MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                        Dec 30 2016, 5:36 am

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


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
John J. Schwarz, II                                      Robert M. Hamlett
Schwarz Law Office, PC                                   Frank & Kraft, A Professional
Hudson, Indiana                                          Corporation
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Revocable                           December 30, 2016
Living Trust Agreement of                                Court of Appeals Case No.
Joseph W. Dague and the                                  25A05-1602-TR-240
Revocable Living Trust                                   Appeal from the Fulton Circuit
Agreement of Dorothy K.                                  Court
Dague, both dated January 11,                            The Honorable A. Christopher
1994, as amended April 1, 1999,                          Lee, Judge
and May 22, 2001.                                        Trial Court Cause No.
                                                         25C01-1503-TR-22

Jeffrey N. Dague and Judith K.
Uhrich,
Appellants-Respondents,

        v.




Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 1 of 11
      Jean E. Galloway and Joseph E.
      Dague,

      Appellees-Petitioners




      Crone, Judge.


                                             Case Summary
[1]   Jeffrey N. Dague, Judith K. Uhrich, James L. Dague, Jean E. Galloway, and

      Joseph E. Dague (“Joseph E.”), are siblings and remainder beneficiaries of their

      parents’ trusts. The trusts named Jeffrey and Judith as trustees (“Trustees”) and

      directed that after both parents died, the family farm be leased to James to farm

      for a period of five years, after which it could be sold and the proceeds equally

      distributed to the beneficiaries. The siblings disagreed as to when the five-year

      period expired. A little over four years after their mother died, Jean and Joseph

      E. (“Petitioners”) filed a petition to docket the trusts. When an agreement as to

      the expiration of the five-year period could not be reached, Petitioners filed a

      motion for order of sale. The trial court granted the motion and ordered

      Trustees to retain a specific company to sell the farm at a public auction (“the

      Order”).


[2]   Trustees appeal the Order, contending that by ordering them to sell the farm in

      a specific manner, the trial court infringed upon the broad discretion granted to
      Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 2 of 11
      them in the trusts. We agree, and therefore we reverse and remand for further

      proceedings.


                                    Facts and Procedural History 1
[3]   On January 11, 1994, Joseph W. Dague and Dorothy K. Dague each executed

      a revocable living trust agreement, amended on April 1, 1999, and May 22,

      2001 2 (collectively referred to as “the Trust Agreements”), which placed one-

      half of their 503.26-acre farm (“the Dague Farm”) into each trust. Joseph died

      on June 26, 2009, and Dorothy died on February 13, 2011. Pursuant to the

      Trust Agreements, upon the death of both Joseph and Dorothy, Jeffrey and

      Judith became Trustees of both trusts. The Trust Agreements granted Trustees

      the authority “to exercise all the powers in the management of the Trust Estate

      which any individual could exercise in the management of similar property

      owed in its own rights.” Appellants’ App. at 26, 55.




      1
        Both parties’ briefs fail to comply with the Indiana Appellate Rules in several respects. Trustees’ brief does
      not provide any citations to the record in its statement of the case, which is contrary to Appellate Rule
      46(A)(5). Also, Trustees’ brief fails to set forth the statement of the facts in narrative form, which is contrary
      to Appellate Rule 46(A)(6). Petitioners’ brief contains subjective argument in its statement of the case and its
      statement of the facts, which is contrary to Appellate Rule 46(A)(6) and -(7). See also New v. Pers.
      Representative of Estate of New, 938 N.E.2d 758, 765 (Ind. Ct. App. 2010) (statement of facts section of
      appellant’s brief shall neither omit relevant facts nor contain subjective argument), trans. denied (2011). In
      addition, Petitioners’ brief fails to support numerous factual assertions with citations to the record and
      includes factual assertions that are irrelevant to the issues presented and have not been subject to an
      evidentiary determination. Trustees request in their reply brief that we strike or ignore Petitioners’
      unsupported, irrelevant factual assertions, and they provide a list of thirteen of these. Appellants’ Reply Br.
      at 5-6. We will ignore the factual assertions that are irrelevant and unsubstantiated. However, statements
      number 7 and 8 listed on pages five and six of Trustees’ reply brief consist of argument rather than factual
      assertions and are therefore appropriate for our consideration. Finally, both parties’ appendices fail to
      include the date of each item in the table of contents, which is contrary to Appellate Rule 50(C), and
      Petitioners’ appendix includes a copy of the transcript, which is contrary to Appellate Rule 50(F).
      2
          Dorothy’s second amendment was executed on July 9, 2001.

      Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016              Page 3 of 11
[4]   Joseph’s and Dorothy’s second amendments to the Trust Agreements (“the

      Second Amendments”) directed Trustees to administer the Dague Farm as

      follows:

              The [Dague Farm] shall be retained in trust for the benefit of
              Settlor’s children for a period of five (5) years. During that time
              period, the [Dague Farm] shall be crop-leased to Settlor’s sons
              [sic] James L. Dague and/or his son Andy Dague on the basis of
              the existing lease rates for similar land in the county for each
              growing season with the net lease payments paid out in equal
              shares to Settlor’s children per stirpes. After said five (5) year
              period, the [Dague Farm] may be sold and the net proceeds
              divided between and among Settlor’s children in equal shares,
              share and share alike, per stirpes unless all beneficiaries of the
              sale agree to continue the leasing of the farm on a year-to-year
              basis.


      Id. at 43-44, 72-73. The Second Amendments further provided that the “rest

      residue and remainder of the trust estate shall be distributed to Settlor’s

      children,” Jeffrey, Judith, James, Jean, and Joseph E. Id. at 44, 73.


[5]   From 2011 through 2015, James leased the Dague Farm each crop year. In

      May 2015, Petitioners filed a petition to docket trusts and a petition for

      accounting, removal of Trustees, and appointment of successor trustees. The

      trial court entered an order authorizing the docketing of trusts and an order on

      petition to require accounting. Trustees filed a statement of accounts pursuant

      to Indiana Code Section 30-4-5-13 (governing the content of statements of

      accounts filed with the court), and a supplemental accounting.




      Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 4 of 11
[6]   In August 2015, Petitioners filed a petition for instructions and an objection to

      accounting. In their petition for instructions, Petitioners asserted that Trustees

      had failed to provide them with a copy of Joseph’s Second Amendment, and

      they argued that if Joseph had not executed the Second Amendment, then

      Trustees should have sold Joseph’s half of the Dague Farm immediately

      following Dorothy’s death. Petitioners also argued that if Joseph had executed

      the Second Amendment, then the five-year period provided for James to lease

      the Dague Farm would expire on February 13, 2016. Petitioners asked the trial

      court to enter an order instructing Trustees to “immediately place the [Dague

      Farm] for sale in a commercially reasonable manner” with the closing to take

      place after January 1, 2016, and before March 1, 2016. Id. at 80.


[7]   In September 2015, Petitioners filed a supplement to their petition for

      instructions, asserting that Trustees’ counsel had informed them that “no

      [S]econd [A]mendment to the Joseph’s Trust ha[d] been found.” Id. at 82.

      Petitioners again asserted that in the absence of Joseph’s Second Amendment,

      Trustees were required to distribute the assets of Joseph’s trust upon Dorothy’s

      death.


[8]   Trustees filed a motion to dismiss Petitioners’ petition for instructions and

      supplement thereto, arguing that Petitioners lacked statutory authority to

      petition for instructions, that Trustees believed that the five-year retention

      period for the lease of the Dague Farm did not expire until the end of 2016, and

      that Petitioners’ request for instructions as to selling the Dague Farm was



      Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 5 of 11
       premature and infringed upon Trustees’ discretion regarding the management

       and disposition of trust property.


[9]    In September 2015, the trial court heard argument on Petitioners’ petition for

       instructions and Trustees’ motion to dismiss. Apparently, by the time of the

       hearing, Trustees had produced Joseph’s executed Second Amendment, so

       Petitioners abandoned their argument that Trustees were required to sell

       Joseph’s half of the Dague Farm when Dorothy died. However, Trustees and

       Petitioners continued to dispute when the five-year retention period for the

       lease of the Dague Farm to James would expire. Petitioners argued that it

       would expire February 13, 2016, exactly five years after Dorothy’s death.

