2007 Estate and Trust Decisions of Interest

Guardianship of Knepper, 856 N.E.2d 150 (Ind.App. 2006), opinion on rehearing 861 N.E.2d 717 (Ind.App. 2007) (decedent’s sister rebutted presumption of undue influence after being named beneficiary on accounts.  On rehearing Court held that plaintiffs waived application of statute which required guardianship court approval for sale or encumbrance of such property). 

Estate of Scholz, 859 N.E.2d 731 (Ind.App. 2007) (Will gave son a life estate in the farm;  yet as executor the son had a fiduciary duty to pay the estate fair market cash rent). 

Estate of Robertson, 859 N.E.2d 772 (Ind.App. 2007) (trust terms in restraint of marriage void against public policy;  with invalid condition removed, trust valid). 

Estate of Hermann, 864 N.E.2d 334 (Ind. 2007) (where Will stated that wife would receive the home as part of her one half of the residue, her share of the residue would be calculated as if home were part of the estate, even though the deed passed title by tenancy by the entireties). 

Hunter v. Klimowicz, 867 N.E.2d 626, on rehearing, 872 N.E.2d 1109 (Ind.App. 2007) (Settlor successfully rescinded her trust on the basis of unsound mind and undue influence.  Court examines the test for capacity prior to and after 2006 amendment to I.C. § 30-4-2-10(c)). 

Carlson v. Sweeney, 868 N.E.2d 4, opinion on rehearing 872 N.E.2d 626 (Ind.App. 2007) (attorneys sued for drafting estate plan that could result in adverse tax consequences because of a lack of ascertainable standard to invade principal;  suit timely even though damages not ascertainable;  reformation of the trust to correct the problem was reversed). 

Jensen v. New Albany, 868 N.E.2d 525 (Ind.App. 2007) (decedent conveyed realty to city for recreational use.  State’s acquisition of property for road construction trumped heirs’ attempt to enforce reversionary clause in deed). 

Harlow v. Parkevich, 868 N.E.2d 822 (Ind.App. 2007) (trustee suit against attorney and accountant not subject to arbitration clause in agreement that post dated alleged wrongdoing). 

Guardianship of Adkins, 868 N.E.2d 878 (Ind.App. 2007) (parents appointed guardians rather than life partner). 

Keenan v. Butler, 869 N.E.2d 1284 (Ind.App. 2007) (The fundamental issue involved the proper venue of a dispute over a breach of contract to devise.  Hopefully the opinion can be limited to a hold that the court which probates the decedent’s Will holds res in custodia legis so has superior jurisdiction over any will contest, will interpretation, or challenge to the ultimate distribution of the estate property.  But the opinion went on to state that a breach of contract to devise is not a claim or a will contest, which is not a correct.  Neither the parties’ briefs nor Court cited established precedent that a breach of contract to devise must be filed as a timely claim in the estate:  Bell v. Hewitt, 24 Ind. 280 (1865);  Lee v. Carter, 52 Ind. 342 (1876);  Caviness v. Rushton, 101 Ind. 500 (1885);  Clarkson v. Whitaker, 657 N.E.2d 139 (Ind.App. 1995).  Keenan contradicts the lengthy teachings of Brown v. Edwards, 640 N.E.2d 401 (Ind.App. 1994).  If a claim, three month limitations period applies;  if not a claim, heir can file anytime before final accounting.  If a claim, then Deadmans’ Statute applies.  If a claim, estate usually deducts the amount from inheritance tax and claimant pays income tax). 

Estate of Holt, 870 N.E.2d 511 (Ind.App. 2007) (describes standard to set aside decedent’s prior marriage in petition to determine heirship).

State v. Hammans, 870 N.E.2d 1071 (Ind.App. 2007) (co-trustees of special needs trust could receive payment for administrative and personal services to beneficiary before distribution to the remainderman (the State)).   

Johnson v. Morgan, 871 N.E.2d 1050 (Ind.App. 2007) (once a will contest is timely filed, three month limitations period does not prevent interested heirs from joining as plaintiffs or defendants or switching sides). 

Recent Decisions of the Indiana Supreme Court

Clark County v. Donahue, Cause No. 10S00-0606-CV-199, Sept. 26, 2007 (county must spend probation user fees to supplement probation services or increase probation officer salaries).

Order for Mandate of Funds, Montgomery County Council, Cause No. 54S00-0611-MF-443, Sept. 26, 2007 (applied trial rule 60.5 dealing with intra-county disputes on funding court staffs;  affirmed special master’s report to increase salaries.  Sets out an analysis for review of contested attorney fees, and reduces the hourly rate to $150). 

