McCoy v. Like

• Decision Date: 12 August 1987
• Docket Number: No. 28A01-8704-CV-00098,28A01-8704-CV-00098
• Citation: 511 N.E.2d 501
• Parties: William L. McCOY, George M. McCoy, Mildred Robison, and Betty Hayes, Plaintiffs-Appellants, v. Dr. Jerry L. LIKE, Personal Representative of the Estate of Martha J. McCoy; June Joslin; Georgialee Like; Jerri Sue McCoy, and Jerry L. Like, Defendants- Appellees.
• Court: Indiana Appellate Court

Page 501

511 N.E.2d 501

William L. McCOY, George M. McCoy, Mildred Robison, and Betty Hayes, Plaintiffs-Appellants, v. Dr. Jerry L. LIKE, Personal Representative of the Estate of Martha J. McCoy; June Joslin; Georgialee Like Jerri Sue McCoy, and Jerry L. Like Defendants- Appellees.

No. 28A01-8704-CV-00098.

Court of Appeals of Indiana First District.

Aug. 12, 1987.

Rehearing Denied Oct. 21, 1987.

Steven C. Bradley, Price and Bradley, Jasper, for plaintiffs-appellants.

Jeffrey B. Kolb, Emison Doolittle & Kolb, L. Edward Cummings, Kimmell, Funk & Cummings, Vincennes, for defendants-appellees.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

William McCoy, George McCoy, Mildred Robison, and Betty Hayes appeal the dismissal of a portion of their cause of action. We reverse.

FACTS

The facts as set forth in the plaintiffs' amended complaint reveal that Martha McCoy died in a nursing home at the age of seventy-nine (79) in Knox County on July 11, 1985. The following day, her will, dated February 16, 1984, was probated in the Knox Circuit Court. Dr. Jerry Like was appointed personal representative of the estate pursuant to the terms of the will. Dr. Like exercised Martha McCoy's power of attorney from November 17, 1983 until her death. Also on November 17, 1983, Martha, as seller, entered into a contract for the conditional sale of over 120 acres of real estate with Dr. Like and his wife Georgialee. Martha McCoy was Georgialee's aunt. Less than one month later, the same parties amended the agreement by lowering substantially the purchase price. Dr. Like and his wife never made any payments to Martha on the contract.

Martha McCoy's will which was executed in 1984 bequeathed the balance due on the land contract to her three nieces, June Joslin, Jerri Sue McCoy, and Georgialee Like. The will bequeathed the remainder of the estate to all of her nephews and nieces in equal shares. Dr. Like was nominated as her personal representative.

Martha previously had executed a will in 1976, prior to her close association with Dr. Like. In that will, Martha bequeathed all of her property to her nephews and nieces in equal shares. Jerri Sue McCoy, her niece, and William McCoy, her nephew, were nominated as her personal representatives.

William McCoy, George McCoy, Mildred Robison, and Betty Hayes (hereinafter referred to as the plaintiffs), were Martha McCoy's nephews and nieces who were legatees under the 1984 will. They filed a complaint to contest the will on several grounds, including fraud and undue influence. All other heirs and beneficiaries were named as defendants as well as Dr. Like in his capacity as Martha's personal representative. The action was venued to Greene Circuit Court pursuant to a Trial Rule 76 motion by the plaintiffs.

After taking Dr. Like's deposition, the plaintiffs filed an amended complaint which was served upon all of the defendants, and added as a defendant Dr. Like as an individual. The amended complaint added several claims to the will contest. In Count I, the original will contest allegations were restated and a claim was made against Dr. Like for his exertion of undue influence and fraud in the will's execution. Count II sought to set aside the land contract because of Dr. Like's undue influence and fraud and to impose a constructive trust. Finally, Count III alleged Dr. Like's failure to act during Martha McCoy's lifetime in her best interests and other alleged acts of misconduct and breaches of his fiduciary duty. The amended complaint requested compensatory and punitive damages against Dr. Like individually.

Dr. Like, as an individual, filed a motion to dismiss regarding all counts of the amended complaint. Subsequently, the remaining defendants, including Dr. Like as the estate's personal representative, filed a motion to dismiss.

The trial court dismissed everything in the amended complaint other than the will contest and dismissed Dr. Like as an individual defendant, but failed to indicate its reasons. ¹ Thereafter, the plaintiffs filed a motion to reconsider, a second amended complaint, a motion to sever, and a motion to transfer. The court dismissed the second amended complaint and denied the other motions. This appeal followed.

