from the Tippecanoe Circuit Court Trial Court Cause No.
79C01-1512-GU-130 The Honorable Thomas H. Busch, Judge
Attorney for Appellant Robert H. Little Brookston, Indiana,
Derek R. Molter Jenny R. Buchheit Ice Miller LLP
Attorneys for Appellee John K. Morris Morris Law Office
Lafayette, Indiana Karl L. Mulvaney Nana Quay-Smith Bingham
Greenebaum Doll LLP Indianapolis, Indiana
H.S. (Granddaughter) appeals the judgment of the trial court,
which dismissed her guardianship petition regarding W.P.
(Grandfather). The trial court found that Granddaughter's
petition was precluded by the doctrine of res judicata
because a previous case filed by J.C.P.-her uncle and
Grandfather's son- under the trust code was dismissed
with prejudice. The trial court also found that
Granddaughter's petition violated a local court rule. We
find that there is no evidence that Granddaughter influenced
J.C.P.'s decision to dismiss his own case and that,
therefore, the doctrine of res judicata cannot be fairly
applied to preclude her petition. Moreover, Granddaughter did
not violate the local court rule. Accordingly, we reverse and
remand with instructions to vacate the order dismissing her
case and for further proceedings.
In 1996, Grandfather and M.P. (Grandmother) (collectively,
Grandparents) established a trust of which they were
settlors, trustees, and primary beneficiaries. Their three
sons-M.L.P., W.K.P., and J.C.P.-were the residual
beneficiaries, and M.L.P. and J.C.P. were set to be the
successor trustees. In July 2014, Grandfather amended the
trust to make M.L.P. the sole successor trustee.
On August 27, 2014, J.C.P. filed a petition requesting that
Grandfather and M.L.P. be replaced by a corporate trustee.
Granddaughter, who is the daughter of W.K.P. and a contingent
beneficiary of the trust, was notified and summonsed as an
interested party, but did not join the lawsuit as a party.
J.C.P. also requested an accounting of the trust and a
preliminary injunction, alleging that M.L.P. and M.L.P.'s
wife were exercising undue influence over Grandparents and
were self-dealing out of trust assets. Shortly thereafter,
Grandmother passed away, making M.L.P. a co-trustee with
After hearing testimony, the trial court on October 6, 2014,
granted J.C.P.'s motion for a preliminary injunction. The
trial court noted that Grandfather suffered from dementia,
and it stated, "During the course of the hearing in this
matter, [Grandfather] became irrational and disoriented and
stormed around the courtroom yelling and left the courtroom
and had to be restrained by a deputy." Appellant's
App. p. 48. Moreover, he "confused his children's
names, was unsure who or when people contacted him, exhibited
confusion about his affairs and total reliance on [M.L.P.]
and his attorney." Id. at 49. After finding
that M.L.P. was using Grandfather's confusion to sow
discord in the family, the trial court concluded that J.C.P.
had made the requisite showings to establish a reasonable
likelihood of successfully proving that M.L.P. was exercising
undue influence over Grandfather and was using this influence
to gift himself trust resources. Grandfather and M.L.P.
appealed this order, but we remanded before issuing any
opinion so that more evidence could be taken on the matter.
The trial court set a trial for June 23, 2015. Although
Granddaughter did not join the case as a party, she did
provide deposition testimony. A week before the trial,
however, J.C.P. filed a motion to dismiss his own case,
citing the emotional and financial toll the case was having
on the family, and contending that he would not be able to
attend the trial. After a hearing on the motion, the trial
court dismissed the case, ordering J.C.P. to pay attorney
fees. There is no evidence in the record that Granddaughter
had notice of this motion or the hearing, which she did not
On December 4, 2015, Granddaughter filed a petition to
establish a guardianship over Grandfather. She alleged that
Grandfather was "an incapacitated person  incapable of
managing his business and property because of, inter alia,
the undue influence of others." Appellant's App. p.
12. W.K.P. and J.C.P. consented to the guardianship, but
M.L.P. did not. On December 15, Grandfather filed a motion to
dismiss Granddaughter's petition, and M.L.P. joined
Grandfather's motion to dismiss.
After holding a hearing and receiving briefs on the issue,
the trial court granted Grandfather's motion to dismiss
on March 9, 2016. First, it found that Granddaughter's
claims were res judicata, based on the earlier probate case
that was dismissed with prejudice, and that "[a]
contrary finding would permit each of the persons interested
in replacing a trustee or removing a person from control of
his own assets to come to court in succession to litigate the
identical claim." Appellant's App. p. 9. Second, the
trial court found that Granddaughter's petition failed to
comply with a local court rule because her guardianship
petition did not include a doctor's report. Granddaughter