Kronmiller v. Wangberg, 02A03-9510-CV-335

• Decision Date: 20 May 1996
• Docket Number: No. 02A03-9510-CV-335,02A03-9510-CV-335
• Citation: 665 N.E.2d 624
• Parties: Irvin John KRONMILLER and Michael D. Kronmiller, as Co-Personal Representatives of the Estate of Verna Inez Kronmiller, and Irvin John Kronmiller, Individually, Appellants-Plaintiffs, v. David L. WANGBERG and Thomas L. Schoenherr, as Co-Executors of the Estate of Elmer William Kronmiller, Deceased; Teresa Jones; Judy Greer; Marie Hutchinson; Joyce Price; Neal Kronmiller; The Endowment Fund of the Evangelical Lutheran St. John's Church; and The Endowment Fund of St. John's Lutheran Church, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 624

665 N.E.2d 624

Irvin John KRONMILLER and Michael D. Kronmiller, as Co-Personal Representatives of the Estate of Verna Inez Kronmiller, and Irvin John Kronmiller, Individually Appellants-Plaintiffs, v. David L. WANGBERG and Thomas L. Schoenherr, as Co-Executors of the Estate of Elmer William Kronmiller, Deceased; Teresa Jones; Judy Greer; Marie Hutchinson; Joyce Price; Neal Kronmiller; The Endowment Fund of the Evangelical Lutheran St. John's Church; and The Endowment Fund of St. John's Lutheran Church, Appellees-Defendants.

No. 02A03-9510-CV-335.

Court of Appeals of Indiana.

May 20, 1996.

John B. Powell, Shambaugh, Kast, Beck & Williams, Fort Wayne, for Appellants.

Robert J. Parrish, Parrish & Knight, Fort Wayne, for Appellees David L. Wangberg and Thomas L. Schoenherr, Co-Executors of the Estate of Elmer William Kronmiller; The Endowment Fund of the Evangelical Lutheran St. John's Church; The Endowment Fund of St. John's Lutheran Church.

Donald D. Doxsee, Fort Wayne, for Appellees Teresa Jones, Judy Greer, Marie K. Hutchinson, Joyce Price and Neal Kronmiller.

OPINION

HOFFMAN, Judge.

Appellants-plaintiffs Irvin John Kronmiller (John) and Michael D. Kronmiller (Michael), as personal representatives of the Estate of Verna Inez Kronmiller, and Irvin John Kronmiller, individually, appeal from a summary judgment in favor of appellees-defendants David L. Wangberg and Thomas L. Schoenherr, as co-executors of the Estate of Elmer William Kronmiller, deceased; Teresa Jones; Judy Greer; Marie Hutchinson; Joyce Price; Neal Kronmiller; The Endowment Fund of the Evangelical Lutheran St. John's Church; and The Endowment Fund of St. John's Lutheran Church (collectively referred to as "the Estate") in a will contest action.

Elmer and Verna Kronmiller were husband and wife. The Kronmillers had one son, John, and six grandchildren, Michael, Teresa, Judy, Marie, Joyce, and Neal. Elmer had been a farmer all his life and continued to farm and raise livestock through 1988. The relationship between Elmer and his son, John, was strained at best, and prior to Elmer's death, he and his son had not spoken in many years.

On May 19, 1989, Elmer executed a last will and testament which was witnessed by David L. Wangberg, the attorney who prepared the will, and George H. Zeimer. A codicil to the will was executed on June 16, 1989. Elmer died on April 11, 1991, at the age of 88, and his will and the codicil were admitted to probate on April 22, 1991.

Elmer's will provided that after debts, funeral expenses, and costs of administration were paid, his estate would ensue to Verna, and if she did not survive him by three months, there were specific bequests to John and five of the six grandchildren, excluding Michael. The will noted that no provisions were made for Michael "not because of any lack of love and affection, but because he has already received ample property." The remainder of Elmer's estate was then to pass, in equal shares, to The Endowment Fund of the Evangelical Lutheran St. John's Church and The Endowment Fund of St. John's Lutheran Church. The codicil removed Michael as a contingent executor and appointed Thomas L. Schoenherr and David L. Wangberg as the contingent co-executors in his place. Elmer and Verna's assets included more than $200,000.00 in bank accounts. Verna died on June 11, 1991, only two months after Elmer's death.

John and Michael filed a will contest on September 20, 1991, alleging that Elmer was of unsound mind at the time he executed the will and codicil and that the instruments were executed under duress and obtained under undue influence. After Verna died, a complaint to contest her will was filed by the defendants in the instant case against John and Michael as co-personal representatives of Verna's estate. John and Michael filed a motion to consolidate the two cases. On October 3, 1994, the court granted the motion. The Estate filed objections to the order of consolidation to which John and Michael responded. On January 3, 1995, the trial court set aside and vacated its prior order after it determined that the consolidation of the will contest actions was not appropriate.

