      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                    FILED
      this Memorandum Decision shall not be                                 Feb 27 2020, 6:00 am

      regarded as precedent or cited before any                                 CLERK
      court except for the purpose of establishing                          Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
      Charles W. Lahey                                         M. Patricia Hackett
      Brendan K. Lahey                                         Sara E. Tumbleson
      South Bend, Indiana                                      Peter L. Morgan
                                                               South Bend, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Charles Rupley,                                          February 27, 2020
      Appellant,                                               Court of Appeals Case No.
                                                               19A-ES-2020
              v.                                               Appeal from the St. Joseph Circuit
                                                               Court
      Michael L. Rupley, Jr., et al.,                          The Honorable John Broden,
      Appellees                                                Judge
                                                               Trial Court Cause No.
                                                               71C01-1810-ES-49



      Altice, Judge.


                                                Case Summary


[1]   The Estate of Francis J. Rupley (the Estate) was opened in 2018, more than

      nine years after Francis’s death. Thereafter, Francis’s adult son, Charles
      Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020             Page 1 of 11
      Rupley, filed a claim against the Estate claiming equitable ownership of

      Amazon stock certificates that were in Francis’s name and seeking an order that

      the Estate sign the stock certificates over to Charles. The trial court dismissed

      Charles’s claim as time barred under Ind. Code §§ 29-1-7-7(e) and 29-1-14-1(d)

      because it was filed more than nine months after Francis’s death. Charles now

      appeals.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Francis’s wife Ruth predeceased him in October 2008. Francis then died

      intestate in February 2009. Ruth’s will designated Charles and his brother

      Michael as co-personal representatives of her estate (Ruth’s Estate). They filed

      a petition to probate Ruth’s will in March 2009 under Cause No. 71C01-0903-

      ES-6 (the Will Probate Action). Due to great animosity between the brothers,

      in June 2010, the trial court appointed 1st Source Bank (the Bank) as the

      successor personal representative. The Bank was also appointed trustee of

      Ruth’s revocable trust. Litigation continued in the Will Probate Action through

      March 2015 and included an appeal to this court. See Estate of Ruth M. Rupley v.

      Rupley, 12 N.E.3d 900 (Ind. Ct. App. 2014), clarified on reh’g, 18 N.E.3d 291.


[4]   Michael died in February 2018. His children, Michael Jr. and Cheryle

      (Grandchildren), became co-representatives of his estate (Michael’s Estate). At

      this time, real estate remained in both Ruth’s Estate and her trust that had not

      been sold. Thus, on July 31, 2018, more than three years after any activity in

      Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020   Page 2 of 11
      the Will Probate Action, the Bank filed a petition for a status conference. The

      Bank sought to sell the real estate to provide liquidity for Ruth’s Estate and pay

      expenses of administration and to wind up the affairs of Ruth’s Estate and trust.


[5]   On August 15, 2018, in the Will Probate Action, Charles filed an Objection to

      Notice of Request to Sell Real Estate and Notice of Objections to

      Administration of the Estate and Claims Against Other Heirs. Relevant for our

      purposes here, the objection included a request for a ruling by the trial court

      regarding whether Amazon stock, recently disclosed by Charles to have been in

      his possession since 1999 but not titled to him, is the property of Charles or of

      Ruth’s Estate. Grandchildren, as personal representatives of Michael’s Estate,

      filed a response and argued that Charles had converted the Amazon stock and

      that it should be surrendered to the Bank as an asset of Ruth’s Estate.


[6]   Following the status hearing in the Will Probate Action, the trial court entered

      an order on August 23, 2018, setting forth the following regarding the stock:


              3. At the August 22, 2018 status hearing, it was determined that
              there are 25 shares of Amazon stock[ 1] that are titled in the name
              of Ruth M. Rupley, but which are in the possession of Charles
              Rupley.


              4. Because the Court determines that there is no question of fact
              that the 25 shares of Amazon stock are currently titled in the
              name of Ruth M. Rupley, the Court FINDS that the shares of



      1
       There are actually fifty shares. Twenty-five were purchased in January 1999 and then there was a stock
      split in September 1999, resulting in a total of fifty shares.

      Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020              Page 3 of 11
              Amazon stock are an asset of the Estate of Ruth M. Rupley. As
              such, the Court ORDERS Charles Rupley to deliver the 25
              shares of Amazon stock to his legal counsel, Charles Lahey, who
              shall then promptly deliver the 25 shares of Amazon stock to the
              Personal Representative or its legal counsel.


              5. The Personal Representative shall treat and do with these 25
              shares of Amazon stock what it would do with other similar
              assets.


              6. However, the Court ORDERS that these shares of Amazon
              stock, or the proceeds therefrom if liquidated by the Personal
              Representative, shall NOT be distributed by the Personal
              Representative or used by the Personal Representative to pay any
              outstanding obligations of the Estate until the Court has had an
              opportunity to rule upon any potential claim or contest relating
              to the shares of Amazon stock….


      Appellant’s Appendix Vol. 2 at 120-21.


[7]   On September 7, 2018, Charles filed a Response to Order of the Court, in which

      he indicated, in part:


              Fifty shares of stock in Amazon.com have been delivered to
              Edward Hardig, attorney for the Estate as ordered by the Court.
              Charles Rupley continues to maintain his claim of equitable ownership
              to such stocks and intends to file a claim as ordered by the Court
              but will address this issue in another pleading.


      Id. at 126 (emphasis supplied). Thereafter, on September 21, 2018, Charles

      filed a claim against Ruth’s Estate in which he set out facts regarding the 1999

      stock purchase. While he acknowledged that the stock certificates were issued


      Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020   Page 4 of 11
      “in the name of Francis J. Rupley and Ruth M. Rupley, Joint Tenants,”

      Charles argued that the stock certificates were “rightfully owned” by him

      because his funds were used to purchase them. Id. at 127. The relief requested

      by Charles was that Ruth’s Estate “be ordered to sign over the certificates to

      [him].” Id. at 128. On October 1, 2018, the Bank filed a motion to dismiss

      Charles’s claim against Ruth’s Estate as untimely filed.


[8]   In the meantime, on October 4, 2018, Grandchildren filed a petition for the

      supervised administration of the Estate of Francis J. Rupley and for

      appointment of themselves as co-personal representatives. The petition was

      granted on October 18, 2018, and a notice of estate administration was issued

      the next day. Additionally, in the Will Probate Action, Michael’s Estate filed

      an objection to Charles’s claim against Ruth’s Estate, challenging the claim as

      untimely and, alternatively, on the merits. Michael’s Estate also noted in its

      objection that the stock certificates “actually should be probated in an Estate for

      Francis J. Rupley, since Ruth Rupley predeceased her husband, Francis J.

      Rupley” and, thus, argued that the claim should be dismissed for having been

      filed in the wrong estate. Id. at 141.


[9]   On December 4, 2018, following a hearing, the trial court in the Will Probate

      Action issued an order, which provided as follows with respect to the stock:


              2. As to the 50 Shares of Amazon stock, the Court finds that
              those shares of stock were registered to Ruth M. Rupley and
              Francis J. Rupley as Joint Tenants. The Court FINDS that
              consistent with accepted norms and practice in regard to such
              financial certificates rights of survivorship are implicit in the joint

      Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020   Page 5 of 11
               tenancy designation. Consequently, when Ruth M. Rupley
               predeceased Francis J. Rupley, the 50 shares of Amazon became
               registered to Francis J. Rupley (ownership of the shares shall be
               determined by the Court at a later date) and therefore at this time
               the shares of Amazon stock are to be part of the Estate of Francis
               J. Rupley and are not an estate asset of the Estate of Ruth M.
               Rupley….


               3. Charles Rupley shall have ten (10) days from the date of the
               November 30, 2018 hearing to assert and file any claim of
               whatever kind in regard to the shares of Amazon stock in the
               Estate of Francis J. Rupley, 71C01-1810-ES-000049….


       Id. at 144.


