William T. Niemier, as Personal Representative of the Estate of Charles Edward Hauck, deceased, and Steven Tracy McElwain, Appellants-Defendants v. Patricia Brown, Sheron Frierson, Shantel Crabtree, Rochelle O'Neal, Norland Hawkins, Ryan Whitley, Stacy Hawkins, Janine Iles, Royce Butler, Sr., Royce Butler, Jr., Jermaine Butler, Lakeya Mathis, Chalae Butler, Devin Demetrious Ellis, John W. Hawkins, Jr., Ilean Williams and Melvin Phillips, Appellees-Plaintiffs (2025)

MEMORANDUM DECISION

[1] William T. Niemier (“Niemier”) and Steven Tracy McElwain (“McElwain”) (“the Defendants”) appeal the denial of their motion to correct error, which challenged the entry of judgment on the pleadings in favor of multiple intestate heirs (“the Heirs”) in a will contest action involving the estate of Charles Edward Hauck (“the Decedent”). The Defendants present the consolidated and restated issue of whether reversal is necessary due to claims of procedural irregularity and error in statutory interpretation. The Heirs defend the judgment and request appellate attorney fees under Appellate Rule 66(E).

[2] We affirm, concluding that the Defendants waived certain appellate contentions by failing to develop them, that any alleged procedural irregularity in entering judgment for the Heirs did not amount to reversible error, and that the three-year statute of limitations prohibited admitting the purported will to probate. We also deny the Heirs’ request for appellate attorney fees.

Facts and Procedural History

[3] The Decedent died on January 25, 2018, without a surviving spouse or children. About five years later, on May 2, 2023, Rain Lauth (“Lauth”) petitioned to open a supervised intestate estate for the Decedent and asked to be appointed personal representative, noting that the probable value of the estate consisted of $553,000.00 in “[u]nclaimed funds held by the State of Indiana.” Appellants’ App. Vol. II p. 51. The trial court issued its Order for Administration the following day, appointing Lauth as personal representative of the Decedent's intestate estate. On September 13, 2023, Lauth filed a Verified Inventory, which identified the $553,000.00 in unclaimed funds as the sole probate asset.

[4] On March 24, 2024—nearly one year into the intestate administration of the estate—McElwain moved to intervene, claiming to possess a will executed by the Decedent on March 18, 2014, which devised the entire estate to McElwain, a “friend and neighbor” who “aided in [his] care for the last several years.” Id. at 63. The next day, Lauth resigned as personal representative. On March 28, 2024, the trial court granted McElwain's motion to intervene. On April 11, 2024—more than six years after the Decedent's death and eleven months after the commencement of intestate proceedings—Niemier petitioned to probate the purported will and sought appointment as personal representative, filing his petition in the action associated with the intestate estate. On April 12, 2024, the trial court admitted the will to probate, appointed Niemier as personal representative, and converted the estate to unsupervised administration.

[5] On June 4, 2024, the Heirs ¹ filed a will contest action, filing in a separate cause a Complaint to Contest Will and for Injunctive relief against the Defendants. They alleged the purported will was invalid because, among other things, it was admitted to probate more than three years after the Decedent's death and subsequent to the commencement of intestate estate proceedings, in violation of subsections (g) and (h) of Indiana Code section 29-1-7-15.1. Niemier was granted an extension of time to file a responsive pleading, with his answer due on or before August 20, 2024. McElwain was also granted an extension, with his answer due on or before September 6, 2024.

[6] Niemier filed his answer on August 22, 2024. On the same day Niemier filed his answer, the Heirs filed a Motion for Judgment on the Pleadings, arguing that because an intestate estate proceeding commenced before the purported will was probated and more than three years had elapsed since the Decedent's death, the order admitting the purported will to probate was contrary to statute and voidable under Troxel v. Troxel, 737 N.E.2d 745 (Ind. 2000), and therefore the Heirs were entitled to judgment as a matter of law. A few days later, the trial court granted the Motion for Judgment on the Pleadings. In its written order, the court determined that the purported will was admitted in violation of Indiana Code section 29-1-7-15.1(g) and that subsection (h) did not apply.

