                                                                            FILED
                                                                    Sep 06 2019, 8:17 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Douglas K. Walker                                          Steven J. Scott
Highland, Indiana                                          Benjamin T. Ballou
                                                           Hodges and Davis, P.C.
                                                           Merrillville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James Witham,                                              September 6, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-TR-2914
        v.                                                 Appeal from the Lake Circuit
                                                           Court
Michael G. Steffan, as Personal                            The Honorable Marissa
Representative of the Estate of                            McDermott, Judge
Gerald W. Rogers, et. al.,                                 The Honorable Jewell Harris, Jr.,
                                                           Probate Commissioner
Appellees-Respondents
                                                           Trial Court Cause No.
                                                           45C01-1807-TR-21



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-TR-2914 | September 6, 2019                           Page 1 of 6
[1]   James Witham brings this interlocutory appeal of the trial court’s order granting

      the collective Appellees’ motion to dismiss for failure to state a claim upon

      which relief can be granted. Witham argues that the trial court erred because his

      petition to contest a will was not wrongfully filed and that even if it was

      wrongfully filed, his case should have been transferred rather than dismissed

      with prejudice. We find that the trial court should have treated the matter as a

      motion to dismiss for incorrect venue and transferred it to the appropriate court.

      Accordingly, we reverse and remand with instructions.1


                                                      Facts
[2]   On December 2, 2017, Gerald Rogers, Witham’s cousin, committed suicide.

      Rogers left behind a will, with Michael Steffan as personal representative of

      Rogers’s estate. On February 2, 2018, Steffan submitted all of Rogers’s

      testamentary documents, including the will, for probate to the Lake County

      Superior Court (the Superior Court) in Hammond, which assumed jurisdiction

      over the matter.


[3]   Then, on May 1, 2018, Witham filed a petition to docket trust and contest will

      in the Lake County Circuit Court (the Circuit Court) in Crown Point. On June

      13, 2018, Steffan filed a motion to dismiss Witham’s petition for failure to state

      a claim upon which relief can be granted. Steffan contended that Witham had




      1
       Because we reach our ruling on entirely different grounds, we decline to address the arguments raised by
      Witham.

      Court of Appeals of Indiana | Opinion 18A-TR-2914 | September 6, 2019                            Page 2 of 6
      erroneously filed his petition in the Circuit Court when the Superior Court

      already had subject matter jurisdiction over the probate matter. Steffan argued

      that because Witham had failed to file his petition in the proper court, Witham

      could not attain any relief pursuant to Indiana Code section 29-1-7-17, thereby

      warranting dismissal.


[4]   On July 24, 2018, the Circuit Court transferred this action to the Superior Court

      Probate Commissioner to resolve the matter. Following a hearing, the trial

      court dismissed Witham’s petition with prejudice because he had failed to file

      in the Superior Court. Witham now brings this interlocutory appeal.


                               Discussion and Decision
[5]   Witham’s sole argument on appeal is that the trial court erred when it granted

      Steffan’s motion to dismiss for failure to state a claim upon which relief can be

      granted. Witham contends that his petition to contest will was not wrongfully

      filed and that even if he had filed his petition in the incorrect court, transfer of

      his case was the proper remedy.


[6]   “The standard of review on appeal of a trial court’s grant of a motion to dismiss

      for the failure to state a claim is de novo and requires no deference to the trial

      court’s decision.” Lei Shi v. Cecilia Yi, 921 N.E.2d 31, 36 (Ind. Ct. App. 2010). A

      Trial Rule 12(B)(6) motion to dismiss tests the legal sufficiency of a complaint:

      that is, whether the allegations in the complaint establish any set of

      circumstances under which a plaintiff would be entitled to relief. Id. at 37.


      Court of Appeals of Indiana | Opinion 18A-TR-2914 | September 6, 2019        Page 3 of 6
[7]   From the outset, there is a procedural issue. This case should not have been

      treated as a 12(B)(6) motion to dismiss for failure to state a claim upon which

      relief can be granted. Witham’s petition states a valid claim pursuant to Indiana

      Code section 29-1-7-17, and it is readily apparent that Steffan is not, in fact,

      contesting the substance of Witham’s claim.


[8]   Instead, Steffan contends that Witham filed his petition in the incorrect court—

      the Circuit Court versus the Superior Court. Steffan even references the venue

      provisions of Indiana Code section 29-1-7-17, which state, in pertinent part,

      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 by
              filing in the same court, in a separate cause of action, the person’s
              allegations in writing verified by affidavit[] . . . .


      (Emphases added). Therefore, the main dispute is over the location of the

      lawsuit, not its merits.


[9]   We applaud the Circuit Court judge for transferring Witham’s petition to

      contest the will to the Superior Court’s Probate Commissioner because both

      courts have concurrent jurisdiction over all civil matters. See Ind. Code §§ 33-

      28-1-2, 33-29-1.5-2. Additionally, the Superior Court already had jurisdiction

      over the probate cause. Nevertheless, the Probate Commissioner should have

      recognized Steffan’s error when he based his motion to dismiss on Rule

      12(B)(6). The Probate Commissioner should have treated the matter as a


      Court of Appeals of Indiana | Opinion 18A-TR-2914 | September 6, 2019         Page 4 of 6
       12(B)(3) motion to dismiss for incorrect venue, which states that “[t]he

       disposition of this motion shall be consistent with Trial Rule 75[.]”


[10]   Trial Rule 75(B)(1) states that:


                [w]henever a claim or proceeding is filed which should properly
                have been filed in another court of this state, and proper objection
                is made,[2] the court in which such action is filed shall not then
                dismiss the action, but shall order the action transferred to the
                court in which it should have been filed.


       Pursuant to Indiana Code section 29-1-7-17, Witham should have filed his

       petition to contest the will in the Superior Court, but a transfer to that court is a

       simple solution that requires little, if any, procedural movement. This is

       especially true considering the case had already been transferred to the Superior

       Court to resolve the 12(B)(6) motion. Arkla Indus., Inc. v. Columbia St. Partners,

       Inc., 95 N.E.3d 194, 197 (Ind. Ct. App. 2018) (finding that the court is required

       to transfer case to a preferred venue if a complaint is not filed in a preferred

       venue); see also State ex rel. Ind. State Bd. of Tax Comm’rs v. Ind. Chamber of

       Commerce, Inc., 712 N.E.2d 992, 997 (Ind. Ct. App. 1999).


[11]   Yes, Witham erred when he failed to file his petition to contest the will in the

       proper court. However, it is not as if Witham missed his petition deadline, filed

       in the incorrect county, or even filed in a completely different state. Rather,




       2
        Neither Witham, nor Steffan, nor the trial court cited Trial Rule 12(B)(3) or raised the defense of improper
       venue, which would ordinarily waive the issue. Sanson v. Sanson, 466 N.E.2d 770, 773 (Ind. Ct. App. 1984).
       Nevertheless, we find it draconian to dismiss Witham’s suit with prejudice under these circumstances.

       Court of Appeals of Indiana | Opinion 18A-TR-2914 | September 6, 2019                              Page 5 of 6
       Witham made a simple mistake by filing in the Circuit Court instead of in the

       Superior Court. We find this to be a mistake in venue that mandates immediate

       transfer rather than dismissal with prejudice.


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

       transfer this cause to the Superior Court for further proceedings.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-TR-2914 | September 6, 2019   Page 6 of 6
