In Re:The Unsupervised Estate of Susan Rissman Dawn M. Robertson v. Robert C. Thompson, Jr., as Limited Guardian of Heir Matthew Rissman and Indiana Family and Social Services Administration (mem.dec) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing FILED
the defense of res judicata, collateral Oct 29 2020, 8:47 am
estoppel, or the law of the case.
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Dawn M. Robertson ROBERT C. THOMPSON, JR.
Indianapolis, Indiana Joseph M. Dietz
Meils, Thompson, Dietz, & Berish
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
INDIANA FAMILY AND SOCIAL
SERVICES ADMINISTRATION
Curtis T. Hill, Jr.
Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 20A-EU-740 | October 29, 2020 Page 1 of 13
In Re: The Unsupervised Estate October 29, 2020
of Susan Rissman Court of Appeals Case No.
20A-EU-740
Dawn M. Robertson, Appeal from the Marion Superior
Court, Probate Division
Appellant-Petitioner,
The Honorable Steven R.
v. Eichholtz, Judge
Trial Court Cause No.
Robert C. Thompson, Jr., as 49D08-1804-EU-14975
Limited Guardian of Heir
Matthew Rissman and Indiana
Family and Social Services
Administration,
Appellees-Respondents.
Bradford, Chief Judge.
Case Summary
[1] Susan Rissman died testate on March 20, 2018. Dawn Robertson was
thereafter appointed personal representative of Rissman’s estate. After
Robertson filed her final accounting of Rissman’s estate, Robert Thompson, Jr.,
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the limited guardian appointed for Rissman’s son, and the Indiana Family
Social Services Administration, Office of Medicaid Policy and Planning
(“FSSA”), objected to the final accounting. Specifically, Thompson and FSSA
objected to the payment of certain funds relating to the cleaning and sale of
Rissman’s home. The probate court determined that the payment of the
challenged funds was unreasonable and ordered Robertson to pay a surcharge
to Rissman’s estate in the amount of $47,937.10. Robertson contends on
appeal that the probate court erred in ordering her to pay the $47,937.10
surcharge. Concluding otherwise, we affirm.
Facts and Procedural History
[2] Rissman died testate on March 20, 2018. Pursuant to the terms of her will,
Rissman left her entire estate to her son Matthew Rissman, under the following
conditions:
since I have had no contact with my son for over twenty years,
and since his current whereabouts are unknown to me, if my
personal representative makes a reasonable and diligent effort to
locate my son but is unable to do so within one year after my
probate estate is opened, the above devise and bequest to my son
shall lapse and my residuary estate shall pass to my good friend,
Dawn M. Robertson.
Appellee FSSA’s App. Vol. II p. 55. Also pursuant to the terms of her will,
Rissman appointed John Rogers to serve of personal representative of her
estate. At some point, Thompson was appointed limited guardian of Matthew
Rissman.
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[3] On April 18, 2018, Rogers filed a petition for unsupervised administration of
Rissman’s estate. The probate court issued an order appointing Rogers as the
personal representative of Rissman’s estate. On May 7, 2018, FSSA filed a
$13,627.20 claim against Rissman’s estate for the recovery of funds paid for
medical assistance on Rissman’s behalf.1 On May 9, 2018, Rogers filed a
petition to appoint Robertson as a substitute personal representative. The
probate court granted Rogers’s motion on May 11, 2018, removed Rogers as
the personal representative, appointed Robertson as the substitute personal
representative, and ordered Robertson to pay a $17,000 bond.
[4] On January 29, 2019, Robertson petitioned the probate court to convert the
unsupervised estate to a supervised estate due to insolvency. Thompson and
FSSA both objected to Robertson’s petition. Thompson, FSSA, and Robertson
subsequently entered the following stipulations:
1. On January 29, 2019, Dawn M. Robertson (“Robertson”),
Personal Representative of the Estate of Susan K. Rissman (the
“Estate”), filed a Petition to Convert Unsupervised Estate to a
Supervised Estate Due to Insolvency (herein after “Petition to
Convert”).
