MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                   May 22 2019, 6:22 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Timothy C. Krsak                                         Benjamin T. Ballou
Douglas Koeppen & Hurley                                 Hodges and Davis, P.C.
Valparaiso, Indiana                                      Merrillville, Indiana

                                                         Brian P. Popp
                                                         Laszlo & Popp, P.C.
                                                         Merrillville, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Unsupervised Estate of                         May 22, 2019
Margaret A. Exo                                          Court of Appeals Case No.
                                                         18A-EU-3107
Sarah Marie Exo and Amy
Elizabeth Gould,                                         Appeal from the Porter Superior
                                                         Court
Appellants-Petitioners,
                                                         The Honorable Roger V.
        v.                                               Bradford, Judge
                                                         The Honorable Mary A. DeBoer,
Timothy DonLevy, in his capacity                         Magistrate
as Personal Representative of the                        Trial Court Cause No.
Estate of Margaret A. Exo,                               64D01-1711-EU-10753
Appellee-Respondent



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019                Page 1 of 8
                                             Case Summary
[1]   Margaret A. Exo’s Last Will and Testament (“the Will”) named the Margaret

      A. Exo Revocable Living Trust (“the Trust”) as sole beneficiary of Margaret’s

      estate (“the Estate”). The Will named Timothy DonLevy as personal

      representative of the Estate, and the Trust named DonLevy as successor trustee

      of the Trust upon Margaret’s death. Almost a year after Margaret’s death, her

      daughters, Sarah Marie Exo and Amy Elizabeth Gould (“Daughters”) filed

      petitions under two different trial court cause numbers to docket the Trust and

      to compel a Trust accounting. Daughters filed one petition under a trust cause

      number (“the Trust Case”), and essentially the same petition with the probate

      court under the cause number associated with the unsupervised Estate (“the

      Estate Case”). DonLevy, in his capacity as successor trustee of the Trust, filed

      a motion to dismiss the petition filed in the Trust Case. Similarly, in his

      capacity as personal representative, he filed motions to strike and to dismiss the

      petition filed in the Estate Case. Separate orders granting DonLevy’s motions

      and dismissing Daughters’ petitions were issued by the Porter Superior Court.

      Daughters appeal the dismissal of each petition, and today we issue the current

      decision affirming the trial court’s dismissal in the Estate Case and a

      companion decision reversing the dismissal in the Trust Case. See Exo v. The




      Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019   Page 2 of 8
      Margaret A. Exo Revocable Living Tr., No. 18A-TR-3106 (Ind. Ct. App. May 22,

      2019).1


                                  Facts and Procedural History
[2]   The facts relevant to our consideration of Daughters’ petitions under each cause

      number differ slightly. On October 3, 2017, Margaret died testate while

      domiciled in Porter County. The Will, dated September 28, 2013, named

      DonLevy as personal representative and the Trust as the sole beneficiary of the

      Estate. Margaret had originally executed the Trust on March 31, 2003, with

      amendments occurring on December 16, 2010, and September 28, 2013.

      Although Margaret was named as trustee of the Trust, the September 2013

      amendment to the Trust named DonLevy as successor trustee. Per the terms of

      the Trust, upon its termination which occurred at Margaret’s death, Daughters

      are each entitled to receive annuity payments over a twenty-year term.

      Following Margaret’s death, on November 9, 2017, DonLevy filed a notice to

      open an estate with the probate court and a petition for “Probate of Will and

      Issuance of Letters Testamentary and for Unsupervised Administration.”

      Appellants’ App. Vol. 2 at 5. On November 20, 2017, the probate court entered

      its order probating the will, appointing DonLevy as personal representative, and

      ordering unsupervised administration of the Estate.




      1
       Our motions panel denied Daughters’ request to consolidate the appeals and instead directed that the
      appeals under each trial court cause number be assigned to the same writing panel.

      Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019                    Page 3 of 8
[3]   In May 2018, Daughters appeared by counsel in the Estate Case. Sometime

      thereafter, Daughters sought certain information from DonLevy, in his capacity

      as successor trustee of the Trust, regarding the Trust and its assets. When

      Daughters’ efforts to obtain that information failed, on September 10, 2018,

      they filed a “Verified Petition to Compel Estate Inventory, to Docket the

      Margaret A. Exo Revocable Living Trust, and to Compel Trust Accounting”

      under the cause number assigned to the unsupervised estate, 64D01-1711-EU-

      10753, in the Estate Case. Id. at 6.2 In short, Daughters requested the probate

      court to order DonLevy, in his capacity as personal representative, to file an

      inventory of the Estate’s assets, and to order him, in his capacity as successor

      trustee of the Trust, to docket the Trust instrument and to provide Daughters

      with an accounting of Trust property. That same day, DonLevy filed an

      inventory of the Estate’s assets with the probate court. The court set the

      Daughters’ petition for a November 14, 2018, hearing. However, on November

      7, 2018, DonLevy filed motions to strike and to dismiss Daughters’ petition

      pursuant to Indiana Trial Rules 12(F) and 12(B)(6), along with a memorandum

      of law in support of the motions. Daughters filed their response to DonLevy’s

      motions, and DonLevy filed his reply. On November 30, 2018, the probate

      court entered its order summarily granting DonLevy’s motions without a

      hearing. This appeal ensued.



      2
       Daughters filed a virtually identical petition to docket the Trust and to compel a Trust accounting in the
      Porter Superior Court in the Trust Case under cause number 64D02-1809-TR-8722. We address the trial
      court’s resolution of that petition in the companion decision issued today in Exo v. The Margaret A. Exo
      Revocable Living Tr., No. 18A-TR-3106 (Ind. Ct. App. May 22, 2019).

      Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019                        Page 4 of 8
                                     Discussion and Decision
[4]   Daughters argue that the probate court improperly granted DonLevy’s motions

      to strike and to dismiss their petition, filed in the Estate Case, to docket the

      Trust and compel a Trust accounting. We disagree.


[5]   Indiana Trial Rule 12(F) provides that “the court may order stricken from any

      pleading any insufficient claim or defense or any redundant, immaterial,

      impertinent, or scandalous matter.” A motion to strike pursuant to Trial Rule

      12(F) is properly utilized to attack the sufficiency of the complaint to state a

      redressable claim. Anderson v. Anderson, 399 N.E.2d 391, 407 (Ind. Ct. App.

      1979). A trial court has broad discretion in ruling on a motion to strike a

      pleading, and its decision will not be reversed unless prejudicial error is clearly

      shown. Cua v. Ramos, 433 N.E.2d 745, 752 (Ind. 1982).


[6]   Similarly, an Indiana Trial Rule 12(B)(6) motion to dismiss for failure to state a

      claim tests the legal sufficiency of the plaintiff’s claim. Bellwether Prop., LLC v.

      Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017). We review a Rule

      12(B)(6) dismissal de novo, and we accept as true the facts alleged, viewing the

      pleadings in the light most favorable to the nonmoving party, with “every

      reasonable inference construed in the nonmovant’s favor.” BloomBank v. United

      Fid. Bank F.S.B., 113 N.E.3d 708, 720 (Ind. Ct. App. 2018) (citation omitted),

      trans. denied (2019). Our review of the trial court’s decision under Trial Rule

      12(B)(6) is de novo because “deciding a motion to dismiss based upon failure to

      state a claim involves a pure question of law.” Gordon v. Purdue Univ., 862


      Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019   Page 5 of 8
      N.E.2d 1244, 1250 (Ind. Ct. App. 2007). When, as here, a court grants a

      motion to dismiss without reciting the grounds relied upon, it must be

      presumed on review that the court granted the motion to dismiss on all the

      grounds in the motion. Lawson v. First Union Mortg. Co., 786 N.E.2d 279, 281

      (Ind. Ct. App. 2003).


