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In re Petition to Docket Trust of McQueary

Court of Appeals of Indiana

May 29, 2019

In Re: Petition to Docket Trust of Sadie G. McQueary,
v.
Robert C. Thompson, Jr., Successor Trustee; Benjamin McQueary; Willis Matthew McQueary; and Nathan McQueary, Appellees-Defendants. Gary R. McQueary, Appellant-Plaintiff,

          Appeal from the Marion Superior Court The Honorable Steven R. Eichholtz, Judge Trial Court Cause No. 49D08-1404-TR-12478

          Appeal 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, Indiana

          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

          NAJAM, JUDGE

         Statement of the Case

         [¶1] 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.

         [¶2] 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.

         Additionally, the Trustee and the Grandsons jointly raise the following issue for our review:

4. Whether they are entitled to an award of appellate attorneys' fees.

         [¶3] We affirm in part, reverse in part, and remand for further proceedings.

         Facts and Procedural History

         [¶4] 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 Grandsons.[1]

         [¶5] 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 $2.2 million.

         [¶6] 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 Gary's accounting.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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 death.

         [¶10] 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 ...


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