[10]   On December 12, 2018, Charles filed a claim against the Estate, which was the

       verbatim claim he made against Ruth’s Estate. Charles requested that the

       Estate be ordered to sign over the stock certificates to him. He also filed a claim

       against the administration of the Estate based on replevin, arguing that “the

       possession of these stocks by the Estate and its claim to ownership is in

       violation of the equitable ownership rights of Charles Rupley.” Id. at 21.


[11]   The Estate, on January 7, 2019, filed an objection to Charles’s estate claim and

       claim against administration. The Estate argued that the estate claim was time

       barred as a matter of law and should be dismissed because it was not filed

       within nine months of Francis’s death as required by I.C. §§ 29-1-7-7(e) and 29-

       1-14-1(d). The Estate also challenged Charles’s replevin claim, noting that the

       stock certificates had not been wrongfully taken or unlawfully detained by the

       Estate. Further, the Estate observed that Charles “is not the title owner of the

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020   Page 6 of 11
       stock” and, therefore, “it appears that he seeks the equitable powers of this

       Court to change the ownership of the stock to himself.” Appellant’s Appendix

       Vol. 2 at 32-33.


[12]   Charles responded, on February 11, 2019, with an additional ground to support

       his estate claim. He argued that at the time Grandchildren opened the Estate

       he was a known creditor of the Estate and entitled to notice as set out in I.C. §

       29-1-7-7, which he alleged he did not receive. On March 15, 2019, the trial

       court determined that the issue of whether Charles’s claim was time barred

       appeared to be a question of law and, thus, allowed the parties to file additional

       briefing on the issue. The parties filed their briefs that same month.


[13]   On May 9, 2019, Charles filed a motion for summary judgment, along with his

       own affidavit and supporting documents. He claimed to be entitled to

       summary judgment because no material facts were in dispute concerning his

       right to recover the stock from the Estate. Thus, he requested that the Estate

       “be ordered to return the 50 shares of stock in Amazon.com, Inc. to [Charles]

       properly endorsed to permit transfer to Charles Rupley.” Appellant’s Appendix Vol. 2 at

       65 (emphasis supplied). The Estate sought and was granted an extension of

       time to respond to the summary judgment motion. Specifically, on June 6,

       2019, the trial court ruled that the Estate would not be required to respond

       substantively to the summary judgment motion until the court ruled on the

       Estate’s motion to dismiss the claim as time barred. If said ruling was in

       Charles’s favor, then the Estate would have thirty days from that ruling to

       respond to the summary judgment motion on the merits.

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020   Page 7 of 11
[14]   On July 31, 2019, the trial court entered the order from which Charles now

       appeals. The court ruled that as a matter of law Charles’s claim against the

       Estate was time barred because it was not filed within nine months of Francis’s

       death. Accordingly, the stock remained an asset of the Estate to be distributed

       accordingly and there was no need for further proceedings regarding Charles’s

       summary judgment motion, which was rendered moot.


                                               Discussion & Decision


[15]   The dispositive issue presented here is whether Charles’s claim to the Amazon

       stock is time barred. If it is, as found by the trial court, then we cannot reach

       the merits of his equitable claim to the asset. 2


[16]   It has long been established that I.C. § 29-1-7-7(e), as well as its counterpart I.C.

       § 29-1-14-1(d), “is a strict nonclaim statute rather than a statute of limitations

       subject to equitable tolling.” Estate of Decker v. Farm Credit Servs. of Mid-Am.,

       ACA, 684 N.E.2d 1137, 1138 (Ind. 1997); see also Burnett v. Villaneuve, 685

       N.E.2d 1103, 1107-10 (Ind. Ct. App. 1997). These two statutory provisions

       proscribe a time limit of nine months after the decedent’s death for the filing of

       claims against the estate. 3 This period “applies whether the creditor has

       received proper notice, improper notice, or no notice at all” and a court is




       2
        Charles claims that the stock is subject to a resulting trust created by equity because Ruth used his money to
       purchase the stock for him through her brokerage account.
       3
           Prior to 2001, the statutory time period was one year rather than nine months.


       Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020                 Page 8 of 11
       “without power to extend the time” limit. Decker, 684 N.E.2d at 1138, 1139. 4

       In other words, unless the creditor files the claim within the time allowed by the

       statute, it is forever barred. See id. at 1139; see also Burnett, 685 N.E.2d 1110

       (observing that “in no circumstance will a claim be allowed” beyond the

       statutory period).


[17]   Here, it is undisputed that Charles filed his claim, as a creditor, against the

       Estate more than nine months after Francis’s death. It is of no moment that the

       Estate was opened several years beyond the statutory time period. Charles was

       free to open the Estate on his own during the nine-month period following

       Francis’s death, but he failed to exercise his right by filing a timely claim. See

       Burnett, 685 N.E.2d 1107 (“Any one of the claimants could have opened the

       estate at any time during the one year period. They had the same ability and

       information as Burnett, and they simply failed to exercise their rights by filing a

       claim.”). No matter who the creditor, no matter the reason for delay, no matter

       any lack of notice, the nine-month nonclaim statute must be complied with in

       order to bring a claim against the Estate. See id. at 1110.


[18]   Charles attempts to sidestep the harsh nonclaim statute by arguing that his

       claim is really one for replevin against the administration of the Estate.




       4
         The Supreme Court observed in Decker that because the one-year provision (now nine-month provision) is
       self-executing, the federal Due Process Clause is not implicated. Id. at 1139. Thus, actual notice is not
       required prior to the termination of a claim under the nonclaim statutes. Id. at 1139-40.

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020              Page 9 of 11
                “A replevin action is a speedy statutory remedy designed to allow
                one to recover possession of property wrongfully held or detained
                as well as any damages incidental to the detention.” United Farm
                Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1066 (Ind. Ct.
                App. 2004). Indiana Code Section 32-35-2-1 provides that if
                personal goods are “wrongfully taken or unlawfully detained
                from the owner or person claiming possession of the property,”
                an action for the possession of property may be brought by the
                owner or claimant. To recover in a replevin action, the plaintiff
                “must prove his title or right to possession, that the property is
                unlawfully detained, and that the defendant wrongfully holds
                possession thereof.” Michalski, 814 N.E.2d at 1066 (citing Snyder
                v. Int’l Harvester Credit Corp., 147 Ind. App. 364, 368, 261 N.E.2d
                71, 73 (1970)).


       Sperro LLC v. Ford Motor Credit Co. LLC, 64 N.E.3d 235, 244-45 (Ind. Ct. App.

       2016).


[19]   Here, the Estate’s possession of the stock certificates is not wrongful or

       unlawful. Said possession is pursuant to an order issued in the Will Probate

       Action, an order to which Charles did not object, and the stock certificates are

       indisputably in the names of Ruth and Francis as joint tenants with rights of

       survivorship. More importantly, we observe that Charles does not simply seek

       possession of the stock certificates. Rather, the relief he has repeatedly

       requested of the trial court, both in this action and in the Will Probate Action, is

       that the Estate be ordered to sign over the stock certificates to him. This

       affirmative relief is sought against the property of the Estate, not the

       administration of the Estate, and is not in the nature of a replevin action. The

       heart of Charles’s claim is that he is the rightful owner of the Amazon stock


       Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020   Page 10 of 11
       because Ruth purchased it in a fiduciary capacity for him making the stock

       subject to a resulting trust created by equity. This very well may be true, but

       Charles waited too long to establish his equitable claim. He had nine months

       following Francis’s death to open the Estate and file a claim seeking

       endorsement of the stock to him through the equitable powers of the court.

       Having failed to do so, the trial court properly dismissed Charles’s claim as time

       barred. 5


[20]   Judgment affirmed.


       Robb, J. and Bradford, J., concur.




       5
        The trial court also properly determined that the Journey’s Account Statute, Ind. Code § 34-11-8-1, does not
       apply to save Charles’s claim, as the claim he filed in the Will Probate Action was similarly untimely. See
       Vesolowski v. Repay, 520 N.E.2d 433, 435 (Ind. 1988) (“In order to claim the saving power of the Journey’s
       Account Statute, a plaintiff must have filed his original cause of action timely.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-2020 | February 27, 2020              Page 11 of 11
