Stainbrook v. Low

Decision Date13 February 2006
Docket NumberNo. 40A05-0505-CV-257.,40A05-0505-CV-257.
Citation842 N.E.2d 386
PartiesDavid STAINBROOK, As Personal Representative of the Estate of Howard W. Stainbrook, Deceased, Appellant-Defendant, v. Trent LOW, Appellee-Plaintiff.
CourtIndiana Appellate Court

Michael L. Rogers, Rogers & Belding, North Vernon, for Appellant.

Christopher M. Tebbe, Hamilton & Tebbe Law Office, P.C., Greensburg, for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

David Stainbrook, as personal representative of the Estate of Howard W. Stainbrook, appeals the trial court's grant of specific performance of a real estate agreement to Trent Low. We find (1) that the trial court properly denied the Estate's motion to dismiss for lack of verification because the Estate failed to bring their motion until the start of trial, and the claimant was available and prepared to testify at that time, and (2) that specific performance was an appropriate remedy in this case. Therefore, we affirm.

Facts and Procedural History

The dispute before us arises from an Offer to Purchase Real Estate ("the Agreement") entered into by Trent Low and the deceased, Howard Stainbrook, on or about April 7, 2004. See Appellee's App. p. 1. The Agreement provides for the sale to Low of approximately forty acres of land in Jennings County owned by Stainbrook with a purchase price of $45,000.00. Id. Of the forty acres, approximately thirty-two acres are wooded and eight acres tillable.

Under the Agreement, Low was to pay the taxes on the property beginning with the installment due and payable in November 2004. Id. After receiving the Agreement as signed by Low but before signing the Agreement himself, Stainbrook consulted with a local attorney and added handwritten terms providing that Low would pay for a survey of the property and for all closing costs. See id.; Appellee's Br. p. 3; Tr. p. 44-45. Both parties initialed these changes,1 Appellee's App. p. 1, and Low tendered a check dated April 3, 2004, to Mr. Stainbrook for the sum of $1000.00 as earnest money. A closing was scheduled for May 11, 2004, and Low made financial arrangements to allow him to meet his obligations under the Agreement. On May 8, 2004, Mr. Stainbrook died tragically and unexpectedly when a tractor rolled over on him.

Following Stainbrook's death, Low still wished to close on the real estate transaction. David Stainbrook ("the Executor"), Howard Stainbrook's son and the executor of his Estate, contacted Low and requested that Low withdraw his offer to purchase the property. Low declined and on September 9, 2004, filed a timely Claim Against Estate ("the Petition") with the probate court requesting enforcement of the Agreement on the terms agreed to by him and Stainbrook. Appellant's App. p. 14. The Petition contained no form of verification on its face. Id. The Executor disallowed this claim on September 16, 2004. The parties eventually submitted their dispute to mediation but were unable to reach an agreement.

A trial was held on March 9, 2005. At the start of the proceedings, the Estate moved to dismiss Low's Petition, arguing that it had not been properly verified as required by statute and so must fail. Tr. p. 3; see Ind.Code § 29-1-1-9 (covering verification of petitions to a probate court). Low responded by arguing that petitions should only be dismissed for failure to verify where the petitioner fails to show up for trial. Tr. p. 4. Low indicated that he would verify the contents of the Petition via his in-court testimony, and so, he argued, the policy objectives of the statute would be met. Id. Following a recess and a review of both statutory and case law, the trial judge denied the Estate's Motion to Dismiss. Id. at 5-6; see also Order on Oral Motion to Dismiss, Appellant's App. p. 22.

The parties then stipulated into evidence the Agreement and the fact that Stainbrook was a competent adult when he signed the Agreement. Tr. p. 6-7. The parties presented evidence on the value of Stainbrook's land and of the timber rights therein, Tr. p. 19-21, 29-31; Def.'s Exs. A-C, and the Estate argued that the Agreement was ambiguous because it failed to account for the value of the timber rights, estimated at approximately $54,000.00. Tr. p. 30; see also Def.'s Ex. C. Therefore, according to the Estate, the Agreement was unfair and it would constitute unjust enrichment for Low to be allowed to purchase the property for the $45,000.00 price agreed to in the Agreement. Tr. p. 39. In addition, the Estate argued that the discrepancy in the value of the property without timber rights and the value of the property with timber rights constituted a mutual mistake of fact between Stainbrook and Low that nullified the Agreement. Tr. p. 20-21, 38. Finally, the Estate argued that Low's request for specific performance was inappropriate because Low had failed to fully perform under the Agreement, noting that he had not paid the November 2004 tax payment as provided. Tr. p. 18-19, 39. In his defense, Low testified that he attempted to pay the November 2004 installment but found that the Estate had already done so, and the Estate ignored his offer to reimburse it for that payment. Tr. p. 15, 18-19.

