The Estate of Carrie Etta Mills McGoffney (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                    Dec 21 2020, 11:02 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.


APPELLANT PRO SE
Kelly D. McGoffney
Terre Haute, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

The Estate of Carrie Etta Mills                          December 21, 2020
McGoffney,                                               Court of Appeals Case No.
Appellant                                                20A-ES-1083
                                                         Appeal from the Vigo Superior
                                                         Court
                                                         The Honorable John T. Roach,
                                                         Judge
                                                         The Honorable Matthew C.
                                                         Kincaid, Special Judge
                                                         Trial Court Cause No.
                                                         84D01-1212-ES-10903



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 20A-ES-1083 | December 21, 2020                     Page 1 of 7
[1]   Kelly D. McGoffney, pro se, seeks to reopen the estate of her mother, Carrie

      Etta Mills McGoffney (Decedent), which has been closed since May 2018. The

      trial court correctly rejected McGoffney’s attempted relitigation of issues

      already decided against her.


[2]   We affirm.


                                       Facts & Procedural History


[3]   This case has a long and complex history, much of which is not relevant here,

      so we will be short. Decedent died intestate on November 20, 2012, and

      McGoffney was appointed the personal representative for the estate shortly

      thereafter. Though insolvent, the estate remained open for some time due to

      pending wrongful death and medical malpractice actions being pursued by the

      estate.


[4]   On the motion of certain intervenors and following a hearing, the trial court

      entered an order on March 1, 2018, requiring McGoffney to hire an attorney by

      April 15, 2018, to represent the estate. The court warned: “A failure to comply

      with this directive SHALL result in determination that Kelly McGoffney is

      unsuitable and she SHALL, without further hearing, be removed as personal

      representative, likely subjecting claims of the Estate to dismissal.” Appendix at

      47. McGoffney did not comply, and the trial court issued its May 23, 2018

      order, which is at the heart of the instant appeal. This order provided in

      relevant part:



      Court of Appeals of Indiana | Memorandum Decision 20A-ES-1083 | December 21, 2020   Page 2 of 7
               The Court now DETERMINES that Kelly McGoffney is an
               unsuitable fiduciary to pursue wrongful death claims or
               otherwise act further on behalf of the Estate of [Decedent].


               It is therefore ORDERED that Kelly McGoffney is REMOVED
               as personal representative;


                                                         ****


               It is further ORDERED that, what limited property having
               already been administered and the sole purpose of the estate
               being to pursue wrongful death claims, the Estate of [Decedent]
               is CLOSED.


      Id. at 48.


[5]   On June 22, 2018, McGoffney, on behalf of the estate, filed a self-styled motion

      to reconsider, in which she argued that the trial court abused its discretion by

      closing the estate with several medical malpractice actions still pending. This

      motion, which was actually a motion to correct error, 1 was deemed denied by

      operation of law pursuant to Ind. Trial Rule 53.3(A) on August 6, 2018.

      McGoffney did not appeal.


[6]   Instead, on September 10, 2018, McGoffney filed, by newly retained counsel, a

      petition to reopen the estate and reappoint her as personal representative. The




      1
        Motions to reconsider are properly made and ruled upon prior to the entry of final judgment. Hubbard v.
      Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998). “Accordingly, although substantially the same as a
      motion to reconsider, a motion requesting the court to revisit its final judgment must be considered a motion
      to correct error.” Id.

      Court of Appeals of Indiana | Memorandum Decision 20A-ES-1083 | December 21, 2020                 Page 3 of 7
      trial court summarily denied the motion on September 28, 2018. Thereafter, on

      October 29, 2018, McGoffney, once again pro se, filed a motion to correct error

      in which she continued to argue that the trial court had improperly closed the

      estate and removed her as personal representative in May 2018. The trial court

      never ruled upon the October 2018 motion, which was deemed denied on

      December 13, 2018.


[7]   On January 12, 2019, in Cause No. 19A-ES-150, McGoffney filed a notice of

      appeal, challenging the denial of her September 2018 petition to reopen the

      estate. Thereafter, Extendicare Holdings, Inc. (Extendicare), one of the

      appellees against whom the estate had filed a wrongful death action, filed a

      motion to dismiss the appeal. Extendicare argued that McGoffney lacked

      standing to bring the appeal and that, even if she had standing, the appeal was

      untimely because McGoffney, through her petition to reopen the estate, was in

      actuality trying to set aside the May 2018 order – which she did not appeal – by

      using a repetitive motion with a new title. In response to the motion to dismiss,

      McGoffney argued that she had standing as an heir and interested/aggrieved

      party in the probate proceedings and that the appeal was timely because her

      October 2018 motion was also an Ind. Trial Rule 60(B) motion for relief from

      judgment, not just a motion to correct error, with a lookback period that would

      encompass the May 2018 order.


