                                                                            FILED
OPINION ON REHEARING                                                    Jan 31 2018, 9:30 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Alissa Kohlhoff                                           Rebecca L. Billick
Kohlhoff Law P.C.                                         Billick Mediation & Family Law
Valparaiso, Indiana                                       Valparaiso, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                      January 31, 2018
Guardianship of Nathaniel C.                              Court of Appeals Case No.
Hurst, A Minor,                                           45A03-1612-GU-2790
Centier Bank and Centier Bank,                            Appeal from the Lake Superior
Personal Representative of the                            Court
Estate of Luanne Hurst,                                   The Honorable Nanette K.
                                                          Raduenz, Special Judge
Appellant-Defendant,
                                                          Trial Court Cause No.
        v.                                                45D06-0404-GU-56


Nathaniel C. Hurst,
Appellee-Plaintiff.



Robb, Judge.




Court of Appeals of Indiana | Opinion on Rehearing 45A03-1612-GU-2790 | January 31, 2018        Page 1 of 5
[1]   In Guardianship of Hurst, 84 N.E.3d 1222 (Ind. Ct. App. 2017), Centier Bank

      (the “Bank”) appealed the denial of its motion for summary judgment despite

      the fact the order it appealed was not a final judgment and it had not taken the

      appropriate steps to pursue a discretionary interlocutory appeal. We first

      considered whether we should decide the case on the merits or dismiss it as

      untimely. Based on several things: the general discussion in our supreme

      court’s opinion in In re D.J., 68 N.E.3d 574 (Ind. 2017); the supreme court’s

      specific acknowledgement that Appellate Rule 1 permits deviation from the

      appellate rules when necessary to achieve the ultimate end of orderly and

      speedy justice, see In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014); and

      cases from this court interpreting the foregoing, the majority determined that

      we had discretion to address the merits of the forfeited appeal, while Chief

      Judge Vaidik dissented and would have dismissed the appeal. The majority

      elected to exercise its discretion despite the Bank’s procedural default because a

      summary judgment ruling on a statute of limitation argument is a classic

      discretionary interlocutory appeal issue and because of the importance of

      deciding a case where fraud is a central issue. Guardianship of Hurst, 84 N.E.3d

      at 1226. We then affirmed the trial court’s denial of the Bank’s motion for

      summary judgment, concluding that the complaint against the Bank sounded in

      fraud and therefore the statutes of limitation relied on by the Bank did not bar

      the complaint. Id. at 1229. We also noted that, by affirming the trial court’s

      denial of summary judgment, the case was in the same procedural posture as if

      we had dismissed the case due to the Bank’s procedural default: the case

      returned to the trial court for further proceedings. Id. at 1226. The Bank has
      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1612-GU-2790 | January 31, 2018   Page 2 of 5
      now filed a petition for rehearing, alleging we incorrectly determined that the

      complaint sounds in fraud and requesting we reverse the trial court’s denial of

      its motion for summary judgment.1


[2]   After our opinion was handed down, our supreme court issued an opinion in

      Town of Ellettsville v. DeSpirito, 87 N.E.3d 9 (Ind. 2017), that clarified its earlier

      holding in D.J. In the Court of Appeals opinion in Town of Ellettsville, 78

      N.E.3d 666 (Ind. Ct. App. 2017), we questioned whether a final judgment had

      been entered but, citing D.J., did not engage in an analysis of the timeliness of

      the appeal “because our supreme court has significantly relaxed procedural

      requirements in this regard.” Id. at 672 n.3. The supreme court granted transfer

      and noted that “[n]othing in D.J. eliminated or relaxed the requirements for

      appellate jurisdiction.” 87 N.E.3d at 11. The court further noted that in D.J.,

      the appellants had filed their notice of appeal before a final judgment was

      entered, but appellate jurisdiction was nonetheless secure because the trial court

      entered a final judgment before the clerk entered the notice of completion of

      clerk’s record. Id. In Town of Ellettsville, however, the record on appeal showed

      no final judgment. Although the court elected “[f]or judicial economy under

      this case’s particular circumstances” to stay consideration of the appeal and

      remand the case to the trial court to decide whether to direct entry of judgment

      and make its interlocutory order a final judgment, it cautioned that “in the




      1
          No response to the Bank’s petition was filed.


      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1612-GU-2790 | January 31, 2018   Page 3 of 5
      overwhelming majority of cases, the proper course for an appellate court to take

      where it finds appellate jurisdiction lacking is simply to dismiss the appeal.” Id.

      at 12.


[3]   Given the opportunity to reconsider our decision in light of our supreme court’s

      statements in Town of Ellettsville, we note again the trial court’s ruling on the

      Bank’s motion for summary judgment was not a final judgment. And because

      there was no final judgment, the Bank’s self-styled “motion to correct error”

      was in fact a motion to reconsider and the trial court’s ruling on that motion

      cannot itself be considered a final judgment pursuant to Indiana Appellate Rule

      2(H)(4). See Guardianship of Hurst, 84 N.E.3d at 1225-26. 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. Unlike the record in

      D.J., the record here does not show a final judgment was entered between the

      time the Bank filed its notice of appeal and the time the trial court clerk filed its

      notice of completion of clerk’s record. The Bank requests on rehearing that we

      reverse the trial court and order the entry of summary judgment in the Bank’s

      favor. 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


      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1612-GU-2790 | January 31, 2018   Page 4 of 5
the petition for rehearing, vacate our earlier opinion, dismiss this appeal, and

remand to the trial court for further proceedings.2


Vaidik, C.J., and Bailey, J., concur.




2
 Although we do not address the merits of the Bank’s petition for rehearing, we take this opportunity to
address the following passage from the petition:

         Of great concern to Centier is that the Court of Appeals holding that Nathaniel’s claims
         “sounded in fraud”, which holding is constructed from whole cloth and appears to be
         grounded in a false and scandalous premise, to wit: CENTIER PAID ITSELF $57,000
         IN FEES.


Petition for Rehearing at 11. The opinion does state in the facts that the “closing statement details the Bank,
in its capacity as personal representative, disbursed to itself approximately $57,000 of Mother’s assets . . . .”
84 N.E.3d at 1224-25. The Bank contends this statement is “unsupported by any fact in the record.” Ptn. for
Reh’g at 12. However, based on the closing statement—which the Bank reproduces in its petition—the Bank
did make those disbursements. See id. at 13 (showing “Disbursements During Administration” including
$54,621.79 to Centier Bank for Interest and Pinterest). The opinion never mentions this again, and regardless
of the nature of the disbursements and whether or not this factored into the decision, we note the Bank’s
method of raising the issue is ill-advised, if not inappropriate, advocacy.


Court of Appeals of Indiana | Opinion on Rehearing 45A03-1612-GU-2790 | January 31, 2018             Page 5 of 5
