Opinion
20A-PL-1295
04-20-2021
Gregory J. Weinkauf, Appellant-Plaintiff, v. Jean Gleissner, as Personal Representative of the Estate of Joseph Weinkauf, Christopher Muller, Hannah Schleuder, et al., Appellees-Defendants
Appellant Pro Se Gregory J. Weinkauf South Bend, Indiana Attorneys for Appellees Michael A. Trippel Brandie N. Ecker Thorne Grodnik, LLP Mishawaka, Indiana
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.
Appeal from the St. Joseph Superior Court Trial Court Cause No. 71D06-1810-PL-000421 The Honorable David C. Chapleau, Judge
Appellant Pro Se Gregory J. Weinkauf South Bend, Indiana
Attorneys for Appellees Michael A. Trippel Brandie N. Ecker Thorne Grodnik, LLP Mishawaka, Indiana
MEMORANDUM DECISION
May, Judge.
[¶1] Gregory Weinkauf ("Gregory") appeals the trial court's denial of his motion to correct error in his challenge to the Last Will and Testament ("Will") of his father, Joseph Weinkauf ("Joseph"). Gregory argues the trial court erred when it granted summary judgment in favor of Jean Gleissner, as Personal Representative of the Estate of Joseph; Christopher Muller; Richard Muller; Hannah Schleuder; Heidi Schleuder; and Nathan Schleuder (collectively, "Appellees"). We affirm.
Facts and Procedural History
[¶2] Joseph was married to Veronica Weinkauf, and their marriage produced Gregory, Julie Stratton, and Beth Muller. Sometime in 1999, Joseph and Gregory became estranged. In 2012, Joseph and Veronica divorced. The nature of Joseph's relationship with Julie and Beth is not in the record before us and is not relevant to the matters on appeal.
[¶3] In 2013, Joseph retained Richard C. Currey to draft Joseph's Will. On May 29, 2013, Joseph executed his Will, which stated, in relevant part:
ITEM I
I am not married and my immediate family consists of my three children, Julie A. Stratton, Beth Muller, and Gregory J. Weinkauf. For reasons that are sufficient to me, I have intentionally failed to make any provision under this Will for any of my children or for any descendent of Gregory J. Weinkauf.
ITEM II
I give, devise and bequeath all of my property in equal shares to those of my following grandchildren who survive my death, namely: Nathan Schleuder, Hannah Schleuder, Heidi Schleuder, Richard T. Muller, and Christopher Muller. This distribution to my grandchildren shall be per capita and not per stirpes, it being my intent that my net estate be divided only among those of my above identified grandchildren who survive my death and that no distribution be made to the descendants of any such grandchild who fails to survive me.
ITEM III
I nominate my grandson, Nathan Schleuder, to serve as the sole Personal Representative of my Estate. If Nathan Schleuder is unable or unwilling to serve as such Personal Representative, then I nominate my niece, Jean Gleissner, to serve as the sole Personal Representative of my Estate.(Appellees' App. Vol. II at 5) (formatting in original). Joseph died on July 22, 2018.
[¶4] Sometime shortly following Joseph's death, Jean Gleissner submitted Joseph's Will to probate and was appointed Personal Representative thereof pursuant to the terms of Joseph's Will. On October 31, 2018, Gregory filed a complaint contesting the validity of Joseph's Will. In his complaint, Gregory alleged that Joseph's Will did not represent Joseph's intent, that Joseph was of "unsound mind" and "lacked testamentary capacity necessary to execute" the Will when he executed it in 2013, and that the Will was "invalid because it was executed as a result of undue influence exerted over the testator." (Id. at 2-3.) Appellees filed their answer on January 18, 2019.
[¶5] On November 27, 2019, Appellees filed their motion for summary judgment, arguing there were no genuine issues of material fact and the Will was properly executed and valid. On January 27, 2020, Gregory filed his response in opposition to Appellees' motion for summary judgment, which included affidavits from Gregory and Veronica. On January 28, 2020, the trial court granted Appellees permission to file a reply brief in support of their motion for summary judgment, and they did so on February 20, 2020.
[¶6] The trial court held two hearings on Appellees' motion for summary judgment on March 4, 2020, and May 6, 2020. On May 5, 2020, Gregory filed eleven pages of Joseph's medical records and the trial court reviewed those records during the May 6, 2020, hearing. On May 7, 2020, the trial court issued its order granting Appellees' motion for summary judgment.
The transcripts for these hearings were not included in the record, but the parties do not dispute what occurred.
[¶7] On June 8, 2020, Gregory filed a motion to correct error in which he provided a personal anecdote as argument that he and Joseph did not have a negative relationship that resulted in Joseph's decision to disinherit Gregory, as Appellees had argued throughout the proceedings. Appellees filed their response to Gregory's motion to correct error on June 9, 2020. The trial court denied Gregory's motion to correct error on June 10, 2020.
Discussion and Decision
[¶8] We note Gregory proceeds in this appeal pro se. A litigant is not given special consideration by virtue of his pro se status. Sidener v. State, 446 N.E.2d 965, 966 (Ind. 1983). Rather, "[i]t is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so." Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind.Ct.App. 2016) (internal citations omitted), reh'g denied.
