      MEMORANDUM DECISION                                                        FILED
                                                                            Jan 30 2018, 9:06 am
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                                 CLERK
      Memorandum Decision shall not be regarded as                           Indiana Supreme Court
                                                                                Court of Appeals
      precedent or cited before any court except for the                          and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Ann C. Coriden                                           Jason H. Guthrie
      Coriden Glover, LLC                                      Thomasson, Thomasson, Long &
      Columbus, Indiana                                        Guthrie, P.C.
                                                               Columbus, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In the Unsupervised Estate of                            January 30, 2018
      Raymond F. Handley,                                      Court of Appeals Case No.
                                                               03A04-1703-EU-533
      Gregory Staten, Sr.,
                                                               Appeal from the Bartholomew
      Appellant,                                               Superior Court.

              v.                                               The Honorable James D. Worton,
                                                               Judge.
      Curt Handley,
                                                               Trial Court Cause No.
      Appellee.
                                                               03D01-1605-EU-2968




      Darden, Senior Judge


                                       Statement of the Case
[1]   Gregory Staten, Sr., appeals the trial court’s order finding that he is not an heir

      at law, removing him as personal representative of the Unsupervised Estate of

      Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018         Page 1 of 15
      Raymond F. Handley, and replacing him with Curt Handley, Raymond’s

      brother. We reverse and remand for an evidentiary hearing to determine who
                                                             1
      should serve as personal representative.


                                                         Issue
[2]   Staten raises three issues, one of which we find dispositive and restate as:

      Whether Handley is estopped from arguing that Staten is not Raymond’s

      biological son and thus barred from serving as personal representative.


                                  Facts and Procedural History
[3]   The trial court did not hold an evidentiary hearing, and as a result the following

      background facts are taken from documents filed with the Court and counsel’s

      statements to the Court. Staten was born out of wedlock. Raymond F.

      Handley held Staten out to be his son throughout Staten’s life and named

      Staten’s children as beneficiaries of his investment accounts.


[4]   Raymond died intestate on March 21, 2016. Staten, who was over sixty years

      of age at the time, paid the funeral expenses and maintained Raymond’s

      estate’s assets with his own funds.


[5]   On May 24, 2016, Staten filed a petition to open an unsupervised estate for

      Raymond and to be appointed personal representative of the estate. He

      included an affidavit in which he stated that he was Raymond’s son and heir.




      1
          We held oral argument in Indianapolis on December 18, 2017. We thank the parties for their presentations.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018           Page 2 of 15
      The court granted Staten’s petition and appointed him to serve as personal

      representative of Raymond’s estate in accordance with the statutes governing

      unsupervised estates.


[6]   On June 24, 2016, Curt Handley, who is Raymond’s brother, filed a petition to

      rescind Staten’s appointment and to appoint himself as a successor personal

      representative of the estate. Handley argued Staten should not be allowed to

      serve as personal representative because: (1) Staten is not Raymond’s biological

      offspring; and (2) Staten failed to meet the statutory requirements for an heir

      born out of wedlock. On June 30, 2016, Staten filed an objection to Handley’s

      motion. On July 18, 2016, Staten filed a petition to determine heirship through

      DNA testing at expense to the estate to establish that he is Raymond’s

      biological son. Specifically, Staten asked that DNA samples be taken from

      Raymond’s siblings to be submitted for testing purposes.


[7]   It is understood that the parties discussed the case, with the substance of their

      discussions occurring through a series of emails, as noted. The email exchange

      began shortly after Staten filed his request for DNA testing and stated, in

      relevant part:

              From: Ann Coriden [counsel for Staten]
              Sent: Friday, July 22, 2016 8:50 AM
              To: Jason Guthrie [counsel for Handley]
              Subject: DNA testing

              Jason, I know you’ve been in and out of the office this week and
              just wanted to make sure that you saw this motion that I filed. It
              seemed to make sense to address this while we had the hearing
              scheduled. Let me know if you have any questions.


      Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 3 of 15
        Thanks,
        Ann C. Coriden
        _______________________________________________________


        From: Jason Guthrie
        Sent: Friday, July 22, 2016 9:26 AM
        To: Ann Coriden
        Cc: Alexis Roberts
        Subject: RE: DNA testing
        Ann,
        Thank you for your e-mail. Yes, I did see the motion that you
        filed and I sent it to my client, Curt Handley. He has informed
        me that he has no issues with providing a DNA sample if it will
        prove once and for all if your client is his brother’s son or not. . . .
        I have not thought this completely through at this point but it
        seems to me off the top of my head that the DNA results may
        resolve this matter either in your client’s favor or mine without
        the necessity of a long hearing on the other arguments each of us
        have. Your thoughts?
        Jason H. Guthrie
        _______________________________________________________


        On Jul 22, 2016, at 11:57 AM, Ann Coriden . . . wrote:
        I have a call out to my client to discuss this. I, too, suspect DNA
        testing will resolve the issues in large part. . . .
        Ann C. Coriden
        _______________________________________________________


        From: Ann Coriden
        Sent: Monday, July 25, 2016 1:28 PM
        To: Jason Guthrie
        Cc: Alexis Roberts
        Subject: RE: DNA testing

Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 4 of 15
        Jason, I’ve spoken with my client, and I agree that DNA testing
        could potentially resolve the outstanding issues. With our clients
        in agreement on that point, I don’t think an evidentiary hearing
        will be necessary tomorrow. That said, as I understand it, there
        is still an issue regarding who would serve as the personal
        representative in the meantime. . . .
        I’ve done some research into DNA testing, and this facility has a
        turnaround time of about a week. [URL omitted.] If you have
        another facility that you prefer, let me know.
        Thanks,
        Ann Coriden
        _______________________________________________________


        From: Jason Guthrie
        Sent: Monday, July 25, 2016 1:37 PM
        To: Ann Coriden
        Cc: Alexis Roberts
        Subject: RE: DNA testing
        Ann,
        I do not have a different facility that I would prefer using. I will
        basically just need to know what my client will need to do. Am I
        safe then in not spending time this afternoon to prepare for a long
        hearing tomorrow afternoon? In the week or so amount of time
        that it would take to get the DNA testing done I do not see that
        much would need to be done in the estate. As long as we can
        maintain the status quo for now I think I am ok with that
        provided no major decisions or activities are taken during that
        time.
        Jason H. Guthrie

Appellee’s App. Vol. 2, pp. 2-4 (addresses, phone numbers, and form

confidentiality statements omitted).




Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 5 of 15
[8]   Subsequently, the trial court held a hearing on July 26, 2016. During the

      hearing, Handley allowed Staten to describe their agreement to the court on

      behalf of both parties. Staten explained:

              [Staten]: Um the parties agree at this point to um both to submit
              to DNA testing to confirm the paternity um my client Gregory
              Staten um they uh the parties have agreed that uh we will make
              arrangements uh for that DNA testing and um at this point I
              believe the parties agree that the state [sic] will pay for the DNA
              testing. Um and our, our hope is that will resolve the matters
              contested or raised in um Mr. Handley’s petition to remove the
              personal representative.
              [Court]: And is that agreement of the parties?
              [Handley]: Yes it is your Honor.
              [Court]: And two questions that I have you said the parties
              agreed to DNA testing who specifically is to submit to the DNA
              testing in lieu of the absence of uh Raymond F. Handley’s DNA
              sample?
              [Staten]: Uh without that sample um his brother Mr. Curt
              Handley has agreed to submit to the DNA testing. Um I have
              done some research on that issue and that, that is and [sic] an
              acceptable means for determining paternity.
              [Court]: And then of course the petitioner will also um, uh, uh
              submit himself correct?
              [Staten]: Yes, yes I’m sorry your Honor.
              [Court]: And absence they [sic] payment for it the state [sic] pays
              for it or who pays for it?
              [Staten]: The State [sic] pays for it.
              [Court]: Anything else?
              [Handley]: Not from our end your Honor.
              [Staten]: Actually your Honor just we, we have also discussed in
              the meantime we expect a fairly quick turn around on these

      Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 6 of 15
               DNA results but that in the meantime Mr. Staten will stay on as
               a personal representative um and uh no major decisions will be
               made regarding any of the state [sic] assets at this point.
               [Court]: I assume that’s agreeable?
               [Handley]: Yes your Honor.
               [Court]: Who’s going to prepare the order?
               [Staten]: I have an order in that regard today your Honor.
               [Court]: Present it to us and we’ll get you out of here.

