                                                                           FILED
                                                                      May 29 2019, 8:58 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE –
Bryan H. Babb                                              ROBERT C. THOMPSON, JR.
Bose McKinney & Evans LLP                                  Joseph M. Dietz
Indianapolis, Indiana                                      Meils, Thompson, Dietz, & Berish
                                                           Indianapolis, Indiana

                                                           ATTORNEYS FOR APPELLEE –
                                                           BENJAMIN MCQUEARY
                                                           John A. Cremer
                                                           Jonathan E. Lamb
                                                           Cremer & Cremer
                                                           Fishers, Indiana

                                                           ATTORNEY FOR APPELLEES –
                                                           NATHAN MCQUEARY AND
                                                           WILLIS MATTHEW MCQUEARY
                                                           William A. Maschmeyer
                                                           Haggerty, Haggerty, &
                                                           Maschmeyer
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                Page 1 of 24
      In Re: Petition to Docket Trust                            May 29, 2019
      of Sadie G. McQueary,                                      Court of Appeals Case No.
                                                                 18A-TR-915
                                                                 Appeal from the Marion Superior
                                                                 Court
                                                                 The Honorable Steven R.
                                                                 Eichholtz, Judge
                                                                 Trial Court Cause No.
                                                                 49D08-1404-TR-12478



      Gary R. McQueary,                                          Court of Appeals Case No.
                                                                 18A-TR-915
      Appellant-Plaintiff,
                                                                 Appeal from the Hamilton
              v.                                                 Superior Court
                                                                 The Honorable Steven R. Nation,
      Robert C. Thompson, Jr.,                                   Judge
      Successor Trustee; Benjamin                                Trial Court Cause No.
      McQueary; Willis Matthew                                   29D01-1707-PL-7104
      McQueary; and Nathan
      McQueary,
      Appellees-Defendants.



      Najam, Judge.


                                        Statement of the Case
[1]   Gary R. McQueary is the former trustee of The Sadie G. McQueary Revocable

      Living Trust (“the Trust”) as well as a beneficiary of the Trust. Nathan

      McQueary, Willis McQueary, and Benjamin McQueary (collectively, “the

      Grandsons”) are also beneficiaries of the Trust. In this consolidated appeal,

      Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                        Page 2 of 24
      Gary appeals the Marion Superior Court’s order granting a motion by Robert

      C. Thompson, as successor trustee (“the Trustee”), to enforce a mediated

      settlement agreement that Gary had entered into along with the Grandsons that

      settled disputes related to the Trust. Gary further appeals the Marion Superior

      Court’s order that he pay $20,831.25 in attorneys’ fees based on the court’s

      conclusion that Gary breached the terms of the settlement agreement. Gary

      also appeals the Hamilton Superior Court’s dismissal of his action for quiet

      title, which related to real property held by the Trust.


[2]   Gary presents three issues for our review, which we revise and restate as

      follows:


              1. Whether the Marion Superior Court erred when it granted the
                 Trustee’s motion to enforce the settlement agreement.


              2. Whether the Marion Superior Court erred when it ordered
                 Gary to pay attorneys’ fees based on its determination that
                 Gary breached the terms of the settlement agreement.


              3. Whether the Hamilton Superior Court erred when it
                 dismissed his complaint to quiet title.


      Additionally, the Trustee and the Grandsons jointly raise the following issue for

      our review:


              4. Whether they are entitled to an award of appellate attorneys’ fees.



      Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019          Page 3 of 24
[3]   We affirm in part, reverse in part, and remand for further proceedings.


                                    Facts and Procedural History
[4]   On February 19, 2004, Sadie McQueary established the Trust. One of the

      assets of the Trust is a forty-acre parcel of land in Westfield (“the Westfield

      property”). The Trust provided that, upon Sadie’s death, the trustee shall

      distribute fifty percent of the estate to Gary, who is Sadie’s son, and fifty

      percent to the Grandsons. 1


[5]   Sadie died on June 10, 2013. At the time of her death, Gary became the

      successor trustee of the Trust. On April 17, 2014, Nathan and Willis filed a

      petition to docket the Trust in the Marion Superior Court. In that petition,

      Nathan and Willis alleged that Gary had failed to carry out his fiduciary

      responsibilities under the Trust. Nathan and Willis requested “a full and

      complete current accounting” of all actions Gary had taken as trustee.

