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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.

FILED
Apr 15 2009, 9:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANTS: MICHAEL C. KEATING YVETTE M. LAPLANTE Keating & LaPlante, LLP Evansville, Indiana

ATTORNEY FOR APPELLEE: ANDREW S. WARD Ward Law Office, LLC Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
VIRGINIA CHASE and THERESA L. COFFEE, Appellants-Respondents, vs. BERNARD F. MILLER, Personal Representative Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) )

No. 82A01-0809-CV-450

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Brett J. Niemeier, Judge The Honorable Renee Allen Ferguson, Magistrate Cause No. 82D07-0307-ES-365

April 15, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Virginia Chase and Theresa L. Coffee (hereinafter collectively referred to as Coffee) appeal the grant of a Petition for Relief Pursuant to Indiana Code 29-1-13-10 (Petition for Relief) filed by Bernard F. Miller, personal representative of the Estate of Jon K. Miller (hereinafter collectively referred to as the Estate), concerning the ownership of three parcels of real estate. Coffee presents the following restated issue for review: Did the trial court err in granting the Petition for Relief and denying Coffees motion to dismiss under Indiana Trial Rule 12 (B)(1) and (6) (Motion to Dismiss) without conducting an evidentiary hearing? We affirm. The relevant, undisputed facts are that on June 30, 1999, Jon Miller (the decedent) purchased three parcels of real estate in Vanderburgh County, Indiana. On September 13, 2001, an instrument entitled "Agreement and Declaration of Trust" (the Trust Agreement) was created, "by and between Jon K. Miller, as Grantors and Beneficiaries [sic], ... and Theresa L. Coffee ... (hereinafter referred to as the "Trustee[.]" Appellant's Appendix at 14. The document provided that "the persons named in the attached Exhibit ,,B are the Beneficiaries of this Trust". Id. Virginia Chase was the only name listed on the attached Exhibit B. On the signature page of the Trust Agreement, Chase signed as beneficiary and Coffee signed as "Trustee." Id. at 19. The decedent did not sign the instrument either as beneficiary or settlor, nor, it appears, was there even a place for him to sign in his indicated capacity of settlor. The Trust Agreement described the trust property as follows: Trust Property. The Beneficiaries are about to convey or cause to be conveyed to the Trustee by deed, absolute in form, the property described in the Attached Exhibit "A", which said property shall be held by the Trustee, in trust, for the following uses and purposes, under the terms of this Agreement and shall be hereinafter referred to as the "Trust Property."

Id. at 14. Exhibit A was a legal description of the decedents three parcels of real estate. On September 18, 2001, the decedent executed an instrument entitled "Warranty Deed to Trustee" (the Warranty Deed), which provided, in relevant part, as follows: The Grantor(s) Jon K. Miller of the County of Vanderburgh and the State of Indiana for and in consideration of 10.00 Dollars, and other good and valuable consideration in hand paid, conveys, grants, bargains, sells, aliens remises, releases, confirms and warrants under Provision of Section ___. Unto Theresa L. Coffee as Trustee and not personally under the provision of a trust agreement dated the thirteenth day of September, two thousand one (2001), known as Trust Number 7410, the following described real estate in the County of Vanderburgh, State of Indiana to wit: 7410 Telephone Road Evansville, Indiana 47715[.] Id. at 22. The deed was duly recorded. The decedent died, it appears, sometime in 2003.1 On July 10, 2006, the Estate filed its Petition for Relief pursuant to Ind. Code Ann.

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