                                                                              Jul 08 2015, 8:42 am




      ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEES
      Morris A. Sunkel                                            Elizabeth A. Flynn
      Harris Welsh & Lukmann                                      Michigan City, Indiana
      Chesterton, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Matter of the                                   July 8, 2015
      Supervised Administration of the                           Court of Appeals Case No.
      Estate of Wayne Lewis Stayback,                            46A03-1410-ES-378
      Deceased,
                                                                 Appeal from the LaPorte Superior
                                                                 Court
      Joseph Stayback,
      Appellant-Respondent,                                      The Honorable Kathleen B. Lang,
                                                                 Judge
              v.
                                                                 Cause No. 46D01-1110-ES-35

      Jeffrey Stayback and Julie
      Warnke,
      Appellees-Petitioners.




      Najam, Judge.


                                         Statement of the Case
[1]   Wayne Lewis Stayback, deceased, was the father of three children: Joseph

      Stayback, Jeffrey Stayback, and Julie Warnke. In 2010, Wayne created the

      Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015                          Page 1 of 23
      Wayne Lewis Stayback Irrevocable Living Trust (“the Trust”), the corpus of

      which consisted of approximately seventy-five acres of real property in LaPorte

      County (“the property”) and some personal property. After Wayne died in

      2011, Jeffrey and Julie filed a joint petition to remove Joseph as trustee of the

      Trust. Joseph filed a motion to dismiss that petition, and he requested fees and

      expenses. Jeffrey and Julie subsequently filed a motion to dissolve and

      terminate the Trust. Following a hearing on all pending motions, the trial court

      denied Joseph’s motion to dismiss and motion for fees and expenses, and the

      court denied Jeffrey and Julie’s motion to dissolve and terminate the Trust.

      Joseph appeals and presents two issues for our review:

              1.       Whether the trial court erred when it concluded that the
                       Trust shall distribute to Joseph, Jeffrey, and Julie income
                       generated by billboards located on the property.

              2.       Whether the trial court abused its discretion when it
                       denied Joseph’s motion for fees and expenses.


[2]   Jeffrey and Julie cross-appeal and present two issues for our review, which we

      consolidate and restate as whether the trial court erred when it denied their

      petition to dissolve and terminate the Trust.


[3]   We affirm in part and reverse in part.


                                   Facts and Procedural History
[4]   In approximately 1990, Wayne and Joseph started a business together operating

      a paintball course on the seventy-five acre property Wayne owned in LaPorte


      Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015          Page 2 of 23
      County. The business was very successful and, over the years, Wayne and

      Joseph expanded the operation from three playing fields to eleven playing

      fields. At some point, Joseph took over sole ownership of the paintball

      business, which became known as Sherwood Forest Adventure Games. But

      Wayne continued his daily involvement in running the business. Wayne also

      leased a portion of the property to Burkhart Advertising Corporation

      (“Burkhart”), which erected billboards on the leased property. 1


[5]   On May 3, 2010, Wayne executed the Trust, which provided in relevant part as

      follows:

              ARTICLE 3

              DISTRIBUTION OF INCOME AND PRINCIPAL

              3.01 Use of Trust Income During the Lifetime of Wayne Lewis
              Stayback

              During the lifetime of Wayne Lewis Stayback of LaPorte
              County, Indiana, the Trustee, [Joseph,] in his . . . sole discretion,
              as defined hereafter, may use any portion or all of the income
              and/or principal of the Trust for the use or benefit of any purpose
              the Trustee deems necessary or advisable. Under no
              circumstances may Trustee use any of the assets of Trustee to
              benefit Grantor, Wayne Lewis Stayback.

              3.02 Use of Trust Real Estate:




      1
       Wayne had entered into four contracts with Burkhart to lease four spaces on the property. Appellant’s
      App. at 51.

      Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015                          Page 3 of 23
              During the lifetime of Joseph Stayback, so long as he wishes, he
              shall have the right to operate his business known as Sherwood
              Forest Adventure Games, or other business name as Joe
              Stayback desires, on any trust[-]owned real estate and to retain
              all profits and/or losses of said businesses so as [sic] long as he
              desires. The Trust shall be responsible to pay yearly taxes
              regarding said property.