2. On February 1, 2019, the Court entered an Order Granting
Petition to Convert Unsupervised Estate to Supervised Estate
Due to Insolvency, which converted the Estate to a supervised
estate and set the matter for hearing on March 1, 2019 to
determine how the alleged remaining funds shall be distributed.
1
FSSA’s claim was subsequently amended to assert a $15,497 claim against Rissman’s estate.
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3. On March 5, 2019, Matthew Rissman filed an Objection to
the Petition to Convert.
4. On March 14, 2019, FSSA filed an Objection to the Petition
to Convert.
5. FSSA and Matthew Rissman agree that their objections to the
Petition to Convert Unsupervised Estate to a Supervised Estate
Due to Insolvency were objections to expenditures made by
Robertson that FSSA and Mathew Rissman allege are improper
distributions of the Estate’s assets that resulted in the insolvency
of the Estate.
6. FSSA and Matthew Rissman have no objection to the Court
converting the Estate to a Supervised Estate Due to Insolvency,
only to the Court’s order that the remaining amounts be set for
hearing on distribution prior to the filing of a proper final
accounting, as required in a supervised estate.
7. The Parties respectfully request that the hearing scheduled for
June 13, 2019 at 2:30 pm, on the Petition to Convert
Unsupervised Estate to A Supervised Estate Due to Insolvency,
be vacated by agreement of the Parties to allow for the filing of a
proper final accounting.
8. The Parties agree that the Estate will provide a detailed final
accounting within thirty days of the entry of the order vacating
the hearing.
9. The Parties agree that FSSA and Matthew Rissman will
preserve their rights to object to any potentially improper
payments specified in the Personal Representative’s Final
Accounting and distribution of assets, pursuant to the
requirements of supervised administration, or other improper
expenditures or actions otherwise discovered prior the closing of
the Estate.
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10. The Parties agree that FSSA and Mathew Rissman reserve
the right to conduct further necessary discovery into any alleged
improper distribution after the filing of the final accounting.
Appellee Thompson’s App. Vol. II pp. 34–35. The probate court accepted the
stipulations and granted the requested relief on June 3, 2019.
[5] Robertson filed her final accounting on July 8, 2019. Thompson and FSSA both
objected to Robertson’s final accounting. On February 21, 2020, the probate
court issued an order of surcharge, in which it ordered as follows:
1. That the personal representative’s Final Accounting presents
costs of selling of a $45,000.00 house as follows:
(a) Labor for cleaning out house. $39,282.50
(b) Dumpsters 1,054.60
(c) Real estate fees $15,750.00
TOTAL $56,087.10
Said sums exceed the value of the sale price by
$11,087.10.
2. That testimony received by this Court stated a reasonable
fee for the cleaning of the residence and storage units with
dumpsters under the most extreme conditions was $5,000.00[.]
3. That testimony received by this Court stated a reasonable
fee for sale of the real estate was 7% or $3,150.00, and that 33
1/3% was unheard of and unreasonable.
4. That Dawn M. Robertson, along with her surety, Western
Surety Company (Subject to the Bond limitation of $17,000.00) is
surcharged for the sum of $47,937.10.
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5. The Court authorizes Robert C. Thompson, Jr. to receive
the $17,000.00 bond payment from Western Surety to be placed
in their IOLTA account pending further order of this Court.
6. Within 30 days of this Order, all attorneys must file their
Final Petition for Fees, and the Court shall set this matter for
hearing for distribution of available proceeds, and remaining
surcharge amount assigned to the appropriate party.
Appellee Thompson’s App. Vol. II pp. 15–16.
Discussion and Decision
[6] Robertson contends that the probate court erred in ordering her to pay a
$47,937.10 surcharge to Rissman’s estate. For its part, FSSA argues that the
probate court’s order is not clearly erroneous as the evidence establishes that
“Robertson engaged in neglect and self-dealing when she served as Decedent
Rissman’s personal representative resulting in a loss to the estate.” Appellee
FSSA’s Br. p. 15. Thompson likewise argues that the probate court’s order is
not clearly erroneous as the evidence establishes that Robertson “drained the
assets of this estate for the benefit of herself and her ‘church family’.” Appellee
Thompson’s Br. p. 13.
