                                                                           FILED
                                                                      Mar 15 2018, 7:33 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Bruce Norman Stier                                        Renee L. Riecke
      Logan & Stier, LLC                                        William A. Ramsey
      Fort Wayne, Indiana                                       Barrett McNagny, LLP
                                                                Fort Wayne, Indiana
      Wilford Allen Hahn
      Matheny Hahn & Denman, LLP
      Huntington, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James R. Cramer,                                          March 15, 2018
      Appellant,                                                Court of Appeals Case No.
                                                                35A05-1704-TR-774
              v.                                                Appeal from the Huntington
                                                                Circuit Court
      Robert J. Edwards,                                        The Honorable Thomas Hakes,
      Appellee.                                                 Judge
                                                                Trial Court Cause No.
                                                                35C01-1602-TR-5



      Barnes, Judge.


                                              Case Summary
[1]   James Cramer appeals the trial court’s grant of summary judgment to Robert

      Edwards, as personal representative of the Estate of Paul H. Cramer and

      Successor Trustee of the Paul H. Cramer Trust (“Edwards”). We affirm.
      Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018                  Page 1 of 9
                                                      Issue
[2]   Cramer raises two issues, which we consolidate and restate as whether the trial

      court properly found that the trustor failed to properly amend her trust.


                                                      Facts
[3]   Deloris Brock had two children, Cramer and Paul Cramer. On February 15,

      2002, Brock, as trustor, executed the Deloris I. Brock Living Trust Agreement

      (“Trust”). The Trust provided:


                                             ARTICLE FOUR


                               AMENDMENT AND REVOCATION


              Section A. Trustor’s Individual Addition Rights. Trustor may,
              during Trustor’s life, by signed instruments delivered to the
              Trustee, add Trustor’s property to the Trust.


              Section B. Trustor’s Rights of Amendment and Revocation.
              During the life of the Trustor, the Trustor may alter, amend, or
              revoke this Trust Agreement, in whole or in part, at any time or
              from time to time by an instrument in writing (other than a will)
              signed and delivered to the Trustee; provided, however, that the
              duties, powers and responsibilities of the Trustee shall not be
              substantially altered or amended without its written consent.
              From and after the death of the Trustor all trusts created herein,
              and this Trust Agreement, shall be unamendable and irrevocable.


      Appellant’s App. Vol. II p. 17. Upon Brock’s death, the Trust provided for

      distribution of the Trust assets as follows: (1) sixty percent to Paul Cramer, and

      (2) forty percent to James Cramer. The Trust also allowed the Trustee to

      Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018      Page 2 of 9
      distribute Brock’s “personal effects” as directed “by a separate written statement

      or list, prepared and signed by the Trustor for that purpose, to those persons

      name[d] therein.” Id. at 18. The Trust defined “personal effects” as “family

      assets . . . of a personal or household nature, such as clothing, jewelry,

      furniture, glassware, silver, works of art, pets, cameras, appliances, consumer

      electronic items and collections.” Id.


[4]   On February 22, 2002, Brock conveyed, by warranty deed, her residence to the

      Trust. On May 12, 2002, Brock also executed a “Separate Writing to the Last

      Will and Testament of Deloris I. Brock and the Brock Revocable Living Trust

      U/D/T/ Dated 2-15-02” (“Separate Writing”).                      The one-page Separate

      Writing provided in full:


              This Separate Writing identifying and disposing of items of
              personal tangible property is made pursuant to the provisions of
              Article Three of my Last Will and Testament dated 2-15-02, and
              I hereby authorize and direct my Personal Representative to
              distribute my personal tangible property listed below as follows:


      Id. at 120. The document then listed several handwritten items of personal

      property and their recipients. It also included the following: “House Lot #3”

      with recipients of “Paul H Cramer J.R. Cramer Right of survivor if not sold.”

      Id.


[5]   Brock died on September 14, 2013. A last will and testament was never

      located. Paul was appointed Trustee, but he died on November 11, 2014.

