Amy P. Gutierrez v. The Estate of Geoffrey S. Riske (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 08 2019, 6:17 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Amy P. Gutierrez Jason M. Kuchmay
Fort Wayne, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Amy P. Gutierrez, November 8, 2019
Appellant-Respondent, Court of Appeals Case No.
19A-EU-667
v. Appeal from the Allen Superior
Court
The Estate of Geoffrey S. Riske, The Honorable Craig J. Bobay,
et al., Judge
Appellees-Petitioners The Honorable Phillip E. Houk,
Magistrate
Trial Court Cause No.
02D02-1708-EU-369
Altice, Judge.
Case Summary
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[1] Belinda Romine is the personal representative of the Estate of Geoffrey Riske
(the Estate). After opening the Estate, Romine filed a petition for recovery of
estate property, seeking to recover real and personal property that Romine
contended was being improperly withheld from the Estate by Amy Gutierrez,
one of Riske’s adult children. Gutierrez disregarded her discovery obligations,
failed to timely and fully comply with a subsequent order to compel discovery
responses, and did not timely file her witness and exhibit list. As a result, the
trial court entered an order precluding Gutierrez from presenting witnesses or
exhibits at trial and recognized, at the evidentiary hearing, that Romine’s
requests for admission, which were served upon Gutierrez and untimely
responded to, were deemed admitted. A brief evidentiary hearing then
occurred regarding certain personal property not covered by the admissions.
[2] After the evidentiary hearing, the trial court granted the Estate’s petition to
recover estate property with respect to both real and personal property. The
court, thereafter, denied multiple motions to correct error filed by Gutierrez. In
her pro-se appeal, Gutierrez presents six issues that we consolidate and restate
as the following three issues:
1. Did the trial court properly determine that the matters
covered in the request for admissions were deemed
admitted by operation of law and, thus, conclusively
established for purposes of trial?
2. Did the trial court abuse its discretion by precluding
Gutierrez from presenting witnesses and exhibits at trial as
a discovery sanction?
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3. Did the trial court abuse its discretion by denying
Gutierrez’s motions to correct error?
[3] We affirm.
Facts & Procedural History
[4] Romine was Riske’s companion for over twenty years leading up to his death
from metastatic laryngeal cancer on July 29, 2017. 1 They had lived together for
about the last eight years in Riske’s home located on Huestis Avenue in Fort
Wayne (the Real Estate). Romine owned another residence across the street
from the Real Estate.
[5] On August 7, 2017, Gutierrez recorded a quit-claim deed, pursuant to which
the Real Estate was purportedly transferred from Riske to Gutierrez on July 7,
2013 (the Quit-Claim Deed). Gutierrez then had Romine removed from the
Real Estate with the assistance of police officers. Over the next several days,
Romine watched and video recorded as Gutierrez and others removed personal
property from the Real Estate that had been acquired by Riske and Romine
either jointly or separately over the years.
1
Although his diagnosis was terminal, Riske underwent chemotherapy in September and October 2016. He
was admitted to the hospital from October 19 to October 23, 2016, via the emergency department, and was
discharged, upon his own insistence, the day after a feeding tube had been placed. Riske was given only a
period of months to live.
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[6] Romine filed two petitions with the trial court on August 15, 2017, one to
probate a will executed by Riske in May 2017 (the Will) 2 and another for
appointment of herself as personal representative of the Estate. The trial court
admitted the Will to probate the following day and appointed Romine as
personal representative. Under the Will, the Real Estate and much of Riske’s
personal property was bequeathed to Romine.
