In Re the Estate of James E. Hurwich, Scott D. Hurwich v. Stacey R. MacDonald , 103 N.E.3d 1135 ( 2018 )


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  •                                                                               FILED
    May 30 2018, 8:50 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
    James M. Lewis                                            Timothy J. Maher
    Michael J. Hays                                           Barnes & Thornburg LLP
    Tuesley Hall Konopa LLP                                   South Bend, Indiana
    South Bend, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In Re the Estate of James E.                              May 30, 2018
    Hurwich,                                                  Court of Appeals Case No.
    71A04-1705-EU-990
    Scott D. Hurwich,                                         Appeal from the St. Joseph Probate
    Appellant-Plaintiff,                                      Court
    The Honorable Jeffrey L. Sanford,
    v.                                                Special Judge
    Probate Court Cause No.
    Stacey R. MacDonald,                                      71J01-0412-EU-56
    Appellee-Defendant
    Baker, Judge.
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018                             Page 1 of 11
    [1]   James Hurwich was the father of Scott Hurwich (“Hurwich”) and Stacey
    MacDonald. The Estate of James Hurwich (“the Estate”) was opened in 2004
    following his death. MacDonald administered the Estate until it closed in 2007.
    In 2013, Hurwich petitioned to reopen the Estate, which the probate court
    granted. In 2014, Hurwich filed a complaint against MacDonald, alleging that
    she had mismanaged the Estate’s assets and breached her fiduciary duties.
    MacDonald filed a motion to dismiss Hurwich’s complaint, which the probate
    court granted. Hurwich then filed a motion for leave to amend his complaint,
    which the probate court denied. Meanwhile, a successor personal
    representative administered the Estate, issued a final report, and requested
    closure of the Estate. The probate court then closed the Estate.
    [2]   Hurwich now appeals the probate court’s denial of his motion for leave to
    amend his complaint and the procedure the probate court followed when
    closing the Estate. Finding no reversible error regarding Hurwich’s motion but
    that the probate court failed to follow statutory procedure when closing the
    Estate, we affirm in part, reverse in part, and remand.
    Facts
    [3]   The Estate was opened in 2004. MacDonald was appointed administrator of
    the Estate, and she administered it unsupervised until it was closed in 2007.
    Apparently, MacDonald failed to distribute approximately 600 items and assets
    belonging to her father before the Estate was closed. On March 6, 2013,
    Hurwich petitioned to reopen the Estate; the probate court granted Hurwich’s
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018   Page 2 of 11
    petition. On June 18, 2013, the probate court appointed Paul Cholis as
    successor personal representative for the Estate. On October 3, 2014, Hurwich
    filed a complaint against MacDonald, under the Estate cause number EU-56,
    alleging that she had mismanaged the Estate’s assets and breached her fiduciary
    duties. On November 14, 2014, MacDonald filed a motion to dismiss
    Hurwich’s complaint under Indiana Trial Rule 12(B)(6), alleging that it had
    been untimely filed after the applicable statute of limitations had run. On June
    12, 2015, the probate court granted MacDonald’s motion and dismissed
    Hurwich’s complaint with prejudice.
    [4]   On June 22, 2015, Hurwich filed a motion to reconsider. On July 27, 2015, a
    hearing on the motion to reconsider took place, and the probate court took the
    issue under advisement. Then, on February 9, 2016, while the motion to
    reconsider was still pending, Hurwich filed a motion for leave to amend his
    complaint. In his proposed amended complaint, he alleged that MacDonald
    had committed fraud when, in closing the Estate, she represented that she had
    fully administered the Estate and properly distributed all assets; he also alleged
    that she had taken personal property from the Estate for her own use.
    [5]   On May 6, 2016, Cholis filed a petition for instructions for “recovery of assets
    formerly owned by the decedent or in his possession at the time of his death.”
    Appellant’s App. Vol. II p. 42. In this petition, Cholis:
    • Stated that MacDonald testified at her deposition that she had received
    gifts, including paintings, necklaces, diamond rings, and liquor bottles,
    from her father within five years of his death.
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018     Page 3 of 11
    • Stated that MacDonald “testified that she, as the former Personal
