Connie Duty, Coleen Grayson, and Frank Riffert v. The Estate of Hazel A. Geiselman (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jun 28 2016, 8:36 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES
Mark K. Phillips Max E. Fiester
Phillips Law, P.C. Bradley J. Salmon
Boonville, Indiana Terrell, Baugh, Salmon & Born,
LLP
Evansville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Connie Duty, Coleen Grayson, June 28, 2016
and Frank Riffert, Court of Appeals Case No.
Appellants/Plaintiffs/Cross-Appellees, 87A01-1510-TR-1815
Appeal from the Warrick Circuit
v. Court
The Honorable Greg A. Granger,
The Estate of Hazel A. Judge
Geiselman, Deceased; Jane Ann Trial Court Cause No.
Hamby, Individually; Jane Ann 87C01-1404-TR-48
Hamby, as Personal
Representative of the Estate of
Hazel A. Geiselman; and Jane
Ann Hamby, as Trustee of the
Hazel A. Geiselman Revocable
Declaration of Trust Agreement,

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 1 of 13
 Appellees/Defendants/Cross-

Appellants.

Bradford, Judge.

Case Summary
[1] Appellants/Plaintiffs/Cross-Appellees Connie Duty, Coleen Grayson, and

Frank Riffert (collectively, “Appellants”) appeal the trial court’s award of

summary judgment in favor of Appellees/Defendants/Cross-Appellants the

Estate of Hazel A. Geiselman (the “Estate”) and Jane Ann Hamby,

individually and in her position as personal representative of the Estate

(collectively, “Appellees”). Appellees argue on cross-appeal that the trial court

erred in denying Hamby summary judgment in her additional position as

trustee of the Hazel A. Geiselman Revocable Declaration of Trust Agreement

(“the Trust”). Concluding that the trial court’s award of summary judgment in

favor of the Estate and Hamby, individually and in her position as personal

representative of the Estate, was proper but that Hamby was also entitled to

summary judgment in her additional position as trustee of the Trust, we affirm

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 2 of 13
 in part, reverse in part, and remand to the trial court with instructions to enter

summary judgment in favor of Hamby in her position as trustee of the Trust.

Facts and Procedural History
[2] Hazel Geiselman (“Decedent”) executed the Trust on September 5, 2002.

Pursuant to the terms of the Decedent’s will and the terms of the Trust, the

assets of Decedent’s Estate were to be distributed according to the terms of the

Trust. Appellants are three of Decedent’s nieces and nephews and are listed

among the beneficiaries of the Trust. Since executing the Trust in 2002,

Decedent has amended the Trust on numerous occasions. On April 29, 2013,

Decedent amended the Trust documents to change each of the Appellants’

interests in the Trust from a 1/9 percentage to a flat $10,000.

[3] Decedent died on July 24, 2013. After Decedent’s death, Appellants filed the

underlying lawsuit challenging the validity of Decedent’s April 29, 2013

amendment to the Trust documents. Appellees subsequently filed a motion for

summary judgment, arguing that no issues of material facts remained and that

they were entitled to judgment as a matter of law. Appellees also filed

designated evidence in support of their motion for summary judgment.

Appellants failed to timely respond to Appellees’ motion for summary

judgment.

[4] After failing to timely respond to Appellees’ motion for summary judgment,

Appellants filed a motion for emergency relief, blaming their failure to file a

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 3 of 13
 timely response to Appellees’ motion for summary judgment on a medical

emergency suffered by a paralegal who worked in their counsel’s office.

Appellants asserted that due to the paralegal’s medical emergency, they should

be permitted permission to belatedly file their response to Appellees’ motion for

summary judgment.1 The trial court subsequently denied Appellants’ request

for emergency relief and for permission to file a belated response to Appellees’

motion for summary judgment.

[5] On July 17, 2015, the trial court issued an order granting summary judgment in

favor of the Estate and Hamby, individually and in her position as personal

representative of the Estate. The trial court denied summary judgment for

Hamby in her position as trustee for the Trust. Appellants then filed a motion

to correct error. Appellants’ motion to correct error was subsequently denied.

This appeal follows.