[7] On August 26, 2024, Niemier moved for a change of judge under Trial Rule 76(B). Niemier also moved to vacate an attorney conference scheduled for September 9, 2024. On August 29, 2024, the trial court declined to vacate the conference and noted that the Trial Rule 76(B) motion “was not timely filed, as it was filed after judgment on the pleadings [was] issued[.]” Appellants’ App. Vol. II p. 12. On August 30, 2024, McElwain moved for a change of judge under Trial Rule 76(B). On that date, Niemier moved to vacate the judgment on the pleadings, arguing that the trial court (1) violated Trial Rule 12(C) by entering judgment on the pleadings before all defendants had answered—with McElwain's answer not yet due until September 6, 2024; (2) violated Marion County Local Rule LR49-TR5-203 by not allowing the Defendants fifteen days to respond to the motion for judgment on the pleadings; and (3) erred in its interpretation of the exception in Indiana Code section 29-1-7-15.1(h).

[8] On September 3, 2024, the trial court held an attorney conference, where all parties were represented by counsel. The trial court heard argument and thereafter denied the Trial Rule 76(B) motion for change of judge as untimely and confirmed its order granting judgment on the pleadings. The court gave context to its rulings, remarking: “I admitted the will to probate despite the statute prohibiting it. That's my mistake.” Appellants’ App. Vol. III p. 58. The court also referred to the Indiana Supreme Court's Troxel decision, noting that, under Troxel, the statutory error in admitting the will to probate was “voidable if there is a timely will contest filed” and “a will contest ha[d] been timely filed” in the case. Id. As to the timing of its entry of judgment, the court explained that, “[r]ather than compound [its] error and allow the parties to continue litigating, [it] decided to grant that judgment on the pleadings” to avoid dissipating the estate. Id. Toward the end of the hearing, the court said: “I just want to caution everyone [that] in a supervised estate it'll be difficult for us to ensure everyone is paid to continue to litigate the estate if there's no good faith basis to litigate. So, I just invite you to articulate clearly why if you believe there's good reason for us to continue this matter.” Id. at 62. The court reiterated its “view of the matter” was that Troxel controlled and “tells us [the] error must not be compounded by continuing to tolerate more but pointless pleading.” Id. at 62–63. The trial court further remarked: “I conclude that this is a statutory exercise[;] I screwed it up once and I decline to do it again.” Id. at 64.

[9] On September 6, 2024, McElwain filed his answer. Also on that date, the Defendants filed a Verified Petition for Writ of Mandamus with the Indiana Supreme Court, asserting the trial court committed procedural error and had a duty to grant their motions for change of judge. The Supreme Court denied the Petition for Writ of Mandamus on September 11, 2024. On September 24, 2024, the Defendants filed a Motion to Correct Error reasserting their procedural challenges and competing interpretation of the statute. The motion was deemed denied under Trial Rule 53.3(A). The Defendants now appeal.

Discussion and Decision

I. Judgment on the Pleadings

[10] The Defendants appeal following the denial of their motion to correct error. In general, we review a ruling on a motion to correct error for an abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. “However, to the extent the issues raised ․ are purely questions of law, our review is de novo.” Id. Here, the motion to correct error challenged the order granting the Heirs’ motion for judgment on the pleadings.

[11] Whether a party is entitled to judgment on the pleadings presents a question of law that we review de novo. KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017). As our Supreme Court has explained: “Judgment on the pleadings is available to ‘any party’ where it is clear from the face of the pleadings that one party is entitled to prevail as a matter of law.” ESPN, Inc. v. Univ. of Notre Dame Police Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016) (quoting Ind. Trial Rule 12(C)). When reviewing a Trial Rule 12(C) motion, a court's review “is confined to the pleadings, accepting well-pleaded material facts in the complaint as true.” Id.

