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Tipton v. Estate of Hofmann

Court of Appeals of Indiana

January 17, 2019

Rhonda DeLap Tipton, Appellant-Petitioner,
Estate of Virginia D. Hofmann, Appellee-Respondent.

          Appeal from the Johnson Superior Court The Honorable Kevin Barton, Judge Trial Court Cause No. 41D01-1505-EU-159

          Appellant pro se Rhonda DeLap Tipton Indianapolis, Indiana

          Attorneys for Appellee Kevin D. Koons Steven E. Runyan Kroger Gardis & Regas, LLP Indianapolis, Indiana

          Riley, Judge.


         [¶1] Appellant-Petitioner, Rhonda Delap Tipton (Tipton), appeals the trial court's Order on Administrator's Final Account with respect to Appellee-Respondent, the Estate of Virginia D. Hofmann (Estate).

         [¶2] We affirm and remand.


         [¶3] Tipton presents us with one issue on appeal, which we restate as: Whether the trial court's Order, approving the Final Account, is clearly erroneous.

         [¶4] In its Appellate Brief, the Estate requests an award of appellate attorney fees pursuant to Indiana Appellate Rule 66(E).


         [¶5] Virginia D. Hofmann (Decedent) died testate on March 30, 2015, leaving three surviving children, Tipton, Kenneth DeLap (DeLap), and Denise Webb (Webb), who are each equal one-third residuary beneficiaries of the Estate. On May 27, 2015, Tipton and DeLap filed a petition for unsupervised administration of the Estate and were appointed co-executors, as provided in the Decedent's will. The Estate's assets consisted mainly of non-cash illiquid assets, such as a residence and household goods, as well as a bank account at Horizon Bank, which Decedent held jointly with Tipton and DeLap and which held a balance of approximately $8, 300 (Horizon Account). On or about June 26, 2015, Tipton and DeLap opened a bank account on behalf of the Estate at PNC Bank (PNC Account). Both Tipton and DeLap used the PNC Account and the Horizon Account to pay Estate-related expenses. By August 25, 2015, Tipton and DeLap had each contributed $4, 000 of their personal funds to these accounts. In late August 2015, an emotional altercation occurred between Tipton, Webb, and Webb's husband concerning the Decedent's personal property. In response, Tipton filed for-and later dismissed-a protective order against Webb and her husband. Subsequently, on September 3, 2015, the trial court revoked the unsupervised administration of the Estate.

         [¶6] In an effort to work out their differences, the three siblings reached a compromise which culminated in the Family Settlement Agreement (Agreement). This Agreement provided, in pertinent part,

2. The Parties agree that the promises and considerations given by each Party are fair and reasonable, and therefore the Estate, [Tipton], [DeLap], and [Webb] agree to completely release and forever discharge one another of and from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, loss of service, expenses, compensation of any nature, whatsoever, whether based on tort, contract, or other theory or recovery and whether compensatory or punitive damages which either the Estate, [Tipton], [DeLap], and [Webb] now has or which may hereafter accrue or otherwise be acquired which had resulted or may result from the alleged acts or omissions of the Parties relating to any action taken at any time prior to the date that all Parties have signed this [Agreement] and Mutual Release, including the incident at [Decedent's] residence in late August 2015, between [Tipton], [Webb] and [Webb's husband], and the resulting action of [Tipton] petitioning for an Order of Protection against [Webb] and [Webb's husband] (which was subsequently dismissed by written request of [Tipton]). This release on the part of the Parties shall be a fully binding and complete settlement among the Parties save only the executory provisions of this [Agreement] and Mutual Release.
4. [Tipton] and [DeLap] have loaned the Estate various amounts. Prior to any residuary distribution of the Estate, [Tipton] and [DeLap] shall be reimbursed for any amounts loaned to the Estate.

(Appellee's App. Vol. II, pp. 39-40). On November 30, 2015, the trial court approved the Agreement and allowed Tipton and DeLap to resume the unsupervised administration of the Estate.

         [¶7] On May 17, 2017, the trial court, sua sponte, issued an Order for Tipton and DeLap to personally appear as no closing statement for the Estate had been filed within one year of its opening, pursuant to Ind. Code § 29-1-7.5-3.8. After the parties personally appeared on June 19, 2017, the trial court issued an Order finding that the conflict between DeLap and Tipton prevented them from preparing a final account. The trial court removed Tipton and DeLap as co-personal representatives, and appointed Brian J. Deppe as the Administrator Cum Testamento Annexo of the Estate (Administrator). It instructed Tipton and DeLap to provide the Administrator within 30 days with the details for all amounts they contended the Estate owed them. The Order gave the Administrator 60 days to provide the trial court with an account.

         [¶8] On July 10, 2017, Tipton filed a motion to set aside the Agreement, which the trial court denied on August 28, 2017, after conducting an evidentiary hearing. On February 9, 2018, the Administrator filed a verified petition to settle and allow final account, which included both approvals and disapprovals of various amounts that Tipton and DeLap contended the Estate owed them. On March 28, 2018, the trial court conducted ...

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