[7] On August 21, 2017, Romine, as personal representative of the Estate, filed a
petition for recovery of estate property (the Recovery Petition). Romine alleged
that the Quit-Claim Deed filed by Gutierrez was fraudulent on its face and
recorded to circumvent the probate proceedings. She asked that the Quit-Claim
Deed be set aside and the Real Estate returned to the Estate. As evidence of
fraud, Romine observed in the Recovery Petition that the Quit-Claim Deed was
purportedly executed on July 7, 2013, but that the notary public stamp
indicated a commission expiration date of January 20, 2024. 3 The term of a
notary public’s commission is eight years. Ind. Code § 33-42-12-1 (formerly
I.C. § 33-42-2-1(b)). Thus, as Romine observed, it was not possible for the Quit-
Claim Deed to have been notarized in 2013 by a notary public whose
commission was set to expire in 2024. Romine also alleged in the Recovery
2
The Will’s precise date of execution is indecipherable, but the month and year are clear.
3
The Quit-Claim Deed indicates that it was prepared by attorney Harry W. Foster III (Attorney Foster) and
notarized by his wife, Linda Sue Foster (Notary Foster). Notary Foster’s current commission as a notary
public began on January 21, 2016 and expires on January 20, 2024. She had a prior commission from
December 18, 2007 to December 17, 2015.
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Petition that she had personally witnessed the removal from the Real Estate of
personal property belonging to the Estate and that Gutierrez was withholding
motorcycles titled in Romine’s name.
[8] Gutierrez obtained counsel, Kingsley G. Regnier, on September 11, 2017, 4 and
a status conference was held on October 2, 2017, after which the parties were
ordered to mediate the dispute over ownership of the Real Estate. With respect
to the personal property, Gutierrez agreed to provide a complete list of items
that had been removed from the garage by October 20, 2017, and to allow
Romine, on October 21, 2017, along with her counsel, to enter the Real Estate
to make an inventory of the personal property therein. The parties also agreed
that three motorcycles that were in the garage and belonged to Romine were to
be returned to her. Romine, as personal representative of the Estate, agreed to
sign the title to another motorcycle over to Riske’s son, pursuant to the terms of
the Will. Finally, one of Riske’s other daughters agreed to transfer possession
of a curio cabinet to Romine, as personal representative of the Estate. The trial
court’s order, issued October 2, 2017, memorialized each of these agreements.
[9] The parties failed to mediate the dispute regarding the Real Estate, and no
activity is noted on the CCS again until February 2018, when Regnier moved to
4
Riske’s three other children also obtained counsel to jointly represent their interests. They do not
participate in this appeal.
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withdraw his appearance, which was granted. The following month, one or
more attorneys withdrew from representing other parties.
[10] On July 17, 2018, new counsel for the Estate entered an appearance and sought
to move along the stagnant proceedings with a motion for a case management
conference, which was held on August 21, 2018. While it does not appear that
Gutierrez, who was unrepresented at the time, received notice of the hearing,
she was noticed with the resulting order that was issued the same day and
provided in relevant part:
Scheduling Conference is conducted as to the pending [Recovery
Petition]. The Court hereby sets trial on this matter for January
15, 2019 at 9:30 a.m. and a Pre-Trial Conference for January 8,
2019 at 9:30 a.m. Failure to appear for the Pre-Trial Conference
may result in a default judgment. Discovery in this matter is to
be concluded on or before December 18, 2018. Witness and
Exhibit Lists are to be filed and exchanged on or before January
7, 2019.
Appellant’s Appendix Vol. II at 63 (emphasis in original).
[11] Romine deposed Attorney Foster, Notary Foster, and Gutierrez in September
and, on November 8, 2018, served Gutierrez with written discovery requests,
including interrogatories, request for production of documents, and request for
admissions. When Gutierrez did not respond within thirty days, Romine, by
counsel, sent a letter to Gutierrez on December 17, 2018, demanding full and
complete responses to the interrogatories and request for production of
documents within five days or Romine would file a motion to compel.
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Included within the correspondence were copies of these requests. The request
for admissions was not included or referenced in the correspondence because
the admissions had already been admitted by operation of law.