[12] The Defendants claim the trial court committed procedural errors in resolving the matters below. They specifically focus on granting the motion for judgment on the pleadings under Trial Rule 12(C) before all defendants had answered—without awaiting a fifteen-day response period as required by a Marion County local rule—and subsequently denying their Trial Rule 76(B) motions for a change of judge. We note, however, that whatever procedures were used in leading to the final appealed order, Indiana Appellate Rule 66(A) directs us to disregard any “error or defect in any ruling or in anything done or omitted by the trial court” where “its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”

[13] Here, the Defendants’ interest in the Decedent's estate stemmed from rights and responsibilities derived from the purported will and the associated probate action, where the court initially admitted that will to probate. The dispositive issue, then, is whether Indiana Code section 29-1-7-15.1 permitted the trial court to admit the purported will to probate in April 2024—more than six years after the Decedent's death in January 2018 and after intestate estate proceedings had already commenced in May 2023. If not, the complained-of procedures ultimately had no effect on the Defendants’ substantial rights in that, if the purported will was incapable of being properly admitted to probate under Indiana law, the Defendants had no viable interest derived from the will.

[14] Statutory interpretation presents a question of law, which we review de novo. Nardi v. King, 253 N.E.3d 1098, 1103 (Ind. 2025). In interpreting a statute, our “primary task is to give effect to the intent of the legislature.” Id. at 1104 (quoting Shepherd Props. Co. v. Int'l Union of Painters & Allied Trades, Dist. Council 91, 972 N.E.2d 845, 852 (Ind. 2012)). “We give a statute's words their ‘plain meaning and consider the structure of the statute as a whole.’ ” Id. (quoting ESPN, Inc. v. Univ. of Notre Dame Police Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016)). Moreover, “[w]e also read the statutory language ‘logically and consistently with the statute's underlying policy and goals.’ ” Id. (quoting Culver Cmty. Tchrs. Ass'n v. Ind. Educ. Emp. Rels. Bd., 174 N.E.3d 601, 604–05 (Ind. 2021)).

[15] Indiana Code section 29-1-7-15.1(g) establishes a statute of limitations for admitting wills to probate, specifying in pertinent part as follows: “Except as provided in subsection (h), the will of the decedent shall not be admitted to probate unless the will is presented for probate before ․ [t]hree (3) years after the individual's death.” The exception in subsection (h) “applies with respect to the will of an individual who dies after June 30, 2011,” stating in pertinent part:

If:

(1) no estate proceedings have been commenced for a decedent; and

(2) an asset of the decedent remains titled or registered in the name of the decedent;

the will of the decedent may be presented to the court for probate and admitted to probate at any time after the expiration of the deadline determined under subsection (g) for the sole purpose of transferring the asset described in subdivision (2).

Ind. Code § 29-1-7-15.1(h) (emphasis added). Pursuant to Indiana Code section 29-1-1-3(a)(38), the term “will” includes “all wills, testaments, and codicils.” The term “also includes a testamentary instrument which merely appoints an executor or revokes or revives another will.” I.C. § 29-1-1-3(a)(38).

[16] The plain language of subsection (h) requires two conditions to be met for the exception to apply: (1) “no estate proceedings have been commenced for a decedent,” and (2) an asset remains in the decedent's name. I.C. § 29-1-7-15.1(h). Here, it is undisputed that intestate estate proceedings commenced on May 2, 2023. Indeed, the purported will was not offered for probate until April 11, 2024—after estate proceedings had been underway for nearly one year. Because estate proceedings had commenced, subsection (h)’s first condition cannot be satisfied. We therefore conclude subsection (h) did not apply. And because subsection (h) did not apply, the three-year statute of limitations under Indiana Code section 29-1-7-15.1(g) barred admitting the purported will to probate.

