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Scott v. Carrico

Court of Appeals of Indiana

November 16, 2018

Gerald F. Scott, Appellant-Defendant,
Cheryl Carrico (Dillman), Carla Cook (Dillman), and Rhonda K. Vance, Appellees-Plaintiffs

          Appeal from the Orange Circuit Court The Honorable Joseph L. Claypool, Special Judge Trial Court Cause No. 59C01-1606-CT-161

          ATTORNEYS FOR APPELLANT J. David Agnew Gregory M. Reger Maxwell W. McCrite Lorch Naville Ward, LLC New Albany, Indiana

          ATTORNEY FOR APPELLEES CHERYL CARRICO & CARLA COOK Robert W. Adams III Adams Law Group Louisville, Kentucky ATTORNEY FOR APPELLEE RHONDA VANCE John M. Plummer, Jr. Bedford, Indiana

          May, Judge.

         [¶1] Gerald F. Scott appeals the trial court's denial of his motion to dismiss.[1] Gerald argues that, when an estate is open, tort claims related to that estate must be brought in probate court. Because the claims at issue herein were not known until after the probate court statute of limitations had passed, appellees have no recourse in probate court. As we hold their claims can be brought in civil court, we affirm the trial court's denial of Gerald's motion to dismiss.

         Facts and Procedural History

         [¶2] Melvin Dillman and Rebecca Dillman were married for over thirty years. Rebecca had three sons: Gerald, Timothy, and Bradley (collectively, "Sons") from a previous relationship. Melvin had three daughters: Cheryl, Carla, and Rhonda (collectively, "Daughters") from a previous relationship. Melvin and Rebecca each executed wills with reciprocal provisions, stating, in pertinent part:

In the event my said (spouse) shall predecease me, or shall die under circumstances making it difficult to determine the order of our deaths, then in such event I give, bequeath and devise all of said rest, residue and remainder of my estate, absolutely and in fee, unto my children and my (spouse's) children, namely GERALD F. SCOTT, BRADLEY F. SCOTT, TIMOTHY E. SCOTT, RHONDA KAY VANCE, CARLA ANN COOK and CHERYL SUE CARRICO, and their issue per stirpes who shall be living at the time of my death.
The distributive provisions in this Will and in my husband's/wife's Will are to be considered a binding contract between us. In the event of the death of one of us, the surviving spouse shall be prohibited from revoking, amending, or changing their Will with regard to the distribution of assets as it pertains to any children named under this Will. Provisions that do not affect distribution of assets, may be changed by my surviving spouse. Any change with regard to the distribution of assets on the part of surviving spouse shall be considered breach of our agreed upon contract made during our respective lifetime as to the disposition of our estate upon the death of both of us.

(Appellant's App. Vol. II at 11, 12) (errors in original).

         [¶3] Melvin died on January 26, 2014. Following a diagnosis of Amyotrophic Lateral Sclerosis (ALS), Rebecca died on September 27, 2014. On October 17, 2014, Rebecca's probate estate was opened ("the Estate"). Gerald and Rhonda served as co-executors.

         [¶4] During the probate proceedings, Daughters came to believe Sons had induced Rebecca to transfer assets to Sons at below fair market value. Daughters believed the transferred assets included "real estate holdings, a thriving hardware business, a funeral home and adjoining land, a farm with eighty-three acres, two boats, two trailers, automobiles, and jewelry." (Br. of Appellees at 9.) At some point, Rebecca had granted Sons powers of attorney, which would have aided Sons in their ability to transfer ownership of the assets. These actions, if true, reduced the assets available to be distributed to the six children following Rebecca's death.

         [¶5] On April 19, 2016, Gerald filed a final accounting in the Estate. The probate court set May 4, 2016, as the final filing date for any objections to that accounting. On May 2, 2016, Cheryl filed an objection to the Estate's final accounting. On May 31, 2016, the probate court noted the "estate should not remain open infinitum [sic]," and ordered Cheryl had until "June 24, 2016, to file suit in said estate." (Appellant's App. Vol. II at 86.) On June 20, 2016, Rhonda resigned as co-executrix of the Estate. On June 21, 2016, Rhonda also filed an objection to the final accounting.

         [¶6] On June 22, 2016, Cheryl and Carla filed suit in civil court (hereinafter, "trial court") against Gerald, individually, for tortious interference with inheritance and tortious interference with contract. On June 23, 2016, Rhonda filed suit against Gerald, individually and in his role as Executor of the Rebecca's Estate, and against Bradley and Timothy. Sons all filed answers to the complaints. On November 7, 2016, Gerald requested the two cases be consolidated, and the trial court granted Gerald's motion. On February 24, 2017, Cheryl and Carla filed a motion for leave to amend ...

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