                                                                           Mar 10 2016, 9:27 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Greg A. Bouwer                                            Benjamin T. Ballou
Koransky, Bouwer, and Poracky, P.C.                       Preston G. Sisler
Dyer, Indiana                                             Hodges and Davis, P.C.
                                                          Merrillville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Stephanie A. Schrage,                                     March 10, 2016
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          45A04-1506-TR-686
        v.                                                Appeal from the Lake Circuit
                                                          Court
The Audrey R. Seberger Living                             The Honorable George C. Paras,
Trust u/t/d April 27, 2009; John                          Judge
R. O’Drobinak as Successor
Trustee; Jack R. Seberger, Mary                           The Honorable Jewell Harris, Jr.,
                                                          Probate Commissioner
Beth Devillez; Jacob Seberger;
Jaclyn Seberger; Amy Devillez;                            Trial Court Cause No.
Jack Devillez; Melissa                                    45C01-1411-TR-13
Contrucci; Adam Devillez; and
Laura Campbell,
Appellees-Defendants.




Brown, Judge.


Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                          Page 1 of 22
[1]   Stephanie A. Schrage (“Schrage”) appeals from orders dismissing her complaint

      pursuant to Ind. Trial Rule 12(B)(6) for failure to properly commence the action

      under Indiana Trial Rules 3 and 4 and for failure to properly docket the Audrey

      R. Seberger Living Trust u/t/d April 27, 2009 (the “Trust”). Her Complaint

      named as defendants the Trust, John R. O’Drobinak, as Successor Trustee,

      Jack R. Seberger, Mary Beth DeVillez, Jacob Seberger, Jaclyn Seberger, Amy

      DeVillez, Jack DeVillez, Melissa Contrucci, Adam Devillez, and Laura

      Campbell (collectively with the Trust and Trustee, the “Appellees”). Schrage

      raises two issues which we consolidate and restate as whether the trial court

      erred in dismissing her complaint. We reverse and remand.


                                          Facts and Procedural History

[2]   The relevant facts are not in dispute. On April 29, 1992, Audrey R. Seberger

      (“Seberger”), as Settlor and initial Trustee, executed the Trust, which she

      amended and/or restated as follows: on October 14, 1996 by a Restatement of

      Trust; on January 27, 1999 by an Amendment to the Restatement of Trust; on

      August 9, 2000, by a Second Amendment to the Restatement of Trust; on

      March 11, 2003, by a Third Amendment to the Restatement of Trust; on

      January 25, 2006, by a Second Restatement of the Trust; on April 27, 2009, by

      a Third Restatement of the Trust; and on August 19, 2009, by an Amendment

      to the Trust.1 O’Drobinak drafted all of the Trust documentation and was




      1
        For our purposes, the term “Trust” refers collectively to the 1992 initial trust document, as well as all
      restatements and amendments listed above.

      Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                             Page 2 of 22
      named the successor trustee in the Trust (the “Trustee”). Seberger died on July

      11, 2014.


[3]   On August 26, 2014, Schrage made a request to the Trustee for a complete copy

      of the Trust, and the Trustee responded by serving her with a Notice to

      Beneficiary and Trust Certification (the “Notice”), pursuant to Ind. Code § 30-

      4-4-5, stating that he was under no obligation to provide a complete copy of the

      Trust to her and providing notice that she had ninety days to contest the

      validity of the Trust. The Notice was dated August 27, 2014, and contained

      “an incomplete and redacted copy of the Third Restatement of the Trust.” 2

      Appellant’s Appendix at 58.


[4]   On November 24, 2014, Schrage filed her Verified Complaint Contesting

      Validity of the Trust and named each of the Appellees, and the next day she

      tendered proper summons for each of the Appellees. On January 22, 2015, the

      Trustee filed a motion to dismiss pursuant to Ind. Trial Rules 12(B)(6) and

      12(B)(7), and most of the trust beneficiaries named in the Complaint filed

      motions to join the Trustee’s motion.3 On February 20, 2015, Schrage filed a

      response in opposition to the motion to dismiss.