      Appellant’s App. Vol. II at 121. On January 27, 2015, Gary and the Grandsons

      entered into an agreed entry in which Gary, as trustee, agreed to list the

      Westfield property for sale for a price of $2.2 million.


[6]   Gary filed an accounting of the Trust on May 15. Thereafter, Benjamin filed an

      objection to the accounting. Specifically, Benjamin asserted that there were “a




      1
          The Grandsons are the sons of Sadie’s son, Gregory, who predeceased Sadie.


      Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                  Page 4 of 24
      number of expenditures from the Trust assets” which did not “relate to any

      term of the [T]rust.” Id. at 124. Nathan and Willis also filed an objection to

      Gary’s accounting.


[7]   On August 24, 2015, Gary and the Grandsons entered into a mediated

      settlement agreement. Pursuant to that agreement, Gary agreed to resign as

      trustee of the Trust, and Gary and the Grandsons agreed to appoint Thompson

      as successor trustee. The parties agreed that Gary’s son, Jake McQueary,

      would vacate the Westfield property within thirty days. Gary and the

      Grandsons agreed to extend the real estate listing for the Westfield property for

      three months. Additionally, they agreed to distribute three parcels of real estate

      from the Trust to Gary, which were valued at $233,000. The parties also agreed

      that Gary would refund $71,707 to the Trust. Gary agreed to pay $48,000 in

      attorneys’ fees. In total, the parties agreed that Gary’s share in the Westfield

      property would be reduced by $352,707. The trial court approved the

      settlement agreement on August 27.


[8]   Upon the expiration of the listing contract for the Westfield property, the

      Trustee contacted local real estate brokers about the property. The real estate

      brokers advised the Trustee that he needed to obtain a survey in order to sell the

      property, which would cost between ten and fifteen thousand dollars. Gary and

      the Grandsons did not agree to spend the money for the survey at that time.




      Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019           Page 5 of 24
[9]    In July 2017, Gary and the Grandsons agreed to spend the money for the

       survey of the Westfield property. However, Gary quickly revoked his consent.

       On July 28, Gary instead filed a complaint to quiet title to the Westfield

       property in the Hamilton Superior Court. In his complaint, Gary asserted that

       he “is now and has been since . . . the date of Sadie’s death, the owner of an

       undivided one-half . . . interest in and to” the Westfield property. Id. at 58. He

       also asserted that the Grandsons were equal owners of the other one-half

       interest. Accordingly, Gary sought an order from the Hamilton Superior Court

       declaring that title to the Westfield property had vested in Gary and the

       Grandsons outside of the Trust at the time of Sadie’s death.


[10]   On August 8, the Trustee filed a motion to dismiss Gary’s complaint in

       Hamilton County pursuant to Indiana Trial Rule 12(B)(8) on the ground that

       the same action was pending in the Marion Superior Court. Specifically, the

       Trustee asserted that “[c]onfusion will be the prime result if two

       Courts . . . attempt to resolve the differences among the beneficiaries of [the

       Trust] concerning this land[.]” Appellant’s App. Vol. III at 34. The Grandsons

       all joined in the Trustee’s motion to dismiss. In response, Gary asserted that

       “[t]he matters for which the Trust was docketed in Marion County were

       concluded with the Court’s order” approving the settlement agreement. Id. at

       72. He further asserted that “[t]here is no matter pending in any other Court

       which relates to the title of” the Westfield property. Id.



       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019           Page 6 of 24
[11]   On December 21, the Trustee filed a petition for instructions in which he asked

       the Marion Superior Court whether he could spend the money for a survey of

       the Westfield property. He further asked the court if he could accept offers on

       the property of below one million dollars without the consent of Gary and the

       Grandsons if he believed it to be in the best interest of the Trust. 2 Nathan and

       Willis filed a response in which they consented to paying for a survey of the

       property. In addition, Nathan and Willis stated that they would agree to the

       Trustee negotiating a sale for less than one million dollars subject to court

       approval following notice and a hearing.