[12] Also, on December 17, 2018, Romine filed with the trial court, and served upon
Gutierrez, a motion for unilateral extension of the discovery deadline from
December 18, 2018, to January 14, 2019. Romine noted Gutierrez’s failure to
respond to the interrogatories and request for production of documents and
indicated that an extension of the discovery deadline would allow Romine time
for receipt of the outstanding discovery responses, to file a motion to compel if
needed, and to take any necessary depositions after responses are received. The
trial court granted the extension for Romine only.
[13] On January 4, 2019, Romine filed a motion to compel, indicating that
“Gutierrez had failed to provide any response to the discovery requests
whatsoever.” Id. at 91. That same day, the trial court issued an order granting
the motion to compel, which provided in relevant part:
Gutierrez must provide to counsel for Romine, full and complete
responses to the Interrogatories and Request for Production of
Documents originally served upon her November 8, 2018….
The full and complete responses must be produced so that they
are received by counsel for Romine within five (5) days from the
date of this Order.
It is FURTHER ORDERED, ADJUDGED AND DECREED
that Romine shall be permitted to amend her Witness & Exhibit
List, as appropriate, upon receipt of the outstanding discovery
responses. Petitioner is to notify all interested parties.
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Id. at 107 (emphasis in original).
[14] Romine timely filed her witness and exhibit list on the January 7, 2019
deadline. Gutierrez did not, but on that date, Attorney Foster entered an
appearance on her behalf and appeared the next day at the scheduled pre-trial
conference. In an order dated January 8, 2019, the trial court continued the
scheduled trial to February 12, 2019, and extended the discovery deadline for
Romine only to February 5, 2019, as Gutierrez had yet to comply with the
order to compel. Additionally, the trial court noted in the order: “Attorney
Harry Foster indicates his intention to withdraw his appearance due to a
conflict.” 5 Id. at 118. The trial was continued the next day to February 21,
2019, due to a scheduling conflict.
[15] On January 14, 2019, Romine filed a motion for an order precluding Gutierrez
from presenting witnesses or exhibits at trial and compelling responses to
discovery requests (the Motion to Preclude). In support, Romine noted that
Gutierrez had still not responded to discovery and did not file a witness and
exhibit list as required, which prejudiced Romine’s ability to prepare for trial.
Romine also observed that Attorney Foster had continued to represent
Gutierrez despite a clear conflict of interest. Romine sought the following relief
in her motion:
5
Attorney Foster and his wife, Notary Foster, were both material witnesses in the case.
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16. In light of Gutierrez’s disregard of the trial rules, her
disregard of this Court’s motion to compel order, and Foster’s
ongoing representation of Gutierrez, additional sanctions against
Gutierrez are warranted.
17. Romine submits that an appropriate sanction against
Gutierrez would be an Order precluding her from presenting
witnesses or exhibits at the upcoming trial, in addition to an
award of attorney’s fees.
Id. at 124. The trial court set the Motion to Preclude for hearing.
[16] On January 15, 2019, Attorney Foster filed a motion to withdraw his
appearance, and Gutierrez filed a pro-se appearance. That same day, Gutierrez
filed a motion for leave to file a witness and exhibit list and a notice of
compliance, indicating that she had just delivered discovery responses to
Romine’s counsel. Romine filed a written objection to the motion for leave to
file a witness and exhibit list, noting that it had been filed in the eleventh hour
and that Gutierrez’s discovery responses did not include a single document that
she referenced in her exhibit list and were deficient in other respects.
[17] Attorney Nathan D. Hoggatt filed an appearance on behalf of Gutierrez on
January 28, 2019, and represented her on February 6, 2019, at the hearing on
the Motion to Preclude. After the hearing, the court issued an order granting
the Motion to Preclude (the Preclusion Order), pursuant to which the court
precluded Gutierrez from presenting witnesses or evidence at trial. The court
also ordered her to comply with all pending discovery requests by February 15,
2019, and the court took the matter of attorney’s fees under advisement.