              3.03 Distribution of Undistributed Income and/or Principal after the
              Death of Wayne Lewis Stayback

              Upon the death of Wayne Lewis Stayback, the TRUSTEE shall
              divide the property of the Trust (including the proceeds of any
              insurance policy payable on the death of Wayne Lewis
              Stayback), into as many equally [sic] shares as shall be required
              to provide and make distribution as follows:

              1. Joseph Stayback, for as long as he desires, shall be able [to]
              operate his business on any real estate owned by the Trust and
              retain all income and losses therefrom.

              2. The rest, residue and remainder of my Trust, including real
              estate subject to paragraph 1 herein above shall be divided
              equally among Joseph Stayback, Jeffrey Stayback and Julie
              Warnke, who survive me.


      Joint Ex. 1.


[6]   By 2011, Joseph had incurred “substantial obligations for sales tax to the

      Indiana Department of Revenue” related to the paintball business. Appellant’s

      Br. at 5. Accordingly, Wayne started a new business known as Sherwood

      Rentals, and Wayne “ran the paintball business through [that company] prior to

      his death[.]” Tr. at 63. In turn, Joseph “formed another entity [called


      Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015          Page 4 of 23
      Sherwood Paintball Maintenance] to continue doing exactly the same thing as

      [he] had done[ prior to Wayne’s death in September 2011.]” Id. After Wayne’s

      death in September 2011, Joseph’s fiancée, Kathy Love, created a business

      called Sherwood Paintball, Inc. Kathy took over responsibility for running the

      same aspects of the paintball business that Wayne had run during his lifetime,

      such as admissions and concessions. Joseph continued his work building and

      maintaining the courses.


[7]   Wayne’s will included a pour-over provision, whereby any undistributed assets

      of his estate were to be placed in the Trust for distribution. One such asset

      included the lease agreements with Burkhart. After Wayne’s death, Joseph

      “requested that the lease payments from Burkhart [for the billboards] be made

      to him as Trustee of the [Trust].” Appellant’s App. at 55. Joseph used some of

      that income, which totaled approximately $12,000 annually, to pay the real

      estate taxes on the property.


[8]   On October 12, 2011, Joseph was appointed Personal Representative of the

      Supervised Estate of Wayne Lewis Stayback. On May 4, 2012, Jeffrey, as

      “remainderman beneficiary,” filed a Verified Petition for Accounting, Report,

      and Docketing of the Trust. Id. at 20. On August 7, Jeffrey filed a Verified

      Petition for Estoppel of Burkhart Advertising Corporation’s Payments to

      Joseph Stayback. And on September 26, Jeffrey and Julie filed a Joint Verified

      Petition to Remove Joseph Stayback as Trustee and Personal Representative.

      On November 7, Joseph filed a motion to dismiss Jeffrey and Julie’s petition to



      Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015    Page 5 of 23
      remove him as trustee. On November 30, Jeffrey and Julie filed a Motion to

      Dissolve and Terminate Trust.


[9]   Following a hearing on all pending motions on July 21, 2014, the trial court

      entered the following order:


              1. This case involves the interpretation of the language in the
              Irrevocable Living Trust executed by Wayne Lewis Stayback on
              May 3, 2010.

              2. There are three heirs, [Joseph, Jeffrey, and Julie]. Joseph was
              appointed Personal Representative and Trustee.

              3. Section 3.02 Use of Trust Real Estate states that during the
              lifetime of Joseph Stayback, so long as he wishes, he shall have
              the right to operate his business known as Sherwood Forest
              Adventure Games, or other business name as Joseph Stayback
              desires, on any trust-owned real estate, and to retain all profits
              and/or losses of said business so long as he desires. The Trust
              shall be responsible to pay yearly taxes regarding said property.
              This section clearly expresses the trustor’s intention that Joseph Stayback
              operate a paintball business on the property for as long as he desires.

