Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
FILED
Jan 18 2013, 9:16 am
ATTORNEY FOR APPELLANT:
CLERK
of the supreme court,
court of appeals and
GORDON A. ETZLER tax court
Gordon A. Etzler & Associates, LLP
Valparaiso, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KELLY BERTHOLET STOKES, )
)
Appellant, )
)
vs. ) No. 64A05-1205-ES-237
)
ESTATE OF KENNETH STOKES, )
)
Appellee. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable John P. Shanahan, Temporary Judge
The Honorable Katherine R. Forbes, Magistrate
Cause No. 64D02-1103-ES-2450
January 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
After her former husband, Kenneth Stokes, died, Kelly Bertholet filed in the estate
proceedings a Motion for Reimbursement of Monies Seized by Bank. The probate court
denied the motion following a hearing. Bertholet filed a Motion to Correct Error, which was
denied after a hearing. Thereafter, Bertholet filed the instant interlocutory appeal pursuant to
Indiana Appellate Rule 14(A). We find the following issue dispositive: Does this court have
jurisdiction to hear this interlocutory appeal?
We dismiss.
Because we decide this case on jurisdictional grounds, we will focus primarily on the
procedural history of this case and set forth only a few underlying facts. Stokes died testate
on October 10, 2010, and the Estate was opened on March 24, 2011 in the Porter County
Superior Court. His surviving spouse was appointed personal representative.
On July 1, 2011, Bertholet filed a Motion for Reimbursement of Monies Seized by
Bank, seeking immediate reimbursement from the Estate of money that 1st Source Bank had
seized from Bertholet’s bank accounts, after Stokes’s death, to satisfy part of an obligation of
the Estate, for which Bertholet was still listed as a joint obligor. The Estate objected to the
motion on the basis that granting the motion would improperly treat Bertholet’s claim as a
priority claim. Following a hearing, the probate court denied the motion on July 28, 2011.
The court noted, however, that Bertholet “is not precluded by virtue of this ruling from filing
additional or amended claims herein.” Appendix at 42.
On August 26, 2011, Bertholet filed a motion to correct error. The probate court held
a hearing on April 4, 2012, and denied the motion to correct error that same day. Bertholet
2
filed her Notice of Appeal on May 4, 2012, indicating that this was an appeal as a matter of
right.
An appeal as a matter of right is allowed under App. Rule 14(A) only when the order
fits within an exclusive list of types of interlocutory orders. For our purposes, one of the
enumerated categories is an interlocutory order for “the payment of money”. App. R.
14(A)(1). The order in this case, however, did not require the payment of money; rather, it
denied the payment of money. Our appellate rules do not contemplate the denial of the
payment of money as a basis for an interlocutory appeal as a matter of right. See Appeal of
Wickersham, 594 N.E.2d 498 (Ind. Ct. App. 1992); Bayless v. Bayless, 580 N.E.2d 962 (Ind.
Ct. App. 1991), trans. denied. Because no basis exists for an interlocutory appeal as a matter
of right pursuant to App. R. 14(A), we must dismiss Bertholet’s appeal for lack of
jurisdiction. 1 See Rowe v. Ind. Dep’t of Correction, 940 N.E.2d 1218 (Ind. Ct. App. 2011),
trans. denied.
Dismissed.
BROWN, J., and PYLE, J., concur.
1
Even if this qualified as an interlocutory appeal as a matter of right, we would still lack jurisdiction. Rule
14(A) requires that the notice of appeal from an interlocutory order as a matter of right be filed “within thirty
(30) days after the notation of the interlocutory order in the Chronological Case Summary”. Here, the probate
court denied Bertholet’s motion for reimbursement on July 28, 2011. She did not file her notice of appeal until
May 4, 2012. Although Bertholet filed an intervening motion to correct error, this would not have tolled the
time requirements of Rule 14(A). See Young v. Estate of Sweeney, 808 N.E.2d 1217 (Ind. Ct. App. 2004)
(filing of a motion to correct error between the entry of an interlocutory order and the filing of the notice of
appeal does not save a litigant from procedural default).
3