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[18] The trial on the Recovery Petition took place on February 21, 2019, at which
Attorney Hoggatt represented Gutierrez. 6 Pursuant to the Preclusion Order,
Gutierrez was not permitted to present witnesses or exhibits, but was allowed to
testify on her own behalf. Additionally, at the start of trial, Romine asked that
the request for admissions, to which Gutierrez had not timely responded, be
deemed admitted and conclusively established by operation of law. The
admissions included, among other things, that: 1) the Will was signed by Riske,
was in effect at the time of his death, and represented his wishes; 2) the Quit-
Claim Deed was not signed by Riske, but rather his signature was forged, and
the fraudulent deed should be set aside and the Real Estate titled to Romine;
and 3) a will purportedly executed by Riske on October 24, 2016, was forged
and fraudulent. The admissions also included a list of personal property that
Gutierrez took from the Real Estate after Riske’s death without right and
knowing that Riske intended such property to go to Romine upon his death.
[19] Based on the admissions, Romine requested a directed verdict on the issues
covered by the admissions, particularly bringing the Real Estate back into the
Estate. Gutierrez objected to the motion for a directed verdict and asked for
reconsideration of the Preclusion Order to allow her to present evidence. The
trial court denied the request to set aside the Preclusion Order and noted that
“the record is pretty clear” that Gutierrez “had every opportunity” to respond
6
Attorney Hoggatt filed a motion to withdraw from representing Gutierrez on February 16, 2019. Gutierrez
filed a strenuous objection to the motion to withdraw, and the trial court denied the motion on February 18,
2019, noting that it had come to the court’s attention less than 72 hours before trial.
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to the discovery requests and that “her due process rights were represented[.]”
Transcript at 15. The trial court also concluded that the matters addressed in the
request for admissions were deemed admitted. The trial court then allowed
evidence to “go forward [] on issues relating to some personal property that is
not covered by [the] admission.” Id. at 19. Romine and Gutierrez testified
briefly in this regard, and Gutierrez acknowledged taking personal property
from the Real Estate and indicated a willingness to return some of this property
to the Estate.
[20] On February 25, 2019, the trial court issued its final order (the Final Order)
regarding the Recovery Petition. The court terminated any right to title or
possession of the Real Estate by Gutierrez and ordered her to, within ten days,
execute a quit-claim deed delivering the Real Estate to the Estate and vacate the
property. Upon receipt of the quit-claim deed, the court indicated that the
personal representative may then administer the Real Estate according to the
terms of the Will and transfer title to Romine. Additionally, the court ordered
that certain personal property be returned to Romine personally and other
property be returned to the Estate to be distributed according to the Will. The
trial court expressly entered the Final Order as a final judgment pursuant to
Ind. Trial Rule 54(B).
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[21] The day the Final Order was issued, Gutierrez, now proceeding pro se, filed a
motion to correct error (the First MTCE). 7 In the First MTCE, Gutierrez
challenged the Preclusion Order and asked the trial court to “allow her to
present witnesses and exhibits at the trial … to clearly show the Court how
Belinda Romine is attempting to perpetrate a hoax upon the Court.” Appellant’s
Appendix Vol. II at 166. The trial court summarily denied the First MTCE on
February 27, 2019. Thereafter, on March 8, 2019, Gutierrez filed another
MTCE (the Second MTCE) based on alleged newly discovered evidence. In
the Second MTCE, Gutierrez claimed that Romine had perpetrated a fraud
upon the court by concealing evidence. Gutierrez also challenged the validity
of the Will based on undue influence and incapacity. The trial court denied the
Second MTCE on March 13, 2019.
[22] Gutierrez, pro se, brings this timely appeal of the Final Order and the denial of
her First and Second MTCE. Additional information will be provided below as
needed.
Discussion & Decision
1. Admissions
[23] Gutierrez challenges the trial court’s determination that her failure to timely
respond to the request for admissions resulted in them being deemed admitted
7
Gutierrez also filed an “Alternative Verified Motion to Correct Errors,” the denial of which is not at issue
on appeal.