              4. Section 3.03 Distribution of Undistributed Income and/or Principal
              after the Death of Wayne Lewis Stayback—This section is the center
              of the conflict between the parties. Upon the death of Wayne
              Lewis Stayback, the Trustee shall divide the property of the Trust
              (including the proceeds of any insurance policy payable on the
              death of Wayne Lewis Stayback), into as many equally [sic]
              shares as shall be required to provide and make distribution as
              follows:

                       A. Joseph Stayback, for as long as he desires, shall
                       be able [to] operate his business on any real estate


      Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015             Page 6 of 23
                 owned by the Trust and retain all income and losses
                 therefrom.

                 B. The rest, residue and remainder of my Trust,
                 including real estate subject to paragraph 1 herein
                 above shall be divided equally among Joseph
                 Stayback, Jeffrey Stayback and Julie Warnke, who
                 survive me.

        4. [sic] The language in sections 3.02 and 3.03 is confusing and
        somewhat contradictory. Just as it is clear in section 3.02 that
        the Trustor intended Joseph to have the ability to run the
        paintball business for as long as he desired, section 3.03 (1)
        clearly states that Joseph has the right to operate his business on
        any real estate owned by the trust. Section 3.03 (2) indicates that
        the rest, residue and remainder of the trust, including real estate
        subject to 3.03 (1) be divided equally between Joseph, Jeffrey,
        and Julie. The intention of the Trustor in both section 3.02 and 3.03 is
        to allow Joseph to use the real property now within the Trust for the
        paintball business. Although there is some question about the
        structure of the current business organization, the evidence
        supports that there is an ongoing paintball business on the
        property. The real property will continue to be held in the Trust
        until Joseph no longer operates a paintball business. Joseph will
        be considered operating a paintball business as long as he is a
        named owner of a corporate entity involved with the operation of
        a paintball business on the property.

        5. [sic] Income is generated from . . . lease[s] with Burkhart
        Signs. These contracts are not within the Trust. Any income as a
        result of this contractual relationship should be distributed
        equally between Joseph, Jeffrey, and Julie.

        The Court orders as follows:




Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015          Page 7 of 23
               1. Motion to Dismiss proceedings filed by Joseph Stayback as
               Trustee and Personal Representative of the Estate of Wayne
               Lewis Stayback.

               Motion to Dismiss is denied.

               2. Motion for Fees and Expenses filed by Joseph Stayback as
               Trustee and Personal Representative of the Estate of Wayne
               Lewis Stayback.

               Motion for Fees and Expenses is denied.

               3. Motion to Dismiss and Motion to Dissolve and Terminate
               Trust filed by Jeffrey Stayback and Julie Warnke.

               Motion to Dissolve and Terminate Trust is denied.


       Id. at 7-8 (some emphases added). This appeal and cross-appeal ensued.


                                       Discussion and Decision
                                Issue One: Income from Billboard Leases

[10]   Joseph first contends that the trial court erred when it concluded that the

       billboard contract is not part of the Trust and ordered that the income from that

       contract be distributed equally among Joseph, Jeffrey, and Julie. The trial court

       entered findings of fact and conclusions thereon sua sponte. Our standard of

       review under this circumstance is well settled: specific findings control only as

       to issues they cover, and a general judgment standard applies to any issues upon

       which the trial court has not made findings. Jewell v. City of Indianapolis, 950

       N.E.2d 773 (Ind. Ct. App. 2011). We review such findings by determining

       whether the evidence supports the findings and whether the findings support the

       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015     Page 8 of 23
       judgment. Id. We will reverse only when the judgment is shown to be clearly

       erroneous, i.e., when it is unsupported by the findings of fact and conclusions

       entered thereon, or when the trial court applies an incorrect legal standard. Id.;

       Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005). We defer substantially to the

       trial court’s findings of fact, but we evaluate conclusions of law de novo. Jewell,

       950 N.E.2d at 777.


[11]   The interpretation of a will or trust is a question of law for the court. Univ. of S.

       Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind. 2006). We apply the same rules

       of construction of a contract to determine whether the language in a trust is

       ambiguous. The primary purpose of the court in construing a trust instrument

       is to ascertain and give effect to the settlor’s intention. Id. Indiana follows the

       four corners rule that extrinsic evidence is not admissible to add to, vary, or

       explain the terms of a written instrument if the terms of the instrument are clear

       and unambiguous. Id. Accordingly, where a trust is clear and unambiguous,

       the court must give effect to the trust’s clear meaning without resort to extrinsic

       evidence. Id.


