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Granddaughter can continue to seek guardianship of grandfather

December 29, 2016

The Indiana Court of Appeals is allowing a granddaughter to continue seeking guardianship over her grandfather after determining that the trial court erroneously dismissed her guardianship petition.

In 1996, W.P. and M.P. established a trust that made their three sons, M.L.P., W.K.P. and J.C.P., residual beneficiaries and M.L.P. and J.C.P.  trustees. In July 2014, W.P. amended the trust to make M.L.P. the sole successor trustee.

In August 2014, J.C.P. filed a petition requesting that W.P. and M.L.P. be replaced by a corporate trustee. H.S., a granddaughter of W.P. and M.P. and contingent beneficiary, was notified and summonsed as an interested party, but did not join the suit as a party.

J.C.P. also requested an accounting of the trust and a preliminary injunction, alleging that M.L.P. and his wife were exercising undue influence over his parents and were self-dealing out of trust assets. When M.P. died a short time later, M.L.P. became a co-trustee with W.P.

The Tippecanoe Circuit Court granted the preliminary injunction in October 2014 and noted W.P. suffered from dementia, which M.L.P. was exploiting to sow discord in the family.  Although H.S. did not join the case as a party, she provided deposition testimony. But a week before the scheduled June 2015 trial, J.C.P. filed to dismiss his case, citing emotional and financial strains. The case was dismissed with prejudice.

Then in December, H.S. filed to establish guardianship over her grandfather, alleging that he was an “incapacitated person.” W.K.P. and J.C.P. consented to the guardianship, but M.L.P. did not.  Instead, M.L.P. joined his father’s motion to dismiss.

The motion to dismiss was granted on the basis that H.S.’s claims were res judicata and because her guardianship petition was not in compliance with a local rule because it did not include a doctor’s report.

H.S. appealed, and the Indiana Court of Appeals found Thursday that the motion to dismiss should not have been granted.

Specifically, the appellate court held that precluding her case under res judicata would be unfair. If J.C.P.’s case had been fully litigated and not voluntarily dismissed, then W.P.’s argument would be stronger, Judge John Baker wrote for the unanimous panel. But Baker specifically noted that there was no evidence that H.S. was notified or had knowledge of her uncle’s motion to dismiss.

Further, the appellate court found that the plain language of Tippecanoe County Local Rule of Court 79-PR-8.2 does not support the decision to dismiss H.S.’s petition. That rule states that a doctor’s report is due at the time a petition is filed or on the hearing date, so “a litigant reading the rule would have no notice that failure to include doctor’s report with the petition would result in dismissal.”

“At most, the rule could be read to permit a trial court to order a litigant to produce such a report before holding a hearing; if the party did not comply with the court order, then perhaps the petition could be dismissed on that basis,” Baker wrote.

Thus, the case of H.S. v. W.P., 79A05-1604-GU-776, was remanded with instructions to vacate the order to dismiss and for further proceedings.

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