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 j udicata, collateral estoppel, or the law of the case.

ATTORNEY S FOR APPELLANT S : ATTORNEY S FOR APPELLEE S THOMAS PRICE II, KARI MOORE, KAY PRICE,
WILLIAM W. KNOWLES FIRST FRIENDS CHURCH, and
JENNIFER WINNETT DENNISTON EARLHAM COLLEGE : Knowles & Associates, P.C. Carmel, Indiana CURTIS E. SHIRLEY

I ndianapolis, Indiana

ROBERT M. OAKLEY Dilley & Oakley, P.C. P HILIP C. THRASHER Carmel, Indiana Thrasher Buschmann & Voelkel, P.C. Indianapolis, Indiana

DAVID J. BURTON Richmond, Indiana ATTORNEY FOR APPELLEE

BARBARA MONAHAN :

BRADLEY J. DOUGHERTY Indianapolis, Indiana



## IN THE
COURT OF APPEALS OF INDIANA

DEMARIS SNYDER WEHR, TIMOTHY JOHN ) SNYDER, TERENCE GLEN SNYDER, and ) DANIEL OWEN SNYDER, ) ) Appellant s

- Plaintiffs, ) )

vs. ) No. 89A04

- 1202

- PL

- 76 ) THOMAS PRICE II, individually a nd as the named ) executor of the estate of Nilah Snyder, THOMAS ) PRICE II, as trustee of the Nilah Snyder Trust, ) BARBARA MONAHAN, KARI MOORE, ) THOMAS PRICE II, KAY PRICE, FIRST ) FRIENDS CHURCH, and EARLHAM COLLEGE, ) ) Appellee s

- Defendants. )2 A PPEAL FROM THE WAYNE SUPERIOR COURT

The Honorable Gregory A. Horn , Judge

Cause No. 89D02

- 1102

- PL

- 10

December 31, 2012

MEMORANDUM DECISION

- NOT FOR PUBLICATION

CRONE, Judge

Case Summary

Orval Snyder and his wife Nilah signed reciprocal wills th at left the residuary estate of

the first spouse to die to the surviving spouse, with the surviving spouse’s residuary estate to

be distributed equally among their seven children from prior marriages. Orval died first, and

his residuary estate was distrib uted to Nilah. After Orval’s death, Nilah transferred assets to

a trust for which she had named her three children and First Friends Church and Earlham

College as beneficiaries. When Nilah died, her probate estate had no assets. Orval’s four

children su ed the trust beneficiaries for breach of contract and tortious interference with an

inheritance. The beneficiaries filed a motion for judgment on the pleadings . The trial court

granted the motion, concluding that the beneficiaries had not breached any co ntract or

tortiously interfered with any inheritance.

On appeal, Orval’s children assert that the trial court erred in granting the

beneficiaries’ motion for judgment on the pleadings. Finding no error, we affirm.3 Facts and Procedural History

The releva nt facts are undisputed. 1 Orval and Nilah were married in 1973. They had

no children together. Orval had four children from a prior marriage: Demaris Snyder Wehr,

Timothy Snyder, Terence Snyder, and Daniel Snyder (collectively, “Appellants”) . Nilah ha d

three children from a prior marriage: Thomas Price II, Barbara Monahan, and Philip Price,

who is deceased.

In January 1985, Orval and Nilah signed reciprocal wills, which provide that when the

first spouse dies , the residue of the estate is to be distr ibuted to the surviving spouse. After

the death of the surviving spouse, the residue of that spouse’s estate is to be distributed

equally among the seven children and stepchildren. The wills also contain a provision stating

that the testator and the test ator’s spouse had “made Wills containing certain mutual

provisions in favor of each other and in favor of [their] respective children with the

understanding and upon the condition that neither of [them] will revoke such provisions nor

make any changes ther ein without the written consent of the other.” Appellees’ App. at 26,

29. Orval’s will names Nilah as the executrix, and Nilah’s will names Thomas Price II as the

executor.

