Victor C. Regalado v. The Estate of Joseph James Regalado, and Paula Heffelfinger

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
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE/
PERSONAL REPRESENTATIVE
STEVEN M. BUSH 1ST SOURCE BANK:
Millbranth and Bush
Valparaiso, Indiana ANDREW LUCAS
HUGO MARTZ
Valparaiso, Indiana
Mar 26 2013, 8:28 am
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE ESTATE OF JOSEPH JAMES )
REGALADO )
)
VICTOR C. REGALADO, )
)
Appellant-Petitioner, )
)
vs. ) No. 64A03-1207-ES-322
)
THE ESTATE OF JOSEPH JAMES )
REGALADO, and PAULA HEFFELFINGER, )
)
Appellees-Respondents. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Jeffrey L. Thode, Special Judge
Cause No. 64D02-0410-ES-9659
March 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Victor Regalado, an heir to the Estate of Joseph J. Regalado (“the Estate”), appeals the
trial court’s order granting a motion to correct error on the basis of newly discovered
evidence filed by Paula Heffelfinger. Following remand from an earlier appeal, the trial
court entered summary judgment in favor of Victor concluding that Paula, Joseph’s purported
half-sister, was not an heir to the Estate as there was no genuine issue of fact as to Paula’s
paternity. Essentially, the trial court determined that Paula’s paternity could not be
established in Joseph’s father, Baltasar Regalado, because paternity had already been
established in another man. Shortly thereafter, Paula filed a motion to correct error based
upon newly discovered DNA evidence regarding paternity. Following a hearing, the trial
court granted Paula’s motion to correct error and set aside its previous order granting
summary judgment in favor of Victor.
On appeal, Victor contends that the trial court abused its discretion when it determined
that the DNA evidence constituted newly discovered evidence pursuant to Indiana Trial Rule
59(A)(1). Victor also contends that, pursuant to the doctrines of collateral estoppel and law
of the case, Paula should be precluded from further litigating the issue of her heirship.
Finding no abuse of discretion and further finding that neither collateral estoppel nor law of
the case applies, we affirm and remand for further proceedings.
Facts and Procedural History
This Court has outlined the relevant factual background as follows:
In 1991, Joseph suffered serious and permanent brain damage as the
result of an altercation with officers of the Chicago Police Department. Joseph
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was thereafter adjudicated a disabled person, and his father, Baltasar Regalado,
served as his guardian. On Joseph’s behalf, Baltasar brought a federal lawsuit
against the City of Chicago for the actions of its police officers, and in
December 2000, the claim was settled for fifteen million dollars.
Baltasar and Joseph later moved to Porter County, Indiana, where
Joseph died intestate in October 2004. At the time of his death, Joseph owned
no real property but had eight to nine million dollars of personal property
located in Indiana. Because Joseph left no surviving spouse or issue,
according to Indiana Code section 29-1-2-1(d)(3) his estate is to be distributed
to his surviving parents, brothers, sisters, and issue of his deceased brothers
and sisters. A few days after Joseph’s death, Baltasar filed a Petition for the
Appointment of Administrator and for Supervised Administration, which listed
himself as well as Joseph’s brothers Chris, Martin, Victor, David, and Tony as
Joseph’s known heirs. The petition also listed among Joseph’s known heirs
Paula as his half-sister.
Paula was born in October 1967 to Carmen Nadine Durea, who is not
Joseph’s mother. Carmen and Baltasar married in Arizona in April 2003,
when Paula was thirty-five years old. During the marriage, Carmen lived in
Arizona and Baltasar lived in Indiana. Baltasar instituted annulment
proceedings in Indiana in 2005. In the proceedings, Baltasar and Carmen
signed an Agreed Order of Annulment, the preface of which states, “The
subject matter of this Agreement is the settlement of the respective rights of
Husband and Wife to all property, both real and personal, now in their name
and/or possession, and any property which may come into their possession as a
result of inheritance.” Within the Agreed Order of Annulment, Baltasar
acknowledged Paula as his biological daughter: “Both parties readily
acknowledge that Paula Heffelfinger is their natural daughter, fathered by the
Petitioner and born to the Respondent on October 13, 1967.” The trial court
entered an Order of Annulment in November 2005.
Regalado v. Estate of Regalado, 933 N.E.2d 512, 516-17 (Ind. Ct. App. 2010) (citations and
footnotes omitted).
