MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Jul 17 2020, 9:39 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
Harve Hensley                                            Kerry Thompson
Columbus, Indiana                                        Houston, Thompson and Lewis, PC
                                                         Scottsburg, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harve Hensley,                                           July 17, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-TR-2376
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
Bronson Hensley, Jr.,                                    The Honorable Donald J. Mote,
Appellee-Petitioner,                                     Judge
                                                         Trial Court Cause Nos.
                                                         39C01-1710-MI-981
                                                         39C01-1712-TR-79
                                                         39C01-1712-EU-80



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020                   Page 1 of 12
                                Case Summary and Issue
[1]   Harve Hensley brings this interlocutory appeal from a June 7, 2019 order of the

      trial court addressing several pending motions in a dispute over Harve’s father’s

      estate. Considering sua sponte whether the appeal is properly before us, we

      conclude that the June 7 order was not properly certified for a discretionary

      interlocutory appeal. We therefore dismiss this appeal and remand to the trial

      court for further proceedings.



                            Facts and Procedural History
[2]   Bronson Hensley Sr. (“Hensley”) executed a revocable living trust (“Trust”) on

      November 1, 2006. Contemporaneously, he executed a Last Will and

      Testament (“Will”) making no specific bequests and directing that the residue

      of his estate be distributed to the Trust and administered and distributed

      according to the Trust’s terms. Hensley acknowledged five children in his will:

      Bronson Jr. (“Bronson”), Danny, Travis, Harve, and Amanda. At the time the

      Will was executed, Hensley was apparently in a relationship with Wilma

      Pottenger; at a later date, he and Pottenger were married.


[3]   The Trust originally provided that Harve would receive $1,000 upon Hensley’s

      death and distributed the remainder of the estate in equal parts between

      Bronson, Danny, Travis, Amanda, and Wilma. A 2007 amendment to the trust

      changed the amount of the bequest to Harve from $1,000 to $3,576.96 but

      indicated that same amount was paid to Harve on April 25, 2011. See Exhibits,


      Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020   Page 2 of 12
      Volume III at 24. A handwritten letter found among Hensley’s effects after his

      death explained that on April 25, 2011, Hensley paid off a car loan he had co-

      signed for Harve in the amount of $3,576.96 and “[t]his is Harve Hensley’s

      inheritance in full.” Id. at 49. The amendment also indicated Hensley’s intent

      that the real estate held by the Trust should be liquidated and distributed as

      previously directed with the exception that Wilma could continue to live at

      Hensley’s residence for six months after his death. See id. at 24. The remainder

      of the trust estate was still to be distributed in equal shares to Bronson, Danny,

      Travis, Amanda, and Wilma, but Amanda’s share was to continue to be held

      by the trustee and distributed in equal monthly installments for ten years. See

      id. at 25.


[4]   Hensley died on June 30, 2017. Bronson served as the successor trustee and

      was appointed personal representative of Hensley’s estate as nominated by

      Hensley.1 The Will was admitted to probate on December 13, 2017 under

      cause number 39C01-1712-EU-80 (“EU cause”). The Trust was docketed at the

      request of Harve and Amanda on December 15, 2017 under cause number

      39C01-1712-TR-79 (“TR cause”). After June 7, 2019, all pleadings and orders

      were filed under both cause numbers.2




      1
       Hensley nominated Wilma as first successor trustee and personal representative, but she died in 2012.
      Bronson was nominated as the second successor trustee and personal representative. See id. at 4, 18.
      2
       Harve and Amanda filed an Action for Mandate under cause number 39C01-1710-MI-981 seeking an
      accounting from Bronson related to his actions under a durable power of attorney granted by Hensley. See
      Appellee’s Appendix, Volume 4 at 58. Although this cause number was also included on pleadings and


      Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020                   Page 3 of 12
[5]   A family dispute arose about the control, possession, use, and disposition of the

      Trust property. In the EU cause, Harve filed a petition seeking to remove

      Bronson as the personal representative and appoint Harve in his stead. On

      December 30, 2018, the trial court entered an order denying the petition and

      stating, ““Harve Hensley is not the Personal Representative of the Estate or

      Trustee of the Bronson Hensley, Sr. Trust.” Appellee’s App., Vol. 4 at 45. On

      January 29, 2019, Harve filed a “Motion to Correct Error” from this order

      alleging he was prevented from offering evidence to support his petition. See id.

      at 47.


