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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