FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:
JOSHUA D. HAGUE                                  BRIAN J. PAUL
LIBBY Y. GOODKNIGHT                              NATHANIEL M. UHL
Krieg DeVault LLP                                Ice Miller LLP
Carmel, Indiana                                  Indianapolis, Indiana

                                                                     Dec 05 2013, 9:06 am


                              IN THE
                    COURT OF APPEALS OF INDIANA


OLD NATIONAL BANCORP d/b/a                       )
OLD NATIONAL TRUST COMPANY, as                   )
Trustee of the Percy E. Goodrich Trust and the   )
Hanover College Trust,                           )
                                                 )
       Appellant-Respondent,                     )
                                                 )
              vs.                                )   No. 68A05-1303-TR-111
                                                 )
HANOVER COLLEGE,                                 )
                                                 )
       Appellee-Petitioner.                      )



                    APPEAL FROM THE RANDOLPH CIRCUIT COURT
                           The Honorable Jay L. Toney, Judge
                            Cause Nos. 68C01-1110-TR-116
                                       68C01-1110-TR-117



                                      December 5, 2013

                              OPINION - FOR PUBLICATION

DARDEN, Senior Judge
                              STATEMENT OF THE CASE

       Old National Trust Company (“Old National”) served as the trustee for both the

Percy E. Goodrich Trust and the Hanover College Trust. In 2012, Hanover College

petitioned the trial court to terminate both trusts. Following a hearing, the trial court

entered judgments terminating both trusts and ordering the transfer of the trusts’ assets to

Hanover College.

       Old National, as Trustee, brought separate appeals from the trial court’s orders

terminating both trusts. The two appeals were consolidated into one, and Hanover

College filed a motion to dismiss the appeal alleging that Old National lacked standing.

As this issue is dispositive, we need not and cannot consider the appeal on its merits, and,

therefore, we dismiss.

                                             ISSUE

       Whether Old National has standing to pursue an appeal of the trial court’s

judgments terminating the trusts.

                           FACTS AND PROCEDURAL HISTORY

       In 2012, Hanover College filed petitions to terminate both the Hanover College

Trust and the Goodrich Trust pursuant to Indiana Code section 30-4-3-24.4. At that time,

Old National was the Trustee of both trusts. The trial court held a hearing on both

petitions on September 27, 2012. On February 14, 2013, the trial court issued its findings

of fact and conclusions of law granting Hanover College’s petitions, approving

immediate termination of both trusts, and ordering Old National to transfer the trust

                                             2
assets to Hanover College. Old National did not seek a stay of the trial court’s judgment

but rather transferred the assets of both trusts to Hanover College and subsequently

brought appeals, in its capacity as Trustee, in both causes.

       This Court granted Hanover College’s unopposed motion to consolidate the

appeals, and Hanover College subsequently filed a motion to dismiss on the ground that

Old National lacked standing to bring the appeal. Old National filed a response, and

Hanover College has filed a reply and a motion to accept its reply, which we grant under

separate order.

                             DISCUSSION AND DECISION

       Hanover College contends that Old National lacks standing to pursue this appeal.

Standing is defined as having a sufficient stake in an otherwise justiciable controversy.

Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind.

1999). The point of the standing requirement is to insure that the party before the court

has a substantive right to enforce the claim that is being made in the litigation. Pence v.

State, 652 N.E.2d 486, 487 (Ind. 1995). The standing requirement is a limit on the

court’s jurisdiction that restrains the judiciary to resolving real controversies in which

there is a demonstrable injury to the complainant. Id. at 488. Accordingly, in order to

have standing, the complaining party must show adequate injury or the immediate danger

of sustaining some injury. Id.

       In the present case, the trial court terminated the trusts in its judgment of February

14, 2013. In granting Hanover College’s petitions to terminate the trusts, the trial court

stated that it approved termination of the trusts “effective immediately,” and ordered the

                                              3
parties to do all things necessary to effectuate the termination of the trusts, including

transfer of the trusts’ assets from Old National to Hanover College. Appellant’s App. pp.

17, 24. The parties agree that the trusts terminated and the assets were transferred.

       Generally, upon the termination of a trust, the powers and office of the trustee

terminate. 90 C.J.S. Trusts § 114 (2010); see also Clifford v. Helvering, 105 F.2d 586,

590 (8th Cir. 1939) (stating that when trust ceases, powers and office of trustee

terminate), rev’d on other grounds, 309 U.S. 331, 60 S. Ct. 554, 84 L. Ed. 788 (1940).

An exception to this general rule is the continuation of the powers of the trustee for a

reasonable time in a restricted manner in order to wind up the trust and distribute trust

property. 90 C.J.S. Trusts § 114. However, even in such a case, upon completion of the

winding up of the trust, the trustee’s remaining limited powers terminate.

