Perry v. Poindexter

227 N.E.3d 228

Imogene PERRY, Appellant-Interested Party,

v.Anne H. POINDEXTER, Personal Representative of the Supervised Estate of Richard Abbott, Appellee-Petitioner,Janice Mandla Mattingly, Appellee-Intervenor,Michael P. Brown and Phillip Brown, Appellees-Interested Parties

Court of Appeals Case No. 22A-EU-2774

Court of Appeals of Indiana.

Filed January 24, 2024

Appeal from the Hamilton Superior Court, The Honorable Michael A. Casati, Judge., Trial Court Cause No. 29D01-2106-EU-000269

Attorney for Appellant: Jon R. Pactor, Indianapolis, Indiana

Attorneys for Appellee: Steven F. Fillenwarth, Carmel Family Law, Carmel, Indiana

May, Judge.

[1] Imogene Perry appeals the trial court’s denial of her motion for relief from default judgment. She presents multiple issues for our review, one of which we find dispositive: whether the trial court erred when it denied her motion for relief from judgment pursuant to Indiana Trial Rule 60(B)(6) based on the lack of notice she received after Jane Mandla Mattingly, as personal representative of the estate of Richard Abbott ("the Estate"), filed a motion for return of funds and the court scheduled a hearing thereon. We reverse and remand.

Facts and Procedural History

[2] On September 4, 2015, Richard Abbott passed away in Muncie, Indiana. At some point thereafter, Lauth Investigations International, Inc. ("Lauth"), a company based in Indiana, discovered Abbott had unclaimed assets of approximately $52,150.00. On May 1, 2021, Perry, Abbott’s heir and a resident of Georgia at the time, signed a Claimant Agreement with Lauth in which she agreed, among other things, to pay Lauth a "finder fee equal to ten percent (10%) of the actual recovered amount of Assets." (Appellee’s App, Vol. II at 45.) As part of the Claimant Agreement, Perry also signed a "Contract for Genealogical Research Services[,]" wherein she agreed to allow Lauth to conduct genealogical research to determine all of Abbott’s heirs. (Id. at 46.) The Genealogical Contract also provided Perry agreed to pay Lauth "at constancy fee basis at rate 20% of total recovered assets … [to be] paid within 10 days of when the assets are recovered by client[.]" (Id.) Finally, as part of the Claimant Agreement, Perry signed a Limited Power of Attorney allowing Lauth to, among other things, "communicate and transact business with third parties on my behalf, including but not limited to, government agencies, courts, political subdivisions, vital records, holding companies, and agents of whatever kind, for the purpose of recovering lost or unclaimed assets, property, or funds to which I may be entitled." (Id. at 47.)

[3] On June 3, 2023, Lauth retained Mattingly, an attorney based in Carmel, Indiana, to administer the Estate. Mattingly filed a petition for administration of the Estate without court supervision in Hamilton County Superior Court. In that petition, she asked the trial court to name her as personal representative and requested that she not be required to post bond prior to the administration of the Estate because "she is otherwise insured." (Appellant’s App. Vol. II at 16.) As part of the petition, Mattingly submitted a signed copy of the trial court’s "Instructions to Personal Representative of Unsupervised Estate" ("Instructions"). (Id. at 20) (original formatting omitted). In those Instructions, Mattingly agreed to "[f]ile with this court, within sixty (60) days from the date this court issued [sic] your letters, a verified inventory of all property belonging to the decedent on the date of death along with values as of that date" and "[a]fter court authorization, make distributions to the proper heirs or beneficiaries[.]" (Id.)

[4] On June 7, 2021, the trial court granted Mattingly’s petition and named Mattingly as the personal representative of the Estate. On June 17, 2021, the trial court issued Mattingly’s Letter of Administration of the Estate. At some point between June 17, 2021, and September 21, 2021, Mattingly, as personal representative of the Estate, filed a claim in Abbott’s name and collected the $52,150.00 in unclaimed funds held by the Indiana Attorney General. After paying $15,645.00 in fees,¹ Mattingly disbursed $36,505.00 to Perry as Abbott’s heir.

[5] On September 21, 2021, Michael P. Brown ("Michael") and Phillip Brown ("Phillip") (collectively, "Brown Heirs") filed a petition in the Estate proceedings to determine heirs of decedent, alleging Michael, Phillip, Vanessa O’Bryant, and Michelle DiPego were Abbott’s maternal heirs and thus entitled to a portion of the Estate. Brown Heirs asked the trial court to set a hearing on the matter. Additionally, Brown Heirs argued the Estate "was improperly filed in Hamilton County, contrary to Ind. Code 29-1-7-1, in that decedent did not reside, die or own property in Hamilton County." (Id. at 22.) The trial court set a hearing on the matter for November 16, 2021. The Estate filed a motion to continue the hearing, which the trial court granted and then rescheduled the hearing for December 28, 2021.

