Court of Appeals of Indiana | Opinion 71A04-1705-EU-990| May 30, 2018 Page 1 of 11

ATTORNEYS FOR APPELLANT

James M. Lewis

Michael J. Hays

Tuesley Hall Konopa LLP

South Bend, Indiana

ATTORNEY FOR APPELLEE

Timothy J. Maher

Barnes & Thornburg LLP

South Bend, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In Re the Estate of James E. 

Hurwich,

Scott D. Hurwich,

Appellant-Plaintiff,

v.

Stacey R. MacDonald,

Appellee-Defendant

May 30, 2018

Court of Appeals Case No.

71A04-1705-EU-990

Appeal from the St. Joseph Probate

Court

The Honorable Jeffrey L. Sanford,

Special Judge

Probate Court Cause No.

71J01-0412-EU-56

Baker, Judge.
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[1] James Hurwich was the father of Scott Hurwich (“Hurwich”) and Stacey 

MacDonald. The Estate of James Hurwich (“the Estate”) was opened in 2004 

following his death. MacDonald administered the Estate until it closed in 2007. 

In 2013, Hurwich petitioned to reopen the Estate, which the probate court 

granted. In 2014, Hurwich filed a complaint against MacDonald, alleging that 

she had mismanaged the Estate’s assets and breached her fiduciary duties. 

MacDonald filed a motion to dismiss Hurwich’s complaint, which the probate 

court granted. Hurwich then filed a motion for leave to amend his complaint, 

which the probate court denied. Meanwhile, a successor personal 

representative administered the Estate, issued a final report, and requested 

closure of the Estate. The probate court then closed the Estate. 

[2] Hurwich now appeals the probate court’s denial of his motion for leave to 

amend his complaint and the procedure the probate court followed when 

closing the Estate. Finding no reversible error regarding Hurwich’s motion but 

that the probate court failed to follow statutory procedure when closing the 

Estate, we affirm in part, reverse in part, and remand.

Facts

[3] The Estate was opened in 2004. MacDonald was appointed administrator of 

the Estate, and she administered it unsupervised until it was closed in 2007. 

Apparently, MacDonald failed to distribute approximately 600 items and assets 

belonging to her father before the Estate was closed. On March 6, 2013, 

Hurwich petitioned to reopen the Estate; the probate court granted Hurwich’s 
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petition. On June 18, 2013, the probate court appointed Paul Cholis as

successor personal representative for the Estate. On October 3, 2014, Hurwich

filed a complaint against MacDonald, under the Estate cause number EU-56, 

alleging that she had mismanaged the Estate’s assets and breached her fiduciary 

duties. On November 14, 2014, MacDonald filed a motion to dismiss 

Hurwich’s complaint under Indiana Trial Rule 12(B)(6), alleging that it had 

been untimely filed after the applicable statute of limitations had run. On June 

12, 2015, the probate court granted MacDonald’s motion and dismissed 

Hurwich’s complaint with prejudice.

[4] On June 22, 2015, Hurwich filed a motion to reconsider. On July 27, 2015, a 

hearing on the motion to reconsider took place, and the probate court took the 

issue under advisement. Then, on February 9, 2016, while the motion to 

reconsider was still pending, Hurwich filed a motion for leave to amend his 

complaint. In his proposed amended complaint, he alleged that MacDonald

had committed fraud when, in closing the Estate, she represented that she had 

fully administered the Estate and properly distributed all assets; he also alleged 

that she had taken personal property from the Estate for her own use.

[5] On May 6, 2016, Cholis filed a petition for instructions for “recovery of assets 

formerly owned by the decedent or in his possession at the time of his death.” 

Appellant’s App. Vol. II p. 42. In this petition, Cholis:

• Stated that MacDonald testified at her deposition that she had received 

gifts, including paintings, necklaces, diamond rings, and liquor bottles,

from her father within five years of his death. 
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• Stated that MacDonald “testified that she, as the former Personal 

Representative of the estate, did distribute to herself certain items of 

tangible personal property which [Cholis] believe[d] constituted partial 

distributions to her and which should be taken into account by charging 

her with the value of such items so distributed upon the final distribution 

of the remaining tangible personal property; . . .” Id. at 43. 

• Stated that there were “numerous items of tangible personal property” 

located at the decedent’s former residence that Cholis “believe[d] can and 

should be distributed among the three residuary beneficiaries of the 

estate” through an in-kind selection process and a public auction. Id.

• Requested the probate court to direct him to not attempt to recover items 

of tangible personal property that MacDonald identified as gifts that she 

received from her father before his death. Cholis cited to time limits in 

the probate code for proceedings against personal representatives and to 

case law in which a petition to re-open an estate was time-barred.

[6] On June 24, 2016, Hurwich filed a response to Cholis’s petition in which 

Hurwich stated that the parties wanted instruction from the probate court about 

how to determine whether the items that MacDonald testified were gifts were 

actually gifts from their father or whether they were self-distributed items. 

Hurwich requested, among other things, that Cholis identify and catalog each 

of the individual items in question. Hurwich also argued that the issue was not 

time-barred.

