Opinion
23A-MI-2440
05-09-2024
Carolyn Kruckeberg, Appellant-Plaintiff v. Darrell R. Tillson, Appellee-Defendant
ATTORNEYS FOR APPELLANT Malak C. Mercho Tarek E. Mercho Matthew R. Strzynski Mercho Strzynski LLP Indianapolis, Indiana. ATTORNEY FOR APPELLEE Suzan Dillon Myers Winchester, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Randolph Circuit Court The Honorable Jay L. Toney, Judge Trial Court Cause No. 68C01-2002-MI-77.
ATTORNEYS FOR APPELLANT Malak C. Mercho Tarek E. Mercho Matthew R. Strzynski Mercho Strzynski LLP Indianapolis, Indiana.
ATTORNEY FOR APPELLEE Suzan Dillon Myers Winchester, Indiana.
Bailey and Pyle, Judges concur.
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] This action involves a dispute between siblings Carolyn Kruckeberg (Carolyn) and Darrell R. Tillson (Darrell) over how Darrell-whom their father, Robert Tillson (Robert), appointed as his attorney-in-fact-managed Robert's farms, real estate, and bank accounts. Carolyn filed a complaint against Darrell alleging that, as Robert's attorney-in-fact, Darrell committed self-dealing, breached his fiduciary duty, and acted in bad faith, and Carolyn sought damages. As the case progressed, Carolyn also sought to expand the scope of discovery. The trial court, however, limited discovery to the timeframe in which Darrell served as Robert's attorney-in-fact. The case then proceeded to a bench trial, after which the trial court issued an order ruling in Darrell's favor on all counts.
[¶2] Carolyn appeals that order, claiming that the trial court erred in determining that Darrell did not commit self-dealing, did not breach his fiduciary duty, and did not act in bad faith in managing their father's assets. She also claims that the trial court erred by limiting the scope of her discovery. We disagree and affirm.
Facts and Procedural History
[¶3] On February 5, 1976, the Estate of Harry L. Smith (Harry) transferred a life estate in two parcels of real estate located in Randolph County to Harry's sonin-law, Robert, and to his daughter, Robert's wife, Marjorie Lea Tillson (Marjorie). The parcels were to be held jointly during Robert's and Marjorie's lifetimes. The parcels consisted of eighty acres of farmland (the Homeplace Farm), and 77.28 acres of pasture, woods, and farmland (the West Farm). Pursuant to Harry's estate plan, after Robert's and Marjorie's deaths, the Homeplace Farm and the West Farm would pass in fee simple to their three children, Carolyn, Sharon Tillson (Sharon), and Darrell, as tenants in common-that is, each sibling would hold a one-third interest in each farm.
[¶4] The Homeplace Farm and the West Farm each contained a home. At some point, Robert and Marjorie, as well as Carolyn and Darrell, agreed to survey and partition the home that was located on the West Farm (the West Farm House) and deed all interest in that home to Sharon. Sharon and her husband lived in the West Farm House from around 1978 until 1987, when she and her husband moved to Ohio. When Sharon lived in the West Farm House, Darrell used some of the woods and pasture land located on the property to raise cows. In 1993, Robert and Marjorie purchased the West Farm House from Sharon, and Sharon transferred her interest in the home to her parents.
By contrast, the home located on the Homeplace Farm was not partitioned as a separate property.
[¶5] Also in 1993, Darrell purchased from Sharon her right to inherit a one-third interest in the West Farm and the West Farm House. Around that time, Darrell and Robert were farming the West Farm together, and they agreed that Darrell would pay Robert cash rent for Robert's use of one-third of the total tillable acreage, and Darrell would receive two-thirds of the total crops raised on the farm.
[¶6] In 2009, the West Farm House was rented to Shane and Stormie Hall (collectively the Halls) for $350.00 per month. At the time that the events leading to the instant action occurred, the Halls were still renting the West Farm House.
[¶7] On May 6, 2010, Robert executed a general durable power of attorney (the POA), effective immediately, that (1) appointed Darrell his attorney-in-fact, and (2) authorized Darrell to act on Robert's behalf concerning real and tangible property transactions, banking, business and fiduciary transactions, and "all other possible matters and affairs affect[ing] property owned by [Robert]." Appellant's App. Vol. 2 at 14. The POA provided that the authority conferred upon Darrell was "in no way . . . intended to limit or restrict [Robert's] own authority or decision[-]making capabilities covering such powers and authority as long as [Robert] remain[ed] mentally competent." Id. at 13. And the POA contained an exoneration clause that read:
My attorney-in-fact is hereby released and forever discharged from any and all liability and from all claims or demands of all kinds whatsoever by me or my heirs, legatees, successors, assigns, personal representatives, or estate arising out of the acts or omissions of my attorney-in-fact, except for willful misconduct or gross negligence.Id. at 17.
