Court of Appeals of Indiana | Memorandum Decision 46A05

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### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT Joseph J. Zaknoen Michigan City, Indiana A TTORNEY FOR A PPELLEE Douglas L. Biege LaPorte, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Unsupervised Estate: John W. Homan , Appellant

- Petitioner ,

v. 

### The Unsupervised Estate of Robert L. Homan, Deceased , Appellee

- Respondent February 6, 2018 Court of Appeals Ca se No. 46A05

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- 1357 Appeal from the LaPorte Circuit Court The Honorable Thomas J. Alevizos Trial Co urt Cause No. 46C01

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A ltice , 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) toCourt of Appeals of Indiana | Memorandum Decision 46A05

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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 fi led 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 it s order denying John’s petition to convert to supervised administration and grant ing Paul’s motion to strike John’s exhibits

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[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 h earing, but no order was issued. On June 20, 2017, John filed a notice of appeal in which he purport ed

to be appeal ing 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. Th is 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 con vert 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. Grou p 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 f ile 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

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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 E state 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 u nder 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 a ppeal”).

[8] Appeal dismissed.

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