In the Matter of the Guardianship of Nathaniel C. Hurst, Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst v. Nathaniel C. Hurst

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.

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[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
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 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.

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 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

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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.

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