                                                                 FILED
                                                            Dec 29 2016, 8:51 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Robert H. Little                                          John K. Morris
Brookston, Indiana                                        Morris Law Office
                                                          Lafayette, Indiana
Derek R. Molter
Jenny R. Buchheit                                         Karl L. Mulvaney
Ice Miller LLP                                            Nana Quay-Smith
Indianapolis, Indiana                                     Bingham Greenebaum Doll LLP
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

H.S.,                                                     December 29, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          79A05-1604-GU-776
        v.                                                Appeal from the Tippecanoe
                                                          Circuit Court
W.P.,                                                     The Honorable Thomas H. Busch,
Appellee-Respondent                                       Judge
                                                          Trial Court Cause No.
                                                          79C01-1512-GU-130



Baker, Judge.




Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016            Page 1 of 9
[1]   H.S. (Granddaughter) appeals the judgment of the trial court, which dismissed

      her guardianship petition regarding W.P. (Grandfather). The trial court found

      that Granddaughter’s petition was precluded by the doctrine of res judicata

      because a previous case filed by J.C.P.—her uncle and Grandfather’s son—

      under the trust code was dismissed with prejudice. The trial court also found

      that Granddaughter’s petition violated a local court rule. We find that there is

      no evidence that Granddaughter influenced J.C.P.’s decision to dismiss his own

      case and that, therefore, the doctrine of res judicata cannot be fairly applied to

      preclude her petition. Moreover, Granddaughter did not violate the local court

      rule. Accordingly, we reverse and remand with instructions to vacate the order

      dismissing her case and for further proceedings.


                                                     Facts
[2]   In 1996, Grandfather and M.P. (Grandmother) (collectively, Grandparents)

      established a trust of which they were settlors, trustees, and primary

      beneficiaries. Their three sons—M.L.P., W.K.P., and J.C.P.—were the

      residual beneficiaries, and M.L.P. and J.C.P. were set to be the successor

      trustees. In July 2014, Grandfather amended the trust to make M.L.P. the sole

      successor trustee.


[3]   On August 27, 2014, J.C.P. filed a petition requesting that Grandfather and

      M.L.P. be replaced by a corporate trustee. Granddaughter, who is the daughter

      of W.K.P. and a contingent beneficiary of the trust, was notified and

      summonsed as an interested party, but did not join the lawsuit as a party.


      Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 2 of 9
      J.C.P. also requested an accounting of the trust and a preliminary injunction,

      alleging that M.L.P. and M.L.P.’s wife were exercising undue influence over

      Grandparents and were self-dealing out of trust assets. Shortly thereafter,

      Grandmother passed away, making M.L.P. a co-trustee with Grandfather.


[4]   After hearing testimony, the trial court on October 6, 2014, granted J.C.P.’s

      motion for a preliminary injunction. The trial court noted that Grandfather

      suffered from dementia, and it stated, “During the course of the hearing in this

      matter, [Grandfather] became irrational and disoriented and stormed around

      the courtroom yelling and left the courtroom and had to be restrained by a

      deputy.” Appellant’s App. p. 48. Moreover, he “confused his children’s

      names, was unsure who or when people contacted him, exhibited confusion

      about his affairs and total reliance on [M.L.P.] and his attorney.” Id. at 49.

      After finding that M.L.P. was using Grandfather’s confusion to sow discord in

      the family, the trial court concluded that J.C.P. had made the requisite

      showings to establish a reasonable likelihood of successfully proving that

      M.L.P. was exercising undue influence over Grandfather and was using this

      influence to gift himself trust resources. Grandfather and M.L.P. appealed this

      order, but we remanded before issuing any opinion so that more evidence could

      be taken on the matter.


[5]   The trial court set a trial for June 23, 2015. Although Granddaughter did not

      join the case as a party, she did provide deposition testimony. A week before

      the trial, however, J.C.P. filed a motion to dismiss his own case, citing the

      emotional and financial toll the case was having on the family, and contending

      Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 3 of 9
      that he would not be able to attend the trial. After a hearing on the motion, the

      trial court dismissed the case, ordering J.C.P. to pay attorney fees. There is no

      evidence in the record that Granddaughter had notice of this motion or the

      hearing, which she did not attend.1


[6]   On December 4, 2015, Granddaughter filed a petition to establish a

      guardianship over Grandfather. She alleged that Grandfather was “an

      incapacitated person [] incapable of managing his business and property

      because of, inter alia, the undue influence of others.” Appellant’s App. p. 12.

      W.K.P. and J.C.P. consented to the guardianship, but M.L.P. did not. On

      December 15, Grandfather filed a motion to dismiss Granddaughter’s petition,

      and M.L.P. joined Grandfather’s motion to dismiss.


[7]   After holding a hearing and receiving briefs on the issue, the trial court granted

      Grandfather’s motion to dismiss on March 9, 2016. First, it found that

      Granddaughter’s claims were res judicata, based on the earlier probate case that

      was dismissed with prejudice, and that “[a] contrary finding would permit each

      of the persons interested in replacing a trustee or removing a person from

      control of his own assets to come to court in succession to litigate the identical

      claim.” Appellant’s App. p. 9. Second, the trial court found that

      Granddaughter’s petition failed to comply with a local court rule because her




      1
          J.C.P.’s appeal of this case is currently pending.


      Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 4 of 9
      guardianship petition did not include a doctor’s report. Granddaughter now

      appeals.


                                   Discussion and Decision
                                            I. Res Judicata
[8]   Grandfather argues that Granddaughter is precluded from advancing her

      guardianship petition because of J.C.P.’s earlier lawsuit. Grandfather points

      out that a single factual issue, whether M.L.P. is exercising undue influence

      over Grandfather, is central to both cases. Moreover, Granddaughter was sent

      a notice of J.C.P.’s suit; Grandfather argues that she should have joined that

      case as a party or else risk losing her right to pursue a similar claim.