[7] In this case, the probate court entered limited written findings without any party
having requested them.
“In such a case, the specific findings control only with respect to
issues they cover, and a general judgment standard applies to
issues outside the findings.” Montgomery v. Montgomery, 59
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N.E.3d 343, 349 (Ind. Ct. App. 2016), trans. denied. We will set
aside the trial court’s findings or judgment only if they are clearly
erroneous. Id. “A finding is clearly erroneous only if there are
no facts or inferences drawn therefrom to support it.” Id.Additionally, “[w]e may affirm a general judgment with sua
sponte findings upon any legal theory supported by the evidence
introduced at trial.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct.
App. 2013). Sua sponte findings control as to the issues upon
which the court has found, but they do not otherwise affect our
general judgment standard of review, “and we may look both to
other findings and beyond the findings to the evidence of record
to determine if the result is against the facts and circumstances
before the court.” Id.Richardson v. Thieme, 76 N.E.3d 892, 896–97 (Ind. Ct. App. 2017). In reviewing
the probate court’s findings and conclusions thereon, “we will not reweigh the
evidence or assess witness credibility.” Matter of Estate of Burmeister, 621 N.E.2d
647, 649 (Ind. Ct. App. 1993).
I. Overview of Law Relating to a Personal
Representative’s Final Accounting of an Estate
[8] “Under the Indiana Probate Code, a personal representative is responsible for
collecting and preserving all assets of the decedent’s estate.” In re Bender, 844
N.E.2d 170, 178 (Ind. Ct. App. 2006). “[A] personal representative of an estate
is regarded as a trustee appointed by law for the benefit of and the protection of
creditors and distributees of that estate.” Id. “There is a thread which runs
through the law governing fiduciary relationships which forbids a person
standing in a fiduciary capacity to another from profiting by dealing in the
property of his beneficiary, and any such profit realized must be disgorged in
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favor of that beneficiary.” Fall v. Miller, 462 N.E.2d 1059, 1061 (Ind. Ct. App.
1984).
[9] Every personal representative shall be liable for any loss to the
estate arising from his neglect or unreasonable delay in collecting
the credits or other assets of the estate or in selling, mortgaging or
leasing the property of the estate; for neglect in paying over
money or delivering property of the estate he shall have in his
hands; for failure to account for or to close the estate within the
time provided by this article; for any loss to the estate arising
from his embezzlement or commingling of the assets of the estate
with other property; for loss to the estate through self-dealing; for any
loss to the estate arising from wrongful acts or omissions of his
co-representatives which he could have prevented by the exercise
of ordinary care; and for any other negligent or wilful act or
nonfeasance in his administration of the estate by which loss to the estate
arises.
Ind. Code § 29-1-16-1(c) (emphases added). Upon the filing of a personal
representative’s account of the decedent’s estate, “hearing and notice thereof
shall be had.” Ind. Code § 29-1-16-6. “At any time prior to the hearing on an
account of a personal representative, any interested person may file written
objections to any item or omission in the account. All such objections shall be
specific and shall indicate the modification desired.” Ind. Code § 29-1-16-7.
Upon the approval of the account of a personal representative,
the personal representative and his sureties shall, subject to the
right of appeal and to the power of the court to vacate its final
orders, be relieved from liability for the administration of his trust
during the accounting period, including the investment of the
assets of the estate. The court may disapprove the account in whole or
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in part and surcharge the personal representative for any loss caused by
any breach of duty.
Ind. Code § 29-1-16-8 (emphasis added).
II. Application of the Probate Code to the Instant Matter
[10] In ordering that Robertson pay a surcharge to Rissman’s estate, the probate
court determined that Robertson breached her duty to the estate by negligently
or willfully paying unreasonable fees in connection to the cleaning and sale of
Rissman’s home. Robertson’s final accounting indicated that she paid a 33
1/3% realtor fee or $15,750.00 in connection to the $45,000 sale of the home.