[12]   If, on the other hand, the language is ambiguous, then we must determine its

       meaning by extrinsic evidence. Roy A. Miller & Sons, Inc. v. Indus. Hardwoods

       Corp., 775 N.E.2d 1168, 1173 (Ind. Ct. App. 2002). An ambiguity exists only

       where reasonable people could come to different conclusions about the

       contract’s meaning. Id. A contract term is not ambiguous merely because the

       parties disagree about the term’s meaning. Id. When the construction of a



       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015       Page 9 of 23
       contract is based upon extrinsic evidence, the construction is a matter for the

       factfinder. Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1133 (Ind. 1995).


[13]   The parties do not dispute that, because Wayne had executed a pourover will, 2

       the billboard leases became Trust assets upon Wayne’s death. We agree and

       hold that the trial court erred when it concluded that the billboard leases were

       “not within the Trust.” Appellant’s App. at 8. However, the parties dispute

       whether, under the terms of the Trust, that asset should have been distributed to

       Joseph, Jeffrey, and Julie or whether it should have been kept in the Trust for

       Joseph’s benefit. Because the trial court erred when it concluded that the leases

       were not a part of the Trust, we review this issue de novo.


[14]   It is well settled that the use of the term “life estate” is not necessary to create a

       life estate where, as here, the intention of the grantor to create a life estate is

       expressed by equivalent and appropriate language. Long v. Horton, 126 Ind.

       App. 651, 133 N.E.2d 568, 572 (1956). Section 3.02 of the Trust provides that,

       “[d]uring the lifetime of Joseph Stayback, so long as he wishes, he shall have

       the right to operate his business known as Sherwood Forest Adventure Games,

       or other business name as Joe Stayback desires,” on Trust-owned property.

       Joint Ex. 1. And Section 3.03 of the Trust provides that, upon Wayne’s death,

       Joseph shall divide the property of the Trust as follows: first, “for as long as he

       desires,” Joseph is able to operate his business on real estate owned by the Trust



       2
         A pourover will is a “will giving money or property to an existing trust.” Black’s Law Dictionary 1834
       (10th ed. 2014).

       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015                          Page 10 of 23
       “and retain all income and losses therefrom”; second, the rest, residue, and

       remainder of the Trust, including the real estate subject to the first paragraph,

       shall be divided equally among Joseph, Jeffrey, and Julie. Id. We hold that

       Section 3.02 and the first numbered paragraph of Section 3.03 conveyed a life

       estate in the property to Joseph, subject to the condition that he continue to

       operate a paintball business there. See, e.g., Gladden v. Jolly, 655 N.E.2d 590,

       592 (Ind. Ct. App. 1995) (holding will provision granting Gladden right to live

       in decedent’s house during Gladden’s life subject to conditions created life

       estate in the residence).


[15]   As we explain below, we agree with the trial court that Joseph is operating a

       paintball business on the property. Accordingly, Joseph is fulfilling the

       condition required to maintain a life estate in the property, subject to his

       continued operation of a paintball business. A life estate entitles the holder to

       the possession of real property. See, e.g., Krieg v. Hieber, 802 N.E.2d 938, 946

       (Ind. Ct. App. 2004). And the right to the rents and profits of the real estate

       follows the right to possession. Lockridge v. Citizens Trust Co. of Greencastle, 110

       Ind. App. 253, 37 N.E.2d 728, 731 (1941). We hold that Joseph is entitled to

       the income generated by the billboard leases for the duration of his life estate.

       Thus, the trial court erred when it ordered that the income from the billboard

       leases be distributed equally among Joseph, Jeffrey, and Julie.


                                Issue Two: Motion for Fees and Expenses

[16]   Joseph contends that the trial court abused its discretion when it denied his

       motion for fees and expenses. Joseph maintains that he had never filed any
       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015      Page 11 of 23
       such motion “as either personal representative nor as trustee.” Appellant’s Br.

       at 12. Accordingly, Joseph asserts that the trial court’s order denying such fees

       was entered sua sponte, which, he alleges, is improper. Joseph states that “the

       trial court did not hold an evidentiary hearing or hear any evidence regarding

       Joseph’s personal representative or trustee fees because no Motion or request

       for those fees was made to the trial court.” Id. at 13.