[7] A hearing took place on July 27, 2016. On July 29, 2016, the probate court 

denied Hurwich’s motion for leave to amend his complaint, finding that 

Hurwich was not entitled to amend a complaint that had been properly 

dismissed pursuant to the statute of limitations for relief against fraud. The 

probate court also found that Hurwich’s complaint was not a valid cause of 

action because Hurwich filed it as part of the estate administration, rather than 
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a separate cause of action, and therefore failed to pay a filing fee or have a 

summons issued. The probate court ordered for Hurwich and another 

beneficiary to have access to the decedent’s home for an in-kind selection 

process of the 600 items located there and for all assets not selected to be sold at 

a public auction. Lastly, the probate court ordered that Hurwich’s claim 

against MacDonald about gifts received before their father’s death was timebarred under the statute of limitations.

[8] Throughout the fall of 2016, Cholis distributed the Estate’s assets as ordered by 

the probate court. On March 10, 2017, Cholis filed a Supplemental Report of 

Distribution (“the Report”) in which he summarized the distribution of the 

Estate’s assets; listed the value of the assets that Hurwich, MacDonald, and 

another beneficiary received; requested that he be discharged as personal 

representative; and requested that the court order the Estate closed. That same 

day, the probate court approved the report and entered an order closing the 

Estate. On March 20, 2017, Cholis served a copy of the Report and the probate 

court’s signed order to Hurwich and other interested parties. On March 30, 

2017, Hurwich filed a motion to correct error, asking the probate court to 

vacate its order approving the Report because there was neither service nor an 

opportunity to object to the Report. On April 10, 2017, the probate court 

denied his motion. Hurwich now appeals.
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Discussion and Decision

I. Motion for Leave to Amend Complaint

[9] Hurwich first argues that the probate court erred by denying his motion for 

leave to amend his complaint because he has a “right” to re-plead his claim 

pursuant to Trial Rule 12(B). Appellant’s Br. p. 11. The probate court denied 

Hurwich’s motion for leave to amend his complaint, finding that Hurwich’s 

claim of fraud in his proposed complaint was barred by the six-year statute of 

limitations for relief against fraud and that his complaint was not a valid cause 

of action. Hurwich argues that he has a right to amend under Indiana Trial

Rule 12(B), that the probate court failed to consider his proposed allegation of 

fraudulent concealment that could toll the statute of limitations, and that the 

probate court misconstrued the nature of his complaint. MacDonald argues 

that Hurwich’s action was time-barred under the probate code and that 

Hurwich did not file a valid action. Although we reach the same outcome as 

the probate court, we disagree with the probate court’s and the parties’ analysis. 

[10] Indiana Trial Rule 12(B)(6) allows a party to move to dismiss a pleading for 

failure to state a claim upon which relief can be granted. Trial Rule 12(B) also 

provides that when a court dismisses a pleading under Rule 12(B)(6), “the 

pleading may be amended once as of right pursuant to Rule 15(A) within ten 

[10] days after service of notice of the court’s order sustaining the motion and 

thereafter with permission of the court pursuant to such rule.” Under Trial

Rule 15(A), “[a] party may amend his pleading once as a matter of course at 

any time before a responsive pleading is served . . . . Otherwise a party may 
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amend his pleading only by leave of court or by written consent of the adverse 

party; and leave shall be given when justice so requires.” To facilitate decisions

on the merits, “the Indiana Trial Rules generally implement a policy of liberal 

amendment of pleadings, absent prejudice to an opponent.” Kimberlin v. 

DeLong, 637 N.E.2d 121, 128 (Ind. 1994). The probate court has broad 

discretion in granting or denying amendments to the pleadings, and we will 

reverse only if the probate court’s decision is clearly against the logic and effect 

of the facts and circumstances before it or the reasonable deductions to be 

drawn therefrom. Kuehl v. Hoyle, 746 N.E.2d 104, 107 (Ind. Ct. App. 2001).

[11] According to Hurwich, Trial Rule 12(B) gives him the right to amend his 

complaint. However, Hurwich ignores the part of the rule that limits when a 

pleading may be amended as of right—it must be done within ten days after 

service of notice of the court’s order granting the motion to dismiss. Hurwich 

filed his motion for leave to amend his complaint on February 9, 2016, nearly 

eight months after the probate court granted MacDonald’s motion to dismiss. 

Accordingly, when Hurwich filed his motion for leave to amend his complaint, 

he had no automatic right to do so. And although a court may, under Rules 

12(B) and 15(A), allow a party to amend a pleading after those ten days have 

passed, the court is required to do so only “when justice so requires.” T.R.

