                                                                           FILED
                                                                      Oct 10 2017, 8:58 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                                      October 10, 2017
Guardianship of Nathaniel C.                              Court of Appeals Case No.
Hurst, A Minor,                                           45A03-1612-GU-2790
                                                          Appeal from the Lake Superior
Centier Bank and Centier Bank,                            Court
Personal Representative of the                            The Honorable Nanette R.
Estate of Luanne Hurst,                                   Raduenz, Special Judge

Appellant-Defendant,                                      Trial Court Cause No.
                                                          45D06-0404-GU-56
        v.

Nathaniel C. Hurst,
Appellee-Plaintiff.



Robb, Judge.




Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017                    Page 1 of 15
                                 Case Summary and Issue
[1]   Centier Bank (“Bank”) appeals the trial court’s denial of its motion for

      summary judgment in Nathaniel Hurst’s action against it and Patrick and

      Michelle Hurst (the “Hursts”), wherein Nathaniel alleges he suffered damages

      as a result of fraudulent acts committed by the Bank during its administration of

      Nathaniel’s mother’s estate and by the Hursts during their guardianship of

      Nathaniel’s estate. The Bank raises two issues for our review, which we

      consolidate and restate as whether the trial court erred in denying the Bank’s

      motion for summary judgment. Concluding the trial court did not err, we

      affirm.



                            Facts and Procedural History
[2]   In 2004, Luanne Hurst (“Mother”); her eight-year-old son, Nathaniel; and her

      boyfriend, Robert Suarez, lived in Mother’s house in Lake County, Indiana. In

      March 2004, Mother passed away, leaving Nathaniel as her sole heir.

      Thereafter, Suarez was appointed personal representative of Mother’s estate

      and guardian of Nathaniel’s person; the Hursts, as Nathaniel’s aunt and uncle,

      were appointed guardians of Nathaniel’s estate.


[3]   In March 2005, the Hursts filed an accounting showing the value of Nathaniel’s

      estate was approximately $72,000.00. In November 2005, the Hursts moved

      the trial court to remove Suarez as personal representative of Mother’s estate

      and to appoint the Bank, which the trial court granted. Thereafter, the Hursts


      Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 2 of 15
      and the Bank were represented by the same attorney and the administration of

      Mother’s estate was unsupervised. In March 2006, the Bank evicted Suarez,

      and in turn, Nathaniel from Mother’s house. The Bank filed an accompanying

      affidavit swearing the estimated value of Mother’s real estate at the time was

      $94,000.00. In November 2008, the Bank moved to close Mother’s estate and

      filed a closing statement evidencing the liquidation of Mother’s assets and

      payments made by the Bank on behalf of Mother. The closing statement details

      the Bank, in its capacity as personal representative, disbursed to itself

      approximately $57,000.00 of Mother’s assets; approximately $7,000.00 to

      Patrick Hurst, individually; and approximately $1,750.00 to the Hursts as

      guardians of Nathaniel’s estate. A copy of the closing statement was sent to the

      Hursts, who did not object. On April 29, 2009, the trial court ordered Mother’s

      estate closed.


[4]   On September 12, 2013, Nathaniel turned eighteen years old. On July 15,

      2014, the Hursts filed a final report and accounting of Nathaniel’s estate and

      petitioned the trial court to terminate their guardianship over the estate. The

      final accounting listed Nathaniel’s assets at approximately $3,000.00.

      Nathaniel filed an objection. Discovery ensued and on July 28, 2015,

      Nathaniel moved to join the Bank after learning the Bank may have

      “committed acts of negligence, fraud, inadequate disclosure, or

      misrepresentation.” Brief of the Appellee at 13. Nathaniel also served the Bank

      with a summons. The trial court granted Nathaniel’s motion and the Bank was

      joined as a party to the guardianship matter on August 6, 2015.


      Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 3 of 15
[5]   A week later, the Bank filed a Motion to Dismiss for Failure to File within

      Statute of Limitations, arguing Nathaniel’s claims were barred by Indiana Code

      section 29-1-7.5-6’s three-month statute of limitations or Indiana Code section

      29-1-1-21’s one-year statute of limitations and therefore Nathaniel’s motion for

      joinder should be dismissed. Following a hearing, the trial court denied the

      Bank’s motion without addressing the Bank’s statute of limitations claims,

      reasoning the Bank was an indispensable party pursuant to Trial Rule 19. The

      Bank then filed a motion to correct error, which the trial court denied.


[6]   On March 23, 2016, Nathaniel filed a complaint for damages under this same

      cause number against the Hursts and the Bank, alleging the Hursts and the

      Bank committed fraud resulting in Nathaniel’s low inheritance. On July 21,

      2016, the Bank filed a second Motion to Dismiss for Failure to File within

      Statute of Limitations, raising the same arguments noted above. The trial court

      denied the motion. The Bank then filed what it titled a motion to correct error.

      Before addressing the merits of the Bank’s arguments, the trial court noted it

      had treated the Bank’s motion to dismiss as a motion for summary judgment

      and explained its order denying the Bank summary judgment was not a final

      appealable order. Therefore, the trial court also explained it was considering




      Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 4 of 15
      the Bank’s motion to correct error as a motion to reconsider. 1 The trial court

      then denied the Bank’s motion to reconsider. This appeal ensued.



                                   Discussion and Decision
                                       I. Timeliness of Appeal
[7]   We must first consider the timeliness of this appeal. Indiana Appellate Rule 9

      provides that parties may initiate an appeal by filing a notice of appeal within

      thirty days after entry of an appealable order. Generally, the appealable order

      will be a final judgment. Ind. Appellate Rule 9(A)(1); In re D.J. v. Ind. Dep’t of

      Child Servs., 68 N.E.3d 574, 578 (Ind. 2017). However, not all orders must be

      final to be appealable, as Appellate Rule 14 allows a party to pursue an appeal

      of an interlocutory order as either a matter of right or discretion. Here, the

      Bank’s notice of appeal indicates it is appealing from a final judgment, despite

      the fact a ruling denying a motion for summary judgment is not final, a fact the

      trial court explicitly made clear when ruling on the Bank’s motion to

      reconsider. In addition, it does not appear the trial court’s order denying the

      Bank summary judgment touches on any of the enumerated interlocutory

      orders set out in Appellate Rule 14(A) that allow an interlocutory appeal as a

      matter of right. Therefore, the Bank’s appeal is a discretionary interlocutory




      1
        “[M]otions to correct error are proper only after the entry of final judgment; any such motion filed prior to
      the entry of final judgment must be viewed as a motion to reconsider.” Snyder v. Snyder, 62 N.E.3d 455, 458
      (Ind. Ct. App. 2016).

      Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017                         Page 5 of 15
      appeal, which requires the trial court to certify the order for appeal and this

      court to accept jurisdiction over the appeal. App. R. 14(B)(1). Our review of

      the record reveals the Bank did not request the trial court certify any of its

      orders for interlocutory appeal and therefore the Bank’s appeal is untimely. 2


[8]   As our supreme court recently made clear, “the reviewing court is not deprived

      of jurisdiction if the notice of appeal is untimely – meaning belated or

      premature.” D.J., 68 N.E.3d at 578. In those circumstances, the appellate

      court may choose to exercise its discretion and address the merits of a forfeited

      appeal despite the procedural default. Id. at 578-59; In re O.R., 16 N.E.3d 965,

      971-72 (Ind. 2014). Every order, then, is in a sense appealable. Although

      Appellate Rule 14 and In re D.J. appear to be at odds, both are products of our

      supreme court, and we must assume the court was aware of the implications its

      decision in D.J. would have on Rule 14. Viewing the Appellate Rules through

      the lens of D.J. and O.R., the procedural rules are not immutable; they are

      guidelines. See App. R. 1 (“The Court may, upon the motion of a party or the

      Court’s own motion, permit deviation from these Rules.”). The Rules impose a

      framework for how orders are to be appealed—by granting absolute rights with




      2
       In addition to this being a discretionary interlocutory appeal which the Bank did not properly initiate, a
      motion to reconsider does not extend the thirty-day period within which a party wishing to appeal must do
      so. Snyder, 62 N.E.3d at 459. Thus, the Bank’s appeal is in a sense both early – in that it was filed without
      authorization – and late – in that it was filed more than thirty days after the order being appealed was
      entered.

      Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017                        Page 6 of 15
       respect to some orders and discretionary rights with respect to others. But in

       either case, the rights can be forfeited, and they can be revived in our discretion.


[9]    As we have noted, the Bank forfeited its right to pursue its discretionary appeal

       by prematurely filing its Notice of Appeal. We do not read D.J. to excuse

       parties in general from their duty to follow our procedural rules in pursuing an

       appeal and we do not condone the way these parties in particular have treated

       this appeal as if it was from a final judgment when it clearly was not.       But a

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

       discretionary interlocutory appeal issue and it is clear both parties seek an early

       appellate resolution of this threshold issue—notably, Nathaniel did not raise the

       issue of timeliness to this court. Whether we dismiss this case due to a

       procedural default or decide the issue as we have herein, the case will go on.

       The benefit of deciding the case now is that the statute of limitations question

       will not cloud the balance of the litigation and risk wasting the resources of the

       parties and the trial court. We therefore opt to exercise our discretion in this

       case and decide the merits of the statute of limitations arguments made by the

       parties to provide clarity and certainty to the parties going forward.


                   II. Summary Judgment Standard of Review
[10]           When reviewing a grant of summary judgment, our standard of
               review is the same as that of the trial court. Considering only
               those facts that the parties designated to the trial court, we must
               determine whether there is a “genuine issue as to any material
               fact” and whether “the moving party is entitled to a judgment
               [as] a matter of law.” In answering these questions, the
               reviewing court construes all factual inferences in the non-
       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 7 of 15
               moving party’s favor and resolves all doubts as to the existence of
               a material issue against the moving party. The moving party
               bears the burden of making a prima facie showing that there are
               no genuine issues of material fact and that the movant is entitled
               to judgment as a matter of law; and once the movant satisfies the
               burden, the burden then shifts to the non-moving party to
               designate and produce evidence of facts showing the existence of
               a genuine issue of material fact.


       In re Estate of Kalwitz, 923 N.E.2d 982, 984-85 (Ind. Ct. App. 2010) (citation

       omitted), trans. denied.


                                   III. Statutes of Limitation
[11]   In its motion for summary judgment, and now on appeal, the Bank argues two

       statute of limitation provisions in the probate code bar Nathaniel’s claims. We

       disagree.


[12]   The Bank first cites to Indiana Code section 29-1-7.5-6, which provides,


               Unless previously barred by adjudication and except as provided
               in the closing statement, all claims against the personal
               representative, including claims by a person under a disability,
               are barred unless a proceeding to assert the claim is commenced
               within three (3) three months after the filing of the closing
               statement. The rights thus barred do not include rights to recover
               from a personal representative for fraud, misrepresentation, or
               inadequate disclosure related to the settlement of the decedent’s
               estate.


       This section is unavailing to the Bank because the section specifically provides

       the rights barred do not include the right to recover from a personal representative


       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 8 of 15
       for fraud, misrepresentation, or inadequate disclosure, and Nathaniel’s claims

       against both the Bank and the Hursts sound in fraud.3 For this reason, Indiana

       Code section 29-1-7.5-6 is not applicable as a bar to Nathaniel’s claims.


[13]   The Bank also cites to Indiana Code section 29-1-1-21, which provides in

       relevant part, “For illegality, fraud or mistake, upon application filed within

       one (1) year after the discharge of the personal representative upon final

       settlement, the court may vacate or modify its orders, judgments and decrees or

       grant a rehearing therein.” This section also does not apply as a bar to

       Nathaniel’s claims as it is clear from the language that the one-year statute of

       limitations only bars attempts to modify or vacate a probate order as a result of

       illegality, fraud, or mistake. Although Nathaniel’s claims sound in fraud, he is

       not seeking to modify or vacate any of the trial court’s orders regarding the

       closing of Mother’s estate, nor is he seeking to reopen Mother’s estate in an

       attempt to recover her assets; rather he is seeking damages from the Bank and

       the Hursts. The Bank’s arguments fail as a matter of law and the trial court did

       not err in denying its motion for summary judgment.