       Tr. pp. 5-6.

[9]    On July 27, 2016, the trial court issued an order stating as follows:

               IT IS THEREFORE ORDERED by the Court that Gregory
               Staten, Sr., and Curt Handley shall submit to DNA testing, at a
               time and place arranged by counsel for the Personal
               Representative.
               IT IS FURTHER ORDERED that the Estate or [sic] Raymond
               Handley will be responsible for the costs associated with the
               DNA tests.
               IT IS FURTHER ORDERED that the parties shall cooperate by
               appearing at the time and place designated and shall take picture
               identification to the test site with them.

       Appellant’s App. p. 29. Handley did not object to the order.


[10]   On September 26, 2016, Staten notified the trial court that DNA testing was

       complete, and the probability that Staten and Handley are biologically related is

       99.98%. Thus, Staten is Raymond’s biological offspring, and Staten moved the

       trial court to deny Handley’s petition to remove Staten as personal

       representative. Staten further informed the trial court that Handley had refused

       to withdraw his challenge to Staten’s appointment as personal representative.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 7 of 15
       The trial court scheduled oral argument. Handley filed a response to Staten’s

       notice, arguing: (1) Handley did not dispute the DNA results and thus

       conceded that Staten was Raymond’s biological offspring; but (2) Handley, not

       Staten, nonetheless was the more appropriate personal representative because

       Staten did not meet the statutory requirements for an heir born out of wedlock.


[11]   After oral argument, the trial court issued an order determining Staten was

       precluded by statute from serving as personal representative of Raymond’s

       estate because he did not meet the statutory requirements for an heir born out of

       wedlock, thus, he is not an heir-at-law and entitled to inherit from Raymond’s

       estate. The trial court removed Staten as personal representative and replaced

       him with Handley. This appeal followed.


                                    Discussion and Decision
[12]   Staten argues the parties agreed that if he was proven to be Raymond’s

       biological child, then Handley would withdraw his challenge to Staten’s

       appointment as personal representative. Staten further asserts that Handley is

       estopped from arguing Staten does not meet statutory requirements for an heir

       born out of wedlock. In response, Handley concedes that the parties agreed to

       submit to DNA testing, and he further concedes that Staten is Raymond’s

       biological son, but he nonetheless argues Staten cannot serve as personal

       representative.


[13]   Staten appeals from a negative judgment. In general, we reverse a negative

       judgment only if the evidence leads to but one conclusion and the trial court

       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 8 of 15
       reached an opposite conclusion. Frye v. Vigo Cty., 769 N.E.2d 188, 192 (Ind. Ct.

       App. 2002). In this case, the parties do not dispute the rather sparse facts.

       Instead, they argue questions of law. We review questions of law de novo.

       Markey v. Estate of Markey, 38 N.E.3d 1003, 1006 (Ind. 2015). In such a

       circumstance, we do not defer to the trial court’s determinations of law. Zoeller

       v. Sweeney, 19 N.E.3d 749, 751 (Ind. 2014).


[14]   Indiana Code section 29-1-10-1 (1997) governs the appointment of personal

       representatives by ranking the possible candidates. For purposes of this appeal,

       the key provision is that an “heir” may qualify, and if there are no heirs, then

       any qualified person may serve. Id.


[15]   Handley argues that the question of whether Staten is Raymond’s heir for

       purposes of Indiana Code section 29-1-10-1 is governed by Indiana Code

       section 29-1-2-7 (2002), which provides in relevant part:

               (b) For the purpose of inheritance (on the paternal side) to,
               through, and from a child born out of wedlock, the child shall be
               treated as if the child’s father were married to the child’s mother
               at the time of the child’s birth, if one (1) of the following
               requirements is met:
               (1) The paternity of a child who was at least twenty (20) years of
               age when the father died has been established by law in a cause
               of action that is filed during the father’s lifetime.
               (2) The paternity of a child who was less than twenty (20) years
               of age when the father died has been established by law in a
               cause of action that is filed:
               (A) during the father’s lifetime; or
               (B) within five (5) months after the father’s death.