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by operation of law. Her arguments regarding her self-styled “supposed
admissions” are muddled and difficult to follow. Appellant’s Brief at 17.
Gutierrez appears to argue that she made a motion to withdraw the admissions,
which the trial court improperly denied because the admissions went to the
heart of the case and their withdrawal would not have prejudiced Romine.
[24] There is no dispute that Gutierrez did not timely respond to the request for
admissions, as she filed her response more than two months after they were
served upon her. Thus, pursuant to Ind. Trial Rule 36, the matters covered by
the request for admissions were deemed admitted and conclusively established
by operation of law. See In re Marriage of Perez, 7 N.E.3d 1009, 1011 (Ind. Ct.
App. 2014) (“The failure to respond in a timely manner to a request for
admissions causes those matters to be admitted and conclusively established by
operation of law.”) (citing Corby v. Swank, 670 N.E.2d 1322, 1324 (Ind. Ct.
App. 1996)). Once the admissions are obtained, the need to prove those facts at
trial are eliminated, and the trial court may not disregard the admissions. See
Corby, 670 N.E.2d at 1324. Further, the party obtaining the admissions is under
no obligation to move to have them deemed established. Id.[25] T.R. 36(B) governs the withdrawal of admissions and provides in part:
Any matter admitted under this rule is conclusively established
unless the court on motion permits withdrawal or amendment of
the admission. Subject to the provisions of Rule 16 governing
amendment of a pre-trial order, the court may permit withdrawal
or amendment when the presentation of the merits of the action
will be subserved thereby and the party who obtained the
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admission fails to satisfy the court that withdrawal or
amendment will prejudice him in maintaining his action or
defense on the merits….
The party seeking withdrawal has the burden of establishing that the
presentation of the merits will be subserved by withdrawal, and the party who
has obtained the admissions has the burden of demonstrating that it will be
prejudiced if the trial court permits withdrawal. Corby, 670 N.E.2d at 1326.
When ruling on a motion to withdraw admissions, the trial court exercises
discretion, and we will reverse only for an abuse of that discretion.” Costello v.
Zavodnik, 55 N.E.3d 348, 352 (Ind. Ct. App. 2016).
[26] The two-part test for determining if withdrawal is appropriate under the
circumstances is not self-executing. Corby, 670 N.E.2d at 1327. Rather, “the
party who has been deemed to have admitted whatever was requested has the
burden of making a motion for withdrawal.” Id. In Corby, the defendant
objected at trial when the plaintiffs sought to introduce deemed admissions. He
argued that his answers were only one day late and that the requests addressed
matters that were not proper subjects for requests for admission because they
reached issues that the plaintiffs were required to prove at trial. Id. at 1324.
The trial court sustained the objection. We reversed on appeal, concluding that
the defendant never moved to withdraw his admissions and, therefore, the trial
court erred when it refused to enter the admissions into evidence and deem
them conclusively determined. Id. at 1327.
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[27] Similarly, in the case at hand, Gutierrez did not move the trial court to obtain
relief from the effect of her admissions. Accordingly, the test under T.R. 36(B)
was never implicated, and Romine was entitled at trial to have those admissions
entered into evidence and deemed conclusively established. See Corby, 670
N.E.2d at 1327. The trial court did not err in this regard.
2. Preclusion Order
[28] Gutierrez also challenges the Preclusion Order, which was entered as a
discovery sanction. She contends that the trial court abused its discretion by
imposing such an “excessively harsh punishment” that was particularly “unjust
given [her] filing of a notice of compliance stating that she had provided the
requested discovery responses.” Appellant’s Brief at 10.
[29] “Trial courts ‘stand much closer than an appellate court to the currents of
litigation pending before them,’ so they are better positioned to assess and
manage discovery matters.” Care Grp. Heart Hosp., LLC v. Sawyer, 93 N.E.3d
745, 757 (Ind. 2018) (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind.
