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In re Unsupervised Estate of Lewis

Court of Appeals of Indiana

July 13, 2018

In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr.,
v.
Shana Toliver and Kathy Calloway, Appellees-Respondents.[1] Orlando Lewis, Sr., Appellant-Petitioner,

          Appeal from the Johnson Superior Court The Honorable Kevin M. Barton, Judge Trial Court Cause No. 41D01-1707-EU-179

          Attorney for Appellant Daniel J. Zlatic Rubino, Ruman, Crosmer & Polen Dyer, Indiana.

          Attorney for Appellee Kathy Calloway Edward A. McGlone Terre Haute, Indiana.

          Attorneys for Appellee Shana Toliver Nathaniel Lee Jennifer Lee Faith Alvarez Lee Cossell & Crowley, LLP Indianapolis, Indiana.

          MATHIAS, JUDGE.

         [¶1] Orlando Lewis, Sr. ("Lewis, Sr.") appeals the Johnson Superior Court's order rescinding his appointment as the special administrator for the estate of his son Orlando Lewis, Jr. ("the Estate").

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] Lewis, Sr. is the father of Orland Lewis, Jr. ("Lewis, Jr."). Lewis, Jr. had two children-Son J.T., born in 2011 to Shana Toliver ("Toliver") and Daughter K.L., born in 2015 to Lewis, Jr.'s wife Shante Lewis ("Shante"). Toliver and Lewis, Jr. shared custody of Son J.T. with Toliver having primary physical custody.[2]

         [¶4] On July 22, 2017, a commercial bus owned by Miller Transportation, Inc. ran into the back of a stopped vehicle occupied by Lewis, Jr., his wife Shante, Daughter K.L., and Shante's mother Rose Ann Pettus ("Rose Ann") on a highway in Monroe County. Daughter K.L. was the only survivor. Aside from Daughter K.L., Lewis, Jr. was survived by his father, his mother Sharon Norals, and Son J.T.

         [¶5] After the accident, Shante's aunt and Rose Ann's sister Kathy Calloway ("Calloway") rushed to the hospital where Daughter K.L had been taken for treatment of her broken leg and other injuries. There, Calloway learned that Daughter K.L. was the only survivor, and after speaking with a caseworker from the Department of Child Services and completing the paperwork provided by that caseworker, Daughter K.L. was released from the hospital and into Calloway's care. Subsequently, Calloway filed for and was appointed as Daughter K.L.'s temporary guardian on August 14. And at the time of the events underlying this appeal, Calloway was awaiting a February 2018 hearing to become Daughter K.L.'s permanent guardian.

         [¶6] Three days after the accident, on July 25, Lewis, Sr., who at all relevant times has lived in Illinois, filed a petition for appointment as special administrator for the sole purpose of pursuing damages for the wrongful deaths of Lewis, Jr. and Shante in the Johnson Superior Court. The trial court granted Lewis, Sr.'s petition, and he was issued Letters of Administration on August 1.[3]

         [¶7] The very next day, on July 26, Son J.T.'s mother Toliver filed her own petition for appointment as special administrator for the Estate in the Marion County Superior Court. The court appointed Toliver as the special administrator on July 27 and issued letters of administration. The Marion Superior Court subsequently learned that Lewis, Sr. had filed his petition in Johnson County prior to Toliver's petition, and thereupon, the Marion Superior Court stayed its proceeding pending a determination of venue in the Johnson Superior Court.

         [¶8] On August 28, Toliver filed a petition to intervene in the Johnson County proceedings and a motion to remove Lewis, Sr. as special administrator of the Estate. On August 30, Calloway filed a similar petition to intervene, and on September 6, Calloway filed a motion asking the trial court to reconsider its appointment of Lewis, Sr. as special administrator of the Estate or to remove him. Both Toliver and Calloway argued in their motions that they should be appointed co-special administrators of the Estate because they are the legal guardian and court-appointed guardian of Lewis, Jr.'s two dependent children respectively.

         [¶9] On October 12, 2017, the trial court held a combined hearing in which it heard argument and evidence on all motions pending before it regarding the estates of both Lewis, Jr. and Shante. On December 4, the trial court issued an order in which it, in pertinent part and in regards to the Estate: (1) determined that venue was proper in Johnson County; (2) explained that the beneficiaries of a wrongful death action on behalf of Lewis, Jr. are his two minor children Daughter K.L. and Son J.T.; (3) reconsidered and rescinded its prior appointment of Lewis, Sr. as special administrator and vacated the letters of administration; and (4) appointed Toliver and Calloway as special co-personal representatives of the Estate for the limited purpose of pursuing the wrongful death claim on behalf of Daughter K.L. and Son J.T. Appellant's App. pp. 15- 20.

         [¶10] Lewis, Sr. now appeals.[4]

         Discussion and Decision

         [¶11] Lewis, Sr. contends that the trial court abused its discretion when it rescinded its appointment of him as special administrator of the Estate. Specifically, Lewis, Sr. maintains that he was appropriately appointed as the special administrator of the Estate under Indiana Code section 29-1-10-15, and thus the trial court abused its discretion when it removed him without complying with Indiana Code section 29-1-10-6 (the "Removal Statute"). Calloway[5] argues that because the Removal Statute was not involved in the court's decision, the trial

court acted within its discretion when it reconsidered and rescinded its order appointing Lewis, Sr. as special administrator. Therefore, Calloway maintains that the trial court did not err when it named her and Toliver as the special co-personal representatives of the Estate. Under the particular facts and circumstances presented here, we agree with Calloway.

         [¶12] Indiana Code section 29-1-10-15 provides that a trial court may ...


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