15(A). Hurwich did not argue that justice required an amendment, and we 

decline to make the argument for him. The probate court did not err by 

denying his motion for leave to amend his complaint.
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[12] Hurwich also challenges the probate court’s decision to dismiss his motion with 

prejudice, arguing that a Trial Rule 12(B)(6) dismissal should be without 

prejudice. Hurwich is correct that a dismissal under this rule “is without 

prejudice, since the complaining party remains able to file an amended 

complaint within the parameters of the rule.” In re Scott David Hurwich 1986 

Irrevocable Tr., 59 N.E.3d 977, 984 (Ind. Ct. App. 2016) (citations and internal 

quotation marks omitted). Thus, the probate court erred by dismissing his 

complaint with prejudice. But a dismissal with prejudice is a final judgment, id.

at 980, and the time to appeal a final judgment is within thirty days after its 

entry is noted in the Chronological Case Summary. Ind. Appellate Rule 

9(A)(1). The probate court dismissed Hurwich’s complaint with prejudice on 

June 12, 2015. Hurwich did not appeal that decision until he filed his notice of 

appeal on May 9, 2017, nearly two years after the dismissal of his complaint.

His challenge to the probate court’s decision is untimely and unavailing. 

II. The Report

[13] Hurwich next argues that the probate court erred by denying him his statutory

right to object to the Report. Our primary goal in statutory construction is to 

ascertain and give effect to the intent of the legislature. Meyer v. Beta Tau House 

Corp., 31 N.E.3d 501, 513 (Ind. Ct. App. 2015). We apply a de novo standard 

of review to questions of statutory interpretation. Id. 

[14] Indiana’s Probate Code provides that when an estate is ready to be closed, the 

personal representative must “render a final account and at the same time 
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petition the court to decree the final distribution of the estate.” Ind. Code § 29-

1-17-2(a) (2007). “Upon the filing of any account in a decedent’s estate, hearing 

and notice thereof shall be had as set forth in this section.” I.C. § 29-1-16-6(a) 

(emphases added). The statute explains that

If the account is for final settlement the court or clerk shall set a 

date by which all objections to such final account and petition for 

distribution must be filed in writing and the clerk shall give notice 

to all persons entitled to share in the final distribution of said 

estate that a final report has been filed and will be acted upon by 

the court on the date set unless written objections are presented 

to the court on or before that date. The personal representative 

shall at the time said account is filed furnish to the clerk the 

names and addresses of all persons entitled to share in the 

distribution of the residue of said estate, whose names and 

addresses are known to the personal representative or may by 

reasonable diligence be ascertained as set forth in the personal 

representative's petition for distribution, together with sufficient 

copies of said notice prepared for mailing. The clerk shall send a 

copy of said notice by ordinary mail to each of said parties at 

least fourteen (14) days prior to such date. . . . 

I.C. § 29-1-16-6(b) (emphases added).

[15] Hurwich argues that the probate court erred by denying him an opportunity to 

object to the Report. The probate code explicitly mandates notice following the 

filing of any account. It requires that, following the filing of an account for final 

settlement, the personal representative give to the clerk the names and addresses 

of those entitled to share in the distribution of the estate and copies of notice 

prepared for mailing. It also requires that, when an account for final settlement 

is filed, the court or the clerk set a timeframe for objections and give notice to 
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those entitled to share in the distribution of the estate that a final report has 

been filed and that the court will act upon it on a certain date unless the court 

receives written objections within the stated timeframe. Here, it is undisputed 

that Hurwich is entitled to share in the distribution of the Estate, that Cholis

knew Hurwich’s name to furnish to the clerk for notice, and that Cholis did not 

fulfill his duties to ensure that notice was given regarding the Report. It is also 

undisputed that neither the probate court nor the clerk set a timeframe for 

objections or gave notice about the Report or the timeframe for objections. In 

other words, the probate court failed to follow proper statutory procedure when 

closing the Estate.

[16] MacDonald suggests that this error was harmless and not prejudicial because 

Hurwich had an opportunity to be heard before and during the July 27, 2016, 

hearing. It is true that Hurwich filed a written objection to Cholis’s petition for 

instructions before that hearing. But whether Hurwich objected to those 

instructions has no bearing on and is irrelevant to whether he had an 

opportunity to object to the Report, which was filed more than seven months 

later, on March 10, 2017. The probate code explicitly requires notice and an 

opportunity for objections to accounts for final settlements. Among other 

things, the Report leaves questions about how the assets that MacDonald 

distributed to herself were administered.

1

 Hurwich had a statutory right to

 

1 Cholis filed a petition for instructions on May 6, 2016. In this petition, he stated that MacDonald “testified 

that she, as the former Personal Representative of the estate, did distribute to herself certain items of tangible 
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receive notice of the filing of the Report and an opportunity to object to it, and 

he was denied this right. As it is apparent that he had reason to object, we find 

that he was harmed by the probate court’s failure to follow the procedure 

described in the probate code.

[17] We reverse the closure of the Estate and remand for further proceedings giving 

Hurwich the opportunity to object to the Report.

[18] The judgment of the probate court is affirmed in part, reversed in part, and 

remanded for further proceedings.

Kirsch, J., and Bradford, J., concur.

 

personal property which the [successor personal representative] believes constituted partial distributions to 

her and which should be taken into account by charging her with the value of such items so distributed upon 

the final distribution of the remaining tangible personal property; . . .” Appellant’s App. Vol. II p. 43. In 

other words, Cholis concluded that MacDonald had improperly distributed certain assets from the Estate and 

intended to take that distribution into account during the administration of the Estate. However, it is unclear 

from the Report whether MacDonald’s partial distributions to herself were, in fact, accounted for.