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Regardless of the intent behind a notice that was served four days before a hearing — and one day before Christmas — the notice was not sufficient for an elderly Georgia resident to hire an attorney and travel to Indiana for a hearing on a disputed estate, the Court of Appeals of Indiana has ruled in reversing the denial of the woman’s motion for relief from judgment.
The case began in September 2015, with the death of Richard Abbott. His heir was Imogene Perry, who lived in Georgia.
After his death, Lauth Investigations International Inc. discovered that Abbott had unclaimed assets of about $52,150. Perry signed an agreement allowing Lauth to search for other heirs and to act as her power of attorney in its efforts to recover assets.
In June 2021, Lauth hired attorney Jane Mandla Mattingly to administer the estate, and she was named personal representative of the estate.
By Sept. 21, 2021, Mattingly had filed a claim in Abbott’s name to collect $52,150 in unclaimed funds held by the Indiana attorney general. After paying fees, Perry received $36,505 as Abbott’s heir.
But on Sept. 21, Michael and Phillip Brown filed a petition alleging they, and others, were Abbott’s maternal heirs and were thus entitled to a portion of the estate.
Mattingly subsequently asked the Hamilton Superior Court to order Perry to pay back half of the funds she had received from the estate so that those funds could be paid to the remaining heirs.
In January 2022, the trial court issued an order naming Abbott’s heirs and ordering Perry — who did not appear at a December 2021 hearing — to return all the funds she had received.
The hearing was held on Dec. 28, 2021. On Dec. 24, someone at Perry’s Georgia residence had signed a receipt of notice for a document regarding the motion for return of funds.
When Perry hadn’t returned the funds by the court’s deadline, the court reduced the full amount of $36,505 plus statutory interest to a judgment against her.
In April 2022, Perry moved to intervene in the administration, alleging she did not receive sufficient service. Her motion was granted, and she moved for relief from judgment.
The trial court vacated its order for return of funds and its judgment against Perry, but ultimately denied her motion for relief.
Perry appealed, and the merits of her appeal were at issue in Wednesday’s opinion in Imogene Perry v. Anne H. Poindexter, Personal Representative of the Supervised Estate of Richard Abbott, Janice Mandla Mattingly, Michael P. Brown and Phillip Brown, 22A-EU-2774.
The Court of Appeals ultimately determined Perry received inadequate notice of the December 2021 hearing.
“The notice here was served in a way that was not calculated to give Perry ample notice of the proceedings involving her or to allow her any time to prepare her defense to that motion,” Judge Melissa May wrote. “In fact, we conclude it was a mere gesture done in a manner intended to, at best, deny Perry her right to respond with twenty days under Indiana Trial Rule 6(C) and, at worst, catch Perry in a ‘gotcha’ moment intended to bring about a default judgment. Therefore, if the notice in question was notice of the Estate’s motion for return of funds, it was not sufficient under the Indiana Trial Rules.”
Likewise, if the Dec. 24, 2021, notice was intended to inform Perry of the Dec. 28 hearing, “the circumstances are equally problematic,” May wrote.
“Perry is an elderly woman with health problems who was, at the relevant time, domiciled in Georgia,” the judge wrote. “Notice was served to her just prior to a major holiday, that is, Christmas on December 25, 2021. While her ability to travel in an expedient manner is unknown, it was unreasonable to expect Perry to, at the very least, hire a lawyer and procure transportation to Indiana, in that short amount of time.
“Regardless of the nature of the notice,” May concluded, “Perry did not receive the time required by Indiana Trial Rule 6(C) to respond to anything involving the Estate’s motion for return of funds and thus the trial court erred when it denied her motion for relief from judgment.”
While Perry’s appeal has been pending, several other issues concerning and against Mattingly and Lauth have been litigated in the trial and appellate courts.
The case was thus remanded for the trial court to hold a hearing on all pending motions, including but not limited to the motion for return of funds and any motions concerning the fees paid to Mattingly and/or Lauth.
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