      2
       We note that, under cause number 45C01-1410-TR-11, Schrage litigated the issue of whether she was
      entitled to a complete copy of the Trust. The trial court denied her request, and Schrage appealed the court’s
      decision under cause number 45A04-1506-TR-685. By separate decision in that appeal, we affirm the trial
      court’s ruling. Schrage v. In the Matter of the Seberger Living Trust u/t/d April 27, 2009 (filed March 10, 2016),
      Ind. App. No. 45A04-1506-TR-685 (“Cause No. 685”).
      3
       The Trustee also filed a motion for a more definite statement; however, the court did not rule on that
      motion, and such motion is not contained in the record on appeal.

      Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                              Page 3 of 22
[5]   On April 23, 2015, the court held a hearing, and on May 26, 2015, it issued two

      orders. The first order granted the Trustee’s motion to dismiss based upon

      Schrage’s failure to properly commence the action pursuant to the Indiana Trial

      Rules (the “Commencement Order”). The second order granted the Trustee’s

      motion to dismiss for failure to properly docket the Trust (the “Docketing

      Order”). The Commencement Order stated in part:


              12. Ind. Code § 30-4-6-6(a) provides that notice of a complaint
              must be given “to any person or his personal representative who
              is named as a party in a petition or complaint, whose rights may
              be affected or upon whom liability might be imposed by any
              proceeding.” Further, I.C. § 30-4-6-6(b) provides that “[t]he form
              of notice required shall be in the form of a summons as provided
              for in the Indiana Rules of Procedure or in such other form as
              may be ordered or approved by the court.” “[A] plaintiff must
              fulfill all the obligations of Ind. Trial Rules 3 and 4 to commence
              a lawsuit, including an action to contest a will.” Smith v. Estate of
              Mitchell, 841 N.E.2d 215, 219 (Ind. Ct. App. 2006). Ind. Trial
              Rule 3 provides that:


                       A civil action is commenced by filing with the court a
                       complaint or such equivalent pleading or document as
                       may be specified by statute, by payment of the prescribed
                       filing fee or filing an order waiving the filing fee, and,
                       where service of process is required, by furnishing to the
                       clerk as many copies of the complaint and summons as are
                       necessary.


              Accordingly, in order to properly commence an action under
              T.R. 3, a plaintiff must file with the court a “complaint or such
              equivalent pleading or document as may be specified by statute.”
              Thus, because I.C. § 30-4-6-6(a) sets forth the notice provisions


      Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016    Page 4 of 22
        for trust contests, it must be complied with in order to properly
        commence an action under T.R. 3.


                                               *****


        14. There is no dispute that a proper summons was tendered to
        the named parties in this matter, but Smith also required that the
        plaintiff comply with the will contest statute in order to properly
        commence the action to challenge the will. This case, like Smith,
        involves notice provisions under a similar statute, I.C. § 30-4-6-
        6(a). In the Complaint, Schrage names [the] Trustee, the Trust,
        and the following Trust beneficiaries as defendants: Jack R.
        Seberger, Mary Beth DeVillez, Jacob Seberger, Jaclyn Seberger,
        Amy DeVillez, Jack DeVillez, Melissa Contrucci, Adam
        DeVillez, and Laura Campbell. However, like Smith, the
        Complaint fails to name, or even specify, the party or parties
        upon whom liability might be imposed, as is required by I.C. §
        30-4-6-6(a). When read in its entirety and considered in the
        context of the action alleged by Schrage, I.C.§ 30-4-6-6(a)
        requires Schrage to not only name parties whose rights may be
        affected (i.e. the Trust beneficiaries), but also to name parties
        upon whom liability may be imposed. Moreover, as in Smith, the
        Clerk of the Court did not serve a copy of Schrage’s Complaint
        and summons on any such individuals prior to the expiration of
        the 90-day period pursuant to I.C. § 30-4-6-14. These defects are
        fatal to Schrage’s Complaint under Smith as Schrage’s Complaint
        failed to properly commence the action under T.R. 3 and T.R. 4,
        and the ninety (90) day period for contesting the validity of the
        trust in I.C. § 30-4-6-14 has since expired.