Discussion and Decision
[6] Initially, we note that Appellants tendered a defective Appendix. Appellants

were notified of the defect contained within their Appendix and of the steps

necessary to cure said defect. Appellants, however, have failed to take those

steps. Thus, consistent with the warning given to Appellants in the notice of

defect issued by the Clerk of this court, Appellants’ Appendix has been marked

1
At some point, Appellants also filed a motion to consolidate any challenges to the Estate with
their challenge to the administration of the Trust. This motion was denied by the trial court.

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 4 of 13
 as “received” rather than “filed.” We will therefore not consider any

information contained in Appellants’ Appendix in our review of the instant

appeal.

I. Appellants’ Motions to Consolidate and for
Emergency Relief
[7] Appellants contend that the trial court abused its discretion in denying their

motions to consolidate and for emergency relief. For their part, Appellees

contend that the propriety of these motions is not properly before this court on

appeal. We agree with Appellees.

[8] Indiana Appellate Rule 9(F) provides that the notice of appeal filed by the

appealing party shall include the following:

(3) Designation of Appealed Order or Judgment.
(a) The date and title of the judgment or order
appealed;
(b) The date on which any Motion to Correct Error was
denied or deemed denied, if applicable;
(c) The basis for appellate jurisdiction, delineating
whether the appeal is from a Final Judgment, as defined
by Rule 2(H); an interlocutory order appealed as of right
pursuant to Rule 14(A) or 14(D); an interlocutory order
accepted for discretionary appeal pursuant to Rule 14(B)
or 14(C); or an expedited appeal pursuant to Rule 14.1;
and
(d) A designation of the court to which the appeal is
taken.

(Emphasis in original).

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 5 of 13
[9] In the instant matter, the Appellants’ Amended Notice of Appeal specifically

indicated that Appellants were appealing from the “ENTRY OF SUMMARY

JUDGMENT.” Amended Notice of Appeal, p. 2. The Amended Notice of

Appeal further indicated that their Motion to Correct Error had been deemed

denied after the trial court failed to rule upon the motion within forty-five days.

The Amended Notice of Appeal did not contain any reference to the trial

court’s orders denying their motion to consolidate or their motion for

emergency relief.

[10] Furthermore, Appellants’ motions to consolidate and for emergency relief were

denied prior to the entry of summary judgment and did not constitute final

orders. As such, the trial court’s rulings on these motions should have been

challenged, if certified,2 in an interlocutory appeal. Appellants did not request,

much less receive, certification of these orders for interlocutory appeal from the

trial court and this court did not accept jurisdiction of an interlocutory appeal of

the trial court’s rulings relating to Appellants’ motions to consolidate or for

emergency relief.

[11] Given that Appellants failed to either list the trial court’s orders relating to their

motions to consolidate and for emergency relief in the Amended Notice of

2
The trial court’s orders on Appellants’ motions to consolidate and for emergency relief did not
qualify as an order to which one is entitled to an interlocutory appeal as a matter of right under
Indiana Appellate Rule 14(A). See Ind. Appellate Rule 14(A). Appellants, therefore, could only
have brought an interlocutory appeal from these orders if the trial court certified the orders for
interlocutory appeal and this court accepted jurisdiction over the requested appeal. See Ind.
Appellate Rule 14(B).

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 6 of 13
 Appeal and their failure to seek interlocutory appeal from these orders, we

conclude that the trial court’s orders relating to Appellants’ motions to

consolidate and for emergency relief are not properly before this court on

appeal. As such, we will not review the propriety of these rulings in our

resolution of the instant appeal.

II. Award of Summary Judgment
[12] Appellants next contend that the trial court erred in granting summary

judgment in favor of the Estate and Hamby, in her positon as personal

representative of the Estate.

A. Standard of Review
[13] Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary

judgment is appropriate when there are no genuine issues of material fact and

when the moving party is entitled to judgment as a matter of law. Heritage Dev.

of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887 (Ind. Ct. App.

2002).