[14]   Although the following discussion is not necessary for the purposes of this

       appeal, it appears the probate code and case law suggest the statute of




       3
         Although Nathaniel’s complaint does not specifically allege “fraud,” the allegations and claims included in
       the complaint sound in fraud. See Plymale v. Upright, 419 N.E.2d 756, 759 (Ind. Ct. App. 1981) (“Fraud in its
       generic sense . . . comprises all acts, omissions, and concealments involving a breach of legal or equitable
       duty and resulting in damage to another.”) (citation omitted). To the extent the Bank argues Nathaniel’s
       complaint does not sufficiently plead a claim of fraud, the Bank fails to cite to any authority supporting such
       a claim. This argument is therefore waived for failure to present a cogent argument. See App. R. 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017                       Page 9 of 15
limitations governing claims of fraud as found in the civil code should govern

Nathaniel’s claims. Section 29-1-1-24 of the probate code provides,


        Whenever fraud has been perpetrated in connection with any
        proceeding or in any statement filed under this probate code or if
        fraud is used to avoid or circumvent the provisions or purposes of
        this probate code, any person injured thereby may obtain
        appropriate relief against the perpetrator of the fraud . . . .


(Emphasis added.) A comment to this provision by the Indiana Probate Code

Study Commission explains:

        This amendment is patterned after Section 1-106 of the Uniform
        Probate Code. This amendment differs from Section 1-106 in that
        under this amendment the statute of limitations provided in the civil code
        applies. The following portion of the Uniform Probate Code
        official comment is pertinent:


        OFFICIAL COMMENT TO UNIFORM PROBATE CODE


        This is an overriding provision that provides an exception to the
        procedures and limitations provided in the Code. The remedy of
        a party wronged by fraud is intended to be supplementary to
        other protections provided in the Code and can be maintained
        outside the process of settlement of the estate. Thus, if a will
        which is known to be forgery is probated informally, and the
        forgery is not discovered until after the period for contest has run,
        the defrauded heirs still could bring a fraud action under this
        section. Or if a will is fraudulently concealed after the testator’s
        death there still may be an action under this section. Similarly, a
        closing statement normally provides binding protection for the personal
        representative. However, if there is fraudulent misrepresentation or
        concealment in the preparation of the claim, a later suit may be brought
        under this section against the personal representative for damages; or

Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017     Page 10 of 15
               restitution may be obtained from those distributees who benefit
               by the fraud. In any case innocent purchasers for value are
               protected.


       (Emphasis added.) These comments recognize what the Bank now asserts on

       appeal: a closing statement typically provides binding protection to the personal

       representative of an estate. However, our legislature carved out an exception to

       the protections granted to personal representatives, and when confronted with a

       suit for damages against a personal representative for fraud, we look to the

       statute of limitations for fraud provided in the civil code. See In re Estate of

       McNabb, 744 N.E.2d 569, 574 (Ind. Ct. App. 2001) (suggesting a cause of action

       for fraud against the personal representative of an unsupervised estate would

       likely be governed by the statute of limitations applicable to fraud).


[15]   In Indiana, actions for relief against fraud must be commenced within six years

       after the cause of action accrues. Ind. Code § 34-11-2-7.

               In assessing the accrual of a cause of action for fraud, this court
               has determined that the discovery rule is applicable. The cause of
               actions accrue and the statute of limitations begins to run when
               the plaintiff knew or, in the exercise of ordinary diligence, could
               have discovered that an injury had been sustained as a result of
               the tortious act of another. Thus, the statute runs when the
               resultant damage of a tortious act is susceptible of ascertainment.


       Estates of Kalwitz v. Kalwitz, 717 N.E.2d 904, 914 (Ind. Ct. App. 1999).


