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COA reverses trial court in estate case

April 24, 2012

The Indiana Court of Appeals held that the trial court improperly granted summary judgment to parties whose attorney did not notify opposing counsel that a motion had been filed.

In George Clements v. Kimberly Hall and Stanley Harmon, No. 06A04-1106-MI-282, George Clements appealed the trial court’s grant of summary judgment in favor of Kimberly Hall and Stanley Harmon. Clements, Hall and Harmon were all due to receive property, as outlined in Arthur and Mary Lou Clements’ trust.

Arthur and Mary Lou Clements died in 2006 and 2008, and in July 2010, George Clements filed a personal representative’s deed as executive of the estate of Arthur Clements, deeding property to himself for $10. In August, Hall and Harmon’s attorney, Arvin Foland, filed an appearance and claim for quiet title, constructive trust and partition of the property, contending the deed George Clements filed was improper. Hall and Harmon argued the deed should be deemed a cloud upon the title to the property and that the property should be held in constructive trust until it could be sold and the proceeds divided.  

The court entered an order granting summary judgment for Hall and Harmon and disposing of the case. Nothing in the record indicates Clements or his attorney were served with the motion for summary judgment or received notice of any proceedings on the motion.

Clements then filed a motion for relief from judgment, and the trial court denied it.

Hall and Harmon contend their attorney discussed the claim with Clements’ attorney, but they did not say that Foland served Clements or his attorney with the motion for summary judgment or in any way notified Clements when it was filed.

The Court of Appeals held that Foland knew Clements had an attorney and was therefore obligated to provide notice. Accordingly, it reversed the trial court and remanded for further proceedings consistent with its opinion.

 

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