[17]   But Jeffrey and Julie point out that, in his November 7, 2012, motion to

       dismiss, Joseph requested fees and expenses in his prayer for relief. And

       Joseph’s motion to dismiss, including the request for fees and expenses, was at

       issue during the July 21, 2014, hearing. Indeed, in his opening statement,

       Joseph’s counsel requested that his fees “be paid by [Jeffrey and Julie].” Tr. at

       10. Moreover, Joseph testified that he had “paid to this date in legal fees,

       because of the suit” approximately $30,000. Id. at 65. Thus, Joseph’s

       contentions that he neither requested fees nor presented evidence of his fees are

       without merit.


[18]   The award or denial of attorney’s fees is “in the exercise of a sound discretion,

       and in the absence of an affirmative showing of error or abuse of discretion we

       must affirm [the trial court’s] order.” Malachowski v. Bank One, Indpls., N.A., 682

       N.E.2d 530, 533 (Ind. 1997) (quoting Zaring v. Zaring, 219 Ind. 514, 39 N.E.2d

       734, 737 (1942)). Joseph has not demonstrated that the trial court abused its

       discretion when it denied his request for fees and expenses.




       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015    Page 12 of 23
                                                    Cross-Appeal

[19]   In their cross-appeal, Jeffrey and Julie contend that the trial court erred when it

       denied their joint petition to dissolve and terminate the Trust. In particular,

       Jeffrey and Julie maintain that Joseph is not operating the same paintball

       business on the property that he was at the time Wayne executed the Trust.

       Thus, they assert that the terms of the Trust require Joseph to dissolve the Trust

       and distribute the property in equal shares to Joseph, Jeffrey, and Julie. In the

       alternative, Jeffrey and Julie assert that, even assuming Joseph is operating a

       paintball business consistent with the Trust provisions, the trial court

       nonetheless should have dissolved and terminated the Trust and distributed the

       interests in the property equally to Joseph, Jeffrey, and Julie while permitting

       Joseph to continue to operate the paintball business on the property. We

       address each contention in turn.


                                                Paintball Business

[20]   Again, the relevant trust provisions at issue here are the following:


               3.02 Use of Trust Real Estate:

               During the lifetime of Joseph Stayback, so long as he wishes, he
               shall have the right to operate his business known as Sherwood Forest
               Adventure Games, or other business name as Joe Stayback desires, on
               any trust[-]owned real estate and to retain all profits and/or
               losses of said businesses so as [sic] long as he desires. The Trust
               shall be responsible to pay yearly taxes regarding said property.

               3.03 Distribution of Undistributed Income and/or Principal after the
               Death of Wayne Lewis Stayback

       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015          Page 13 of 23
               Upon the death of Wayne Lewis Stayback, the TRUSTEE shall
               divide the property of the Trust (including the proceeds of any
               insurance policy payable on the death of Wayne Lewis
               Stayback), into as many equally [sic] shares as shall be required
               to provide and make distribution as follows:

               1. Joseph Stayback, for as long as he desires, shall be able [to]
               operate his business on any real estate owned by the Trust and
               retain all income and losses therefrom.

               2. The rest, residue and remainder of my Trust, including real
               estate subject to paragraph 1 herein above shall be divided
               equally among Joseph Stayback, Jeffrey Stayback and Julie
               Warnke, who survive me.


       Joint Ex. 1 (some emphasis added).


[21]   And the trial court found and concluded in relevant part as follows:


               [5.] The language in sections 3.02 and 3.03 is confusing and
               somewhat contradictory. Just as it is clear in section 3.02 that
               the Trustor intended Joseph to have the ability to run the
               paintball business for as long as he desired, section 3.03 (1)
               clearly states that Joseph has the right to operate his business on
               any real estate owned by the trust. Section 3.03 (2) indicates that
               the rest, residue and remainder of the trust, including real estate
               subject to 3.03 (1) be divided equally between Joseph, Jeffrey,
               and Julie. The intention of the Trustor in both section 3.02 and
               3.03 is to allow Joseph to use the real property now within the
               Trust for the paintball business. Although there is some question
               about the structure of the current business organization, the evidence
               supports that there is an ongoing paintball business on the property. The
               real property will continue to be held in the Trust until Joseph no longer
               operates a paintball business. Joseph will be considered operating a
               paintball business as long as he is a named owner of a corporate entity

       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015           Page 14 of 23
               involved with the operation of a paintball business on the property.


