Catherine Konkle, Marshall Miers, Edward Miers, and Charity Miers, Intended Beneficiaries of the Richard E. Miers Trust, Appellants/Plaintiffs v. LLP (2026)

MEMORANDUM DECISION

Case Summary

[1] In 1964, Richard Miers designated his first wife as the primary beneficiary of his TIAA-CREF retirement accounts (“the Accounts”), which (by the time of Richard's death) consisted of a tax-deferred annuity and a Roth IRA. Richard had three children with his first wife: Catherine Konkle, Marshall Miers, and Edward Miers (collectively, with Edward's daughter Charity Miers, “Appellants”). In 1991, Richard Miers designated his second wife Merle-Lee Miers as the primary beneficiary of the Accounts, a designation that was not to change before his death. Over the years, Richard changed the contingent beneficiaries of the Accounts from Appellants, then to his estate, then to a revocable trust (“the Trust”), and finally back to Appellants.

[2] In October of 2022, Richard died, and the Accounts passed to Merle-Lee. In March of 2024, Merle-Lee died, and the Accounts passed to Merle-Lee's daughter Ellie Leonhardt, whom Merle-Lee had designated as the primary beneficiary. In April of 2024, Marshall filed an action to docket the Trust, alleging that the Accounts were Trust property. Leonhardt, as the personal representative of Merle-Lee's estate, intervened and responded that the Accounts were not Trust property and that Merle-Lee had had no duty to fund the Trust. In March of 2025, the probate court agreed with Leonhardt on the basis that Richard's intent had been to leave the Accounts to Merle-Lee and not Appellants.

[3] Meanwhile, in September of 2024, Appellants had filed a legal malpractice suit against Stephen Adair, who had represented Richard at relevant times, and Adair's law office at the time, Beers Mallers Backs & Salin, LLP (collectively, “Appellees”). All of Appellants’ claims were based on their contention that Richard had actually intended to leave the Accounts to Appellants, but that Appellees had neglected to bring Richard's wishes to fruition. In November of 2025, the trial court granted Appellees’ summary-judgment motion, concluding, inter alia, that the probate court's finding that Richard had intended to leave the Accounts to Merle-Lee was res judicata and could not be relitigated. Appellants contend that the trial court erred in entering summary judgment in favor of Appellees and abused its discretion in striking an affidavit from its expert witness. Because we disagree with Appellants’ first contention, we affirm the judgment of the trial court and need not reach their second.

Facts and Procedural History

[4] Richard accumulated the Accounts through his employment as a physics professor at Indiana University-Purdue University, Fort Wayne. The first time Richard executed a designation of beneficiary form for the Accounts was in 1964, when he named his then-wife as the primary beneficiary and Appellants as his contingent beneficiaries. At some point, Richard and his first wife's marriage dissolved, and in May of 1991, Richard changed his primary beneficiary from her to Merle-Lee. On July 11, 1991, Richard and Merle-Lee were married. In January of 1998, Richard executed another designation of beneficiary form, changing Merle-Lee's relationship status from friend to wife. On June 16, 1999, Richard executed the Trust.

[5] On February 2, 2003, Richard changed his contingent beneficiary for the Accounts to his estate, while the primary beneficiary remained Merle-Lee. On June 8, 2003, Richard named the Trust as the contingent beneficiary of the Accounts. On July 14, 2003, Richard changed his contingent beneficiary back to Appellants. At all times, Merle-Lee continued to be the primary beneficiary of the Accounts.

[6] In 2010, Richard hired Adair to modify the Trust and draft a will (“the Will”). Adair took notes during meetings in June, July, and August with Richard and Merle-Lee, including notes taken during a meeting on June 7, 2010, which he included the following: “Kids – H's 3 Kids and W's 1; W doesn't trust H's kids, H wants them to inherit after W's Death.” Appellant's App. Vol. II p. 103. Perhaps to this end, on or about October 15, 2010, the Trust was revised to purport to leave the Accounts to Appellants upon his and Merle-Lee's death:

(4) Upon the death of both the Settlor, RICHARD E. MIERS, the Settlor's wife, MERLE-LEE MIERS, the Trust shall terminate, and the Trustee shall distribute the trust estate as follows:

a. Remainder of my TIAA CREF TAX DEFERRED ANNUITY, currently in the amount of Eight Hundred Sixty Thousand and XX/100 Dollars ($860,000.00), and my TIAA CREF ROTH IRA, currently in the amount of Thirteen Thousand and XX/100 Dollars ($13,000.00), equally to my children, MARSHALL H. MIERS, CATHERINE MIERS KONKLE and EDWARD R. MIERS, per stirpes. If any of such beneficiaries shall predecease me, such beneficiary's share shall pass to such beneficiary's then living issue per stirpes, if any, and if none, then such property shall pass to the other named beneficiaries if living, and if not, to such other named beneficiary's then living issue per stirpes[.]

Appellees’ App. Vol. II p. 43–44. Also on or about October 15, Richard executed the Will, in which bequeathed the Accounts to Merle-Lee unless she predeceased him, in which case they would go to Appellants. Adair later recalled that the plan in 2010 was for Richard to ultimately decide who he wished to leave the Accounts to and then return to make the necessary modifications to the appropriate instruments. Richard, however, never returned, and the Trust was never made the primary beneficiary of the Accounts or otherwise funded.

[7] Richard died on October 20, 2022, survived by Merle-Lee. Merle-Lee completed the appropriate paperwork to transfer the Accounts into her name and designated Leonhardt as the primary beneficiary. When Merle-Lee died on March 22, 2024, Leonhardt received the proceeds of the Accounts.

[8] On April 26, 2024, Marshall petitioned to docket the Trust in cause number 02D03-2404-TR-6 (“the Trust Case”); Catherine appeared as an interested person. Marshall sought clarification as to whether the Accounts were Trust property. On December 11, 2024, Leonhardt appeared and moved for summary judgment in the Trust Case, arguing that the Accounts were not Trust property and that Merle-Lee had owed no duty to Richard's children to fund the Trust. On February 20, 2025, Leonhardt responded to Marshall's request for production of documents, which included copies of Adair's handwritten notes.

[9] On March 6, 2025, the probate court issued its order, in which it agreed with Leonhardt's assertions. The probate court concluded that the undisputed evidence established that “[t]he clear intent from the beneficiary designations is that Richard wanted [the Accounts] to go to Merle-Lee rather than [the Trust] which was consistent with what Richard set out in the Will.” Appellees’ App. Vol. II p. 21. The probate court cited designated evidence that Richard had clearly known how to change his beneficiary designations, which he had done several times with contingent beneficiaries, but had never replaced Merle-Lee with the Trust as the primary beneficiary. The probate court also noted that the Accounts were governed by ERISA, meaning that, in order for anyone other than Merle-Lee to be named the primary beneficiary, she, due to her status as Richard's spouse, would have had to have waived, in writing, any interest in them, something which had never occurred. It seems that Marshall never attempted to bring Adair's notes to the probate court's attention, either prior to the entry or judgment of afterwards.

[10] Meanwhile, on September 19, 2024, Appellants had filed suit against Adair and Beers Mallers, alleging professional negligence against Adair and that Beers Mallers was vicariously liable for his alleged negligence. To summarize and restate Appellants’ claims, they alleged that Adair had committed malpractice by failing to (1) ensure that the terms of the Trust and Will were consistent regarding disposition of the Accounts; (2) properly advise Richard of the importance of funding the Trust, how to change beneficiary designations, and how to fund the Trust; (3) provide Richard with advice in writing; and (4) follow up with Richard to ensure that the Trust was funded and that beneficiary designations had been changed.

[11] On March 26, 2025, the trial court entered its case-management order, which provided, in part, as follows:

2.1 [Appellants] shall file [Appellants]’ list of expert witnesses and the content of the expert reports by May 30, 2025. See Cain v. B[a]ck, 889 NE 2d 1253, 1260 (Ind. Ct. App. 2008).

2.2 [Appellees] shall file [Appellees]’ list of expert witnesses and the content of the expert reports by June 30, 2025. See [id.].