       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 9 of 15
               (3) The paternity of a child born after the father died has been
               established by law in a cause of action that is filed within eleven
               (11) months after the father’s death.
               (4) The putative father marries the mother of the child and
               acknowledges the child to be his own.
               (5) The putative father executes a paternity affidavit as set forth
               in IC 16-37-2-2.1.
               (c) The testimony of the mother may be received in evidence to
               establish such paternity and acknowledgment, but no judgment
               shall be made upon the evidence of the mother alone. The
               evidence of the mother must be supported by corroborative
               evidence or circumstances.
               (d) If paternity is established as described in this section, the child
               shall be treated as if the child’s father were married to the child’s
               mother at the time of the child’s birth, so that the child and the
               child’s issue shall inherit from the child’s father and from the
               child’s paternal kindred, both descendants and collateral, in all
               degrees, and they may inherit from the child. The child shall also
               be treated as if the child’s father were married to the child’s
               mother at the time of the child’s birth, for the purpose of
               determining homestead rights and the making of family
               allowances.

       Id.


[16]   Handley cited Indiana Code section 29-1-2-7 in his verified petition to remove

       Staten as personal representative, claiming Staten did not meet the statute’s

       requirements and is not Raymond’s heir. In response, Staten argues that

       Handley is estopped from claiming that Staten is disqualified pursuant to that

       statute because Handley never raised that issue during their negotiations for

       DNA testing or in their agreement.



       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 10 of 15
[17]   By statute, if a personal representative is disqualified from serving, “any person

       interested in the estate” may petition the court to seek removal of the personal

       representative and appointment of a replacement. Ind. Code § 29-1-10-6 (2009).

       By its plain language, the statute permits, but does not require, interested

       persons to object to the continued service of a personal representative. As a

       result, a petitioner may waive a valid challenge to the fitness of a personal

       representative, similar to other rights that may be waived in estate proceedings.

       See, e.g., Haverstick v. Banet, 370 N.E.2d 341, 357 (Ind. 1977) (personal

       representative of estate and the decedents’ heirs may waive physician-patient

       privilege); In re Estate of McNabb, 744 N.E.2d 569, 573 (Ind. Ct. App. 2001) (heir

       waived right to court supervision of the administration of an estate by

       consenting to unsupervised administration); Matter of Estate of Gray, 505 N.E.2d

       806, 809 (Ind. Ct. App. 1987) (party waived right to challenge probate court’s

       jurisdiction over heirship dispute), trans. denied.


[18]   Further, equitable estoppel is “‘[t]he doctrine by which a person may be

       precluded by his act or conduct, or silence when it is his duty to speak, from

       asserting a right which he otherwise would have had.’” Binder v. Benchwarmers

       Sports Lounge, 833 N.E.2d 70, 73 (Ind. Ct. App. 2005) (quoting Black’s Law

       Dictionary 538 (6th ed. 1990)). The purpose of equitable estoppel is to preclude

       a party from asserting a right when he or she has led another to form the

       reasonable belief that a right would not be asserted, and loss or prejudice to the

       other would result if the right were asserted. Sheetz v. Sheetz, 63 N.E.3d 1077,

       1081 (Ind. Ct. App. 2016). A statutory defense such as a statute of limitations


       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 11 of 15
       may be subject to equitable estoppel if the relevant criteria are met. Binder, 833

       N.E.2d at 73.


[19]   The doctrine of equitable estoppel is not limited to circumstances involving an

       actual false representation or concealment of existing material fact. Paramo v.

       Edwards, 563 N.E.2d 595, 598-99 (Ind. 1990). Instead, the party arguing in

       favor of an equitable estoppel must prove conduct of a nature that “prevents

       inquiry, eludes investigation, or misleads the party who claims the cause of

       action.” Farrington v. Alsop, 670 N.E.2d 106, 110 (Ind. Ct. App. 1996).


