In re the Scott David Hurwich 1986 Irrevocable Trust Scott D. Hurwich v. Stacey R. MacDonald
2016 Ind. App. LEXIS 316
Ind. Ct. App.2016Background
- Scott D. Hurwich (settlor and beneficiary) sued his former trustee, Stacey R. MacDonald, alleging mismanagement, commingling, conversion, waste, and breach of fiduciary duties; trustee removed Nov. 28, 2012.
- Hurwich filed suit Oct. 2, 2014; MacDonald moved to dismiss (statute of limitations, Trust exculpatory language, and insufficiency of factual allegations).
- Probate court granted dismissal with prejudice on June 12, 2015; Hurwich filed a motion to reconsider on June 22, 2015 (recast by the court and appellate panel as a motion to correct error).
- The court held hearings and set briefing schedules (parties agreed on briefing time limits at the July 27, 2015 hearing); a final hearing occurred Dec. 14, 2015, after which the court took the matter under advisement but made no ruling.
- The motion was deemed denied by operation of Trial Rule 53.3 thirty days after the court’s final inaction; Hurwich timely filed his notice of appeal on Feb. 9, 2016.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from post-judgment motion | Hurwich: motion filed after final judgment should be treated as a motion to correct error, not automatically denied under T.R. 53.4(B); appeal filed within applicable T.R. 53.3 deadlines | MacDonald: the motion was automatically denied under T.R. 53.4(B) five days after filing (or, if treated as motion to correct error, the court’s inaction resulted in deemed denial earlier than Hurwich’s appeal date) | Court: motion was properly treated as a motion to correct error; parties’ on-record agreement on briefing extended the ruling deadline; final hearing Dec. 14, 2015 meant motion was still being "heard"; deemed denial Jan. 13, 2016; Hurwich’s Feb. 9, 2016 appeal was timely |
| Appropriateness of dismissal under T.R. 12(B)(6) (including Trust exculpatory language and pleading sufficiency) | Hurwich: complaint satisfies notice pleading—alleges operative facts (mismanagement, commingling, conversion, waste, breach) and specifics may be developed in discovery; if deficient, dismissal should be without prejudice to amend | MacDonald: Trust language immunizes trustee from liability and complaint is conclusory and lacks factual specificity to put trustee on notice | Court: Trust language does not shield intentional misconduct (conversion/waste); complaint meets notice pleading requirements and places trustee on notice; if dismissal were appropriate, it should have been without prejudice and plaintiff allowed to amend. Judgment reversed |
Key Cases Cited
- Hubbard v. Hubbard, 690 N.E.2d 1219 (Ind. Ct. App. 1998) (post-judgment motions labeled "reconsider" should be treated as motions to correct error to avoid form-over-substance dismissal)
- Santelli v. Rahmatullah, 993 N.E.2d 167 (Ind. 2013) (on-record agreement to timetable for post-hearing submissions can extend the time to rule under Trial Rule 53.3)
- Burke v. Town of Schererville, 739 N.E.2d 1086 (Ind. Ct. App. 2000) (standard of review for T.R. 12(B)(6) dismissal)
- Noblesville Redev. Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558 (Ind. 1996) (notice pleading—operative facts must put defendant on notice)
- Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130 (Ind. 2006) (affirming stringency of review on motions to dismiss under notice-pleading standards)
- Godby v. Whitehead, 837 N.E.2d 146 (Ind. Ct. App. 2005) (principles for reviewing motions to dismiss)
- Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001) (T.R. 12(B)(6) dismissal is generally without prejudice; leave to amend applies)
- Platt v. State, 664 N.E.2d 357 (Ind. Ct. App. 1996) (same point on T.R. 12(B)(6) and amendment)
- Shields v. Taylor, 976 N.E.2d 1237 (Ind. Ct. App. 2012) (complaint sufficient if it puts a reasonable person on notice of why plaintiff sues)