In the Matter of the Supervised Estate of George Lee Coon, Mark A. Coon v. Allen W. Coon, Donald L. Moster, Jr., and Beverly S. Moster ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
p
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
ANDREW M. EADS WILLIAM B. KEATON
Lux & Lux, P.A. Keaton and Keaton, P.C.
Shelbyville, Indiana Rushville, Indiana
Mar 08 2013, 9:25 am
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE SUPERVISED )
ESTATE OF GEORGE LEE COON, )
)
MARK A. COON, )
)
Appellant, )
)
vs. ) No. 70A01-1208-ES-384
)
ALLEN W. COON, DONALD L. MOSTER, )
JR., and BEVERLY S. MOSTER BROWN, )
)
Appellees. )
APPEAL FROM THE RUSH CIRCUIT COURT
The Honorable Beth A. Butsch, Special Judge
Cause No. 70C01-1112-ES-54
March 8, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Mark Coon appeals the trial court’s grant of summary judgment regarding probate of
the estate of his grandfather, George Coon. Mark presents two issues on appeal, one of
which we find dispositive: whether the trial court properly admitted evidence relating to a
post-nuptial agreement. Concluding that the evidence was properly admitted and that the
agreement was in force, we affirm.
Facts and Procedural History
In 1971, George and his wife Rosa executed a post-nuptial agreement, the body of
which provided:
That the said George Lee Coon and Rosa Coon agree with the other, in
consideration of the mutual promises of each to the other, that neither of them
will, without the knowledge or consent of the other, change revoke or destroy
the Will which each of them has made this date; and the Parties agree further,
each with the other, that the survivor, whichever it be, will not change his or
her Will subsequent to the death of the first one to die, nor will said survivor
sell our real estate during the lifetime of said survivor, except for necessary
maintenance, care, and medical expenses; it being the intention of both Parties
that all property which they now own shall pass as they have separately and
jointly determined and set forth in their respective Wills.
Both Parties acknowledge that this Agreement is and shall be binding
on them, their heirs and personal representatives.
Appellant’s First Amended Appendix, Volume 2 at 63. In 2004, Rosa and George executed
new wills that substantially mirrored each other. In 2005, Rosa died and her 2004 will was
admitted to probate. In 2008, a petition was filed for appointment of a guardian over George;
following a hearing, the court determined that George was incapacitated, and a guardian was
appointed.1 While the petition for guardianship was pending, George made a new will.
1
The record implies that in 2006, a codicil to George’s 2004 will was made; however, a copy of
2
George died on December 11, 2011, and George’s child and step-children, Allen
Coon, Donald Moster, and Beverly Brown (the “Children”), petitioned for probate of
George’s 2004 will. Mark then petitioned for probate of George’s 2008 will. In April 2012,
the Children filed for summary judgment, claiming that there were no genuine issues of
material fact that George was of unsound mind when he made the 2008 will, and also that the
2008 will was unenforceable due to the 1971 post-nuptial agreement. Following a hearing,
the trial court made findings of fact and conclusions of law and entered summary judgment
for the Children on July 24, 2012. This appeal followed. Additional facts will be supplied as
necessary.
Discussion and Decision
I. Standard of Review
Our standard of review for a grant of summary judgment is the same as that used in
the trial court: summary judgment is appropriate only where the evidence shows that there is
no genuine issue of material fact, and the moving party is entitled to judgment as a matter of
law. In re Bender, 844 N.E.2d 170, 176-77 (Ind. Ct. App. 2006), trans. denied. The moving
party bears the burden of designating sufficient evidence to eliminate any genuine factual
issues and, once the moving party has fulfilled this requirement, the burden shifts to the
nonmoving party to come forth with contrary evidence. Id. at 177. On appeal, we do not
reweigh the evidence, but we liberally construe all designated evidentiary material in the light
most favorable to the nonmoving party to determine whether there is a genuine issue of
the codicil is not included with the record and the codicil is not the focus of the appeal. Because of our
resolution of the contract issue, details relating to the codicil are irrelevant.
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material fact for trial. Id. The party that lost in the trial court has the burden to persuade the
appellate court that the trial court erred. Id. We are not limited to reviewing the trial court’s
reasons for granting summary judgment as the judgment may be affirmed upon any theory
supported by the designated materials. Id.II. Post-Nuptial Agreement
Mark contends that the trial court judge improperly admitted a carbon copy of the
1971 post-nuptial agreement, contrary to Indiana Evidence Rule 1002, which requires an
original writing to prove the content of that writing except as otherwise provided by the rules
or by statute. However, Indiana Evidence Rule 1003 provides for the admissibility of
duplicates “to the same extent as an original unless (1) a genuine question is raised as to the
authenticity of the original or (2) in the circumstances it would be unfair to admit the
duplicate in lieu of the original.” It appears that the Children believe that an original copy of
the agreement was filed with the original petition, but that, perhaps because a special judge
was sitting for the case, the judge was given copies of the filed materials. The hearing
transcript indicates that counsel for Mark went to the county court to examine the original
filing, and believed the document there to be a copy. At the hearing, the Children offered a
carbon copy of the agreement. The judge noted on the record that the carbon copy had
original signatures and that she remembered that type of paper being used when she started
practicing law. It appears that a notary seal was also visible, as was the signature of the
notary. Mark noted that there was not an original inked signature and objected to the
admission of the carbon copy. The judge admitted the carbon copy as a substitute for the
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(presumably photocopied) document in her file, and offered to let Mark submit whatever was
designated in the original filing if he felt it would matter. There is no indication that he did
so, or whether the designated document was an original top copy, another carbon copy, or
some other type of copy.
Regardless, Mark does not question the authenticity of the original, nor does he
contend that it was unfair to admit the duplicate.2 He complains that the document admitted
was a copy, but does not contend that the copy did not accurately represent the content and
signatures of an original or that the 1971 agreement was not otherwise valid. Mark himself
states that admission of secondary evidence is harmless when no dispute exists regarding its
accuracy. Despite that, he seems only to contend that admission of any copy was per se error
on the part of the trial court, absent an affidavit of what happened to the original.
Considering Evidence Rule 1003, we do not agree. See also Levi v. State, 627 N.E.2d 1345,
1349 (Ind. Ct. App. 1994) (concluding that a copy was admissible where there was no
complaint regarding the authenticity of the original or the unfairness of admitting a copy),
trans. denied. It was proper for the trial court here to admit the carbon copy of the 1971
agreement.
Mark does not challenge the validity of the agreement, and the wording of the
agreement appears to allow subsequent changes to George and Rosa’s wills as long as they
both knew of and consented to the changes—which it appears that they did in 2004—but to
2
He does claim in his brief that he only first saw the document when, at the hearing, the Children
produced the carbon copy. However, the transcript of the hearing makes it clear that he had already been
to the county court to look at the original filing; furthermore even if that had been the first time he saw the
document, any unfairness would not be related to the fact that a copy, rather than an original, was supplied.
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prohibit any changes following the death of the first spouse. Absent any indication that the
agreement was not still in effect at the time of Rosa’s death in 2005, it appears that the 2004
will was irrevocable and that any attempted changes via a codicil in 2006 or a new will in
2008 were void. Because we conclude that the 2008 will is made void by the 1971
agreement, we need not reach Mark’s issue regarding George’s competency to make the 2008
will.
Conclusion
Concluding that the trial court properly admitted the post-nuptial agreement, and that
the agreement was still valid, we affirm.
Affirmed.
MAY, J., and PYLE, J., concur.
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