[20]   With those principles in mind, we turn to the creation of the parties’ DNA

       testing agreement, which is to say their contract, and the terms of the agreement

       itself. The parties’ contract, which was submitted on the record in open court

       without objection, had both written and oral provisions. The trial court’s order,

       which was drafted by Staten and issued by the trial court without objection by

       Handley, stated that the parties agreed to submit to DNA testing for the

       purpose of establishing paternity, to be paid for by the estate. In addition, the

       parties orally agreed that Staten would continue to serve as personal

       representative pending the results of DNA testing, provided he did not make

       any major decisions about the estate’s assets.


[21]   It appears that Handley may have been the first party to suggest during

       negotiations that the DNA testing could completely resolve the parties’ dispute

       without the need to address the parties’ other arguments. He never mentioned

       a defense under Indiana Code section 29-1-2-7 at any time during the parties’


       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 12 of 15
       negotiations or the trial court hearing on the agreement, and he did not

       contradict Staten when Staten informed the trial court that their agreement

       would hopefully resolve the dispute. Rather, we find that Handley and Staten

       negotiated a valid, reciprocal DNA testing agreement. There was a meeting of

       the minds based on offer, acceptance, and consideration.


[22]   Staten agreed to limit his acts as personal representative in exchange for a

       speedier resolution of the dispute. A reasonable person could ask why the

       parties would enter into the DNA testing agreement if both sides were not

       willing to be bound or to act accordingly upon the results to quickly end the

       dispute. Further, it is unclear why Handley would agree to the testing at all if

       he intended to maintain his claim that Staten was disqualified from serving as

       personal representative regardless of whether Staten was proven to be

       Raymond’s son.


[23]   We further note that Staten was not an interloper in Raymond’s estate.

       Raymond had always held out Staten to be his son and even named Staten’s

       children as beneficiaries of some of his accounts. In turn, Staten paid for

       Raymond’s funeral expenses and maintained the estate’s assets out of his own

       pocket. In addition, Staten sought to open Raymond’s estate within a few

       months of Raymond’s death, while Handley did nothing.


[24]   Pursuant to the plain and ordinary language of the parties’ agreement, and the

       circumstances surrounding creation of the agreement, Handley is estopped from

       challenging Staten’s appointment as personal representative on grounds that he


       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 13 of 15
       does not meet the statutory requirements for an heir born out of wedlock, as set

       forth in Indiana Code section 29-1-2-7. See Kroslack v. Estate of Kroslack, 504

       N.E.2d 1024, 1027 (Ind. 1987) (executor estopped from challenging timeliness

       of claim by widow; executor ignored widow’s “sufficient demand” to take a

       surviving spouse’s statutory share). The court erred in granting Handley’s
                                                                                                                2
       request to remove Staten as personal representative pursuant to that statute.

       By stipulation and unrefutable evidence, Staten is Raymond’s biological son

       and an heir at law.


[25]   However, based on the record before us, it appears that Staten and Handley

       may both qualify as “heirs” for purposes of appointment as a personal

       representative under Indiana Code section 29-1-10-1. See Ind. Code § 29-1-1-3

       (a)(12) (2016) (defining “heirs” as “those persons . . . who are entitled under the

       statutes of intestate succession to the real and personal property of a decedent

       on the decedent’s death intestate, . . .”). We thus remand to the trial court to

       determine in light of our opinion who is the most appropriate party to serve as

       personal representative of the estate.




       2
         Staten argues that even if Handley is not estopped from challenging Staten’s status as heir under Indiana
       Code section 29-1-2-7, Staten is nonetheless authorized by statute to continue to serve as personal
       representative. In addition, Staten argues that if he is not authorized by statute to continue to serve as
       personal representative, then Indiana Code section 29-1-2-7 violates his right to due process of law under the
       United States Constitution. We need not address those claims.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018           Page 14 of 15
                                                Conclusion
[26]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings not inconsistent with this opinion.


[27]   Reversed and remanded.


       Najam, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1703-EU-533 | January 30, 2018   Page 15 of 15