[12]   On February 6, 2018, the Hamilton Superior Court held a hearing on Gary’s

       complaint to quiet title. Following the hearing, the Hamilton Superior Court

       took the matter under advisement pending a determination by the Marion

       Superior Court as to whether all of the terms and conditions of the mediated

       settlement agreement had been completed and whether the Trust should be

       removed from the docket. The Hamilton Superior Court concluded that,

       “[o]nce the Marion County Court has made such determination, this Cause will

       be dismissed or proceed.” Id. at 155.




       2
         It is not clear from the record, but it appears that at some point Gary and the Grandsons agreed to list the
       property for $1.25 million instead of $2.2 million.


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                    Page 7 of 24
[13]   On February 27, Gary filed a motion to dismiss the Trustee’s petition for

       instructions in the Marion Superior Court. Gary asserted that the Trustee’s

       petition should be dismissed pursuant to Trial Rule 12(B)(8) because the

       Trustee’s petition sought to have the Marion Superior Court exercise

       jurisdiction over property that was the subject of Gary’s quiet-title action in the

       Hamilton Superior Court, and also because the terms of the Trust could not be

       amended by the parties or by the court. In the same motion, Gary requested

       that the Marion Superior Court enter an order allowing the quiet title action to

       proceed in Hamilton County. In support of his request, Gary asserted that

       “[t]here exists no authority” for the Trustee or anyone else to serve as trustee

       following Sadie’s death “except for the purpose of distributing the assets” in

       accordance with the terms of the Trust, which he asserted required the assets to

       be distributed immediately upon Sadie’s death. Appellant’s App. Vol. II at 55.

       He further asserted that the settlement agreement approved by the court had

       settled the disputes between Gary and the Grandsons.


[14]   On March 5, the Trustee filed a motion in the Marion Superior Court to enforce

       the mediated settlement agreement. The Trustee asserted that Gary had

       violated the terms of the settlement agreement when he filed his quiet-title

       action in the Hamilton Superior Court, which the Trustee described as “a

       deliberate campaign to prevent Trustee Thompson from selling the Westfield

       property which would block the repayment of $352,707 Gary McQueary owes

       to the other beneficiaries.” Id. at 77. The Trustee asked the Marion Superior

       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019           Page 8 of 24
       Court to notify the Hamilton Superior Court that the terms of the settlement

       agreement had not been fulfilled and that the Trust remained docketed in

       Marion County and to find that Gary breached the terms of the settlement

       agreement when he filed the complaint to quiet title in Hamilton County.


[15]   On April 4, the Marion Superior Court issued an order in which it found that it

       had “acquired jurisdiction of the trust when the trust was docketed.” Id. at 152.

       The court also found that “[t]he title to the Westfield real estate in issue has

       remained a trust asset” since Sadie deeded it to the Trust before her death. Id.

       at 151. The court further found that the property “remains an asset of the Trust

       now and is subject to Trustee Thompson’s efforts to sell” the property at a price

       acceptable to Gary and the Grandsons. Id. The court further noted that,

       despite Gary’s contentions to the contrary, the Trust “expressly allows” for the

       sale of the Westfield property and that there is nothing in the parties’ mediated

       settlement agreement “that modifies the terms of the trust.” Id. at 153. The

       court granted the Trustee’s motion to enforce the settlement agreement. The

       court then directed the Trustee and the Grandsons to file motions for attorneys’

       fees as they “have prevailed in their efforts to stop Gary McQueary from

       depriving the trust of its last remaining asset[.]” Id. at 154. 3




       3
         Gary appealed the Marion Superior Court’s order on April 24. However, he subsequently asked this Court
       to remand the matter to the trial court. This Court granted his motion and remanded to the trial court with
       instructions for the trial court to hold a hearing on the issue of attorneys’ fees.


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                Page 9 of 24
[16]   The Trustee filed a notice of the Marion Superior Court’s order with the

       Hamilton Superior Court and reasserted his claim that the Hamilton Superior

       Court should dismiss Gary’s complaint to quiet title. Based on the Marion

       Superior Court’s April 4 order, the Hamilton Superior Court dismissed Gary’s

       complaint to quiet title on May 7.


[17]   Thereafter, the attorneys for the Trustee, Nathan and Willis, and Benjamin filed

       their respective petitions for attorneys’ fees in the Marion Superior Court. In

       response, Gary asserted that his complaint to quiet title in Hamilton County

       was not a breach of the mediated settlement agreement and, as such, there was

       no “factual or legal basis” for the award of attorneys’ fees. Id. at 206.