    Representative of the estate, did distribute to herself certain items of
    tangible personal property which [Cholis] believe[d] constituted partial
    distributions to her and which should be taken into account by charging
    her with the value of such items so distributed upon the final distribution
    of the remaining tangible personal property; . . .” Id. at 43.
    • Stated that there were “numerous items of tangible personal property”
    located at the decedent’s former residence that Cholis “believe[d] can and
    should be distributed among the three residuary beneficiaries of the
    estate” through an in-kind selection process and a public auction. Id.
    • Requested the probate court to direct him to not attempt to recover items
    of tangible personal property that MacDonald identified as gifts that she
    received from her father before his death. Cholis cited to time limits in
    the probate code for proceedings against personal representatives and to
    case law in which a petition to re-open an estate was time-barred.
    [6]   On June 24, 2016, Hurwich filed a response to Cholis’s petition in which
    Hurwich stated that the parties wanted instruction from the probate court about
    how to determine whether the items that MacDonald testified were gifts were
    actually gifts from their father or whether they were self-distributed items.
    Hurwich requested, among other things, that Cholis identify and catalog each
    of the individual items in question. Hurwich also argued that the issue was not
    time-barred.
    [7]   A hearing took place on July 27, 2016. On July 29, 2016, the probate court
    denied Hurwich’s motion for leave to amend his complaint, finding that
    Hurwich was not entitled to amend a complaint that had been properly
    dismissed pursuant to the statute of limitations for relief against fraud. The
    probate court also found that Hurwich’s complaint was not a valid cause of
    action because Hurwich filed it as part of the estate administration, rather than
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018     Page 4 of 11
    a separate cause of action, and therefore failed to pay a filing fee or have a
    summons issued. The probate court ordered for Hurwich and another
    beneficiary to have access to the decedent’s home for an in-kind selection
    process of the 600 items located there and for all assets not selected to be sold at
    a public auction. Lastly, the probate court ordered that Hurwich’s claim
    against MacDonald about gifts received before their father’s death was time-
    barred under the statute of limitations.
    [8]   Throughout the fall of 2016, Cholis distributed the Estate’s assets as ordered by
    the probate court. On March 10, 2017, Cholis filed a Supplemental Report of
    Distribution (“the Report”) in which he summarized the distribution of the
    Estate’s assets; listed the value of the assets that Hurwich, MacDonald, and
    another beneficiary received; requested that he be discharged as personal
    representative; and requested that the court order the Estate closed. That same
    day, the probate court approved the report and entered an order closing the
    Estate. On March 20, 2017, Cholis served a copy of the Report and the probate
    court’s signed order to Hurwich and other interested parties. On March 30,
    2017, Hurwich filed a motion to correct error, asking the probate court to
    vacate its order approving the Report because there was neither service nor an
    opportunity to object to the Report. On April 10, 2017, the probate court
    denied his motion. Hurwich now appeals.
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018      Page 5 of 11
    Discussion and Decision
    I. Motion for Leave to Amend Complaint
    [9]    Hurwich first argues that the probate court erred by denying his motion for
    leave to amend his complaint because he has a “right” to re-plead his claim
    pursuant to Trial Rule 12(B). Appellant’s Br. p. 11. The probate court denied
    Hurwich’s motion for leave to amend his complaint, finding that Hurwich’s
    claim of fraud in his proposed complaint was barred by the six-year statute of
    limitations for relief against fraud and that his complaint was not a valid cause
    of action. Hurwich argues that he has a right to amend under Indiana Trial
    Rule 12(B), that the probate court failed to consider his proposed allegation of
    fraudulent concealment that could toll the statute of limitations, and that the
    probate court misconstrued the nature of his complaint. MacDonald argues
    that Hurwich’s action was time-barred under the probate code and that
    Hurwich did not file a valid action. Although we reach the same outcome as
    the probate court, we disagree with the probate court’s and the parties’ analysis.
    [10]   Indiana Trial Rule 12(B)(6) allows a party to move to dismiss a pleading for