2.3 The expert filings shall include the following:

2.3.1 Name, address and telephone number of each expert witness expected to testify.

2.3.2 A description of the subject matter to which the expert is expected to testify.

2.3.3 The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each such opinion.

2.3.4 A copy of all existing reports and/or written opinions prepared by the expert.

2.4 Absent good cause shown, failure to comply with these disclosure requirements will preclude opinion testimony by any such witness upon timely objection of opposing counsel.

․

3.2 All dispositive motions, including motions for summary judgment; motions to dismiss; and motions for judgment on the pleadings shall be filed by August 1, 2025.

Final Order pp. 3–4 (ellipsis and emphasis in Final Order).

[12] On May 21, 2025, Appellants filed their list of expert witnesses and a report from Brian Hewitt. On June 30, 2025, Appellees filed a report from their expert, Nathan Williams, who opined that Hewitt's report did not take into account that the Accounts had been employee-sponsored qualified assets or that they had been governed by ERISA.

[13] On August 1, 2025, Appellees moved for summary judgment. On September 3, 2025, Appellants responded to Appellees’ summary-judgment motion and submitted an affidavit from Hewitt, in which he specifically opined on proximate cause and the effects of ERISA on the issues. At the summary-judgment hearing on October 21, 2025, Appellants conceded that Hewitt's original report had not contained opinions regarding proximate cause and the effects of ERISA. On November 19, 2025, the trial court granted Appellees’ motions to strike Hewitt's untimely affidavit and for summary judgment. The trial court concluded that Appellants were collaterally estopped from relitigating the probate court's conclusion that Richard had always intended for Merle-Lee to be the primary beneficiary of the Accounts and, in any event, had also failed to designate any evidence that any alleged malpractice by Adair had been the proximate cause of any damages that may have occurred.

Discussion and Decision

[14] Appellants appeal from the trial court's entry of summary judgment in favor of Appellees. When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat'l Bank v. Simrell's Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). “Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Id. (citing Ind. Trial Rule 56(C)). To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party's claim. Id. “Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist.” Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id.

[15] “The elements of attorney malpractice are: (i) employment of an attorney which creates the duty; (ii) the failure of the attorney to exercise ordinary skill and knowledge (the breach of the duty); and (iii) that such negligence was the proximate cause (iv) of damage to the plaintiff.” Rice v. Strunk, 670 N.E.2d 1280, 1283–84 (Ind. 1996). All of Appellants’ specific malpractice allegations are premised on the claim that Richard had actually wanted to leave the Accounts to Appellants, but that Adair failed to do enough to ensure that Richard's wishes were carried out, thereby breaching his duty to Richard and damaging them. Not surprisingly, then, Appellants challenge the trial court's acceptance, as res judicata, of the probate court's conclusion that the evidence established that Richard had intended to have Merle-Lee be the primary beneficiary of the Accounts at the time of this death. The doctrine of res judicata prevents the repetitious litigation of disputes that are essentially the same and is divided into two branches: claim preclusion and issue preclusion, the latter also referred to as collateral estoppel. French v. French, 821 N.E.2d 891, 896 (Ind. Ct. App. 2005).

[16] As an initial matter, Appellants argue that Appellees stated an improper basis in the trial court for accepting the probate court's previous finding that Richard always intended to leave the Accounts to Merle-Lee, citing “res judicata[,]” which Appellants claim refers only to claim preclusion and does not encompass collateral estoppel. Appellant's App. Vol. II p. 72. As mentioned, however, collateral estoppel is one of two branches of res judicata, not a different concept. See, e.g., French, 821 N.E.2d at 896. In any event, even if Appellees had referred to their assertion by the wrong name, their argument was that the probate court's conclusion on the issue of Richard's intent was the only thing binding on the trial court, which, as explained below, is clearly an argument of issue preclusion, not claim preclusion.

[17] That said, “[c]ollateral estoppel bars the subsequent litigation of a fact or issue that was necessarily adjudicated in a former lawsuit if the same fact or issue is presented in the subsequent lawsuit.” Millenium Club, Inc. v. Avila, 809 N.E.2d 906, 911 (Ind. Ct. App. 2004). Where collateral estoppel is applicable, the former adjudication will be conclusive in the subsequent action even if the two actions are on different claims. Sullivan v. Am. Cas. Co. of Reading, Pa., 605 N.E.2d 134, 137 (Ind. 1992). However, the former adjudication will only be conclusive as to those issues that were actually litigated and determined therein. Wedel v. Am. Elec. Power Serv. Corp., 681 N.E.2d 1122, 1131 (Ind. Ct. App. 1997), trans. denied. Collateral estoppel does not extend to matters that were not expressly adjudicated and can be inferred only by argument. Pritchett v. Heil, 756 N.E.2d 561, 565 (Ind. Ct. App. 2001).

