Centier Bank v. Hurst (In re Hurst), Court of Appeals Case No. 45A03–1612–GU–2790

• Decision Date: 31 January 2018
• Docket Number: Court of Appeals Case No. 45A03–1612–GU–2790
• Citation: 93 N.E.3d 790
• Parties: In the MATTER OF the GUARDIANSHIP OF Nathaniel C. HURST, A Minor, Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst, Appellant–Defendant, v. Nathaniel C. Hurst, Appellee–Plaintiff.
• Court: Indiana Appellate Court

93 N.E.3d 790

In the MATTER OF the GUARDIANSHIP OF Nathaniel C. HURST, A Minor,Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst, Appellant–Defendant,

v.Nathaniel C. Hurst, Appellee–Plaintiff.

Court of Appeals Case No. 45A03–1612–GU–2790

Court of Appeals of Indiana.

FILED January 31, 2018

Attorney for Appellant : Alissa Kohlhoff, Kohlhoff Law P.C., Valparaiso, Indiana

Attorney for Appellee : Rebecca L. Billick, Billick Mediation & Family Law, Valparaiso, Indiana

OPINION ON REHEARING

Robb, Judge.

[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 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 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...