Brenda Sue Gittings and Marc Richmond Gittings, Appellants (Petitioners)
William H. Deal, Appellee (Respondent)
Argued: April 24, 2018
from the Spencer Circuit Court, No. 74C01-1305-TR-27 The
Honorable Jonathan A. Dartt, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANTS James D. Johnson Jackson Kelly PLLC
Evansville, Indiana Matthew P. Heiskell Spilman Thomas &
Battle PLLC Morgantown, West Virginia.
ATTORNEYS FOR APPELLEE David L. Jones David E. Gray Jones
· Wallace, LLC Evansville, Indiana John G. Wetherill
Wetherill Law Office Rockport, Indiana.
squabbles are commonplace and can be mild. But when
disagreements arise over property after parents' deaths,
rifts may become serious, with lengthy litigation separating
family members. That is the case for stepsiblings Brenda Sue
Gittings and William Deal.
the original terms of mirrored trusts that Brenda's
father and William's mother created, once both parents
died, the two stepsiblings were to share land, mineral
interests, and other assets placed in the trusts. But after
Brenda's father died, property transfers and amended
trust terms left William with all the land and mineral
interests upon his mother's death.
than a decade later, the land started generating significant
income through oil and gas leases, and Brenda claimed a share
of the property and profits. William sought court approval of
the property transfers that led to his receipt of the
profitable land, and Brenda (with her son Marc) responded
with numerous allegations challenging those property
transfers and seeking affirmative relief.
examining the trust agreements and the trustees' actions,
we reach three holdings. First, Brenda and Marc's
assertions are subject to statutes of limitations to the
extent those assertions seek affirmative relief-but not to
the extent they diminish or defeat William's request for
declaratory relief. Second, fraudulent concealment did not
toll the limitation periods on the Gittingses' claims
seeking affirmative relief. And third, William is not
entitled to court approval of the property transfers, as the
transfers were improper.
and Procedural History
and Georgia Richmond married in 1985. They had no children
together, but each had a child from a previous marriage:
Brenda Sue Gittings (Nile's daughter) and William Deal
The trust agreements.
of their estate planning, Nile and Georgia executed two trust
agreements, each identified by the settlor's name: the
Nile D. Richmond Primary Trust Agreement ("NDR Trust
Agreement"), with Nile as settlor; and the Georgia L.
Richmond Primary Trust Agreement ("GLR Trust
Agreement"), with Georgia as settlor. Each settlor,
while alive, could modify his or her respective agreement,
but when Nile and Georgia executed the agreements, the terms
mirrored one another.
agreement set up a Primary Trust, a Trust A, and a Trust B.
The NDR Trust Agreement thus established the NDR Primary
Trust, NDR Trust A, and NDR Trust B. And the GLR Trust
Agreement similarly established the GLR Primary Trust, GLR
Trust A, and GLR Trust B. After executing the trust
agreements, Nile and Georgia funded each primary trust with,
among other assets, undivided one-half interests in land and
minerals they owned in West Virginia and Indiana.
primary trusts were inter vivos trusts, holding Nile's
and Georgia's primary trust estates during each of their
lives. Once the settlor died, the assets of that primary
trust estate would be distributed to the respective Trust A
and/or Trust B.
initial trustees were the settlor and the spouse. But if the
settlor died first, the surviving spouse would
not be the sole trustee of Trust A and Trust
B. The trust agreements made this explicit: "In no event
shall the surviving spouse serve as sole Trustee after the
death of [the] Settlor." Instead, after the
settlor's death, the surviving spouse, "along with
William H. Deal and Brenda Sue Gittings, shall serve as
Co-Trustees of Trust A and Trust B."
A-a marital-deduction trust with provisions removing certain
discretion from the surviving spouse-was designed to provide for
the surviving spouse's support, maintenance, and health.
It was to receive no less than the smaller of $100, 000 or
the balance of the settlor's primary trust. Once the
surviving spouse died, assets remaining in Trust A would go
into Trust B.
from receiving any Trust A leftovers, Trust B was set up to
receive two other classes of assets: those transferred
directly to Trust B by the decedent settlor's last will,
and those remaining in the settlor's primary trust estate
after its distribution to Trust A.
would be distributed after both the settlor's and the
spouse's deaths. Each trust agreement originally
instructed that the assets collected in its Trust B be
distributed in thirds: one third to Brenda, one third to
William, and one third divided equally among Nile's and
The amended agreement and the property transfers.
died in January 1995, leaving Georgia as the surviving spouse
and co-trustee-with Brenda and William-of NDR Trust A and NDR
six months later, Brenda gave birth to her son, Marc.
