Lee v. Schroeder, 24A01-8803-CV-94

• Decision Date: 17 October 1988
• Docket Number: No. 24A01-8803-CV-94,24A01-8803-CV-94
• Citation: 529 N.E.2d 349
• Parties: Louise LEE, Plaintiff-Appellant, v. Linda L. SCHROEDER, as Co-Executrix of the Estate of Raymond C. Schwagmeier, deceased; Gaberella Parker, as Co-Executrix of the Estate of Raymond C. Schwagmeier, deceased; Linda L. Schroeder, Richard P. Schroeder, Robert Schwagmeier, Ruth Weber, and Richard Shaddy, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 349

529 N.E.2d 349

Louise LEE, Plaintiff-Appellant, v. Linda L. SCHROEDER, as Co-Executrix of the Estate of Raymond C. Schwagmeier, deceased; Gaberella Parker, as Co-Executrix of the Estate of Raymond C. Schwagmeier, deceased; Linda L Schroeder, Richard P. Schroeder, Robert Schwagmeier, Ruth Weber, and Richard Shaddy, Defendants-Appellees.

No. 24A01-8803-CV-94.

Court of Appeals of Indiana First District.

Oct. 17, 1988.

Rehearing Denied Dec. 14, 1988.

L. Mark Bailey, Wilson & Kehoe, Indianapolis, for plaintiff-appellant.

Gary K. Kemper, Jenner & Kemper, Madison, for defendants-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant, Louise Lee (Louise), appeals an adverse summary judgment rendered by the Franklin Circuit Court in her suit to contest the will of Raymond C. Schwagmeier, deceased, (the decedent). The defendant-appellees in the case are Linda L. Schroeder (Linda) and Gaberella Parker (Gaberella) as co-executors, and Linda L. Schroeder, Richard P. Schroeder, Robert Schwagmeier, Ruth Weber, and Richard Shoddy, individually.

We affirm.

STATEMENT OF THE RECORD

The evidentiary material before the court is as follows. The decedent died on April 2, 1986, without a wife, children, or lineal descendants surviving him. He left as his heirs at law Louise and Ruth Weber, sisters, and Robert Schwagmeier and Richard Shoddy, nephews. An instrument purporting to be his last will and testament and bearing the date of January 31, 1986, was admitted to probate on April 11, 1986, after which letters testamentary naming Linda The co-executrices and Richard Schroeder filed their motion for summary judgment supported by answers to interrogatories, the affidavits of hospital personnel, Kathy Scroggins, Patricia Alcorn, Shiela Adams, and Susan Kooistra, the affidavit of Dr. F.W. Hare, the decedent's treating physician, and the affidavits of Linda and Gaberella. All of the supporting evidentiary material, as relevant here, stated that at the period surrounding the execution of the will the decedent was alert, oriented, lucid, totally capable of understanding, of sound mind, and had good judgment. The affidavits of Linda and Gaberella added that he knew and understood the nature of his property, the natural objects of his bounty, the consequences of his act, and was not under undue influence, duress, coercion, or fraud when he executed his will. The answers to interrogatories reflected that Linda was not related to the decedent, but had been a friend since 1945. She had taken care of him prior to his death for a short time and stated that the decedent had no mental infirmaties. The will had been executed in a lawyer's office but she had not been present.

and Gaberella as co-executrices were issued. By its terms, the will, after directing that all debts be paid, left all of the decedent's property to Linda. Thereafter, Louise commenced her action to contest the will on July 25, 1986, upon the following grounds: (a) unsoundness of mind; (b) undue influence; (c) duress; (d) fraud in obtaining the execution; and (e) execution of the will was obtained through undue influence.

In opposition to the motion for summary judgment, Louise filed a counteraffidavit of her own, the affidavit of Dr. James R. Davis (Dr. Davis), a psychiatrist, and an affidavit of a minister.

Louise's affidavit stated that the decedent had been a patient in the hospital from January 11, 1986, to January 25, 1986, after he had suffered a heart attack. His wife of over 50 years died on January 27 and was buried on January 29, after which his will was executed on January 31, 1986. There was no prior will. Louise stated that she had spoken with the decedent on January 31 at which time he appeared to be in a very weak physical and mental condition, cried over the loss of his wife, and expressed fear about death and loneliness. He stated that Linda and her husband, Richard, had promised to terminate their employment in Florida and move to the Schwagmeier farm in Ripley County and begin farming. He told Louise that based upon those promises and in order to buy peace of mind and avoid a confrontation between the family and Linda, he gave Linda and Richard the farm in exchange for their promise of constant care, company, and companionship until his death. At no time did he mention he had executed a will on January 31, 1986.