[¶8] When Robert executed the POA, he lived alone in the house located on the Homeplace Farm (the Homeplace House) and was looking after himself. Robert's wife, Marjorie, had been living in a nursing home since suffering a stroke in 2002.
[¶9] During the summer of 2010, Robert sought legal advice from his attorney regarding qualifying Marjorie for Medicaid and protecting his assets in the event he needed nursing home care in the future. Upon counsel's advice, Robert, that same year, transferred ownership of his money market account (the Money Market Account) to Darrell. Marjorie qualified for Medicaid in the fall of 2010. She died in August 2011.
The record does not include the balance for the Money Market Account at the time Robert transferred the account to Darrell. However, as of December 31, 2015, the account had a balance of $135,210.53.
[¶10] On December 25, 2013, Robert suffered a stroke. After three weeks of rehabilitation, he moved into an assisted living facility because he had experienced balance issues and was at risk of falling. The Homeplace House was left vacant.
[¶11] In the spring of 2014, Andrew Tillson (Andrew), Darrell's son and Robert's grandson, expressed interest in purchasing the Homeplace Farm (including the Homeplace House). Robert was amenable to the idea. That summer, Darrell, Carolyn, and Sharon met with an attorney regarding selling the Homeplace Farm to Andrew. Darrell paid the costs to have the property surveyed and appraised. However, Carolyn and Sharon decided that they did not want to sell the Homeplace Farm while Robert was alive. Andrew then met with Robert to discuss renting the Homeplace Farm and "what [Robert] wanted in return for rent[.]" Tr. Vol. 2 at 150. Robert agreed that instead of paying monthly rent, Andrew would clean the Homeplace House, make improvements and repairs, and pay the utilities. During the seven years that Andrew and his family lived at the Homeplace Farm, Andrew invested over $19,000.00 in the house.
[¶12] Robert died on April 2, 2018, and his life estate in the two farms and the West Farm House passed to his three children. At the time of his death, Carolyn owned a one-third interest in all three properties, Sharon owned a one-third interest in the Homeplace Farm, and Darrell owned a one-third interest in the Homeplace Farm and a two-thirds interest in the West Farm and the West Farm House, having purchased Sharon's future interest in the West Farm properties in 1993.
[¶13] On May 16, 2018, Carolyn received a typewritten document from Darrell informing her that, prior to Robert's death, Darrell had contracted with Robert to cash rent the two farms for the 2018 crop year at a rate of $175.00 per acre. Regarding the Homeplace Farm, the document provided that:
On March 5, 2018, a farming contract was signed between [Robert] and Darrell . . . for the 2018 crop year. The contract is for 76.76 acres of farm ground [on the Homeplace Farm]. The contract is for $175.00 per acre, with a total sum of $13,433.00.
The rent is to be paid in two installments. The first on June 1 for $6,000.00; the second on December 1 for $7,433.00. Ex. Vol. 3 at 16. As for the West Farm, the document provided that:
Also on March 5, 2018, a farming contract was signed between [Robert] and Darrell . . . for the 2018 crop year. The contract is for 21.8 acres of farm ground [on the West Farm]. The contract is for $175.00 per acre, with a total sum of $3,825.00. The rent is to be paid in two installments. The first on June 1 for $1,825.00; the second payment on December 1 for $2,000.00.Id. The document further provided: "These contracts are legal and binding and should be honored." Id. However, the document was signed only by Darrell.
[¶14] Later in 2018, Darrell sent a typewritten letter to Carolyn regarding a savings account (Savings Account) that Robert had at the time of his death. Darrell signed the letter but did not date it. Robert also had a separate checking account (Checking Account) at the time of his death.
