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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. ATTORNEYS FOR APPELLANT: G. MARTIN COLE RACHEL Y. OSTING Burt, Blee, Dixon, Sutton & Bloom, LLP Fort Wayne, Indiana ATTORNEYS FOR APPELLEE: GERALD M. MCNERNEY Butler, Indiana J. DANIEL BRINKERHOFF Brinkerhoff & Brinkerhoff Garrett, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
ILENE R. MAURER, Appellant-Plaintiff, vs. HERMAN MAURER, Appellee-Defendant. ) ) ) ) ) ) ) ) )

Sep 29 2008, 9:30 am

CLERK

No. 17A05-0804-CV-254

APPEAL FROM THE DEKALB SUPERIOR COURT The Honorable Monte L. Brown, Judge Cause Nos. 17D02-0709-PL-17

September 29, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Ilene Maurer appeals the trial court's Indiana Trial Rule 12(B)(6) dismissal of her complaint against Herman Maurer. Ilene raises five issues on appeal, which we consolidate and restate as two issues: (1) whether the trial court erred when it dismissed her intentional interference with expectance of inheritance claim; and (2) whether the trial court erred when it dismissed her Intentional Infliction of Emotional Distress ("IIED") claim. Concluding that although Ilene's claims are not barred by the necessity of bringing them as a will contest pursuant to Indiana Code section 29-1-7-17, she nonetheless has failed to sufficiently plead a claim for which relief may be granted, we affirm. Facts and Procedural History Ilene was born on March 24, 1980, to unmarried parents. A subsequent paternity action established Wilbur Maurer as Ilene's father. Wilbur is the brother of Herman, and the two men co-owned a family farm as tenants in common. Both Wilbur and Herman resided on the property in separate houses. On September 1, 1982, Wilbur executed his Last Will and Testament (the "Will"). After providing for the payment of outstanding debts,

administration expenses, funeral expenses, and taxes, the Will states, "I give, devise and bequeath all the rest and residue of my estate, including all my personal property and real estate wheresoever situated to my brother, Herman Maurer, as his sole and absolute property forever, if he shall survive me." Appellant's Appendix at 13. The Will makes no mention of Ilene. Wilbur did not revoke the Will nor did he execute any other wills or codicils. In October of 2005, Wilbur was diagnosed with pancreatic cancer. At some point thereafter, Ilene, with her two children, moved into Wilbur's home to care for him. Prior to his death, Wilbur expressed to Ilene his desire for her to inherit his one-half ownership in the

family farm including his house and his 1995 Ford F150 truck. Wilbur placed the title to the truck in an envelope and wrote Ilene's name on the envelope, but chose not to transfer title to Ilene at that time, because the truck was insured under Wilbur's insurance policy. Wilbur also informed Herman of his desire that Ilene would receive the truck as well as his one-half ownership of the farm. Herman promised Wilbur that he would take care of Ilene and ensure that she received the property in spite of the terms of the Will. Herman also communicated his understanding of Wilbur's wishes to Ilene and promised Ilene that he would honor Wilbur's wishes. Wilbur died on April 28, 2007. As of the time of this appeal, Herman has failed to honor his promises to Wilbur and Ilene and, pursuant to the terms of the Will, has retained possession and ownership of all of Wilbur's personal and real property. The Will was admitted to probate on May 23, 2007. On August 17, 2007, Ilene filed a petition to determine heirship against Wilbur's Estate and Herman. On September 6, 2007, in the same court but under a separate cause number, Ilene filed her complaint against Herman alleging intentional interference with expectancy of inheritance and IIED. On December 14, 2007, the Estate and Herman filed a motion to dismiss the petition for determination of heirship, and Herman filed a motion to dismiss the complaint. On March 4, 2008, the trial court separately issued findings of fact and conclusions of law on the petition to determine heirship and the complaint dismissing both. Ilene now appeals the dismissal of her complaint. 1 Discussion and Decision I. Standard of Review

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In reviewing a motion to dismiss pursuant to Indiana Trial Rule 12(B)(6), our standard of review is well settled. We will affirm the granting of a motion to dismiss if it is sustainable on any theory or basis found in the record. Hammons v. Jenkins-Griffith, 764 N.E.2d 303, 305 (Ind. Ct. App. 2002). A motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim, not the facts supporting it. Town of Plainfield v. Town of Avon, 757 N.E.2d 705, 710 (Ind. Ct. App. 2001), trans. denied. Therefore, we view the complaint in the light most favorable to the non-moving party, drawing every reasonable inference in favor of this party. Id. In reviewing a ruling on a motion to dismiss, we stand in the shoes of the trial court and must determine if the trial court erred in its application of the law. Id. The trial court's grant of the motion to dismiss is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id. Furthermore, in determining whether any facts will support the claim, we look only to the complaint and may not resort to any other evidence in the record. Id. II. Intentional Interference with Inheritance "One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to others for the loss of the inheritance or gift." Restatement (Second) of Torts

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