[17] The Defendants offer a competing interpretation of the statute, carrying language from subsection (g) into subsection (h). That is, the Defendants incorporate subsection (g)’s timeframe of “[t]hree (3) years after the individual's death” into their interpretation of subsection (h)(1), reading the statute to provide that, if no estate proceedings are commenced within three years of the individual's death, a will may be probated at any time when an asset remains in the individual's name. I.C. § 29-1-7-15.1(g), (h). The Defendants argue that the petition to probate was timely because, in this instance, no estate proceedings commenced “within three years” of the Decedent's death in 2018. Appellants’ Br. p. 22. We note, however, that the Defendants’ proffered interpretation of subsection (h) requires adding language not found in that subsection. Our legislature's choice to omit any limitations period from subsection (h)(1) must be given effect. Cf. Perry Cnty. v. Huck, 263 N.E.3d 138, 142 (Ind. 2025) (noting that courts interpreting a statute must be mindful of both what the statute says and what it does not say). Further, under the Defendants’ proffered reading of the statutory provisions involved, a will could be probated at any time—even decades after a person's death—so long as no estate proceedings occurred within the first three years. This would essentially nullify subsection (g)’s three-year limitation whenever estate proceedings were delayed beyond that period. Such an interpretation cannot be reconciled with the statute's clear purpose of imposing a statute of limitations on estate matters. Cf. id. (guiding courts to “avoid interpretations that depend on selective reading of individual words that lead to irrational and disharmonizing results” (quoting Spells v. State, 225 N.E.3d 767, 772 (Ind. 2024))).

[18] Our Supreme Court's decision in Troxel, while not directly addressing subsection (h)—which was not yet part of the statute—ultimately established the framework for challenging wills admitted beyond the statutory deadline. The Court specified that when a will is admitted to probate in violation of a deadline set forth in Indiana Code section 29-1-7-15.1, the order is voidable, not void, and the proper way to address the voidable order is through “the timely filing of a will contest.” Troxel, 737 N.E.2d at 750–51. The Heirs adhered to Troxel by timely filing their will contest. Moreover, the trial court correctly applied Troxel in determining that the Defendants’ purported will was voidable because it was improperly admitted to probate, contrary to statute.

[19] Due to adherence with Troxel, we find unpersuasive any suggestion by the Defendants that the Heirs waived any will contest because Lauth—the initial personal representative appointed in the estate action—“could have filed an objection to the probate of any [w]ill” and “did not.” Appellants’ Br. p. 26. Along these lines, we disagree with the Defendants’ suggestion that the Heirs took improper steps by initiating a will contest in a separate action, rather than attempting to challenge the will in the estate matter. See id. at 28. Furthermore, to the extent the Defendants claim the Indiana General Assembly exceeded its authority in generally imposing a three-year limitation on admitting a will to probate—asserting that “any such arbitrary time limitation cannot pass [c]onstitutional muster,” id. at 31—it does not appear that the Defendants presented this argument to the trial court, nor do they make any attempt on appeal to claim they were precluded from presenting this challenge below.

[20] In general, “challenges to the constitutionality of a civil statute may be waived if they could have been raised to the trial court but the appellant failed to do so.” Duncan v. Duncan, 764 N.E.2d 763, 769 (Ind. Ct. App. 2002), trans. denied. Notwithstanding this type of waiver, we take the essence of the Defendants’ constitutional argument to be that the Indiana General Assembly exceeded its authority under the United States Constitution and the Indiana Constitution by imposing an “arbitrary time limitation” in probate matters. Appellants’ Br. p. 31. Although the Defendants characterize the time limitation as arbitrary, they nonetheless acknowledge that “[t]he State of Indiana may have an interest in the expeditious resolution of probate proceedings.” Id. The Defendants assert that there are countervailing public policy interests involved, at one point arguing: “No statute or rule should deny an heir named in a [w]ill the right to inherit, no matter if estate property is discovered over three years later. There is no [c]onstitutional justification for giving intestate heirs such a windfall.” Id. at 32. We note, however, that although the Defendants identify competing public policy interests at stake in these types of cases, they ultimately fail to provide any supporting rule statement or applicable test—let alone make an argument thereunder—establishing that the State's interest in the expeditious resolution of probate proceedings must yield to a potential heir's interest in inheriting future-discovered property. See, e.g., Reply Br. p. 22 (broadly arguing that “[t]he polestar of probate administration is to honor the wishes of the decedent” and those named in a will “should inherit out of respect for the decedent's wishes”).

