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In re Guardianship of Hurst

Court of Appeals of Indiana

October 10, 2017

In the Matter of the Guardianship of Nathaniel C. Hurst, A Minor,
v.
Nathaniel C. Hurst, Appellee-Plaintiff. Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst, Appellant-Defendant,

         Appeal from the Lake Superior Court The Honorable Nanette R. Raduenz, Special Judge Trial Court Cause No. 45D06-0404-GU-56

          ATTORNEY FOR APPELLANT Alissa Kohlhoff Kohlhoff Law P.C. Valparaiso, Indiana

          ATTORNEY FOR APPELLEE Rebecca L. Billick Billick Mediation & Family Law Valparaiso, Indiana

          Robb, Judge.

         Case Summary and Issue

         [¶1] Centier Bank ("Bank") appeals the trial court's denial of its motion for summary judgment in Nathaniel Hurst's action against it and Patrick and Michelle Hurst (the "Hursts"), wherein Nathaniel alleges he suffered damages as a result of fraudulent acts committed by the Bank during its administration of Nathaniel's mother's estate and by the Hursts during their guardianship of Nathaniel's estate. The Bank raises two issues for our review, which we consolidate and restate as whether the trial court erred in denying the Bank's motion for summary judgment. Concluding the trial court did not err, we affirm.

         Facts and Procedural History

         [¶2] In 2004, Luanne Hurst ("Mother"); her eight-year-old son, Nathaniel; and her boyfriend, Robert Suarez, lived in Mother's house in Lake County, Indiana. In March 2004, Mother passed away, leaving Nathaniel as her sole heir. Thereafter, Suarez was appointed personal representative of Mother's estate and guardian of Nathaniel's person; the Hursts, as Nathaniel's aunt and uncle, were appointed guardians of Nathaniel's estate.

         [¶3] In March 2005, the Hursts filed an accounting showing the value of Nathaniel's estate was approximately $72, 000.00. In November 2005, the Hursts moved the trial court to remove Suarez as personal representative of Mother's estate and to appoint the Bank, which the trial court granted. Thereafter, the Hursts and the Bank were represented by the same attorney and the administration of Mother's estate was unsupervised. In March 2006, the Bank evicted Suarez, and in turn, Nathaniel from Mother's house. The Bank filed an accompanying affidavit swearing the estimated value of Mother's real estate at the time was $94, 000.00. In November 2008, the Bank moved to close Mother's estate and filed a closing statement evidencing the liquidation of Mother's assets and payments made by the Bank on behalf of Mother. The closing statement details the Bank, in its capacity as personal representative, disbursed to itself approximately $57, 000.00 of Mother's assets; approximately $7, 000.00 to Patrick Hurst, individually; and approximately $1, 750.00 to the Hursts as guardians of Nathaniel's estate. A copy of the closing statement was sent to the Hursts, who did not object. On April 29, 2009, the trial court ordered Mother's estate closed.

         [¶4] On September 12, 2013, Nathaniel turned eighteen years old. On July 15, 2014, the Hursts filed a final report and accounting of Nathaniel's estate and petitioned the trial court to terminate their guardianship over the estate. The final accounting listed Nathaniel's assets at approximately $3, 000.00. Nathaniel filed an objection. Discovery ensued and on July 28, 2015, Nathaniel moved to join the Bank after learning the Bank may have "committed acts of negligence, fraud, inadequate disclosure, or misrepresentation." Brief of the Appellee at 13. Nathaniel also served the Bank with a summons. The trial court granted Nathaniel's motion and the Bank was joined as a party to the guardianship matter on August 6, 2015.

         [¶5] A week later, the Bank filed a Motion to Dismiss for Failure to File within Statute of Limitations, arguing Nathaniel's claims were barred by Indiana Code section 29-1-7.5-6's three-month statute of limitations or Indiana Code section 29-1-1-21's one-year statute of limitations and therefore Nathaniel's motion for joinder should be dismissed. Following a hearing, the trial court denied the Bank's motion without addressing the Bank's statute of limitations claims, reasoning the Bank was an indispensable party pursuant to Trial Rule 19. The Bank then filed a motion to correct error, which the trial court denied.

         [¶6] On March 23, 2016, Nathaniel filed a complaint for damages under this same cause number against the Hursts and the Bank, alleging the Hursts and the Bank committed fraud resulting in Nathaniel's low inheritance. On July 21, 2016, the Bank filed a second Motion to Dismiss for Failure to File within Statute of Limitations, raising the same arguments noted above. The trial court denied the motion. The Bank then filed what it titled a motion to correct error. Before addressing the merits of the Bank's arguments, the trial court noted it had treated the Bank's motion to dismiss as a motion for summary judgment and explained its order denying the Bank summary judgment was not a final appealable order. Therefore, the trial court also explained it was considering the Bank's motion to correct error as a motion to reconsider.[1] The trial court then denied the Bank's motion to reconsider. This appeal ensued.

         Discussion and Decision I. Timeliness of Appeal

         [¶7] We must first consider the timeliness of this appeal. Indiana Appellate Rule 9 provides that parties may initiate an appeal by filing a notice of appeal within thirty days after entry of an appealable order. Generally, the appealable order will be a final judgment. Ind. Appellate Rule 9(A)(1); In re D.J. v. Ind. Dep't of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017). However, not all orders must be final to be appealable, as Appellate Rule 14 allows a party to pursue an appeal of an interlocutory order as either a matter of right or discretion. Here, the Bank's notice of appeal indicates it is appealing from a final judgment, despite the fact a ruling denying a motion for summary judgment is not final, a fact the trial court explicitly made clear when ruling on the Bank's motion to reconsider. In addition, it does not appear the trial court's order denying the Bank summary judgment touches on any of the enumerated interlocutory orders set out in Appellate Rule 14(A) that allow an interlocutory appeal as a matter of right. Therefore, the Bank's appeal is a discretionary interlocutory appeal, which requires the trial court to certify the order for appeal and this court to accept jurisdiction over the appeal. App. R. 14(B)(1). Our review of the record reveals the Bank did not request the trial court certify any of its orders for interlocutory appeal and therefore the Bank's appeal is untimely.[2]

         [¶8] As our supreme court recently made clear, "the reviewing court is not deprived of jurisdiction if the notice of appeal is untimely - meaning belated or premature." D.J., 68 N.E.3d at 578. In those circumstances, the appellate court may choose to exercise its discretion and address the merits of a forfeited appeal despite the procedural default. Id. at 578-59; In re O.R., 16 N.E.3d 965, 971-72 (Ind. 2014). Every order, then, is in a sense appealable. Although Appellate Rule 14 and In re D.J. appear to be at odds, both are products of our supreme court, and we must assume the court was aware of the implications its decision in D.J. would have on Rule 14. Viewing the Appellate Rules through the lens of D.J. and O.R., the procedural rules are not immutable; they are guidelines. See App. R. 1 ("The Court may, upon the motion of a party or the Court's own motion, permit deviation from these Rules."). The Rules impose a ...


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