In Re the Estate of James E. Hurwich,
Stacey R. MacDonald, Appellee-Defendant Scott D. Hurwich, Appellant-Plaintiff,
from the St. Joseph Probate Court The Honorable Jeffrey L.
Sanford, Special Judge Probate Court Cause No.
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.
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.
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
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.
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.
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