                                                                        Dec 03 2015, 7:02 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Shawn P. Ryan                                             Dan J. May
      South Bend, Indiana                                       Kokomo, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Roger S. Blackman,                                        December 3, 2015
      Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                                52A02-1412-ES-883
              v.                                                Appeal from the Miami Superior
                                                                Court
      Karen A. Gholson and James                                The Honorable Leo T. Burns,
      W. Blackman,                                              Special Judge
      Appellees-Respondents.                                    Trial Court Cause No.
                                                                52D02-1309-ES-16



      Barnes, Judge.


                                              Case Summary
[1]   Roger Blackman appeals the trial court’s dismissal of his will contest action and

      subsequent denial of his motion to correct error. We affirm.




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                                                     Issues
[2]   The issues before us are:

              I.       whether the trial court properly dismissed Roger’s will
                       contest action;


              II.      whether the Journey’s Account Statute should permit
                       Roger to refile that action; and


              III.     whether an award of appellate attorney fees against Roger
                       is warranted.


                                                      Facts
[3]   Roger, Karen Gholson, and James Blackman are the children of Lillian

      Blackman. On September 23, 2013, Karen and James filed a petition to open

      an estate for Lillian and to probate a will she executed in July 2013. On

      December 23, 2013, Roger filed a “Verified Contest of Will” and request to

      substitute the July 2013 will with one Lillian had executed in June 2013. App.

      p. 23. Roger filed the will contest in the same court and under the same cause

      number as the original probate action. Roger’s attorney filed the will contest in

      this fashion upon the advice of the trial court’s clerk. The will contest was

      served upon counsel for Karen and James, but no summonses were issued for

      Karen or James.


[4]   Karen and James filed a motion to dismiss Roger’s will contest for “lack of

      jurisdiction.” Id. at 32. The trial court granted this motion, stating that it

      lacked subject matter jurisdiction. Within thirty days of this ruling, Roger filed

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      a motion to correct error and/or for relief from judgment. In this motion,

      Roger requested that the dismissal order be vacated and that he be permitted to

      file a new, separate will contest action under the Journey’s Account Statute.

      The trial court denied Roger’s motion to correct error and/or for relief from

      judgment. Roger now appeals.


                                                   Analysis
                                           I. Dismissal of Action

[5]   A will contest is not part of the administration of a decedent’s estate. Robinson

      v. Estate of Hardin, 587 N.E.2d 683, 685 (Ind. 1992). Will contest proceedings

      are governed by the Indiana Trial Rules. Avery v. Avery, 953 N.E.2d 470, 472

      (Ind. 2011). Thus, Karen and James’s motion to dismiss Roger’s will contest

      for lack of jurisdiction was a motion under Indiana Trial Rule 12(B)(1). Our

      standard of review when ruling on a motion to dismiss for lack of subject matter

      jurisdiction is dependent upon what occurred in the trial court. Berry v.

      Crawford, 990 N.E.2d 410, 414 (Ind. 2013). If there are no disputed facts, the

      question of subject matter jurisdiction is one of law and we review the trial

      court’s ruling de novo. Id. Because the facts here are not in dispute, our review

      is de novo. We may affirm a motion to dismiss based upon any theory or basis

      supported by the record, regardless of the explanation provided by the trial

      court. Munster v. Groce, 829 N.E.2d 52, 58 (Ind. Ct. App. 2005).


[6]   Indiana Code Section 29-1-7-17 provides:




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                Any 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 court the person’s allegations in writing
                verified by affidavit, setting forth:


                (1) the unsoundness of mind of the testator;


                (2) the undue execution of the will;


                (3) that the will was executed under duress or was obtained by
                fraud; or


                (4) any other valid objection to the will’s validity or the probate
                of the will. The executor and all other persons beneficially
                interested in the will shall be made defendants to the action.


      Additionally, Indiana Code Section 29-1-7-18 states:


                (a) When an action is brought to contest the validity of any will
                as provided in this article, notice is served upon the defendants in
                the same manner as required by the Indiana Rules of Trial
                Procedure.