       Appellant’s App. at 8 (emphasis added).


[22]   Jeffrey and Julie

               do not contest that there was evidence that a separate corporation
               was conducting a paintball business on the real estate. However,
               the evidence does not support that Joseph was the one operating a
               paintball business. At most, Joseph was operating a maintenance
               company and Sherwood Paintball, Inc. was operating a paintball
               business. Jeffrey and Julie submit that the trial court erred when
               it failed to find that[,] once Joseph divested himself of ownership
               of the operation of the paintball business, the terms of Wayne’s
               Trust no longer existed, and the Trust should have been
               terminated. The Trust’s termination should have resulted in the
               property being divided equally amongst the three siblings.


       Appellees’ Br. at 17-18 (emphasis original).


[23]   Jeffrey and Julie are correct that, at the time the Trust was created, Joseph

       owned a business known as Sherwood Forest Adventure Games, a business

       entity that no longer exists. Again, Section 3.02 grants Joseph the right to

       operate “his business known as Sherwood Forest Adventure Games, or other

       business name as Joe Stayback desires, . . . [for] as long as he desires.” Joint

       Ex. 1. The first question presented on cross-appeal is whether that provision is

       ambiguous or unambiguous. If it is ambiguous, we must consider the extrinsic

       evidence to determine Wayne’s intent. Roy A. Miller & Sons, Inc., 775 N.E.2d at

       1173.



       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015          Page 15 of 23
[24]   In Baker, our supreme court held that the term “personal property,” while

       unambiguous by technical definition, was nonetheless ambiguous “in the

       context of th[e] trust instrument” the court was charged with interpreting on

       appeal. 843 N.E.2d at 534. And the court considered whether the ambiguity

       was patent or latent.3 The court cited with approval Dougherty v. Rogers, 119

       Ind. 254, 20 N.E. 779, 781 (1889), where the court stated as follows:

                “An ambiguity which arises not upon the words of the will, deed,
                or other instrument, as looked at in themselves, but upon those
                words when applied to the object or to the subject which they
                describe,” is a latent ambiguity. 1 Amer. & Eng. Cyclop. 530,
                and note. Whenever, therefore, in applying a will to the objects
                or subjects therein referred to, extrinsic facts appear which
                produce or develop a latent ambiguity not apparent upon the face
                of the will itself, since the ambiguity is disclosed by the
                introduction of extrinsic facts, the court may inquire into any
                other material extrinsic fact or circumstance to which the will
                certainly refers, as well as to the relation occupied by the testator
                to those facts, to the end that a correct interpretation of the
                language actually employed by the testator in his will may be
                arrived at.


       Thus, here, in interpreting the challenged Trust provision, we must apply the

       words, “business known as Sherwood Forest Adventure Games, or other

       business name as Joe Stayback desires,” to the subject being described, namely,

       the paintball business operating on the property at the time Wayne executed the




       3
         The court ultimately held that “the distinction between patent and latent ambiguities is not useful, and it is
       proper to admit extrinsic evidence to resolve any ambiguity.” Baker, 843 N.E.2d at 535.

       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015                              Page 16 of 23
       Trust, to determine whether that term of the provision is currently satisfied.

       Joint Ex. 1; Dougherty, 20 N.E. at 781.


[25]   Our review of the evidence presented on this question reveals a latent ambiguity

       in the Trust provision. That is, the evidence shows that, while the business

       entity known as Sherwood Forest Adventure Games no longer exists, the

       business currently known as Sherwood Paintball, Inc. is, by all appearances, the

       same business that was formerly known as Sherwood Forest Adventure Games,

       and Joseph is, for all intents and purposes, running that business. While it is

       undisputed that Joseph does not own the business entity known as Sherwood

       Paintball, Inc., Joseph’s role in running the daily operation of the business has

       not changed since Wayne executed the Trust, and Joseph owns a business

       entity responsible for maintenance of the paintball fields and equipment. The

       undisputed evidence shows that Joseph runs the same aspects of the business

       now that he did at the time that the Trust was created.