Gregory makes several arguments regarding his displeasure with the attorney he hired to represent him before the trial court. These issues are not properly before us and we will not address them.
[¶9] We generally review a trial court's ruling on a motion to correct error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind.Ct.App. 2017). An abuse of discretion occurs if the trial court misinterpreted the law or if the court's ruling is against the facts and circumstances before it. Id. Our standard of review for appeal of a motion to correct error directs us to consider the underlying order, here the summary judgment for Appellees. See In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind.Ct.App. 2008) (review of motion to correct error includes review of underlying order). Gregory does not specifically challenge the trial court denial of his motion to correct; instead he argues the trial court erred when it granted summary judgment in favor of Appellees.
[¶10] We review summary judgment de novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all reasonable inferences in favor of the non-moving party, we will find summary judgment appropriate if the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting Indiana Trial Rule 56(C)) (internal citations omitted).
[¶11] The initial burden is on the summary-judgment movant to demonstrate there is no genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with evidence showing there is an issue for the trier of fact. Hughley, 15 N.E.3d at 1003. While the non-moving party has the burden on appeal of persuading us a summary judgment was erroneous, we carefully assess the trial court's decision to ensure the non-movant was not improperly denied his day in court. Id.
[¶12] Our summary judgment policies aim to protect a party's day in court. Id. While federal practice permits the moving party to merely show that the party carrying the burden of proof lacks evidence on a necessary element, we impose a more onerous burden - to affirmatively negate an opponent's claim. Id. That permits summary judgment to "be precluded by as little as a non-movant's 'mere designation of a self-serving affidavit.'" Id. (quoting Deuitch v. Fleming, 746 N.E.2d 993, 1000 (Ind.Ct.App. 2001), trans. denied). Summary judgment is not a summary trial, and it is not appropriate just because the non-movant appears unlikely to prevail at trial. Id. at 1003-04. We "consciously err[ ] on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Id. at 1004.
[¶13] In his contest of Joseph's will, Gregory alleged, in relevant part:
5. The probated Will does not represent the will and intent of the Decedent with respect to the disposition of his Estate.
6. At the time of the execution of the probated Will, the testator was of unsound mind.
7. At the time of the execution of the probated Will, the testator lacked the testamentary capacity necessary to execute the probated Will.
8. Upon information and belief, the probated Will is defective because of undue execution of the Will.
9. Upon information and belief, the probated Will is invalid because it was executed under duress or was obtained by fraud.
10. Upon information and belief, the probated Will is invalid because it was executed as a result of undue influence exerted over the testator.
11. The probated Will is subject to other valid objections, including the objection that the Will does not accurately express the true testamentary intent of the Decedent.(Appellees' App. Vol. II at 2-3.) Thus, the focus of the issue before the trial court was Joseph's condition when he executed his Will in 2013.
[¶14] In their memorandum in support of their motion for summary judgment, Appellees asserted there were no issues of material fact and they were entitled to judgment under the law because Gregory had presented no evidence "that the execution of the Will and Gregory Weinkauf's disinheritance was in any way improper." (Id. at 10.) In support thereof, Appellees designated portions of the answers to the interrogatories served upon Gregory and the affidavit tendered by Richard Currey, who prepared the Will in 2013.
[¶15] Currey stated in his affidavit that Joseph retained him "to draft estate planning documents" on Joseph's behalf in 2013. (Id. at 16.) Currey indicated he met with Joseph twice and both times Joseph "was not accompanied by any other person." (Id. at 17.) During those meetings, Currey stated Joseph "was able to identify and intelligently discuss the people who were the natural objects of his bounty" and could identify "the extent, nature and value of his property in considerable detail, and the accuracy of the information was subsequently confirmed after his death[.]" (Id.) Further, Currey averred that Joseph "discussed with [Currey] his reasons for disinheriting his children, including Gregory J. Weinkauf, and Mr. Weinkauf clearly believed that he had sufficient reason to disinherit them as a result of their estranged relationships" and that Joseph told Currey that "he had much better and less troubled relationships with his grandchildren[.]" (Id.) Finally, Currey stated Joseph "made it quite clear to [Currey] that he understood [this decision] would result in the disinheritance of those otherwise natural heirs to his property and that it was his intent to prevent them from receiving any portion of his property." (Id. at 18.)