Orval died in April 1993, and his will was probated

. T he residuary estate was

d istributed to Nilah pursuant to the terms of the will. After Orval’s death, Nilah transferred

assets to the Nilah Snyder Trust, which had been created on the same date that the wills were

signed

. Thomas Price II is the trustee of Nilah’s trust. Nilah di ed in September 2010 . Her

1 Our factual recitation is based primarily on the trial cour t’s excellent findings.4

will was probated

, but no estate was ever opened and no personal representative was ever

appointed. Nilah’s probate estate had no assets after expenses.

On February 23, 2011, Appellants filed a complaint against Thomas Price II

( individually and as the named executor of Nilah’s estate and the trustee of Nilah’s trust ),

B arbara Monahan, Kay Price (Philip’s widow), Kari Moore (Philip’s adopted daughter), First

Friends Church

, and Earlham College (collectively, “Appellees”). App ellees are the named

beneficiaries of Nilah’s trust. On March 7, 2011, Appellants filed a two

- count amended

complaint, to which they attached Orval’s and Nilah’s wills. The first count is entitled

“BREACH OF CONTRACT” and reads in pertinent part as follo ws:

6. Nilah Snyder was contractually bound to comply with the plan for the distribution of assets set forth in her reciprocal Will.

7. Following the death of Orval Snyder, Nilah Snyder transferred property to the Nilah Snyder Trust, thereby altering the plan for the distribution of assets at her death and breaching her obligation to Orval to dispose of the property in the manner set forth in her reciprocal Will dated January 29th, 1985.

8. Nilah Snyder ’s action with respect to said property defeated the contractual plan for the distribution of assets which constitutes a breach of the contract not to change the plan for the distribution of assets, between Nilah Snyder and her late husband, Orval Snyder.

9. The Plaintiffs herein, as third party beneficiari es of the contract between Nilah Snyder and Orval Snyder, have been damaged by Nilah Snyder’s Breach in that they have been denied their respective share of the assets which were the subject of said contract.

Appellees’ App. at 16, 17. 2

2 In its order, the trial court noted that Appellants had received $520,040 of non

- probate property after
Orval’ s death. Appellants’ App. at 18 (finding 9).5

The second count is entitled “TORTIOUS INTERFERENCE WITH

INHERITANCE” and reads in pertinent part as follows:

1. An expectancy of Inheritance was created when the Plaintiffs were

named as beneficiaries of the Last Will and Testaments of Nilah and Orval Snyder dated January 29th, 1985.

2. As a result of the intentional transfer of property into the Nilah Snyder Trust, the Plaintiffs were prevented from receiving their expected

inheritance.

3. The intentional transfer of assets to the Nilah Snyder Trust constitutes

tortious conduct because:

a) Nilah Snyder, as executrix of the Orval Snyder Estate, had a fiduciary duty to the Plaintiffs, who were named beneficiaries of Orval and Nilah Snyder’s reciprocal Wills.

b) Nilah Snyder received assets at the death of Orval Snyder,

w hich she subsequently transferred to the Nilah Snyder Trust, as a result of her confidential relationship with her husband, Orval Snyder.

c) The transfer of assets to the trustee of the Nilah Snyder Trust constitutes a breach of fiduciary duty and an abus e of a confidential relationship.

4. The aforementioned tortious conduct caused the loss of the Plaintiffs’ expected inheritance.

Id . at 18.

Appellees filed a motion for judgment on the pleadings pursuant to Indiana Trial Rule

12(C)

, and Appellants file d a response. After a hearing, on January 23, 2012, the trial court

issued an order granting Appellees’ motion that contains extensive findings and conclusions,

including the following trenchant observation:6 Plaintiffs have not alleged that any of the na med Defendants breached
any contract, tortio usly interfered with any inheritance, or breached any fiduciary duty. If, as Plaintiffs contend, Plaintiffs were damaged by Nilah accepting an inheritance from Orval and, then, transferring that inheritance to

h er trust, the complaint should have been timely filed as a claim in Nilah’s estate. Instead, Plaintiffs have chosen to file suit against a group of Defendants who have performed no wrongful acts.

