell should not have filed a motion to correct error. A "motion to correct error, if any shall be filed not later than thirty (30) days after the entry of a final judgment or an appealable final order." Ind. Trial Rule 59(C) (emphasis added). See also Hubbard v. Hubbard, 690 N.E.2d 1219, 1220-21 (Ind.Ct.App.1998) ().
Accordingly, Keck and Russell's motion should be viewed as a motion to reconsider. See id. (). A motion to reconsider does not "extend the time for any further required or permitted action, motion, or proceedings." T.R. 53.4(A). Therefore, Keck and Russell needed to file their motion for certification of interlocutory appeal within thirty days of the summary judgment order. Ind. Appellate Rule 14(B)(1)(a).
The trial court issued its summary judgment order on July 19, 2007. Keck and Russell did not request certification of an interlocutory appeal until September 13, 2007; therefore, it was not timely filed. App. R. 14(B)(1)(a) allows for late filing if the trial court makes a finding that good cause has been shown, but no such finding was made in this case. Our jurisdiction over interlocutory appeals is subject to the procedures outlined in App. R. 14. App. R. 5(B). Therefore, we should not have accepted jurisdiction, and we now dismiss the appeal.
Keck v. Walker, No. 69A04-0710-CV-590, 888 N.E.2d 877, 2008 WL 2390805, slip op. at 4-5 (Ind. Ct.App. June 13, 2008).
On remand, the Plaintiffs filed a notice of voluntary dismissal with prejudice on August 21, 2009, seeking to dismiss Count I of their complaint. The trial court approved the Plaintiffs' dismissal and entered an order stating that its earlier order granting summary judgment as to Count II "[wa]s now a final and appealable order and the case in its entirety is now final AND SO ORDERED." Appellant's App. p. 67. The Plaintiffs filed a notice of appeal on September 23, 2009.
Before we address the Plaintiffs' contentions, we first turn to the Estate's argument that the Plaintiffs' appeal is untimely. The Estate claims that the Plaintiffs "effectively barred further adjudication" of their claim on Count II of their complaint by dismissing Count I. Appellees' Br. p. 3. Specifically, the Estate claims that the trial court's July 17, 2007 order granting summary judgment to the Estate as to Count II of the complaint was a final judgment and that the Plaintiffs should have filed a notice of appeal within thirty days of that order. We disagree.
The Estate's argument overlooks that fact that the trial court's summary judgment order of July 17, 2007 was not a final judgment at the time it was entered because it did not then "dispose[] of all claims as to all parties," nor did the trial court determine expressly in writing that there was no just reason for delay and deem the order final pursuant to Trial Rule 56(C). See Ind. Appellate Rule 2(H)(1), (2); see also Rayle v. Bolin, 769 N.E.2d 636, 638 (Ind.Ct.App.2002) (); Krueger v. Bailey, 406 N.E.2d 665, 667 (Ind.Ct.App.1980) ().
Thus, at the time the trial court entered its order granting partial summary judgment to the Estate, the order was not a final judgment. In fact, this was central to the holding of our earlier opinion in this case in which we determined that "the trial court's order was not a final order," in that it "d[id] not dispose of the first count of [the Plaintiffs'] complaint." Keck, 888 N.E.2d 877, slip op. at 4. In short, the trial court's order granting partial summary judgment to the Estate was not a final order.
However, when Count I of the Plaintiffs' complaint was voluntarily dismissed upon remand, this had the effect of eliminating any remaining issues between the parties. The Estate argues that this retroactively transformed the earlier order granting partial summary judgment into a final order which the Plaintiffs were required to appeal as a final order within thirty days, even though at the time it was entered, the trial court's order was not final. This is absurd.
We conclude instead...
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