[8]   On March 22, 2019, this court issued an order granting Extendicare’s motion

      and dismissing the appeal with prejudice. Thereafter, McGoffney filed with this

      court two motions to reconsider and one motion to remand, which were all

      Court of Appeals of Indiana | Memorandum Decision 20A-ES-1083 | December 21, 2020   Page 4 of 7
       denied. On May 2, 2019, she filed a petition for transfer. In her transfer

       petition, McGoffney argued that the trial court’s closing of the estate and

       refusal to reopen it left matters unresolved, such as a final accounting,

       disposition of substantial assets, and the inability to participate in a federal

       bankruptcy settlement and pending medical malpractice claims. Like she had

       before our court, McGoffney argued that she had standing to pursue the appeal

       in her individual capacity, that the appeal encompassed both the trial court’s

       May 2018 order and its September 2018 order, and that her appeal was timely.

       The Supreme Court denied transfer on July 25, 2019.


[9]    On March 12, 2020, McGoffney filed in the trial court a pro-se Emergency

       Petition to Reopen the Estate and Recusal of Judge. In this petition McGoffney

       once again challenged the closing of the estate in May 2018. She asserted that

       the closure “wreaked havoc on the estate due to the Estate having open claims

       that were still pending and additional inventory that had been discovered.”

       Appendix at 26. She also claimed that the trial court had violated her due

       process rights when it denied her request to reopen the estate in September

       2018.


[10]   The trial court signed the following on March 19, 2020, which was entered on

       the record and sent to the parties on April 14, 2020:


                                    ENTRY ON CLOSED ESTATE


                     Comes now Kelly D. McGoffney a removed former
               personal representative of this closed estate and files her
               “Emergency Petition to Reopen Estate and Recusal of Judge.”
       Court of Appeals of Indiana | Memorandum Decision 20A-ES-1083 | December 21, 2020   Page 5 of 7
               The same does not conform to the Indiana Trial Rules that
               require service of pleadings upon appearing parties and counsel
               of record. Further, the submission contains redundant requests
               for relief the Court has already ruled upon, the appeal of which
               was dismissed with prejudice by the Indiana Court of Appeals,
               and the sought transfer of which was denied by the Indiana
               Supreme Court. Accordingly, the Court now takes no further
               action on the submission except (1) to DIRECT that it be
               scanned into the record with notice so as to cure its ex parte
               character; and (2) to STRIKE the submission pursuant to Trial
               Rule 12(F).


       Id. at 25. McGoffney now appeals.


                                           Discussion & Decision


[11]   McGoffney asserts three arguments on appeal. First, she contends that she has

       standing to appeal as an heir and person with an interest in the estate. Second,

       she claims that she was improperly removed as the personal representative of

       the estate in May 2018. Finally, she asserts that the trial court abused its

       discretion by denying her emergency petition to reopen the estate in light of the

       “statutorily-improper closing” of the estate in May 2018. Appellant’s Brief at 6.


[12]   The following is illustrative of the repetitive nature of McGoffney’s appeal:


               As a result of the trial court’s Order of May 23, 2018 Order
               closing the Estate, and its September 28, 2018 Order denying the
               first petition to reopen, the ability heirs [sic] … to recover in the
               three pending medical malpractice survival actions is much
               hampered, if not foreclosed. Also foreclosed is the ability to
               participate in the bankruptcy court settlement of$1 [sic] Million
               dollars with the debtor, a defendant in one of the malpractice

       Court of Appeals of Indiana | Memorandum Decision 20A-ES-1083 | December 21, 2020   Page 6 of 7
               survival actions. After appealing the denial of her first petition to
               reopen, which appeal was dismissed without reaching the merits,
               McGoffuey [sic] brought a second, emergency petition to reopen
               which was also denied. She opposes on several grounds.


       Id. at 12. Further, this passage reveals McGoffney’s misunderstanding that the

       prior appeal was dismissed with prejudice and that, therefore, she can no longer

       challenge the orders from May or September 2018.


[13]   The trial court properly rejected McGoffney’s attempt to relitigate the issues

       foreclosed by her previous appeal, which was dismissed on the merits. See Fox

       v. Nichter Const. Co., 978 N.E.2d 1171, 1180 (Ind. Ct. App. 2012) (observing that

       a dismissal with prejudice is a dismissal on the merits), trans. denied. Indeed,

       “[a] dismissal with prejudice is conclusive of the rights of the parties and is res

       judicata as to any questions which might have been litigated.” Id.


[14]   More than two years ago, in May 2018, the trial court removed McGoffney as

       personal representative, finding her to be an unsuitable fiduciary, and closed the

       estate. The trial court rejected her attempt to reopen the estate later that year.

       McGoffney appealed and lost. She cannot avoid the 2018 rulings by filing

       repetitive petitions to reopen the estate.


[15]   Affirmed.


       Mathias, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-ES-1083 | December 21, 2020   Page 7 of 7