State Farm v. Estep, Cause No. 03S01-0505-CV-255 , Sept. 25, 2007.  On November 24, 2004 the Indiana Court of Appeals rendered a decision in this case.  The Indiana Supreme Court granted transfer on May 26, 2005.  The Court ruled 5-0 to re-affirm its prior holding in Picadilly v. Raikos, 582 N.E.2d 338 (Ind. 1991), that a client cannot assign a legal malpractice claim against his or her attorney.  The Court divided 3-2 reversing the trial court’s order which required the losing defendant (now judgment debtor) involuntarily to assign to the plaintiff any claim against his insurance company.  The Court does not prohibit a defendant from directly suing his or her insured or voluntarily assigning such a claim.  The dissent contains an excellent discussion of trial rule 24 intervention rights.  I suggest you read this opinion in conjunction with the unanimous opinion in Rose v. Mercantile Bank, 868 N.E.2d 772 (Ind. 2007). 

Kho v. Pennington, 2007 WL 2713765, Sept. 19, 2007 (plaintiff and her attorneys violated a statute which prohibits the filing of a complaint naming a doctor prior to the medical review panel decision.  Held the doctor could assert a negligence claim for breach of the statute’s confidentiality provision). 

St. Charles Tower v. Board of Zoning Appeals, 2007 WL 2703163, Sept. 18, 2007 (zoning board properly denied special use permit where ordinance required telecommunications tower set back 300 feet from any residence). 

Dowell v. State, 2007 WL 2584734, Sept. 10, 2007 (where trial court’s oral sentence at hearing conflicts with the written sentence in the judgment, appellate court will credit the statement that more accurately pronounces the sentence.  Court of Appeals had applied Marshall v. State, 621 N.E.2d 308 (Ind.1993), which the Supreme Court had more recently addressed in McElroy v. State, 865 N.E.2d 584 (Ind.2007)). 

Littler v. State, 871 N.E.2d 276 (Ind. 2007) (murder conviction reversed where defendant claimed self defense because witness not permitted to testify about victim’s prior acts, numerous prior stabbings, and history of violent behavior - which would support defendant’s reasonable belief he needed to use force against victim). 

Robertson v. State, 871 N.E.2d 280 (Ind. 2007) (possible Blakely violation did not require remand where trial court could have imposed the same sentence based upon permissible aggravators). 

Ford v. Rushford, 868 N.E.2d 806 (Ind. 2007) (dealer owed no duty to warn passenger about potential hazards of front seat airbags to short adults where owner’s manual contained adequate warning from manufacturer). 

Recent Decision of the Indiana Tax Court

Indiana Dept. of Revenue v. Estate of Brandewiede, 2007 WL 2500735, Sept. 6, 2007 (estate could not allocate deductions to non-probate transfers while paying expenses from residuary). 

Recent Decisions of the Indiana Court of Appeals

Adams v. Adams, Cause No. 09A02-0701-CV-113, (child support applying the guidelines presumed correct.  If trial court deviates from the Guidelines, it must enter specific findings explaining why). 

Bumbalough v. State, Cause No. 18A02-0701-CR-59, September 25, 2007 (where defendant in probation revocation proceeds without an attorney, trial court must find the waiver voluntary, knowing, and intelligent.  The defendant watching a videotape informing him of a right to counsel does not suffice and is never harmless error).

Jones v. State, 2007 WL 2743433, Sept. 21, 2007 (court can consider whether defendant was a sexually violent predator at probation revocation hearing, not just at initial sentencing hearing). 

In re Marriage of Kenda and Pleskovic, 2007 WL 2743437, Sept. 21, 2007 (court applied Uniform Child Custody Jurisdiction Act to allow Indiana trial court to modify custody decision of District of Columbia court). 

Perry v. Ballew, 2007 WL 2729031, Sept. 20, 2007 (mandate actions are not proper in order to establish a right or define a duty.  Here the mandate process could not be used to compel city sewer department to issue a permit to tap into a sewer line because the department did not have a clear legal duty to grant the requested permit). 

Lumbermans Mutual v. Combs, 2007 WL 2743676, Sept. 20, 2007 (claim for entitlement to long term disability proceeds not preempted by ERISA;  award of attorney fees required new evidentiary hearing for lack of detailed findings).

