MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                        Jun 28 2016, 8:36 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Mark K. Phillips                                         Max E. Fiester
Phillips Law, P.C.                                       Bradley J. Salmon
Boonville, Indiana                                       Terrell, Baugh, Salmon & Born,
                                                         LLP
                                                         Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Connie Duty, Coleen Grayson,                             June 28, 2016
and Frank Riffert,                                       Court of Appeals Case No.
Appellants/Plaintiffs/Cross-Appellees,                   87A01-1510-TR-1815
                                                         Appeal from the Warrick Circuit
        v.                                               Court
                                                         The Honorable Greg A. Granger,
The Estate of Hazel A.                                   Judge
Geiselman, Deceased; Jane Ann                            Trial Court Cause No.
Hamby, Individually; Jane Ann                            87C01-1404-TR-48
Hamby, as Personal
Representative of the Estate of
Hazel A. Geiselman; and Jane
Ann Hamby, as Trustee of the
Hazel A. Geiselman Revocable
Declaration of Trust Agreement,




Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016             Page 1 of 13
      Appellees/Defendants/Cross-

      Appellants.




      Bradford, Judge.



                                          Case Summary
[1]   Appellants/Plaintiffs/Cross-Appellees Connie Duty, Coleen Grayson, and

      Frank Riffert (collectively, “Appellants”) appeal the trial court’s award of

      summary judgment in favor of Appellees/Defendants/Cross-Appellants the

      Estate of Hazel A. Geiselman (the “Estate”) and Jane Ann Hamby,

      individually and in her position as personal representative of the Estate

      (collectively, “Appellees”). Appellees argue on cross-appeal that the trial court

      erred in denying Hamby summary judgment in her additional position as

      trustee of the Hazel A. Geiselman Revocable Declaration of Trust Agreement

      (“the Trust”). Concluding that the trial court’s award of summary judgment in

      favor of the Estate and Hamby, individually and in her position as personal

      representative of the Estate, was proper but that Hamby was also entitled to

      summary judgment in her additional position as trustee of the Trust, we affirm




      Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 2 of 13
      in part, reverse in part, and remand to the trial court with instructions to enter

      summary judgment in favor of Hamby in her position as trustee of the Trust.



                            Facts and Procedural History
[2]   Hazel Geiselman (“Decedent”) executed the Trust on September 5, 2002.

      Pursuant to the terms of the Decedent’s will and the terms of the Trust, the

      assets of Decedent’s Estate were to be distributed according to the terms of the

      Trust. Appellants are three of Decedent’s nieces and nephews and are listed

      among the beneficiaries of the Trust. Since executing the Trust in 2002,

      Decedent has amended the Trust on numerous occasions. On April 29, 2013,

      Decedent amended the Trust documents to change each of the Appellants’

      interests in the Trust from a 1/9 percentage to a flat $10,000.


[3]   Decedent died on July 24, 2013. After Decedent’s death, Appellants filed the

      underlying lawsuit challenging the validity of Decedent’s April 29, 2013

      amendment to the Trust documents. Appellees subsequently filed a motion for

      summary judgment, arguing that no issues of material facts remained and that

      they were entitled to judgment as a matter of law. Appellees also filed

      designated evidence in support of their motion for summary judgment.

      Appellants failed to timely respond to Appellees’ motion for summary

      judgment.


[4]   After failing to timely respond to Appellees’ motion for summary judgment,

      Appellants filed a motion for emergency relief, blaming their failure to file a


      Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 3 of 13
      timely response to Appellees’ motion for summary judgment on a medical

      emergency suffered by a paralegal who worked in their counsel’s office.

      Appellants asserted that due to the paralegal’s medical emergency, they should

      be permitted permission to belatedly file their response to Appellees’ motion for

      summary judgment.1 The trial court subsequently denied Appellants’ request

      for emergency relief and for permission to file a belated response to Appellees’

      motion for summary judgment.


[5]   On July 17, 2015, the trial court issued an order granting summary judgment in

      favor of the Estate and Hamby, individually and in her position as personal

      representative of the Estate. The trial court denied summary judgment for

      Hamby in her position as trustee for the Trust. Appellants then filed a motion

      to correct error. Appellants’ motion to correct error was subsequently denied.

      This appeal follows.



