OPINION ON REHEARING FILED
Aug 01 2018, 7:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
James M. Lewis Timothy J. Maher
Michael J. Hays Barnes & Thornburg LLP
Tuesley Hall Konopa LLP South Bend, Indiana
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Estate of James E. August 1, 2018
Hurwich, Court of Appeals Case No.
71A04-1705-EU-990
Scott D. Hurwich, Appeal from the St. Joseph
Appellant-Plaintiff, Probate Court
The Honorable Jeffrey L. Sanford,
v. Special Judge
Probate Court Cause No.
Stacey R. MacDonald, 71J01-0412-EU-56
Appellee-Defendant
Baker, Judge.
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[1] Hurwich petitions for rehearing, arguing that he should be permitted to file an
amended complaint.
[2] Hurwich first contends that we erred by finding that the probate court’s order
dismissing Hurwich’s complaint against MacDonald with prejudice was a final
judgment. Hurwich directs our attention to In re Estate of Botkins, 970 N.E.2d
164, 167 (Ind. Ct. App. 2012), which notes “that orders issued by a probate
court are not final until the estate is closed.” Hurwich reasons that because the
Estate was open when the probate court entered its June 12, 2015, order
dismissing Hurwich’s complaint, the dismissal was an interlocutory order and
not a final judgment.
[3] Initially, we note that Hurwich’s argument is untimely because he did not raise
these specific points on appeal. “It is axiomatic that an issue not briefed or
urged in the original briefs on appeal generally cannot be raised for the first time
in a petition for rehearing.” Strong v. Jackson, 781 N.E.2d 770, 772 (Ind. Ct.
App. 2003). Nonetheless, we will address his argument.
[4] In each of the two cases on which Hurwich relies, the probate court issued an
order that related directly to how an estate was being administered at that time.
In Botkins, during the disposition of the estate, the court issued an order
regarding a petition to admit a different will to probate. 970 N.E.2d at 166. In
Dawson v. Estate of Ott, the court issued an order regarding the personal
representative’s petition for a set-off against a balance owed on a real estate lien.
796 N.E.2d 1190, 1192-94 (Ind. Ct. App. 2003). We find the instant case
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distinguishable from these two cases because here, the order issued by the
probate court did not relate to the present administration of the Estate. Instead,
the order dismissed a complaint alleging that MacDonald had mismanaged the
Estate’s assets and had breached her fiduciary duties during the first
administration of the Estate, which ended six years before the Estate was
reopened and seven years before the complaint was filed. The complaint was
unrelated to the second administration of the Estate that was taking place when
the complaint was filed and then dismissed. Therefore, because the probate
court’s order was not related to how the Estate was presently being administered,
the fact that the Estate was open when the probate court dismissed Hurwich’s
complaint is irrelevant to the question of whether Hurwich should be able to file
an amended complaint. Hurwich’s argument on this basis is unavailing.
[5] Hurwich also points out that, had the probate court entered its order without
prejudice, as it should have done, he would have been able to file an amended
complaint pursuant to Indiana Trial Rule 12(B). He contends that because the
probate court dismissed his claim with prejudice, he was not able to do so, and
instead filed a motion to reconsider. Yet, months later, he inexplicably decided
to file a motion for leave to amend his complaint.
[6] Now, following our opinion in which we found that the probate court erred by
dismissing his complaint with prejudice, Hurwich asks this Court to instruct the
probate court to vacate and re-enter its order without prejudice, thereby
allowing him to file an amended complaint. But this request for relief was
mentioned only briefly and vaguely in the conclusion of Hurwich’s appellate
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brief; he did not include this request in his argument section or provide support
or reasoning to justify this particular manner of relief. Hurwich also contends
that justice warrants allowing him leave to amend his complaint, but again, and
as Hurwich acknowledges, this contention was not included in his appellate
brief. His request on this basis simply comes too late.
[7] While we grant this petition to address Hurwich’s argument, with these
comments, we reaffirm our original decision.
Kirsch, J., and Bradford, J., concur.
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