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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. ATTORNEY FOR APPELLANTS: MARK K. DUDLEY Howard DeLey & Dudley Anderson, Indiana ATTORNEYS FOR APPELLEES: THOMAS R. MALAPIT, JR. DAVID J. KARNES Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA
PHYLLIS WILSON, Personal Representative of the ESTATE OF VERLIE L. TUCKER, and ROBERT H. TUCKER, Appellants-Plaintiffs, vs. DEAN MEYERS and EDWARD D. JONES & COMPANY, L.P., Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 18A02-0609-CV-738

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Marianne Vorhees, Judge Cause No. 18C01-0604-CP-13

June 22, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAKER, Chief Judge

Appellants-plaintiffs Phyllis Wilson, as the personal representative of the Estate of Verlie L. Tucker (the Estate), and Robert Tucker (Robert) (collectively, the appellants) appeal from the trial court's grant of summary judgment in favor of appellees-defendants Dean Meyers and Edward D. Jones & Company, L.P. (Edward Jones) (collectively, the appellees). Specifically, the appellants argue that the trial court erred by concluding that their claims were barred because they should have brought them in a previous suit between these parties. Finding that the trial court properly concluded that the appellants' claims were precluded under the principle of res judicata, we affirm the judgment of the trial court. FACTS On October 30, 1992, Verlie purchased an annuity contract from Meyers 1 and designated her sister, Betty Stonecipher, as the annuity beneficiary upon Verlie's death. The annuity contract was issued by Hartford Life and Annuity Insurance Company (Hartford). On May 17, 1995, at the age of seventy-eight, Verlie was diagnosed with moderate to moderately severe Alzheimer's disease. In the fall of 1995, Meyers met with Verlie, Betty, and Ruth Brookman to discuss the annuity. Verlie told Meyers that she wanted Betty to remain the beneficiary of the annuity until Betty's death but that if Betty predeceased Verlie, Verlie wanted Ruth to become the beneficiary. Shortly thereafter, Meyers prepared an undated, unsigned letter addressed to Hartford and sent it to Verlie for her signature:

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At all times relevant to this action, Meyers was an employee of Edward Jones, a national investment brokerage firm with an office in Muncie.

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Please use this as authorization to change the beneficiary of my annuity. My sister, Betty Stonecipher has predeceased me just recently and I wish to change the beneficiary to Ruth E. Brookman. . . . Thank you for your attention to this matter. Any other questions my [sic] be directed to our representative, [Meyers]. Appellants' App. p. 65. A copy of the letter with Verlie's signature was returned to Meyers shortly thereafter (the Letter). Meyers placed a copy of the Letter in Verlie's file. Betty died in February 1996. On March 22, 1996, Meyers dated the signed Letter and mailed it to Hartford. On April 24, 1996, Suzanne Stonecipher--Betty's daughter--wrote a letter to Hartford requesting that Robert--Verlie's husband--be named the annuity beneficiary instead of Ruth. Specifically, Suzanne alleged that Verlie was not mentally capable of knowingly executing the Letter that named Ruth as the beneficiary. Verlie died on December 3, 1997. I. Original Litigation On September 14, 1998, Hartford filed an interpleader complaint (the original litigation) against Robert, Ruth, Suzanne, and Bertha Burnett 2 as the personal representative of the Estate (collectively, the Annuity Claimants). In its complaint, Hartford admitted that the annuity proceeds were due but stated that it was "uncertain as to whom it should pay the proceeds, and [Hartford] cannot pay over such proceeds, except under the direction of this court, without assuming the risk of multiple liability for such payment." Appellants' App. p. 27. Therefore, Hartford requested that it be allowed to deposit the annuity proceeds--

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Wilson became the personal representative of the Estate on July 6, 1999.

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$97,096.23 plus interest--with the clerk of the court pending the trial court's resolution of the case. On January 22, 1999, the trial court granted Hartford's request and dismissed Hartford from the original litigation. The litigation continued between the Annuity Claimants and on October 2, 2000, the appellants filed a counterclaim, crossclaim, and complaint for spoliation of evidence against Ruth, Hartford, and the appellees (the spoliation complaint). The spoliation complaint alleged that the authenticity of the Letter was the "primary issue" in the case but that Hartford and the appellees had advised Robert, Suzanne, and the Estate that the original copy of the Letter was no longer available. Id. at 61. Specifically, the appellants alleged that Ruth, Meyers, and/or Hartford had negligently or intentionally lost or destroyed the Letter and that their actions prejudiced the appellants because they could not have the Letter professionally examined to determine its authenticity. On May 30, 2001, the appellees filed a notice of discovery compliance and submitted a copy of the Letter, which had been found in another client's file. 3 On September 14, 2001, the appellees filed their motion for summary judgment. On March 22, 2001, Hartford filed a motion to dismiss the counterclaim against it. On October 12, 2001, the Estate filed a verified motion for change of judge, which resulted in the original litigation being assigned to the Honorable Peter D. Haviza on October 24, 2001.

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The appellants' complaint in the current litigation states that the letter produced on May 30, 2001, was a photocopy of the March 22, 1996, Letter "copied onto Edward Jones letterhead and to which a forged signature of Verlie L. Tucker was affixed." Appellants' App. p. 80.

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On February 8, 2002, the Estate filed a motion for summary judgment. A hearing was held on June 19, 2002, and the trial court took the matter under advisement. On August 12, 2002, the trial court entered summary judgment in favor of the Estate and ordered that the annuity proceeds be paid to the Estate. None of the parties filed a motion to correct error or appealed the trial court's summary judgment order; thus, the original litigation ended and the annuity proceeds were paid to the Estate. II. Current Litigation On September 27, 2002, the Estate filed a complaint (the current litigation) against the appellees, alleging fraud and civil violations of Indiana's Racketeer Influenced and Corrupt Organizations Act (RICO). 4 The appellants' complaint focuses on Meyers's alleged forgery of the Letter as an Edward Jones employee and argues that "as a direct result of the fraudulent acts of [the appellees]" the original litigation cost the Estate $29,250 and Tucker $14,618.75 in attorney fees and that the appellants are entitled to $500,000 in punitive damages, treble damages, and attorney fees related to the current litigation. Appellants' App. p. 80. On August 6, 2004, the appellants filed a motion to transfer documents from the original litigation to the current litigation's case file. A hearing was held on September 8, 2004, and the parties agreed to transfer various depositions and documents from the original litigation into evidence for the current litigation.

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Ind. Code

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