However, Richard Schulte, a realtor with over forty-nine years of experience,
testified that “the going rate” for realtor fees was “[s]ix or seven percent.” Tr.
Vol. II p. 44.
[11] Robertson’s final accounting also indicated that she paid $40,337.10 for labor
and dumpsters for cleaning out the home. Robertson claimed that significant
labor was required to clean the home because Rissman was a hoarder and the
home and three storage units rented by Rissman were filled with “[w]ell over a
thousand” bags of trash and belongings. Tr. Vol. II p. 12. Robertson
acknowledged that she had not gotten “any other bids” for a reasonable cost to
clean up the home. Tr. Vol. II p. 23. Schulte testified that he believed that a
reasonable fee to clean out the house, including renting a dumpster, would have
been “a thousand to two thousand, three-thousand-dollar bill at the most.” Tr.
Vol. II p. 46. Schulte also testified that he believed that the sum paid by
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Robertson to clean out the home was “extraordinary.” Tr. Vol. II p. 47.
Additionally, William Teuton testified that through the course of his
employment he had worked with banks on “[t]rashed out houses, liquidated
estates and guardianships” and had cleaned out at least two hundred “hoarder
houses.” Tr. Vol. II pp. 48, 49. Teuton further testified that the cost to clean
out a house in the same condition as Rissman’s home would be “max –
including the dumpster, five thousand dollars.” Tr. Vol. II p. 50.
[12] Robertson further claimed that “looking at the age and the condition of the
house and having some idea of what houses are worth in that area,” she had
valued the home at $40,000. Tr. Vol. II p. 19. However, despite Robertson’s
belief regarding the value of the home, in 2019, tax records valued the home at
$88,000. Schulte testified that he had researched Rissman’s home and had
found that it was located in a good, desirable, and stable neighborhood that had
a median home value of approximately $120,000.
[13] The probate court considered the evidence and concluded that the fees relating
to the cleaning and sale of Rissman’s home paid by Robertson were
unreasonable and resulted in a loss to Rissman’s estate. In ordering Robertson
to pay a $47,937.10 surcharge to Rissman’s estate, the probate court simply
ordered Robertson to repay the losses suffered by the estate as a result of her
breach of fiduciary duty. Based on the evidence presented during the
evidentiary hearing, we cannot say that the probate court’s determination is
clearly erroneous.
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III. Additional Claims Raised by Robertson
[14] In arguing that the probate court’s order is clearly erroneous, Robertson also
cites to the Marion County local rules and the four corners doctrine for
interpreting contracts. Robertson asserts that pursuant to the Marion County
local rules pertaining to unsupervised estates, her authority as personal
representative was not subject to court approval. Robertson’s reliance on these
local rules is misplaced, however, because, upon stipulation by the parties, the
probate court converted the unsupervised estate to a supervised estate, thus
making the local rules relating to an unsupervised estate inapplicable. Further,
Robertson points to nothing in the Marion County local rules that extinguishes
Robertson’s fiduciary duty to protect the assets in the estate or revokes the
probate court’s authorization to order that she pay a surcharge to the estate for
any loss caused by a breach of her duty. See Ind. Code § 29-1-16-8. Robertson’s
reliance on the four corners doctrine is also misplaced as it has no bearing on
the question of whether the sums paid by Robertson in relation to cleaning and
selling Rissman’s home were reasonable. Thus, neither the Marion County
local rules nor the four corners doctrine support Robertson’s position.2
2
Furthermore, to the extent that Robertson argues that the probate court was biased against her, Robertson
has waived this argument by failing to point to any evidence of bias or provide a cogent argument relating to
her claim of bias. See Smith v. State, 822 N.E.2d 193, 202–03 (Ind. Ct. App. 2005) (“Generally, a party waives
any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”). Furthermore still, despite Robertson’s assertion that the probate
court’s order was clearly erroneous because Matthew Rissman failed to appear before the probate court in
person, Matthew’s interests were represented by his limited guardian and Robertson has pointed to no
authority or rules that would have required Matthew’s personal appearance before the probate court.
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[15] The judgment of the probate court is affirmed.
Najam, J., and Mathias, J., concur.
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