Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Jan 29 2014, 10:20 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

CHARLES J. COLLET                               JOHN A. CREMER
Indianapolis, Indiana                           Cremer & Cremer
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KATHLEEN WALTON, Personal                       )
Representative of Estate                        )
of Mary Cox Swisher, Deceased                   )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )         No. 49A02-1307-EU-626
                                                )
ESTATE OF GLENN SWISHER, Deceased,              )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Evan D. Goodman, Judge
                           Cause No. 49D08-1208-EU-30489



                                     January 29, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
      A plaintiff may not enjoy the benefits of a contract without also accepting its

burdens.   In this case, Kathleen Walton, in her asserted capacity as the personal

representative of her mother Mary Cox Swisher’s terminated estate, asks that we reverse

the probate court’s grant of summary judgment in favor of the Estate of Glenn Swisher.

Kathleen claims that Glenn’s Estate was unjustly enriched when, pursuant to a Letter of

Understanding (Letter) signed by himself and Kathleen, he received certain tax benefits

that Kathleen alleges were never explained to her. She also contends that Glenn failed to

pay for household maintenance and expenses that she and Glenn had agreed to in a

separate understanding.

      We find the Letter signed by Glenn and Kathleen, in her capacity as personal

representative of Mary’s Estate, to be an unambiguous and binding contract that negates

the assertions made in Kathleen’s claims against Glenn’s Estate. Therefore, we affirm

the probate court’s grant of summary judgment in favor of Glenn’s Estate.

                                          FACTS

      Mary died on May 14, 2011, and her will was probated on June 10, 2011.

Kathleen was appointed personal representative of Mary’s Estate. On September 8,

2011, Kathleen, who was represented by counsel, signed the Letter with Glenn, Mary’s

surviving husband.    The Letter contains two sections. The first section, section A,

describes the benefits Mary’s Estate will receive, while the second section, section B,

places burdens on Mary’s Estate. The pertinent parts of the Letter read:

      Glenn has fulfilled or will fulfill the following duties,

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        Payment of any outstanding financial obligations due to care facilities and nursing
        services for the support and care of Decedent, presently known or subsequently
        billed.
                                                ...

        Payment of the sum of $5,000 dollars, by check payable to the ESTATE, in
        exchange for which the ESTATE agrees to relinquish any and all claims to any tax
        benefits or refunds received after date of death on any tax returns filed by GLENN
        and DECENDENT (or the ESTATE) prior or subsequent to the date of death.
                                                 ...

        The parties agree that the terms of this Letter of Understanding shall be binding on
        their respective heirs, successors and assigns and the terms provided herein can be
        revised only by a subsequent writing signed by both parties.

Appellee’s App. p. 20.

        After the Letter was executed, Glenn asked his advisors to prepare Federal Form

706 for filing by Mary’s Estate. This filing is made to secure the United States Estate

Tax Portability of Deceased Spouses Unused Exclusion (Unified Tax Credit) under the

Internal Revenue Code section 2010(c). Mary’s Estate signed and returned the Federal

Form 706, as per the terms of the Letter, and it was filed on February 9, 2012.1

        On March 23, 2012, Kathleen filed her Personal Representative’s Verified Closing

Statement to Close Estate upon Completion of Administration (Verified Closing

Statement). Mary’s Estate totaled $100,000 and was not subject to federal or state

inheritance taxes. Before Kathleen filed the Verified Closing Statement, she did not

make any additional claims for living expenses against Glenn. Likewise, after the closing



The Appellee states that the completion of all tax issues in Glenn’s Estate remain unresolved. Appellee’s
1

Br. p. 3.
                                                   3
of Mary’s Estate, Kathleen made no efforts to claim additional living expenses during the

remainder of Glenn’s life.

        Glenn died on July 20, 2012, and his will was probated on August 2, 2012. The

first notice to creditors was on August 17, 2012. On November 14, Kathleen, filing as

the personal representative of Mary’s Estate, filed two claims, Claim One and Claim

Two, against Glenn’s Estate. In Claim One, Kathleen asks that payment in the amount of

$500,000 be applied to Mary’s Estate in compensation for Glenn’s use of the Unified Tax

Credit. Kathleen argues that, without compensation in addition to the $5,000 agreed to

by the Letter, Glenn’s Estate will be unjustly enriched because it was able to reduce its

tax obligation.   Additionally, Kathleen argues that Glenn’s representatives violated

Indiana Rules of Professional Conduct when they failed to explain the tax consequences

of signing the form 706. In Claim Two, Kathleen argues that Glenn’s Estate must

reimburse Mary’s Estate for money spent on living expenses incurred by Mary during her

life based on an “understanding” Kathleen alleges she had with Glenn. Appellant’s App.

p. 3.

        On November 29, 2012, Glenn’s Estate disallowed both claims, and on January 9,

2013, filed its motion for summary judgment on both claims. Glenn’s Estate argued first

that, as Mary’s Estate was closed, Kathleen could no longer act in her capacity as

personal representative of the estate.    It then argued that regardless of Kathleen’s

capacity, the Letter constituted a binding contract, and was therefore controlling. Issuing

specific findings of fact and conclusions of law, the probate court granted Glenn’s

                                            4
Estate’s motion for summary judgment.             While the probate court concluded that

Kathleen, as Mary’s heir, could bring her claims as “any person” claiming an interest

under Indiana Code section 29-1-14-21, it determined that the Letter was controlling as to

the claims, stating that “the entire agreement, binding on all parties, heirs, and assigns, is

contained within the language of the Letter.” Appellant’s App. p. 10 (emphasis in

original).

