Schrage v. Audrey R. Seberger Living Trust

• Court: Indiana Appellate Court
• Writing for the Court: BROWN, Judge.
• Citation: Schrage v. Audrey R. Seberger Living Trust, 52 N.E.3d 54 (Ind. App. 2016)
• Decision Date: 10 March 2016
• Docket Number: No. 45A04–1506–TR–686.,45A04–1506–TR–686.
• Parties: Stephanie A. SCHRAGE, Appellant–Plaintiff, v. The AUDREY R. SEBERGER LIVING TRUST u/t/d April 27, 2009; John R. O'Drobinak as Successor Trustee; Jack R. Seberger, Mary Beth Devillez; Jacob Seberger; Jaclyn Seberger; Amy Devillez; Jack Devillez; Melissa Contrucci; Adam Devillez; and Laura Campbell, Appellees–Defendants.

52 N.E.3d 54

Stephanie A. SCHRAGE, Appellant–Plaintiff

v.The AUDREY R. SEBERGER LIVING TRUST u/t/d April 27, 2009; John R. O'Drobinak as Successor Trustee; Jack R. Seberger, Mary Beth Devillez; Jacob Seberger; Jaclyn Seberger; Amy Devillez; Jack Devillez; Melissa Contrucci; Adam Devillez; and Laura Campbell, Appellees–Defendants.

No. 45A04–1506–TR–686.

Court of Appeals of Indiana.

March 10, 2016.

Greg A. Bouwer, Koransky, Bouwer, and Poracky, P.C., Dyer, IN, Attorney for Appellant.

Benjamin T. Ballou, Preston G. Sisler, Hodges and Davis, P.C., Merrillville, IN, Attorneys for Appellee.

BROWN, Judge.

[1] Stephanie A. Schrage (“Schrage”) appeals from orders dismissing her complaint pursuant to Ind. Trial Rule 12(B)(6) for failure to properly commence the action under Indiana Trial Rules 3 and 4 and for failure to properly docket the Audrey R. Seberger Living Trust u/t/d April 27, 2009 (the “Trust”). Her Complaint named as defendants the Trust, John R. O'Drobinak, as Successor Trustee, Jack R. Seberger, Mary Beth DeVillez, Jacob Seberger, Jaclyn Seberger, Amy DeVillez, Jack DeVillez, Melissa Contrucci, Adam Devillez, and Laura Campbell (collectively with the Trust and Trustee, the “Appellees”). Schrage raises two issues which we consolidate and restate as whether the trial court erred in dismissing her complaint. We reverse and remand.

Facts and Procedural History

[2] The relevant facts are not in dispute. On April 29, 1992, Audrey R. Seberger (“Seberger”), as Settlor and initial Trustee, executed the Trust, which she amended and/or restated as follows: on October 14, 1996 by a Restatement of Trust; on January 27, 1999 by an Amendment to the Restatement of Trust; on August 9, 2000, by a Second Amendment to the Restatement of Trust; on March 11, 2003, by a Third Amendment to the Restatement of Trust; on January 25, 2006, by a Second Restatement of the Trust; on April 27, 2009, by a Third Restatement of the Trust; and on August 19, 2009, by an Amendment to the Trust.¹ O'Drobinak drafted all of the Trust documentation and was named the successor trustee in the Trust (the “Trustee”). Seberger died on July 11, 2014.

[3] On August 26, 2014, Schrage made a request to the Trustee for a complete copy of the Trust, and the Trustee responded by serving her with a Notice to Beneficiary and Trust Certification (the “Notice”), pursuant to Ind.Code § 30–4–4–5, stating that he was under no obligation to provide a complete copy of the Trust to her and providing notice that she had ninety days to contest the validity of the Trust. The Notice was dated August 27, 2014, and contained “an incomplete and redacted copy of the Third Restatement of the Trust.”² Appellant's Appendix at 58.

[4] On November 24, 2014, Schrage filed her Verified Complaint Contesting Validity of the Trust and named each of the Appellees, and the next day she tendered proper summons for each of the Appellees. On January 22, 2015, the Trustee filed a motion to dismiss pursuant to Ind. Trial Rules 12(B)(6) and 12(B)(7), and most of the trust beneficiaries named in the Complaint filed motions to join the Trustee's motion.³ On February 20, 2015, Schrage filed a response in opposition to the motion to dismiss.

[5] On April 23, 2015, the court held a hearing, and on May 26, 2015, it issued two orders. The first order granted the Trustee's motion to dismiss based upon Schrage's failure to properly commence the action pursuant to the Indiana Trial Rules (the “Commencement Order”). The second order granted the Trustee's motion to dismiss for failure to properly docket the Trust (the “Docketing Order”). The Commencement Order stated in part:

12. Ind.Code § 30–4–6–6(a) provides that notice of a complaint must be given “to any person or his personal representative who is named as a party in a petition or complaint, whose rights may be affected or upon whom liability might be imposed by any proceeding.” Further, I.C. § 30–4–6–6(b) provides that “[t]he form of notice required shall be in the form of a summons as provided for in the Indiana Rules of Procedure or in such other form as may be ordered or approved by the court.” “[A] plaintiff must fulfill all the obligations of Ind. Trial Rules 3 and 4 to commence a lawsuit, including an action to contest a will.” Smith v. Estate of Mitchell, 841 N.E.2d 215, 219 (Ind.Ct.App.2006). Ind. Trial Rule 3 provides that:

A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee or filing an order waiving the filing fee, and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.

