MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            May 21 2018, 6:11 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David Wemhoff                                            Carl A. Greci
South Bend, Indiana                                      Faegre Baker Daniels LLP
                                                         Indianapolis, Indiana

                                                         Ryan G. Milligan
                                                         Faegre Baker Daniels LLP
                                                         Chicago, Illinois



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re: Estate of Lester Frank                            May 21, 2018
Sumrall, Deceased                                        Court of Appeals Case No.
                                                         71A05-1710-ES-2476
Lester L. Sumrall,                                       Appeal from the St. Joseph Probate
Appellant/Petitioner,                                    Court
                                                         The Honorable James N. Fox,
        v.                                               Judge
                                                         Trial Court Cause No.
Angela N. Grabowski,                                     71J01-1704-ES-68
Appellee/Counter-Petitioner.



Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018           Page 1 of 8
                                          Case Summary
[1]   Lester Frank Sumrall (“the decedent”) died on April 28, 1996. On April 3,

      2017, one of the decedent’s grandsons, Appellant Lester L. Sumrall

      (“Appellant”), requested that the decedent’s estate be opened and administered.

      Appellee Angela N. Grabowski (“Appellee”), the decedent’s granddaughter,

      subsequently requested that the probate court deny Appellant’s request to open

      the decedent’s estate. Appellee argued that the decedent had been dead for over

      twenty years and that there were no estate assets to administer. The probate

      court conducted a hearing after which it granted judgment in favor of the

      Appellee. We affirm.



                            Facts and Procedural History
[2]   The decedent “founded LeSEA (Lester Sumrall Evangelistic Association) [(“the

      ministry”)] in 1957: A ministry which has subsequently given birth to well over

      one hundred books and study guides, eleven television stations, a satellite

      ministry, three FM radio stations, five shortwave stations reaching over ninety

      percent of the world’s population, and a quarterly magazine.” See

      https://lesea.com/about-us/legacy/ (last visited May 9, 2018). The ministry

      has continued to operate following decedent’s death. The decedent died on

      April 28, 1996. At the time of his death, the decedent had three sons: Frank L.

      Sumrall, Stephen P. Sumrall, and Peter A. Sumrall. He was preceded in death

      by his wife.



      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018   Page 2 of 8
[3]   On April 3, 2017, Appellant filed “Petition for Probate and Issuance of Letters

      of Administration and for Supervised Administration” of the decedent’s estate.

      Appellant’s App. Vol. II, p. 10. Appellant claimed to be “interested in the

      decedent’s estate by reason of being the Attorney-In-Fact for Frank Lester

      Sumrall, the eldest son and heir of the decedent.” Appellant’s App. Vol. II, p.

      10. In filing this petition, Appellant acknowledged that the time for filing the

      decedent’s will had passed and that the decedent’s estate should be

      administered as if the decedent died intestate. While the Appellant’s request

      did not detail any specific assets or items of personal property, it indicated “[t]o

      the best knowledge of the [Appellant], and after diligent inquiry by the

      [Appellant], the estate of the decedent is believed to be solvent, included in such

      assets is a possible cause of action against entity(ies) and person(s).”

      Appellant’s App. Vol. II, p. 12.


[4]   On April 21, 2017, Appellee filed a counter-petition in response to Appellant’s

      petition. Specifically, Appellee responded as follows:


              [Appellee] is informed and so believes [d]ecedent’s estate to be
              insolvent in that there are neither assets nor liabilities to
              administer. Decedent died nearly twenty-two years ago on April
              28, 1996. [Appellee] knows of no assets that need [to be]
              administered, nor has any asset of the [d]ecedent been identified
              that needs [to be] administered. Further, [Appellee] knows of no
              cause of action concerning [d]ecedent or his estate that currently
              exists or that existed on [d]ecedent’s date of death, nor has any
              cause of action been identified that needs to be pursued. In any
              event, to the extent any causes of action existed, such causes
              would be barred by the statute of limitations, whether such cause
              exists against or on behalf of [d]ecedent’s estate.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018   Page 3 of 8
      Appellant’s App. Vol. II, pp. 14–15. In reiterating that decedent “has no estate

      assets to administer[,]” Appellee indicated that she “believes [Appellant] filed

      his Petition solely to give him a platform to bring frivolous causes of action

      personal to him on behalf of [d]ecedent’s estate.” Appellant’s App. Vol. II, p.

      15. Five of the six “interested parties and heirs by representation” joined in

      Appellee’s counter-petition.1 Appellant’s App. Vol. II, p. 17.


[5]   On July 13, 2017, the probate court conducted a hearing on the petition and

      counter-petition. During the hearing, Appellant questioned four witnesses and

      gave a lengthy narrative regarding assets that he claimed to have observed in

      either 1996 or 2005. Appellant also discussed (1) a tea set which had allegedly

      belonged to the decedent’s wife and, at some point, had been given to a family

      member as a wedding present; (2) certain copyright interests relating to the

      ministry; and (3) a number of paintings. Appellant, however, did not provide

      any evidence proving that either the copy right interests or the paintings were

      part of the decedent’s estate. At the close of Appellant’s presentation of

      evidence, Appellee’s counsel noted that Appellant did not specify any assets

      that he believed were still in the estate and “admitted that he had … concerns

      about assets moving in 2005” but did nothing to address these alleged concerns

      until 2017. Tr. Vol. II, p. 82. Thus, Appellee’s counsel stated “I’d like to move,

      essentially, by analogy for a direct verdict.” Tr. Vol. II, p. 82.




