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In re Estate of Hurwich

Court of Appeals of Indiana

May 30, 2018

In Re the Estate of James E. Hurwich,
v.
Stacey R. MacDonald, Appellee-Defendant Scott D. Hurwich, Appellant-Plaintiff,

          Appeal from the St. Joseph Probate Court The Honorable Jeffrey L. Sanford, Special Judge Probate Court Cause No. 71J01-0412-EU-56

          Attorneys for Appellant James M. Lewis Michael J. Hays Tuesley Hall Konopa LLP South Bend, Indiana.

          Attorney for Appellee Timothy J. Maher Barnes & Thornburg LLP South Bend, Indiana.

          BAKER, JUDGE.

         [¶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 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.
• 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 ...

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