[¶15] After Robert's death, Darrell closed the Savings and Checking Accounts and deposited the funds, approximately $11,000.00, into the Money Market Account that Robert had transferred to Darrell in 2010. In June 2018, Darrell deposited into the Money Market Account between $30,000.00 and $35,000.00-the yield received after he liquidated a certificate of deposit (CD) that Robert had owned. Darrell had intended to divide the Money Market Account funds among himself and his sisters "if [he and his sisters could] ever get things settled up[.]" Tr. Vol. 2 at 84. However, he had not done so based upon the advice of his counsel-after Carolyn had filed her complaint-and because he thought that he would need the funds to pay certain legal, bank, and tax expenses. Darrell did not open an estate after Robert's death because Darrell determined that Robert's assets did not exceed $50,000.00. Instead, Darrell executed an affidavit for the transfer of personal property, that is, a small estate affidavit, according to Indiana Code Section 29-1-8-1, and named himself and his sisters as persons entitled to a share of Robert's property. See Ex. Vol. 3 at 71.
As of November 30, 2018, the Money Market Account had a balance of $184,383.74.
Indiana Code Section 29-1-8-1, applicable to estates having a gross value of $50,000.00 or less, provides that, forty-five days after the death of a decedent, one indebted to the decedent or having property belonging to the decedent, may make payment to an heir of the decedent, pursuant to an affidavit complying with certain statutory requirements.
[¶16] Darrell paid the real estate taxes and insurance expenses for the three parcels of real estate-the Homeplace Farm, the West Farm, and the West Farm House- out of the Money Market Account. He paid Carolyn and Sharon the cash rent that he owed them for farming the Homeplace Farm and the West Farm during the 2018 crop year, according to each sister's one-third interest in the farms. In June 2018, Darrell mailed a check to Carolyn for the sum of $4,495.00 for her share of the cash rent. He sent a separate check to Carolyn in January 2019 for $2,982.00, representing Carolyn's share of the cash rent less her share of real estate taxes and insurance owed on the farmland and the buildings located on the land. Both checks were written from the Money Market Account.
[¶17] On January 31, 2020, Carolyn filed a complaint against Darrell alleging that, as Robert's attorney-in-fact, Darrell committed self-dealing, breached his fiduciary duty, and acted in bad faith by: (1) cash renting the two farms at below market value, (2) allowing his son, Andrew, to live in the Homeplace House rent-free, (3) failing to raise the rent that the Halls paid to live in the West Farm House, (4) failing to pay rent for using the West Farm barn and pasture to raise cows, and (5) using the funds in the Money Market Account for his benefit. Carolyn sought damages.
[¶18] On July 2, 2020, Carolyn filed a motion for the production of documents, seeking an order from the trial court directing Darrell to provide her with any fiduciary tax filings that existed, as well as the bank statements for the Money Market, Savings, and Checking Accounts. Darrell filed an objection and a motion to strike Carolyn's motion. He sought to have Carolyn's discovery requests limited to the time between May 6, 2010 (the effective date of the POA), and April 2, 2018 (Robert's death). On July 30, 2020, the trial court issued an order granting Darrell's motion to strike and limiting Carolyn's scope of discovery to the foregoing dates.
[¶19] A bench trial was held on April 25, 2023. The parties submitted proposed findings and conclusions at the trial court's request. On September 18, 2023, the court issued an order denying "each and every count of self-dealing, breach of fiduciary duty and bad faith" and determining that Carolyn was not entitled to an award of damages or attorney fees. Appealed Order at 12. In relevant part, the court concluded:
10. There was no bad faith self-dealing by Darrell .. for not paying a higher [cash] rent as Attorney-in-fact, and no damages or attorney fees should be awarded. 23. .. Darrell .. did not act as Attorney-in-fact [regarding
Andrew living in the Homeplace House rent-free], did not exert undue influence, allowed Robert .. to make the decision without the Attorney-in-fact's involvement, the [POA contained an] exoneration clause[,] and ... Andrew['s] .. repairs/improvements [to the Homeplace House] benefitted all of the remainderman....
36. Darrell['s] . conduct in handling the [West Farm] residence rental and the use of the barn and wooded acreage is not a breach of fiduciary duty or self-dealing..
42. Darrell . always considered the [Money Market A]ccount to be his father's money, and his intent is to divide the money between him and his sisters once all the issues regarding this litigation and resolution of the real estate operation are concluded.
43. Darrell . has never used the [Money Market Account] funds for his own purposes, and the bank account records submitted do not show checks written for Darrell['s] . behalf[.]
Appealed Order at 8-12 (citations omitted). This appeal ensued.
