Demaris Snyder Wehr, Timothy John Snyder, Terence Glen Snyder and Daniel Owen Snyder v. Thomas Price, II, individually and as the named of the estate of Nilah Snyder

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

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES THOMAS
PRICE II, KARI MOORE, KAY PRICE,
WILLIAM W. KNOWLES FIRST FRIENDS CHURCH, and
JENNIFER WINNETT DENNISTON EARLHAM COLLEGE:
Knowles & Associates, P.C.
Carmel, Indiana CURTIS E. SHIRLEY
Indianapolis, Indiana
ROBERT M. OAKLEY
Dilley & Oakley, P.C. PHILIP C. THRASHER
Carmel, Indiana Thrasher Buschmann & Voelkel, P.C.
Indianapolis, Indiana
DAVID J. BURTON
Richmond, Indiana ATTORNEY FOR APPELLEE
BARBARA MONAHAN:

BRADLEY J. DOUGHERTY
Indianapolis, Indiana

FILED
Dec 31 2012, 11:02 am

IN THE CLERK
of the supreme court,

COURT OF APPEALS OF INDIANA court of appeals and
tax court

DEMARIS SNYDER WEHR, TIMOTHY JOHN )
SNYDER, TERENCE GLEN SNYDER, and )
DANIEL OWEN SNYDER, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 89A04-1202-PL-76
)
THOMAS PRICE II, individually and as the named )
executor of the estate of Nilah Snyder, THOMAS )
PRICE II, as trustee of the Nilah Snyder Trust, )
BARBARA MONAHAN, KARI MOORE, )
THOMAS PRICE II, KAY PRICE, FIRST )
FRIENDS CHURCH, and EARLHAM COLLEGE, )
)
Appellees-Defendants. )
 APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory A. Horn, Judge
Cause No. 89D02-1102-PL-10

December 31, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary

Orval Snyder and his wife Nilah signed reciprocal wills that left the residuary estate of

the first spouse to die to the surviving spouse, with the surviving spouse’s residuary estate to

be distributed equally among their seven children from prior marriages. Orval died first, and

his residuary estate was distributed to Nilah. After Orval’s death, Nilah transferred assets to

a trust for which she had named her three children and First Friends Church and Earlham

College as beneficiaries. When Nilah died, her probate estate had no assets. Orval’s four

children sued the trust beneficiaries for breach of contract and tortious interference with an

inheritance. The beneficiaries filed a motion for judgment on the pleadings. The trial court

granted the motion, concluding that the beneficiaries had not breached any contract or

tortiously interfered with any inheritance.

On appeal, Orval’s children assert that the trial court erred in granting the

beneficiaries’ motion for judgment on the pleadings. Finding no error, we affirm.

2
 Facts and Procedural History

The relevant facts are undisputed.1 Orval and Nilah were married in 1973. They had

no children together. Orval had four children from a prior marriage: Demaris Snyder Wehr,

Timothy Snyder, Terence Snyder, and Daniel Snyder (collectively, “Appellants”). Nilah had

three children from a prior marriage: Thomas Price II, Barbara Monahan, and Philip Price,

who is deceased.

In January 1985, Orval and Nilah signed reciprocal wills, which provide that when the

first spouse dies, the residue of the estate is to be distributed to the surviving spouse. After

the death of the surviving spouse, the residue of that spouse’s estate is to be distributed

equally among the seven children and stepchildren. The wills also contain a provision stating

that the testator and the testator’s spouse had “made Wills containing certain mutual

provisions in favor of each other and in favor of [their] respective children with the

understanding and upon the condition that neither of [them] will revoke such provisions nor

make any changes therein without the written consent of the other.” Appellees’ App. at 26,

29. Orval’s will names Nilah as the executrix, and Nilah’s will names Thomas Price II as the

executor.

Orval died in April 1993, and his will was probated. The residuary estate was

distributed to Nilah pursuant to the terms of the will. After Orval’s death, Nilah transferred

assets to the Nilah Snyder Trust, which had been created on the same date that the wills were

signed. Thomas Price II is the trustee of Nilah’s trust. Nilah died in September 2010. Her

1
Our factual recitation is based primarily on the trial court’s excellent findings.

3
will was probated, but no estate was ever opened and no personal representative was ever

appointed. Nilah’s probate estate had no assets after expenses.

