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In re Unsupervised Estate of Owsley

Court of Appeals of Indiana

November 21, 2017

In re Unsupervised Estate of Cary A. Owsley
v.
Mark E. Gorbett, et al., Appellees. Logan A. Owsley, Appellant,

         Appeal from the Marion Superior Court The Honorable Steven R. Eichholtz, Judge Trial Court Cause No. 49D08-1602-EU-7407

          ATTORNEYS FOR APPELLANT Trent A. McCain McCain Law Offices, P.C. Merrillville, Indiana Curtis E. Shirley Law Office of Curtis E. Shirley Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEES Elizabeth A. Knight Joseph W. Smith Knight, Hoppe, Kurnik & Knight, Ltd. Schererville, Indiana.

          BROWN, JUDGE.

         [¶1] Logan A. Owsley appeals the Marion Superior Court's dismissal of his verified petition to open estate and the denial of his motion to correct error. Logan raises one issue which we revise and restate as whether the trial court abused its discretion in dismissing the estate proceeding. We affirm.

         Facts and Procedural History

         [¶2] On April 7, 2013, Cary Owsley died from a gunshot wound. In June 2014, the Bartholomew Circuit Court appointed Lisa Owsley as personal representative of the estate of Cary Owsley (the "Estate") under cause number 03C01-1406-ES-2796 ("Cause No. 2796"). In March 2015, Cheryl Owsley Jackson filed a verified petition under Cause No. 2796 to remove Lisa as personal representative or to appoint a special administrator. In April 2015, an attorney filed an appearance on behalf of Logan, Cary's son, and a memo in support of petitions.[1] On April 7, 2015, the court entered an order denying Jackson's petition and stating that Logan "has no matters pending before this Court and so this Court is not providing any affirmative or negative relief concerning Logan." Appellant's Appendix Volume II at 48.

         [¶3] On April 7, 2015, Logan filed a complaint in the United States District Court for the Southern District of Indiana under cause number 1:15-cv-00552-RLY-MJD (the "federal lawsuit") against Mark Gorbett, in his individual and official capacities as Sheriff of Bartholomew County; Ernest DeWayne Janes, Sr., Dean Johnson, Christie Nunemaker, Brent Worman, William Kinman, Jr., and Christopher Roberts in their individual and official capacities as Bartholomew County Sheriff's Deputies; and Larry Fisher, in his individual and official capacities as Bartholomew County Coroner. Logan alleged a "[b]otched [i]nvestigation" and a cover-up and brought the following claims: Count I, obstruction of justice; Count II, conspiracy to obstruct justice based on invidious discrimination; Count III, failure to intervene; Count IV, access to courts, right to seek remedy; Count V, intentional infliction of emotional distress; and Count VI, negligent infliction of emotional distress. Id. at 116.

         [¶4] On July 10, 2015, the defendants in the federal lawsuit filed a motion to dismiss Logan's complaint and asserted that Logan lacked standing to bring any causes of action and that he failed to state claims on which relief could be granted.

         [¶5] Meanwhile, in May 2015, Logan filed petitions to require a final accounting, to remove the personal representative, to distribute abandoned property, and for appointment of a special administrator in Cause No. 2796. On February 16, 2016, the Bartholomew Circuit Court entered an order granting Logan's petition to distribute property and denying the petitions filed by Logan to remove the executor and appoint a special administrator. The court approved the final accounting as testified to at a prior hearing. The court's order also states:

Whatever interest the Estate of Cary A. Owsley has in the federal lawsuit, the Court ASSIGNS such interest to Logan Owsley. He alone shall inherit and otherwise receive any benefit, proceeds, or relief afforded in the litigation pending in federal court.
There being no further issue before the Court, the Court DISCHARGES the personal representative and directs the Clerk to close this estate. Any surety is released.
Pursuant to trial rule 54(B) the Court finds no just reason for delay and enters this as a final, appealable order on all issues.

Id. at 131.

         [¶6] On February 29, 2016, Logan filed a Verified Petition to Open Estate for Limited Purpose and for Unsupervised Administration under cause number 49D08-1602-EU-7407 ("Cause No. 7407") in the Marion Superior Court. Logan requested to be appointed as the personal representative of the Estate for the sole purpose of managing and resolving the federal lawsuit.

         [¶7] That same day, the Marion Superior Court entered an order in Cause No. 7407 stating that the property at issue for the Estate in this matter belongs solely to Logan. The court stated that it had jurisdiction over this matter because the Estate property which remained for administration was the federal lawsuit located in Indianapolis. It appointed Logan as the ...


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