[6] On December 2, 2021, Mattingly, as the Estate’s personal representative, filed a motion for order for return of estate funds that asked the trial court to require Perry, who allegedly had not responded to two requests to return the Estate funds, to pay $18,252.50, or half of what Perry received from the Estate, to the Hamilton County Clerk "in order that that those funds may be properly paid to the remaining heirs." (Id. at 25.) As part of that motion, Mattingly alleged:

Subsequent to the receipt of the estate funds and payment of estate proceeds, the Personal Representative became aware that one (1) side of the family was missed. Upon receipt of the Petition to Determine Heirs of Decedent filed by interested parties on September 22, 2021, the Personal Representative requested an investigator to search for heirs previously unknown to Personal Representative.

(Id. at 24.) The motion for return of funds listed Perry as one of the people upon whom service was required.

[7] The trial court ordered the parties to present argument on the motion for return of funds and on Brown Heirs’ petition to determine heirs at the December 28, 2021, hearing. On Friday, December 24, 2021, someone at Perry’s residence in Georgia² signed a receipt of notice for a document regarding the Estate’s motion for return of funds.³

[8] On December 27, 2021, Brown Heirs filed a waiver of objection to motion for order for return of the Estate’s funds. Also on December 27, 2021, Brown Heirs filed a petition to remove Mattingly as personal representative of the Estate. Therein, Brown Heirs alleged:

1. Mattingly has from the outset been unqualified and unsuitable to serve as PR [Personal Representative] in that:

a. she sought appointment as PR notwithstanding that she does not meet the statutory definition of an "interested person" under I.C. 29-1-1-31(18), and

b. she disregarded the venue statute, I.C. 29-1-7-1, by opening the estate in Hamilton County, notwithstanding that the decedent was not domiciled in Hamilton County and owned no property in Hamilton County, and

c. she submitted a … petition for her own appointment as PR [which] is materially false in that it alleged that Imogene Perry is the "only distributee" and "only heir" in this matter.

2. Mattingly has mismanaged the estate:

a. by failing to conduct such minimal research as would have readily identified Michael P. Brown and Phillip Brown, along with the children of their deceased sibling, Noel Brown, as additional heirs, and

b. by charging or permitting the "limited attorney in fact," Lauth Investigations International, Inc. ("Lauth") to charge, an unreasonable (and arguably unlawful) fee amounting to thirty percent (30%) of the sole available and easily administered cash asset of the estate, and

c. distributing to Imogene Perry seventy percent (70%) of the sole assets, $36,505, despite easily discoverable existence of other heirs … and

d. in light of one or more other matters in which Mattingly, in concert with Lauth, has, in disregard of I.C. 29-1-1-31(18) and I.C. 29-1-7-1, has [sic] engaged in an ongoing scheme to extract unreasonable and unlawful fees from unsuspecting heirs of deceased owners of property.

(Id. at 27-8) (internal footnotes⁴ omitted). Based thereon, Brown Heirs asked the trial court to remove Mattingly as the Estate’s personal representative, require Mattingly "to replace all funds received by her or paid by her to Lauth and pay fifty percent (50%) of the sole cash asset to the petitioners and the children of their deceased sibling, and appoint a suitable successor personal representative." (Id. at 28.) Brown Heirs also asked the trial court to award them attorney’s fees because "[i]t has been necessary for petitioners to utilize the services of an attorney to a greater extent than would have been required absent the PR’s mismanagement[.]" (Id.) Brown Heirs attached to their petition a copy of Abbott’s obituary, which Brown Heirs stated "was found within two minutes via online search[.]" (Id. at 27.) The obituary indicated "[Abbott] is survived by numerous uncles, aunts, and cousins[.]" (Id. at 29.)

[9] On December 28, 2021, the trial court held the scheduled hearing on the motion for return of the Estate’s funds and the Brown Heirs’ petition to determine heirs.⁵ Perry did not appear. On January 5, 2022, the trial court issued an order that named Abbott’s heirs as Perry, Michael, Phillip, the Estate of Noel F. Brown, Nancy Lee Brown Hullinger Taubert, and Joan Pauletta Brown Cole Starr. Based on the determination of additional heirs, the trial court ordered Perry to return $36,505.00, or all the funds she received from the Estate, by January 21, 2022. The trial court’s order indicated that "[i]n the event the funds are not returned on or before January 21, 2022, this amount shall be reduced to judgment." (Id. at 32.) Also in its order, the trial court found "Imogene Abbott Perry received notice of the hearing via...