On February 23, 2011, Appellants filed a complaint against Thomas Price II

(individually and as the named executor of Nilah’s estate and the trustee of Nilah’s trust),

Barbara Monahan, Kay Price (Philip’s widow), Kari Moore (Philip’s adopted daughter), First

Friends Church, and Earlham College (collectively, “Appellees”). Appellees are the named

beneficiaries of Nilah’s trust. On March 7, 2011, Appellants filed a two-count amended

complaint, to which they attached Orval’s and Nilah’s wills. The first count is entitled

“BREACH OF CONTRACT” and reads in pertinent part as follows:

6. Nilah Snyder was contractually bound to comply with the plan for the
distribution of assets set forth in her reciprocal Will.

7. Following the death of Orval Snyder, Nilah Snyder transferred property
to the Nilah Snyder Trust, thereby altering the plan for the distribution
of assets at her death and breaching her obligation to Orval to dispose
of the property in the manner set forth in her reciprocal Will dated
January 29th, 1985.

8. Nilah Snyder’s action with respect to said property defeated the
contractual plan for the distribution of assets which constitutes a breach
of the contract not to change the plan for the distribution of assets,
between Nilah Snyder and her late husband, Orval Snyder.

9. The Plaintiffs herein, as third party beneficiaries of the contract
between Nilah Snyder and Orval Snyder, have been damaged by Nilah
Snyder’s Breach in that they have been denied their respective share of
the assets which were the subject of said contract.

Appellees’ App. at 16, 17.2

2
In its order, the trial court noted that Appellants had received $520,040 of non-probate property after
Orval’s death. Appellants’ App. at 18 (finding 9).

4
 The second count is entitled “TORTIOUS INTERFERENCE WITH

INHERITANCE” and reads in pertinent part as follows:

1. An expectancy of Inheritance was created when the Plaintiffs were
named as beneficiaries of the Last Will and Testaments of Nilah and
Orval Snyder dated January 29th, 1985.

2. As a result of the intentional transfer of property into the Nilah Snyder
Trust, the Plaintiffs were prevented from receiving their expected
inheritance.

3. The intentional transfer of assets to the Nilah Snyder Trust constitutes
tortious conduct because:

a) Nilah Snyder, as executrix of the Orval Snyder Estate, had a
fiduciary duty to the Plaintiffs, who were named beneficiaries of
Orval and Nilah Snyder’s reciprocal Wills.

b) Nilah Snyder received assets at the death of Orval Snyder,
which she subsequently transferred to the Nilah Snyder Trust, as
a result of her confidential relationship with her husband, Orval
Snyder.

c) The transfer of assets to the trustee of the Nilah Snyder Trust
constitutes a breach of fiduciary duty and an abuse of a
confidential relationship.

4. The aforementioned tortious conduct caused the loss of the Plaintiffs’
expected inheritance.

Id. at 18.

Appellees filed a motion for judgment on the pleadings pursuant to Indiana Trial Rule

12(C), and Appellants filed a response. After a hearing, on January 23, 2012, the trial court

issued an order granting Appellees’ motion that contains extensive findings and conclusions,

including the following trenchant observation:

5
 Plaintiffs have not alleged that any of the named Defendants breached
any contract, tortiously interfered with any inheritance, or breached any
fiduciary duty. If, as Plaintiffs contend, Plaintiffs were damaged by Nilah
accepting an inheritance from Orval and, then, transferring that inheritance to
her trust, the complaint should have been timely filed as a claim in Nilah’s
estate. Instead, Plaintiffs have chosen to file suit against a group of
Defendants who have performed no wrongful acts.