                                 Discussion and Decision
[6]   Initially, we note that Appellants tendered a defective Appendix. Appellants

      were notified of the defect contained within their Appendix and of the steps

      necessary to cure said defect. Appellants, however, have failed to take those

      steps. Thus, consistent with the warning given to Appellants in the notice of

      defect issued by the Clerk of this court, Appellants’ Appendix has been marked




      1
        At some point, Appellants also filed a motion to consolidate any challenges to the Estate with
      their challenge to the administration of the Trust. This motion was denied by the trial court.

      Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 4 of 13
      as “received” rather than “filed.” We will therefore not consider any

      information contained in Appellants’ Appendix in our review of the instant

      appeal.


                I. Appellants’ Motions to Consolidate and for
                              Emergency Relief
[7]   Appellants contend that the trial court abused its discretion in denying their

      motions to consolidate and for emergency relief. For their part, Appellees

      contend that the propriety of these motions is not properly before this court on

      appeal. We agree with Appellees.


[8]   Indiana Appellate Rule 9(F) provides that the notice of appeal filed by the

      appealing party shall include the following:


              (3)      Designation of Appealed Order or Judgment.
                       (a)    The date and title of the judgment or order
                       appealed;
                       (b)    The date on which any Motion to Correct Error was
                       denied or deemed denied, if applicable;
                       (c)    The basis for appellate jurisdiction, delineating
                       whether the appeal is from a Final Judgment, as defined
                       by Rule 2(H); an interlocutory order appealed as of right
                       pursuant to Rule 14(A) or 14(D); an interlocutory order
                       accepted for discretionary appeal pursuant to Rule 14(B)
                       or 14(C); or an expedited appeal pursuant to Rule 14.1;
                       and
                       (d)    A designation of the court to which the appeal is
                       taken.


      (Emphasis in original).


      Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 5 of 13
[9]    In the instant matter, the Appellants’ Amended Notice of Appeal specifically

       indicated that Appellants were appealing from the “ENTRY OF SUMMARY

       JUDGMENT.” Amended Notice of Appeal, p. 2. The Amended Notice of

       Appeal further indicated that their Motion to Correct Error had been deemed

       denied after the trial court failed to rule upon the motion within forty-five days.

       The Amended Notice of Appeal did not contain any reference to the trial

       court’s orders denying their motion to consolidate or their motion for

       emergency relief.


[10]   Furthermore, Appellants’ motions to consolidate and for emergency relief were

       denied prior to the entry of summary judgment and did not constitute final

       orders. As such, the trial court’s rulings on these motions should have been

       challenged, if certified,2 in an interlocutory appeal. Appellants did not request,

       much less receive, certification of these orders for interlocutory appeal from the

       trial court and this court did not accept jurisdiction of an interlocutory appeal of

       the trial court’s rulings relating to Appellants’ motions to consolidate or for

       emergency relief.


[11]   Given that Appellants failed to either list the trial court’s orders relating to their

       motions to consolidate and for emergency relief in the Amended Notice of



       2
         The trial court’s orders on Appellants’ motions to consolidate and for emergency relief did not
       qualify as an order to which one is entitled to an interlocutory appeal as a matter of right under
       Indiana Appellate Rule 14(A). See Ind. Appellate Rule 14(A). Appellants, therefore, could only
       have brought an interlocutory appeal from these orders if the trial court certified the orders for
       interlocutory appeal and this court accepted jurisdiction over the requested appeal. See Ind.
       Appellate Rule 14(B).

       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 6 of 13
       Appeal and their failure to seek interlocutory appeal from these orders, we

       conclude that the trial court’s orders relating to Appellants’ motions to

       consolidate and for emergency relief are not properly before this court on

       appeal. As such, we will not review the propriety of these rulings in our

       resolution of the instant appeal.


                            II. Award of Summary Judgment
[12]   Appellants next contend that the trial court erred in granting summary

       judgment in favor of the Estate and Hamby, in her positon as personal

       representative of the Estate.


                                       A. Standard of Review
[13]   Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary

       judgment is appropriate when there are no genuine issues of material fact and

       when the moving party is entitled to judgment as a matter of law. Heritage Dev.

       of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887 (Ind. Ct. App.

       2002).