Concerned about whether Marc-having been born after
Nile's death-was part of the beneficiary class of
grandchildren, Brenda asked Georgia for a copy of "the
trust." At this point, although Brenda's
understanding was that Nile and Georgia had each created a
separate trust, she didn't know details about their
terms; she had neither received a copy of the NDR Trust
Agreement from Nile nor seen a copy of the GLR Trust
Agreement. Based on what her father told her, Brenda thought
that "[a]fter [Nile's] death whatever was in his
trust would go into Georgia's for safekeeping."
after Brenda requested "the trust," Georgia
distributed the NDR Primary Trust estate to NDR Trust A and
NDR Trust B, and amended the GLR Trust Agreement, removing
Brenda and Marc as beneficiaries.
next sent Brenda a copy of the NDR Trust Agreement along with
four deeds, a lease assignment, and a note asking Brenda to
sign and return the deeds and assignment. The deeds and
assignment referenced the GLR Trust Agreement and purported
to convey the one-half interests in West Virginia and Indiana
property from NDR Trust A to "Georgia L. Richmond, as
Trustee . . . under a Trust Agreement . . . known as the [GLR
Trust Agreement]." Georgia did not, however, send Brenda
a copy of the GLR Trust Agreement, original or amended.
advice, Brenda turned to legal counsel at the office where
she worked as a paralegal. Brenda's counsel sent a letter
to Georgia's attorney, explaining that Brenda sought to
determine "her status under her father's Will and
his Primary Trust Agreement," and acknowledging that
Brenda had received a copy of "the Trust Agreement"
from Georgia. In the letter, Brenda's counsel also asked
Georgia's attorney for documents "bearing materially
upon Brenda's interest as trustee or beneficiary."
attorney responded with documents related to the NDR trust
assets. He listed the assets in NDR Trust A, explained that
"[NDR] Trust B contains the rest and remainder of the
Primary Trust," and set out the assets in Trust B. But
he did not include the GLR Trust Agreement, believing that he
was not authorized to disclose Georgia's information to a
neither Brenda nor her counsel had seen the GLR Trust
Agreement that the deeds and assignment referenced, Brenda
signed the deeds and assignment, and her attorney sent them
to Georgia's counsel. Georgia and William signed similar
deeds-not the same documents that Brenda signed, but ones
that likewise purported to transfer the West Virginia and
Indiana property from NDR Trust A to Georgia as trustee under
the GLR Trust Agreement.
died in March 1997. Her death triggered distribution of the
NDR trust estate through NDR Trust B-in thirds to Brenda,
William, and the grandchildren, including Marc. In June 1997,
Brenda signed the final account and petition to settle and
close NDR Trust B. This document showed that the trust estate
would be completely depleted upon the "final
distribution" of the "balance in trust" to
Brenda, William, Marc, and the other grandchildren. Under
that distribution-outlined in the accounting-Brenda and
William each received almost $91, 000 and each grandchild
received approximately $22, 710 placed in individual trusts.
long after Brenda signed the final account, an attorney who
helped administer NDR Trust B and who handled the
administration of Georgia's estate sent Brenda a copy of
the amended GLR Trust Agreement. When Brenda received it
around July 14, 1997, she learned that she and Marc had been
eliminated as beneficiaries and that everything in the GLR
trust would go to William. As the GLR trust's sole
beneficiary, William received the property that the
deeds-both the ones that Brenda signed and the ones that
William and Georgia signed-purported to transfer in 1995 from
NDR Trust A to Georgia as trustee of the GLR Primary Trust.
receiving the GLR Trust Agreement and learning that she and
Marc were not beneficiaries, Brenda was "pretty
downtrodden for quite a while." But she did not turn to
her legal counsel for advice about the GLR Trust Agreement
and its amendments. Nor did she bring any claims at that time
or object to the executor's final account and petition to
settle Georgia's estate.
around that fall at a family gathering, Brenda's husband-
with Brenda there-asked William about any more inheritance.
William responded that there wasn't anything left after
Georgia's medical, nursing home, and funeral bills had
thirteen years later, in 2010, the property in West Virginia
that William received from the GLR trust began producing
significant income-hundreds of thousands of dollars
annually-from oil and gas leases. Over the next couple of
years, Brenda consulted with an attorney and sent William a
letter, making claims on the property.
found among his mother's things the deeds that Brenda
signed in 1995 and, after consulting with his own attorney,
recorded them in June 2012.
2013, William petitioned the trial court to docket the NDR
Trust Agreement and to grant him declaratory relief by
approving the transfers of the land and mineral interests
from NDR Trust A to Georgia as trustee under the GLR Trust
Agreement. He also asked the court to find that Brenda knew
about and consented to the transfers, and-based on that
consent and the statutes of limitations-to preclude Brenda
from bringing claims for breach of trust and for recovery of
court allowed Marc Gittings (Brenda's son) to intervene,
and the Gittingses responded to William's petition with
defenses and counterclaims. They alleged in part that the
property transfers violated the terms of the NDR Trust
Agreement, making the transfers void or voidable, and that
Brenda's actions did not validate the transfers because
Georgia and William transferred the property without giving
Brenda all material information. They also asked the court
to-among other things- deny William court approval of ...