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Untimely estate petition considered, still rejected by COA

August 1, 2018

Although the Indiana Court of Appeals found a man’s request that he be permitted to file an amended complaint was untimely, it still addressed the arguments he put forth to support his petition.

Scott Hurwich has petitioned the court to reopen his father’s estate, alleging his sister, Stacey MacDonald, had mismanaged the estate’s assets and breached her fiduciary duties. After the court denied his motion for leave to amend his complaint, Hurwich appealed, and the COA reopened the estate.

Now, Hurwich returned to the Court of Appeals with a petition for rehearing. He contended the appellate court erred by finding the probate court’s order dismissing his complaint with prejudice was a final judgment.

The Court of Appeals noted the Hurwich’s argument was untimely because he did not raise these specific points on appeal. However, the panel decided to address his argument nonetheless in In Re the Estate of James E. Hurwich, Scott D. Hurwich v. Stacey r. MacDonald, 71A04-1705-EU-990.

In his argument, Hurwich pointed to In re Estate of Botkins, 970 N.E.2d 164, 167 (Ind. Ct. App. 2012), which held that orders issued by a probate court are not final until the estate is closed.

The Court of Appeals responded by pointing out that Botkins and Dawson v. Estate of Ott, 796 N.E.2d 1190, 1192-94 (Ind. Ct. App. 2003) were distinguishable because they related to present administration of each estate. Hurwich’s complaint, the panel noted, was related to the first administration of his father’s estate.

Hurwich also argued the probate court should have entered its order without prejudice. But because it dismissed his claims with prejudice, he was not able to file an amended complaint pursuant to Indiana Trial Rule 12(B). So he now asked the Court of Appeals to instruct the probate court to vacate and re-enter its order without prejudice, thereby allowing him to file an amended complaint.

This request for relief, the Court of Appeals asserted, was “mentioned only briefly and vaguely in the conclusion” of Hurwich’s appellate brief and did not include any support or reasoning to justify this particular manner of relief.

 “Hurwich also contends that justice warrants allowing him leave to amend his complaint, but again, and as Hurwich acknowledges, this contention was not included in his appellate brief,” Judge John Baker wrote for the court. “His request on this basis simply comes too late.”

 

 

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