        15. Schrage argues that the time limitation in which to challenge
        the Trust has not begun because [the Trustee] has refused to
        produce a complete and unredacted copy of the Trust. The
        timing and requirements for contesting the validity of a trust are
        as follows:

Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016     Page 5 of 22
                 (a) A person must commence a judicial proceeding to
                 contest the validity of a trust that was revocable at the
                 settlor’s death within the earlier of the following:


                          (1) Ninety (90) days after the person receives from
                          the trustee a copy of the trust certification and a
                          notice informing the person of:


                                  (A) the trust’s existence;


                                  (B) the trustee’s name and address; and


                                  (C) the time allowed for commencing the
                                  proceeding.


                          (2) Three (3) years after the settlor’s death.


        I.C. § 30-4-6-14(a). Ind. Code § 30-4-6-14(a) is clear and
        unambiguous and does not require that a complete and
        unredacted copy of the trust be provided. It merely requires that
        a trust certification and notice be provided in order to trigger
        commencement of the 90-day period. In her Response in
        Opposition to Motion to Dismiss, Schrage admitted receiving the
        trust certification and notice pursuant to I.C. § 30-4-4-5.
        Therefore, Schrage’s citation to In re Waterfield, 960 N.E.2d 800
        (Ind. Ct. App. 2011) and argument that the statute of limitations
        should be tolled because she exercised due diligence in
        attempting to obtain a complete and unredacted copy of the Trust
        is irrelevant. Schrage argues that somehow a copy of the
        complete and unredacted Trust will disclose that a tort was
        committed. However, it is unclear how the Trust itself would
        disclose that a tort was committed.




Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016        Page 6 of 22
              16. Ind. Code § 30-4-6-14(a) is substantially similar to the will
              contest statute, I.C. § 29-1-7-17. The right to contest a will is a
              statutory right and if the right is not exercised within the
              prescribed time period, it is lost. In re Estate of Brown, 587 N.E.2d
              686, 691 (Ind. Ct. App. 1992) (stating that the time limit in the
              will contest statute “is a statute of repose extinguishing the right,
              rather than a statute of limitation affecting the remedy.”).
              Considering the similarities with I.C. § 29-1-7-17, I.C. § 30-4-6-
              14(a) is looked at as a statute of repose and if the rights under the
              same are not exercised within the prescribed time period, they are
              lost. Here, because Schrage failed to properly commence this
              action, her rights under I.C. § 30-4-6-14(a) are now extinguished.


              IT IS, THEREFORE, ORDERED, ADJUDGED AND
              DECREED by the Court as follows:


              1. [The Trustee’s] Ind. Trial Rule 12(B)(6) Motion to Dismiss for
              failure to properly commence this action under T.R. 3 and T.R. 4
              is hereby GRANTED.


              2. Schrage’s Complaint is hereby dismissed, with prejudice.[4]


      Appellant’s Appendix at 16-20.


[6]   The Docketing Order provided in part:

              12. Under Indiana law, the jurisdiction for all matters arising
              under the Trust Code (I.C. § 30-4-6) is in the court exercising
              probate jurisdiction. I.C. § 30-4-6-1. However, the probate court
              only has continuing jurisdiction of a trust if the settlor expressly




      4
        We note that the probate commissioner recommended this order on May 19, 2015, and the court approved
      the order on May 26, 2015.

      Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                   Page 7 of 22
        provides for such jurisdiction in the terms of the trust itself. I.C.
        § 30-4-6-2. Based on these statutes, and unless otherwise
        provided by the settlor in the trust terms, a court has no
        jurisdiction over a trust.


        13. Jurisdiction is comprised of three elements: (1) jurisdiction of
        the subject matter; (2) jurisdiction of the person; and (3)
        jurisdiction of the particular case. Browning v. Walters, 620
        N.E.2d 28, 31 (Ind. Ct. App. 1993). Jurisdiction of the particular
        case means “the right, authority, and power to hear and
        determine a specific case within that class of cases over which a
        court has subject matter jurisdiction.” Id. A court can have
        subject matter jurisdiction over a class of cases and not have
        jurisdiction over a particular case due to the facts of that case. Id.
        The appropriate means for a challenge to the court’s jurisdiction
        over a particular case is a T.R. 12(B)(6) motion for failure to state
        a claim, not a T.R. l2(B)(l) motion for lack of subject-matter
        jurisdiction. Id.