CSX Transportation v. Gardner, 2007 WL 270765, Sept. 18, 2007 (what injured employee recovered under Federal Employers’ Liability Act did not set off what railroad had to contribute to disability and retirement fund governed by the Railroad Retirement Act). 

Carter v. Carolina Tobacco, 2007 WL 2695156, Sept. 17, 2007 (companies involved in the “tobacco litigation” contribute to settlement funds set up by similar statutes enacted in most states.  Other companies have an opportunity to sell cigarettes for less.  In this case the Indiana Attorney General refused to list “Roger” brand cigarettes in its Directory of those approved for sale in Indiana.  But the trial and appellate courts sided with Carolina Tobacco Company, allowing them to be sold in Indiana based on a lengthy discussion of what the word “manufacture” meant in the statute). 

Stillwell v. Deer Park, 2007 WL 2695641, Sept. 17, 2007 (corporation must be represented by an attorney in small claims court.  Court held no reversible error where corporation filed and handled pretrial proceedings without an attorney but had one at trial). 

Mueller v. Karns, 2007 WL 2695645, Sept. 17, 2007 (statute of frauds prevented consultant from proving claim for breach of contract;  however, under quantum meruit claimant entitled to royalties for negotiating a lease of the decedent’s property for mining of sand and gravel). 

Keeney v. State, 2007 WL 2670132, Sept. 13, 2007 (requirement that felon provide DNA sample does not violate Fourth Amendment freedom from unreasonable searches). 

Nationwide v. Heck, 2007 WL 2670146, Sept. 13, 2007 (first issue, attorney with conflict of interest permitted to sign affidavit in support of summary judgment motion;  second, unsigned contract may be valid unless signatures are made a condition of the agreement). 

Collins v. State, 2007 WL 2622717, Sept. 12, 2007 (first, eyewitness statements during 911 call admissible.  Second, “Do I need an attorney?” “I probably need an attorney” were not unequivocal requests for an attorney so officers could continue questioning the defendant). 

Steve Silveus v. Goshert, 2007 WL 2654699, Sept. 12, 2007 (employee sold crop insurance.  Contract required thirty days notice to terminate and included a covenant not to compete.  Company fired employee for competing but failed to provide thirty days’ notice.  Because company first breached the agreement court held it could not enforce the covenant.  What the employee won at trial in the name of breach of contract, however, the court offset by awarding the same amount to the company for misappropriation of trade secrets). 

Briggs v. State, 2007 WL 2594940, Sept. 11, 2007 (reversed conviction for resisting arrest where defendant refused to stop walking away from the police while in his own home). 

Mayes v. Second Injury Fund, 2007 WL 2594972, Sept. 11, 2007 (claimant who received confidential third party settlement failed to prove further compensation would not result in double recovery). 

Williams v. State, 2007 WL 2595915, Sept. 11, 2007 (defendant properly convicted under residential entry statute even though he only “partially” entered the residence.  Leaning in through a window sounds like a close call – but it did not help that the defendant broke the window in the first place). 

Reuille v. Brandenberger, 2007 N.E.2d 2493578, Sept. 6, 2007 (homeowner and builder settled their lawsuit.  Although homeowner received substantially all he asked for in the complaint, he was not a prevailing party under the contract in order to receive attorney fees). 

Reel v. Clarion, 2007 WL 2481792, Sept. 5, 2007 (Wage Claims Statute governed when employer had to pay former employees their accrued paid time off, not the employer’s human resource manual). 

Cinergy v. St. Paul, 2007 WL 2483007, Sept. 5, 2007 (insurer did not have to cover for alleged violation of the federal Clean Air Act). 

Asbestos Corp. v. Akaiwa, 872 N.E.2d 1095 (Ind.App. 2007) (estate of deceased worker failed to designate evidence that worker was exposed to miner’s asbestos product). 

Novatny v. Novatny, 872 N.E.2d 673 (Ind.App. 2007) (Indiana court that had granted divorce and initial custody order lacked jurisdiction under Uniform Child Custody Jurisdiction Act.  Children now lived in Virginia with mother which was where father from Illinois should file the case). 

DAP v. Akaiwa, 872 N.E.2d 1098 (Ind.App. 2007), and TH Agriculture v. Akaiwa, 872 N.E.2d 1104 (Ind.App. 2007) (action against manufacturer for asbestos exposure subject to ten year statute of repose). 

James v. State, 872 N.E.2d 669 (Ind.App. 2007) (defendant not entitled to credit for time served on pre-trial house arrest). 

