Unsupervised Estate: John W. Homan v. The Unsupervised Estate of Robert L. Homan, (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 6, 2018
• Docket: 46A05-1706-EU-1357
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 06 2018, 10:02 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Joseph J. Zaknoen Douglas L. Biege Michigan City, Indiana LaPorte, Indiana

IN THE COURT OF APPEALS OF INDIANA

Unsupervised Estate: John W. February 6, 2018 Homan, Court of Appeals Case No. Appellant-Petitioner, 46A05-1706-EU-1357 Appeal from the LaPorte Circuit v. Court The Honorable Thomas J. The Unsupervised Estate of Alevizos Robert L. Homan, Deceased, Trial Court Cause No. Appellee-Respondent 46C01-1601-EU-20

Altice, Judge.

Case Summary

[1] John W. Homan (John) appeals following the entry of an order denying his

petition to convert the Unsupervised Estate of Robert L. Homan (the Estate) to

Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018 Page 1 of 4 a supervised estate and for other relief relating to the Estate and granting the

motion to strike filed by the Estate’s personal representative, Paul F. Homan

(Paul).

[2] Concluding sua sponte that the order from which John appeals is neither a final

judgment nor an appealable interlocutory order, we dismiss.

Facts & Procedural History

[3] Robert L. Homan (Robert) died on January 20, 2016. January 28, 2016, Paul

filed a petition to probate Robert’s 2009 will. On February 18, 2016, the trial

court entered an order admitting the will to probate, appointing Paul personal

representative, and authorizing unsupervised administration of the Estate.

[4] On August 1, 2016, John filed his petition to convert to supervised

administration, in which he argued that the residuary of the Estate was the

property of a trust Robert created prior to his death, of which John was the

successor trustee. Paul filed a response in opposition and motion to strike two

of John’s exhibits, and a hearing was held on August 23, 2016. On January 23,

2017, the trial court issued its order denying John’s petition to convert to

supervised administration and granting Paul’s motion to strike John’s exhibits.

Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018 Page 2 of 4 [5] John filed a “Motion to Correct Error”1 on February 21, 2017. Appellant’s

Appendix Vol. 2 at 128. The trial court held another hearing, but no order was

issued. On June 20, 2017, John filed a notice of appeal in which he purported

to be appealing from a final judgment. Specifically, he asserted that the trial

court’s January 23, 2017 order was a final judgment, and that his motion to

correct error was deemed denied on May 27, 2017. This matter has been fully

briefed and now comes before us for disposition.

Discussion & Decision

[6] Whether an order is a final judgment governs our appellate jurisdiction. In re

Estate of Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012) (citing Ind. Appellate

Rule 5(A)). A final judgment is one which disposes of all claims as to all parties

and puts an end to the particular case. Id. (citing App. R. 2(H)(1)).

Additionally, a trial court may convert an otherwise interlocutory order into an

appealable final judgment by including certain “magic language” set forth in

Ind. Trial Rule 54(B). App. R. 2(H)(3); Botkins, 970 N.E.2d at 167. “The lack

of [appellate] jurisdiction may be raised at any time, and where the parties do

1 Although it is of no real consequence under the circumstances of this case, we note that this motion was mislabeled. Because the January 23, 2017 order was not final (as we explain below), John’s purported “Motion to Correct Error” was in fact a motion to reconsider. See Citizens Indus. Group v. Heartland Gas Pipeline, LLC, 856 N.E.2d 734, 737 (Ind. Ct. App. 2006) (explaining that “a party can only file a motion to reconsider with the court if the action remains in fieri” and “[i]f the trial court has issued a final judgment, the party must file a motion to correct errors rather than a motion to reconsider”), trans. denied; Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind. Ct. App. 2000) (treating a motion labeled a “Motion to Correct Error” filed before the entry of final judgment as a motion to reconsider), trans. denied; Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (1998) (holding that a “motion to reconsider” filed after the entry of final judgment must be considered a motion to correct error).

Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018 Page 3 of 4 not raise the issue, this court may consider it sua sponte.” Botkins, 970 N.E.2d at

166.

[7] This court has explained that “orders issued by a probate court are not final

until the estate is closed.” See id. at 167. Here, because the Estate remained

open after entry of the January 23, 2017 order and the trial court did not use the

T.R. 54(B) “magic language,” that order does not constitute a final judgment.

Further, this interlocutory order is not appealable as a matter of right under Ind.

Appellate Rule 14(A) and no certification of the order by the trial court and

acceptance of jurisdiction by this court under App. R. 14(B) has taken place.

For all of these reasons, we lack jurisdiction to entertain this appeal, and we

therefore dismiss. See Town of Ellettsville v. Despirito, 87 N.E.3d 9, 12 (Ind. 2017)

(explaining 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”).

[8] Appeal dismissed.

[9] May, J. and Vaidik, C.J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018 Page 4 of 4