        14. In this matter, the terms of the Trust do not expressly provide
        for jurisdiction and Schrage has failed to properly docket the
        Trust with the Court to invoke the Court’s jurisdiction over this
        particular case. Merely referencing the Trust in the Complaint is
        not sufficient to properly invoke the Court’s jurisdiction.


        IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED by the Court as follows:


        1. [The Trustee’s] Ind. Trial Rule l2(B)(6) Motion to Dismiss for
        failure to properly docket the Trust is hereby GRANTED.




Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016        Page 8 of 22
              2. Schrage’s Complaint is hereby dismissed, with prejudice.[5]


      Id. at 25-26 (footnote omitted).


                                                   Discussion

[7]   Before addressing Schrage’s arguments, we note that a complaint may not be

      dismissed under Ind. Trial Rule 12(B)(6) for failure to state a claim upon which

      relief can be granted unless it appears to a certainty on the face of the complaint

      that the complaining party is not entitled to any relief. McQueen v. Fayette Cnty.

      Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied. We view

      motions to dismiss for failure to state a claim with disfavor because such

      motions undermine the policy of deciding causes of action on their merits. Id.

      When reviewing a trial court’s grant of a motion to dismiss, we view the

      pleadings in a light most favorable to the nonmoving party, and we draw every

      reasonable inference in favor of that party. Id. We will not affirm a dismissal

      under Ind. Trial Rule 12(B)(6) unless it is apparent that the facts alleged in the

      challenged pleading are incapable of supporting relief under any set of

      circumstances. Id.


[8]   We review an issue of statutory interpretation de novo. Chrysler Grp., LLC v.

      Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 124 (Ind. 2012).

      “Clear and unambiguous statutes leave no room for judicial construction.”




      5
       Again, the probate commissioner recommended this order on May 19, 2015, and the court approved the
      order on May 26, 2015.

      Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                   Page 9 of 22
      Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009). But when a statute is

      susceptible to more than one interpretation it is deemed ambiguous and thus

      open to judicial construction. Id. If the statutory language is clear and

      unambiguous, we require only that the words and phrases it contains are given

      their plain, ordinary, and usual meanings to determine and implement the

      legislature’s intent. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind.

      2008), reh’g denied. If a statute is susceptible to multiple interpretations, we

      must try to ascertain the legislature’s intent and interpret the statute so as to

      effectuate that intent. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind. 2002). We

      presume the legislature intended logical application of the language used in the

      statute, so as to avoid unjust or absurd results. Id. A statute should be

      examined as a whole, avoiding excessive reliance upon a strict literal meaning

      or the selective reading of individual words. Mayes v. Second Injury Fund, 888

      N.E.2d 773, 776 (Ind. 2008).


                                       A. Commencement of Action

[9]   We first address the trial court’s dismissal of Schrage’s Complaint on the

      grounds that the Complaint did not satisfy Ind. Code § 30-4-6-6(a). A plaintiff

      commences a civil action pursuant to Ind. Trial Rule 3 by “filing with the court

      a complaint or such equivalent pleading or document as may be specified by

      statute . . . .” Ind. Code § 30-4-6-5, titled “Pleadings,” provides that

      proceedings under Indiana’s trust code “may be initiated on either a petition or

      complaint and upon notice as provided in 30-4-6-6,” and Ind. Code § 30-4-6-

      6(a) provides:

      Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016   Page 10 of 22
               Notice must be given to any person or his personal representative
               who is named as a party in a petition or complaint, whose rights
               may be affected or upon whom a liability might be imposed by
               any proceeding; to the Attorney General if the trust is for a
               benevolent public purpose; and to any other person whom the
               court may order to be given notice.


[10]   Schrage argues that she properly listed the Trust, the Trustee, and all other