[26]   By all accounts, the paintball operation on the property has not changed. The

       only thing that has changed is that the paintball operation is run by two

       business entities instead of one. Love owns the business entity known as

       Sherwood Paintball, Inc., and Joseph owns a business entity responsible for

       maintaining the paintball fields and equipment. In other words, what once was

       a single business entity running the paintball operation is now two business

       entities, one of which is owned by Joseph, but both of which are subject to

       Joseph’s ultimate control. Joseph testified that if Love did not “listen to [his]

       suggestions,” his “agreement” with Love could be terminated. Tr. at 82. Love

       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015    Page 17 of 23
       is, thus, not an independent owner but is allowed to operate the business under

       Joseph’s delegated authority. The evidence is clear that Love would not be

       operating the business on the property without Joseph’s consent and

       supervision.


[27]   We hold that the Trust is ambiguous as to whether the business entity that was

       known as Sherwood Forest Adventure Games must continue to exist under that

       or another name in order to keep the property in trust for Joseph’s use, or

       whether it is sufficient that Joseph is running a paintball business owned by a

       separate business entity, but maintained by him and his new business entity.

       And we resolve this ambiguity by considering the extrinsic evidence presented

       at the hearing. Herrbach testified that Wayne “never really talked in terms of

       how the business was broke [sic] down. He just said, Joe, he wanted to make

       sure he operated—was able to operate that paintball business.” Tr. at 31. And

       Herrbach testified generally regarding Wayne’s love of the paintball business

       and his desire that it continue after his death:

               A: [Wayne] wanted Joe to be able to continue to run the
               paintball business on his property. . . . [Wayne] was really
               involved in the paintball business. He was there every day. He
               enjoyed talking to the people, enjoyed talking to the paintballers,
               so I think he—it was his feeling that he wanted that to continue
               even if he was gone without interference from the estate.

                                                         ***

               A: [Under the terms of the Trust,] Joe had a right, as long as he
               wishes, to run the paintball business on the real estate. And then


       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015     Page 18 of 23
               the remainder, the rest, residue and remainder was [to be]
               distributed between the three children.

                                                         ***

               A: We talked in terms of making sure that the real estate was
               available for Joe to continue to run his paintball business.

                                                         ***

               A: [It] was Wayne’s desire so that the paintball business could
               continue.

                                                         ***

               A: [Wayne liked] the fact that the paintball business would
               continue. He was really adamant about that.


       Tr. at 17, 22, 27, 34, 39.


[28]   The primary goal in construing a trust document is to ascertain and effectuate

       the intent of the settlor, which may be determined from the language of the trust

       instrument and matters surrounding the formation of the trust. In re Stuart

       Cochran Irrevocable Trust, 901 N.E.2d 1128, 1140 (Ind. Ct. App. 2009), trans.

       denied. Wayne intended for Joseph to continue operating his paintball business,

       even after Wayne’s death, and that business, as Wayne knew it, is ongoing,

       albeit under different ownership and a different name. Joseph continues to

       direct many of the operations of the paintball business, even though the named

       business entity is owned by someone else. And Joseph owns a maintenance




       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015     Page 19 of 23
       company responsible for maintaining the paintball fields and equipment on the

       property.


[29]   While Joseph does not have an ownership interest in Sherwood Paintball, Inc.,

       it is obvious that Joseph’s work is an integral part of making Sherwood

       Paintball, Inc., a successful enterprise. Joseph testified that he is “still operating

       the paintball operation in the same manner” that he was at the time Wayne

       executed the Trust. Tr. at 69. In effect, it is Joseph’s paintball business that

       continues on the property. In sum, Joseph has continued to operate the

       paintball business on the real estate, which was Wayne’s purpose and intent in

       creating the trust. We hold that the trial court did not err when it concluded

       that Joseph is running a paintball business on the property within the meaning

       of Sections 3.02 and 3.03 and may continue to do so under the terms of the

       Trust. And the trial court did not err when it refused to terminate and dissolve

       the Trust.