2012)). Accordingly, they have wide discretion regarding discovery sanctions,
and their orders carry a strong presumption of correctness. Care Grp., 93
N.E.3d at 757. “We will not overturn a decision absent clear error and
resulting prejudice.” Id. (citing Ind. Trial Rule 61).
[30] The opportunity to be heard in court is a litigant’s most precious right and
should be sparingly denied, but disregard for trial court’s orders will not be
condoned. Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 649 (Ind. Ct.
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App. 2008) (affirming entry of a default judgment as a discovery sanction).
“[U]nder the appropriate facts a trial court may enter an outright dismissal or
default judgment when a party failed to respond to discovery requests on time,
the trial court granted an order to compel discovery, and the party violated the
order to compel by failing to respond.” Whitaker, 960 N.E.2d at 116. “A court
may sometimes do likewise when a delinquent party did respond but did so in
an incomplete or misleading way.” Id. Ultimately, the only limitation on the
trial court in determining an appropriate sanction is that the sanction be just.
Prime Mortg., 885 N.E.2d at 649.
[31] Here, Romine served Gutierrez with discovery requests on November 8, 2018.
Gutierrez did not respond in any manner – not even after counsel’s letter to her
on December 17, 2018, which was sent a day before the discovery deadline set
by the trial court. As a result of Gutierrez’s wholesale noncompliance with
discovery, Romine filed a motion to compel on January 4, 2019, which the trial
court granted that same day, giving Gutierrez five days from the date of the order
to comply fully and completely with the discovery requests. 8 At this point,
Gutierrez had obtained counsel and counsel appeared on her behalf for a pre-
trial conference on January 8, 2019, where Attorney Foster acknowledged the
outstanding discovery requests but did not provide responses. The deadline for
filing Gutierrez’s witness and exhibit list had also expired with no filing.
8
Gutierrez’s assertion that she had until January 21, 2019 to respond is without merit.
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[32] In light of Gutierrez’s complete failure to respond to discovery or file a witness
and exhibit list, Romine filed, on January 14, 2019, the Motion to Preclude,
claiming resulting prejudice to Romine’s ability to prepare for the upcoming
trial. Romine sought as a sanction for Gutierrez to be precluded from
presenting witnesses and exhibits at trial.
[33] The following day, Gutierrez, pro se, served Romine with responses to the
outstanding discovery requests (that are not included in the record before us)
and filed a motion for leave to file a witness and exhibit list with the trial court.
She also filed a notice of compliance with the trial court. Romine disputed that
Gutierrez had complied because “along with other deficiencies,” Gutierrez “did
not produce a single document” that she had listed in her exhibit list. Appellee’s
Appendix Vol. II at 3.
[34] The trial court held a hearing on the Motion to Preclude on February 6, 2019,
at which Attorney Hoggatt represented Gutierrez. Because Gutierrez has not
provided us with a transcript of the hearing, we cannot know the arguments
asserted by the parties. However, it appears from Gutierrez’s various filings,
including her First MTCE, that she claimed she never received the August 2018
scheduling order, the November 2018 discovery requests, or the December 2018
demand letter. Gutierrez also claimed that she did not learn of the order
compelling discovery responses until January 9, 2019. The trial court was not
required to accept these self-serving factual claims. Moreover, as noted above,
the record indicates that the belated discovery responses filed by Gutierrez were
still incomplete at the time of the hearing.
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[35] After the hearing, the trial court issued the Preclusion Order. Specifically, the
court precluded Gutierrez from presenting witnesses or exhibits at the February
21, 2019 trial. The court took the additional request for attorney’s fees under
advisement and ordered Gutierrez to “comply with all pending discovery
requests on or before February 15, 2019[,]” which signifies to us that Gutierrez
had not yet provided full and complete discovery responses. Appellant’s
Appendix Vol. II at 143.