“On appeal from the denial of a motion for summary judgment,
we apply the same standard applicable in the trial court.
Summary judgment is appropriate only if there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C). We
therefore must determine whether the record reveals a genuine
issue of material fact and whether the trial court correctly applied
the law. A genuine issue of material fact exists where facts
concerning an issue, which would dispose of the litigation are in
dispute, or where the undisputed material facts are capable of

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 7 of 13
 supporting conflicting inferences on such an issue. If the material
facts are not in dispute, our review is limited to determining
whether the trial court correctly applied the law to the undisputed
facts. When there are no disputed facts with regard to a motion
for summary judgment and the question presented is a pure
question of law, we review the matter de novo.”

Clary v. Lite Machines Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006) (quoting

Bd. of Tr. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81-82 (Ind. Ct. App. 2002)

(internal quotation marks and some citations omitted)).

[14] A party seeking summary judgment bears the burden to make a
prima facie showing that there are no genuine issues of material
fact and that the party is entitled to judgment as a matter of law.
American Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424,
428 (Ind. Ct. App. 1996). Once the moving party satisfies this
burden through evidence designated to the trial court pursuant to
Trial Rule 56, the non-moving party may not rest on its
pleadings, but must designate specific facts demonstrating the
existence of a genuine issue for trial. Id.

Heritage Dev., 773 N.E.2d at 888. “On appeal, the trial court’s order granting or

denying a motion for summary judgment is cloaked with a presumption of

validity.” Van Kirk v. Miller, 869 N.E.2d 534, 540 (Ind. Ct. App. 2007), trans.

denied. However, we are not limited to reviewing the trial court’s reasons for

granting or denying summary judgment but rather may affirm the trial court’s

ruling if it is sustainable on any theory found in the evidence designated to the

trial court. See Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263,

267 (Ind. 2014) (citing Wagner v. Yates, 912 N.E.2d 805, 811 (Ind. 2009)).

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 8 of 13
 B. Analysis
[15] In arguing that the trial court erred in granting summary judgment in favor of

Appellees, Appellants claim that they are “unsure why the trial court elected to

strike their Response in Opposition to Summary Judgment and Designation of

Evidence.” Appellants’ Br. p. 15. The record, however, is clear. Appellants’

response and designation of evidence was stricken from the record because it

was not timely filed. In making this claim with respect to the trial court’s

summary judgment order, Appellants merely re-assert their above-discussed

claim that the trial court abused its discretion in denying their motion for

emergency relief. For the reasons stated above, we disagree.

[16] Further, Appellants claim that their “attempts to bring their issues before the

trial court were blocked at every turn, requiring the filing of numerous

pleadings, which, rather than simplify the issues, made them more confusing.”

Appellants’ Br. p. 19. Review of the record, however, demonstrates that despite

Appellants’ claim to the contrary, the trial court did not act in a manner so as to

“block” their attempts to present their case before the court. In fact, nothing

other than their own failure to comply with the Indiana Rules of Trial

Procedure and to timely respond to Appellees’ motion for summary judgment

has negatively impacted their ability to present their position to the trial court.

[17] Appellants argue that summary judgment was inappropriate because issues of

material fact remain as to whether (1) the Decedent was of sound mind when

she amended the Trust documents on April 29, 2013, (2) Hamby asserted

undue influence over the Decedent, or (3) the Decedent amended the Trust
Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 9 of 13
 documents as a result of duress or fraud. Review of the evidence properly

designated before the trial court reveals that nothing in the designated evidence

suggests that, much less creates an issue of material fact as to whether, Hamby

asserted undue influence over the Decedent or that Decedent amended the

Trust documents because of duress or fraud.

[18] With respect to whether the Decedent was of sound mind when she amended

the Trust documents on April 29, 2013, Appellants argue that summary

judgment was inappropriate because medical records relating to treatment

Decedent received between April 16 and April 22, 2013, indicated that

Decedent’s “comprehension [was] uncertain as she appear[ed] to be confused at

times.” Appellants’ Reply Br. p. 3. However, medical records relating to

additional medical treatment Decedent received on April 29, 2013, made no

mention of any “confusion” and indicated that, at the time she received medical

treatment, Decedent was alert and exhibited normal speech and neurological

function. The April 29, 2013 medical records further indicated that during the

course of her treatment, Decedent did not suffer from any communication

barrier and was found to be capable of giving her own consent for medical

treatment and signing a form acknowledging receipt of discharge instructions.

