MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing
the defense of res judicata, collateral                                Dec 12 2018, 9:09 am

estoppel, or the law of the case.                                           CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
John J. Schwarz, II                                      Katherine Ridenour
Schwarz Law Office, PC                                   Nathan S.J. Williams
Hudson, Indiana                                          Shambaugh Kast Beck & Williams,
                                                         LLP
                                                         Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bona Lou Press, Guy S. Cress,                            December 12, 2018
Kimsey C. Cress,                                         Court of Appeals Case No.
Appellants-Petitioners,                                  18A-MI-1609
                                                         Appeal from the Adams Circuit
        v.                                               Court
                                                         The Honorable Chad E. Kukelhan,
The Estate of Lorien Cress, The                          Judge
Estate of Halden Schueler,                               Trial Court Cause No.
Kenneth Schueler, Marlene                                01C01-1711-MI-56
Schueler, and The 2016 Haspel
Family Trust Dated July 15,
2016,
Appellees-Respondents.




Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018               Page 1 of 6
      Bradford, Judge.



                                          Case Summary
[1]   Bona Lou Press, Guy S. Cress, and Kimsey C. Cress (collectively,

      “Appellants”) filed an action contesting the validity of Lorien Cress’s will. The

      action was subsequently dismissed after Appellants failed to timely serve

      summonses upon the Estate of Lorien Cress, the Estate of Halden Schueler,

      Kenneth Schueler, Marlene Schueler, and the 2016 Haspel Family Trust

      (collectively, “Appellees”). Appellants contend that the trial court erred in

      dismissing the action. Alternatively, Appellants contend that even if the trial

      court properly dismissed the action, they should be able to re-file their action

      pursuant to the Journey’s Account Statute (“the JAS”). Because we conclude

      that the trial court did not err in dismissing Appellants’ action and that

      Appellants’ reliance on the JAS is misplaced, we affirm.



                            Facts and Procedural History
[2]   Lorien Cress died on July 17, 2017. Approximately one month later, Kenneth

      Schueler petitioned to probate Cress’s will, which was dated November 24,

      2015. The trial court entered an order to probate the will on August 22, 2017.


[3]   Appellants initiated a will contest on November 17, 2017. In doing so,

      Appellants tendered their complaint and summonses to the Adams County

      Clerk. The tendered summonses indicated that rather than have the Clerk’s

      Office or the Sheriff serve the summonses, Appellants elected to serve Appellees
      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018   Page 2 of 6
      with process by their attorney “sending a copy of the summons and petition by

      registered or certified mail, return receipt requested, to [Appellees] at [their]

      address[es] set forth in the summons.” Appellees’ App. Vol. II p. 21. The

      Clerk returned the summonses to Appellants’ counsel for service to Appellees.

      Counsel, however, did not serve or even attempt to serve the summonses on the

      Appellees.


[4]   On January 18, 2018, Appellees moved to dismiss the action, claiming that they

      had not been timely served with the summonses. Soon thereafter, Appellants

      served copies of the summonses and complaint upon Appellees by certified

      mail. The trial court granted Appellees’ motion to dismiss on April 19, 2018.

      Appellants filed a motion to correct error on May 21, 2018, which motion the

      trial court denied on June 8, 2018.



                                Discussion and Decision
                                     I. Dismissal of Action
[5]   Appellants contend that the trial court erred by denying their will contest

      following their failure to timely serve Appellees with summonses. Because the

      relevant facts are undisputed, the question before us is one of law and we

      review the trial court’s ruling de novo. Blackman v. Gholson, 46 N.E.3d 975, 977

      (Ind. Ct. App. 2015). In such cases, we may affirm an order granting “a motion

      to dismiss based upon any theory or basis supported by the record, regardless of

      the explanation provided by the trial court.” Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018   Page 3 of 6
[6]   Indiana Code section 29-1-7-17 provides that


              Any interested person may contest the validity of any will in the
              court having jurisdiction over the probate of the will within three
              (3) months after the date of the order admitting the will to
              probate by filing in the same court, in a separate cause of action,
              the person’s allegations in writing verified by affidavit, setting
              forth:
                     (1) the unsoundness of mind of the testator;
                     (2) the undue execution of the will;
                     (3) that the will was executed under duress or was
                     obtained by fraud; or
                     (4) any other valid objection to the will’s validity or
                     the probate of the will.
              The executor and all other persons beneficially interested in the
              will shall be made defendants to the action.