In October 2008, one of Joseph’s brothers, Victor, filed a petition to determine
heirship, which alleged that Paula was not Joseph’s half-sister and requested a hearing on the
matter. Paula filed a motion for summary judgment and designation of evidence arguing that
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she is Joseph’s sibling as a matter of law. Victor responded contending that Paula failed to
conclusively establish that Baltasar is her biological father. Following a hearing, the trial
court entered an order finding Paula to be Joseph’s sibling and thus granting her motion for
summary judgment. Victor filed a motion to correct error, which was denied by the trial
court. Thereafter, Victor filed an appeal with this Court.
On appeal, we were confronted with an issue of first impression as to whether a child
must show that she is born out of wedlock before Indiana Code Section 29-1-2-7, which
governs the intestate succession of children born out of wedlock, can be applied.1 Id. at 521-
22. Concluding that the plain language of that statute requires a child to indeed show that she
is a child born out of wedlock, we determined that Paula had not designated sufficient
1
Indiana Code Section 29-1-2-7 provides in relevant part:
(b) For the purpose of inheritance (on the paternal side) to, through, and from a child born out
of wedlock, the child shall be treated as if the child’s father were married to the child’s mother at the
time of the child’s birth, if one (1) of the following requirements is met:
(1) The paternity of a child who was at least twenty (20) years of age when the father
died has been established by law in a cause of action that is filed during the father’s
lifetime.
(2) The paternity of a child who was less than twenty (20) years of age when the
father died has been established by law in a cause of action that is filed:
(A) during the father’s lifetime; or
(B) within five (5) months after the father’s death.
(3) The paternity of a child born after the father died has been established by law in a
cause of action that is filed within eleven (11) months after the father’s death.
(4) The putative father marries the mother of the child and acknowledges the child to
be his own.
(5) The putative father executes a paternity affidavit as set forth in IC 16-37-2-2.1.
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evidence to show that there is no genuine issue of material fact that she is a child born out of
wedlock. Id. at 523. We further concluded that a genuine issue of material fact remained as
to whether Baltasar is Paula’s biological father. Therefore, we concluded that the trial court
erred in granting summary judgment in Paula’s favor. Accordingly, we reversed and
remanded.
Upon remand, Paula filed a motion for Baltasar to submit to a paternity test. On July,
6, 2011, the trial court denied Paula’s motion, in part, because it determined that Paula’s
paternity had long been established in a man named William Piffer, the father listed on
Paula’s birth certificate and confirmed in a 1971 Illinois divorce decree between her mother
and Piffer. Paula filed a motion to correct error, which the trial court denied. On July 29,
2011, Victor filed a motion for summary judgment against Paula’s heirship arguing that
Paula cannot establish paternity in Baltasar and that paternity had already been established in
Piffer. Paula filed a response to the motion as well as an amended motion to correct error
accompanied by an affidavit of Piffer in which Piffer averred that he did not believe that he is
Paula’s biological father and that he was willing to submit to a DNA test to prove that he is
not her biological father. Appellant’s App. at 116. A hearing was held on both motions on
January 30, 2012. On March 28, 2012, the trial court entered an order denying Paula’s
motion to correct error and granting Victor’s motion for summary judgment. Specifically,
the trial court concluded that there was no genuine issue of material fact as to Paula’s
paternity.
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On April 26, 2012, Paula filed a motion to correct error based upon newly discovered
material DNA evidence. Paula attached DNA test results indicating that there is a 0%
possibility of Piffer’s paternity regarding Paula. 2 Following a hearing, on June 20, 2012, the
trial court entered an order granting Paula’s motion to correct error and setting aside its
previous order granting summary judgment in favor of Victor. This appeal followed.
Discussion and Decision
We begin by noting that Paula has not filed an appellee’s brief.3 When a party fails to
submit a brief, we will not undertake the burden of developing arguments for that party.
Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, we apply a less
stringent standard of review and may reverse if the appellant establishes prima facie error. In
re Paternity of B.N.C., 822 N.E.2d 616, 618-19 (Ind. Ct. App. 2005). Prima facie error is
error at first sight, on first appearance, or on the face of it. Id. at 619. An appellee’s failure
to file a brief, however, does not relieve us of our obligation to correctly apply the law to
facts in the record in order to determine whether reversal is required. Vandenburgh v.
Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App. 2009).