       Trust beneficiaries as defendants and gave them proper notice and that granting

       a motion to dismiss at this stage is inappropriate. She maintains that, “by

       listing the Trust, Trustee and all other beneficiaries, who are the only known

       persons at this time upon whom liability might be imposed to her knowledge,”

       she served every person identified in Ind. Code § 30-4-6-6. Appellant’s Brief at

       8. She asserts that “[t]he phrases ‘whose rights may be affected’ and ‘upon

       whom liability might be imposed’ describe the same group of persons,” and to

       the extent she may have missed naming certain persons it is the result of the

       Trustee providing only a redacted copy of the Trust. Id. Schrage argues that

       the statute uses the word “or” to connect the first three subgroups, that

       accordingly the legislature meant that she “only needed to notify one of those

       groups,” and that in fact she “covered each of the subgroups in the Verified

       Complaint.” Id. at 9. She also argues that Estate of Mitchell is inapplicable

       because the plaintiff in that case failed to name any defendants, and notes that

       she asserted in her Complaint that a presumption of fraud on the Trustee’s part

       exists which shifts the burden to the Trustee and that, in any event, “the failure

       to plead fraud with specificity allows a party to file an amended complaint to

       cure the lack of specificity.” Appellant’s Reply Brief at 3. She maintains that

       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016   Page 11 of 22
       the requirement to name all possible tortfeasors is not found in the trust code

       and that, indeed, “if it is found that Mrs. Seberger suffered from dementia that

       voids certain amendments, no tortfeasor may even exist.” Id.


[11]   The Appellees argue that the plain meaning of Ind. Code § 30-4-6-6(a) requires

       that Schrage provide notice to all persons falling into each of the three

       subgroups, and she did not name or specify in her Complaint parties upon

       whom liability might be imposed, i.e., alleged tortfeasors. They state that “[b]y

       not including allegations of those persons upon whom liability might be

       imposed, Schrage necessarily fails to provide the required notice.” Appellees’

       Brief at 6. The Appellees further argue that Schrage’s Complaint does not

       comply with Ind. Trial Rule 9(B) because she did not plead time, place, and/or

       substance of any false representation or the facts misrepresented, and she did

       not identify what was procured by the alleged fraud. They note that Schrage’s

       argument that a presumption of fraud arose because the Trustee also served as

       the settlor’s attorney and drafted the Trust is without merit. The Appellees also

       assert that Ind. Code § 30-4-6-14(a), the trust contest statute, is a statute of

       repose, and that because Schrage failed to properly commence this action under

       Ind. Code § 30-4-6-6(a) in the prescribed time period provided by Section 14(a),

       her rights are now extinguished.


[12]   As noted, in evaluating a motion to dismiss we view the pleadings in a light

       most favorable to the nonmoving party, and we draw every reasonable

       inference in favor of that party. It is undisputed that Schrage named each of the

       Appellees, which include the Trust, the Trustee, and each of the Trust’s

       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016    Page 12 of 22
       beneficiaries,6 and the Appellees were each properly served for purposes of Ind.

       Code § 30-4-6-6(a). The parties disagree, however, with whether Schrage failed

       to satisfy Section 6 because she did not notify “any person or his personal

       representative . . . upon whom a liability might be imposed . . . .” Ind. Code §

       30-4-6-6(a).


[13]   The trial court and the Appellees relied upon Smith v. Estate of Mitchell, 841

       N.E.2d 215, 219 (Ind. Ct. App. 2006), in reasoning that Schrage failed to

       properly commence her Complaint and that dismissal was appropriate. In

       Smith, following the death of the testator Mitchell, Mattie Smith, who was

       Mitchell’s sister, filed a petition to challenge Mitchell’s will in which the

       petition named no defendants. 841 N.E.2d at 216. Mitchell’s will had provided

       that his estate be held in trust during the lifetime of Smith, that Smith be paid

       the income earned by the trust’s assets on a quarterly basis, and that upon

       Smith’s death the trust would terminate and the assets would be divided equally

       between the James Whitcomb Riley Memorial Association of Indianapolis,

       Indiana, and the Montgomery County Boys and Girls Club of Crawfordsville,

       Indiana. Id. A pretrial conference on the petition was vacated due to lack of a

       proper summons, summons was issued and served on counsel for the

       administration of the Estate, the Estate asked for summary judgment, and the

       court granted the Estate’s motion. Id.




