MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Apr 29 2020, 10:15 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael L. Carmin                                        John R. McKay
Daniel M. Cyr                                            Samantha M. Paul
CARMINPARKER, PC                                         Jack R. Woodruff
Bloomington, Indiana                                     Hickman & Lorenz, P.C.
                                                         Spencer, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Estate of                           April 29, 2020
James Wilke (Deceased),                                  Court of Appeals Case No.
                                                         19A-EU-2144
Melissa Wilke-Ware,
                                                         Appeal from the Owen Circuit
Appellant,                                               Court
        v.                                               The Honorable Lori Thatcher
                                                         Quillen, Judge
Barbara Mohr as Personal                                 Trial Court Cause No.
Representative of the Estate of                          60C01-1510-EU-40
James Wilke,
Appellee.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020                Page 1 of 16
[1]   Melissa Wilke-Ware appeals the trial court’s interlocutory order ordering the

      sale of certain real estate. We reverse and remand.

                                        Facts and Procedural History

[2]   James Wilke died on October 7, 2015. On October 21, 2015, Barbara Mohr

      filed a petition for the appointment of personal representative for unsupervised

      administration.


[3]   On July 11, 2017, Personal Representative Mohr, Melissa, and Robert Wilke

      executed an Agreement as to Real Estate. The agreement stated “[t]his contract

      for sale is made . . . by and between” Mohr, as Personal Representative,

      Melissa, and Robert. Appellant’s Appendix Volume II at 14. The agreement

      stated that Melissa and Robert are the sole heirs of James Wilke, the estate

      included a residence and real property in Poland, Indiana, and there existed a

      mortgage lien on the property which was current. 1 The agreement provided

      Melissa and Robert “wish[ed] to receive the residence and property as opposed

      to selling the property and sharing equally in the proceeds” and “[i]n

      furtherance thereof the parties agree as follows”: Melissa and Robert shall

      timely pay all payments on the mortgage, taxes and assessments, and insurance

      premiums; they “shall share equally in the the [sic] above stated payments”;

      Melissa “shall have as her own the residence” and be responsible for costs

      related to the residence; Robert “shall have as his own the apartment located in




      1
        The accounting attached to Mohr’s September 21, 2017 petition to close estate lists amounts of $200,000 for
      the real property and $171,000 for liens, mortgages, bonds, and notes.

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020                   Page 2 of 16
      the out-building” and be responsible for all related costs; and each shall have

      the right to privacy and quietude in their homes. Id. at 14-15. The agreement

      further provided:

              H.       Each party shall respect the others [sic] rights to their respective
                       homes. The curtilage, buildings not mentioned, and the land shall be
                       enjoyed by both parties equally and in full.

              I.       Upon the final payment the parties shall receive an executor’s deed.
                       Melissa A. Wilke and Robert R. Wilke shall be jointly responsible for
                       the preparation and recording of the deed and any and all other
                       responsibilities and costs attendant thereto.

              J.       In the event either party defaults upon their respective duties or
                       obligations the other party may petition the Court to sell the real
                       estate with the parties sharing equally crediting any deficiencies paid
                       by the petitioning party. Further, the petitioning party has the option
                       to buy the other out, once again crediting any deficiencies paid by the
                       petitioning party.

      Id. at 15.


[4]   On September 21, 2017, Mohr filed an Agreed Verified Petition to Close Estate

      which was signed by Mohr, Melissa, and Robert and provided:

              4. This dispersal includes the deposition [sic] of the real property located at
              . . . Poland, IN . . . . In that the heirs, decedent’s only children, wish to
              keep and share the home and being that neither heir is in a position to
              finance the purchase of the real estate, said dispersal is by the attached
              Agreement as to Real Estate.

              5. That all fees, bills, and debts of decedent have been paid. This includes
              but is not limited to the funeral expenses and costs of the estate’s
              administration. Excepted is the mortgage upon said real estate which is
              being paid per the attached Agreement as to Real Estate.



      Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 3 of 16
              6. The sole heirs, Melissa Wilke and Robert R. Wilke, agree to the closing
              of the estate as indicated by their signatures below.

              7. All parties understand that the estate may be reopened under the
              circumstances set out in the Agreement as to Real Estate.