       Trustees argued that because the Dague Farm was already under lease when

       Dorothy died, the five-year retention period did not begin to run until 2012 and

       would not expire until the end of 2016. In addition, Trustees continued to

       argue that Petitioners had no statutory authority to ask for instructions

       pertaining to the sale of the Dague Farm and that any such instructions were

       premature and infringed upon Trustees’ discretion as to how the farm would be

       sold. At the conclusion of the hearing, the trial court took the matter under

       advisement and ordered the parties to participate in mediation. In November

       2015, the parties participated in mediation but did not reach a settlement.


[10]   On December 2, 2015, Petitioners filed a motion for order of sale, asserting that

       mediation was unsuccessful and that the parties continued to dispute when the

       five-year retention period terminated; that under the plain terms of the Trust

       Agreements, the five-year retention period would end on February 13, 2016;

       Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 6 of 11
       and that Trustees were obligated to sell the Dague Farm after the retention

       period terminated. Petitioners stated that Halderman Real Estate Services, Inc.

       (“Halderman”), and Schrader Real Estate and Auction Co., Inc. (“Schrader”),

       were capable of auctioning the Dague Farm and requested that the trial court

       instruct Trustees to retain Halderman, or Schrader if Halderman was

       unavailable, to auction the Dague Farm on or before February 29, 2016, with

       the net proceeds to be divided in equal shares among the beneficiaries.

       Appellees’ App. at 49-52.


[11]   On December 14, 2015, the trial court entered its Order granting Petitioners’

       motion for order of sale, finding that the five-year retention period ends on

       February 13, 2016, and that the Petitioners’ request that preparations for the

       sale begin before the end of that period is a reasonable request, and concurring

       in Petitioners’ request that Halderman or Schrader be contacted by Trustees.

       The Order then provides, “Trustees are ordered to immediately contact

       [Halderman] to determine its availability to conduct a public auction of the

       [Dague] Farm, including the house, barns and other accessory structures, on or

       before February 29, 2016, and if it is available, to engage Halderman to conduct

       the auction.” Appellants’ App. at 14. The Order also provides that if

       Halderman was not available to sell the farm at public auction, Trustees were to

       contact Schrader.




       Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 7 of 11
[12]   On December 21, 2015, Trustees filed a response and objection to Petitioners’

       motion for order of sale. On December 31, 2015, Trustees filed a motion to

       correct error. 3 The trial court denied the motion to correct error without a

       hearing. On February 1, 2016, Trustees filed a notice of appeal and a motion

       for stay. On April 21, 2016, the trial court issued an order granting Trustees’

       motion for stay and ordered Trustees to continue to manage the Dague Farm

       pending further order.


                                        Discussion and Decision
[13]   Trustees first argue that the trial court erred by considering and granting

       Petitioners’ petition for instructions and failing to grant Trustees’ motion to

       dismiss. The petition for instructions and supplement thereto focused on the

       absence of Joseph’s Second Amendment and the expiration of the five-year

       retention period. The existence of Joseph’s Second Amendment is no longer an

       issue, and Trustees do not challenge the portion of the Order that finds that the

       five-year retention period expired on February 13, 2016. Therefore, we need

       not address Trustees’ argument regarding Petitioners’ petition for instructions

       and turn to the remaining issue raised by Trustees.


[14]   Trustees contend that the trial court improperly infringed upon the discretion

       granted to them under the Trust Agreements by specifically ordering them to




       3
         Neither Trustees’ response and objection to Petitioners’ motion for order of sale nor their motion to correct
       error are included in the record before us.

       Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016            Page 8 of 11
       list the Dague Farm with Halderman to be sold at public auction. We agree.

       In discussing this issue, we begin by noting that

               [s]everal relevant principles guide trustees in the administration
               of a trust unless the language of the trust instrument provides
               otherwise. In particular, the trustee must administer the trust
               according to its terms. Ind. Code § 30-4-3-6(b). Moreover, the
               trustee must preserve the trust property and make it productive
               for both income and remainder beneficiaries. Finally, the trustee
               must administer the trust in a manner that is consistent with the
               Prudent Investor Act, Indiana Code Sections 30-4-3.5-1 through -
               13.


               When we evaluate the actions of a trustee and the trustee has
               been vested with discretion, we will not disturb the trustee’s
               determinations unless there has been an abuse of that discretion.
               Thus, where a trustee determines that it is necessary and proper
               to use trust assets for a certain purpose, we will not interfere unless
               the trustee acted in bad faith or in some way abused or unreasonably
               exercised his discretion.