                “On appeal from the denial of a motion for summary judgment,
                we apply the same standard applicable in the trial court.
                Summary judgment is appropriate only if there is no genuine
                issue as to any material fact and the moving party is entitled to
                judgment as a matter of law. Ind. Trial Rule 56(C). We
                therefore must determine whether the record reveals a genuine
                issue of material fact and whether the trial court correctly applied
                the law. A genuine issue of material fact exists where facts
                concerning an issue, which would dispose of the litigation are in
                dispute, or where the undisputed material facts are capable of

       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 7 of 13
               supporting conflicting inferences on such an issue. If the material
               facts are not in dispute, our review is limited to determining
               whether the trial court correctly applied the law to the undisputed
               facts. When there are no disputed facts with regard to a motion
               for summary judgment and the question presented is a pure
               question of law, we review the matter de novo.”



       Clary v. Lite Machines Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006) (quoting

       Bd. of Tr. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81-82 (Ind. Ct. App. 2002)

       (internal quotation marks and some citations omitted)).

[14]           A party seeking summary judgment bears the burden to make a
               prima facie showing that there are no genuine issues of material
               fact and that the party is entitled to judgment as a matter of law.
               American Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424,
               428 (Ind. Ct. App. 1996). Once the moving party satisfies this
               burden through evidence designated to the trial court pursuant to
               Trial Rule 56, the non-moving party may not rest on its
               pleadings, but must designate specific facts demonstrating the
               existence of a genuine issue for trial. Id.


       Heritage Dev., 773 N.E.2d at 888. “On appeal, the trial court’s order granting or

       denying a motion for summary judgment is cloaked with a presumption of

       validity.” Van Kirk v. Miller, 869 N.E.2d 534, 540 (Ind. Ct. App. 2007), trans.

       denied. However, we are not limited to reviewing the trial court’s reasons for

       granting or denying summary judgment but rather may affirm the trial court’s

       ruling if it is sustainable on any theory found in the evidence designated to the

       trial court. See Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263,

       267 (Ind. 2014) (citing Wagner v. Yates, 912 N.E.2d 805, 811 (Ind. 2009)).

       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 8 of 13
                                                 B. Analysis
[15]   In arguing that the trial court erred in granting summary judgment in favor of

       Appellees, Appellants claim that they are “unsure why the trial court elected to

       strike their Response in Opposition to Summary Judgment and Designation of

       Evidence.” Appellants’ Br. p. 15. The record, however, is clear. Appellants’

       response and designation of evidence was stricken from the record because it

       was not timely filed. In making this claim with respect to the trial court’s

       summary judgment order, Appellants merely re-assert their above-discussed

       claim that the trial court abused its discretion in denying their motion for

       emergency relief. For the reasons stated above, we disagree.


[16]   Further, Appellants claim that their “attempts to bring their issues before the

       trial court were blocked at every turn, requiring the filing of numerous

       pleadings, which, rather than simplify the issues, made them more confusing.”

       Appellants’ Br. p. 19. Review of the record, however, demonstrates that despite

       Appellants’ claim to the contrary, the trial court did not act in a manner so as to

       “block” their attempts to present their case before the court. In fact, nothing

       other than their own failure to comply with the Indiana Rules of Trial

       Procedure and to timely respond to Appellees’ motion for summary judgment

       has negatively impacted their ability to present their position to the trial court.


[17]   Appellants argue that summary judgment was inappropriate because issues of

       material fact remain as to whether (1) the Decedent was of sound mind when

       she amended the Trust documents on April 29, 2013, (2) Hamby asserted

       undue influence over the Decedent, or (3) the Decedent amended the Trust
       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 9 of 13
       documents as a result of duress or fraud. Review of the evidence properly

       designated before the trial court reveals that nothing in the designated evidence

       suggests that, much less creates an issue of material fact as to whether, Hamby

       asserted undue influence over the Decedent or that Decedent amended the

       Trust documents because of duress or fraud.


[18]   With respect to whether the Decedent was of sound mind when she amended

       the Trust documents on April 29, 2013, Appellants argue that summary

       judgment was inappropriate because medical records relating to treatment

       Decedent received between April 16 and April 22, 2013, indicated that

       Decedent’s “comprehension [was] uncertain as she appear[ed] to be confused at

       times.” Appellants’ Reply Br. p. 3. However, medical records relating to

       additional medical treatment Decedent received on April 29, 2013, made no

       mention of any “confusion” and indicated that, at the time she received medical

       treatment, Decedent was alert and exhibited normal speech and neurological

       function. The April 29, 2013 medical records further indicated that during the

       course of her treatment, Decedent did not suffer from any communication

       barrier and was found to be capable of giving her own consent for medical

       treatment and signing a form acknowledging receipt of discharge instructions.