       Following a hearing at which the attorneys presented argument regarding

       whether Gary breached the settlement agreement, the Marion Superior Court

       granted the attorneys’ petitions. The trial court ordered Gary to pay $13,950 to

       the Trustee’s attorney, $3,100 to Benjamin’s attorneys, and $3,781.25 to Nathan

       and Willis’ attorney. This interlocutory appeal ensued.


                                       Discussion and Decision
                              Issue One: Mediated Settlement Agreement

[18]   Gary first contends that the Marion Superior Court erred when it granted the

       Trustee’s motion to enforce the settlement agreement. However, Gary has

       invited any error in the trial court’s enforcement of the settlement agreement.

       “[T]o establish invited error, there must be some evidence that the error resulted

       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019             Page 10 of 24
       from the appellant’s affirmative actions[.]” Batchelor v. State, 119 N.E.3d 550,

       557 (Ind. 2019). Here, Gary was a party to the mediation that resulted in the

       mediated settlement agreement, he signed the settlement agreement, and he

       joined the Grandsons in asking the trial court to accept the settlement

       agreement. Accordingly, Gary took affirmative action in asking the court to

       accept the mediated settlement agreement. As such, he cannot now claim that

       the trial court erred when it enforced the agreement he had asked it to accept.


[19]   Invited error notwithstanding, Gary contends that the trial court erred when it

       enforced the mediated settlement agreement because the settlement agreement

       impermissibly altered the terms of the Trust. To address Gary’s assertion on

       appeal, we must interpret the Trust. “The interpretation of a trust document is

       a question of law for the court. The primary purpose in construing a trust

       instrument is to ascertain and give effect to the settlor’s intention.” Kristoff v.

       Centier Bank, 985 N.E.2d 20, 23 (Ind. Ct. App. 2013). “We examine the trust

       document as a whole to determine the plain and unambiguous purpose of the

       settlor as that intent appears within the four corners of the instrument.”

       Graninger v. Nat’l City Bank of Ind. (In re Trust Stonecipher), 849 N.E.2d 1191,

       1195 (Ind. Ct. App. 2006).


[20]   Gary’s argument on this issue is that the Trust “plainly require[s] the

       distribution of assets upon and following the death of the Settlor, which

       occurred on June 10, 2013,” Appellant’s Br. at 17, and, as such, by keeping the


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019             Page 11 of 24
       Westfield property within the Trust after Sadie’s death the settlement agreement

       violates the terms of the Trust. That is, Gary contends in effect that the

       settlement agreement altered the terms of the Trust by allowing the Trustee to

       sell the Westfield property instead of immediately distributing the property to

       Gary and the Grandsons.


[21]   To support his contention that the Trustee was required to distribute the assets

       immediately following Sadie’s death, Gary cites two provisions of the Trust.

       Article IV(D) provides that, “[u]pon the death of the Grantor, the Trustee

       shall . . . divide the remainder of the estate into shares . . . and shall hold,

       administer, and distribute each share according to the provisions of” Article

       IV(F). Appellant’s App. Vol. II at 62. Article IV(F)(6) provides that, subject to

       Article VI(S), “whenever any beneficiary for whom a trust is then held shall

       have attained the age of twenty-five (25) years, the Trustee shall distribute to

       each beneficiary, free of trust, the entire principal and accumulated income, if

       any, of his or her separate trust.” Id. at 63. Based on those two provisions,

       Gary contends, in effect, that the plain language of the Trust requires that the

       only action the Trustee is authorized to take is to distribute the assets

       immediately to Gary and the Grandsons on Sadie’s death. We cannot agree.


[22]   As discussed above, one provision of the Trust provides for the distribution of

       the Trust assets upon Sadie’s death. And another provision of the Trust

       provides that the interest of the beneficiaries vested on Sadie’s death. See


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019             Page 12 of 24
       Appellant’s App. Vol. II at 68. However, there are other provisions of the Trust

       that grant the Trustee the discretion to retain and withhold distribution of the

       assets. Indeed, one of the provisions that Gary relies on, Article IV(F)(6),

       provides for the distribution of assets “[s]ubject to a possible retention of some

       or all of the assets of the trust estate by the Trustee” pursuant to Article VI(S).

