Roger S. Blackman v. Karen A. Gholson and James W. Blackman
46 N.E.3d 975
Ind. Ct. App.2015Background
- Lillian Blackman executed a will in July 2013; her children Karen and James opened probate and sought to admit that will.
- Roger Blackman filed a "Verified Contest of Will" in the same probate cause on December 23, 2013, seeking to substitute a June 2013 will. His counsel filed the contest in the probate case on advice of the court clerk.
- Roger served the contest on Karen and James’ counsel but did not tender summonses for Karen and James and did not pay the filing fee.
- Karen and James moved to dismiss for lack of jurisdiction; the trial court granted dismissal and later denied Roger’s motion to correct error/for relief, which sought permission to refile under the Journey’s Account Statute.
- Roger appealed, arguing the dismissal was improper, the JAS should permit refiling, and opposing a request for appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court properly dismissed Roger’s will contest | Roger: filing in same probate cause (per clerk) was sufficient; subject-matter jurisdiction existed | Karen & James: Roger failed to commence a separate civil action (no summonses, no fee), so court lacked jurisdiction over them | Dismissal affirmed: court had subject-matter jurisdiction but Roger’s failure to follow Trial Rules deprived the court of personal jurisdiction over defendants and warranted dismissal |
| Whether Journey’s Account Statute allows refiling after dismissal | Roger: JAS preserves his right to refile despite expiration of three-month will-contest window | Karen & James: Roger’s failures (no fee, no summonses) constitute negligence in prosecution, barring JAS relief | JAS inapplicable: failure to pay filing fee is negligence in prosecution and precludes JAS relief |
| Whether reliance on court clerk’s advice excuses procedural defects | Roger: attorney relied on clerk’s guidance to file within the probate cause | Karen & James: counsel cannot rely on non-attorney clerk to excuse failure to follow rules | Not excused: counsel cannot rely on clerk’s advice to bypass Trial Rules; dismissal proper |
| Whether appellate attorney fees should be awarded | Karen & James: appeal was frivolous or in bad faith, warranting fees | Roger: appeal was reasonable given statute ambiguity and timely filing notice to opposing counsel | No fees: appeal not prosecuted in bad faith or frivolously; minor procedural deviations insufficient to impose fees |
Key Cases Cited
- Robinson v. Estate of Hardin, 587 N.E.2d 683 (Ind. 1992) (will contests are not part of estate administration)
- Avery v. Avery, 953 N.E.2d 470 (Ind. 2011) (will contests are governed by Trial Rules)
- Smith v. Estate of Mitchell, 841 N.E.2d 215 (Ind. Ct. App. 2006) (failure to comply with Trial Rules to commence will contest can defeat the action)
- Kitterman v. Pierson, 661 N.E.2d 1255 (Ind. Ct. App. 1996) (will contest dismissed where beneficiaries were neither named nor served)
- K.S. v. State, 849 N.E.2d 538 (Ind. 2006) (distinguishes jurisdictional defects from procedural error; mere procedural defects do not deprive subject-matter jurisdiction)
- Boostrom v. Bach, 622 N.E.2d 175 (Ind. 1993) (to commence suit for some purposes, complaint, summons, and fee are required)
- Ray-Hayes v. Heinamann, 760 N.E.2d 172 (Ind. 2002) (summons must be tendered with filing to commence suit for statute-of-limitations purposes)
- Eads v. Community Hosp., 932 N.E.2d 1239 (Ind. 2010) (failure to pay filing fee can constitute negligence in prosecution barring JAS relief)