Discussion and Decision
[¶20] Where, as here, the trial court asks the parties to submit proposed findings and then enters findings of fact and conclusions on its own motion, "the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found." Apter v. Ross, 781 N.E.2d 744, 751 (Ind.Ct.App. 2003), trans. denied. "The specific findings will not be set aside unless they are clearly erroneous, and we will affirm the general judgment on any legal theory supported by the evidence." Id. "A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it." Id. A judgment is clearly erroneous if it relies on an incorrect legal standard. Buse v. Trs. of Luce Twp. Reg'l Sewer Dist., 953 N.E.2d 519, 523 (Ind.Ct.App. 2011).
[¶21] "In reviewing the trial court's findings, we neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we consider only the evidence and reasonable inferences drawn therefrom that support the finding." Apter, 781 N.E.2d at 751 (citation omitted). While we defer substantially to a trial court's findings of fact, we do not do so to conclusions of law. Buse, 953 N.E.2d at 523. "We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions." Id. (quoting McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App. 2010), trans. denied (2011)). "In other words, '[a] decision is clearly erroneous if it is clearly against the logic and effect of the facts and circumstances that were before the trial court' or if the court misinterprets the law." Id. (quoting Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008)).
[¶22] Carolyn raises four issues for our review. The first three issues concern Darrell's role as Robert's attorney-in-fact under the POA. The final issue concerns the trial court's order striking Carolyn's motion for the production of documents and limiting the scope of her discovery.
[¶23] The POA at issue here was signed by Robert in May 2010 and appointed Darrell as his attorney-in-fact in the event of his disability or incapacity. A power of attorney creates a fiduciary relationship between a principal and his agent, or attorney-in-fact. In re Est. of Compton, 919 N.E.2d 1181, 1186 (Ind.Ct.App. 2010), trans. denied. The Indiana Power of Attorney Act requires an attorney-in-fact to use due care for the benefit of the principal and to act in a fiduciary capacity. See Ind. Code §§ 30-5-6-2, -3.
[¶24] Regarding the liabilities of an attorney-in-fact, Indiana Code Section 30-5-9-2 provides:
(a) An attorney in fact who acts with due care for the benefit of the principal is not liable or limited only because the attorney in fact:
(1) also benefits from the act;
(2) has individual or conflicting interests in relation to the property, care, or affairs of the principal; or
(3) acts in a different manner with respect to the principal's and the attorney in fact's individual interests.
(b) A gift, bequest, transfer, or transaction is not presumed to be valid or invalid if the gift, bequest, transfer, or transaction:
(1) is: (A) made by the principal taking action; and (B) not made by an attorney in fact acting for the principal under a power of attorney; and (2) benefits the principal's attorney in fact. In Estate of Compton, we held that
[a] presumption of undue influence is now conditioned upon the attorney in fact's actual use of the power of attorney to effect the questioned transaction for his or her benefit. The benefiting attorney in fact is freed from the presumption of undue influence so long as the power of attorney is unused [(that is, the attorney in fact does not sign on the principal's behalf)] in the questioned transaction.919 N.E.2d at 1187.
Section 1. The trial court did not clearly err in concluding that Darrell did not act in bad faith or commit self-dealing when he cash-rented the Homeplace Farm and the West Farm at $175.00 per acre.
[¶25] Carolyn first argues that the trial court erred by ruling that Darrell's cash rental of the farms "without a signed contract, and for significantly less than fair market value was appropriate." Appellant's Br. at 17. She maintains that Darrell, as Robert's attorney-in-fact, committed self-dealing by cash-renting the Homeplace Farm and the West Farm at $175.00 per acre, a rate Carolyn considered to be below market value. However, we find that Darrell was not acting as Robert's attorney-in-fact when he and Robert negotiated the cash-rent price for the farms.
[¶26] The evidence of record established that Robert and Darrell had enjoyed a long standing farming relationship and had been farming together for more than thirty-five years before the execution of the POA. At the bench trial, Darrell testified that he had been cash-renting the farms from Robert at least "by 2010, [and] probably before that[.]" Tr. Vol. 2 at 78. Darrell also testified that he paid Robert the same amount in cash rent that he paid to the owners of other farmland that he leased, despite Robert telling Darrell that "he didn't even want as much [cash rent] as [Darrell] was giving him." Id. at 75. Darrell introduced into evidence a farm lease agreement, signed by both Darrell and Robert, for the crop years 2014 through 2016 under which Darrell agreed to pay Robert $15,000.00 per year to lease the farms. Darrell also introduced into evidence a document purporting to show that he and Robert had entered into "legal and binding" contracts for the 2018 crop year under which Darrell agreed to pay Robert $175.00 per acre to farm the two farms. Ex. Vol. 3 at 16. As previously noted, only Darrell signed the document. However, this is inconsequential and does not affect our analysis. Darrell was not acting as Robert's attorney-in-fact when the cash-rent rate was negotiated, and Robert, as the owner of a life estate in the farms, was free to negotiate any cash-rent rate whatsoever.