The trial court issued its judgment on March 18, 2005, finding for Low and ordering specific performance of the Agreement. The Estate filed a Motion to Correct Errors on March 29, 2005, arguing in pertinent part that the trial court erred in denying the Estate's Motion to Dismiss and finding that Low's Petition should not fail for lack of verification, in failing to find that the Agreement was void, and in ordering specific performance of a contract the Estate characterized as ambiguous and inequitable. The trial court denied the Estate's Motion to Correct Errors, and this appeal ensued.

Discussion and Decision

The Estate raises three issues on appeal, which we consolidate and restate as follows: first, whether the trial court erred in denying the Estate's Motion to Dismiss because Low's Petition was not verified, and second, whether the trial court abused its discretion by granting Low's requested remedy of specific performance. We address each issue in turn.

I. Verification

The form of a claim against an estate is a matter within the discretion of the trial court, and we will not reverse its judgment on appeal unless it is shown that the trial court so abused its discretion as to prevent the case from being fairly tried upon the merits. White v. Crow, 245 Ind. 276, 198 N.E.2d 222, 225 (1964). Indiana Code § 29-1-14-21 states:

When any person claims any interest in any property in the possession of the personal representative adverse to the estate, the person may file, prior to the expiration of three (3) months after the date of the first published notice to creditors, a petition with the court having jurisdiction of the estate setting out the facts concerning such interest, and thereupon the court shall cause such notice to be given to such parties as it deems proper, and the case shall be set for trial and tried as in ordinary civil actions.

Pursuant to this statute,2 Low filed his Petition seeking specific performance of the Agreement in this case. As the Estate points out, Indiana Code § 29-1-1-9 provides:

Every application to the court, unless otherwise provided, shall be by petition signed and verified by or on behalf of the petitioner. No defect of form or substance in any petition, nor the absence of a petition, shall invalidate any proceedings. Interests to be affected shall be described in pleadings that give reasonable information to owners by name or class, by reference to the instrument creating the interests, or in another appropriate manner.

(Emphasis added). It is undisputed that Low failed to include any form of verification with his Petition upon filing with the trial court and that Low never attempted to amend the Petition to include verification. Arguing that verification is mandated by § 9, the Estate contends, then, that the Petition is invalid and the Estate's Motion to Dismiss should have been granted.

The Estate recognizes that "Indiana courts have, however, resorted to other conventions to avoid the harshness of a dismissal for lack of verification." Appellant's Br. p. 8. The Estate cites In re Estate of Gerth, 152 Ind.App. 273, 283 N.E.2d 578 (1972), and Lincoln National Bank v. Mundinger, 528 N.E.2d 829 (Ind. Ct.App.1988), both of which held that a claimant should be allowed to amend his complaint to add verification in order to avoid the dismissal of his claim. However, the Estate argues that "[i]n the case at bar, the claimant had ample opportunity to amend his petition before trial and post trial." Id. at 9. Under the facts before us, however, we do not believe that Low's "failure to act" by amending his Petition prevented adequate verification of the claim.

To be certain, an Estate has a right to request the written verification of an unverified petition if it makes a proper, timely motion for such an amendment. See Ind.Code § 29-1-1-9 cmt. 109 (clarifying portions of the comment, discussed infra, and stating that it "does not prevent an opposing litigant from insisting upon the filing of an amended petition, nor does it dispense with proof of the necessary facts."). Discussing the verification requirement for wills, which we regard as analogous to the verification requirement for petitions, our Supreme Court remarked in Prebster v. Henderson, 186 Ind. 21, 113 N.E. 241, 241-43 (1916), petition for reh'g overruled, as to the timeliness of an opponent's objection to a lack of verification that:

It has been held by this court that the verification of the objections to the probate of a will is not jurisdictional. * * * the failure to verify was first raised by a motion in arrest of judgment and it was held that the objection came too late. The court said: `Had an objection been made at the proper time, and in the proper manner, it would...

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