The Estate filed a motion for summary judgment on January 25, 1995. John and Michael filed various motions, including a motion for extension of time to respond and a motion to compel discovery. On March 2, 1995, the court granted John and Michael's motion for additional time but denied their motion to compel, finding that the discovery request was overly broad and necessarily included items and information that were protected by the attorney-client privilege and documents prepared in anticipation of litigation without a showing by John and Michael of substantial need or undue hardship. Thereafter, the Estate filed a motion to strike previously filed material in opposition to summary judgment, including material from the Mental Health Association, medical records of Redi-Med Southwest, records of Renaissance Village Nursing Home and records of Dr. Herman Meyer, Elmer's physician. After a hearing on the motions, the court granted both the Estate's motion for summary judgment and motion to strike. John and Michael now appeal.

On appeal, John and Michael raise four issues for review:

(1) whether the trial court erred in granting the Estate's motion to strike Mental Health Association notes of May 4, 1989 through May 22, 1989, medical records of Redi-Med Southwest, records of Renaissance Village Nursing Home, and medical records of Dr. Herman Meyer;

(2) whether the trial court erred in granting the Estate's motion for summary judgment;

(3) whether the trial court erred in denying John and Michael's motion to consolidate; and

(4) whether the trial court erred in denying John and Michael's motion to compel.

John and Michael argue that the trial court erred in striking various medical records, Exhibits "A," "F," "G," and "H." The Estate counters that not only did the trial court properly strike the various medical records for lack of authenticity, but also John and Michael failed to properly designate any evidence relevant to the material issues of fact regarding Elmer's competency. In response to the Estate's motion for summary judgment, John and Michael designated the following evidentiary material: Exhibit "A" Mental Health Association case notes for May 4, 1989 through May 22, 1989; Exhibit "B" Affidavit of Jane Walls: Exhibit "C" Affidavit of Audrey Wiedeman; Exhibit "D" Affidavit of Fern Bobay; Exhibit "E" Portions of the Deposition of George Zeimer; Exhibit "F" Medical records of Redi-Med Southwest; and Exhibit "G" Medical records of Dr. Herman Meyer.

Ind.Trial Rule 56(E) states, in part:

FORM OF AFFIDAVITS-FURTHER TESTIMONY-DEFENSE REQUIRED. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith....

However, T.R. 56(E) should not be so limited as to prohibit exhibits from being presented for the trial court's consideration in any other manner. In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial. See Wallace v. Indiana Ins. Co., 428 N.E.2d 1361, 1364, 1365 (Ind.Ct.App.1981) (contents of an uncertified exhibit cannot raise material issue of fact); Middelkamp v. Hanewich, 173 Ind.App. 571, 579, 364 N.E.2d 1024, 1030-1031 (1977), trans. denied (certified and duly authenticated copies of pleadings, motions, orders, judgments, and decision on appeal properly considered by trial court in determining whether to grant summary judgment); Freson v. Combs, 433 N.E.2d 55, 59 (Ind.Ct.App.1982) (unsworn statements, commentary, and uncertified exhibits cannot be considered by the trial court in ruling on a motion for summary judgment). An unsworn statement or unverified exhibit does not qualify as proper evidence. Wallace, 428 N.E.2d at 1365. The various medical records designated by John and Michael have not been authenticated nor has any other effort been made to prove that the records were true and accurate copies of the material they purported to be. Exhibits "A," "F," "G," and "H" have no indicia of reliability or trustworthiness; therefore, the trial court properly struck these exhibits from the designated evidence.

Further, John and Michael referred to the various medical records in their response to the Estate's motion for summary judgment in the exhibit's entirety. Ind.Trial Rule 56(C) specifically requires each party to a summary judgment motion to "designate to the court all parts of pleadings, depositions answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion." Id. (Emphasis added.) While setting forth the entire exhibit without reference to the part of parts relied upon is not a problem in a short one or two-page affidavit, see Exhibits "B," "D," and "C," it is not appropriate to designate lengthier exhibits without specific reference to the specific parts of the exhibit which are being relied upon to support or counter the summary judgment motion. As for Exhibit "E," specific references to the parts of the deposition which were relied upon were cited in John and Michael's response to the Estate's motion for summary judgment. See Marlatt v. United Farm Bur. Fam. Ins. Co., 640 N.E.2d 1073, 1075 (Ind.Ct.App.1994) (relevant evidence may be designated in a memorandum). Thus, the trial court properly considered only John and Michael's Exhibits "B," "C," "D," and "E" in opposition to summary judgment.

When reviewing an entry of summary judgment, this Court uses the same standard used by the trial...