       We find Union Savings & Trust Co. v. Eddingfield, 78 Ind. App. 286, 134 N.E.

497 (1922), instructive. In that case, a trust company was appointed administrator of an

estate. Later, the trial court issued an order revoking the trust company’s letters of

administration. The trust company appealed in its representative capacity, and this Court

stated that the order of revocation was self-executing and took effect immediately. The

order completely stripped the trust company of its representative capacity and authority

such that its prior connection with the estate was completely severed and that

“[t]hereafter it had no more standing as an administrator than a dead man.” Id. at 498.

       More recently, a panel of this Court discussed standing in Simon v. Simon, 957

N.E.2d 980 (Ind. Ct. App. 2011).        There, after having been removed as personal

representative and trustee of her late husband’s estate and trust, Bren Simon brought an

                                             4
appeal of an order of the trial court in her representative capacities. This Court noted that

the trial court’s removal order had not been stayed and held that Bren lacked standing to

maintain the appeal because when she was removed as personal representative and

trustee, she lost her authority to pursue the appeal in a representative capacity.

       Similarly here, the trial court’s termination orders took effect immediately and Old

National did not request a stay of those orders.          Once the trusts terminated, Old

National’s representative capacity was terminated and, along with it, any power or ability

to act on behalf of the trusts. Therefore, Old National cannot maintain this appeal in its

representative capacity.

       Just short of outright concession of this point, Old National responds that it is not

bringing this appeal in its representative capacity. Rather, it states that it is appealing in

its individual capacity. See Appellant’s Response to Motion to Dismiss, pp. 6-7. In

support of this argument, Old National claims that it is an aggrieved party pursuant to

Indiana Code section 30-4-6-11(a). Under the Trust Code, “[a]ny person considering

himself aggrieved by any decision of a court having jurisdiction in proceedings under this

article may prosecute an appeal to the court having jurisdiction of such an appeal.” Ind.

Code § 30-4-6-11(a). Old National asserts that it is personally aggrieved by the trial

court’s orders terminating the trusts because the orders terminated its position as trustee

and ended its administration of the trusts’ assets. Therefore, it maintains it has standing

to pursue this appeal.

       We again turn to this Court’s decision in Simon. Bren, like Old National, argued

that she had standing as an aggrieved party under Indiana Code section 30-4-6-11(a) and

                                              5
the corresponding statute in the Probate Code, Indiana Code section 29-1-1-22. The

Court noted, however, that just as Indiana Appellate Rule 17(A) provides that “[a] party

of record in the trial court . . . shall be a party on appeal,” the converse is also true: a

person who is not a party of record in the trial court cannot become a party for the first

time on appeal. Simon, 957 N.E.2d at 989. Accordingly, to prosecute an appeal, the

entity considering itself aggrieved must have first been a party before the trial court. Id.

at 988-89. Additionally, there are no appellate rules providing for intervention in an

appeal. Id. at 989.

       The Court then noted that after her removal as personal representative and trustee,

Bren did not move to intervene in her individual capacity in the trial court. Further, the

Court stated that the fact that Bren was personal representative and trustee at the moment

she filed her request for certification of an interlocutory appeal did not mean she retained

her standing to maintain the appeal after she lost her fiduciary status. Consequently, the

Court concluded that Bren, who brought the appeal in her representative capacity and did

not intervene in the trial court in her individual capacity, could not establish standing as

an aggrieved party for the first time on appeal. Id.

       Here, Old National, in its individual capacity, was not a party in the trial court.

Further, after the trial court ordered the trusts terminated, Old National did not move to

intervene in its individual capacity. Merely because Old National is aggrieved by losing

the business and corresponding revenue that is involved in holding the position of trustee

and administering trust assets does not automatically confer standing. As the Court found

with Bren in the Simon case, the fact that Old National is aggrieved is insufficient in itself

                                              6
to confer standing where Old National no longer occupies its representative capacity and

did not intervene in its individual capacity. Standing is a jurisdictional prerequisite, and

one with standing can lose it. Id.

       In summary, we hold that Old National lacks standing to pursue this appeal. Old

National did not obtain a stay of the trial court’s order terminating the trusts. Therefore,

the trusts, as well as Old National’s position as trustee, terminated. As Old National is no

longer the trustee of the trusts, it can no longer litigate in its representative capacity on

behalf of the trusts.

       In addition, Old National did not intervene in its individual capacity in the trial

court. Thus, Old National was not a party in the trial court, and, consequently, it cannot

be an aggrieved party on appeal.

                                      CONCLUSION

       For the reasons stated, we are without jurisdiction to consider this appeal on the

merits, and we dismiss.

       Dismissed.

BAKER, J., and NAJAM, J., concur.




                                             7