[9]   Grandfather’s argument “compel[s] us to enter the miasmic land of res judicata

      where historic marsh vapors obscure concepts and semantic footing is slippery.”

      State v. Speidel, 181 Ind. App. 448, 451, 392 N.E.2d 1172, 1176 (1979). Res

      judicata, whether in the form of claim preclusion or issue preclusion (also called

      collateral estoppel), aims to prevent repetitious litigation of disputes that are

      essentially the same, by holding a prior final judgment binding against both the

      original parties and their privies. Becker v. State, 992 N.E.2d 697, 700 (Ind.

      2013). The term privity describes the relationship between persons who are

      parties to an action and those who are not parties to an action but whose

      interests in the action are such that they may nevertheless be bound by the

      judgment in that action. Small v. Centocor, Inc., 731 N.E.2d 22, 27-28 (Ind. Ct.

      App. 2000). The term includes those who control an action, though not a party

      Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 5 of 9
       to it, and those whose interests are represented by a party to the action. Id.

       When determining whether a party is precluded from asserting a claim due to a

       previous adjudication, “the prime consideration is whether the party against

       whom the prior judgment is pled had a full and fair opportunity to litigate the

       issue and whether it would be otherwise unfair under the circumstances to

       permit the use of collateral estoppel.” Sullivan v. Am. Cas. Co. of Reading, Pa.,

       605 N.E.2d 134, 138 (Ind. 1992).


[10]   We find that it would be unfair to preclude Granddaughter’s guardianship

       petition under the present circumstances. Grandfather would have a much

       stronger argument if J.C.P.’s case had been fully litigated and not voluntarily

       dismissed; if that had happened, then Grandfather could argue that

       Granddaughter was an individual “whose interests [were] represented by a

       party to the action.” Small, 731 N.E.2d at 28. But we find dispositive the fact

       that there is no evidence that she was notified or had knowledge of J.C.P.’s

       motion to dismiss. In other words, if the doctrine of res judicata precludes

       Granddaughter’s claim, then a motion filed by someone else, without her

       knowledge or control, would act to extinguish all of her present and future

       claims on the issue. This is a conclusion we cannot countenance.


[11]   Grandfather is correct that a case does not have to be argued to its denouement

       to have preclusive effect. For instance, in Small, a son of a decedent filed a

       proposed complaint with the Indiana Department of Insurance as the

       representative of his father’s estate on the grounds that his father’s hospital

       committed negligence, but his case was dismissed by the trial court after he

       Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 6 of 9
       failed to respond to discovery requests. 731 N.E.2d at 25. Four years later,

       Small filed a complaint for damages on his own behalf, again raising the issue

       of his father’s hospitalization and death. Id. We held that, because Small as a

       personal representative of his father and Small as an individual were in privity,

       the first case precluded the second. Id. at 28.


[12]   Unlike Small, whose first case was dismissed due his own action or lack

       thereof, the first case Granddaughter was involved in was dismissed without her

       knowledge, consultation, or control. To find that the doctrine of res judicata

       precludes her guardianship claim in these circumstances would be unfair, and

       the trial court’s decision to grant Grandfather’s motion to dismiss on this basis

       was error.


                                    II. Local Rule 79-PR-8.2
[13]   Tippecanoe County Local Rule of Court 79-PR-8.2 provides as follows:

               In guardianship matters seeking to declare an adult incapacitated
               for any reason, a report or similar statement or document from
               the doctor treating the alleged incapacitated person, or such
               additional evidence as the Court shall require, shall be presented
               to the Court at the time the petition is filed or on the hearing
               date. No determination will be made without a supporting
               medical report or other evidence clearly demonstrating the
               reasons supporting the need for a guardianship.


       Granddaughter did not attach any doctor’s report to her petition, but instead

       argued that the rule did not apply to her petition. Accordingly, the trial court



       Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 7 of 9
       found as an alternative grounds for dismissal that she had not complied with

       the local rule.


[14]   The parties argue over whether this local rule is in conflict with state law and

       therefore outside the authority of the trial court to enforce. We find that even if

       this local rule is valid, the plain language of the rule does not support the trial

       court’s decision to dismiss Granddaughter’s petition.


[15]   The rule’s explicit language contemplates the admission of a doctor’s report “at

       the time the petition is filed or on the hearing date.” Local Rule 79-PR-8.2

       (emphasis added). A litigant reading the rule would have no notice that failure

       to include a doctor’s report with the petition would result in dismissal. At

       most, the rule could be read to permit a trial court to order a litigant to produce

       such a report before holding a hearing; if the party did not comply with the

       court order, then perhaps the petition could be dismissed on that basis. See, e.g.,

       Ind. Trial Rule 9.2 (requiring a pleading based on a written instrument to

       include that instrument, but instructing that non-compliance with the rule only

       permits the trial court to “order compliance, the reasons for non-compliance to

       be added to the pleadings, or allow the action to continue without further

       pleading”). Moreover, the rule also does not only refer to doctor’s reports, but

       also “such additional evidence as the Court shall require.” In the absence of

       any court order specifying what evidence the trial court would like to see, a

       litigant cannot fairly have her case dismissed for failure to comply with the rule.

       Because the trial court never ordered Granddaughter to produce the report

       contemplated in the local rule, or any other evidence, the alleged non-

       Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 8 of 9
       compliance with the local rule cannot be a valid basis for dismissing her

       petition.


[16]   The judgment of the trial court is reversed and remanded with instructions to

       vacate its March 9, 2016, order and for further proceedings.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 79A05-1604-GU-776 | December 29, 2016   Page 9 of 9
