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Thursday, December 03, 2015

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (1):

In Roger S. Blackman v. Karen A. Gholson and James W. Blackman , a 13-page opinion, Judge Barnes writes:

Roger Blackman appeals the trial court’s dismissal of his will contest action and subsequent denial of his motion to correct error. We affirm. * * *

[Analysis I. Dismissal of Action]

Given the development of the law of jurisdiction beginning with K.S., we do not believe that a failure to comply with the statutory procedures for initiating a will contest action impacts a trial court’s subject matter jurisdiction to consider the petition. To the extent Smith or Kitterman held otherwise, we conclude they have been supplanted by K.S. and its progeny. Here, there is no question that the trial court had subject matter jurisdiction to consider Roger’s will contest action. Any failure by Roger to precisely follow the statutory procedures for initiating such an action did not impact subject matter jurisdiction. * * *

Although, admittedly, the statute is not crystal clear, caselaw has emphasized that a will contest action is separate and distinct from the probate of a will, and that it is governed by the Indiana Trial Rules regarding commencement of a civil action; it is not treated merely as a pleading within the probate action. See Avery, 953 N.E.2d at 472. Roger’s failure to comply with the will contest statutes and Trial Rules properly subjected his filing to dismissal.

Roger asserts that he should be forgiven for failing to file the will contest as its own separate civil action, complete with summonses and a filing fee, because his attorney was acting upon the advice of the trial court clerk in not filing it as a separate proceeding. He cites no authority for the proposition that an attorney should be able to rely upon advice from a non-attorney as to legal matters. We decline to create such authority. In sum, the trial court properly granted Karen and James’s motion to dismiss.

II. Journey’s Account Statute

Roger also argues, as he did before the trial court, that he should be permitted to properly re-file his will contest pursuant to the Journey’s Account Statute (“JAS”), following the expiration of the three-month time limit for initiating a will contest. * * *

Here, Roger’s failure to pay a filing fee for the will contest as required by the Trial Rules was negligence in the prosecution of the action and, as such, precludes his reliance upon the JAS to permit refiling of the will contest after the expiration of the statutory time limit for filing such an action.

III. Appellate Attorney Fees

On a final note, Karen and James request that we order Roger to pay their appellate attorney fees. * * *

Karen and James have not convinced us that Roger’s appeal is so permeated with either substantive or procedural bad faith such that an award of appellate attorney fees is warranted.

Conclusion

Although the trial court had subject matter jurisdiction over Roger’s attempted will contest action, it was appropriate to dismiss the action due to his failure to comply with the statutes and rules for initiating such an action. Additionally, Roger’s failure to pay the filing fee for the action precludes reliance upon the JAS to resuscitate it. Although Roger is unsuccessful on appeal, an award of appellate attorney fees against him is not warranted. We affirm.

NFP civil decisions today (3):

A.M. v. Department of Child Services (mem. dec.)

In the Matter of J.A., A Child Alleged To Be In Need Of Services, M.A., Father v. The Indiana Department of Child Services (mem. dec.)

Jerrud P. Seaton v. Mindy S. Foust (mem. dec.)

NFP criminal decisions today (6):

Howard Wilder v. State of Indiana (mem. dec.)

Cherise L. Kelsaw v. State of Indiana (mem. dec.)

Herbert F. Breneman v. State of Indiana (mem. dec.)

Willie Bontempo v. State of Indiana (mem. dec.)

Christopher Keen v. State of Indiana (mem. dec.)

Rayna Robbins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 3, 2015 11:34 AM
Posted to Ind. App.Ct. Decisions