      Cramer was appointed the successor Trustee. Edwards was appointed as the


      Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018              Page 3 of 9
      personal representative of Paul’s Estate and as First Successor Trustee of the

      Paul H. Cramer Trust.


[6]   On February 29, 2016, Cramer filed a Petition to Docket Trust to Determine

      Interests of Beneficiaries. The petition noted that a dispute existed between

      Cramer and Edwards regarding the validity and construction of the Separate

      Writing. Cramer contended that the house should be distributed to him as “the

      survivor following” Paul’s death. Id. at 11.


[7]   Edwards filed a motion for summary judgment arguing that the Separate

      Writing did “not operate to amend or alter the terms of the Trust” and that

      Paul’s estate and trust were entitled to sixty percent of the value of Brock’s real

      property. Id. at 84. In response, Cramer argued that the Separate Writing was

      an amendment to the Trust and that he was entitled to the real property due to

      the right of survivorship. After a hearing, the trial court granted Edwards’s

      motion for summary judgment. Cramer now appeals.


                                                   Analysis
[8]   The issue on appeal is whether the trial court correctly found that Brock failed

      to properly amend the Trust through the Separate Writing. Summary judgment

      is appropriate only when the moving party shows there are no genuine issues of

      material fact for trial and the moving party is entitled to judgment as a matter of

      law. Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind. 2013); see also T.R. 56(C).

      Once that showing is made, the burden shifts to the nonmoving party to rebut

      it. Schoettmer, 992 N.E.2d at 705-06. When ruling on the motion, the trial court

      Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018    Page 4 of 9
       construes all evidence and resolves all doubts in favor of the nonmoving party.

       Id. at 706. We review the trial court’s grant of summary judgment de novo, and

       we take “care to ensure that no party is denied his [or her] day in court.” Id.


[9]    Brock transferred the real property to the Trust in 2002, and under the Trust, it

       would be distributed as sixty percent to Paul and forty percent to Cramer.

       According to Cramer, Brock properly amended her Trust when she executed

       the Separate Writing, the language of the Separate Writing demonstrates that it

       was an amendment, and he was entitled to receive the property as the surviving

       joint tenancy beneficiary. The interpretation of a trust is a question of law for

       the court. Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind. 2006). The

       primary purpose in construing a trust instrument is to ascertain and give effect

       to the settlor’s intention. Id. at 532. We are not “at liberty to rewrite the trust

       agreement any more than it is at liberty to rewrite contracts.” Malachowski v.

       Bank One, Indianapolis, 590 N.E.2d 559, 565-66 (Ind. 1992).


[10]   For two reasons, we conclude that the trial court properly granted Edwards’s

       motion for summary judgment. First, Brock was permitted to amend the Trust

       if she did so in compliance with the Trust and Indiana Code Section 30-4-3-1.5.

       That statute provides in relevant part:


                        (c)     The settlor may revoke or amend a revocable trust
                                as follows:


                                (1)      The settlor may comply with a method
                                         provided in the terms of the trust.


       Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018      Page 5 of 9
                                (2)      If the terms of the trust do not provide a
                                         method or the terms of the trust provide a
                                         method that is not expressly made the
                                         exclusive method to revoke or amend the
                                         trust, the settlor may revoke or amend the
                                         trust by:


                                         (A)      executing a later will or codicil that:


                                                  (i)     expressly refers to the trust; or


                                                  (ii)    specifically devises property that
                                                          would otherwise have passed
                                                          according to the terms of the
                                                          trust; or


                                         (B)      any other method that:


                                                  (i)     is in writing; and


                                                  (ii)    manifests clear and convincing
                                                          evidence of the settlor’s intent.


       Ind. Code § 30-4-3-1.5(c).


[11]   The Trust provided that the Trustor could amend the Trust, “in whole or in

       part, at any time or from time to time by an instrument in writing (other than a

       will) signed and delivered to the Trustee . . . .” Appellant’s App. Vol. II p. 17.

