Paul Zartman and Brenda Cameron, Individually; Brenda Cameron as Successor Trustee of the William G. Zartman, Jr. Revocable Trust; and Paul Zartman as Successor Co-Trustee of the Marilyn M. Zartman Revocable Trust, Appellants-Plaintiffs,
William G. Zartman, III, Individually and as Successor Co-Trustee of the Marilyn M. Zartman Revocable Trust; Kim Zartman; W K Zartman Farms, LLC; and William G. Zartman, III and Kim R. Zartman, Member Managers of W K Zartman Farms, LLC, Appellees-Defendants.
from the Miami Circuit Court The Honorable Timothy P. Spahr,
Judge Trial Court Cause No. 52C01-1601-PL-28
ATTORNEY FOR APPELLANTS John Johnston Johnston &
Johnston, PC Wabash, Indiana
ATTORNEY FOR APPELLEES Jeffry G. Price Peru, Indiana
SHEPARD, SENIOR JUDGE.
The common law "best evidence rule" has been
formalized through the modern Rules of Evidence employed by
both state and federal courts. The series of provisions
starting at Rule 1001 cover problems like the one in this
case, which turns on the language used in a trust document
not presently possessed by either party.
After reviewing such caselaw as exists and a number of
respected treatises, we conclude that the trial court wrongly
applied Evidence Rule 1008 in the course of a summary
judgment proceeding. We remand with directions that the court
reconsider that ruling.
and Procedural History
William G. Zartman, Jr. and Marilyn M. Zartman were married
and had three children: Brenda, Paul, and William III.
William Jr. and Marilyn owned a farm consisting of about 303
acres straddling the Miami and Fulton County line. William
Jr. operated the farm, and in later years William III worked
the farm with his father.
In 1980, William Jr. and Marilyn established the William G.
Zartman, Jr. Revocable Trust and the Marilyn M. Zartman
Revocable Trust. In 1993, they both executed a "First
Amendment" to their trusts. By 2003, each trust held
one-quarter of the farm, and the remaining half of the farm
had been transferred to William III. Subsequently, William
Jr.'s trust also transferred its one-quarter interest to
Marilyn died in August 2004, and William Jr. died in February
2010. Thereafter, William III, as a trustee of Marilyn's
trust, transferred to himself the one-quarter of the farm
held by her trust.
Paul and Brenda first initiated litigation against William
III in Florida after the death of William Jr., who was a
resident of Florida when he died. The Florida court
determined that William III had "persistent[ly] fail[ed]
to administer the Trust effectively" and that he had
committed "a serious breach of trust."
Appellants' App. Vol. 4, p. 134. Due to such
mismanagement of William Jr.'s trust, the Florida court
removed William III as trustee. It also declared that it had
no jurisdiction over Indiana real estate. For all that
appears, the Florida litigation is ongoing.
Here in Indiana, Paul and Brenda filed suit in 2016 against
William III, seeking among other things to set aside William
III's conveyance to himself of the one-quarter interest
in the farm held by Marilyn's trust and to recover lost
income from that land. Paul and Brenda moved for summary
judgment. The trial court denied their motion on grounds that
the content of Marilyn's trust documents was required to
be determined by a jury. Following a trial, the jury returned
a verdict in favor of William III.
Paul and Brenda present four issues for our review, one of
which is potentially dispositive: whether the trial court