Appellants’ App. at 22 (conclusion 18). This appeal ensued.3

Discussion and Decision

Appellants contend that the trial court erred in granting Appellees’ motion for

judgment on the pleadings. It is well settled that

a motion for judgment on the pleadings pursuant to Rule 12(C) attacks the
legal sufficiency of the pleadings. The test to be applied when ruling on a
Rule 12(C) motion is whether, in the light most favorable to the non-moving
party and with every intendment regarded in his favor, the complaint is
sufficient to constitute any valid claim. In applying this test, we may look only
at the pleadings, with all well-pleaded material facts alleged in the complaint
taken as admitted, supplemented by any facts of which the court will take
judicial notice. The standard of review is de novo, and we will affirm the trial
court’s grant of a Rule 12(C) motion for judgment on the pleadings when it is
clear from the face of the pleadings that one of the parties cannot in any way
succeed under the operative facts and allegations made therein.

Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct. App. 2005) (citations omitted).

At the outset, we must express our frustration with Appellants’ failure to include in

their appendix a copy of either the pleadings or the filings related to Appellees’ motion for

judgment on the pleadings, in violation of Indiana Appellate Rule 50(A). See Ind. Appellate

3
In a footnote in their brief, Appellees state that they “moved to dismiss the appeal for multiple
reasons, which the motions panel denied. We here incorporate our motion to dismiss and ask the Court to
reconsider the motions panel decision and dismiss the appeal.” Appellees’ Br. at 2 n.2. We decline Appellees’
request because, as we have said before, a party “may not incorporate argument from another source by
reference.” Dave’s Excavating, Inc. v. City of New Castle, 959 N.E.2d 369, 376 (Ind. Ct. App. 2012) (citing
Oxley v. Lenn, 819 N.E.2d 851, 856 n.2 (Ind. Ct. App. 2004)), trans. denied.

6
Rule 50(A)(2)(f) (stating that an appellant’s appendix “shall contain … pleadings and other

documents from the Clerk’s Record in chronological order that are necessary for resolution

of the issues raised on appeal”) (emphasis added). If Appellees had not included these

documents in their appendix, it would have been extremely difficult, if not impossible, to

review Appellants’ claims of error regarding the trial court’s ruling on the legal sufficiency

of their pleadings.4

Regarding the breach of contract claim, Appellants correctly observe that “an intended

third-party beneficiary may directly enforce a contract.” Appellants’ Br. at 6 (citing, inter

alia, Mogensen v. Martz, 441 N.E.2d 34, 35 (Ind. Ct. App. 1982)). That said, Appellants cite

no authority for the proposition that a third-party beneficiary may enforce a contract against

anyone other than a party or a privy to the contract. Cf. Guraly v. Tenta, 125 Ind. App. 527,

533, 132 N.E.2d 725, 727 (1956) (“Specific performance can not be enforced against one

who is neither a party nor privy to the contract and on whom it is not binding, or by whom no

duty under the contract has been assumed.”), trans. denied; Alexander v. Dowell, 669 N.E.2d

436, 440 (Ind. Ct. App. 1996) (quoting Guraly). Appellees are neither parties nor privies to

any contract between Orval and Nilah, but merely fellow third-party beneficiaries.

Moreover, Nilah complied with her agreement not to revoke her will, and to the extent her

transfer of assets to her trust may have been contrary to the intent of the reciprocal wills,

Appellees are simply not the proper parties to answer for it.

4
We note that Appellees’ appendix contains a copy of the transcript of the hearing on their motion for
judgment on the pleadings, in violation of Indiana Appellate Rule 50(F). See Ind. Appellate Rule 50(F)
(“Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not
reproduce any portion of the Transcript in the Appendix.”).

7
 As for the tortious interference and breach of fiduciary duty claims, Appellants make

no cognizable arguments in their initial brief. Consequently, any issues regarding these

claims are waived. See Kelly v. Levandoski, 825 N.E.2d 850, 857 n.2 (Ind. Ct. App. 2005)

(“[A]ny argument an appellant fails to raise in his initial brief is waived for appeal.”), trans.

denied.5 In sum, we affirm the trial court’s grant of Appellees’ motion for judgment on the

pleadings.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.

5
Appellants also make some vague references to fraud, but their complaint contains no specific
averments of fraud, as is required by Indiana Trial Rule 9(B).

8