Court of Appeals of Indiana | Opinion on Rehearing 71A04-1705-EU-990| August 1, 2018 Page 1 of 4

OPINION ON REHEARING

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

August 1, 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.
Court of Appeals of Indiana | Opinion on Rehearing 71A04-1705-EU-990| August 1, 2018 Page 2 of 4

[1] Hurwich petitions for rehearing, arguing that he should be permitted to file an 

amended complaint.

[2] Hurwich first contends that we erred by finding that the probate court’s order 

dismissing Hurwich’s complaint against MacDonald with prejudice was a final 

judgment. Hurwich directs our attention to In re Estate of Botkins, 970 N.E.2d 

164, 167 (Ind. Ct. App. 2012), which notes “that orders issued by a probate 

court are not final until the estate is closed.” Hurwich reasons that because the 

Estate was open when the probate court entered its June 12, 2015, order 

dismissing Hurwich’s complaint, the dismissal was an interlocutory order and 

not a final judgment.

[3] Initially, we note that Hurwich’s argument is untimely because he did not raise 

these specific points on appeal. “It is axiomatic that an issue not briefed or 

urged in the original briefs on appeal generally cannot be raised for the first time 

in a petition for rehearing.” Strong v. Jackson, 781 N.E.2d 770, 772 (Ind. Ct. 

App. 2003). Nonetheless, we will address his argument. 

[4] In each of the two cases on which Hurwich relies, the probate court issued an 

order that related directly to how an estate was being administered at that time. 

In Botkins, during the disposition of the estate, the court issued an order 

regarding a petition to admit a different will to probate. 970 N.E.2d at 166. In 

Dawson v. Estate of Ott, the court issued an order regarding the personal 

representative’s petition for a set-off against a balance owed on a real estate lien. 

796 N.E.2d 1190, 1192-94 (Ind. Ct. App. 2003). We find the instant case 
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distinguishable from these two cases because here, the order issued by the 

probate court did not relate to the present administration of the Estate. Instead, 

the order dismissed a complaint alleging that MacDonald had mismanaged the 

Estate’s assets and had breached her fiduciary duties during the first

administration of the Estate, which ended six years before the Estate was 

reopened and seven years before the complaint was filed. The complaint was 

unrelated to the second administration of the Estate that was taking place when 

the complaint was filed and then dismissed. Therefore, because the probate 

court’s order was not related to how the Estate was presently being administered, 

the fact that the Estate was open when the probate court dismissed Hurwich’s 

complaint is irrelevant to the question of whether Hurwich should be able to file 

an amended complaint. Hurwich’s argument on this basis is unavailing.

[5] Hurwich also points out that, had the probate court entered its order without 

prejudice, as it should have done, he would have been able to file an amended 

complaint pursuant to Indiana Trial Rule 12(B). He contends that because the 

probate court dismissed his claim with prejudice, he was not able to do so, and 

instead filed a motion to reconsider. Yet, months later, he inexplicably decided 

to file a motion for leave to amend his complaint. 

[6] Now, following our opinion in which we found that the probate court erred by 

dismissing his complaint with prejudice, Hurwich asks this Court to instruct the 

probate court to vacate and re-enter its order without prejudice, thereby 

allowing him to file an amended complaint. But this request for relief was 

mentioned only briefly and vaguely in the conclusion of Hurwich’s appellate 
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brief; he did not include this request in his argument section or provide support

or reasoning to justify this particular manner of relief. Hurwich also contends 

that justice warrants allowing him leave to amend his complaint, but again, and 

as Hurwich acknowledges, this contention was not included in his appellate 

brief. His request on this basis simply comes too late. 

[7] While we grant this petition to address Hurwich’s argument, with these 

comments, we reaffirm our original decision.

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