               In construing a trust instrument, the primary objective is to
               ascertain and carry out the settlor’s intent. If the settlor’s intent is
               clear from the plain language of the instrument and is not against
               public policy, we must give effect to that intent. Indeed, if the
               rules of law and the terms of the trust conflict, the terms of the
               trust shall control “unless the rules of law clearly prohibit or
               restrict the article which the terms of the trust purport to
               authorize.” Ind. Code § 30-4-1-3.


       In re Trust Created Under Last Will & Testament of Stonecipher, 849 N.E.2d 1191,

       1194-95 (Ind. Ct. App. 2006) (emphasis added) (citations omitted).


[15]   Here, the Trust Agreements grant Trustees broad powers:

       Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 9 of 11
               By way of illustration and not of limitation and in addition to
               any inherent, implied or statutory powers granted to trustees
               generally, the Trustee[s are] specifically authorized and
               empowered with respect to any property, real or personal, at any
               time held under any provision of this Trust: to allot, allocate
               between principal and income, assign, borrow, buy, care for,
               collect, compromise claims, contract with respect to, continue
               any business of the Settlor, convey, convert, deal with, dispose
               of, enter into, exchange, hold, improve, incorporate any business
               of the Settlor, invest, lease, manage, mortgage, grant and exercise
               options with respect to, take possession of, pledge, receive,
               release, repair, sell, sue for, to make distributions of divisions in
               cash or in kind or partly in each without regard to the income tax
               basis of such asset, and in general to exercise all the powers in the
               management of the Trust Estate which any individual could exercise in
               the management of similar property owned in its own right, upon such
               terms and conditions as to the Trustee[s] may seem best, and to
               execute and deliver any and all instruments and to do all acts
               which the Trustee[s] may deem proper or necessary to carry out
               the purpose of this Trust, without being limited in any way by the
               specific grants of power made, and without necessity of a court
               order.


       Appellants’ App. at 25-26, 54-55 (emphasis added). Therefore, the Trust

       Agreements provide Trustees with complete discretion in determining the

       manner in which the Dague Farm should be sold.


[16]   We reiterate that “[t]he court may not interfere with [the] discretionary power

       of the trustee in the absence of a showing of fraud, bad faith or an arbitrary

       abuse of such discretion.” State ex rel. Anderson-Madison Hosp. Dev. Corp. v.

       Superior Court of Madison Cty., 245 Ind. 371, 378, 199 N.E.2d 88, 91 (1964); see

       also Bray v. Old Nat’l Bank in Evansville, 113 Ind. App. 506, 517, 48 N.E.2d 846,


       Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 10 of 11
       850 (1943) (“[W]here a trustee is granted discretionary powers the court will not

       substitute its discretion for that of the trustee in the absence of a showing of

       fraud or abuse of discretion.”); Husted v. Sweeney, 113 Ind. App. 418, 427, 48

       N.E.2d 1004, 1008 (1943) (“The courts will not exercise the trustee’s discretion

       for him.”) (citing 3 BOGERT ON TRUSTS & TRUSTEES § 559 at 1787); Robison v.

       Elston Bank & Trust Co., 113 Ind. App. 633, 650-51, 48 N.E.2d 181, 187 (1943)

       (“[W]here a trustee has been vested with discretion he will not be disturbed in

       the reasonable exercise thereof, but where there is a failure to exercise such

       discretion in a reasonable manner the courts will intervene.”) (citing I

       RESTATEMENT OF TRUSTS § 187). Here, there is no evidence that Trustees

       abused their discretion or acted in bad faith or unreasonably in managing the

       trusts that would justify the trial court’s intervention. When the trial court

       issued the Order, the deadline for selling the Dague Farm was two months in

       the future; the Trustees cannot be considered to have acted unreasonably by not

       doing something that they did not yet have a legal obligation to do. We

       conclude that the Order is contrary to the will and desire of Joseph and

       Dorothy, who chose Jeffrey and Judith to be Trustees and granted them

       complete discretion to manage and dispose of the Dague Farm. Accordingly,

       we reverse the Order directing Trustees to retain Halderman or Schrader to sell

       the Dague Farm at public auction and remand for further proceedings.


[17]   Reversed and remanded.


       Kirsch, J., and May, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 25A05-1602-TR-240 | December 30, 2016   Page 11 of 11