                                 Motion to Terminate and Dissolve Trust

[30]   In the alternative, Jeffrey and Julie contend that, even assuming Joseph is

       permitted to continue running the paintball business on the property, the trial

       court should have terminated and dissolved the Trust and distributed the assets,

       including the property, equally among the siblings. Again, Jeffrey and Julie

       assert that section 3.03 is not ambiguous and, therefore, the trial court erred

       when it considered extrinsic evidence in interpreting it. In particular, Jeffrey

       and Julie maintain that the language in section 3.03 “clearly intended . . . that

       the Trust would be terminated and that Joseph would be entitled to use the land
       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015      Page 20 of 23
       for his paintball business, as long as he had a paintball business.” Appellee’s

       Br. at 14. Further, they state that they


               do not contest that Wayne’s intent was to allow Joseph to
               continue to use the land for his paintball business, however, that
               intent was not to the exclusion of the termination of the Trust
               and equal distribution of the land among the three siblings, as
               clearly stated in Section 3.03 of the Trust.


       Id.


[31]   But we read the plain meaning of Section 3.03 differently. Section 3.03 of the

       Trust provides that, upon Wayne’s death, Joseph shall divide the property of

       the Trust as follows: first, “for as long as he desires,” Joseph is able to operate

       his business on real estate owned by the Trust “and retain all income and losses

       therefrom”; and second, the rest, residue and remainder of the Trust, including

       the real estate subject to the first paragraph, shall be divided equally among

       Joseph, Jeffrey, and Julie. Joint Exh. 1. While perhaps not artfully drafted,

       Wayne’s intent is clear: Joseph is granted a life estate in the real property for as

       long as he operates a paintball business on it. At the termination of Joseph’s

       conditional life estate, the property shall be distributed equally among Joseph,

       Jeffrey, and Julie.


[32]   Even if we were to hold that Section 3.03 is ambiguous, the evidence supports

       the trial court’s findings and conclusion that the property shall not be

       distributed as long as Joseph is operating a paintball business. William




       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015      Page 21 of 23
Herrbach, the attorney who drafted the Trust, testified in relevant part as

follows:


        Q: And if the real estate is distributed out a third, a third, a third,
        would that still retain the protection of the spend-thrift clause?

        A: In my opinion it would not.
        Q: And why?

        A: Well, because then it would become subject to their personal
        debts, it being their own and be subject to that.

                                                  ***

        A: . . . the reality of it is if he takes it out of the Trust, he’s really
        not going to abide by the intention of Wayne, which was to
        secure that property so that that business could operate.

                                                  ***

        A: The intention is clear that [the three siblings] own their share
        of the property, but the bottom line is if you take it out of [the]
        Trust I think it’s not honoring Wayne’s wishes.

                                                  ***

        A: You know clearly Wayne wanted to make sure each of his
        kids got the one-third share of his real estate that they were
        entitled to, but he didn’t want that to really happen until Joe was
        finished running his business.

        Q: And so for the protection of not only Joe, but also for the
        protection of the other two children, you leave the assets in the
        Trust?

        A: I believe so.

Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015            Page 22 of 23
       Tr. at 35, 47, 49, 54.


[33]   The evidence shows that the overriding purpose of the Trust was to permit

       Joseph to continue the paintball business after Wayne’s death. The trial court’s

       conclusion that the property shall be held in trust as long as Joseph operates a

       paintball business thereon is not clearly erroneous.


                                                     Conclusion

[34]   The trial court did not err when it denied Joseph’s motion for fees and

       expenses. The trial court erred when it ordered that the income from the

       billboard leases be distributed to Joseph, Jeffrey, and Julie. That income is

       derived from the real estate held in trust and belongs to Joseph as long as he

       fulfills the condition of his life estate. And the trial court did not err when it

       denied Jeffrey and Julie’s motion to dissolve and terminate the trust. Wayne

       loved the paintball business, and the purpose of the Trust was to make certain

       that Joseph would be able to continue in the paintball business after Wayne’s

       death.


[35]   Affirmed in part and reversed in part.


       Baker, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Opinion 46A03-1410-ES-378| July 8, 2015       Page 23 of 23