              8. Parties request that Barbara Mohr be relieved of her duties as Personal
              Representative and that, for the record, Melissa A. Wilke-Ware and Robert
              R. Wilke be named as co-personal representatives.

      Id. at 12-13. On October 25, 2017, the court issued an order stating the parties

      appeared and it had heard evidence, approving of the Agreement as to Real

      Estate, and closing the estate.


[5]   On December 5, 2018, Mohr filed a petition to reopen the estate which stated:

              3. That the prior administration of the decedent’s estate did not fully
              administer upon all of the decedent’s assets in that the personal
              representative, upon advice and counsel, did not make disposition of the
              decedent’s real estate but entered into an Agreement As To Real Estate with
              the decedent’s heirs Melissa A. Wilke and Robert R. Wilke which was
              submitted to the court as part of the closing of the estate but which left title
              to the real estate in the decedent’s name and the mortgage thereon
              outstanding.

              4. That the personal representative is aware that the relationship between
              heirs Melissa A. Wilke and Robert R. Wilke with respect to sharing the real
              estate, maintaining the property and paying the mortgage and managing the
              personal property has become contentious, unworkable and untenable
              leaving the real estate at risk.

              5. That because of the foregoing factors the administration of the estate
              needs to be re-opened in order that the personal representative may fully
              administer upon such matters.

              6. That the personal representative believes it to be in the best interest of the
              decedent’s estate that the Agreement As To Real Estate be set aside, the
              decedent’s real estate be sold and the mortgage paid off, that any remaining

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 4 of 16
              items of personalty located on the real estate be specifically distributed to
              the heirs or alternatively be sold for application toward costs of
              administration and or distribution to the heirs.

              7. That because of the contentious relationship between heirs Melissa A.
              Wilke and Robert R. Wilke and your petitioner she verily believes that the
              administration of the estate needs to be under the Indiana probate code
              governing supervised administration in anticipation of the need for court
              assistance in moving forward toward full administration of the decedent’s
              assets.

              WHEREFORE, petitioner Barbara E. Mohr prays the Court for an order
              reopening the estate of James Wilke and re-appointing the petitioner as
              personal representative under supervised administration in order to fully
              administer upon the decedent’s real estate, personalty and related matters as
              identified hereinabove, and for all other relief which is proper in the
              premises.


      Id. at 19-20.


[6]   That same day, the court issued an Order Authorizing Reopening Estate Under

      Supervised Administration stating in part:

              [T]he Court, having examined the petition and being fully advised in the
              premises, now finds the allegations stated in the petition are true; that
              certain assets of the decedent have not been fully administered upon and are
              at risk.

              That the estate should be reopened and the personal representative
              reappointed under the probate code governing supervised administration in
              order [to] sell the decedent’s real estate, pay the outstanding mortgage in the
              decedent’s name, to complete administration upon any remaining
              personally and otherwise fully administer the decedent’s estate.

              IT IS THEREFORE ORDERED AND ADJUDGED by the Court that the
              estate of James Wilke is reopened and that Barbara E. Mohr is hereby
              reappointed personal representative of the estate under the probate code
              governing supervised administration upon taking an oath and that the Clerk

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 5 of 16
              of the Court be, and hereby is directed to issue Letters of Administration to
              Barbara E. Mohr under supervised administration upon her qualification as
              the personal representative.

      Id. at 23.


[7]   On April 5, 2019, Mohr filed a Request for Hearing for Purposes of Instruction

      with Respect to Unresolved Issues of Administration. Mohr’s request stated the

      decedent’s real property was not transferred or conveyed from the decedent’s

      name; the mortgage lien on the property in favor of Peoples State Bank

      remained outstanding in the decedent’s name; she had agreed to the Agreement

      as to Real Estate not realizing it failed to fully address her responsibility to

      administer the estate; she had been advised by Peoples State Bank that it will

      not permit the decedent’s heirs to assume the decedent’s mortgage loan but will

      not treat the conveyance of title to the property to the heirs without paying off

      the loan as a default so long as the loan remains current; and she was seeking

      instruction regarding conveyance of title to the heirs without settlement of the

      mortgage lien.


[8]   On May 10, 2019, Robert filed a Motion for Sale of Real Estate requesting that

      the court order the sale of the real estate and the profits be distributed. He

      alleged Melissa defaulted in her obligations under the Agreement as to Real

      Estate as she failed to timely pay her half of the mortgage payments and

      insurance premiums and has violated the covenant of privacy and quietude.