2
Although submitted shortly after the motion to correct error in support of an alternative motion for
relief from judgment, Paula also presented a May 4, 2012, order obtained from an Illinois circuit court
declaring that Piffer is not Paula’s biological father thereby vacating the Illinois court’s previous declaration of
Piffer’s paternity contained in the 1971 Illinois dissolution decree between Piffer and Paula’s mother.
Appellant’s App. at 151.
3
The only appellee’s brief in this case was filed by the Estate’s personal representative, 1st Source
Bank. However, as the personal representative, 1st Source Bank maintains that it is a disinterested neutral
party and that it takes no position regarding the merits of this appeal. Appellee’s Br. at 2.
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Victor appeals from the trial court’s order granting Paula’s motion to correct error.
We review a trial court’s ruling on a motion to correct error for an abuse of discretion. Id.An abuse of discretion occurs when the trial court’s decision is against the logic and effect of
the facts and circumstances before it or the court has misinterpreted the law. Scales v.
Scales, 891 N.E.2d 1116, 1118 (Ind. Ct. App. 2008). The trial court’s decision comes to us
cloaked in a presumption of correctness, and the appellant has the burden of proving that the
trial court abused its discretion. Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006). In
making our determination, we may neither reweigh the evidence nor judge the credibility of
the witnesses. Id. Instead, we look to the record to determine if the trial court abused its
judicial discretion, a flagrant injustice has been done to the appellant, or the appellant has
made a very strong case for relief. Id.I. Newly Discovered Evidence
Paula’s motion to correct error was based upon newly discovered evidence.
Specifically, to support her argument that a genuine issue of material fact remains as to her
paternity, Paula produced DNA test results indicating that Piffer, her mother’s husband at the
time of her birth, is not her biological father. Although submitted prior to the motion to
correct error but incorporated by reference, Paula submitted Piffer’s affidavit in which he
stated that he did not believe he was Paula’s biological father and that he was willing to take
a DNA test. Appellant’s App. at 116.
Indiana Trial Rule 59(A)(1) provides that a motion to correct error is mandatory when
a party seeks to address newly discovered material evidence. To prevail on a motion to
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correct error based upon newly discovered evidence, Paula needed to demonstrate that the
evidence could not have been discovered and produced at the summary judgment
proceedings with reasonable diligence; that the evidence is material, relevant, and not merely
cumulative or impeaching; that the evidence is not incompetent; that she exercised due
diligence to discover the evidence in time for the final hearing; that the evidence is worthy of
credit; and that the evidence raises a strong presumption that a different result would have
otherwise been reached. Regalado, 933 N.E.2d at 518. “When a motion to correct error is
based upon evidence outside the record, the motion shall be supported by affidavits showing
the truth of the grounds set out in the motion and the affidavits shall be served with the
motion.” Ind. Trial Rule 59(H)(1).
Victor asserts that the trial court abused its discretion when it granted Paula’s motion
to correct error because Paula failed to show that: (1) she exercised reasonable diligence to
obtain the DNA evidence prior to the summary judgment proceedings, (2) the DNA evidence
is material and relevant, and (3) the evidence raises a strong presumption that a different
result would have otherwise been reached. We disagree.
During the hearing on the motion to correct error, Paula’s counsel argued that Paula
exercised reasonable diligence in obtaining the DNA test results within thirty days of the trial
court’s entry of summary judgment in Victor’s favor, especially given the fact that the trial
court found the convoluted issue involved on summary judgment to be an issue of first
impression both in Indiana and also in Illinois, the state in which Paula’s paternity was
originally deemed established. As noted by the trial court in its summary judgment order,
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[t]he issue presented in this case, namely whether an adult, emancipated child
is permitted to challenge her paternity when another man has been named on
her birth certificate and in a judicial proceeding within the context of estate
contest, is one of first impression. The question of her paternity cannot be
neatly classified under either the family law or probate statutes of this
jurisdiction.
Appellant’s App. at 120. Indeed, as further noted by the court, “there is neither case
precedent speaking directly to the issue in either Illinois or in Indiana, nor statute binding on
the Court ….” Id. at 122.
