Opinion
No. 30A01-1106-EU-226
10-05-2011
In re: THE UNSUPERVISED ADMINISTRATION OF THE ESTATE OF OZELLA T. SCHLOSSER, DECEASED
APPELLANT PRO SE : WILLIAM L. SCHLOSSER Schlosser & Schlosser Indianapolis, Indiana
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.
APPELLANT PRO SE:
WILLIAM L. SCHLOSSER
Schlosser & Schlosser
Indianapolis, Indiana
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Terry K. Snow, Judge
Cause No. 30D01-0805-EU-22
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN , Judge
William L. Schlosser appeals the trial court's denial of his petition to reopen the estate of his mother, Ozella T. Schlosser. William raises one issue on appeal which we revise and restate as whether the court erred in denying his petition to reopen the estate of his mother. We dismiss William's appeal.
On May 15, 2008, William filed an appearance, petition for appointment of local personal representative and ancillary administration, and consent to and nomination of local personal representative. That same day, the court entered an order appointing William as local personal representative. On October 21, 2008, Margaret Jean Schlosser, Peter Warren, and Isaac Warren each filed a disclaimer.
The record does not contain a copy of the appearance or petition.
The record does not contain copies of the disclaimers.
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On November 10, 2009, William filed a Personal Representative's Verified Closing Statement to Close Ancillary Estate upon Completion of Administration. The closing statement alleged in part:
1. That the decedent died testate on or about the 13th day of March, 2008, while domiciled in Sarasota County, in the State of Florida, but owning certain real estate located in Hancock County, Indiana.Appellant's Appendix at 7. On February 9, 2010, the court stated that "no objections having been filed to closing statement and request to close estate, court now considering same now approves said closing statement and closes this estate." Id. at 12.
2. That your petitioner was appointed local personal representative of the decedent's estate on the 15th day of May, 2008, and letters of administration were issued to him on the 20th day of May, 2008 and said petitioner was authorized to proceed under the provisions of the Indiana Code governing unsupervised estates.
3. That the administration of decedent's estate in Florida has been completed and said estate has been closed.
4. That the ancillary administration has been fully administered, taxes and expenses of administration have been paid, and all assets have been distributed to the person entitled thereto.
5. That the Indiana inheritance tax due by reason of the decedent's Indiana real estate has been paid. A copy of the Closing Letter issued by the Indiana Department of Revenue is attached hereto, along with a receipt for payment.
6. That a federal estate tax return was filed on behalf of the decedent, and a Closing Document was issued by the Internal Revenue Service. A copy is attached hereto.
7. All real estate owned by the decedent at the time of her death has been disposed of during the course of administration (deeded to the sole beneficiary pursuant to a Family Agreement and disclaimers).
8. Your petitioner being the sole beneficiary, there is no need to provide said beneficiary with a copy of this pleading nor a final accounting.
On May 12, 2011, William filed a petition to reopen the estate alleging that he "recently discovered that he omitted to deed the real estate owned by decedent to himself, as the only heir pursuant to a family agreement." Id. at 13. An entry dated May 13, 2011, states: "Court reviews petition to re-open estate and notes no certificate of service on any other parties. Court declines to authorize re-opening without proper service on other parties." Id. at 4.
On May 23, 2011, William filed a second petition to reopen the estate alleging:
Your petitioner being the sole beneficiary pursuant to a family agreement, there is no need to provide any beneficiary with a copy of this pleading. Said family agreement was executed by your petitioner and other heirs of the Decedent, together with appropriate disclaimers. In return for disclaiming her interest as a beneficiary in this Estate, petitioner's sister obtained sole ownership of Decedent's Florida residence, through Decedent's main Estate which was pending in Florida.Id. at 15-16. An entry dated May 24, 2011, states: "Court reviews second petition to reopen estate and notes that personal representative has refused to serve notice on other potential heirs. The court does not recognize 'family agreements' and requires service on all possible heirs before the court will allow reopening of this estate." Id. at 5.
The dispositive issue is whether this court has jurisdiction to consider William's appeal. We have the duty to determine whether we have jurisdiction over an appeal before proceeding to determine the rights of the parties on the merits. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied. Pursuant to Ind. Appellate Rule 5, this court has jurisdiction over appeals from final judgments of trial courts and only those interlocutory orders from trial courts that are brought in accordance with Ind. Appellate Rule 14.
William asserts in his notice of appeal that he is appealing from the May 13, 2011 order refusing to reopen the estate and the May 24, 2011 order refusing to reopen the estate and that these orders were final judgments. Ind. Appellate Rule 2(H) provides that a judgment is a final judgment if:
(1) it disposes of all claims as to all parties;The May 13, 2011 entry declined to authorize reopening the estate without proper service on the other parties. The May 24, 2011 entry noted that William refused to serve notice on other potential heirs and informed William that the court required service on all possible heirs before the court would allow the reopening of the estate. These orders do not fit into any of the categories set forth in Ind. Appellate Rule 2(H). Thus, the trial court's entries were not a "final judgment" for purposes of appellate jurisdiction.
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in
writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or
(5) it is otherwise deemed final by law.
Parties are permitted to appeal "as a matter of right" the following interlocutory orders:
(1) For the payment of money;Ind. Appellate Rule 14(A). The trial court's orders in which the court informed William that he needed to serve other parties or possible heirs does not fit into any of these categories. Thus, William was not entitled to appeal the court's orders as a matter of right.
(2) To compel the execution of any document;
(3) To compel the delivery or assignment of any securities, evidence of debt, documents or things in action;
(4) For the sale or delivery of the possession of real property;
(5) Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction;
(6) Appointing or refusing to appoint a receiver, or revoking or refusing to revoke the appointment of a receiver;
(7) For a writ of habeas corpus not otherwise authorized to be taken directly to the Supreme Court;
(8) Transferring or refusing to transfer a case under Trial Rule 75; and
(9) Issued by an Administrative Agency that by statute is expressly required to be appealed as a mandatory interlocutory appeal.
Other interlocutory orders may be appealed "if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal," Ind. Appellate Rule 14(B), or if an interlocutory appeal is provided by statute. Ind. Appellate Rule 14(D). There is no indication that William sought certification from the trial court or permission from this court to file a discretionary interlocutory appeal. Nor has William demonstrated a statutory right to appeal. Accordingly, we do not have jurisdiction over this appeal, and we must dismiss. See Moser v. Moser, 838 N.E.2d 532, 535-536 (Ind. Ct. App. 2005) (holding that this court did not have jurisdiction and dismissing the appeal because the trial court's order was not a final judgment and was not an interlocutory appeal of right), trans. denied.
For the foregoing reasons, we dismiss William's appeal of the trial court's orders. Dismissed. BAKER, J., and KIRSCH, J., concur.