Estate of Rebecca A. Curless, Through its Personal Representative David W. Reid, Appellant-Plaintiff v. Todd M. Reid and Heather L. Reid, Appellees-Defendants (2025)

MEMORANDUM DECISION

Case Summary

[1] After David Reid's prior lawsuit against Todd and Heather Reid had been dismissed for lack of standing, David, this time in his capacity as personal representative of the Estate of Rebecca A. Curless (“the Estate”), filed a second lawsuit against Todd and Heather, alleging that Heather had breached her fiduciary duty to Curless prior to Curless's death. Todd and Heather moved to dismiss the case, arguing that the Estate's claims were time-barred. On April 3, 2025, the trial court dismissed the Estate's lawsuit, finding that its claims were time-barred. We affirm.

Facts and Procedural History

[2] The facts, as set forth in a prior related appeal, are as follows:

David and Todd are brothers; their mother was [Curless]; and Todd is married to Heather. At some point before she died, Curless appointed Heather to be her attorney in fact. In September 2021, the trial court appointed Todd to serve as guardian over Curless's person and her estate. Later, Heather, purportedly using her power of attorney, transferred title in Curless's real property located at 208 N. Line Street in Columbia City [(“the Line Street property”)] to herself and Todd. Heather also transferred title in Curless's vehicle, boat, and other personal property to herself and Todd.

On October 4, Curless died testate. David was the primary beneficiary of the will. Curless's bequests included $1 million to David and $250,000 to Heather. If there was any money left after those distributions, Todd was to receive up to $100,000.

Curless's will also purported to leave to David the Line Street property, which had been transferred to Heather and Todd before Curless's death. Finally, David was named the residual heir in Curless's will.

David served as a co-personal representative of Curless's estate along with Stanley Sickafoose. On April 28, 2022, David and Sickafoose filed their verified closing statement, whereby they swore that they had collected all of the assets of the estate and had paid all claims and expenses of administration. The probate court approved the closing statement on July 29.

More than a year later, on September 21, 2023, David filed a nine-count complaint against Todd and Heather. Among David's claims were allegations that Heather had violated her fiduciary duty to Curless and that Todd and Heather had committed conversion when they transferred title to the Line Street property to themselves before Curless's death.

On November 13, Todd and Heather filed a motion to dismiss David's complaint under Trial Rule 12(B)(6). Todd and Heather argued that David lacked standing to assert his claims.․ The trial court granted Todd and Heather's motion to dismiss David's complaint without a hearing. David filed a motion to correct error, which the trial court denied.

Reid v. Reid, 2024 WL 3272313 * 1–2 (Ind. Ct. App. July 2, 2024) (footnotes omitted) (“David's case”). We affirmed the judgment of the trial court on appeal. Id. at *4.

[3] David moved to reopen the Estate on August 20, 2024. On October 29, 2024, over Todd and Heather's objections, the trial court granted David's request to reopen the Estate and re-appointed David to serve as personal representative of the Estate. David, in his capacity as representative of the Estate, then filed suit against Todd and Heather (the “Estate case”), alleging that Heather had breached her fiduciary duties, had committed criminal conversion, and had acted in bad faith in transferring the Line Street property to herself and Todd.

[4] On February 20, 2025, Todd and Heather moved to dismiss the Estate case, arguing that the Estate's claims were time-barred and that, with respect to certain annuities, the Estate had failed to state a claim for which it could be granted relief. The trial court, over the Estate's objection, issued an order dismissing the Estate case on April 3, 2025.

Discussion and Decision

I. Motion to Dismiss

[5] “The standard of review on appeal of a trial court's grant of a motion to dismiss for the failure to state a claim is de novo and requires no deference to the trial court's decision.” Bellows v. Bd. of Comm'rs of Cnty. of Elkhart, 926 N.E.2d 96, 110 (Ind. Ct. App. 2010).

When reviewing a 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, this court accepts as true the facts alleged in the complaint. A [Trial Rule] 12(B)(6) motion to dismiss tests the legal sufficiency of the complaint. When reviewing a [Trial Rule] 12(B)(6) motion to dismiss, we view the pleadings in the light most favorable to the non-moving party, and draw every reasonable inference in favor of that party. We will affirm a successful [Trial Rule] 12(B)(6) motion when a complaint states a set of facts, which, even if true, would not support the relief requested in that complaint. Moreover, we will affirm the trial court's grant of a motion to dismiss if it is sustainable on any theory or basis found in the record.

Minks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App. 1999) (internal citations omitted), trans. denied. “[A] motion to dismiss pursuant to Trial Rule 12(B)(6) is a permissible means of raising the statute of limitations.” DeHart v. Anderson, 178 Ind. App. 581, 587, 383 N.E.2d 431, 435 (1978).

[6] The Estate appeals the trial court's order dismissing its complaint, arguing that the trial court erred in finding that its claims were time-barred.¹ Generally, “[e]xcept as otherwise stated in the power of attorney, the attorney in fact shall use due care to act for the benefit of the principal under the terms of the power of attorney.” Ind. Code § 30-5-6-2. With respect to records of transactions made on behalf of the principal,

[t]he attorney in fact shall keep complete records of all transactions entered into by the attorney in fact on behalf of the principal: (1) for six (6) years after the date of the transaction; or (2) until the records are delivered to the successor attorney in fact; whichever occurs first.

Ind. Code § 30-5-6-4(a).

Except as provided in subsection (f), the attorney in fact shall render a written accounting if an accounting is ordered by a court or requested by:

(1) the principal;

(2) a guardian appointed for the principal;

(3) a child of the principal, unless a court finds that such a rendering is not in the best interests of the principal;

(4) a person who jointly owns an account with the principal; or

(5) upon the death of the principal, the personal representative of the principal's estate or an heir or legatee of the principal.

