Kelly Bertholet Stokes v. Estate of Kenneth Stokes

• Court: Indiana Court of Appeals
• Decided: January 18, 2013
• Docket: 64A05-1205-ES-237
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. FILED Jan 18 2013, 9:16 am

ATTORNEY FOR APPELLANT: CLERK of the supreme court, court of appeals and

GORDON A. ETZLER tax court

Gordon A. Etzler & Associates, LLP Valparaiso, Indiana

IN THE COURT OF APPEALS OF INDIANA

KELLY BERTHOLET STOKES, ) ) Appellant, ) ) vs. ) No. 64A05-1205-ES-237 ) ESTATE OF KENNETH STOKES, ) ) Appellee. )

APPEAL FROM THE PORTER SUPERIOR COURT The Honorable John P. Shanahan, Temporary Judge The Honorable Katherine R. Forbes, Magistrate Cause No. 64D02-1103-ES-2450

January 18, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge After her former husband, Kenneth Stokes, died, Kelly Bertholet filed in the estate

proceedings a Motion for Reimbursement of Monies Seized by Bank. The probate court

denied the motion following a hearing. Bertholet filed a Motion to Correct Error, which was

denied after a hearing. Thereafter, Bertholet filed the instant interlocutory appeal pursuant to

Indiana Appellate Rule 14(A). We find the following issue dispositive: Does this court have

jurisdiction to hear this interlocutory appeal?

We dismiss.

Because we decide this case on jurisdictional grounds, we will focus primarily on the

procedural history of this case and set forth only a few underlying facts. Stokes died testate

on October 10, 2010, and the Estate was opened on March 24, 2011 in the Porter County

Superior Court. His surviving spouse was appointed personal representative.

On July 1, 2011, Bertholet filed a Motion for Reimbursement of Monies Seized by

Bank, seeking immediate reimbursement from the Estate of money that 1st Source Bank had

seized from Bertholet’s bank accounts, after Stokes’s death, to satisfy part of an obligation of

the Estate, for which Bertholet was still listed as a joint obligor. The Estate objected to the

motion on the basis that granting the motion would improperly treat Bertholet’s claim as a

priority claim. Following a hearing, the probate court denied the motion on July 28, 2011.

The court noted, however, that Bertholet “is not precluded by virtue of this ruling from filing

additional or amended claims herein.” Appendix at 42.

On August 26, 2011, Bertholet filed a motion to correct error. The probate court held

a hearing on April 4, 2012, and denied the motion to correct error that same day. Bertholet

2 filed her Notice of Appeal on May 4, 2012, indicating that this was an appeal as a matter of

right.

An appeal as a matter of right is allowed under App. Rule 14(A) only when the order

fits within an exclusive list of types of interlocutory orders. For our purposes, one of the

enumerated categories is an interlocutory order for “the payment of money”. App. R.

14(A)(1). The order in this case, however, did not require the payment of money; rather, it

denied the payment of money. Our appellate rules do not contemplate the denial of the

payment of money as a basis for an interlocutory appeal as a matter of right. See Appeal of

Wickersham, 594 N.E.2d 498 (Ind. Ct. App. 1992); Bayless v. Bayless, 580 N.E.2d 962 (Ind.

Ct. App. 1991), trans. denied. Because no basis exists for an interlocutory appeal as a matter

of right pursuant to App. R. 14(A), we must dismiss Bertholet’s appeal for lack of

jurisdiction. 1 See Rowe v. Ind. Dep’t of Correction, 940 N.E.2d 1218 (Ind. Ct. App. 2011),

trans. denied.

Dismissed.

BROWN, J., and PYLE, J., concur.

1 Even if this qualified as an interlocutory appeal as a matter of right, we would still lack jurisdiction. Rule 14(A) requires that the notice of appeal from an interlocutory order as a matter of right be filed “within thirty (30) days after the notation of the interlocutory order in the Chronological Case Summary”. Here, the probate court denied Bertholet’s motion for reimbursement on July 28, 2011. She did not file her notice of appeal until May 4, 2012. Although Bertholet filed an intervening motion to correct error, this would not have tolled the time requirements of Rule 14(A). See Young v. Estate of Sweeney, 808 N.E.2d 1217 (Ind. Ct. App. 2004) (filing of a motion to correct error between the entry of an interlocutory order and the filing of the notice of appeal does not save a litigant from procedural default).