In Re: Petition to Docket Trust of Sadie G. McQueary,
Robert C. Thompson, Jr., Successor Trustee; Benjamin McQueary; Willis Matthew McQueary; and Nathan McQueary, Appellees-Defendants. Gary R. McQueary, Appellant-Plaintiff,
from the Marion Superior Court The Honorable Steven R.
Eichholtz, Judge Trial Court Cause No. 49D08-1404-TR-12478
from the Hamilton Superior Court The Honorable Steven R.
Nation, Judge Trial Court Cause No. 29D01-1707-PL-7104
Attorney for Appellant Bryan H. Babb Bose McKinney &
Evans LLP Indianapolis, Indiana
Attorney for Appellee - Robert C. Thompson, Jr. Joseph M.
Dietz Meils, Thompson, Dietz, & Berish Indianapolis,
Attorneys for Appellee - Benjamin McQueary John A. Cremer
Jonathan E. Lamb Cremer & Cremer Fishers, Indiana
Attorney for Appellees - Nathan McQueary and Willis Matthew
McQueary William A. Maschmeyer Haggerty, Haggerty, &
Maschmeyer Indianapolis, Indiana
of the Case
Gary R. McQueary is the former trustee of The Sadie G.
McQueary Revocable Living Trust ("the Trust") as
well as a beneficiary of the Trust. Nathan McQueary, Willis
McQueary, and Benjamin McQueary (collectively, "the
Grandsons") are also beneficiaries of the Trust. In this
consolidated appeal, Gary appeals the Marion Superior
Court's order granting a motion by Robert C. Thompson, as
successor trustee ("the Trustee"), to enforce a
mediated settlement agreement that Gary had entered into
along with the Grandsons that settled disputes related to the
Trust. Gary further appeals the Marion Superior Court's
order that he pay $20, 831.25 in attorneys' fees based on
the court's conclusion that Gary breached the terms of
the settlement agreement. Gary also appeals the Hamilton
Superior Court's dismissal of his action for quiet title,
which related to real property held by the Trust.
Gary presents three issues for our review, which we revise
and restate as follows:
1. Whether the Marion Superior Court erred when it granted
the Trustee's motion to enforce the settlement agreement.
2. Whether the Marion Superior Court erred when it ordered
Gary to pay attorneys' fees based on its determination
that Gary breached the terms of the settlement agreement.
3. Whether the Hamilton Superior Court erred when it
dismissed his complaint to quiet title.
the Trustee and the Grandsons jointly raise the following
issue for our review:
4. Whether they are entitled to an award of appellate
We affirm in part, reverse in part, and remand for further
and Procedural History
On February 19, 2004, Sadie McQueary established the Trust.
One of the assets of the Trust is a forty-acre parcel of land
in Westfield ("the Westfield property"). The Trust
provided that, upon Sadie's death, the trustee shall
distribute fifty percent of the estate to Gary, who is
Sadie's son, and fifty percent to the
Sadie died on June 10, 2013. At the time of her death, Gary
became the successor trustee of the Trust. On April 17, 2014,
Nathan and Willis filed a petition to docket the Trust in the
Marion Superior Court. In that petition, Nathan and Willis
alleged that Gary had failed to carry out his fiduciary
responsibilities under the Trust. Nathan and Willis requested
"a full and complete current accounting" of all
actions Gary had taken as trustee. Appellant's App. Vol.
II at 121. On January 27, 2015, Gary and the Grandsons
entered into an agreed entry in which Gary, as trustee,
agreed to list the Westfield property for sale for a price of
Gary filed an accounting of the Trust on May 15. Thereafter,
Benjamin filed an objection to the accounting. Specifically,
Benjamin asserted that there were "a number of
expenditures from the Trust assets" which did not
"relate to any term of the [T]rust." Id.
at 124. Nathan and Willis also filed an objection to
On August 24, 2015, Gary and the Grandsons entered into a
mediated settlement agreement. Pursuant to that agreement,
Gary agreed to resign as trustee of the Trust, and Gary and
the Grandsons agreed to appoint Thompson as successor
trustee. The parties agreed that Gary's son, Jake
McQueary, would vacate the Westfield property within thirty
days. Gary and the Grandsons agreed to extend the real estate
listing for the Westfield property for three months.
Additionally, they agreed to distribute three parcels of real
estate from the Trust to Gary, which were valued at $233,
000. The parties also agreed that Gary would refund $71, 707
to the Trust. Gary agreed to pay $48, 000 in attorneys'
fees. In total, the parties agreed that Gary's share in
the Westfield property would be reduced by $352, 707. The
trial court approved the settlement agreement on August 27.
Upon the expiration of the listing contract for the Westfield
property, the Trustee contacted local real estate brokers
about the property. The real estate brokers advised the
Trustee that he needed to obtain a survey in order to sell
the property, which would cost between ten and fifteen
thousand dollars. Gary and the Grandsons did not agree to
spend the money for the survey at that time.
In July 2017, Gary and the Grandsons agreed to spend the
money for the survey of the Westfield property. However, Gary
quickly revoked his consent. On July 28, Gary instead filed a
complaint to quiet title to the Westfield property in the
Hamilton Superior Court. In his complaint, Gary asserted that
he "is now and has been since . . . the date of
Sadie's death, the owner of an undivided one-half . . .
interest in and to" the Westfield property. Id.
at 58. He also asserted that the Grandsons were equal owners
of the other one-half interest. Accordingly, Gary sought an
order from the Hamilton Superior Court declaring that title
to the Westfield property had vested in Gary and the
Grandsons outside of the Trust at the time of Sadie's
On August 8, the Trustee filed a motion to dismiss Gary's
complaint in Hamilton County pursuant to Indiana Trial Rule
12(B)(8) on the ground that the same action was pending in
the Marion Superior Court. Specifically, the Trustee asserted
that "[c]onfusion will be the prime result if two Courts
. . . attempt to resolve the differences among the
beneficiaries of [the Trust] concerning this land[.]"
Appellant's App. Vol. III at 34. The Grandsons all joined
in the Trustee's motion to dismiss. In response, Gary
asserted that "[t]he matters for which the Trust was
docketed in Marion County were concluded with the Court's
order" approving the settlement ...