       Id. at 63. Article VI(S) provides that the trustee has the power “[t]o withhold

       from distribution, in the Trustee’s discretion, at the time for distribution of any

       property in this trust . . . so long as the Trustee shall determine, in the Trustee’s

       discretion, that such property may be subject to conflicting claims[.]” Id. at 68.

       Accordingly, it is clear that the Trustee has the discretion to withhold

       distribution of the assets instead of distributing the assets immediately on

       Sadie’s death.


[23]   That discretion is further emphasized in Article VI(A), which provides that the

       trustee has the power to “continue to hold any property received in trust,

       including undivided interests in real property . . . as long as the Trustee, in the

       Trustee’s discretion, may deem advisable[.]” Id. at 65 (emphasis added). Thus,

       the Trust explicitly grants the Trustee the power to hold any real property as

       long as the trustee deems it advisable.


[24]   Further, upon any division or distribution of the estate, Sadie granted the

       trustee the power to “partition, allot[,] and distribute the trust estate in

       undivided interests or in kind, or partly in money and partly in kind, at


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                Page 13 of 24
       valuations determined by the Trustee, and to sell such property as the Trustee may

       deem necessary to make division or distribution[.]” Id. at 66 (emphasis added).

       Accordingly, the Trust explicitly granted the Trustee the power to sell the real

       estate prior to distribution.


[25]   Reading the Trust as a whole, which we are required to do, it is clear that the

       intent of the settlor was to grant discretion to the Trustee either to distribute the

       assets on her death or to delay their distribution. The Trust further granted the

       Trustee the discretion to sell any property in order to make the distributions.

       Because the Trustee has the discretion to retain and sell the Trust assets,

       including the Westfield property, we cannot say that any term of the settlement

       agreement that provided or allowed for the property to be sold instead of to be

       distributed immediately to Gary and the Grandsons improperly altered the

       terms of the Trust. As the settlement agreement did not alter the terms of the

       Trust, the trial court did not err when it granted the Trustee’s motion to enforce

       the settlement agreement.


                                         Issue Two: Attorneys’ Fees

[26]   Gary next asserts that the Marion Superior Court erred when it ordered him to

       pay attorneys’ fees for the Trustee and the Grandsons. Gary specifically asserts

       that the court erred when it ordered him to pay attorneys’ fees because he

       contends he did not breach a term of the settlement agreement, which breach

       was necessary for the award of attorneys’ fees under the agreement.


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019            Page 14 of 24
       Accordingly, in order to determine whether the Marion Superior Court erred

       when it ordered Gary to pay attorneys’ fees, we must first determine whether

       Gary breached the terms of the settlement agreement.


                                        Breach of Settlement Agreement

[27]   Gary contends that the Marion Superior Court erred when it ordered him to

       pay the attorneys’ fees because he “did not breach any term or condition of the

       2015 Settlement Agreement” when he filed his complaint to quiet title in

       Hamilton County and that “the trial court’s April 2018 order does not identify

       any term, condition[,] or paragraph of the Settlement Agreement that Gary

       McQueary breached.” Appellant’s Br. at 25, 26. Because the question is

       whether Gary’s action of filing the complaint to quiet title in Hamilton County

       breached the terms of the settlement agreement, we are in as good a position as

       the trial court to review the paper record and to determine whether Gary

       violated the agreement. As such, we review the Marion Superior Court’s

       determination that Gary breached the settlement agreement and, thus, its award

       of attorneys’ fees de novo. 4 See Anderson v. Wayne Post 64, Am. Legion Corp., 4

       N.E.3d 1200, 1206 (Ind. Ct. App. 2014), trans. denied.