       6
           The Appellees do not assert that a Trust beneficiary was not named in Schrage’s Complaint.


       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                         Page 13 of 22
[14]   On appeal, this Court observed that Ind. Code § 29-1-7-17, which governs will

       contests, provides that “[a]ny 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,” that Ind. Code

       § 29-1-7-18 requires “[w]hen 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,” and that Ind. Trial Rule 4 provides that

       “[t]he court acquires jurisdiction over a party or person who under [the Rules of

       Trial Procedure] commences or joins in the action, is served with summons or

       enters an appearance, or who is subjected to the power of the court under any

       other law.” Id. at 216-217. The court noted that the will was admitted to

       probate on April 26, 2004, that the petition was filed within the three-month

       statutory period on June 11, 2004, but that it “failed to name the executor or

       any interested parties as defendants.” Id. at 217. The court then discussed how

       a summons was eventually issued to the Estate’s counsel but that other

       interested parties, including the Riley Memorial Association and the Boys and

       Girls Club named in the will, were not served. Id. The court ruled that because

       Smith did not tender a summons within the statutorily permitted time period

       and “never filed a complaint or summons that [met] the requirements of I.C. §

       29-1-7-17” by failing to name any defendants, the trial court “never acquire[d]

       jurisdiction over the subject matter of the action.” Id. at 218-219. The court

       held that “the plaintiff had lost the opportunity to file a proper complaint

       because the statutorily prescribed time limit had passed” and affirmed the trial

       court’s grant of summary judgment in favor of the Estate.” Id. at 219.
       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016   Page 14 of 22
[15]   We note that this Court recently discussed Smith and specifically its holding

       that failing to file a proper complaint is jurisdictional, in Blackman v. Gholson

       (filed December 3, 2015), Ind. App. No. 52A02-1412-ES-883, reh’g denied, not

       yet certified.7 In that case, this Court noted that following Smith, the Indiana

       Supreme Court handed down K.S. v. State, 849 N.E.2d 538 (Ind. 2006), which

       “urged courts to cease mischaracterizing mere procedural error as true defects

       in subject matter or personal jurisdiction.” Slip op. at 7 (citing K.S. 849 N.E.2d

       at 542). We observed that “[a] number of subsequent cases likewise have made

       clear that failure to follow statutory guidelines for initiating a particular action

       do[es] not affect subject matter jurisdiction, so long as the action was filed in the

       proper court for such an action.” Id. at 8 (citing Fight Against Brownsburg

       Annexation v. Town of Brownsburg, 32 N.E.3d 798, 805 (Ind. Ct. App. 2015)

       (holding alleged defect in annexation remonstrance signatures did not affect

       subject matter jurisdiction of trial court to consider remonstrance petition). The

       court ruled that “[g]iven the development of the law of jurisdiction beginning

       with K.S., we do not believe that a failure to comply with the statutory

       procedures for initiating a will contest action impacts a trial court’s subject

       matter jurisdiction to consider the petition” and recognized that Smith’s

       statements to the contrary are no longer correct statements of law. Id. We

       nevertheless held that the court properly granted a motion to dismiss the




       7
        We recognize that our opinion in Blackman is not yet certified, but we find its discussion of Smith to be
       helpful in analyzing the issue presented.

       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                          Page 15 of 22
       plaintiff’s will contest action because certain interested parties were not served

       with summonses and thus were not personally served with the will contest, nor

       did the plaintiff pay a filing fee. Id. at 8-9.


[16]   Setting aside the fact that the reasoning in Smith frames the petition’s defect as

       jurisdictional, this case is distinguishable from Smith because, again, Schrage

       named eleven parties, i.e., the Appellees, as defendants in this matter. The

       Appellees do not point to any person that Schrage failed to notify. Rather, they

       simply suggest that certain “alleged tortfeasors” were not notified. Appellees’

       Brief at 5. The Appellees do not cite, and our research does not reveal, any

       previous case in which an Indiana court has dismissed a complaint on this

       basis. Indeed, Schrage’s Complaint states that “[b]ecause [the] Trustee also

       served as Settlor’s attorney and drafted the Trust, there is a presumption that

       certain amendments and restatements to the Trust were obtained by fraud.”

       Appellant’s Appendix at 30. Accordingly, we find that the trial court erred in

       dismissing Schrage’s Complaint under Ind. Trial Rule 12(B)(6) when it ruled

       that Schrage failed to properly commence her action.


