      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                          FILED
      this Memorandum Decision shall not be                                      Feb 06 2018, 10:02 am
      regarded as precedent or cited before any                                       CLERK
      court except for the purpose of establishing                                Indiana Supreme Court
                                                                                     Court of Appeals
      the defense of res judicata, collateral                                          and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Joseph J. Zaknoen                                        Douglas L. Biege
      Michigan City, Indiana                                   LaPorte, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Unsupervised Estate: John W.                             February 6, 2018
      Homan,                                                   Court of Appeals Case No.
      Appellant-Petitioner,                                    46A05-1706-EU-1357
                                                               Appeal from the LaPorte Circuit
              v.                                               Court
                                                               The Honorable Thomas J.
      The Unsupervised Estate of                               Alevizos
      Robert L. Homan, Deceased,                               Trial Court Cause No.
      Appellee-Respondent                                      46C01-1601-EU-20




      Altice, Judge.


                                               Case Summary


[1]   John W. Homan (John) appeals following the entry of an order denying his

      petition to convert the Unsupervised Estate of Robert L. Homan (the Estate) to

      Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018             Page 1 of 4
      a supervised estate and for other relief relating to the Estate and granting the

      motion to strike filed by the Estate’s personal representative, Paul F. Homan

      (Paul).


[2]   Concluding sua sponte that the order from which John appeals is neither a final

      judgment nor an appealable interlocutory order, we dismiss.


                                       Facts & Procedural History


[3]   Robert L. Homan (Robert) died on January 20, 2016. January 28, 2016, Paul

      filed a petition to probate Robert’s 2009 will. On February 18, 2016, the trial

      court entered an order admitting the will to probate, appointing Paul personal

      representative, and authorizing unsupervised administration of the Estate.


[4]   On August 1, 2016, John filed his petition to convert to supervised

      administration, in which he argued that the residuary of the Estate was the

      property of a trust Robert created prior to his death, of which John was the

      successor trustee. Paul filed a response in opposition and motion to strike two

      of John’s exhibits, and a hearing was held on August 23, 2016. On January 23,

      2017, the trial court issued its order denying John’s petition to convert to

      supervised administration and granting Paul’s motion to strike John’s exhibits.




      Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018   Page 2 of 4
[5]       John filed a “Motion to Correct Error”1 on February 21, 2017. Appellant’s

          Appendix Vol. 2 at 128. The trial court held another hearing, but no order was

          issued. On June 20, 2017, John filed a notice of appeal in which he purported

          to be appealing from a final judgment. Specifically, he asserted that the trial

          court’s January 23, 2017 order was a final judgment, and that his motion to

          correct error was deemed denied on May 27, 2017. This matter has been fully

          briefed and now comes before us for disposition.


                                                  Discussion & Decision


[6]       Whether an order is a final judgment governs our appellate jurisdiction. In re

          Estate of Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012) (citing Ind. Appellate

          Rule 5(A)). A final judgment is one which disposes of all claims as to all parties

          and puts an end to the particular case. Id. (citing App. R. 2(H)(1)).

          Additionally, a trial court may convert an otherwise interlocutory order into an

          appealable final judgment by including certain “magic language” set forth in

          Ind. Trial Rule 54(B). App. R. 2(H)(3); Botkins, 970 N.E.2d at 167. “The lack

          of [appellate] jurisdiction may be raised at any time, and where the parties do




      1
        Although it is of no real consequence under the circumstances of this case, we note that this motion was
      mislabeled. Because the January 23, 2017 order was not final (as we explain below), John’s purported “Motion
      to Correct Error” was in fact a motion to reconsider. See Citizens Indus. Group v. Heartland Gas Pipeline, LLC, 856
      N.E.2d 734, 737 (Ind. Ct. App. 2006) (explaining that “a party can only file a motion to reconsider with the court
      if the action remains in fieri” and “[i]f the trial court has issued a final judgment, the party must file a motion to
      correct errors rather than a motion to reconsider”), trans. denied; Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind. Ct.
      App. 2000) (treating a motion labeled a “Motion to Correct Error” filed before the entry of final judgment as a
      motion to reconsider), trans. denied; Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (1998) (holding that a “motion to
      reconsider” filed after the entry of final judgment must be considered a motion to correct error).



          Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018                Page 3 of 4
      not raise the issue, this court may consider it sua sponte.” Botkins, 970 N.E.2d at

      166.


[7]   This court has explained that “orders issued by a probate court are not final

      until the estate is closed.” See id. at 167. Here, because the Estate remained

      open after entry of the January 23, 2017 order and the trial court did not use the

      T.R. 54(B) “magic language,” that order does not constitute a final judgment.

      Further, this interlocutory order is not appealable as a matter of right under Ind.

      Appellate Rule 14(A) and no certification of the order by the trial court and

      acceptance of jurisdiction by this court under App. R. 14(B) has taken place.

      For all of these reasons, we lack jurisdiction to entertain this appeal, and we

      therefore dismiss. See Town of Ellettsville v. Despirito, 87 N.E.3d 9, 12 (Ind. 2017)

      (explaining that “in the 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”).


[8]   Appeal dismissed.


[9]   May, J. and Vaidik, C.J., concur.




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