       4
          The Trustee and the Grandsons contend that the “de novo standard of review does not apply” to the issue of
       whether Gary violated the settlement agreement because the trial court heard testimony about Gary’s quiet
       title action being the reason for the need to incur attorneys’ fees. Appellees’ Br. at 31. The Trustee and the
       Grandsons are correct that the trial court allowed the attorneys to present sworn testimony regarding whether
       Gary breached the settlement agreement. However, the attorneys simply testified as to which provisions of

       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                 Page 15 of 24
[28]   The Trustee and the Grandsons first assert that Gary’s action to quiet title

       violated the settlement agreement because the parties had agreed to extend the

       listing contract for the Westfield property so that the Trustee could sell it. On

       appeal, Gary contends that the act of filing his complaint to quiet title did not

       breach any terms of the settlement agreement because there is no provision in

       the settlement agreement that grants the Trustee “an everlasting right” to

       market and sell the real estate. Appellant’s Br. at 26. We agree with Gary that

       the settlement agreement does not contain a provision that gives the Trustee a

       perpetual right to sell the Westfield property. Indeed, in the mediated

       settlement agreement, Gary and the Grandsons only “agree[d] to extend the

       real estate listing contract of [the Westfield property] . . . for three months after

       the date of the Court Order approving this Settlement.” Appellant’s App. Vol.

       II at 15. Accordingly, the parties only agreed to list the Westfield property for

       sale for three months beginning on August 27, 2015. We cannot say that

       Gary’s attempt to quiet title in July 2017, eighteen months after the agreed-

       upon three-month listing contract had expired, violated the provision of the

       settlement agreement in which the parties agreed to list the property for sale. 5




       the settlement agreement they believed Gary breached. There is nothing about that testimony that put the
       trial court in a better position than this Court to determine whether the act of filing the quiet title action
       constituted a breach of the settlement agreement.
       5
         The Trustee and the Grandsons also contend that Gary’s action to quiet title violated the settlement
       agreement because getting title to the property would allow Gary to prohibit a sale of the property or to
       otherwise refuse to pay the Grandsons the $352,707 he owes to them. However, that is merely speculation

       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                    Page 16 of 24
[29]   However, our conclusion that Gary’s complaint to quiet title did not violate

       that provision of the settlement agreement does not end our inquiry as the

       Trustee and the Grandsons also asserted that Gary’s complaint to quiet title

       violated the “release language” provision in Paragraph 12 of the settlement

       agreement. Appellees’ Br. at 35. We must agree with the Trustee and the

       Grandsons. When Gary and the Grandsons signed the mediated settlement

       agreement, they also each agreed to


                hereby forever release and discharge each other . . . of and from
                any and all manner of actions, causes of action, suits, accounts,
                contracts, debts, claims, and demands whatsoever, at law or in
                equity, and however arising, on or before the date of this release
                involving the Trust, related to [Sadie’s] estate or any other property
                in which she had an interest during her life and including all
                matters asserted, or which could have been asserted


       by any of the parties under the cause number related to the docketed Trust.

       Appellant’s App. Vol. II at 18 (emphases added). In other words, by entering

       into the settlement agreement Gary agreed not to file any cause of action

       against any of the other parties to the agreement for any claim that was or could

       have been asserted under the Trust’s cause number.




       about a potential future breach of the settlement agreement. Gary has not yet refused either to sell the
       property or to pay the Grandsons back after the sale of the property.


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                   Page 17 of 24
[30]   Here, Gary was the trustee of the Trust for over two years from the date Sadie

       died on June 10, 2013, until he was replaced on August 27, 2015, which time

       period included over sixteen months after the Trust was docketed on April 17,

       2014. There is no dispute that, during his time as trustee, Gary administered

       the Westfield property as an asset of the Trust. Further, Gary makes no

       assertion that during the time period in which he served as the trustee he was

       unaware of the provision of the Trust that provided for the assets to be

       distributed upon Sadie’s death. As such, Gary could have asserted a claim in

       the Marion Superior Court that the Westfield property had vested in him and

       the Grandsons immediately upon Sadie’s death—which is the claim he asserted

       in his complaint to quiet title—after the Trust had been docketed but prior to

       entering into the mediated settlement agreement. Further, in addition to

       naming the Trustee as a defendant in his complaint to quiet title, Gary named

       the Grandsons as defendants.


[31]   Gary’s complaint to quiet title was a cause of action related to Sadie’s estate,

       which he could have asserted prior to entering into the agreement. 6 That is

       precisely the type of claim that Gary agreed not to bring against the Grandsons




       6
         It is undisputed that Gary’s interest in the Westfield property vested in him upon Sadie’s death. See
       Appellant’s App. Vol. II at 68. However, the question is not whether his interest in the Westfield property
       had vested. Rather, the question is whether Gary’s action of filing the quiet title action, regardless of whether
       his interest had vested, breached a term of the settlement agreement.