[36] We flatly reject Gutierrez’s suggestion on appeal that her violations were trivial
or insubstantial and did not prejudice Romine. Under the circumstances, where
Gutierrez ignored the reminder letter, violated the order to compel, 9 and then
belatedly delivered incomplete responses, all while providing dubious excuses
for her noncompliance, we find that the trial court acted within its wide range
of discretion in sanctioning Gutierrez.
3. Denial of First and Second MTCE
[37] Finally, Gutierrez challenges the denial of her First and Second MTCE. We
review a trial court’s ruling on a motion to correct error for an abuse of
discretion. See Sims v. Pappas, 73 N.E.3d 700, 705 (Ind. 2017). “An abuse of
9
As our Supreme Court has observed, an order to compel discovery – even one that does not warn of
possible future sanctions – “essentially g[ives a party] one last chance before opening the door to all manner
of unpleasant sanctions under Indiana Trial Rule 37(B).” Whitaker, 960 N.E.2d at 116 n.5.
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discretion occurs when the trial court's decision is clearly against the logic and
effect of the facts and circumstances before it.” Id.
[38] With respect to the First MTCE, which sought reversal of the Preclusion Order,
Gutierrez argues that the trial court “should have realized that its discovery
sanction was inappropriate, for all the reasons mentioned previously.”
Appellant’s Brief at 16. Having already upheld the Preclusion Order, we need
not reconsider it under the First MTCE.
[39] Turning to the Second MTCE, we observe that Gutierrez used it as a vehicle to
present new evidence and arguments to the trial court. This new evidence
included, among other things, a real estate contract (recorded in 2007 – ten
years before Riske’s death) that Gutierrez obtained from the recorder’s office on
March 4, 2019 (less than two weeks after trial), some of Riske’s medical records
from 2017, two expert affidavits obtained by Gutierrez on March 6, 2019, and a
quit-claim deed that was nearly identical to the Quit-Claim Deed entered into
evidence at the trial but with a different notary public stamp and recording date
(October 2017 rather than August 2017). Based on this evidence, Gutierrez
argued in the Second MTCE that Romine perpetrated fraud upon the court and
concealed assets of the Estate and that the Will was executed under undue
influence and when Riske was incompetent. On appeal, Gutierrez asserts the
trial court erred by ignoring this evidence of breach of fiduciary duties,
constructive fraud, incapacity, and undue influence.
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[40] On the contrary, the record establishes that the trial court did not ignore any
evidence that was properly before it, which included none of the evidence
submitted in support of the Second MTCE.
The Indiana Rules of Trial Procedure provide two related
procedures for addressing material evidence that remains
undiscovered until after trial. Trial Rule 59(A)(1) permits a party
to file a motion to correct error to address “[n]ewly discovered
material evidence, including alleged jury misconduct, capable of
production within thirty (30) days of final judgment which, with
reasonable diligence, could not have been discovered and
produced at trial.” Similarly, and incorporating the requirements
of Trial Rule 59(A)(1), Trial Rule 60(B)(2) permits a party to
move for relief on grounds of “newly discovered evidence, which
by due diligence could not have been discovered in time to move
for a motion to correct errors under Rule 59.”
Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008). To
the extent the evidence included in the Second MTCE was unknown to
Gutierrez before trial, this was clearly due to her own lack of due diligence,
which she exhibited throughout the life of the case, rather than the result of an
actual inability to gather said evidence before trial. The trial court properly
denied the Second MTCE. 10
10
Romine correctly observes that a challenge to the validity of the Will, whether based on incapacity or
undue influence, must be made through a statutory will contest pursuant to Ind. Code § 29-1-7-17, which
requires a will challenge to be filed in a separate cause of action in the same court within three months of the
will being admitted to probate. See In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind. Ct. App. 2011) (“An action
to set aside the probate of an alleged will is purely statutory and can only be brought and successfully
maintained in the manner and within the limitations prescribed by statute.”). There is no indication in the
Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019 Page 20 of 21
[41] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
record that Gutierrez ever filed a will contest but doing so in a MTCE from a ruling on the Recovery Petition
is clearly not proper.
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