      1
          Appellant’s father, Frank Lester Sumrall, was the only heir not to join Appellee’s counter-petition.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018                   Page 4 of 8
[6]   Following lengthy argument by the parties, the probate court stated the

      following:


              I see little choice … but to, to grant the motion for judgment on
              the evidence, because I just don’t, I’m not hearing that there’s
              assets that clearly were [decedent’s] assets or liabilities that need
              to be paid, that haven’t been paid, or an asset, that was clearly his
              asset, that was to be distributed, in some manner distribute, that
              wasn’t distributed. And in fact, I think when you called your
              Father, you never established that … there were things he
              believed should have been distributed, and that were his
              Father’s.… I don’t see any choice other than to issue a judgment
              on the evidence, because I just don’t think you presented
              evidence that clearly indicate[s] to me, that, [items of personal
              property] that not only were in the house, but that they were
              assets of, that should have been distributed in the Estate[.]


      Tr. Vol. II, pp. 91–92. The probate court also questioned “why nobody picked

      up the Estate and tried to move it forward, when somebody could have done

      [so] in the intervening time period.” Tr. Vol. II, p. 92. Consistent with its oral

      ruling, the probate court subsequently entered a written order granting

      judgment in favor of the Appellee.



                                 Discussion and Decision
[7]   Appellant waited for more than twenty years following his grandfather’s death

      before requesting that an estate be opened and administered. Appellee

      counters, arguing that the probate court should deny Appellant’s request given

      his failure to make the request in a timely fashion.



      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018   Page 5 of 8
[8]           It is a fundamental rule of law that one who sleeps on his rights
              loses them. Laches addresses delay in the pursuit of a right when
              a party must assert that right in order to benefit from it. The
              doctrine of laches “bars a party’s rights when the party has
              unreasonably delayed their assertion so as to cause prejudice to
              the opposing party. In civil matters, the doctrine of laches
              consists of three elements: (1) inexcusable delay in asserting a
              right; (2) implied waiver from knowing acquiescence in existing
              conditions; and (3) circumstances resulting in prejudice to the
              adverse party. However, the mere passage of time is insufficient;
              the defendant must also show that the plaintiff’s delay was
              unreasonable and that the defendant was prejudiced as a result.


      Hutchinson v. Spanierman, 190 F.3d 815, 822–23 (7th Cir. 1999) (interpreting

      Indiana law, internal citations and quotations omitted). “Prejudice may be

      created if a party, with knowledge of the relevant facts, permits the passing of

      time to work a change of circumstances by the other party.” Burns-Kish Funeral

      Homes, Inc. v. Kish Funeral Homes, LLC, 889 N.E.2d 15, 22 (Ind. Ct. App. 2008).


[9]   There is no doubt that Appellant delayed in requesting that the decedent’s

      estate be opened and administered. By Appellant’s own admission, he had

      knowledge of the decedent’s personal property at the time of the decedent’s

      death. Despite this knowledge, he waited more than twenty years before

      attempting to open and administer the decedent’s estate. Appellant provided

      no reasonable explanation that would excuse his failure to seek to have the

      decedent’s estate administered at some point during the twenty-plus years since

      the decedent’s death. Further, to the extent that Appellant attempts to explain

      his delay by asserting that he had recently come to believe that the decedent’s

      estate had not been distributed according to decedent’s wishes, the record
      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018   Page 6 of 8
       reveals that Appellant has failed to point to any specific items that he believes

       were distributed contrary to decedent’s wishes.


[10]   Appellant’s delay can also be interpreted as an implied waiver of any request for

       the establishment and administration of an estate. Appellant sat idly by and

       delayed in attempting to preserve any claimed interest that he or his father

       might have had in the property. This includes remaining silent after coming to

       believe that some of the decedent’s personal property was moved or distributed

       in 2005. His twelve years of silence after allegedly learning that some of the

       property at issue had been distributed suggests a knowing acquiesce—if not

       outright approval—of the distribution.


[11]   Furthermore, even if it were possible to reacquire the decedent’s alleged

       personal property, doing so would undoubtedly result in prejudice as it would

       create insurmountable evidentiary issues. In this vein, the Appellee argues the

       following:


               [A]ny estate proceeding would necessitate attempting to (a)
               establish what assets belonged to [the decedent], (b) reconstruct
               over twenty years’ worth of history regarding the possession and
               control of household items of personal property unaided by any
               public records, (c) locate and claw items back from heirs or
               distributes, such as the recipient of the ‘multi piece tea set,’ and
               (d) redistribute those purported assets. This exercise in futility is
               a waste of judicial and financial resources.


       Appellee’s Br. p. 23. We agree. The Indiana Supreme Court has noted that

       “[s]uccessful invocation of the doctrine [of laches] in civil cases has included


       Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018   Page 7 of 8
       proof that available witnesses did not have a distinct recollection of the details

       of the case or that they had no access to records which would disclose the

       same.” In re Siegel, 708 N.E.2d 869, 871 (Ind. 1999) (citing French v. State, 547

       N.E.2d 1084, 1088 (Ind. 1989)). The evidentiary issues that would stem from

       attempting to establish ownership of personal property that has been distributed

       over the course of more than twenty years would undoubtedly result in

       prejudice to those adverse to the Appellant’s position as it is unlikely that there

       would be any records of distribution or that any witness would have a clear

       recollection of all of the details surrounding the distribution of the property.


[12]   The judgment of the probate court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1710-ES-2476 | May 21, 2018   Page 8 of 8
