OPINION ON REHEARING                                                               FILED
                                                                               Aug 01 2018, 7:44 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
James M. Lewis                                            Timothy J. Maher
Michael J. Hays                                           Barnes & Thornburg LLP
Tuesley Hall Konopa LLP                                   South Bend, Indiana
South Bend, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re the Estate of James E.                              August 1, 2018
Hurwich,                                                  Court of Appeals Case No.
                                                          71A04-1705-EU-990
Scott D. Hurwich,                                         Appeal from the St. Joseph
Appellant-Plaintiff,                                      Probate Court
                                                          The Honorable Jeffrey L. Sanford,
        v.                                                Special Judge
                                                          Probate Court Cause No.
Stacey R. MacDonald,                                      71J01-0412-EU-56
Appellee-Defendant




Baker, Judge.




Court of Appeals of Indiana | Opinion on Rehearing 71A04-1705-EU-990| August 1, 2018                   Page 1 of 4
[1]   Hurwich petitions for rehearing, arguing that he should be permitted to file an

      amended complaint.


[2]   Hurwich first contends that we erred by finding that the probate court’s order

      dismissing Hurwich’s complaint against MacDonald with prejudice was a final

      judgment. Hurwich directs our attention to In re Estate of Botkins, 970 N.E.2d

      164, 167 (Ind. Ct. App. 2012), which notes “that orders issued by a probate

      court are not final until the estate is closed.” Hurwich reasons that because the

      Estate was open when the probate court entered its June 12, 2015, order

      dismissing Hurwich’s complaint, the dismissal was an interlocutory order and

      not a final judgment.


[3]   Initially, we note that Hurwich’s argument is untimely because he did not raise

      these specific points on appeal. “It is axiomatic that an issue not briefed or

      urged in the original briefs on appeal generally cannot be raised for the first time

      in a petition for rehearing.” Strong v. Jackson, 781 N.E.2d 770, 772 (Ind. Ct.

      App. 2003). Nonetheless, we will address his argument.


[4]   In each of the two cases on which Hurwich relies, the probate court issued an

      order that related directly to how an estate was being administered at that time.

      In Botkins, during the disposition of the estate, the court issued an order

      regarding a petition to admit a different will to probate. 970 N.E.2d at 166. In

      Dawson v. Estate of Ott, the court issued an order regarding the personal

      representative’s petition for a set-off against a balance owed on a real estate lien.

      796 N.E.2d 1190, 1192-94 (Ind. Ct. App. 2003). We find the instant case


      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1705-EU-990| August 1, 2018   Page 2 of 4
      distinguishable from these two cases because here, the order issued by the

      probate court did not relate to the present administration of the Estate. Instead,

      the order dismissed a complaint alleging that MacDonald had mismanaged the

      Estate’s assets and had breached her fiduciary duties during the first

      administration of the Estate, which ended six years before the Estate was

      reopened and seven years before the complaint was filed. The complaint was

      unrelated to the second administration of the Estate that was taking place when

      the complaint was filed and then dismissed. Therefore, because the probate

      court’s order was not related to how the Estate was presently being administered,

      the fact that the Estate was open when the probate court dismissed Hurwich’s

      complaint is irrelevant to the question of whether Hurwich should be able to file

      an amended complaint. Hurwich’s argument on this basis is unavailing.


[5]   Hurwich also points out that, had the probate court entered its order without

      prejudice, as it should have done, he would have been able to file an amended

      complaint pursuant to Indiana Trial Rule 12(B). He contends that because the

      probate court dismissed his claim with prejudice, he was not able to do so, and

      instead filed a motion to reconsider. Yet, months later, he inexplicably decided

      to file a motion for leave to amend his complaint.


[6]   Now, following our opinion in which we found that the probate court erred by

      dismissing his complaint with prejudice, Hurwich asks this Court to instruct the

      probate court to vacate and re-enter its order without prejudice, thereby

      allowing him to file an amended complaint. But this request for relief was

      mentioned only briefly and vaguely in the conclusion of Hurwich’s appellate

      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1705-EU-990| August 1, 2018   Page 3 of 4
      brief; he did not include this request in his argument section or provide 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. His request on this basis simply comes too late.


[7]   While we grant this petition to address Hurwich’s argument, with these

      comments, we reaffirm our original decision.


      Kirsch, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1705-EU-990| August 1, 2018   Page 4 of 4