[17]   To the extent that the Appellees challenge the specificity of the fraud allegations

       in the Complaint, we briefly address their argument. First, because the court

       dismissed Schrage’s complaint under Ind. Trial Rule 12(B)(6), it did not rule on

       the Appellees’ motion for a more definite statement. However, the Appellees

       argued to the trial court that Schrage failed “to plead with specificity on the

       fraud claim” and cited Ind. Trial Rule 9(B). Transcript at 15. The Appellees

       acknowledged that Schrage would have the opportunity to amend her

       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016   Page 16 of 22
       Complaint in order to plead with more specificity. In her reply brief, Schrage

       argues that she adequately pled fraud in her Complaint because fraud is

       presumed in this case and cites Clarkson v. Whitaker, 657 N.E.2d 139, 144 (Ind.

       Ct. App. 1995), reh’g denied, trans. denied, for the proposition. However, in that

       case defendant Clarkson both drafted the will and was a beneficiary under that

       will. Clarkson, 657 N.E.2d at 144. This Court noted that “[w]hen an attorney

       drafts a will that includes a bequest or provides a benefit to the attorney or one

       of his family members, the will is presumed to be void for undue influence or

       fraud.” Id. There are no allegations that the Trustee is a beneficiary of the

       Trust or that one of the beneficiaries is a family member of the Trustee’s.

       Therefore, the presumption of fraud does not apply. Thus, on remand Schrage

       must amend her complaint and plead her allegations with sufficient specificity. 8


                                             B. Docketing of the Trust

[18]   We next address the court’s dismissal of Schrage’s Complaint on the basis that

       a complaint contesting the validity of a trust must be filed in a proceeding

       where first the trust was docketed.9 Schrage argues that the Probate Court has

       jurisdiction over all matters arising under the Trust Code and that “[n]othing in

       the Trust Code requires that the action/proceeding be commenced in a




       8
        We note that as will be discussed below in Part B, the court on remand has the discretion to order that the
       Trust be docketed in this proceeding pursuant to Ind. Code § 30-4-6-7(a) if it makes a determination that it “is
       necessary to the determination of any issue of law or fact in a proceeding . . . .”
       9
        In Cause No. 685, we note our assumption that only a redacted copy of the trust was docketed in that
       cause. Schrage, Ind. App. No. 45A04-1506-TR-685, slip op. at 6 n.3 (March 10, 2016).

       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016                          Page 17 of 22
       docketed trust proceeding.” Appellant’s Brief at 10. She maintains that the

       Trustee’s argument leads to an “absurd result” of forcing interested parties to

       petition the Probate Court to docket a trust in advance of possibly filing an

       action to contest the trust’s validity or sue for breach, in which the court would

       be required to docket a trust within ninety days for situations in which Ind.

       Code § 30-4-6-14 governs. Id. at 11. Schrage also notes that the court’s

       discussion of jurisdiction of a particular case is based on an abolished doctrine.

       She argues that the Probate Court has subject matter jurisdiction and that,

       under Ind. Code § 30-4-6-7, the court “may request that the trust be docketed if

       it is necessary to determine any issue of law or fact within the proceeding.” Id.

       at 12. She also asserts that, to the extent the court may order that the Trust be

       docketed, the Trustee has to date deprived her of a complete copy, the Trustee

       waived the issue by not raising a potential Ind. Trial Rule 9.2(F) issue in his

       first motions, and any amendment under that trial rule would relate back to the

       original filing under Ind. Trial Rule 15.


[19]   The Appellees argue that absent the express provision in a trust that the court

       have continuing jurisdiction over a trust, the court does not have jurisdiction

       over such trust unless it is docketed under Ind. Code § 30-4-6-7. They assert

       that “[t]rust contests are similar to filing claims against an estate in that an

       estate must be opened before any claims can be filed against it.” Appellees’

       Brief at 11.