[18] There are three elements for the doctrine of collateral estoppel to apply: “(1) a final judgment on the merits in a court of competent jurisdiction; (2) identity of the issues; and (3) the party to be estopped was a party or the privity of a party in the prior action.” Nat'l Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012). Moreover, the trial court must engage in a two-part analysis: (1) whether the party in the prior action had a full and fair opportunity to litigate the issue and (2) whether it is otherwise unfair to apply collateral estoppel given the facts of the particular case. Meridian Ins. Co. v. Zepeda, 734 N.E.2d 1126, 1129 (Ind. Ct. App. 2000), trans. denied.

[19] Appellants contend that the intent issue between the two causes of action was not identical because some of the evidence regarding Richard's intent at the time of his death presented in the malpractice action was not presented in the trust action, namely, Adair's notes from 2010. This contention, even if true, has nothing to do with the identity of the issue, which is precisely the same in both cases, i.e., Richard's intent at the time of his death. This claim is, at best, relevant to the questions of whether Marshall had a full and fair opportunity to litigate the issue in the trust case and/or whether it would be otherwise unfair to apply collateral estoppel given the facts of this case. See id.

[20] We have little trouble agreeing with the trial court that Marshall had a full and fair opportunity to use Adair's notes to litigate the question of Richard's intent in the Trust Case, even if he did not avail himself of that opportunity. There is no indication that Marshall took any action whatsoever to have Adair's notes from 2010 considered by the probate court, even though Appellants concede that he had obtained them over two weeks prior to the entry of judgment. See Jacks v. Tipton Cmty. Sch. Corp., 94 N.E.3d 712, 715–16 (Ind. Ct. App. 2018) (noting that a party may supplement designated evidence after the initial filings during the summary judgment process), trans. denied. In any event, even if we were to assume that two weeks was insufficient time to evaluate the eight pages of handwritten notes and six pages of dictated notes, Marshall could have, on the basis of newly-discovered evidence, moved to correct error pursuant to Trial Rule 59(A)(1), or for relief from judgment pursuant to Rule 60(B)(2), but did not. Under the circumstances, Appellants cannot now complain that Marshall did not have a full and fair opportunity to litigate the question of Richard's intent in the Trust Case. See Nat'l Wine & Spirits, 976 N.E.2d at 702, 708 (in case where arbitration clause prohibited discovery unless expressly authorized by the arbitration panel, concluding that National Wine and Spirits had had a full and fair opportunity to litigate an issue when it had not asked the panel for additional discovery after certain additional records had been produced by the opposing party ten days before the scheduled arbitration hearing).

[21] To the extent that notes about meetings that took place in 2010 might have had any relevance to Richard's intent at the time of his death in 2022, Marshall had a full and fair opportunity to put them before the probate court. For the same reasons, we cannot conclude that it would be unfair to apply collateral estoppel under the circumstances of this case. Appellants have failed to establish that the trial court erred in concluding that their attempt to relitigate the question of Richard's intent at the time of his death was barred by the collateral-estoppel branch of res judicata. Because all of Appellants’ malpractice claims are premised on the claim that Adair breached his duty to Richard by failing to carry out his desire to leave the Accounts to them instead of Merle-Lee, we need address them no further.¹

[22] We affirm the judgment of the trial court.

FOOTNOTES

1.   The conclusion that Richard actually intended to leave the Accounts to Merle-Lee at the time of his death negates any claim that Adair breached his duty of care to Richard, which, in turn, fatally undercuts Appellants’ malpractice claims. Consequently, we need not address Appellants’ contention that the trial court abused its discretion in granting Appellees’ motion to strike Hewitt's affidavit, which addressed the issues of breach and damages.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.