[6]   In the TR cause, Bronson, as trustee, filed a petition requesting interpretation of

      the Trust to determine the beneficiaries entitled to distribution from the Trust.

      Specifically, Bronson contended that Harve “has no legal interest in the Trust

      [and] has no standing to raise any issues regarding the Trust or the Estate.” Id.,

      Vol. 3 at 12.


[7]   On March 8, 2019, Bronson, as trustee, filed a petition to sell a farm property in

      the TR cause, id. at 2, and as personal representative, filed a petition to sell a

      residential property in the EU cause, id., vol. 4 at 51.


[8]   On June 4, 2019, the trial court held a hearing on Harve’s motion to correct

      error, Bronson’s petitions to sell real property, and Bronson’s petition for




      orders filed after June 7, 2019, including the order being appealed, it is unclear what action, if any, was taken
      on this matter and it does not appear to be directly involved in the orders at issue here.

      Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020                        Page 4 of 12
      interpretation of the Trust. On June 7, the court issued an order denying

      Harve’s motion to correct error in the EU cause, granting the petitions to sell

      real estate to be further addressed in a separate order,3 and determining, per

      Bronson’s request for interpretation of the Trust in the TR cause, that the

      bequest to Harve was adeemed during Hensley’s lifetime, that Harve is not the

      personal representative or the trustee, and that Harve has no further claims to

      assert and therefore lacks standing in the proceedings. The trial court also

      ordered that proceeds from the sales of the real property be held in Bronson’s

      attorney’s trust account until further order of the court and that the remaining

      parties confer and provide the court with dates to address further pending

      motions.


[9]   Beginning on July 12, Harve filed several motions seeking relief from the June 7

      order. First, he filed a “Motion for Relief From Order due to Fraud Upon the

      Court” ostensibly alleging fraud upon the court by Bronson’s attorney and

      seeking relief “from the Court’s Orders of June 7, 2019” as “the sole beneficiary

      [with] the only standing to proceed forward in the pending matters.” Appellee’s

      App., Vol. 3 at 19, 22 (emphasis added). On July 20, Harve filed a motion to

      vacate the June 7 and July 10 orders due to alleged mistakes in the court’s

      findings of fact in the June 7 order4 and requesting “appropriate relief from the



      3
        Also on June 7, the trial court issued a separate order in the EU cause approving the petition to sell the
      residential property, and on July 10, issued an order in the TR cause approving the petition to sell the farm.
      4
        These alleged “obvious and indisputable” mistakes that “warrant[] immediate relief” are 1) that the court
      found the Trust was docketed on December 8, 2017 when the court’s “record on file clearly state[s] that it


      Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020                      Page 5 of 12
       June 7, 2019 Court Order on Pending Motions by recognizing [Harve’s] claim to

       assert in all matters [and f]urthermore, . . . [requesting] that the Court vacate

       both, the July [sic] 7, 2019 and July 10, 2019 Order[s] Approving Petition to

       Sell Real Estate effectively immediately.” Id. at 27 (emphasis added). And on

       July 31, Harve filed an Emergency Motion to Stay Proceedings pending

       resolution of his July 20 motion to vacate orders. On August 2, the trial court

       denied Harve’s July 12 motion for relief from order, July 20 motion to vacate

       orders, and July 31 motion for emergency stay of proceedings.5


[10]   On September 3, 2019, Harve filed a motion to certify for interlocutory appeal

       the trial court’s August 2 order which denied his “many attempts for relief from

       the original June 7, 2019 Order on Pending Motions[.]” Id. at 94 (emphasis

       added). In this motion, Harve both acknowledged that the issue for appeal was

       errors in the June 7 order and that the June 7 order was “interlocutory and not

       final.” Id. at 93. On September 6, the trial court certified the August 2 order for

       interlocutory appeal. This court granted Harve’s motion to accept the

       interlocutory appeal on November 8, 2019 and stayed all proceedings in the

       trial court pending resolution of the appeal.




       was The Matter of the Trust Created Under The Agreement Created by Bronson Hensley” (i.e. “trust under
       will”) that was docketed and not “the Trust” and that it was docketed on December 15 not December 8, and
       2) that the court found the Will was admitted to probate on December 12 when the court’s “record on file
       clearly state[s] that the [Will]” was probated on December 13. See id. at 23-25.
       5
           A motion filed July 23 seeking an emergency hearing had previously been denied.


       Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020                Page 6 of 12
                                  Discussion and Decision
[11]   A threshold issue we must address before considering the merits of Harve’s

       appeal is whether this case is properly before us. See DuSablon v. Jackson Cty.

       Bank, 132 N.E.3d 69, 75 (Ind. Ct. App. 2019) (“It is the duty of this Court to

       determine whether we have jurisdiction before proceeding to determine the

       rights of the parties on the merits.”), trans. denied. This court has jurisdiction

       over appeals from final judgments and over appeals of interlocutory orders

       under Appellate Rule 14. Ind. Appellate Rule 5(A) and (B). “An appeal from

       an interlocutory order is not allowed unless specifically authorized by the

       Indiana Constitution, statutes, or the rules of court. The authorization is to be

       strictly construed, and any attempt to perfect an appeal without such authorization

       warrants a dismissal.” Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct.

       App. 2004) (emphasis added), trans. denied.


[12]   After careful review of the procedural history of this case as set out above, we

       conclude that Harve has not proceeded according to Appellate Rule 14.

       Exercising our discretion to reconsider the motions panel’s decision on Harve’s

       motion to accept jurisdiction, we deny the motion to accept jurisdiction of this

       interlocutory appeal and dismiss. See Durall v. Weinberger, 4 N.E.3d 207, 209

       (Ind. Ct. App. 2014) (“We may reconsider our motions panel’s initial ruling on

       a motion to accept interlocutory jurisdiction.”); cf. Sartain by & through Harding

       v. Trilogy Healthcare of Hamilton II, LLC, 137 N.E.3d 1050, 1052 (Ind. Ct. App.

       2019) (exercising the court’s inherent authority to reconsider a motions panel



       Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020   Page 7 of 12
       decision and dismissing an appeal upon revisiting the appellee’s motion to

       dismiss), trans. denied.


[13]   Harve is clear that the issues he raises on appeal stem from the trial court’s June

       7 Order on Pending Motions. See Amended Appellant’s Brief at 4, 6

       (describing the “nature of this case” as his “narrow constitutional appeal of the

       original June 7, 2019 Order on Pending Motions” and arguing he “is entitled to an

       order [from this court] setting aside the June 7, 2019 Order on Pending Motions”)

       (emphasis added). Every one of Harve’s July motions that were ultimately

       denied by the August 2 order sought relief from the June 7 order. The June 7

       order denied Harve’s “motion to correct error” from the trial court’s order

       denying his petition to remove Bronson as personal representative; granted

       Bronson’s petition requesting interpretation of the Trust in that the trial court

       found Harve was not a beneficiary, the personal representative, or the trustee

       and therefore had no standing in the EU or TR cause numbers; and granted

       Bronson’s petitions to sell certain parcels of real estate.


[14]   We begin by addressing the trial court’s grant of Bronson’s petitions to sell real

       property belonging to the estate. Appellate Rule 14(A)(4) provides that an

       appeal from an interlocutory order for the sale of real property is taken as a

       matter of right. If the June 7 order is appealable of right because of the order

       for the sale of real property, the other issues could also be raised in such

       interlocutory appeal. See Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind. 2001)

       (stating “an interlocutory appeal raises every issue presented by the order that is

       the subject of the appeal”). For two reasons, however, we conclude this

       Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020   Page 8 of 12
       provision does not save Harve’s appeal. First, Appellate Rule 14(A) also says

       that a notice of appeal must be filed within thirty days of an interlocutory order

       appealable of right. Harve did not file a notice of appeal within thirty days of

       the June 7 order and therefore forfeited his right to proceed as an interlocutory

       appeal of right. Second, Harve’s appellate brief does not actually challenge the

       sale of those properties; instead, it focuses on the ruling regarding his standing

       to continue to participate in the EU and TR causes as the “rightful sole

       beneficiary and sole trustee” of Hensley’s estate. Amended Appellant’s Br. at 7.

       In DuSablon, we dismissed an appeal because the appellant failed to present an

       argument about the issue that provided a basis for appellate jurisdiction under

       Appellate Rule 14(A). 132 N.E.3d at 76-77; see also S.R.W. by Bessette v.

