Brenda Sue Gittings and Marc Richmond Gittings, Appellants-Respondents,
William H. Deal, Appellee-Peetitioner.
from the Spencer Circuit Court The Honorable Jonathon A.
Dartt, Judge Trial Court Cause No. 74C01-1305-TR-27
Attorney for Appellant James D. Johnson Jackson Kelly, PLLC
Attorneys for Appellee David L. Jones David E. Gray Jones
• Wallace, LLC
Brenda Sue Gittings and Marc Gittings ("the
Gittingses") appeal the trial court's judgment in
favor of William Deal. We affirm.
The Gittingses raise three issues, and we address the
following two issues:
I. whether the trial court's findings that the
Gittingses' claims are barred by the statute of
limitations are clearly erroneous; and
II. whether the trial court's findings that transfers of
property from the NDR Primary Trust to the NDR Trust A and
from the NDR Trust A to the GLR Trust were proper are clearly
Brenda is the daughter of Nile D. Richmond, and Marc Gittings
is Brenda's son and Nile's grandson. In 1985, Nile
married Georgia L. Richmond, who also had a prior child,
William. Prior to their wedding, they signed an Antenuptial
Agreement, which provided that all property acquired after
marriage would be owned as community property and that, after
their death, one-half of the community property would pass to
each estate. In 1988, Nile and Georgia acquired property and
mineral interests in West Virginia ("West Virginia
In 1993, Nile and Georgia retained Attorney David E. Price to
prepare trusts for them. Nile executed the NDR Trust
Agreement, and Georgia executed the GLR Trust Agreement. Nile
and Georgia funded the trusts with half of the parties'
assets being placed in each of the respective trusts. The
Trust Agreements had substantially identical terms. The Trust
[D]uring the life of the Settlor, the Settlor shall have the
power to completely revoke or terminate this Trust Agreement,
at any time, by an instrument signed by the Settlor and
delivered to the Trustees during the life of the Settlor. In
addition, during the life of the Settlor, the Settlor shall
have the power to alter or amend this Trust Agreement, in
whole or in part, at any time and from time to time, by an
instrument signed by the Settlor, and delivered to the
Exhibits Vol. IV pp. 22, 46. Additionally, the Trust
Agreements provided that they could not be "changed
orally, but only by a written agreement of the parties
hereto." Id. at 37, 61. Upon the death of the
Settlor, the Trust Agreement became "irrevocable."
Id. at 21, 45.
Each Trust Agreement created three separate trusts-the
Primary Trust, Trust A, and Trust B. The Primary Trust was
established to hold the primary trust estate during the life
of the Settlor (Nile in the NDR Trust Agreement and Georgia
in the GLR Trust Agreement). Upon the Settlor's death,
the Primary Trust estate was to be distributed to Trust A and
Trust B. Trust A was designed to be a Q-TIP trust and qualify
for a marital deduction to minimize the federal estate tax.
Trust A was to be funded with
the smallest fraction of the assets of Settlor's estate
that qualify for the federal estate tax marital deduction as
will be sufficient to result in the lowest federal estate tax
being imposed upon [the] estate after allowing for the
unified credit, and any other allowable credits and
deduction, but in no event shall Trust A be less than the
smaller of $100, 000.00 or the balance of the Primary Trust.
Id. at 24, 48. Trust A was to be used to provide for
the support, maintenance, and health of the Settlor's
The remainder of the Primary Trust's assets were to be
distributed to Trust B. Upon the surviving spouse's
death, the remainder of Trust A was also to be distributed to
Trust B. In the event that the Settlor's spouse
predeceased the settlor, upon the Settlor's death, the
Primary Estate's assets were to be transferred to Trust
B. Upon the death of both the Settlor and the Settlor's
spouse, Trust B was to be distributed as follows: one-third
to Brenda, one-third to William, and one-third to the
grandchildren of the Settlor and Settlor's spouse.
Initially, the Trust Agreements provided that Nile and
Georgia were the Trustees of both Primary Trusts. The Trust
Agreements then provided:
As to the primary trust during the life of the Settlor,
either of the initial Trustees may resign by giving ten (10)
days written notice to the other Co-Trustee. Upon such event
or if either initial Co-Trustee otherwise ceased to continue
to be qualified during the life of Settlor, then the
remaining Trustee shall be the sole Trustee. If both the
initial Co-Trustees cease to be qualified, then William H.
Deal and Brenda Sue Gittings, or the survivor thereof, shall
be the Co-Trustee. Sandra Deal shall be the next alternate
Upon the death of the Settlor, if he is survived by his
spouse, then she along with William B. Deal and Brenda Sue
Gittings, shall serve as Co-Trustees of Trust A and Trust B.
If William H. Deal and Brenda Sue Gittings decline to act or
are unable to act, Sandra Deal shall be the alternate
Co-Trustee of Trust A and Trust B.
Upon the death of Settlor's spouse, or upon the death of
Settlor if his spouse predeceased him, William H. Deal and
Brenda Sue Gittings, or the survivor therof, shall be the
Co-Trustees of Trust A and Trust B. Sandra Deal shall be the
alternate Trustee. In no event shall the surviving spouse
serve as sole Trustee after the death of Settlor.
Id. at 32-33, 56-57. The Trusts also provided:
"Upon the death of the Settlor, the Trustees shall
divide the trust estate of the Primary Trust . . . into
separate trust estates [Trust A and Trust B]."
Id. at 22, 46.
Nile died on January 24, 1995. Georgia then distributed
property from the NDR Primary Trust to the NDR Trust A and
NDR Trust B without consulting Brenda or William.
On October 5, 1995, Georgia executed a First Amendment to the
GLR Trust and eliminated Brenda as a beneficiary and as a
trustee. That First Amendment was prepared by Attorney Price.
Georgia did not inform Brenda of the amendment. On the same
day, with the assistance of Attorney Price, Georgia
transferred a one-half interest in the West Virginia
Properties from the NDR Primary Trust to the NDR Trust A.
Georgia then sent Brenda a copy of the NDR Trust and asked
Brenda to sign and return four deeds and an assignment
regarding the West Virginia Properties to transfer the
properties from the NDR Trust A to the GLR Primary Trust.
Brenda consulted with her attorney, who requested relevant
Attorney Price. On November 20, 1995, Attorney Price provided
some relevant documents to Brenda's attorney, but he did
not provide copies of the GLR Trust or its Amendment or
inform Brenda's attorney that Brenda had been eliminated
as a beneficiary of the GLR Trust.
On December 28, 1995, Georgia and William signed ...