Jennifer Nelson for www.theindianalawyer.com
The Indiana Court of Appeals upheld the dismissal of a man’s will contest action involving his siblings, but for a different reason than the trial court.
Roger S. Blackman filed his will contest in the same court and under the same cause number as an original probate action involving his mother’s estate. His attorney did so under the advice of the trial court’s clerk. The will contest was served upon counsel for his sister Karen Gholson and brother James Blackman, but no summonses were issued for the siblings.
The trial court granted the siblings’ motion to dismiss, stating it lacked subject matter jurisdiction. The court also denied Roger Blackman’s motion to correct error or relief from judgment. He sought to file a new, separate will contest action under the Journey’s Account Statute.
Based on K.S. v. State, 849 N.E.2d 538 (Ind. 2006), the Court of Appeals concluded that the lower court incorrectly found it lacked subject matter jurisdiction in this case. Failure to follow statutory guidelines for initiating a particular action do not affect subject matter jurisdiction, so long as the action was filed in the proper court for such an action, Judge Michael Barnes wrote.
But in this case, defects existed in the will contest action – Roger Blackman did not tender summonses for his siblings, nor did he pay a filing fee. These actions are necessary to initiate a civil suit under Indiana Trial Rules. The appeals court rejected Blackman’s argument that he should be allowed to re-file because his attorney was following the advice of the trial court clerk in not filing it as a separate proceeding.
“He cites no authority for the proposition that an attorney should be able to rely upon advice from a non-attorney as to legal matters. We decline to create such authority,†Barnes wrote.
The appeals court declined to allow him to re-file pursuant to the Journey’s Account Statute, citing, again, his failure to pay the filing fee and not serving process on his siblings.
The COA also declined to award James Blackman and Gholson appellate attorney fees because the judges did not think Roger Blackman’s appeal was frivolous or in bad faith.
The case is Roger S. Blackman v. Karen A. Gholson and James W. Blackman, 52A02-1412-ES-883.