[20]   The trial court treated Schrage’s failure to docket the trust as jurisdictional. As

       discussed above in Part I, however, the Indiana Supreme Court in K.S. clarified

       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016   Page 18 of 22
       what the requirements are in order to invoke a court’s jurisdiction. The Court

       observed that “[a]ttorneys and judges alike frequently characterize a claim of

       procedural error as one of jurisdictional dimension” but that in fact “Indiana

       trial courts possess two kinds of ‘jurisdiction.’” 849 N.E.2d at 540-541. First,

       “[s]ubject matter jurisdiction is the power to hear and determine cases of the

       general class to which any particular proceeding belongs.” Id. at 540. Second,

       “[p]ersonal jurisdiction requires that appropriate process be effected over the

       parties.” Id. The Court ruled that “[w]here these two exist, a court’s decision

       may be set aside for legal error only through direct appeal and not through

       collateral attack.” Id. It specifically observed that “[o]ther phrases recently

       common to Indiana practice, like ‘jurisdiction over a particular case,’ confuse

       actual jurisdiction with legal error, and we will be better off ceasing such

       characterizations.” Id. The Court explained: “Real jurisdictional problems

       would be, say, a juvenile delinquency adjudication entered in a small claims

       court, or a judgment rendered without any service of process. Thus,

       characterizing other sorts of procedural defects as ‘jurisdictional’

       misapprehends the concepts.” Id. at 542.


[21]   Here, Ind. Code § 30-4-6-1 provides that “[j]urisdiction in this state for all

       matters arising under this article shall be with the court exercising probate

       jurisdiction.” It is undisputed that Schrage’s Complaint was heard by a trial

       court exercising probate jurisdiction. Thus, to the extent that the court’s order

       treated Schrage’s failure to docket the Trust as a matter of jurisdiction rather

       than mere procedural defect, the court erred in that determination.


       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016   Page 19 of 22
[22]   Turning to whether the Indiana Trust Code required Schrage to first docket the

       Trust before bringing a challenge to its validity, we find that the relevant

       statutes plainly provide that she was not. Ind. Code § 30-4-6-7(a), titled

       “Docketing as part of proceeding,” provides that “[i]f it is necessary to the

       determination of any issue of law or fact in a proceeding, the court may direct

       that a copy of the trust instrument, if any, be kept in its records.” (Emphases

       added). Thus, Section 7(a) contemplates that the docketing of a trust

       instrument only occur where it is necessary to determine an issue of law or fact,

       and that the decision whether to docket the trust is within the discretion of the

       trial court.


[23]   Ind. Code § 30-4-6-14 governs the limitations on contesting the validity of a

       trust and provides in relevant part as follows:

               A person must commence a judicial proceeding to contest the
               validity of a trust that was revocable at the settlor’s death within
               the earlier of the following:


                        (1) Ninety (90) days after the person receives from the
                        trustee a copy of a trust certification required by IC 30-4-4-
                        5 and a notice that:


                                 (A) informs the person of the trust’s existence;


                                 (B) states the trustee’s name and address;


                                 (C) states:



       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016     Page 20 of 22
                                         (i) the person’s interest in the trust, as
                                         described in the trust document; or


                                         (ii) that the person has no interest in the trust;
                                         and


                                 (D) states the time allowed for commencing the
                                 proceeding.


                        (2) Three (3) years after the settlor’s death.


       Ind. Code § 30-4-6-14(a).


[24]   Section 14(a) required Schrage to commence her action to contest the validity

       of the Trust within ninety days of receiving the trust certification. The

       Appellees do not dispute that her Complaint was filed within this ninety-day

       timeframe. The court has the discretion to order that the Trust be docketed in

       this proceeding pursuant to Section 7(a). Any failure on the part of Schrage to

       docket the trust did not deprive the trial court of subject matter jurisdiction and

       is not a jurisdictional defect. To the extent that the Appellees argue that this

       action is similar to a will contest, we note that Indiana “caselaw has

       emphasized that a will contest action is separate and distinct from the probate

       of a will, and that it is governed by the Indiana Trial Rules regarding

       commencement of a civil action; it is not treated merely as a pleading within

       the probate action.” Blackman, slip. op. at 9 (citing Avery v. Avery, 953 N.E.2d

       470, 472 (Ind. 2011)). We conclude that the court erred in dismissing Schrage’s

       Complaint for failure to docket the Trust.


       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016          Page 21 of 22
                                                    Conclusion

[25]   For the foregoing reasons, we reverse the trial court’s orders dismissing

       Schrage’s Complaint for failure to state a claim, and we remand for proceedings

       consistent with this opinion.


[26]   Reversed and remanded.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 45A04-1506-TR-686 | March 10, 2016   Page 22 of 22
