Preview
Filed: 5/13/2024 12:08 PM
St. Joseph Circuit Court
St. Joseph County, Indiana
STATE OF INDIANA ) IN THE ST. JOSEPH SUPERIOR COURT 7
) SS: Sitting in South Bend, Indiana
COUNTY OF ST. JOSEPH )
CELESTE ROCHE’, )
)
Plaintiff, )
)
v. ) CAUSE NO: 71D07-2402-PL-000028
) SPECIAL JUDGE JULIE VERHEYE
CHRISTOPHER POTTS, et al., )
)
Defendants. )
PLAINTIFF’S SURRESPONSE TO MOTION TO DISMISS
In 2001 Indiana’s Dead Man’s Statute was amended by SB 190. The bill provided that the
“dead man’s statute” does not apply: (1) in a proceeding to contest the validity of a will or a
proceeding to contest the validity of a trust; and (2) to a custodian or other qualified witness to the
extent the witness seeks to introduce evidence admissible under the hearsay exception for records
of a regularly conducted business activity. See I.C. §34-45-2-0.1 and P.L. 252-2001. The
legislature in 2001, added I.C. §34-45-2-4(b), and could not have been more clear. “This section 1
does not apply in a proceeding to contest the validity of a will or a proceeding to contest the validity
of a trust.” I.C. §34-45-2-4(b)(2023)(emphasis added.)
Judge Cichowicz and his counsel accuse Plaintiff’s counsel of misstating this law. Their
argument is Orwellian. 2 No matter how vigorously or often Judge Cichowicz states that the Dead
Man’s Statute (§34-45-2-4) applies to Will Contests and Trust Contests such as this one, the
Indiana State Legislature, since 2001, states the contrary. See I.C. §34-45-2-4(b) that states, “This
1
“section” refers to I.C. §34-45-2-4, in its entirety.
2
George Orwell used the idea of 2+2=5 in an essay of January 1939 in the Adelphi: “Review of Power: A New
Social Analysis by Bertrand Russell.” He was quoted as saying, “It is quite possible that we are descending into an
age in which two plus two will make five when the Leader says so.”
section does not apply in a proceeding to contest the validity of a will or a proceeding to contest
the validity of a Trust.” I.C. §34-45-2-4 (2023).
In support of his Orwellian argument, Judge Cichowicz cites Bergel v. Bergel[sic].
However, that case involved neither a Will Contest, nor a Trust Contest. Bergal v. Bergal, 153
N.E.3d 243(Ind.Ct.App. 2020). 3 None of the parties in the Bergal matter were seeking the
invalidation of a Will or Trust as Plaintiff is herein. In Bergal, wealthy Dr. Milton Bergal married
his fifth wife, Linda, and at the time created a Will that left everything to a trust that was separated
half to Linda and half to Dr. Milton’s son as primary beneficiary. Id. at 248. However, thereafter,
Dr. Milton succumbed to multiple conditions which affected his acumen and competency. Id.
During the period of Dr. Milton’s incompetency, but before his death, Linda, took the opportunity
to move all the assets to accounts wherein she was the sole beneficiary, effectively disinheriting
Dr. Milton’s son, who discovered Linda’s shenanigans only after Dr. Milton’s death. Id. Dr.
Milton’s son called Linda out on her actions at a posthumous meeting where Linda admitted that
Dr. Milton never meant to disinherit his son, and the parties agreed that Linda would restore the
trust assets, but Linda later reneged on the contract and Dr. Milton’s son sued Linda who thereafter
filed several counterclaims and crossclaims. Copies of David Bergal’s Complaint and Linda’s
Counterclaim/CrossClaim/Third Party Complaint are attached hereto, as is the Court of Appeals
opinion. (Exhibits A, B, C)
Neither Bergal sought to invalidate the Will or Trust. Thus, that is why the Appellate
Opinion never mentions I.C. §34-45-2-4(b). Herein, some of Judge Cichowicz’ actions, similar to
Linda’s shenanigans, are documented In The Matter of Jason Allen Cichowicz, Case Number
3
Referred to in Lexis as Bergal v. Sanders, 153 N.E.3d 243(Ind.Ct.App. 2020).
2
23S-JD-00033. But what is not similar is that no Will Contest or Trust Contest was brought in
Bergal.
Because an executor is a party defendant to a will contest, everything the decedent said or
did during his or her lifetime is admissible as non-hearsay under Ind. Evidence Rule 801(d)(2).
The executor is a necessary defendant to any will contest. Moll v. Goedeke, 25 N.E.2d 258
(Ind.Ct.App. 1940); I.C. 29-1-7-17 (“The executor and all other persons beneficially
interested in the will shall be made defendants to the action.”). The executor is charged in his
fiduciary capacity to defend the probated will. Hamilton v. Huntington, 58 N.E.2d 349 (Ind.
1944). This makes the plaintiff and the estate party opponents.
Pursuant to Evidence Rule 801(d)(2), “A statement is not hearsay if: The statement is
offered against a party and is (A) the party’s own statement, in either an individual or
representative capacity; …” This rule applies not only to statements, but also to opinions.