[¶27] Furthermore, we note that Carolyn did not allege that Darrell unduly influenced Robert, and Robert was never declared disabled or incapacitated. Rather, the record shows that Robert lived alone at the Homeplace Farm and was looking after himself until his stroke in 2013. Testimony was presented that, after Robert moved to the assisted-living facility, he was still capable of making his own decisions, was of sound mind, and was "[v]ery much interested in what was going on." Tr. Vol. 2. at 106. Robert did not become unable to handle his affairs until approximately three weeks before his death.
[¶28] The trial court concluded that there was "no bad faith self-dealing by Darrell . . . for not paying a higher rent" to lease the farms. Appealed Order at 8. We find that the trial court's conclusion is not clearly erroneous.
Carolyn also argues that "after Robert's passing, the farming operation has only been beneficial to Darrell"; the "real estate taxes and insurance [for the farms] have been paid with estate funds"; Darrell has "only had to pay one-third ... of the farm rent [for the West Farm] (Carolyn'spro rata share)"; and Darrell has "made only one single distribution to Carolyn [for her share of the farm rent]." Appellant's Br. at 18 (emphases added). However, we decline to address these arguments because they pertain to transactions that occurred after Robert's death and that are outside of Darrell's capacity as Robert's attorney-in-fact.
Section 2. The trial court did not clearly err by concluding that Darrell did not commit self-dealing or breach his fiduciary duty by allowing Andrew to live in the Homeplace House rent-free.
[¶29] Next, Carolyn argues that Darrell committed self-dealing and breached his fiduciary duty by "allowing" Andrew to live in the Homeplace House rent-free. Appellant's Br. at 18. In support of her argument, Carolyn relies on In re Supervised Est. of Scholz, 859 N.E.2d 731 (Ind.Ct.App. 2007). In Scholz, a brother (Brother) and his mother (Mother) reached an agreement while Mother was alive that Brother would pay her $4,000.00 per year to rent her farmland, which was far below the fair market value of approximately $12,000.00 per year at the time of Mother's death. After Mother died, Brother was named her personal representative, and he received a life estate in the farmland and continued to pay only $4,000.00 in rent. After one of Brother's two sisters objected to the arrangement, the trial court found that the arrangement was improper. This Court agreed, concluding in relevant part that Brother had engaged in self-dealing, and Brother was precluded from entering into the arrangement "for his own benefit based upon the consent of himself and one [sister] when that arrangement [was] to the detriment of [the other sister's] interest." Id. at 737.
[¶30] However, Carolyn's reliance on Scholz is misplaced. In Scholz, Brother was acting as personal representative of Mother's estate when he continued to pay a below-market rate to rent the farmland. Here, by contrast, Robert was alive when the deal was struck for Andrew to live in the Homeplace House rent-free, in exchange for Andrew making improvements to the house, and Darrell was not acting as Robert's attorney-in-fact when the agreement was reached. In fact, Darrell was not involved in the negotiations at all.
[¶31] Andrew met with Robert and discussed the terms of Andrew renting the Homeplace House. Robert agreed that instead of paying monthly rent, Andrew would clean the house, make improvements and repairs, and pay the utilities. Darrell was not present for the meeting, did not give Andrew permission to rent the home, did not influence Robert's decision regarding the renting of the home, and, as previously noted, was not acting as Robert's attorney-in-fact when the agreement between Robert and Andrew was reached. Moreover, the trial court concluded that Andrew living at the Homeplace Farm and investing in the property's home "benefited all of the remainderm[e]n by preserving the value of the home and preventing significant damage from occurring[.]" Appealed Order at 9. The trial court did not err in rejecting Carolyn's claim that Darrell committed self-dealing and breached his fiduciary duty by allowing Andrew to live in the Homeplace House rent-free.
Section 3. The trial court did not clearly err by concluding that Darrell did not commit self-dealing or breach his fiduciary duty regarding his management of the Money Market Account, the Savings and Checking Accounts, and the CD.