[9]   On July 8, 2019, the court held a hearing at which Mohr, Robert, and Melissa

      appeared with their attorneys. Robert’s counsel stated “I think we are in

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 6 of 16
       agreement that the real estate should be sold,” “[t]he agreement, I think

       everybody will agree has not worked out,” the property and mortgage are in the

       name of the decedent, and the personal representative should be the person to

       sell the property. Transcript Volume II at 5. Melissa’s counsel stated “we

       shouldn’t be here today,” “[t]here is nothing for the Court to do,” “[t]here is an

       agreement that disbursed piece of real estate that’s titled to the decedent to

       Robert and Melissa,” the petition “filed by the PR says that when the mortgage

       is paid in full we will give you deed,” and “[t]hat is the only thing left to be

       done.” Id. at 6. Mohr’s counsel stated the agreement indicated the heirs would

       take possession of the real property but did not disburse or convey title to them,

       that subparagraph I of the Agreement as to Real Estate specifically states that

       an executor’s deed will be issued to convey title once the mortgage is paid off,

       the property remains in the decedent’s name, the property was still an estate

       asset, and the estate should never have been closed without fully administering

       all of the assets. Melissa’s counsel replied that the real property had been

       dispersed, “[i]t is a done deal,” and “[t]he PR has got involved in something

       that she has no business being involved in.” Id. at 8-9.


[10]   Robert’s counsel responded that the Agreement as to Real Estate specifically

       contemplates that, if either party defaulted, the other party may petition the

       court for sale of the property. He noted the court had already reopened the

       estate. He stated: “If the Court wishes to take testimony showing that there has

       been a default in the obligations I suppose we could do that but I really don’t

       think there is any dispute over that. Everybody agrees payments have been late,


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 7 of 16
       they don’t get along, there’s all sorts of problems out there and therefore the

       sale of the real estate must occur.” Id. at 9. He said that he was surprised the

       court approved the agreement and that the case was reopened “because the

       agreement failed and that means we are back under the umbrella of the estate

       and to do this thing right we need to proceed under the estate, have a personal

       rep’s deed, have the mortgage resolved, have a final accounting done, the things

       that should have been done at the time.” Id. at 10.


[11]   The court stated that it adopted the agreement because the parties had agreed it

       was in the best interest of the estate and everyone else at the time, the

       agreement contemplated an executor’s deed upon final payment, and the reality

       was that the property was still held by the estate. Melissa’s counsel then stated

       that paragraph J of the agreement said that a party, not the personal

       representative, may petition the court for a sale. Robert’s counsel replied that

       Mohr was a signatory and party to the agreement. Melissa’s counsel stated “the

       fight we are going to have in it is she cannot control the sale, she cannot control

       the price, she is not going to get any fees and expenses paid out of the estate

       over objection and you are setting this up for further fights when this [has]

       already been resolved.” Id. at 11-12. Robert’s counsel noted that Robert had

       petitioned for sale of the real estate and asked the court to authorize the

       personal representative to obtain a listing recommendation as to the amount

       and to proceed with the sale. The court stated, “I think we need to get an

       appraised value and see where the parties go from there and it needs to be

       resolved, it needs to be done.” Id. at 12. The court asked “[d]o you need more


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 8 of 16
       time or how do you wish to proceed,” and Melissa’s counsel stated “I am going

       to ask . . . for certify order for interlocutory appeal.” Id. at 13.


[12]   Melissa filed an objection stating in part “[t]he Agreement never defines ‘party’,

       but [] paragraphs H and J clearly contemplate Melissa and Robert as being the

       only two parties and, therefore, the only persons empowered to petition the

       Court for sale of the real estate.” Appellant’s Appendix Volume II at 32.


[13]   On August 2, 2019, the court issued an order providing in part:

               This cause came before the court on July 8, 2019 regarding [Mohr’s] Request
               For Hearing For Purposes Of Instruction To Personal Representative With Respect
               To Unresolved Issues Of Administration filed herein on April 5, 2019 and
               Robert Ryan Wilke’s Motion For Sale Of Real Estate filed herein on May 10,
               2019. . . .

