Court of Appeals of Indiana | Memorandum Decision 19A-EU-38 | May 28, 2019 Page 1 of 11

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.

ATTORNEYS FOR 

APPELLANT/CROSS-APPELLEE

James M. Lewis

Michael J. Hays

Tuesley Hall Konopa LLP

South Bend, Indiana

ATTORNEY FOR 

APPELLEE/CROSS-APPELLANT

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/Cross-Appellee/Plaintiff,

v.

Stacey MacDonald,

Appellee/Cross-Appellant/Defendant.

May 28, 2019

Court of Appeals Case No.

19A-EU-38

Appeal from the St. Joseph Probate 

Court

The Honorable Jeffrey Sanford,

Special Judge

Trial Court Cause No.

71J01-0412-EU-56

Bradford, Judge.
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Case Summary

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

MacDonald (“MacDonald”). Following his death in 2004, the Estate of James 

Hurwich (“the Estate”) was administered by MacDonald and closed in 2007. In 

2013, Hurwich moved to reopen the Estate, which motion the probate court 

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

she had breached her fiduciary duties as the Estate’s personal representative and 

mismanaged its assets. MacDonald moved to dismiss Hurwich’s complaint, 

which motion the probate court granted. Hurwich then moved for leave to 

amend his complaint, which motion was denied by the probate court. In 2018, 

we affirmed that denial and remanded for reasons that are not relevant to this 

appeal. On remand, MacDonald requested that she be awarded attorney’s fees. 

The probate court awarded MacDonald $44,444.00 in attorney’s fees. Hurwich 

appeals, contending that because his claims were not frivolous, unreasonable, 

or groundless, the probate court erroneously awarded MacDonald attorney’s 

fees. MacDonald cross-appeals, contending that the probate court should have 

awarded her approximately $40,306.50 more in attorney’s fees and requesting 

that we award her appellate attorney’s fees and costs. Because we disagree with 

both Hurwich’s and MacDonald’s contentions, we affirm. 

Facts and Procedural History

[2] We stated the underlying facts of this case in a prior appeal as follows:
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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 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.

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.

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, 
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diamond rings, and liquor bottles, from her father within 

five years of his death.

• 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 reopen an estate was time-barred.

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.
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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 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 time-barred under the 

statute of limitations.

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.

In re Estate of Hurwich, 103 N.E.3d 1135, 1137–38 (Ind. Ct. App. 2018), reaff’d on 

reh’g In re Estate of Hurwich, 109 N.E.3d 416 (Ind. Ct. App. 2018). In the 
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previous appeal, we concluded that the probate court did not err by denying 

Hurwich’s motion to amend his complaint. Although we noted that the 

dismissal should have been without prejudice, we found that Hurwich’s appeal 

of that decision two years after it was decided was untimely and unavailing.

[3] On remand, MacDonald sought to recover attorney’s fees. On December 13, 

2018, the probate court awarded her attorney’s fees in the amount of $44,444.00

after finding that Hurwich’s complaint was frivolous, unreasonable, or 

groundless pursuant to Indiana Code section 34-52-1-1.

Discussion and Decision

I. Award of Attorney’s Fees

[4] Hurwich contends that the trial court erroneously awarded MacDonald 

attorney’s fees pursuant to Indiana Code section 34-52-1-1. A probate court 

may award attorney’s fees if the court finds that a party brings a claim that is 

frivolous, unreasonable, or groundless. Ind. Code § 34-52-1-1(b)(1). 

The trial court’s decision to award attorney’s fees under § 34-51-

1-1 is subject to a multi-level review: the trial court’s findings of 

facts are reviewed under the clearly erroneous standard and legal 

conclusions regarding whether the litigant’s claim was frivolous, 

unreasonable, or groundless are reviewed de novo. Finally, the 

trial court’s decision to award attorney’s fees and any amount 

thereof is reviewed for an abuse of discretion. A trial court abuses 

its discretion if its decision clearly contravenes the logic and 

effect of the facts and circumstances or if the trial court has 

misinterpreted the law. 
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Purcell v. Old Nat. Bank, 972 N.E.2d 835, 843 (Ind. 2012) (internal citations 

omitted). A claim is frivolous if it is brought primarily for the purpose of 

harassment, if the attorney is unable to make a good faith and rational 

argument on the merits of the action, or if the attorney is unable to support the 

action taken by a good faith and rational argument for an extension, 

modification, or reversal of existing law. Yoost v. Zalceburg, 925 N.E.2d 763, 772 

(Ind. Ct. App. 2010), trans. denied. A claim is unreasonable if, based on the 

totality of the circumstances, including the law and facts known at the time of 

filing, no reasonable attorney would consider the claim worthy of litigation. Id. 

A claim is groundless if there are no facts existing that support the legal claim 

presented by the losing party. Id.

[5] We conclude that the probate court did not err in awarding MacDonald 

attorney’s fees. Hurwich brought his original complaint against MacDonald 

more than seven years after the Estate was originally closed, which was far after

the applicable statutes of limitations had run. We note that the purpose of 

statutes of limitations is to encourage the prompt filing of claims. This not only 

prevents the litigation of stale claims but also allows Hoosiers to live their lives 

without endlessly waiting for the axe to fall. See Perryman v. Motorist Mut. Ins. 

Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006) (“The general purpose of a 

statute of limitation is to encourage the prompt presentation of claims...They 

are practical and pragmatic devices to spare the courts from litigation of stale 

claims, and the citizen from being put to his defense after memories have faded, 

witnesses have died or disappeared, and evidence has been lost.”). Given that 
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Indiana Code section 34-52-1-1 is written in the disjunctive, Hurwich’s claims 

need only be frivolous, unreasonable, or groundless, but not all three. That said, 

based on the totality of the circumstances in this matter, no reasonable attorney 

would consider claims worthy of litigation well after the applicable statutes of 

limitations have run. 

[6] Hurwich specifically argues that had he been permitted to amend his complaint

to allege fraudulent concealment, his claim would not have been frivolous, 

unreasonable, or groundless because it would have been within the applicable 

statute of limitations. The probate court, however, denied Hurwich the 

opportunity to amend his complaint, which we affirmed on appeal. Therefore,

his argument is without merit, and he has failed to establish that his claims were 

not frivolous, unreasonable, or groundless. 

II. Amount of Attorney’s Fees

[7] MacDonald contends that the trial court erroneously interpreted the amount of 

attorney’s fees attributable to the instant action outlined in her request, and in 

doing so, failed to award approximately $40,306.50 in additional fees. We 

review a probate court’s decision to award attorney’s fees and any amount 

thereof for an abuse of discretion. Purcell, 972 N.E.2d at 843. Again, a probate 

court abuses its discretion if its decision clearly contravenes the logic and effect 

of the facts and circumstances or if the probate court has misinterpreted the law. 

Id. 
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[8] We conclude that the probate court did not abuse its discretion in awarding the 

amount of attorney’s fees it did. First, it appears that the probate court took into 

account the verified statements outlining the fees and MacDonald’s attorney’s 

explanation of said statements made during the evidentiary hearing, finding as 

follows:

After reviewing the billing of Stacey MacDonald’s attorney, the 

Court finds the hourly rate to be reasonable; however, the Court 

does not find that all the work submitted was related to the 

lawsuit. Therefore, the Court now awards $44,444.00 in attorney 

fees to Stacey MacDonald, payable by Scott Hurwich. 

Appellant’s App. Vol. II pp. 13–14. The probate court was free to reject this 

evidence from MacDonald’s attorney, and we will not second-guess its 

evaluation of the evidence. 

[9] Moreover, Indiana Code section 34-52-1-1, states that the probate court may

award attorney’s fees if a claim is frivolous, unreasonable, or groundless. 

(emphasis added). The statute does not require the probate court to award 

attorney’s fees nor does it require the entire amount accumulated defending the 

claims be awarded if the probate court chooses to award fees. Given the 

discretionary nature of the statute coupled with the probate court’s explanation 

in its order, we cannot say that the amount awarded was an abuse of discretion. 

III. Appellate Attorney’s Fees

[10] MacDonald requests that the attorney’s fees and costs incurred in this appeal be 

awarded. Indiana Appellate Rule 66(E) provides that we “may assess damages
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if an appeal...is frivolous or in bad faith. Damages shall be in the Court’s 

discretion and may include attorneys’ fees.” 

Our discretion to award attorney fees under Appellate Rule 66(E) 

is limited to instances when an appeal is permeated with 

meritlessness, bad faith, frivolity, harassment, vexatiousness, or 

purpose of delay. Moreover, while we have discretionary 

authority to award damages on appeal, we must use extreme 

restraint when exercising this power because of the potential 

chilling effect upon the exercise of the right to appeal. A strong 

showing is required to justify an award of appellate damages, and 

the sanction is not imposed to punish mere lack of merit, but 

something more egregious. Just as pro se litigants are required to 

follow all of the rules of appellate procedure, they are also liable 

for attorney fees when they disregard the rules in bad faith. 

Indiana appellate courts have categorized claims for appellate

attorney fees into substantive and procedural bad faith claims. To 

prevail on a substantive bad faith claim, the party must show that 

the appellant’s contentions and arguments are utterly devoid of 

all plausibility. Substantive bad faith implies the conscious doing 

of wrong because of dishonest purpose or moral obliquity. 

Poulard v. LaPorte Cty. Election Bd., 922 N.E.2d 734, 737–38 (Ind. Ct. App. 2010) 

(internal quotations and citations omitted). 

[11] MacDonald contends that because Hurwich’s claims were found to be

frivolous, unreasonable, or groundless by the probate court, this appeal is 

likewise frivolous or in bad faith. We cannot agree with this line of reasoning,

because adopting it would render appeals of attorney’s fees which are awarded 

under Indiana Code section 34-52-1-1 meaningless. Although Hurwich’s 
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original complaint was frivolous, unreasonable, or groundless, his decision to 

appeal a decision that requires him to pay over $40,000 in attorney’s fees is 

entirely reasonable. Therefore, we deny MacDonald’s request for appellate 

attorney’s fees and costs. 

[12] The judgment of the probate court is affirmed.

Crone, J., and Tavitas, J., concur.