Lincoln Nat. Bank v. Mundinger
| Decision Date | 27 September 1988 |
| Docket Number | No. 57A03-8712-CV-00360,57A03-8712-CV-00360 |
| Parties | LINCOLN NATIONAL BANK, Personal Representative of the Estate of Frederick Mundinger, Dorothy Mundinger, and Esther Mundinger, Appellants (Defendants Below), v. Kurt B. MUNDINGER and John Mundinger, Appellees (Plaintiffs Below). |
| Court | Indiana Appellate Court |
John F. Lyons, Alan Verplanck, Barrett & McNagny, Fort Wayne, for appellants.
Ronald E. James, Benson, Pantello, Morris & James, Fort Wayne, for appellees.
Lincoln National Bank, Personal Representative of the Estate of Frederick Mundinger, Dorothy Mundinger and Esther Mundinger (hereinafter collectively referred to as Lincoln Bank) brings this interlocutory appeal from a statutory will contest to raise the issue of whether the Noble Circuit Court erred when it denied their motion to dismiss and motion to strike.
We affirm.
Frederick G. Mundinger died on February 19, 1987. A written instrument purporting to be his last will and testament was offered for probate in the Allen Superior On July 28, 1987 Kurt B. Mundinger and John Mundinger, sons of Frederick Mundinger and beneficiaries under his will, filed a verified complaint contesting the probate of their father's will. Their verified complaint contained the following allegations:
Court on February 27, 1987. First notice of publication was made on March 3, 1987.
The allegations of the complaint were verified in the following manner:
The complaint did not contain a jurat.
On September 16, 1987, after the cause of action was venued from Allen County to the Noble Circuit Court, Lincoln Bank filed a motion to dismiss pursuant to Indiana Rules of Procedure, Trial Rule 12(B)(6). Lincoln Bank therein alleged that the Mundingers' verified complaint failed to satisfy the requirements of West's AIC 29-1-7-17 because it was not accompanied by affidavits sworn to before an officer authorized to administer oaths. On October 2, 1987, before the trial court ruled on Lincoln Bank's motion to dismiss, the Mundingers filed an Objection and Memorandum in Opposition to Motion to Dismiss, arguing that the signature of the affirming parties underneath the oath on the verified complaint was an affidavit in itself because will contests are "special statutory proceedings" within the jurisdiction of the trial courts. The Mundingers pointed out that, in the trial courts, the signature of an affirming party is the same as taking the oath before all officers of the court. Regardless, the Mundingers attached their separate affidavits sworn to before notary publics, stating as sworn fact to which they were personally knowledgeable:
Thereafter, on October 22, 1987, Lincoln Bank filed a Response to the Mundingers' Objection and Memorandum in Opposition to Motion to Dismiss, and at the same time filed a motion to strike the later-filed affidavits. Lincoln Bank contended that the affidavits filed on October 2 were untimely since the statutory five month filing period had expired, and that the affidavits could not relate back to the original filing date. Lincoln Bank further alleged that neither the original verified complaint nor the later-filed affidavits set forth information or facts within the personal knowledge of the affiants, and thus were entirely conclusory and legally insufficient to constitute the showing required by the probate code in order to contest the probate of a will.
In response to Lincoln Bank's October 22 filing, the Mundingers filed a Memorandum in Opposition to Newly Raised Issues, setting forth caselaw in support of their contention that, where an original complaint is timely filed, it can be later amended with those amendments relating back to the original filing date. The Mundingers (hereinafter referred to as Mundinger) further contended that the allegations contained in their amended complaint were sufficient to meet statutory requirements for pleading.
On November 20, 1987, the trial court denied Lincoln Bank's motion to dismiss the verified complaint and motion to strike the affidavits filed in support of the verified complaint. The trial court determined that pursuant to West's AIC 29-1-20-1, which sets forth verification procedures as required under the probate code, the verified complaint was sufficient to meet the requirements of IC 29-1-7-17. The trial court further found that the allegations set forth in the original verified complaint were sufficient because they set forth the statutory provisions noting that, under the current trial rules, notice pleading suffices. Therefore, the substantive facts of each particular allegation need not be specifically pled in the complaint. Finally, the trial court found that the later-filed affidavits related back to the filing date of the verified complaint pursuant to Indiana Rules of Procedure, Trial Rule 15(C). Thereafter, Lincoln Bank perfected this interlocutory appeal pursuant to Indiana Rules of Procedure, Appellate Rule 4(B)(6).
Lincoln Bank's argument on appeal has two prongs: first, Lincoln Bank contends that the original complaint was insufficient to invoke the jurisdiction of the trial court because it failed to allege specific facts and lacked a jurat; second, Lincoln Bank contends that the affidavits similarly failed to provide the specific facts relevant to the controversy, and further were incapable of relating back to the date of the original complaint because they were filed after the expiration of the five month statute of limitations. Thus, they should be stricken from the record.
While motions to dismiss for failure to state a claim on which relief can be granted are proper to test the sufficiency of a claim for relief in any pleading, they are regarded with disfavor by the courts. This disfavor stems from the recognition of the potential for the indiscriminate use of this type of dismissal to undermine the primary objective of the law, which is to obtain a determination on the merits of a claim. See Theis v. Heuer (1971), 149 Ind.App. 52, 270 N.E.2d 764, 766. When reviewing a motion to dismiss for failure to state a claim, we must determine whether, in the light most favorable to the plaintiff and with every inference drawn in his favor, the complaint is sufficient to constitute any valid claims. Sheridan v. Town of Merrillville (1981), Ind.App., 428 N.E.2d 268, 270, reh. denied.
Lincoln Bank's first argument focuses on the language of IC 29-1-7-17 which provides:
According to Lincoln Bank, the requirement that one filing a contest of wills set forth his "allegations in writing verified by affidavit" constitutes a statutory mandate that a complaint filed in a contest of wills meet the Indiana Rules of Procedure, Trial Rule 56(E) definition of "affidavit." 1 Lincoln Bank continues that, because T.R. 56 requires that facts be set forth which would be admissible in evidence, based upon personal knowledge, IC 29-1-7-17 and the Supreme Court Rules vary irreconcilably in pleading requirements. Ultimately, it is argued, a contest of wills is a purely statutory proceeding as opposed to civil, therefore not subject to or superseded by the Supreme Court Rules when their corresponding provisions conflict. 2 As a result of Mundinger's failure to meet the requirements of the probate code by filing a verified complaint sufficient to qualify as an affidavit as defined by T.R. 56, Lincoln Bank contends that the jurisdiction of the trial court was not invoked within the five-month period limiting the filing of will contests. 3
Although tempted by the opportunity, we decline Lincoln Bank's invitation to determine whether the provisions of the probate code are impervious to those of the Supreme Court Rules where the two conflict. We find no discrepancy between the statutory requirements for the filing of a contest of wills and the notice pleading provisions of the Supreme Court Rules.
The crucial flaw in Lincoln Bank's argument is its proposition that "verified by affidavit" requires either that separate affidavits conforming to T.R. 56(E) standards be filed with a complaint or, in the alternative, that the verified complaint itself similarly...
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