Centier Bank denied rehearing, cautioned in fraud appeal

January 31, 2018

A bank that lost its appeal of a trial court judgment against it failed to advance its cause with a petition for the Indiana Court of Appeals to rehear its case. The court cited an intervening Indiana Supreme Court decision in opting to dismiss the bank’s appeal while also cautioning counsel for the tone of the bank’s arguments.

A special judge in Lake Superior Court denied Centier’s motion for summary judgment on a lawsuit brought by a Nathaniel Hurst, for whom the bank had served as guardian. After Hurst turned 18, he learned the bank had disbursed assets from his account that had been valued at about $72,000. Hurst sued Centier for fraud when he learned only about $3,000 remained, and the bank had paid itself more than $57,000 from the account.

Last October, the Court of Appeals affirmed the trial court’s denial of summary judgment for the bank in In the Matter of the Guardianship of Nathaniel C. Hurst, A Minor, Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst v. Nathaniel C. Hurst, 45A03-1612-GU-2790.

The panel on Wednesday rejected the bank’s petition for rehearing. The court vacated its prior opinion and aligned with Chief Justice Nancy Vaidik’s dissent in the original ruling, dismissing the appeal for lack of subject matter jurisdiction.

That outcome was predicated on Town of Ellettsville v. DeSpirito, 87 N.E.3d 9 (Ind. 2017), which  held that in most cases, where an appellate court lacks jurisdiction due to an appellant’s procedural fault, dismissal is proper. Such was the case in the Centier appeal because the bank had filed an interlocutory appeal prior to the trial court’s entry of a final judgment, Judge Margret Robb wrote for the panel.

“The trial court specifically noted that it had not entered a final judgment when it ruled on the Bank’s motion for summary judgment; yet the Bank persisted in filing a notice of appeal alleging it was appealing from a final judgment,” Robb wrote.

“Given our lack of jurisdiction due to the Bank’s procedural default, terminating the litigation in the Bank’s favor is not one of the options available to us. But the Bank has again brought this case before us when Town of Ellettsville has now made it clear that the proper remedy for a premature notice of appeal from an order that has not been made final is to dismiss this appeal. In light of that recent clear statement from our supreme court, we opt to grant the petition for rehearing, vacate our earlier opinion, dismiss this appeal, and remand to the trial court for further proceedings.”

The panel also rejected the bank’s argument that the Court of Appeals had mischaracterized the case as one “sounding in fraud,” suggesting in a footnote that counsel may have gone too far by claiming the panel’s holding “is constructed of whole cloth and appears to be grounded in a false and scandalous premise, to wit: CENTIER PAID ITSELF $57,000 IN FEES.”

“The Bank contends this statement is ‘unsupported by any fact in the record.’ … However, based on the closing statement — which the Bank reproduces in its petition — the Bank did make those disbursements. … (W)e not the Bank’s method of raising the issue is ill-advised, if not inappropriate, advocacy,” Robb wrote.


Recent Articles by Dave Stafford