Bay v. Pulliam, 872 N.E.2d 666 (Ind.App. 2007) (attorney lacked authority to bind client to a settlement agreement.  Only the principal, not an agent, can manifest any kind of authority). 

Maloney v. State, 872 N.E.2d 647 (Ind.App. 2007) (defendant had no reasonable expectation of privacy in license plate records held by the State’s BMV). 

Griffin v. Griffin, 872 N.E.2d 653 (Ind.App. 2007) (husband’s waiver of military retirement pay in favor of veterans’ disability payments could not be subject to equitable distribution in a divorce case). 

Breining v. Harkness, 872 N.E.2d 155 (Ind.App. 2007) (right to cross examination met by opportunity to depose by written questions).

Morris v. State, 871 N.E.2d 1011 (Ind.App. 2007) (confession suppressed where defendant in custody not given Miranda warnings). 

Cook v. Adams County, 871 N.E.2d 1003 (Ind.App. 2007) (one year realty lease which provided for annual renewals did not constitute a long term lease under a zoning ordinance that otherwise would require a hog farmer to obtain a permit). 

Brown v. Decatur County, 2007 WL 2265055, Aug. 9, 2007 (Workers’ Compensation Act does not include a provision for prejudgment interest). 

Knight v. Indiana Insurance, 871 N.E.2d 357 (Ind.App. 2007) (Bobby Knight, “The General”, settled a co-worker’s claim for assault and battery and failed to show how his homeowner’s policy covered the matter). 

Newnam v. Transcontinental Insurance, 871 N.E.2d 396 (Ind.App. 2007) (trial court order to install emission control equipment not covered under an insurance policy because it did not involve the happening of an occurrence, property damage, personal injury, or a suit for damages). 

Miller v. Hague, 871 N.E.2d 406 (Ind.App. 2007) (appellant filed brief thirty days late.  Motions panel allowed a late filing but the writing panel revisited the issue and dismissed the appeal).   

Paternity of C.M.R., 871 N.E.2d 346 (Ind.App. 2007) (necessary parties to a paternity action are the child, the child’s mother, and each person alleged to be the father). 

Travelers v. U.S. Filter, 870 N.E.2d 529 (Ind.App. 2007) (insured’s rights under policies transferable to corporate successors). 

Wolfe v. Eagle Ridge, 869 N.E.2d 521 (Ind.App. 2007) (builder cashing check clearly marked “full satisfaction” operated as an accord and satisfaction). 

Recent Decisions of the United States Court of Appeals for the Seventh Circuit

Price v. Wyeth, 2007 WL 2727736, Sept. 20, 2007 (plaintiff dismissed case and five years later reinstated the suit and obtained a default judgment without notice to defendants.  In trying to collect the judgment, defendants removed to federal court, where relief from default granted.  Seventh Circuit signed an order for show cause on sanctioning the plaintiff’s attorney, and referred the matter to the Indiana Supreme Court Disciplinary Commission). 

Dorel v. DiMartinas, 495 F.3d 500 (7th Cir. 2007) (appeal of injunction dismissed as moot because injunction terms expired a month prior to appeal). 

Fehribach v. Ernst & Young, 493 F.3d 905 (7th Cir. 2007) (creditor has no standing to sue debtor’s accounting firm.  Similar to holdings by Indiana Supreme Court in State Farm v. Estep and Picadilly that only clients have standing to sue attorneys for malpractice, which cannot be assigned). 

Kochert v. Adagen Medical, 491 F.3d 674 (7th Cir 2007) (in an action for fraud in the inducement of a contract, plaintiff must elect between two remedies – (1) to affirm the contract, retain the benefits, and seek damages, or (2) to rescind the contract, return any benefits received, and return to the status quo, which usually requires reimbursement and reasonable expenses). 

Stevens v. McBride, 489 F.3d 883 (7th Cir. 2007) (on review of federal habeas relief, conviction affirmed but death sentence vacated because of state trial counsel’s ineffective assistance by failing to investigate and present mitigating evidence during penalty phase). 

Floyd v. Star Bank, 489 F.3d 852 (7th Cir. 2007) (court will not construe contract or look to extrinsic evidence where it can apply clear and unambiguous contract terms.  Here contract contemplated consultants being paid for action, not ideas, so Bank could hire cheaper vendors).

Abstract Title v. Chicago Ins., 489 F.3d 808 (7th Cir. 2007) (errors and omissions insurer’s interpleading of coverage limits satisfied claims against insured, which under the policy rendered it no longer obligated to defend).