                (b) A contesting party shall also serve a copy of the complaint on
                the counsel of record, if any, for the personal representative. The
                court may not enter a default judgment for the contesting party
                unless proof of service on the counsel for the personal
                representative is made to the court.


[7]   The statute specifically references the Indiana Trial Rules. Indiana Trial Rule 3

      states:


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              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.


      Additionally, Indiana Trial Rule 4(A) states, “The court acquires jurisdiction

      over a party or person who under these rules 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.” Indiana Trial Rule 4(B) requires a

      party filing a complaint to “furnish to the clerk as many copies of the complaint

      and summons as are necessary” contemporaneously with the complaint’s filing.


[8]   In Smith v. Estate of Mitchell, 841 N.E.2d 215 (Ind. Ct. App. 2006), we addressed

      the effect of a party’s failure to comply with these statutes and the Indiana Trial

      Rules when initiating a will contest action. In that case, a party attempted to

      file a petition to the challenge a will, but the petition named no defendants and

      no summons was issued to any beneficiaries of the will. Later, a summons was

      served upon counsel for the estate’s personal representative. The estate

      subsequently filed a motion for summary judgment against the will contest,

      claiming that the party bringing the action had failed to comply with the

      statutes governing will contests and, therefore, the trial court lacked jurisdiction

      to consider the case. The trial court granted the summary judgment motion.


[9]   On appeal, we began by stating, “The right to contest a will is statutory, and if it

      is not executed within the allotted time period, it is lost.” Smith, 841 N.E.2d at

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       218 (citing Estate of Kitterman v. Pierson, 661 N.E.2d 1255, 1257 (Ind. Ct. App.

       1996), trans. denied). We then engaged in a review of the caselaw regarding

       initiation of a will contest. First, we reviewed Milligan v. Denham, 553 N.E.2d

       1265 (Ind. Ct. App. 1990). Id. In Milligan, we had held there was sufficient

       compliance with the will contest statute where the contest was timely filed, but

       proper summonses were not issued to the will beneficiaries until after the time

       limit had passed. Milligan, 553 N.E.2d at 1267. We had noted in Milligan that

       the will contest statute explicitly referred only to the necessity of “filing” an

       action, which was sufficient to “commence” a civil action and which was a

       different procedure than serving summonses or giving notice. Id. Our supreme

       court subsequently adopted our opinion in that case. Milligan v. Denham, 563

       N.E.2d 595 (Ind. 1990).


[10]   However, as we next observed in Smith, our supreme court subsequently

       decided Boostrom v. Bach, 622 N.E.2d 175 (Ind. 1993), cert. denied. Smith, 841

       N.E.2d at 218. In Boostrom, which concerned a small claims action and not a

       will contest action, the court indicated that there were three documents

       necessary to commence a suit: the complaint, the summons, and the filing fee.

       Boostrom, 622 N.E.2d at 177 n.2. There was some disagreement on this court as

       to whether issuance of a summons was truly required by Boostrom in order to

       commence a suit, but our supreme court later positively stated that a summons

       must be tendered along with the filing fee and the complaint in order to

       “commence” a lawsuit for statute of limitations purposes under Indiana Trial



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       Rule 3. Ray-Hayes v. Heinamann, 760 N.E.2d 172, 174-75 (Ind. 2002). Ray-

       Hayes did not concern a will contest action.


[11]   In Smith, we discussed Kitterman. Smith, 841 N.E.2d at 218-19. In that case, a

       will contest was filed within the statutory time limit and it was served upon the

       executor of the estate and counsel for the estate’s personal representative but

       not upon the will beneficiaries, nor were the beneficiaries named as defendants

       in the will contest. On appeal, we held the will contest should have been

       dismissed because “the court never obtained jurisdiction over even a portion of

       the subject matter . . . .” Kitterman, 661 N.E.2d at 1258.


[12]   Applying Milligan, Boostrom, Ray-Hayes, and “particularly” Kitterman, we held

       in Smith that the trial court had properly granted summary judgment to the will

       beneficiaries. Smith, 841 N.E.2d at 219. We concluded, “it appears to have

       been settled that 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.” Id.