[19] The fact that Decedent may have exhibited some confusion in the days

preceding April 29, 2013, without more, falls short of creating an issue of

material fact as to whether Decedent was of sound mind when she amended the

Trust documents on April 29, 2013. Appellants’ have failed to designate any

evidence suggesting that the Decedent’s alleged confusion while receiving

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 10 of 13
 medical care in the days preceding April 29, 2013, was lasting or significant

enough to render the Decedent of unsound mind on April 29, 2013. Rather,

their claim that the Decedent was of unsound mind when she amended the

Trust documents relies upon speculation, which is insufficient to create a

material issue of fact. See Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct.

App. 2008) (providing that mere speculation cannot create questions of fact),

trans. denied. Appellants’ reliance on speculation seems especially insufficient

in the instant matter given the fact that on the same day that Decedent executed

the challenged amendments to the Trust documents, the Decedent was found to

be mentally capable of giving her own consent for medical treatment and

signing a form acknowledging receipt of discharge instructions, a fact which

suggests that the medical personnel found Decedent to be of sound mind when

they treated her on April 29, 2013. In light of the evidence properly designated

before the trial court, we conclude that the trial court’s award of summary

judgment in favor of the Estate and Hamby, individually and in her role as

personal representative of the Estate, was proper.

III. Denial of Appellants’ Motion to Correct Error
[20] Appellants’ last contend that the trial court abused its discretion in denying

their motion to correct error. “In general, we review a trial court’s ruling on a

motion to correct error for an abuse of discretion.” City of Indpls. v. Hicks, 932

N.E.2d 227, 230 (Ind. Ct. App. 2010) (citing Hawkins v. Cannon, 826 N.E.2d

658, 661 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion occurs

when the decision is clearly against the logic and effect of the facts and

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 11 of 13
 circumstances before the court, including any reasonable inferences therefrom.

Dunno v. Rasmussen, 980 N.E.2d 846, 849 (Ind. Ct. App. 2012).

[21] We note that given Appellants’ failure to correct the defect in their tendered

Appendix, we are unable to review the propriety of the trial court’s denial of

Appellants’ motion as neither Appellants’ motion nor any order or docket entry

made by the trial court is in the record before us on review. The record that

was properly filed before this court is devoid of any indication that the trial

court’s order was clearly against the logic and effect of the facts and

circumstances before the trial court. As such, we conclude that Appellants have

failed to establish that the trial court abused its discretion by denying their

motion to correct error.

IV. Cross-Appeal Issue Raised by Appellees
[22] Appellees contend on cross-appeal that the trial court erred by failing to award

summary judgment to Hamby in her position as trustee of the Trust. The trial

court’s order on summary judgment gives no indication why it did not award

summary judgment to Hamby in her position as trustee of the Trust. As we

concluded above, no issue of material fact remains as to whether (1) the

Decedent was of sound mind when she amended the Trust documents on April

29, 2013, (2) Hamby asserted undue influence over the Decedent, or (3) the

Decedent acted under duress or fraud when she last amended the Trust

documents. Given these conclusions coupled with the fact that the trial court

failed to explain why summary judgment was appropriate for Hamby in her

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 12 of 13
 position as personal representative of the Estate but not in her position as

trustee of the Trust, we conclude that Hamby, in her position as trustee of the

Trust, is entitled to summary judgment.

Conclusion
[23] In sum, we conclude that the trial court properly granted summary judgment in

favor of the Estate and to Hamby individually and in her position as personal

representative of the Estate. We also conclude that summary judgment should

have been awarded to Hamby in her position as trustee of the Trust. As such,

we affirm in part, reverse in part, and remand to the trial court with the

instructions to enter summary judgment in favor of Hamby in her position as

trustee of the Trust.

[24] The judgment of the trial court is affirmed in part, reversed in part, and

remanded with instructions.

Bailey, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 87A01-1510-TR-1815 | June 28, 2016 Page 13 of 13