Beresford v. Starkey, 563 N.E.2d 116, 124 (Ind.App. 1990). The plaintiff does not have to show
that the decedent had personal knowledge of any facts. Miller, Courtroom Handbook on Evidence,
page 270 (2005 ed.), citing Blackburn v. UPS, 179 F.3d 81, 96 (3d Cir. 1999). Thus, when the
plaintiff’s attorney asks a witness (including the plaintiff) what the decedent said, his or her
statements are not hearsay. Hebel v. Conrail, 475 N.E.2d 652, 660-61, (Ind. 1985)
WHEREFORE, Plaintiff, Celeste Roche’, by counsel, respectfully requests that the Motion
to Dismiss filed by Judge Cichowicz on April 2, 2024, and joined by Jennifer Hudak on April 11,
2024, and Christopher Potts on April 17, 2024, be DENIED in all respects and for all other further
just and proper relief in the premises.
3
Respectfully submitted,
GLADISH LAW GROUP
/s/ Douglas K. Walker
Douglas K. Walker
Gladish Law Group
3235 – 45th Street
Highland, IN 46322
(219) 838-1900
doug@davidgladish.com
Attorney for Plaintiff
4
CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of May, 2024, I electronically filed the foregoing
document using the Indiana E-Filing System (IEFS). I also certify that on the 13th day of May,
2024, the foregoing document was served upon the following person(s) via IEFS or regular mail.
Sam S. Zabaneh
HINSHAW & CULBERTSON LLP
322 Indianapolis Boulevard, Suite 201
Schererville, IN 46375
szabaneh@hinshawlaw.com
Matthew R. Henderson
HINSHAW & CULBERTSON LLP
151 North Franklin Street, Suite 2500
Chicago, Illinois 60606
mhenderson@hinshawlaw.com
Matthew L. Pagano
HINSHAW & CULBERTSON LLP
5151 San Felipe, Suite 1380
Houston, Texas 77056
mpagano@hinshawlaw.com
James F. Groves
205 W. Jefferson Blvd.
Suite 511
South Bend, IN 46601
jimfgroves@aol.com
Alex C. Bowman
Krieg DeVault LLP
4101 Edison Lakes Parkway, Suite 100
Mishawaka, Indiana 46545
abowman@kdlegal.com
Charles Cartwright
15 Sleeper Street, Apt. 305
Boston, MA 02210
(Erin) Anne (Cartwright) Redhead
9 Rolling Ridge Court
Mount Kisco, NY 10549
/s/ Douglas K. Walker
Douglas K. Walker
5
Preview
Filed: 5/13/2024 12:08 PM St. Joseph Circuit Court St. Joseph County, Indiana STATE OF INDIANA ) IN THE ST. JOSEPH SUPERIOR COURT 7 ) SS: Sitting in South Bend, Indiana COUNTY OF ST. JOSEPH ) CELESTE ROCHE’, ) ) Plaintiff, ) ) v. ) CAUSE NO: 71D07-2402-PL-000028 ) SPECIAL JUDGE JULIE VERHEYE CHRISTOPHER POTTS, et al., ) ) Defendants. ) PLAINTIFF’S SURRESPONSE TO MOTION TO DISMISS In 2001 Indiana’s Dead Man’s Statute was amended by SB 190. The bill provided that the “dead man’s statute” does not apply: (1) in a proceeding to contest the validity of a will or a proceeding to contest the validity of a trust; and (2) to a custodian or other qualified witness to the extent the witness seeks to introduce evidence admissible under the hearsay exception for records of a regularly conducted business activity. See I.C. §34-45-2-0.1 and P.L. 252-2001. The legislature in 2001, added I.C. §34-45-2-4(b), and could not have been more clear. “This section 1 does not apply in a proceeding to contest the validity of a will or a proceeding to contest the validity of a trust.” I.C. §34-45-2-4(b)(2023)(emphasis added.) Judge Cichowicz and his counsel accuse Plaintiff’s counsel of misstating this law. Their argument is Orwellian. 2 No matter how vigorously or often Judge Cichowicz states that the Dead Man’s Statute (§34-45-2-4) applies to Will Contests and Trust Contests such as this one, the Indiana State Legislature, since 2001, states the contrary. See I.C. §34-45-2-4(b) that states, “This 1 “section” refers to I.C. §34-45-2-4, in its entirety. 2 George Orwell used the idea of 2+2=5 in an essay of January 1939 in the Adelphi: “Review of Power: A New Social Analysis by Bertrand Russell.” He was quoted as saying, “It is quite possible that we are descending into an age in which two plus two will make five when the Leader says so.” section does not apply in a proceeding to contest the validity of a will or a proceeding to contest the validity of a Trust.” I.C. §34-45-2-4 (2023). In support of his Orwellian argument, Judge Cichowicz cites Bergel v. Bergel[sic]. However, that case involved neither a Will Contest, nor a Trust Contest. Bergal v. Bergal, 153 N.E.3d 243(Ind.Ct.App. 2020). 