[13]   After Smith was decided, our supreme court handed down K.S. v. State, 849

       N.E.2d 538 (Ind. 2006). That opinion urged courts to cease mischaracterizing

       mere procedural error as true defects in subject matter or personal jurisdiction.

       K.S., 849 N.E.2d at 542. “Subject matter jurisdiction is the power to hear and

       determine cases of the general class to which any particular proceeding belongs.

       Personal jurisdiction requires that appropriate process be effected over the

       parties.” Id. at 540. In K.S., the court held that a juvenile court’s failure to

       follow all of the statutory procedures for initiating a delinquency petition did


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       not affect either subject matter or personal jurisdiction, but was mere procedural

       error. Id. at 542. A number of subsequent cases likewise have made clear that

       failure to follow statutory guidelines for initiating a particular action do not

       affect subject matter jurisdiction, so long as the action was filed in the proper

       court for such an action. See, e.g., 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).


[14]   Given 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. To the extent Smith or Kitterman held otherwise, we conclude they

       have been supplanted by K.S. and its progeny. Here, there is no question that

       the trial court had subject matter jurisdiction to consider Roger’s will contest

       action. Any failure by Roger to precisely follow the statutory procedures for

       initiating such an action did not impact subject matter jurisdiction.


[15]   However, this is not a case in which there is an attempted collateral attack upon

       an entered judgment that is claimed to be “void” for lack of subject matter

       jurisdiction. The claimed defects in the will contest action were timely raised

       through a motion to dismiss. And, such defects did exist. Roger did not tender

       summonses for Karen and James and thus they were not personally served with

       the will contest, nor did he pay a filing fee. Such actions clearly are necessary

       to initiate a civil suit under the Trial Rules. Boostrom, 622 N.E.2d at 177 n.2.

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       Additionally, given that a will contest is deemed an independent action, failure

       to serve Karen and James would impact the trial court’s personal jurisdiction

       over them. See Anderson v. Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200, 1206

       (Ind. Ct. App. 2014), trans. denied. Although, admittedly, the statute is not

       crystal clear,1 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. See Avery, 953 N.E.2d at 472. Roger’s

       failure to comply with the will contest statutes and Trial Rules properly

       subjected his filing to dismissal.


[16]   Roger asserts that he should be forgiven for failing to file the will contest as its

       own separate civil action, complete with summonses and a filing fee, because

       his attorney was acting upon the advice of the trial court clerk in not filing it as

       a separate proceeding. He cites no authority for the proposition that an

       attorney should be able to rely upon advice from a non-attorney as to legal

       matters. We decline to create such authority. In sum, the trial court properly

       granted Karen and James’s motion to dismiss.




       1
         We note that the statute refers only to filing verified written allegations “in the court having jurisdiction
       over the probate of the will . . . .” I.C. § 29-1-7-17. It does not refer generically to a court having probate
       jurisdiction, but “jurisdiction” over the particular will at issue. In this context, the use of the word
       “jurisdiction” might be misleading, as it arguably refers to jurisdiction over a particular case, which phrase
       our supreme court has discarded. See Packard v. Shoopman, 852 N.E.2d 927, 930 (Ind. 2006). We need not
       resolve today the precise effect or meaning of the word “jurisdiction” in this statute.

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                                       II. Journey’s Account Statute

[17]   Roger also argues, as he did before the trial court, that he should be permitted

       to properly re-file his will contest pursuant to the Journey’s Account Statute

       (“JAS”), following the expiration of the three-month time limit for initiating a

       will contest. Indiana Code Section 34-11-8-1 provides that, if a plaintiff’s action

       fails for any cause “except negligence in the prosecution of the action,” or if the

       action abates because of the death of a party, or if a judgment is reversed on

       appeal, the plaintiff may initiate a new action no later than three years after the

       failure or reversal of the cause of action. The purpose of the JAS is to provide

       for continuation of a cause of action when a plaintiff fails to obtain a decision

       on the merits for some reason other than his or her own neglect and the statute

       of limitations period expires while the suit is pending. Al-Challah v. Barger

       Packaging, 820 N.E.2d 670, 674 (Ind. Ct. App. 2005).