[7]   DonLevy’s motions to strike and dismiss Daughters’ petition in the Estate Case

      were based upon the assertion that Daughters are not “interested persons” as

      defined by the Probate Code, and therefore they cannot pursue remedies and/or

      claims in the Estate Case regarding the Trust. The Probate Code “specifically

      circumscribes” the instances when “interested persons” may “inject themselves

      into the administration of [an] estate.” Inlow v. Henderson, Daily, Withrow &

      DeVoe, 787 N.E.2d 385, 393 (Ind. Ct. App. 2003), trans. denied. The term

      “interested persons” is defined in Indiana Code Section 29-1-1-3 as “heirs,

      devisees, spouses, creditors, or any others having a property right in or claim

      against the estate of a decedent being administered. This meaning may vary at

      different stages and different parts of a proceeding and must be determined

      according to the particular purpose and matter involved.”


[8]   At this stage of the unsupervised Estate Case, and according to the particular

      purpose of Daughters’ petition (which is to compel the docketing of the Trust

      and a Trust accounting), we agree with DonLevy that Daughters are not

      interested persons as contemplated by the Probate Code. It is undisputed that

      the Trust is the sole beneficiary of the Estate. Daughters make no assertion in

      their petition that they have a property right or claim against the Estate, and

      Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019   Page 6 of 8
      they seek no remedy from the Estate itself.3 From our thorough review of

      Daughters’ petition, it is clear that at this late juncture, they do not seek to

      inject themselves into the administration of the Estate, but they do seek to inject

      themselves into the administration of the Trust.


[9]   We further observe that Daughters’ petition in the Estate Case is redundant of

      their almost identical petition filed in the Trust Case, which, as we already

      noted, we address by separate decision issued today.4 Daughters concede that

      they filed duplicative petitions because they were simply “unsure” whether to

      seek relief from the probate court under the Estate cause number or under an

      independent cause number. Appellants’ Br. at 5.5 We think the filing of a

      petition under an independent trust cause number was the proper avenue, see

      Ind. Code § 30-4-6-5 (providing that “[a]ny proceedings under this article may

      be initiated on either petition or complaint and upon notice provided” in

      Indiana Code Section 30-4-6-6), and Daughters have shown no prejudicial error



      3
       Daughters briefly mention that by seeking to docket the Trust, they are simply “pursu[ing] assets on behalf
      of the Estate.” Reply Br. at 4. However, Daughters have no such authority, as it is well settled that only
      DonLevy, in his capacity as personal representative, is entitled to pursue assets on behalf of the Estate. See
      Ind. Code § 29-1-13-1 (personal representative shall have right to take, and shall take, possession of all real
      and personal property of decedent); Ind. Code § 29-1-13-3 (personal representative shall have power to
      maintain any suit for any demand of whatever nature due the decedent or his estate).
      4
        The only difference in the current petition is Daughters’ request for the court to compel DonLevy to file an
      inventory of the Estate’s assets, and Daughters admit that he has since done so. Accordingly, that portion of
      the petition has been rendered moot. Horseman v. Keller, 841 N.E.2d 164, 170 (Ind. 2006) (mootness doctrine
      leads courts to decline to address merits of claims that have otherwise been resolved).
      5
        Daughters suggest that they filed duplicative petitions because it was possible that the Estate court would
      have continuing jurisdiction over the administration of the Trust even after the distribution was made from
      the Estate to the Trust. However, the default rule is that “with respect to a decedent’s estate docketed for the
      purpose of probate administration … the court shall have no continuing jurisdiction over the administration
      of the trust after any distribution from the estate is paid or delivered to the trustee.” Ind. Code § 30-4-6-4(2);
      In re Edwardson Revocable Trust, 949 N.E.2d 851, 854 (Ind. Ct. App. 2011), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-EU-3107 | May 22, 2019                           Page 7 of 8
       as a result of the dismissal of their redundant petition. Therefore, we affirm the

       probate court’s order striking and dismissing Daughters’ petition filed in the

       Estate Case.


[10]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




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