ISSUES

Because we reverse, the following issues are dispositive of this appeal:

1. Whether the plaintiffs could join Dr. Like as an individual defendant under Trial Rule 20(A).

2. Whether the plaintiffs could join other claims to a will contest suit under Trial Rule 18(A).

DISCUSSION AND DECISION

Before addressing the dispositive issues, we must address Dr. Like's assertion that this appeal is not properly before us. Dr. Like claims that the trial court's dismissal was not a final judgment since the plaintiffs can file all of the dismissed claims in the Knox Circuit Court. Dr. Like further argues that the plaintiffs failed to certify this as an interlocutory appeal. Regardless of Dr. Like's contentions, we are not deprived of appellate jurisdiction. Indiana Rules of Procedure, Appellate Rule 4(E) provides:

"(E) Dismissal of Appeals. No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues, or it may pass upon such adjudicated issues as are severable without prejudice to parties who may be aggrieved by subsequent proceedings in the court below."

We have declined to dismiss improperly brought appeals and retained appellate jurisdiction under A.R. 4(E) in cases of significant public interest and where the same issue would be raised in a new appeal, Highland Realty, Inc. v. Indianapolis Airport Authority (1979), 182 Ind.App. 439, 395 N.E.2d 1259, and have exercised the authority granted by A.R. 4(E) to consider appeals from non-final orders. Huff v. House (1983), Ind.App., 452 N.E.2d 1015 (Conover, J., dissenting); Krueger v. Bailey (1980), Ind.App., 406 N.E.2d 665. We view this as a proper case for the exercise of our discretionary authority under A.R. 4(E).

We also must set forth our standard of review for the granting of a motion to dismiss. Motions to dismiss are not favored in the law. Sacks v. American Fletcher National Bank and Trust Co. (1972), 258 Ind. 189, 195, 279 N.E.2d 807, 812. When a trial court faces such a motion, all the complaint's allegations are taken as true, and all reasonable inferences are drawn in favor of the plaintiff's claim for relief. Pruden v. Trabits (1977), 175 Ind.App. 219, 223, 370 N.E.2d 959, 962; VanBronckhorst v. Taube (1976), 168 Ind.App. 132, 133, 341 N.E.2d 791, 792, trans. denied. On review, we must determine whether the evidence most favorable to the plaintiff sustains the material elements of the plaintiff's complaint. Sanson v. Sanson (1984), Ind.App., 466 N.E.2d 770, 771.

Issue One

The resolution of this case revolves upon the application of Indiana Rules of Procedure, Trial Rules 18(A) and 20(A). Trial Rule 20(A) provides in pertinent part as follows:

"(A) Permissive Joinder.

"(1) All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.

"(2) All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of, or arising out of, the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

"A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. Unwilling plaintiffs who could join under this rule may be joined by a plaintiff as defendants, and the defendant may make any persons who could be joined under this rule parties by alleging their interest therein with a prayer that their rights in the controversy be determined, along with any counterclaim or cross-claim against them, if any, as if they had been originally joined as parties."

The purpose of T.R. 20(A) is to promote trial convenience, expedite claims, and avoid multiple lawsuits. 2 W. Harvey, Indiana Practice 251 (2d ed. 1987); 7 C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure Sec. 1652 (2d ed. 1986) [hereinafter referred to as Wright and Miller]. "Subdivision (a) simply establishes a procedure under which the demands of several parties arising out of the same litigable event may be tried together, thereby avoiding the unnecessary loss of time and money to the court and the parties that the duplicate presentation of evidence relating to facts common to more than one demand for relief would entail."

Wright and Miller, at Sec. 1652. To accomplish these ends, Indiana courts give T.R. 20(A) the broadest possible reading. Alumax Extrusions, Inc. v. Evans Transportation Co. (1984), Ind.App., 461 N.E.2d 1165, 1168. "This is especially true in light of Trial Rules 20(B) and 42(B) which allow for separate trials once all parties and claims have been joined, thereby protecting joined parties from confusion and prejudice." Id. The determination of whether joinder should be granted rests within the trial court's discretion. We will reverse only for an abuse of that discretion. City of Elkhart v. Middleton (1976), 265 Ind. 514, 518, 356 N.E.2d 207, 210; Alumax, at 1168-69.

To join defendants under T.R. 20(A), three requisites must be met. First, a right of relief must be asserted against the defendants jointly,...