During the hearing, Paula’s counsel also asserted that Paula had already submitted
Piffer’s affidavit regarding his belief that he was not her biological father and that, in
essence, she did not know whether an actual DNA test disestablishing Piffer’s paternity
would be necessary or material evidence in the summary judgment proceedings regarding her
heirship. Counsel argued that because Piffer is a third party, and not a party to the current
action, it was more difficult to obtain the DNA test results and that Paula obtained the results
when feasible. Although we agree with Victor that Paula should have submitted an affidavit
specifically averring the circumstances surrounding her reasonable diligence in obtaining the
DNA evidence, her failure to do so is not dispositive. The trial court was able to review the
Piffer affidavit and the explanation of reasonable diligence presented by counsel at the
hearing on the motion to correct error. The trial court found counsel’s explanations of due
diligence credible and Paula’s actions to be reasonably diligent. We will not second-guess
that determination.
Victor next argues that Paula failed to show that the DNA evidence is material or
relevant to the summary judgment proceedings. He asserts that all Paula has done is prove
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that Piffer is not her biological father, but the evidence does not prove that Baltasar is her
father. However, our review of the record reveals that during these proceedings, Victor has
relied heavily on Piffer’s paternity of Paula as evidence of Baltasar’s non-paternity of Paula.
Indeed, in the trial court’s July 2011 written order denying Paula’s request for Baltasar to
submit to a paternity test, the trial court relied heavily on Piffer’s established paternity of
Paula as its reason for denying Paula’s request. Then, in its entry of summary judgment in
favor of Victor, the trial court again relied on Piffer’s paternity as grounds for summary
judgment. Thus, the DNA evidence is both material and relevant.
Finally, Victor argues that Paula has not shown that the DNA evidence raises a strong
presumption that a different result would have otherwise been reached. As stated above, our
review of the record indicates that the trial court has relied heavily on Piffer’s paternity
regarding Paula as evidence tending to prove Baltasar’s non-paternity. This new evidence
regarding Piffer’s non-paternity coupled with the ample evidence supporting Baltasar’s
paternity may well have produced a different result than that reached by the trial court when
it granted summary judgment in favor of Victor.
Under the circumstances, we cannot say that the trial court’s decision to grant Paula’s
motion to correct error based upon newly discovered evidence is clearly against the logic and
effect of the facts and circumstances before the court. Essentially, Victor asks that we
reweigh the evidence in his favor, a task not within our prerogative on appeal. Victor has not
met his burden of proving that the trial court abused its discretion in granting Paula’s motion
to correct error.
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II. Collateral Estoppel and Law of the Case
Victor maintains that, pursuant to the doctrines of collateral estoppel and law of the
case, Paula should be precluded from further litigating the issue of her heirship before the
trial court or this Court because the issue was before this Court and conclusively decided by
our opinion in Regalado. Collateral estoppel bars subsequent litigation of a fact or issue
which was adjudicated in previous litigation if the same fact or issue is presented in a
subsequent lawsuit. Nolan v. City of Indianapolis, 933 N.E.2d 894, 897 (Ind. Ct. App. 2010),
trans. denied (2011). The former adjudication will be conclusive in the subsequent action
even if the two actions are on different claims. Id. However, the former adjudication will be
conclusive only as to those issues which were actually litigated and determined therein. Id.Similarly, the law-of-the-case doctrine is a discretionary rule that expresses the practice of
courts to refuse to reopen what has previously been decided. Miller v. Owens, 953 N.E.2d
1079, 1082 (Ind. Ct. App. 2011), trans. denied.
Victor argues that, in Regalado, we determined that Paula is not a child born out of
wedlock and that Baltasar is not her biological father and, therefore, the facts crucial to the
issue of her heirship have already been litigated and determined. Contrary to Victor’s
argument, no such conclusions were made and no such facts were found. In Regalado, this
Court neither determined Paula’s status as a child born out of wedlock nor determined
Paula’s paternity. We merely determined that the designated evidence submitted by Paula in
support of summary judgment was insufficient to determine those issues as a matter of law
and that genuine issues of material fact remained as to her status as a child born out of
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wedlock and as to her paternity. See Regalado, 933 N.E.2d at 523-26. Therefore, the
doctrines of collateral estoppel and law of the case do not apply. Paula’s heirship remains an
issue that may be litigated by the parties upon remand.
In sum, Victor has failed to show that the trial court abused its discretion in granting
Paula’s motion to correct error based upon newly discovered evidence. The trial court’s
order granting Paula’s motion to correct error and setting aside the previous entry of
summary judgment in Victor’s favor is affirmed. We remand to the trial court for further
proceedings consistent with this opinion.
Affirmed and remanded.
KIRSCH, J., and MATHIAS, J., concur.
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