[19]   The fact that Decedent may have exhibited some confusion in the days

       preceding April 29, 2013, without more, falls short of creating an issue of

       material fact as to whether Decedent was of sound mind when she amended the

       Trust documents on April 29, 2013. Appellants’ have failed to designate any

       evidence suggesting that the Decedent’s alleged confusion while receiving

       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 10 of 13
       medical care in the days preceding April 29, 2013, was lasting or significant

       enough to render the Decedent of unsound mind on April 29, 2013. Rather,

       their claim that the Decedent was of unsound mind when she amended the

       Trust documents relies upon speculation, which is insufficient to create a

       material issue of fact. See Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct.

       App. 2008) (providing that mere speculation cannot create questions of fact),

       trans. denied. Appellants’ reliance on speculation seems especially insufficient

       in the instant matter given the fact that on the same day that Decedent executed

       the challenged amendments to the Trust documents, the Decedent was found to

       be mentally capable of giving her own consent for medical treatment and

       signing a form acknowledging receipt of discharge instructions, a fact which

       suggests that the medical personnel found Decedent to be of sound mind when

       they treated her on April 29, 2013. In light of the evidence properly designated

       before the trial court, we conclude that the trial court’s award of summary

       judgment in favor of the Estate and Hamby, individually and in her role as

       personal representative of the Estate, was proper.


             III. Denial of Appellants’ Motion to Correct Error
[20]   Appellants’ last contend that the trial court abused its discretion in denying

       their motion to correct error. “In general, we review a trial court’s ruling on a

       motion to correct error for an abuse of discretion.” City of Indpls. v. Hicks, 932

       N.E.2d 227, 230 (Ind. Ct. App. 2010) (citing Hawkins v. Cannon, 826 N.E.2d

       658, 661 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion occurs

       when the decision is clearly against the logic and effect of the facts and

       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 11 of 13
       circumstances before the court, including any reasonable inferences therefrom.

       Dunno v. Rasmussen, 980 N.E.2d 846, 849 (Ind. Ct. App. 2012).


[21]   We note that given Appellants’ failure to correct the defect in their tendered

       Appendix, we are unable to review the propriety of the trial court’s denial of

       Appellants’ motion as neither Appellants’ motion nor any order or docket entry

       made by the trial court is in the record before us on review. The record that

       was properly filed before this court is devoid of any indication that the trial

       court’s order was clearly against the logic and effect of the facts and

       circumstances before the trial court. As such, we conclude that Appellants have

       failed to establish that the trial court abused its discretion by denying their

       motion to correct error.


                   IV. Cross-Appeal Issue Raised by Appellees
[22]   Appellees contend on cross-appeal that the trial court erred by failing to award

       summary judgment to Hamby in her position as trustee of the Trust. The trial

       court’s order on summary judgment gives no indication why it did not award

       summary judgment to Hamby in her position as trustee of the Trust. As we

       concluded above, no issue of material fact remains as to whether (1) the

       Decedent was of sound mind when she amended the Trust documents on April

       29, 2013, (2) Hamby asserted undue influence over the Decedent, or (3) the

       Decedent acted under duress or fraud when she last amended the Trust

       documents. Given these conclusions coupled with the fact that the trial court

       failed to explain why summary judgment was appropriate for Hamby in her


       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 12 of 13
       position as personal representative of the Estate but not in her position as

       trustee of the Trust, we conclude that Hamby, in her position as trustee of the

       Trust, is entitled to summary judgment.



                                               Conclusion
[23]   In sum, we conclude that the trial court properly granted summary judgment in

       favor of the Estate and to Hamby individually and in her position as personal

       representative of the Estate. We also conclude that summary judgment should

       have been awarded to Hamby in her position as trustee of the Trust. As such,

       we affirm in part, reverse in part, and remand to the trial court with the

       instructions to enter summary judgment in favor of Hamby in her position as

       trustee of the Trust.


[24]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016   Page 13 of 13