      “When an action is brought to contest the validity of any will … notice is

      served upon the defendants in the same manner as required by the Indiana

      Rules of Trial Procedure.” Ind. Code § 29-1-7-18(a). This includes issuing

      summonses to all interested parties. See Ind. Trial Rules 3 & 4(A).


[7]   It has long been established that a “proceeding to contest a will is a statutory

      action; it may be filed only within the time and upon grounds prescribed by the

      statutes.” Matter of Niemiec’s Estate, 435 N.E.2d 999, 1001 (Ind. Ct. App. 1982).

      Although Appellants acknowledge this, they claim that their failure to timely

      issue the summonses was not grounds for dismissal. In support, they cite to

      Milligan v. Denham, 553 N.E.2d 1265 (Ind. Ct. App. 1990). In Milligan, the

      plaintiffs filed a timely will contest and provided the necessary summonses to

      the court. 553 N.E.2d at 1266. Service was to be completed by the sheriff,

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018   Page 4 of 6
      who, for some reason, failed to complete service within the statutorily-

      mandated timeframe. Id. On appeal, we found that the trial court erred in

      dismissing the action because the lack of service was of no fault of the plaintiffs.

      Id. Unlike in Milligan, however, the failure to serve Appellees with the

      summonses was the fault of Appellants’ attorney. Such a distinction is

      especially relevant because it demonstrates that the failure of service was caused

      by negligence on the part of Appellants and their representative, not a third

      party.


[8]   Again, it is undisputed that Appellants failed to serve Appellees with the

      summonses within the time set forth in the will contest statutes. In Blackman,

      we concluded that plaintiff’s failure to comply with the will contest statutes and

      Trial Rules “properly subjected his filing to dismissal.” 46 N.E.3d at 980. We

      reach the same conclusion in this case. The trial court did not err in dismissing

      the Appellants’ will contest.


                                               II. The JAS
[9]   Appellants alternatively contend that even if dismissal was proper, they should

      be permitted to re-file their will contest pursuant to the JAS. The JAS, codified

      at Indiana Code section 34-11-8-1(a)(1), provides that if a plaintiff “fails in the

      action from any cause except negligence in the prosecution of the action,” the

      plaintiff may initiate a new action no later than three years after the failure or

      reversal of the cause of action. “The purpose of the JAS is to provide for

      continuation of a cause of action when a plaintiff fails to obtain a decision on


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018   Page 5 of 6
       the merits for some reason other than his or her own neglect and the statute of

       limitations period expires while the suit is pending.” Blackman, 46 N.E.3d at

       980–81 (emphasis added).


[10]   Appellants do not dispute that under the JAS relief is not available where a

       dismissal resulted from a plaintiff’s negligence in the prosecution of the action.

       In this case, the dismissal resulted from Appellants’ failure to even attempt to

       serve Appellees with the summonses within the statutorily-mandated three-

       month period. Appellants’ only explanation for this failure was that they were

       “partially impeded in issuing the summons, complaint and appearance due to

       the Thanksgiving and Christmas Holidays following the filing of the will

       contest.” Appellees’ App. Vol. II, p. 10. The trial court found that Appellants’

       failure to diligently ensure that Appellees were timely notified of the action

       constituted negligence by Appellants in prosecuting the action. We agree, and,

       as a result, conclude that Appellants are not entitled to relief pursuant to the

       JAS.


[11]   The judgment of the trial court is affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1609 | December 12, 2018   Page 6 of 6