                                                          *****

               4. The parties agreed at the hearing that the real estate should be sold and
               that the Personal Representative should complete her administration of the
               estate pursuant to statute under supervision of this Court.

               5. The Agreement As To Real Estate contemplated that an executor’s deed
               would be issued upon final payment and the agreement was, therefore,
               executory.

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the
               Court that the Personal Representative sell the real estate and improvements
               at . . . Poland, Indiana . . . as promptly as possible. The Personal
               Representative is authorized to list the property with a realtor at the price
               recommended by that realtor, to pay the normal commission for the
               realtor’s services and to authorize payment of all necessary closing costs and
               expenses.

       Id. at 10.


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 9 of 16
                                                   Discussion

[14]   The trial court’s findings control as to the issues they cover and a general

       judgment will control as to the issues upon which there are no findings. Yanoff

       v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). First, we determine whether the

       evidence supports the court’s findings of fact, and then we determine whether

       the findings support the court’s conclusions. Id. Findings are clearly erroneous

       when the record contains no facts to support them. Id. A judgment is clearly

       erroneous if it applies the wrong legal standard to properly found facts. Id.


[15]   Melissa argues the court did not hear any evidence that she was in default

       under the Agreement as to Real Estate, she never agreed to a sale controlled by

       the personal representative, and she is not in default under the Agreement as to

       Real Estate. She argues that, “[i]f the trial court had heard evidence—as it

       should have done—[she] was prepared to testify that she and [Robert] formed a

       plan to carry out the monthly mortgage payments that are required under the

       Agreement,” Robert “agreed to write a check to the mortgage company for the

       full amount of the mortgage payment each month, and [she] agreed to cut a

       check to [Robert] to pay her half,” and she “was prepared to present evidence

       that she made her payment to [Robert] each month within the ‘grace period’

       allowed by the mortgage company—that is, before any default could be

       declared by the mortgage company.” Appellant’s Brief at 13. She argues the

       trial court “simply assumed that a default exists.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 10 of 16
[16]   Personal Representative Mohr asserts the Agreement as to Real Estate did not

       satisfy the requirements of Ind. Code § 29-1-7.5-4, 2 that her petition to reopen

       the estate requested that the agreement be set aside, that the court’s order

       reopening the estate included the language “in order [to] sell the decedent’s real

       estate,” and the Agreement as to Real Estate was void ab initio. Appellee’s

       Brief at 12 (citing Appellant’s Appendix Volume II at 23). She argues the

       agreement did not “recount that a personal representative’s deed had been

       prepared, executed, and recorded for the decedent’s real estate,” the real

       property and mortgage remained in the name of the decedent, and the

       agreement “somewhat curiously provided that at some future time, the heirs

       would be responsible for preparation of an executor’s deed necessary to convey

       the title to the real estate from the decedent to themselves.” Id. at 10. She

       argues the December 5, 2018 order was not appealed, and that she, Robert, and

       Melissa were present in person at the July 8, 2019 hearing at which they each

       by counsel summarized their respective views and positions. She contends that,

       because the Agreement as to Real Estate was rendered void ab initio, Melissa’s

       arguments concerning an evidentiary hearing are inapposite. In reply, Melissa

       asserts that Mohr did not raise her void ab initio argument before the trial court,

       Ind. Code § 29-1-7.5-4 pertains to the actions of a personal representative in




       2
         Ind. Code § 29-1-7.5-4 relates to the closing of estates in unsupervised administration proceedings and
       provides in part that a personal representative may close an estate by filing a verified statement stating that
       the personal representative has “(4) Executed and recorded a personal representative’s deed for any real
       estate owned by the decedent.”

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020                      Page 11 of 16
       submitting a closing statement and has no application to the Agreement as to

       Real Estate, and the estate was fully administered and properly closed.


[17]   Ind. Code § 29-1-7.5-4(a) provides in part:

               Unless prohibited by order of the court and except for estates being
               administered in supervised administration proceedings, a personal
               representative may close an estate by filing with the court . . . a verified
               statement stating that the personal representative, or a prior personal
               representative, has done the following:

                                                          *****

               (3)      Fully administered the estate of the decedent by making payment,
                        settlement, or other disposition of all claims which were presented,
                        expenses of administration and estate, inheritance, and other death
                        taxes, except as specified in the statement. If any claims remain
                        undischarged, the statement shall:

                        (A)     state whether the personal representative has distributed the
                                estate, subject to possible liability, with the agreement of the
                                distributees; or

                        (B)     detail other arrangements which have been made to
                                accommodate outstanding liabilities.