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                    Page 18 of 24
       when he signed the agreement. Accordingly, Gary breached the settlement

       agreement when he filed his complaint to quiet title to the Westfield property.


                                          Grandsons’ Attorneys’ Fees

[32]   As Gary violated a term of the settlement agreement, we next turn to whether

       the Marion Superior Court erred when it ordered Gary to pay attorneys’ fees. It

       is well settled that Indiana adheres to the American Rule, which provides “that

       each party must pay his own attorney fees absent an agreement between the

       parties, statutory authority, or a rule to the contrary.” Branham Corp. v. Newland

       Resources, LLC, 44 N.E.3d 1263, 1274 (Ind. Ct. App. 2015). Gary acknowledges

       that he and the Grandsons entered into an agreement “that is contrary to the

       ‘American Rule.’” Appellant’s Br. at 25. Indeed, Gary and the Grandsons

       agreed that, “[i]f any of the parties to this Settlement Agreement is required to

       initiate legal action to enforce the terms of this settlement, the prevailing

       party(ies) shall be entitled to recover their reasonable attorney’s fees from the

       non-prevailing party(ies).” Appellant’s App. Vol. II at 18.


[33]   On appeal, Gary does not contend that the Grandsons were not parties to the

       settlement agreement. Neither does he contend that an award of attorneys’ fees

       to the Grandsons would be improper if he breached the agreement. Because

       Gary breached the settlement agreement, which breach caused the Grandsons

       to initiate legal action to enforce the agreement, the trial court did not err when

       it ordered Gary to pay the Grandsons’ attorneys’ fees.


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019           Page 19 of 24
                                            Trustee’s Attorney’s Fees

[34]   Gary further contends that, even if he breached a term of the settlement

       agreement, the court erred when it ordered him to pay the Trustee’s attorney’s

       fees because the Trustee was not a party to the settlement agreement. Again,

       Indiana adheres to the American Rule, which provides “that each party must

       pay his own attorney fees absent an agreement between the parties, statutory

       authority, or a rule to the contrary.” Branham Corp., 44 N.E.3d at 1274. Gary

       asserts that, while he and the Grandsons entered into an agreement that was

       contrary to the American Rule, the Trustee was not a party to that agreement

       and, as such, the Trustee is not entitled to the “fee-shifting right” under the

       settlement agreement. Appellant’s Br. at 27. We must agree.


[35]   As we have already noted, the settlement agreement specifically provides that,

       if any party to the Settlement Agreement is required to initiate legal action to

       enforce the terms of the agreement, the prevailing party shall be entitled to

       recover its attorneys’ fees from the nonprevailing party. Appellant’s App. Vol.

       II at 18. Based on the plain language of that provision of the settlement

       agreement, it is clear that the parties only intended to deviate from the

       American Rule if another party to the agreement is required to initiate legal

       action. And the Trustee is not a party to the settlement agreement.


[36]   Nonetheless, the Trustee and the Grandsons contend that the parties extended

       the right to seek attorney’s fees to the Trustee because the Trustee was in privity


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019             Page 20 of 24
       with the parties to the agreement. But the Trustee and the Grandsons do not

       cite any authority to support their contention that a trustee is in privity with the

       parties to a settlement agreement that resolves a dispute related to the Trust

       simply because of his role as trustee. 7 Further, even if we were to agree that the

       Trustee was in privity with the parties to the settlement agreement, we still

       could not agree that the Trustee is entitled to attorney’s fees.


[37]   When the parties entered into the agreement, they agreed that the “Settlement

       Agreement shall be binding upon the parties’ heirs, assigns[,] and executors.”

       Id. While the parties specifically provided for the terms of the settlement

       agreement—including the fee-shifting provision—to be binding on their heirs,

       assigns, and executors, the parties, notably, did not provide for the agreement to

       be binding on those who are in privity with the parties to the agreement. Had

       the parties intended for those in privity to be bound by the agreement, they

       could have said so. But they did not. As such, the parties did not extend the

       fee-shifting rights to the Trustee, and the Trustee was not entitled to an award

       of attorney’s fees. We therefore reverse the trial court’s award of attorney’s fees

       for the Trustee. While the Trustee is not entitled to an award of attorney’s fees,

       we note that the Trust specifically granted the Trustee the power “[t]o

       commence or defend, at the expense of the trust, such litigation with respect to the



       7
         The Trustee and the Grandsons only cite Isp.com LLC v. Theising, which held that a receiver of a
       corporation is in privity with the corporation. 805 N.E.2d 767, 774 (Ind. 2004).


