Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Aug 20 2013, 5:36 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

C. STUART CARTER                                  JAMES W. HEHNER
Indianapolis, Indiana                             PAMELA K. BENNETT
                                                  Hehner & Associates
                                                  Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

DEBRA BARRETT,                                    )
                                                  )
       Appellant-Plaintiff,                       )
                                                  )
               vs.                                )       No. 54A01-1302-CT-74
                                                  )
KATIE PATTON,                                     )
                                                  )
       Appellee-Defendant.                        )


                     APPEAL FROM THE MONTGOMERY CIRCUIT COURT
                             The Honorable Harry A. Siamas, Judge
                                Cause No. 54C01-0911-CT-392



                                        August 20, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                STATEMENT OF THE CASE

       Debra Barrett1 appeals the trial court’s order denying her “Trial Rule 60(B)

Motion to Set Aside Judgment of Dismissal and Motion to Substitute Party Pursuant to

Trial Rule 25(D)(2)” in this negligence action. We do not reach the merits of Barrett’s

appeal because, as the defendant named in Barrett’s complaint, Katie Patton, correctly

points out, we lack jurisdiction to do so.

       We dismiss.

                         FACTS AND PROCEDURAL HISTORY

       On August 12, 2008, Barrett’s parked car was struck by a car being operated by

Patton. In November 2009, Barrett filed a complaint against Patton alleging negligence.

And in April 2011, Barrett died as a result of causes unrelated to the 2008 car accident.

Barrett’s attorney, C. Stuart Carter, did not move the trial court to substitute a party for

the deceased Barrett pursuant to Trial Rule 25.

       On September 29, 2011, the trial court, sua sponte, reviewed the case and found

that “no action ha[d] been taken herein for more than sixty (60) days.” Appellant’s App.

at 4. Accordingly, the trial court ordered that,

       [p]ursuant to Trial Rule 41(E) of the Indiana Rules of Trial Procedure, the
       court on its own motion now finds that a hearing should be held on October
       31, 2011 at 1:00 p.m. for the parties to have the opportunity to show cause
       why this case should not be dismissed for failure to prosecute. If sufficient
       cause is not shown at or before such hearing, the court will enter an order of
       dismissal pursuant to such rule.




       1
          As we discuss below, Barrett is deceased and there is no appellant in this case. For ease of
discussion, we will refer to Barrett as needed.
                                                  2
Id. at 4-5 (emphasis added). Barrett’s attorney neither filed any response to the show

cause order nor attended the hearing on October 31. Accordingly, on November 1, 2011,

the trial court dismissed the case under Trial Rule 41(E).

       On November 29, 2011, Barrett’s attorney, Carter, contacted Patton’s attorney,

Pamela Bennett, to discuss the dismissal. Carter explained that he had not attended the

hearing because his computer had “crashed” and asked whether Patton would object to a

motion to set aside the dismissal. Appellant’s App. at 58. Bennett responded that she

would confer with her client regarding the request, and Bennett also told Carter that “he

would need to have a personal representative of the estate established before [Patton]

would enter into any settlement negotiations.” Id. Thereafter, on December 22, Carter

informed Bennett that “there was a protracted battle between the decedent’s son and [his]

half[-]sister and no personal representative had been assigned.”        Id.   And Bennett

informed Carter that her client would object to any motion to set aside the dismissal.

       Ten months later, on October 29, 2012, Carter filed a Trial Rule 60(B) Motion to

Set Aside Judgment of Dismissal and Motion to Substitute Party Pursuant to Trial Rule

25(D)(2). In that motion, Carter alleged in relevant part that: he had missed the October

2011 hearing due to “a computer failure that caused substantial disruption” in his

practice; after Barrett’s death, Carter “learned that Ms. Barrett’s son[, Dennis Trent,] was

consulting with counsel to open an estate”; Carter spoke with Trent, who informed Carter

that “no estate had been opened, however, that there had been a purported transfer of

decedent’s real property to Danielle Lowery, an adult daughter of Debra Barrett, and

half-sister to Mr. Trent”; Carter “followed up with Mr. Trent in the Spring and Summer


                                             3
of 2012, and learned that Mr. Trent had consulted with counsel regarding his rights as an

heir to Debra Barrett [sic], and that Mr. Trent was considering his options”; and that

Carter “waited for an estate to be opened by Mr. Trent,” which never happened. Id. at

16-18.