    failure to state a claim upon which relief can be granted. Trial Rule 12(B) also
    provides that when a court dismisses a pleading under Rule 12(B)(6), “the
    pleading may be amended once as of right pursuant to Rule 15(A) within ten
    [10] days after service of notice of the court’s order sustaining the motion and
    thereafter with permission of the court pursuant to such rule.” Under Trial
    Rule 15(A), “[a] party may amend his pleading once as a matter of course at
    any time before a responsive pleading is served . . . . Otherwise a party may
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018    Page 6 of 11
    amend his pleading only by leave of court or by written consent of the adverse
    party; and leave shall be given when justice so requires.” To facilitate decisions
    on the merits, “the Indiana Trial Rules generally implement a policy of liberal
    amendment of pleadings, absent prejudice to an opponent.” Kimberlin v.
    DeLong, 
    637 N.E.2d 121
    , 128 (Ind. 1994). The probate court has broad
    discretion in granting or denying amendments to the pleadings, and we will
    reverse only if the probate court’s decision is clearly against the logic and effect
    of the facts and circumstances before it or the reasonable deductions to be
    drawn therefrom. Kuehl v. Hoyle, 
    746 N.E.2d 104
    , 107 (Ind. Ct. App. 2001).
    [11]   According to Hurwich, Trial Rule 12(B) gives him the right to amend his
    complaint. However, Hurwich ignores the part of the rule that limits when a
    pleading may be amended as of right—it must be done within ten days after
    service of notice of the court’s order granting the motion to dismiss. Hurwich
    filed his motion for leave to amend his complaint on February 9, 2016, nearly
    eight months after the probate court granted MacDonald’s motion to dismiss.
    Accordingly, when Hurwich filed his motion for leave to amend his complaint,
    he had no automatic right to do so. And although a court may, under Rules
    12(B) and 15(A), allow a party to amend a pleading after those ten days have
    passed, the court is required to do so only “when justice so requires.” T.R.
    15(A). Hurwich did not argue that justice required an amendment, and we
    decline to make the argument for him. The probate court did not err by
    denying his motion for leave to amend his complaint.
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018      Page 7 of 11
    [12]   Hurwich also challenges the probate court’s decision to dismiss his motion with
    prejudice, arguing that a Trial Rule 12(B)(6) dismissal should be without
    prejudice. Hurwich is correct that a dismissal under this rule “is without
    prejudice, since the complaining party remains able to file an amended
    complaint within the parameters of the rule.” In re Scott David Hurwich 1986
    Irrevocable Tr., 
    59 N.E.3d 977
    , 984 (Ind. Ct. App. 2016) (citations and internal
    quotation marks omitted). Thus, the probate court erred by dismissing his
    complaint with prejudice. But a dismissal with prejudice is a final judgment, id.
    at 980, and the time to appeal a final judgment is within thirty days after its
    entry is noted in the Chronological Case Summary. Ind. Appellate Rule
    9(A)(1). The probate court dismissed Hurwich’s complaint with prejudice on
    June 12, 2015. Hurwich did not appeal that decision until he filed his notice of
    appeal on May 9, 2017, nearly two years after the dismissal of his complaint.
    His challenge to the probate court’s decision is untimely and unavailing.
    II. The Report
    [13]   Hurwich next argues that the probate court erred by denying him his statutory
    right to object to the Report. Our primary goal in statutory construction is to
    ascertain and give effect to the intent of the legislature. Meyer v. Beta Tau House
    Corp., 
    31 N.E.3d 501
    , 513 (Ind. Ct. App. 2015). We apply a de novo standard
    of review to questions of statutory interpretation. 
    Id.
    [14]   Indiana’s Probate Code provides that when an estate is ready to be closed, the
    personal representative must “render a final account and at the same time
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018     Page 8 of 11
    petition the court to decree the final distribution of the estate.” 
    Ind. Code § 29
    -
    1-17-2(a) (2007). “Upon the filing of any account in a decedent’s estate, hearing
    and notice thereof shall be had as set forth in this section.” I.C. § 29-1-16-6(a)
    (emphases added). The statute explains that
    If the account is for final settlement the court or clerk shall set a
    date by which all objections to such final account and petition for
    distribution must be filed in writing and the clerk shall give notice
    to all persons entitled to share in the final distribution of said
    estate that a final report has been filed and will be acted upon by