Appellants’ App. at 22 (conclusion 18). This appeal ensue d. 3

Discussion and Decision

Appellants contend that the trial court erred in granting Appellees’ motion for

judgment on the pleadings. It is well settled that

a motion for judgment on the pleadings pursuant to Rule 12(C) attacks the lega l sufficiency of the pleadings. The test to be applied when ruling on a Rule 12(C) motion is whether, in the light most favorable to the non

- moving party and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim. In applyi ng this test, we may look only at the pleadings, with all well

- pleaded material facts alleged in the complaint taken as admitted, supplemented by any facts of which the court will take judicial notice. The standard of review is de novo, and we will affirm the trial

court’ s grant of a Rule 12(C) motion for judgment on the pleadings when it is clear from the face of the pleadings that one of the parties cannot in any way succeed under the operative facts and allegations made therein.

Fox Dev., Inc. v. Engla nd , 837 N.E.2d 161, 165 (Ind. Ct. App. 2005) (citations omitted).

At the outset, we must express our frustration with Appellants’ failure to include in

their appendix a copy of either the pleadings or the filings related to Appellees’ motio n for

judgment on the pleadings, in violation of Indiana Appellate Rule 50 (A)

. See Ind. Appellate

3 In a footnote in their brief, Appellees state that they “moved to dism iss the appeal for multiple reasons, which the motions panel denied. We here incorporate our motion to dismiss and ask the Court to reconsider the motions panel decision and dismiss the appeal.” Appellee s ’ Br. at 2 n.2. We decline Appellees’ request bec ause, as we have said before, a party “may not incorporate argument from another source by
reference.” Dave’s Excavating, Inc. v. City of New Castle , 959 N.E.2d 369, 376 (Ind. Ct. App. 2012) (citing Oxley v. Lenn , 819 N.E.2d 851, 856 n.2 (Ind. Ct. App. 20 04))

, trans. denied

.7

Rule 50(A)(2)(f) (stating that an appellant’s appendix “ shall contain ... pleadings and other

documents from the Clerk’s Record in chronological order that are necessary for resolution

of the issues raised on appeal”) (emphasis added) . If Appellees had not included these

documents in their appendix, it would have been extremely difficult, if not impossible, to

review Appellants’ claims of error regarding the trial court’s rul ing on the legal sufficiency

of their pleadings. 4

Regarding the breach of contract claim, Appellants correctly observe that “an intended

third

- party beneficiary may directly enforce a contract.” Appellants’ Br. at 6 (citing, inter

alia

, Mogensen v. Martz , 441 N.E.2d 34, 35 (Ind. Ct. App. 1982)). That said, Appellants cite

no authority for the proposition that a third

- party beneficiary may enforce a contract against

anyone other than a party or a privy to the contract. Cf

. Guraly v. Tenta , 125 Ind. App. 527,

533, 132 N.E.2d 725, 727 (1956) (“ Specific performance can not be enforced against one

who is neither a party nor privy to the contract and on whom it is not binding, or by whom no

duty under the contract has been assumed. ”)

, trans. denied ; Alexander v. Dowell , 669 N.E.2d

436, 440 (Ind. Ct. App. 1996) (quoting Guraly )

. Appellees are neither parties nor privies to

any contract between Orval and Nilah

, but merely fellow third

- party beneficiaries.

Moreover, Nilah complied with her agreement not to revok e her will , and t o the extent her

transfer of assets to her trust may have been contrary to the intent of the reciprocal wills,

Appellees are simply not the proper parties to answer for it.

4 W e note that Appellees’ appendix contains a copy of the transcript of the hearing on their motion for judgment on the pleadings, in violation of Indiana Appellate Rule 50 (F)

. See Ind. Appellate Rule 50(F) (“ Because the Transcript i s transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix. ”).8

As for the tortious interference and breach of fiduciary duty cla ims , Appellants make

no cognizable argument s in their initial brief. Consequently , any issue s regarding these

claims are waived

. See Kelly v. Levandoski , 825 N.E.2d 850, 857 n.2 (Ind. Ct. App. 2005)

(“[A]ny argument an appellant fails to raise in his ini tial brief is waived for appeal.”)

, trans.

denied

. 5 In sum, we affirm the trial court’s grant of Appellees’ motion for judgment on the

pleadings.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.

5 Appellants also make some vague references to fraud, but their complaint contains no specific averments of fraud, as is required by Indiana Trial Rule 9(B).