         Carter further alleged that the dismissal should be set aside for “excusable

neglect,” namely, “a complete computer system failure that caused a loss of all

calendaring data.” Id. at 18. And Carter stated that he “has waited for an interested heir

to open an estate, causing a delay in seeking relief from the Court’s judgment of

dismissal.” Id. Finally, Carter alleged that “there is a meritorious claim to be pursued in

this case” as substantiated by a police report attached to the 60(B) motion as an exhibit.

Id. at 19. With respect to Barrett’s motion to substitute a party under Trial Rule 25(D),

Carter alleged only that “the Court may substitute a successor to the decedent in a

pending case when it is established that the opening of an estate is unnecessary” and he

moved the court to substitute Dennis Trent as successor to Barrett for purposes of further

litigation in this case. Id.

         Following a hearing, the trial court denied Barrett’s motion to set aside the

dismissal under Trial Rule 60(B) and stated that it did “not need to reach the issue of

whether to substitute [Trent] into the lawsuit.” Id. at 9B. This appeal ensued.

                               DISCUSSION AND DECISION

         We do not reach the merits of Barrett’s appeal because no one has been substituted

as a party on Barrett’s behalf to date. As this court has observed, “[a]n appeal is

authorized only by ‘a person[.]’” Estate of Gordon v. Nicholson, 132 Ind. App. 94, 174


                                              4
N.E.2d 56, 57 (1961). It is well settled that “the estate of a dead man cannot be a party to

an action without some representative.” Id. And this court has held that the failure to

name a personal representative of a deceased party is jurisdictional and requires dismissal

of the appeal. Id. (citing Otolski v. Nowicki’s Estate, 129 Ind. App. 492, 158 N.E.2d

296, 298 (1959)). Accordingly, because Barrett is deceased and no substitution has been

made, we dismiss the appeal for lack of jurisdiction.

       We recognize that Barrett’s attorney is faced with a conundrum in that the trial

court declined to rule on the motion to substitute in this case, but her attorney presented

no evidence to show that the trial court should have granted that motion. Trial Rule

25(D) provides:

       The proper party or parties to be substituted for the party who dies under
       subsection (1) of subdivision (A) of this rule includes:

              (1) a successor in interest whose rights or obligations do not
              pass to the representative of the deceased party’s estate; or

              (2) if the interest passes to or binds the representative of the
              deceased party’s estate, either such representative or, if it is
              established that the estate of the deceased party is closed or
              that opening of such estate is unnecessary, the successor of
              such estate.

Barrett’s attorney explained that his delay in filing the Trial Rule 60(B) motion was due

to his “wait[ing] for an estate to be opened by Mr. Trent.” Appellant’s App. at 18. And

Barrett’s attorney stated that “[a]s of the date of filing of the instant motion, no estate has

yet been opened.” Id. Thus, there is no indication that Trent is a person described by

Trial Rule 25(D)(1), that Barrett’s estate is closed, or that the opening of Barrett’s estate




                                              5
is unnecessary.2 And it is undisputed that Trent is not the personal representative of any

estate. Thus, when Barrett died, Carter became an attorney without a client. See Chaney

v. Clarian Health Partners, Inc., 954 N.E.2d 1063, 1070 (Ind. Ct. App. 2011). Carter

cannot use Barrett’s name as a place saver to extend the life of a case without showing

that there is, in fact, a proper party eligible to be substituted for Barrett as the real party in

interest under Trial Rule 25(D). See id. Without a client, there was no live issue and the

case was not properly before the trial court, let alone an appellate court. Id. Finally, even

if we did have jurisdiction over this appeal, because Barrett’s attorney has not shown that

there was a basis for the trial court to grant his Trial Rule 25 motion, Barrett’s attorney

has not shown reversible error.

        Dismissed.

MATHIAS, J., and BROWN, J., concur.




        2
            In his subsequent reply brief to the trial court, Barrett’s attorney stated that, “[b]ecause Ms.
Barrett’s estate is valued at less than $50,000, that estate may fully be administered without opening an
estate and without appointment of a personal representative.” Appellant’s App. at 40. But Barrett’s
attorney did not provide any evidence to support that allegation and, as such, he cannot demonstrate that
the trial court would have abused its discretion in rejecting this assertion.
                                                     6