3 None of the parties in the Bergal matter were seeking the invalidation of a Will or Trust as Plaintiff is herein. In Bergal, wealthy Dr. Milton Bergal married his fifth wife, Linda, and at the time created a Will that left everything to a trust that was separated half to Linda and half to Dr. Milton’s son as primary beneficiary. Id. at 248. However, thereafter, Dr. Milton succumbed to multiple conditions which affected his acumen and competency. Id. During the period of Dr. Milton’s incompetency, but before his death, Linda, took the opportunity to move all the assets to accounts wherein she was the sole beneficiary, effectively disinheriting Dr. Milton’s son, who discovered Linda’s shenanigans only after Dr. Milton’s death. Id. Dr. Milton’s son called Linda out on her actions at a posthumous meeting where Linda admitted that Dr. Milton never meant to disinherit his son, and the parties agreed that Linda would restore the trust assets, but Linda later reneged on the contract and Dr. Milton’s son sued Linda who thereafter filed several counterclaims and crossclaims. Copies of David Bergal’s Complaint and Linda’s Counterclaim/CrossClaim/Third Party Complaint are attached hereto, as is the Court of Appeals opinion. (Exhibits A, B, C) Neither Bergal sought to invalidate the Will or Trust. Thus, that is why the Appellate Opinion never mentions I.C. §34-45-2-4(b). Herein, some of Judge Cichowicz’ actions, similar to Linda’s shenanigans, are documented In The Matter of Jason Allen Cichowicz, Case Number 3 Referred to in Lexis as Bergal v. Sanders, 153 N.E.3d 243(Ind.Ct.App. 2020). 2 23S-JD-00033. But what is not similar is that no Will Contest or Trust Contest was brought in Bergal. Because an executor is a party defendant to a will contest, everything the decedent said or did during his or her lifetime is admissible as non-hearsay under Ind. Evidence Rule 801(d)(2). The executor is a necessary defendant to any will contest. Moll v. Goedeke, 25 N.E.2d 258 (Ind.Ct.App. 1940); I.C. 29-1-7-17 (“The executor and all other persons beneficially interested in the will shall be made defendants to the action.”). The executor is charged in his fiduciary capacity to defend the probated will. Hamilton v. Huntington, 58 N.E.2d 349 (Ind. 1944). This makes the plaintiff and the estate party opponents. Pursuant to Evidence Rule 801(d)(2), “A statement is not hearsay if: The statement is offered against a party and is (A) the party’s own statement, in either an individual or representative capacity; …” This rule applies not only to statements, but also to opinions. Beresford v. Starkey, 563 N.E.2d 116, 124 (Ind.App. 1990). The plaintiff does not have to show that the decedent had personal knowledge of any facts. Miller, Courtroom Handbook on Evidence, page 270 (2005 ed.), citing Blackburn v. UPS, 179 F.3d 81, 96 (3d Cir. 1999). Thus, when the plaintiff’s attorney asks a witness (including the plaintiff) what the decedent said, his or her statements are not hearsay. Hebel v. Conrail, 475 N.E.2d 652, 660-61, (Ind. 1985) WHEREFORE, Plaintiff, Celeste Roche’, by counsel, respectfully requests that the Motion to Dismiss filed by Judge Cichowicz on April 2, 2024, and joined by Jennifer Hudak on April 11, 2024, and Christopher Potts on April 17, 2024, be DENIED in all respects and for all other further just and proper relief in the premises. 3 Respectfully submitted, GLADISH LAW GROUP /s/ Douglas K. Walker Douglas K. Walker Gladish Law Group 3235 – 45th Street Highland, IN 46322 (219) 838-1900 doug@davidgladish.com Attorney for Plaintiff 4 CERTIFICATE OF SERVICE I hereby certify that on the 13th day of May, 2024, I electronically filed the foregoing document using the Indiana E-Filing System (IEFS). I also certify that on the 13th day of May, 2024, the foregoing document was served upon the following person(s) via IEFS or regular mail. Sam S. Zabaneh HINSHAW & CULBERTSON LLP 322 Indianapolis Boulevard, Suite 201 Schererville, IN 46375 szabaneh@hinshawlaw.com Matthew R. Henderson HINSHAW & CULBERTSON LLP 151 North Franklin Street, Suite 2500 Chicago, Illinois 60606 mhenderson@hinshawlaw.com Matthew L. Pagano HINSHAW & CULBERTSON LLP 5151 San Felipe, Suite 1380 Houston, Texas 77056 mpagano@hinshawlaw.com James F. Groves 205 W. Jefferson Blvd. Suite 511 South Bend, IN 46601 jimfgroves@aol.com Alex C. Bowman Krieg DeVault LLP 4101 Edison Lakes Parkway, Suite 100 Mishawaka, Indiana 46545 abowman@kdlegal.com Charles Cartwright 15 Sleeper Street, Apt. 305 Boston, MA 02210 (Erin) Anne (Cartwright) Redhead 9 Rolling Ridge Court Mount Kisco, NY 10549 /s/ Douglas K. Walker Douglas K. Walker 5