    the court on the date set unless written objections are presented
    to the court on or before that date. The personal representative
    shall at the time said account is filed furnish to the clerk the
    names and addresses of all persons entitled to share in the
    distribution of the residue of said estate, whose names and
    addresses are known to the personal representative or may by
    reasonable diligence be ascertained as set forth in the personal
    representative's petition for distribution, together with sufficient
    copies of said notice prepared for mailing. The clerk shall send a
    copy of said notice by ordinary mail to each of said parties at
    least fourteen (14) days prior to such date. . . .
    I.C. § 29-1-16-6(b) (emphases added).
    [15]   Hurwich argues that the probate court erred by denying him an opportunity to
    object to the Report. The probate code explicitly mandates notice following the
    filing of any account. It requires that, following the filing of an account for final
    settlement, the personal representative give to the clerk the names and addresses
    of those entitled to share in the distribution of the estate and copies of notice
    prepared for mailing. It also requires that, when an account for final settlement
    is filed, the court or the clerk set a timeframe for objections and give notice to
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018       Page 9 of 11
    those entitled to share in the distribution of the estate that a final report has
    been filed and that the court will act upon it on a certain date unless the court
    receives written objections within the stated timeframe. Here, it is undisputed
    that Hurwich is entitled to share in the distribution of the Estate, that Cholis
    knew Hurwich’s name to furnish to the clerk for notice, and that Cholis did not
    fulfill his duties to ensure that notice was given regarding the Report. It is also
    undisputed that neither the probate court nor the clerk set a timeframe for
    objections or gave notice about the Report or the timeframe for objections. In
    other words, the probate court failed to follow proper statutory procedure when
    closing the Estate.
    [16]   MacDonald suggests that this error was harmless and not prejudicial because
    Hurwich had an opportunity to be heard before and during the July 27, 2016,
    hearing. It is true that Hurwich filed a written objection to Cholis’s petition for
    instructions before that hearing. But whether Hurwich objected to those
    instructions has no bearing on and is irrelevant to whether he had an
    opportunity to object to the Report, which was filed more than seven months
    later, on March 10, 2017. The probate code explicitly requires notice and an
    opportunity for objections to accounts for final settlements. Among other
    things, the Report leaves questions about how the assets that MacDonald
    distributed to herself were administered.1 Hurwich had a statutory right to
    1
    Cholis filed a petition for instructions on May 6, 2016. In this petition, he stated that MacDonald “testified
    that she, as the former Personal Representative of the estate, did distribute to herself certain items of tangible
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018                               Page 10 of 11
    receive notice of the filing of the Report and an opportunity to object to it, and
    he was denied this right. As it is apparent that he had reason to object, we find
    that he was harmed by the probate court’s failure to follow the procedure
    described in the probate code.
    [17]   We reverse the closure of the Estate and remand for further proceedings giving
    Hurwich the opportunity to object to the Report.
    [18]   The judgment of the probate court is affirmed in part, reversed in part, and
    remanded for further proceedings.
    Kirsch, J., and Bradford, J., concur.
    personal property which the [successor personal representative] believes constituted partial distributions to
    her and which should be taken into account by charging her with the value of such items so distributed upon
    the final distribution of the remaining tangible personal property; . . .” Appellant’s App. Vol. II p. 43. In
    other words, Cholis concluded that MacDonald had improperly distributed certain assets from the Estate and
    intended to take that distribution into account during the administration of the Estate. However, it is unclear
    from the Report whether MacDonald’s partial distributions to herself were, in fact, accounted for.
    Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018                            Page 11 of 11
    

Document Info

Docket Number: 71A04-1705-EU-990

Citation Numbers: 103 N.E.3d 1135

Judges: Baker

Filed Date: 5/30/2018

Precedential Status: Precedential

Modified Date: 10/19/2024