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Estate of Phelps v. Winters

United States District Court, N.D. Indiana, Fort Wayne Division

December 5, 2018

ESTATE OF THOMAS E. PHELPS by Julie Maloy, Special Administratrix of the Estate of Thomas Phelps, deceased, Plaintiff,
v.
JOHN A. WINTERS, FRONTIER NORTH, INC., FRONTIER COMMUNICATIONS CORPORATION, DOES I through XX, inclusive and ROE Business Entities I through XX, Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY JUDGE

         This matter is before the Court on the Motion of Erica Book to Intervene of Right or, in the Alternative, Permissively [DE 31], filed by Erica Book on September 7, 2018. On September 20, 2018, Plaintiff Estate of Thomas E. Phelps by Julie Maloy, Special Administratrix of the Estate of Thomas Phelps, deceased (“Plaintiff”) filed a response, and, on September 27, 2018, Erica Book filed a reply. This matter is also before the Court on a Supplemental Motion of Erica Book to Intervene of Right or, in the Alternative, Permissively [DE 36], filed at the direction of the Court on October 24, 2018. Plaintiff filed a response to the supplemental motion on November 7, 2018. Erica Book did not file a reply in support of the supplemental motion, and the time to do so has passed. For the reasons set forth below, the Court denies Erica Book's request to intervene.

         PROCEDURAL BACKGROUND

         On September 7, 2018, Erica Book filed the instant Motion to Intervene. However, she did not attach the proposed intervenor pleading as required by Federal Rule of Civil Procedure 24(c). Accordingly, on October 17, 2018, the Court took under advisement the Motion to Intervene and ordered Erica Book to file on or before October 24, 2018, a supplemental motion, attaching the proposed intervenor pleading as an exhibit. The Court cautioned that failure to do so may result in the denial of the Motion to Intervene. The Court further set deadlines for a response to and a reply in support of the supplemental motion. As noted above, Book filed the supplemental motion on October 24, 2018, with a proposed intervenor pleading as an exhibit.

         FACTUAL BACKGROUND[1]

         Thomas E. Phelps and Erica Book were married on October 19, 2013. As of January 28, 2015, Erica Book was no longer living in the marital home; the parties dispute the reason for Book's departure. The parties also dispute where Erica Book was living once she was no longer living in the marital home. On February 17, 2015, Erica Book filed for divorce from Thomas E. Phelps in the Steuben County Circuit Court, and the final hearing was set for December 1, 2015.

         On October 29, 2015, Thomas E. Phelps was killed by a driver of a Frontier semi-truck.

         Erica Book has one child with Thomas E. Phelps, K.P., who was a minor and dependent of Erica Book at the time of Thomas E. Phelps' death. Phelps was survived by one other dependent child and two adult non-dependent children. Thomas E. Phelps died without a will.

         On October 29, 2015, Erica Book drafted the initial estate documents and signed to be the administrator of the wrongful death action. On October 30, 2015, Attorneys John Haecker and John Grimm filed the initial estate documents, which were granted the same day.

         On October 30, 2015, an Emergency Motion was filed in the estate by a majority of Thomas E. Phelps' heirs, requesting that Thomas E. Phelps' mother, Julie Maloy, be appointed the administrator of the estate and the administrator of the wrongful death action. See (ECF 32, Ex. F (Ex. L)).

         On November 2, 2015, the Steuben County Circuit Court removed Erica Book as personal representative on the basis that divorce proceedings were pending on the date of Thomas E. Phelps' death, and the court appointed Julie Maloy as personal representative of the estate. See (ECF 32, Ex. G) (citing Ind. Code § 29-1-7-4(e)).

         On August 26, 2016, Erica Book retained attorney Michael Yoder, and Attorneys Haecker and Grimm withdrew their appearances on August 31, 2016. On November 4, 2016, Attorney Yoder withdrew his appearance as well.

         On November 28, 2016, Erica Book signed an Estate Settlement Agreement regarding the distribution of estate assets. See (ECF 32, Ex. A).

         Beginning in January 2017, the law firm of Ernsberger & Helmer, Attorneys at Law, P.C. (“Ernsberger law firm”) represented Erica Book in a guardianship proceeding in the Steuben County Circuit Court involving K.P., Book's minor daughter with Thomas E. Phelps. See (ECF 31, Ex. 1) ...


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