               (4)      Executed and recorded a personal representative’s deed for any real
                        estate owned by the decedent.

               (5)      Distributed all the assets of the estate to the persons entitled to
                        receive the assets. . . .

[18]   Here, the July 11, 2017 Agreement as to Real Estate provided Melissa and

       Robert would pay the mortgage payments on the decedent’s real property and,

       upon making the final payment, would receive an executor’s deed. The parties

       do not dispute that title to the property remained in the decedent’s name and

       the decedent remained the named mortgagor on the mortgage. The record does

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 12 of 16
       not show that Personal Representative Mohr filed a verified statement that she

       “[e]xecuted and recorded a personal representative’s deed for any real estate

       owned by the decedent.” Ind. Code § 29-1-7.5-4(a)(4). We do not disturb the

       trial court’s December 5, 2018 order reopening the estate.


[19]   We turn to the trial court’s order that the real estate be sold. We cannot say

       that the court’s orders granting Mohr’s requests to close and later reopen the

       estate rendered the Agreement as to Real Estate void. The Agreement as to

       Real Estate provided that, “[i]n the event either party defaults upon their

       respective duties or obligations the other party may petition the Court to sell the

       real estate with the parties sharing equally crediting any deficiencies paid by the

       petitioning party.” Appellant’s Appendix Volume II at 15. On May 10, 2019,

       Robert filed a Motion for Sale of Real Estate alleging that Melissa had defaulted

       in her obligations under the Agreement as to Real Estate by failing to timely

       pay her half of the mortgage and insurance premium payments and by violating

       the covenant of privacy and quietude. On July 8, 2019, the court held a hearing

       at which it heard arguments from counsel but did not admit evidence. While

       Robert’s counsel stated the court could “take testimony showing that there has

       been a default in the obligations,” “I really don’t think there is any dispute over

       that,” and “[e]verybody agrees payments have been late,” see Transcript

       Volume II at 9, Melissa did not concede that she was in default under the

       Agreement as to Real Estate. Further, while Melissa’s counsel argued that only

       Melissa or Robert may request the sale of the real estate under the Agreement

       as to Real Estate, the record does not demonstrate that Melissa agreed that the


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 13 of 16
       real estate should be sold. Melissa’s counsel stated there was nothing for the

       court to do, there was an agreement which disbursed the real estate, and the

       only thing left to be done is a deed when the mortgage is paid in full. The court

       did not admit evidence on Robert’s Motion for Sale of Real Estate alleging that

       Melissa was in default under the Agreement as to Real Estate.


[20]   Based upon the record, we reverse the trial court’s order and remand for an

       evidentiary hearing on Robert’s May 10, 2019 Motion for Sale of Real Estate.


[21]   Reversed and remanded.


       Riley, J., concurs.


       Baker, J., concurs with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 14 of 16
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       In the Matter of the Estate of                           Court of Appeals Case No.
       James Wilke (Deceased),                                  19A-EU-2144

       Melissa Wilke-Ware,
       Appellant,

               v.

       Barbara Mohr as Personal
       Representative of the Estate of
       James Wilke,
       Appellee.



       Baker, Judge, concurring.


[22]   I fully concur with the majority opinion. I write separately to add that if the

       evidence on remand reveals that Melissa was indeed in default, I urge the trial

       court to order that all resulting costs be borne by Melissa, rather than by the

       Estate. The conclusion and decision reached by the majority—that there is

       insufficient evidence demonstrating Melissa’s alleged default and agreement to

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020       Page 15 of 16
the sale of the real estate—is largely, if not entirely, due to Melissa’s own

silence on the matter: “Melissa did not concede that she was in default” and

“the record does not demonstrate that Melissa agreed that the real estate should

be sold.” Slip Op. p. 13-14. If, then, the evidentiary hearing does, in fact, show

that Melissa defaulted on her obligations, it seems appropriate to place the onus

on her to bear the costs incurred as a result of these prolonged proceedings.




Court of Appeals of Indiana | Memorandum Decision 19A-EU-2144 | April 29, 2020   Page 16 of 16