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019                                 Page 21 of 24
       trust or any property of the trust estate as the Trustee may deem advisable[.]”

       Id. at 68. (emphasis added). Accordingly, while the Trustee is not entitled to

       have Gary pay his attorney’s fees, the Trustee is authorized to pay his attorney’s

       fees out of the Trust.


                                  Issue Three: Complaint to Quiet Title

[38]   Gary finally contends that the Hamilton Superior Court erred when it dismissed

       his complaint to quiet title pursuant to Indiana Trial Rule 12(B)(8). As this

       Court has previously stated:


               Indiana Trial Rule 12(B)(8) permits the dismissal of an action
               when “[t]he same action [is] pending in another state court of this
               state.” Trial Rule 12(B)(8) implements the general principle that,
               when an action is pending in an Indiana court, other Indiana
               courts must defer to that court’s authority over the case. The rule
               applies where the parties, subject matter, and remedies are
               precisely the same, and it also applies when they are only
               substantially the same.


       Beatty v. Liberty Mut. Ins. Group, 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008)

       (alterations in original). We review a trial court’s dismissal of a complaint

       under Trial Rule 12(B)(8) de novo. See id.


[39]   On appeal, Gary simply asserts that, “[i]f this Court finds that the Marion

       County trial court erred by enforcing the Settlement Agreement to reform the

       terms of the Trust, . . . then this Court should also reinstate the Hamilton

       County Quiet Title Action[.]” Appellant’s Br. at 29. Gary’s contention on this

       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019          Page 22 of 24
       issue is thus contingent upon this Court’s determination that the settlement

       agreement impermissibly altered the terms of the Trust and that the Marion

       Superior Court erred when it enforced that agreement.


[40]   But, as discussed above, we do not agree with Gary that the settlement

       agreement improperly modified the Trust because the Trust provided the

       Trustee with the discretion to hold and sell the assets of the Trust. Accordingly,

       we do not agree with Gary that the Marion Superior Court erred when it

       enforced the settlement agreement. Because the Marion Superior Court did not

       err when it enforced the agreement, we cannot say that the Hamilton Superior

       Court erred when it dismissed Gary’s complaint to quiet title because a

       substantially similar action was pending in Marion County. We affirm the

       Hamilton Superior Court’s dismissal of Gary’s complaint.


                                  Issue Four: Appellate Attorneys’ Fees

[41]   Finally, the Trustee and the Grandsons request that we award them appellate

       attorneys’ fees. It is well settled that, “when a contract provision provides that

       attorneys fees are recoverable, appellate attorney fees may also be awarded.”

       Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1010 (Ind. Ct. App.

       2015). Here, it is undisputed that the settlement agreement provides for

       attorneys’ fees. As the Grandsons have prevailed on appeal, we grant their

       request for appellate attorneys’ fees, and we remand to the trial court for a

       determination of reasonable fees to award the Grandsons. See id. However, as


       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019          Page 23 of 24
       discussed above, the Trustee is not entitled to attorney’s fees, so we decline his

       request for appellate attorney’s fees.


                                                    Conclusion

[42]   In sum, we hold that the Marion Superior Court did not err when it enforced

       the settlement agreement because the settlement agreement did not alter the

       terms of the Trust. We also hold that the Marion Superior Court did not err

       when it awarded attorneys’ fees to the Grandsons because Gary violated a

       provision of the settlement agreement. However, the trial court erred when it

       awarded attorney’s fees to the Trustee because the Trustee was not a party to

       the settlement agreement. We further hold that the Hamilton Superior Court

       did not err when it dismissed Gary’s complaint to quiet title because the same

       matter was pending in Marion County. Finally, we grant the Grandsons’

       request for appellate attorneys’ fees, but we deny the Trustee’s request.


[43]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-TR-915 | May 29, 2019          Page 24 of 24