[21] Under the circumstances, we conclude that the Defendants waived their constitutional arguments by failing to comply with Indiana Appellate Rule 46(A)(8)(a), which requires “cogent reasoning” supporting the “contentions of the appellant on the issues presented,” with “[e]ach contention ․ supported by citations to the authorities ․ relied on[.]” See Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (identifying waiver due to inadequate citation to authority).²

[22] In the end, because the statutory interpretation issue is a pure question of law and the Defendants’ proposed reading of subsection (h) cannot be reconciled with the statute's plain language, no amount of additional briefing or argument could have changed the outcome. Thus, although we cannot condone the procedural irregularities at issue in this case, based on the voidable nature of the earlier order—which improperly admitted the purported will to probate—we cannot say the alleged procedural irregularities affected the substantial rights of the Defendants, and therefore, any procedural error was harmless under the circumstances. For these reasons, we affirm the denial of the Defendants’ motion to correct error, which challenged the judgment in favor of the Heirs.

II. Appellate Attorney Fees

[23] The Heirs ask us to award them appellate attorney fees under Appellate Rule 66(E), which states as follows: “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys’ fees.” In general, our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited to “instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Randolph v. Randolph, 210 N.E.3d 890, 902 (Ind. Ct. App. 2023) (quoting Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003)). Moreover, we use “extreme restraint” in exercising this discretionary power due to “the potential chilling effect upon the exercise of the right to appeal.” Thacker, 797 N.E.3d at 346.

[24] Here, the Defendants claimed the trial court used irregular procedures and they disagreed with the trial court's interpretation of pertinent provisions of the Indiana Code. Under the circumstances, we cannot say the appeal evinces frivolity or bad faith to warrant awarding appellate attorney fees. We therefore decline the Heirs’ request to exercise our authority under Appellate Rule 66(E).

Conclusion

[25] Regardless of any procedural irregularity, the Defendants did not identify reversible error in light of the statutory bar to admission of the purported will, which rendered the prior probate order voidable upon the Heirs’ timely will contest. Moreover, we decline the Heirs’ request for appellate attorney fees.

[26] Affirmed.

FOOTNOTES

1.   Specifically, Patricia Brown, Sheron Frierson, Shantel Crabtree, Norland Hawkins, Ryan Whitley, Rochelle O'Neal, Stacy Hawkins, Janine Iles, Royce Butler, Sr., Royce Butler, Jr., Jermaine Butler, Lakeya Mathis, Chalae Butler, and Devin Demetrious Ellis. These individuals were later joined by John W. Hawkins, Jr., Ilean Williams, and Melvin Phillips.

2.   For the first time in their Reply Brief, the Defendants liken the circumstances to “[c]onstitutional issues that arose in asbestos litigation,” arguing that “the [c]onstitutional concerns are the same” for “a plaintiff who might suffer from a cancer decades from now or a beneficiary of a [w]ill who might inherit from a decedent if property is discovered more than three years from now.” Reply Br. p. 21. To the extent this argument was adequately supported under Appellate Rule 46(A)(8)(a), the Defendants ultimately waived the argument “by failing to raise [it] in [their] opening appellate brief.” Davidson v. State, 211 N.E.3d 914, 925 (Ind. 2023).

Foley, Judge.

Judges Kenworthy and Scheele concur. Kenworthy, J. and Scheele, J., concur.