103 N.E.3d 1135
Ind. Ct. App.2018Background
- James Hurwich died; estate opened in 2004 and MacDonald (his daughter) was appointed personal representative and closed the estate in 2007.
- Hurwich alleged MacDonald failed to distribute ~600 items and later received certain gifts; he petitioned to reopen the estate in 2013 and a successor PR (Cholis) was appointed.
- In 2014 Hurwich sued MacDonald for mismanagement and breach of fiduciary duty; MacDonald moved to dismiss under T.R. 12(B)(6) as time-barred and the probate court dismissed with prejudice in 2015.
- While a motion to reconsider was pending, Hurwich sought leave to amend in 2016 to add fraud/fraudulent-concealment allegations; the probate court denied leave to amend.
- Successor PR Cholis later petitioned for distribution, filed a Supplemental Report of Distribution in March 2017, the court approved and closed the estate, but Cholis did not ensure statutorily required notice of the final account to interested parties.
- Hurwich moved to correct error asserting lack of notice/opportunity to object to the final report; the probate court denied relief. The appellate court affirmed denial of leave to amend but reversed the estate closing for failure to provide statutorily required notice and opportunity to object.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether probate court erred denying Hurwich leave to amend complaint after T.R.12(B)(6) dismissal | Hurwich argued he had a right to re-plead under T.R.12(B) and that fraudulent concealment could toll the statute of limitations | MacDonald argued the claim was time-barred under the probate code and the original pleading was invalid | Court held no error: Hurwich lost automatic right to amend because he filed >10 days after dismissal and did not show justice required leave; denial affirmed (but dismissal with prejudice was error and that challenge was untimely) |
| Whether the court properly closed the estate without giving statutory notice and an opportunity to object to the final account/report | Hurwich argued the probate code required the personal representative and clerk to give notice and set a deadline for written objections to a final account; he had a statutory right to object and was deprived of it | MacDonald (and successor PR) argued any error was harmless because Hurwich had earlier opportunities to be heard | Court held error: closing and approval of the Supplemental Report violated I.C. §29-1-16-6(b) notice/objection requirements; reversal and remand for notice and opportunity to object |
Key Cases Cited
- Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994) (Indiana policy favors liberal amendment of pleadings absent prejudice)
- Kuehl v. Hoyle, 746 N.E.2d 104 (Ind. Ct. App. 2001) (probate court has broad discretion on amendments; reversal only for abuse)
- In re Scott David Hurwich 1986 Irrevocable Tr., 59 N.E.3d 977 (Ind. Ct. App. 2016) (T.R.12(B)(6) dismissals generally without prejudice because amendment remains available)
- Meyer v. Beta Tau House Corp., 31 N.E.3d 501 (Ind. Ct. App. 2015) (statutory interpretation reviewed de novo; primary goal is legislative intent)