[¶32] Carolyn also argues that Robert's transfer of the Money Market Account to Darrell-upon the advice of counsel and for purposes of Medicaid planning- and Darrell's subsequent deposit of other funds owned by Robert into the Money Market Account constituted self-dealing on Darrell's part and a breach of Darrell's fiduciary duty. Essentially, Carolyn asks this Court to find that Darrell appropriated Robert's money, commingled Robert's money with his own, and used the money for his own benefit. We decline to do so.
[¶33] The evidence of record established that Robert and Darrell met with Robert's legal counsel and, upon the advice of counsel, Robert initiated the transfer of ownership of his Money Market Account to Darrell for purposes of qualifying Marjorie for Medicaid and to protect Robert's assets should he need nursing home care in the future. Darrell was not acting as Robert's attorney-in-fact when the transfer occurred. No evidence was presented, and we reiterate that Carolyn did not allege, that Darrell improperly influenced Robert to make the transfer. Darrell testified that, although the Money Market Account was legally his, he considered the account to be Robert's money. He further testified that he used the funds from the account to pay "[t]axes and insurance" for the farms and the structures on the farms, to pay Robert's bills, and to purchase Robert's personal hygiene supplies and his medicine. Tr. Vol. 2 at 113. Darrell also testified that he intended to divide the Money Market Account funds among himself and his sisters once the litigation of Carolyn's complaint had concluded. Based on the foregoing, we conclude that the trial court properly found that Darrell did not commit self-dealing or breach his fiduciary duty regarding the Money Market Account.
Section 4. The trial court did not abuse its discretion in striking Carolyn's motion for the production of documents and limiting the scope of her discovery.
[¶34] Finally, we address whether the trial court erred by striking Carolyn's motion for the production of documents and limiting the scope of her discovery.
A trial court has broad discretion in ruling upon discovery issues, and we will interfere only where an abuse of discretion is apparent. [Brown v. Dobbs, 691 N.E.2d 907, 909 (Ind.Ct.App. 1998)]. An abuse of discretion occurs only where the trial court's decision is against the logic and natural inferences to be drawn
from the facts of the case. Id. Due to the fact-sensitive nature of discovery matters, a trial court's ruling is cloaked with a strong presumption of correctness on appeal. Id.Riggin v. Rea Riggin &Sons, Inc., 738 N.E.2d 292, 308 (Ind.Ct.App. 2000).
[¶35] Carolyn argues that the trial court erred when it "prohibited production of documents concerning Darrell's management, expenses, and financial distributions of Robert's real and personal property both before the power of attorney and after Robert's lifetime." Appellant's Br. at 20 (emphasis added). Carolyn maintains that "[t]hese issues are at the crux" of her case. Id. She further argues that because "an estate was never opened [upon Robert's death], [she] was not able to review any accounting from Darrell regarding Robert's financial accounts, Darrell's farming operations, and the rent-free occupation of Robert's home." Id.
[¶36] However, Carolyn's complaint shows that she sought damages based on allegations that Darrell acted in bad faith, committed self-dealing, and breached his fiduciary duty in his capacity as Robert's attorney-in-fact. The documentation she sought was not relevant to the issues raised in the complaint. The trial court determined that Carolyn's motion for the production of documents should be limited to the "time[-]frame that the Power of Attorney was in effect." Appellant's App. Vol. 2 at 31. We conclude that the trial court did not err in reaching its determination. Therefore, the trial court did not abuse its discretion by striking Carolyn's motion for the production of documents and limiting the scope of her discovery.
To the extent that Carolyn argues that Darrell's "behavior and control of [Robert's] assets was akin to that of a personal representative[,]" that Darrell mismanaged Robert's assets after Robert's death, and that Darrell should have opened an estate upon Robert's death and requested to be appointed as the personal representative of the estate, Appellant's Brief at 15, we find that such claims are outside the scope of this appeal. Carolyn did not raise the claims in her complaint, and, contrary to Carolyn's assertions, said claims were not tried by implied consent during the bench trial. While it is true that Indiana Trial Rule 15(B) permits issues not raised by the pleadings to be tried by the express or implied consent of the parties, to find that an issue was tried by consent, the parties must have had some notice that the issue was before the court, and both parties must actually litigate the new issue. See Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind.Ct.App. 2014). Furthermore, a new issue may not be interjected under the pretense that the evidence was relevant to some properly pleaded matter. Id. Here, Carolyn's claims concerning the way in which Robert's estate was handled were not litigated at the bench trial. Thus, the claims were not tried by implied consent.
[¶37] Affirmed.
Bailey, J., and Pyle, J., concur.