       Other than requiring the amendment to be in writing, the Trust did not require

       a specific method for amending the Trust. Under Indiana Code Section 30-4-3-



       Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018                 Page 6 of 9
       1.5(c)(2)(B), the amendment was required to “manifest[] clear and convincing

       evidence of the settlor’s intent” to amend.


[12]   Here, the Separate Writing only mentioned the Trust in the heading. The

       actual text of the Separate Writing did not mention the Trust, amending the

       Trust in any way, or the Trustee. In fact, the text only specifically mentions the

       disposal of personal tangible property under the provisions of Brock’s Last Will

       and Testament and authorizes her personal representative to distribute such

       property. The Separate Writing simply did not demonstrate clear and

       convincing evidence that Brock intended to amend the Trust.


[13]   Second, we note that the Trust allowed the Trustee to distribute Brock’s

       “personal effects” as directed “by a separate written statement or list, prepared

       and signed by the Trustor for that purpose, to those persons name[d] therein.”

       Appellant’s App. Vol. II p. 18. However, Indiana Code Section 30-4-2.1-11

       governs such written statements and provides:


                        (a)     A written statement or list that:


                                (1)      complies with this section; and


                                (2)      is referred to in a settlor’s trust that was
                                         revocable during the settlor’s lifetime;


                                may be used to dispose of items of tangible personal
                                property, other than property used in a trade or
                                business, not otherwise specifically disposed of by
                                the trust.


       Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018          Page 7 of 9
                        (b)     To be admissible under this section as evidence of
                                the intended disposition, the writing must be signed
                                by the settlor and must describe the items and the
                                beneficiaries with reasonable certainty. The writing
                                may be prepared before or after the execution of the
                                trust. The writing may be altered by the settlor after
                                the writing is prepared. The writing may have no
                                significance apart from the writing’s effect on the
                                dispositions made by the trust.


                        (c)     If more than one (1) otherwise effective writing
                                exists, then, to the extent of a conflict among the
                                writings, the provisions of the most recent writing
                                revoke the inconsistent provisions of each earlier
                                writing.


[14]   We addressed this statute in Turner v. Kent, 15 N.E.3d 67, 71 (Ind. Ct. App.

       2014), trans. denied, and held:


               The plain language of Indiana Code section 30-4-2.1-11(a)(2)
               permits a trust’s incorporation by reference of specific gifts of
               “tangible personal property.” Because the statute does not
               expressly permit specific gifts of real property, we conclude that
               they are prohibited. This conclusion finds support in the General
               Assembly’s enumeration of “real property” in other provisions of
               the Trust Code. See Ind. Code § 30-4-2-1, (providing specifically
               for “real or personal property”); Ind. Code 30-4-3.5-2(c)(4)
               (providing specifically for “tangible and intangible personal
               property, and real property”); see also Ind. Code § 30-4-3-1.5
               (providing generally for “trust property” and “property”).


       Consequently, such written statements cannot be used to gift real property.

       Even if Brock’s Separate Writing was intended as an amendment to the Trust,


       Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018           Page 8 of 9
       she could not use the Separate Writing to gift her real property. 1 The real

       property must be distributed to the Trust beneficiaries as directed in the Trust.

       The trial court properly granted Edwards’s motion for summary judgment.


                                                   Conclusion
[15]   The trial court properly granted Edwards’s motion for summary judgment. We

       affirm.


[16]   Affirmed.


       Najam, J., and Mathias, J., concur.




       1
         Cramer attempts to distinguish Turner because that case involved an “incorporation by reference” rather
       than an amendment. However, Indiana Code Section 30-4-2.1-11 applies to any such writings, not just
       documents incorporated by reference. We find Turner persuasive here.

       Court of Appeals of Indiana | Opinion 35A05-1704-TR-774| March 15, 2018                          Page 9 of 9