[16]   Assuming Indiana Code section 34-11-2-7 applies to Nathaniel’s claims, the

       Bank does not set forth any argument or cite any facts from the record

       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 11 of 15
       demonstrating on what date Nathaniel knew or could have discovered the

       alleged fraud; rather, it merely assumes any cause of action for fraud began

       running in April 2009 when Mother’s estate was closed. See Corrected

       Appellant’s Brief at 16. This issue, left unaddressed by the Bank, is crucial to

       determining whether Nathaniel’s claims are barred by the statute of limitations

       found in Indiana Code section 34-11-2-7, and contrary to the Bank, Nathaniel

       has designated facts alleging the statute of limitations did not begin to run until

       the Hursts filed a final accounting of his assets in July 2014, when he first

       learned of his diminished inheritance. Thus, to the extent the Bank argues

       Indiana Code section 34-11-2-7 bars Nathaniel’s claims, the Bank has failed to

       meet its burden of proving there is no genuine issue of material fact as to when

       the six-year statute of limitations began to run.4


[17]   The Bank, as the party moving for summary judgment, had the burden of

       designating evidence sufficient to show no genuine issue of material fact exists

       and that it is entitled to judgment as a matter of law. The Bank did not meet

       this burden.5



                                                  Conclusion


       4
         Because there is a genuine issue of material fact as to when the statute of limitations accrued, we need not
       determine when the statute of limitations expired, the approximate date Nathaniel commenced this action, or
       whether Indiana Code section 34-11-6-1, which allows a person under a legal disability when the statute of
       limitations accrues two years after the disability is removed to bring a claim, applies to Nathaniel’s claims.
       5
        For failure to present a cogent argument, Nathaniel’s request for appellate attorney fees is denied. See
       Appellate R. 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017                      Page 12 of 15
[18]   The trial court did not err in denying the Bank’s motion for summary judgment.

       Accordingly, we affirm.


[19]   Affirmed.


       Bailey, J., concurs.


       Vaidik, C.J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 13 of 15
       ATTORNEY FOR APPELLANT                                    ATTORNEYS 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                                      Court of Appeals Case No.
       Guardianship of Nathaniel C.                              45A03-1612-GU-2790
       Hurst, A Minor,

       Centier Bank and Centier Bank,
       Personal Representative of the
       Estate of Luanne Hurst,
       Appellant-Defendant,

               v.

       Nathaniel C. Hurst,
       Appellee-Plaintiff.




       Vaidik, Chief Judge, dissenting.


[20]   I respectfully dissent. I understand the majority’s desire to resolve this case

       early. However, Appellate Rule 14 very clearly lays out how a party can pursue

       an interlocutory appeal, either by right or by certification of the trial court. The

       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017           Page 14 of 15
       majority acknowledges, and I agree, that neither provision of Appellate Rule 14

       has been met for an interlocutory appeal. See slip op. pp. 5-6. Because the trial

       court’s order does not satisfy 14(A) and the Bank’s appeal does not meet the

       requirements of 14(B), the trial court’s order is not appealable. Therefore, we

       do not have jurisdiction to hear this appeal. See Daimler Chrysler Corp. v. Yaeger,

       838 N.E.2d 449 (Ind. 2005) (dismissing Daimler’s appeal because it was not an

       interlocutory appeal by right and Daimler did not seek certification from the

       trial court to initiate an interlocutory appeal).


[21]   Nevertheless, the majority decides to adjudicate the case. The majority relies

       on the holding in D.J. to support its decision to accept the Bank’s appeal. 68

       N.E.3d 574 (Ind. 2017). D.J. is inapposite. In D.J., the trial court issued an

       appealable order between the filing of the notice of appeal and counsel’s

       briefing of the issues. Id. at 577. Here, no appealable order has been entered.

       In the absence of an appealable order, we have no jurisdiction to hear this

       appeal. Id. at 578 (“The only two prerequisites under our appellate rules are (i)

       the trial court must have entered an appealable order, and (ii) the trial clerk

       must have entered the notice of completion of clerk's record on the CCS.”).

       D.J. should not to be interpreted as a means of avoiding the strictures of

       Appellate Rule 14. As a result, I disagree with the majority’s decision to reach

       the merits and would dismiss the Bank’s appeal.




       Court of Appeals of Indiana | Opinion 45A03-1612-GU-2790 | October 10, 2017   Page 15 of 15