Ind. Code § 30-5-6-4(c).

Except as provided in subsection (f), an attorney in fact shall deliver an accounting requested under subsection (c) to:

(1) the principal;

(2) a guardian appointed for the principal;

(3) the personal representative of the principal's estate;

(4) a person who jointly owns an account with the principal;

(5) an heir of the principal after the death of the principal;

(6) a legatee of the principal after the death of the principal; or

(7) a child of the principal, unless a court finds that such a delivery is not in the best interests of the principal.

Ind. Code § 30-5-6-4(d).

In the case of a principal who has died, the following apply:

(1) The court may order an accounting under subsection (c) at any time.

(2) In the absence of a court ordered accounting, an attorney in fact is not required to deliver an accounting to a person described in subsection (d)(2) through (d)(7) unless the person requests the accounting not later than nine (9) months after the date of the principal's death.

(3) The delivery deadline set forth in subsection (e) applies to a written request for an accounting that is timely submitted under subdivision (2).

Ind. Code § 30-5-6-4(f) (emphases added).

[7] David, as the personal representative of the Estate, qualifies as a person listed in subsection (d)(2) through (d)(7). The Estate acknowledges that “[i]t is undisputed that Curless died on October 4, 2021, and the Estate's request for a court-ordered accounting occurred well past nine months after Curless had died.” Appellant's Br. p. 12. Despite clear statutory language setting a nine-month time limit for requesting an accounting following the death of a principal, the Estate argues that its request for a court-ordered accounting should have been granted, claiming that it had the right to seek a court-ordered accounting “regardless of the nine-month provision found in [Indiana Code section] 30-5-6-4(f).” Appellant's Br. p. 12.

[8] The Estate alleged that Heather had breached her fiduciary duty to Curless and claims that his claims for breach of fiduciary duty were not time-barred. The statute of limitation for a breach-of-fiduciary-duty claim is two years. Krieg DeVault LLP v. WGT V, LLC, 206 N.E.3d 1171, 1181 (Ind. Ct. App. 2023), trans. denied. The Estate acknowledges that the request for an accounting did not occur within two years of Heather's alleged breach of her fiduciary duty. It asserts, however, that the claim was timely because of the Journey's Account Statute (“JAS”), which provides as follows:

(a) This section applies if a plaintiff commences an action and:

(1) the plaintiff fails in the action from any cause except negligence in the prosecution of the action;

(2) the action abates or is defeated by the death of a party; or

(3) a judgment is arrested or reversed on appeal.

(b) If subsection (a) applies, a new action may be brought not later than the later of:

(1) three (3) years after the date of the determination under subsection (a); or

(2) the last date an action could have been commenced under the statute of limitations governing the original action;

and be considered a continuation of the original action commenced by the plaintiff.

Ind. Code § 34-11-8-1. “[T]he [JAS] preserves only those claims that are ‘a continuation of the first’ action.” Cox v. Am. Aggregates Corp., 684 N.E.2d 193, 195 (Ind. 1997). A new action cannot be a continuation of a prior action unless both actions were brought by the same party. See Vesolowski v. Repay, 520 N.E.2d 433, 435 (Ind. 1988) (noting that claims brought by Suzanne, i.e., the victim of medical malpractice, in the first suit that was wrongfully filed in Illinois were timely under the JAS in the second Indiana suit but that the claims of her parents, which had not been included in the original lawsuit, were not, stating that Suzanne's claims had to be distinguished from those of her parents when considering whether the JAS applied).

[9] David's case was brought by David in his personal capacity. After we affirmed the trial court's determination that David did not have standing to bring his claims in an individual capacity, David moved to reopen the Estate and the Estate filed the Estate case. While David acted as the plaintiff in both lawsuits, David was acting in a different capacity in each. In David's case, he was acting in his personal capacity. In the Estate case, he was acting as the personal representative of the Estate.

[10] David's reliance on Eads v. Community Hospital, 932 N.E.2d 1239 (Ind. 2010), is misplaced because in Eads, both the timely underlying suit and the second untimely suit were brought by the same individual, in the same capacity, based on the same alleged harm. Here, we have the same alleged harm, but David is not acting in the same capacity in the Estate case as he was in David's case. Given that the two lawsuits have two different plaintiffs, the Estate's breach-of-fiduciary-duty claim was not a continuation of David's case for purposes of the JAS. The Estate case was not timely filed as it was filed outside of the two-year statute of limitations for breach-of-fiduciary-duty claims and outside the nine-month statutory period for requesting an accounting.

II. Appellate Attorney's Fees

[11] Todd and Heather argue that they should be awarded appellate attorney's fees, claiming that “[t]here is no reasonable question that the [JAS] does not apply” to the Estate's case and as a result of the Estate's meritless action, they “have been put to the unnecessary and unreasonable expense of defending a second appeal.” Appellee's Br. p. 22. With respect to appellate attorney's fees, Indiana

Appellate Rule of Procedure 66(E) provides that “[t]he Court may assess damages if an appeal ․ is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys’ fees.” (Emphasis added). We have previously concluded that our discretion to award attorney fees under Appellate Rule 66(E) is limited “to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay” and “we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). While ultimately unsuccessful, we cannot say that the Estate's appeal was permeated with meritlessness, bad faith, frivolity, harassment, or vexatiousness. We therefore deny Todd and Heather's request for appellate attorney's fees.

[12] The judgment of the trial court is affirmed.

FOOTNOTES

1.   The Estate does not challenge the trial court's order as it relates to the Estate's failure to state a claim for relief could be granted in relation to the annuities.

Bradford, Judge.

May, J., and Mathias, J., concur.