[18]   Roger’s will contest failed for two primary reasons: he failed to pay the filing

       fee, and he failed to provide summonses or otherwise serve process on Karen

       and James. We have previously held that the JAS applies to will contest

       actions and that defective service of process on the will beneficiaries does not

       preclude application of the statute to preserve a will contest. See Willman v.

       Railing, 571 N.E.2d 590, 592 (Ind. Ct. App. 1991); see also Basham v. Penick, 849

       N.E.2d 706, 710 (Ind. Ct. App. 2006) (noting that under the JAS a cause of

       action dismissed in one state for lack of personal jurisdiction may be refiled in

       the correct state despite passage of the statute of limitations time period). Here,

       there was not merely defective service of process, there was a complete failure

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       to file any summonses for Karen or James. Also, failing to pay the filing fee for

       a cause of action has been held to constitute negligence in the prosecution of the

       action that bars saving an action under the JAS. See Eads v. Community Hosp.,

       932 N.E.2d 1239, 1244 (Ind. 2010) (citing Parks v. Madison County, 783 N.E.2d

       711, 721 (Ind. Ct. App. 2002), trans. denied). Here, Roger’s failure to pay a

       filing fee for the will contest as required by the Trial Rules was negligence in the

       prosecution of the action and, as such, precludes his reliance upon the JAS to

       permit refiling of the will contest after the expiration of the statutory time limit

       for filing such an action.


                                        III. Appellate Attorney Fees

[19]   On a final note, Karen and James request that we order Roger to pay their

       appellate attorney fees. Under Indiana Appellate Rule 66(E), we may, in our

       discretion, order one party to pay another party’s appellate attorney fees if the

       appeal “is frivolous or in bad faith.” We will award appellate attorney fees only

       if “an appeal is permeated with meritlessness, bad faith, frivolity, harassment,

       vexatiousness, or purpose of delay.” Poulard v. Laporte County Election Bd., 922

       N.E.2d 734, 737 (Ind. Ct. App. 2010). We use “extreme restraint” in deciding

       whether to award appellate attorney fees “because of the potential chilling effect

       upon the exercise of the right to appeal.” Id. “Bad faith” in an appeal may be

       either substantive or procedural. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.

       Ct. App. 2003). Substantive bad faith occurs if an appellant’s contentions and

       arguments are utterly devoid of all plausibility. Id. Procedural bad faith occurs

       if a party flagrantly disregards the requirements of the rules of appellate

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       procedure, omits or misstates relevant facts, or files a brief calculated to require

       the maximum expenditure of time by both the opposing party and this court.

       Id. at 346-47.


[20]   Although Roger ultimately is unsuccessful in this appeal, we cannot say it was

       litigated in bad faith. As we have noted, the will contest statute by itself is not

       perfectly clear on its face as to whether it must be filed as an action separate

       from probate of the will being challenged. It also was not patently

       unreasonable for Roger to argue that the JAS might apply to save the will

       contest action, particularly where it appears Karen and James’s attorney

       received notice of it having been timely filed, albeit incorrectly. Additionally,

       while Karen and James allege instances of noncompliance with the appellate

       rules, we perceive nothing more than minor deviations from the rules at the

       most. In sum, Karen and James have not convinced us that Roger’s appeal is

       so permeated with either substantive or procedural bad faith such that an award

       of appellate attorney fees is warranted.


                                                  Conclusion
[21]   Although the trial court had subject matter jurisdiction over Roger’s attempted

       will contest action, it was appropriate to dismiss the action due to his failure to

       comply with the statutes and rules for initiating such an action. Additionally,

       Roger’s failure to pay the filing fee for the action precludes reliance upon the

       JAS to resuscitate it. Although Roger is unsuccessful on appeal, an award of

       appellate attorney fees against him is not warranted. We affirm.


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[22]   Affirmed.


       Kirsch, J., and Najam, J., concur.




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