Accordingly, in order to properly commence an action under T.R. 3, a plaintiff must file with the court a “complaint or such equivalent pleading or document as may be specified by statute.” Thus, because I.C. § 30–4–6–6(a) sets forth the notice provisions for trust contests, it must be complied with in order to properly commence an action under T.R. 3.

* * * * * *

14. There is no dispute that a proper summons was tendered to the named parties in this matter, but Smith also required that the plaintiff comply with the will contest statute in order to properly commence the action to challenge the will. This case, like Smith, involves notice provisions under a similar statute, I.C. § 30–4–6–6(a). In the Complaint, Schrage names [the] Trustee, the Trust, and the following Trust beneficiaries as defendants: Jack R. Seberger, Mary Beth DeVillez, Jacob Seberger, Jaclyn Seberger, Amy DeVillez, Jack DeVillez, Melissa Contrucci, Adam DeVillez, and Laura Campbell. However, like Smith, the Complaint fails to name, or even specify, the party or parties upon whom liability might be imposed, as is required by I.C. § 30–4–6–6(a). When read in its entirety and considered in the context of the action alleged by Schrage, I.C. § 30–4–6–6(a) requires Schrage to not only name parties whose rights may be affected (i.e. the Trust beneficiaries), but also to name parties upon whom liability may be imposed. Moreover, as in Smith, the Clerk of the Court did not serve a copy of Schrage's Complaint and summons on any such individuals prior to the expiration of the 90–day period pursuant to I.C. § 30–4–6–14. These defects are fatal to Schrage's Complaint under Smith as Schrage's Complaint failed to properly commence the action under T.R. 3 and T.R. 4, and the ninety (90) day period for contesting the validity of the trust in I.C. § 30–4–6–14 has since expired.

15. Schrage argues that the time limitation in which to challenge the Trust has not begun because [the Trustee] has refused to produce a complete and unredacted copy of the Trust. The timing and requirements for contesting the validity of a trust are as follows:

(a) A person must commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of the following:

(1) Ninety (90) days after the person receives from the trustee a copy of the trust certification and a notice informing the person of:

(A) the trust's existence;

(B) the trustee's name and address; and

(C) the time allowed for commencing the proceeding.

(2) Three (3) years after the settlor's death.

I.C. § 30–4–6–14(a). Ind.Code § 30–4–6–14(a) is clear and unambiguous and does not require that a complete and unredacted copy of the trust be provided. It merely requires that a trust certification and notice be provided in order to trigger commencement of the 90–day period. In her Response in Opposition to Motion to Dismiss, Schrage admitted receiving the trust certification and notice pursuant to I.C. § 30–4–4–5. Therefore, Schrage's citation to In re Waterfield, 960 N.E.2d 800 (Ind.Ct.App.2011) and argument that the statute of limitations should be tolled because she exercised due diligence in attempting to obtain a complete and unredacted copy of the Trust is irrelevant. Schrage argues that somehow a copy of the complete and unredacted Trust will disclose that a tort was committed. However, it is unclear how the Trust itself would disclose that a tort was committed.

16. Ind.Code § 30–4–6–14(a) is substantially similar to the will contest statute, I.C. § 29–1–7–17. The right to contest a will is a statutory right and if the right is not exercised within the prescribed time period, it is lost. In re Estate of Brown, 587 N.E.2d 686, 691 (Ind.Ct.App.1992) (stating that the time limit in the will contest statute “is a statute of repose extinguishing the right, rather than a statute of limitation affecting the remedy.”). Considering the similarities with I.C. § 29–1–7–17, I.C. § 30–4–6–14(a) is looked at as a statute of repose and if the rights under the same are not exercised within the prescribed time period, they are lost. Here, because Schrage failed to properly commence this action, her rights under I.C. § 30–4–6–14(a) are now extinguished.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court as follows:

1. [The Trustee's] Ind. Trial Rule 12(B)(6) Motion to Dismiss for failure to properly commence this action under T.R. 3 and T.R. 4 is hereby GRANTED.

2. Schrage's Complaint is hereby dismissed, with prejudice.^[4]

Appellant's Appendix at 16–20.

[6] The Docketing Order provided in part:

12. Under Indiana law, the jurisdiction for all matters arising under the Trust Code (I.C. § 30–4–6) is in the court exercising probate jurisdiction. I.C. § 30–4–6–1. However, the probate court only has continuing jurisdiction of a trust if the settlor expressly provides for such jurisdiction in the terms of the trust itself. I.C. § 30–4–6–2. Based on these statutes, and unless otherwise provided by the settlor in the trust terms, a court has no jurisdiction over a trust.

13. Jurisdiction is comprised of three elements: (1) jurisdiction of the subject matter; (2) jurisdiction of the person; and (3) jurisdiction of the particular case. Browning v. Walters, 620 N.E.2d

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