        As a result of its finding that the Letter was controlling, the probate court found

that Glenn’s Estate was entitled to summary judgment on both claims. Regarding Claim

One, it determined that the Letter was “designed to leave Mary’s Estate virtually debt

free . . . [t]hat was essentially the entire bargain.” The probate court found that the Letter

was unambiguous and that there was no unjust enrichment. Regarding Claim Two, the

court determined that Glenn had paid the expenses for the year proceeding Mary’s death,

which is all the Letter required him to do, and that there was “no legal obligation at law

requiring Glenn to pay living expenses unless they emanated from care facilities or

nursing care pursuant to the Letter.” Id. (emphasis in original).

       Kathleen now appeals.

                             DISCUSSION AND DECISION

                                   I. Standard of Review

       When we review the grant or denial of a summary judgment motion, we apply the

same standard as the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010).

Summary judgment is appropriate only where the evidence shows that no genuine issue

                                              5
of material fact exists and the moving party is entitled to judgment as a matter of law. Id.;

Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are

construed in favor of the nonmoving party, and all doubts concerning the existence of a

material issue must be resolved against the non-moving party. Id. Nevertheless, the trial

court’s grant of summary judgment “enters appellate review clothed with a presumption

of validity,” and the appellant bears the burden of demonstrating that the trial court erred.

Trustcorp Mortg. Co. v. Metro Mortg. Co. Inc., 867 N.E.2d 203, 211 (Ind. Ct. App.

2007).

                                  II. Claims One and Two

         At the outset, we address the issues of Kathleen’s capacity to make claims against

Glenn’s Estate. While Glenn’s Estate is correct in its contention that Kathleen can no

longer be the personal representative of Mary’s terminated Estate, we agree with the

probate court that Kathleen, as Mary’s heir, could have brought her claim as “any person”

claiming an interest under Indiana Code section 29-1-14-21. Accordingly, we decline the

request of Glenn’s Estate to dispense with the case on this basis.

         Proceeding to the merits, we consider whether the Letter was determinative of

Claims One and Two. As a general rule, Indiana law dictates that competent adults be

given the “utmost liberty in entering into contracts that, when entered into freely and

voluntarily, will be enforced by the courts.” Zollman v. Geneva Leasing Associates Inc.,

780 N.E.2d 387, 392 (Ind. Ct. App. 2002). Indiana has long allowed contracting parties



                                             6
to enter into any agreement they desire so long as it is not illegal or against public policy.

Id.

       When reviewing a contract on appeal, our standard of review is well settled; if the

language of the contract is unambiguous, the intent of the parties is determined from its

four corners. Id. A contract is ambiguous only where a reasonable person could find its

terms susceptible to more than one interpretation. Id.

       Here, in Claim One, Kathleen states that Mary’s Estate was entitled to

reimbursement in the amount of $500,000 for Glenn’s use of the Unified Tax Credit.

However, the Letter clearly outlines the benefits due to and burdens placed on Mary’s

Estate and Glenn respectively.     Glenn agreed to pay estate and income tax for Mary’s

Estate, to have his CPA’s and advisors prepare returns for Mary’s Estate, to waive his

survivor allowance, and to pay Mary’s Estate $5,000. Appellee’s App. p. 19-20.

       Kathleen, while represented by counsel, agreed to the Letter so as to receive these

benefits. Id. In exchange, she promised that she would “relinquish any and all claims to

any tax benefits or refunds received after date of death on any tax returns filed by [Glenn]

and [Decendant] (or the [estate]) prior or subsequent to the date of death.” Id. at 20. The

Unified Tax Credit is a tax benefit. Kathleen signed the Letter, and she agreed to

relinquish her claims in exchange for consideration; she cannot now complain that she

should have bargained for more. Moreover, we are not convinced by her assertion that

Glenn’s representatives had a duty to explain to her the Unified Tax Credit. Kathleen



                                              7
was represented by her own counsel at the time the Letter was executed, and we agree

with the probate court that Glenn’s counsel represented Glenn alone.

       In Claim Two, Kathleen alleges that there was an understanding that Glenn was to

take care of Mary’s maintenance and housing fees, and states that, in contradiction with

that understanding, two years prior to her death, Mary’s pension was used to pay Mary’s

maintenance and housing fees in the amount of $32,000. Appellant’s App. p. 16. The

Letter clearly requires that Glenn pay outstanding financial obligations due to care

facilities and nursing services for the support and care of [decedent],” as well as

subsequently billed obligations. As Glenn paid the expenses for the year before Mary’s

death, he fulfilled the terms contained in the Letter, and there is no right of

reimbursement. As the probate court stated, the Letter did “not include the expenses of

daily living unless they were associated with nursing care and it would be beyond the

pale to so interpret it.” Appellant’s App. p. 4.

       We find that the Letter was an unambiguous and binding contract and is

determinative of both Claims. Accordingly, we affirm the judgment of the probate court.

NAJAM, J., and CRONE, J., concur.




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