DAVID J. MARKEY, Appellant-Plaintiff,
ESTATE OF FRANCES S. MARKEY, DECEASED; STEPHEN L. ROUTSON, PERSONAL REPRESENTATIVE UNDER THE LAST WILL AND TESTAMENT OF FRANCES S. MARKEY, DECEASED; STEPHEN L. ROUTSON, INDIVIDUALLY; AND MADONNA L. REDA, Appellees-Defendants
APPEAL FROM THE WAYNE SUPERIOR COURT. The Honorable Charles K. Todd, Jr., Judge. Cause No. 89D01-1208-ES-51.
ATTORNEY FOR APPELLANT: JOHN M. SAYRE, III, Gardner, Sayre & Weikart, Richmond, Indiana.
ATTORNEYS FOR APPELLEES: GREGG S. GORDON, Cremer & Cremer, McCordsville, Indiana; JOHN A. CREMER, Cremer & Cremer, Indianapolis, Indiana.
BAKER, Judge. BARNES, J., and CRONE, J., concur.
In this case we are asked to clarify the time limit within which an action for a breach of contract to make a will must be filed. Here, appellant-plaintiff David Markey appeals the trial court's grant of summary judgment in favor of appellee-defendant the Estate of Frances Markey regarding his claim that Frances had violated a contract with Markey's Father to make mutual wills. Markey argues that summary judgment was inappropriate because he timely filed his action within nine months of Frances's death. Markey also contends that applying the three-month limitation period for will contest actions would violate his due process rights and maintains that the trial court improperly determined a disputed issue of fact. Conversely, the Estate argues that Markey's action to enforce a contract to make a will is not a " claim" as defined in Indiana Code section 29-1-14-1 of the Probate Code and that his action is governed by a three-month time limitation. We find that a three-month period of limitation applies to Markey's action and that there is no genuine issue of material fact. Therefore, we affirm the judgment of the trial court.
Markey is the son and only child of John Markey (Father) and Betty Porter Markey (Mother). In 1987, Mother developed Alzheimer's disease, and, in 1989, she went to live in a nursing home in Dayton, Ohio. Father began a relationship with Frances around this time. In 1991, Frances moved into Father's and Mother's home at Lake Lakengren, Ohio. Prior to Mother's transfer to a nursing home in Richmond, Indiana in 1992, substantial assets that Mother had inherited from her parents were transferred to Father. On August 1,
1998, Mother passed away. On August 24, 1998, Father and Frances married. Frances had two children at the time of the marriage, now Stephen Routson (Stephen) and Madonna Reda (Madonna).
On September 16, 1998, Father and Frances executed a contract to make mutual wills (the contract). The contract specified that Father and Frances would both execute wills providing that on the death of Father or Frances--whichever was later--half of the decedent's estate would be divided equally between Markey and Gillian Treadwell (Gillian), Frances's granddaughter. The contract further provided that the wills would not be revoked and that, in the event of a revocation, Markey would be entitled to bring an action at law or in equity seeking specific performance. Father and Frances executed wills adhering to the contract the same day the contract was executed. At some point in 1998 or 1999, Father gave a copy of the wills and the contract to Markey. Although they stipulated to the existence of the contract for purposes of summary judgment, Stephen and Madonna stated that they were unaware of the contract.
Father died on March 13, 2008 without revoking the will made in 1998, and all his assets passed to Frances. Markey maintained a relationship with Frances until October 17, 2009, when she communicated to him that she was no longer interested in continuing their relationship and that she did not wish to hear from him again.
On May 25, 2010, Frances executed a subsequent will, which revoked the will made pursuant to the 1998 contract with Father. Markey was unaware of this will. Frances died on July 29, 2012. As Markey knew about the contract to make mutual wills, he periodically searched for information about Frances; specifically, he searched for her obituary. Nevertheless, Markey states that he did not discover that Frances had died until April 25, 2013.
Frances's Estate was opened August 22, 2012. The proof of publication was filed on October 1, 2012; it confirmed that notice of administration was published of the opening of the Estate in the Western Wayne News on September 5 and September 12, 2012.
On April 29, 2013, Markey brought an action to enforce the terms of the contract against the Estate, Stephen as personal representative of the Estate, and Stephen and Madonna individually as sole beneficiaries of the estate. This was eight months after Frances's will was admitted to probate.
On May 23, 2013, Madonna filed her answer and motion for summary judgment for the Estate, arguing that Markey's action was time-barred because it was filed more than three months after Frances's will was admitted to probate. For purposes of the summary judgment motion, the parties stipulated 1) that Father and Frances had signed a contract to make mutual wills; 2) that Frances took title to all Father's assets consistent with his 1998 will, and 3) that Frances, contrary to the terms of the contract to make mutual wills, executed a new will in May 2010.
Markey filed a motion for enlargement of time to file his summary judgment response on June 11, 2013, which the trial court approved. Markey filed a second motion for enlargement of time to file his summary judgment response on July 30, 2013. In the second motion, he stated that Madonna refused to sit for a deposition and that he had failed, despite several attempts, to locate Gillian, Madonna's adult daughter who would have been Markey's co-beneficiary under the contract. Madonna's counsel verified Gillian's address, and Markey, who had received no response to inquiries sent to that address,
then filed a petition for letters rogatory and commission to conduct out-of-state non-party discovery to obtain a subpoena to depose Gillian. However, on August 27, 2013, before Markey was able to depose Gillian, the trial court determined that Markey could properly ...