Louise continued that on March 10, 1986, Linda had gone to Florida, leaving the decedent unattended in his home where he fell and was injured. The decedent was admitted to a hospital where he subsequently died on April 2, 1986. In her opinion the execution of the will was accomplished upon the exertion of undue influence over the decedent by Linda and Richard. Louise asserted further that it had been the decedent's wish that she be his administratrix and that he had promised that additional sums of money would be coming to her on his death. Louise also stated that Linda represented to others that she was the decedent's daughter.

The minister's affidavit spoke only of the decedent's poor health, of Linda's domineering and possessive attitude, and of the fact that the decedent and his wife had been reclusive and isolated. In his affidavit, Dr. Davis stated that he had examined hospital records which showed that the decedent was admitted to the hospital on January 11, 1986, for acute myocardial infarction. The affidavit, after reciting various entries from the hospital records addressed to the decedent's physical condition, stated that the records showed that the decedent was confused on January 13, 15, 20, 21, and 22. Nevertheless, the decedent was discharged on January 25. The hospital records were not certified by the hospital personnel, nor were they attached to the It is my professional opinion, based upon Raymond Schwagmeier's age, his physical condition, including the degenerative hip disease, recent history of acute myocardial infarction, arteriosclerosis which is commonly known as hardening of the arteries or senility when associated with old age, his isolation at his home in the country, the emotional distress he was experiencing due to the death of his wife of over fifty years on January 27, 1986, the recognition of his own mortality when faced with his wife's burial and funeral on January 29, 1986, and the dissension between family and friends, that there was an environment on January 31, 1986, which rendered Raymond Schwagmeier susceptible to undue influence.

affidavit. Dr. Davis concluded his affidavit with the following opinion:

Record at 110.

The trial court granted the motion for summary judgment without specifying his reasons.

ISSUES

Louise presents five issues for review which we restate as follows:

I. Whether the dead man's statute, IND.CODE 34-1-14-6, is applicable to a will contest.

II. Whether the evidence of fraud is sufficient to defeat the motion for summary judgment.

III. Whether a medical expert can testify based upon a decedent's medical records when he had no involvement in the case, had never seen the decedent, and the records had not been certified for evidentiary purposes.

DISCUSSION AND DECISION

Standard of Review

In summary judgment proceedings a summary judgment is appropriate only where there is no genuine issue of material fact, and any doubt in this regard must be resolved in favor of the non-moving party. However, despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute regarding facts which are dispositive of the matter. Mogan v. Southern Indiana Bank and Trust Co. (1985), Ind.App., 473 N.E.2d 158.

Affidavits in support of or in opposition to motions for summary judgment must be made upon the personal knowledge of the affiant and show he is competent to testify as to the matter included. The affidavit must set forth facts which would be admissible in evidence, and the assertions or conclusions of law or opinions by one not qualified to testify to such will not suffice. Raymundo v. Hammond Clinic Ass'n. (1983), Ind., 449 N.E.2d 276; Ind.Rules of Procedure, Trial Rule 56(E). Where the affidavit does not meet the requirement of T.R. 56(E), the court may disregard it upon its own motion. Cunningham v. Associates Capital Services Corp. (1981), Ind.App., 421 N.E.2d 681. A court should disregard any inadmissible information contained in an affidavit. Interstate Auction, Inc. v. Central National Insurance Group, Inc. (1983), Ind.App., 448 N.E.2d 1094.

The burden is upon the moving party to establish that no genuine issue of material fact exists. Indiana Insurance Co. v. Sentry Insurance Co. (1982), Ind.App., 437 N.E.2d 1381. However, if the moving party supports the motion with proper evidentiary materials which establish the lack of any genuine issue of material fact, the non-moving party may not rest on his pleadings but must come forth with proper evidentiary material showing specific facts as to why a genuine issue of fact exists for trial. Cunningham, supra. In Garrett v. City of Bloomington (1985), Ind.App., 478 N.E.2d 89, trans. denied, we said:

Our standard of review is the same as the trial court's--we must determine whether a genuine issue of material fact existed and whether the moving party is entitled to judgment as a matter of law. Johnson v. Padilla (1982), Ind.App., 433 N.E.2d 393. "A fact is material if it is decisive of either the action or a relevant secondary issue." Consolidated City of Indianapolis v. Cutshaw (1983), Ind.App., 443 N.E.2d 853, 856. A summary judgment proceeding cannot and should not be used as an abbreviated trial. Cutshaw, supra. The trial judge may not weigh the evidence in such a proceeding. In reviewing the propriety of a summary judgment, the facts alleged by the party opposing the Motion must be taken as true. Boswell v. Lyon (1980), Ind.App., 401 N.E.2d 735.

478 N.E.2d at 92.

ISSUE I: Dead Man's Statute

The issue before us is whether Louise's...