[¶16] Additionally, Gregory indicated in his answers to Appellees' interrogatories that "additional discovery" would be provided regarding Joseph's "mental illness" and "emotional instability." (Id. at 21.) There is no evidence of such in the record. Regarding his relationship with Joseph "since January 1, 2000," Gregory answered:
Joseph aggressively, in his typical jealousy and mental illness, drove me away at the end of 1999. We were sharing a drive to Indianapolis, from which he would return, after dinner, to South Bend, and I would stay with a friend and his then-wife, and then fly back to Los Angeles. Joseph was extremely hostile, falsely accusatory, and offensive to me in the car, and rather than congratulating me on my exciting new job, he chose to do everything he could to try to tear me down: this was his pattern throughout life. Then we had to sit through dinner, with my friends, as if nothing bad happened. I wrote to Joseph shortly thereafter, and told him he'd have to explain himself and apologize, or communication would conclude. He chose to hold a grudge the rest of his life, despite my attempts to contact him. My father's illness was disclosed to me via email from Beth on March 20, 2017, after which I sent a collective email to my family members, requesting their presence in joining me to visit Joseph. All of them ignored my email except Heidi, who provided the diplomatic response, and Hannah, who actively shut me out [of] her visits to Joseph that year in June and September. Richie Muller and Beth joined me in my visit in July, 2017, and I visited in 2018.(Id. at 22.)
[¶17] In response to Appellees' motion for summary judgment, memorandum, and designated materials, Gregory filed a memorandum opposing summary judgment. He also filed an affidavit and the affidavit of his mother, Veronica. In his affidavit, Gregory stated, in support of his challenges to the validity of Joseph's will, that Gregory had observed "Joseph's mental condition and behavior through the years" and that Gregory did not believe Joseph had the "requisite ability to know the natural objects of his affection and the nature and extent of his property at the time of the execution of the purported Will." (Appellant's App. Vol. II at 10.) Gregory also indicated Joseph had "severe hearing difficulty, and in conversations he made up responses that were often inaccurate and out of context." (Id. at 9.) Gregory noted an alleged discrepancy on Joseph's tombstone to demonstrate Gleissner's undue influence on Joseph. Gregory mentioned an incident in November 2009 during which Joseph was arrested and taken to a facility for psychiatric treatment, where Joseph allegedly remained "at least through January 2011." (Id. at 10.) Gregory also recalled Joseph's behavior during Gregory's visits with him in May 2018, during which Joseph allegedly called some of his grandchildren by the incorrect names and displayed difficulty hearing. The language of Veronica's affidavit was virtually identical to that of Gregory's affidavit.
This document is not in the record.
[¶18] Relying on Hughley, Gregory essentially argues that we should hold the statements made in his affidavit and Veronica's affidavit create genuine issues of material fact. See Hughley, 15 N.E.3d at 1003 (self-serving affidavits create genuine issues of material fact). However, pursuant to Indiana Trial Rule 56(E), affidavits made in support or opposition of a motion for summary judgment "shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Here, while Gregory purported to have knowledge of Joseph's state of mind and intent in 2013 when Joseph made his will, Gregory's answers to Appellees' interrogatories indicate Gregory stopped communicating with Joseph in 2000 and did not see Joseph again until 2018. Similarly, Veronica and Joseph divorced in 2012, and Veronica did not state in her affidavit that she was in communication with Joseph in 2013 when Joseph made his will. Gregory admitted in his brief before this court that "until late July of 2018, after my father's death, [he] was not even aware that [Joseph] had an (alleged) will." (Br. of Appellant at 4) (emphasis in original). Therefore, neither Gregory nor Veronica had personal knowledge of Joseph's state of mind, intent, health, or state of duress (or lack thereof) at the time Joseph made his Will because neither Gregory nor Veronica was having personal communication with Joseph during this time.
[¶19] Because Gregory, by his own admission, did not have contact with Joseph at the time Joseph made his will in 2013, Gregory did not have personal knowledge of the allegations made in his affidavit regarding Joseph's health and state of mind in 2013. Currey averred Joseph discussed his estate planning in detail, knew whom he wanted to inherit his estate, knew what his estate contained, and knew the consequences of disinheriting Gregory and Gregory's siblings. Even if, as Gregory contends, "[t]he alleged will from 2013 is merely another tantrum . . . sparked by [Joseph's] childish rage for not receiving much Christmas cheer as his newly-ex-wife the previous December[, ]" (Br. of Appellant at 9), there is no evidence that Joseph was of unsound mind, that the Will was created under duress, or that the Will was a result of fraud. See Ind. Code § 29-1-7-17 (person may challenge the validity of will by alleging "unsoundness of mind of the testator[, ]" "undue execution of the will[, ]" or "that the will was executed under duress or was obtained by fraud"). Based thereon, the trial court did not err when it granted summary judgment because there was no genuine issue of material fact regarding the issues Gregory presented in his complaint for overturning the Will. See Donovan v. Hoosier Park, LLC, 84 N.E.3d 1198, 1210 (Ind.Ct.App. 2017) (summary judgment proper when there were no genuine issues of material fact).
Conclusion
[¶20] As the affidavits filed by Gregory and Veronica do not create genuine issues of material fact because they do not contain information within the personal knowledge of either Gregory or Veronica regarding Joseph's mental state or any alleged undue influence, duress, or fraud when Joseph executed his Will in 2013, the trial court did not err in granting Appellees' motion for summary judgment nor did it err in denying Gregory's motion to correct error.
Accordingly, we affirm the trial court's grant of summary judgment in favor of Appellees.
[¶21] Affirmed.
Bailey, J., and Robb, J., concur.