       Turflinger, 100 N.E.3d 285, 289 (Ind. Ct. App. 2018) (“It seems to us to defeat

       the purpose of allowing such interlocutory appeals if the party does not actually

       raise an issue regarding the [provision allowing appeal of right]”). Thus, the

       possibility this case could have proceeded as an appeal of right is foreclosed.


[15]   Next, we address the denial of Harve’s “motion to correct error.” In December

       2018, the trial court denied Harve’s motion to remove Bronson as personal

       representative of Hensley’s estate. Harve filed a “motion to correct error” from

       that order that was in turn denied by the June 7 order. Indiana Appellate Rule

       2(H)(4) states that “a ruling on either a mandatory or permissive Motion to

       Correct Error which was timely filed under Trial Rule 59” is a final judgment.

       However, the December 2018 order was an interlocutory order because it was

       made before a final hearing on the merits and required “something to be done


       Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020   Page 9 of 12
       or observed but [did] not determine the entire controversy.” In re Estate of

       Botkins, 970 N.E.2d 164, 168 (Ind. Ct. App. 2012). Motions to correct error are

       proper only after the entry of a 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). Thus, even though Harve

       titled his motion following the December 2018 order a “motion to correct

       error,” it was in fact a motion to reconsider and the June 7 order was not a

       ruling on a motion to correct error such that the order would be considered a

       final judgment pursuant to Appellate Rule 2(H).6


[16]   Finally, we address the trial court’s disposition of Bronson’s petition to interpret

       the Trust provisions. The trial court determined that pursuant to the Trust

       provisions, Harve is not a beneficiary and therefore had no standing to

       participate in the EU or TR causes. The June 7 order also made clear that the

       EU and TR causes were ongoing in that – at the least – property remained to be

       sold, distributions to the beneficiaries remained to be made, and additional

       motions remained to be decided. A final judgment “disposes of all claims as to

       all parties[.]” App. R. 2(H)(1). Although the June 7 order ended Harve’s

       participation in these cases, it did not dispose of all claims as to all other parties.




       6
        And, as with the order to sell property, if the June 7 order could have been considered a final judgment,
       Harve failed to file a notice of appeal within thirty days and therefore forfeited his right to appeal. See App.
       R. 9(A)(1), (5).

       Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020                       Page 10 of 12
[17]   Notwithstanding the possibility of this having been an interlocutory appeal of

       right or a final judgment as discussed above, Harve has attempted to bring this

       appeal as a discretionary interlocutory appeal. Accordingly, we apply

       Appellate Rule 14(B), which sets forth the following procedure for initiating

       such an appeal:


               An appeal may be taken from other interlocutory orders if the
               trial court certifies its order and the Court of Appeals accepts
               jurisdiction over the appeal.


       A motion requesting certification must be filed in the trial court within thirty

       days after the date of the interlocutory order. App. R. 14(B)(1)(a). But instead

       of requesting certification of the June 7 order within thirty days, Harve waited

       thirty-five days after the June 7 order was entered to file anything, and then

       began a campaign of filing repetitive motions in the trial court seeking relief

       from the June 7 order. Neither these repetitive motions nor the trial court’s

       August 2 order denying these repetitive motions extended the time for Harve to

       seek certification of the June 7 order.


[18]   Harve did not file his certification motion until September 3, 2019, nearly

       ninety days after the June 7 order was issued. Under Appellate Rule

       14(B)(1)(a), the trial court could have permitted a belated motion to certify if it

       found Harve had shown good cause and if the court set forth the basis for that

       finding. However, Harve did not request belated certification in his September

       3 motion, and the trial court did not find good cause for granting belated

       certification in its September 6 order. Accordingly, the June 7 order was not

       Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020   Page 11 of 12
       properly certified for interlocutory appeal and without proper certification, we

       have no jurisdiction to entertain this interlocutory appeal. Wise v. State, 997

       N.E.2d 411, 414 (Ind. Ct. App. 2013). Thus, our earlier decision to accept

       jurisdiction was improper, and we accordingly dismiss this appeal.



                                               Conclusion
[19]   For the reasons stated above, we dismiss this discretionary interlocutory appeal,

       lift the stay imposed by the order accepting jurisdiction, and remand to the trial

       court for further proceedings.


[20]   Dismissed and remanded.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-TR-2376 | July 17, 2020   Page 12 of 12
