In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr., Appellant,
Shana Toliver and Kathy Calloway, Appellees.
Argued: November 20, 2018
from the Johnson Superior Court, No. 41D01-1707-EU-179 The
Honorable Kevin M. Barton, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT Daniel J. Zlatic Rubino, Ruman,
Crosmer & Polen Dyer, Indiana
ATTORNEYS FOR APPELLEES Nathaniel Lee Faith E. Alvarez
Jennifer Lee Lee Cossell & Crowley LLP Indianapolis,
Indiana Edward A. McGlone Terre Haute, Indiana
Estate of Hammar, 847 N.E.2d 960 (Ind. 2006), we
held that a trial court may reconsider its appointment of a
special administrator for a decedent's estate without
implicating the statutory requirements for formally removing
an administrator. Applying Hammar, we affirm the
trial court's exercise of discretion here to reconsider
its initial appointment of the decedent's father as
special administrator. Though not required by statute or
trial rule, courts should nevertheless give notice and hold a
hearing before appointing a special administrator or
rescinding such an appointment.
and Procedural History
22, 2017, Orlando Lewis, Jr., died in a car crash in Monroe
County, along with his wife, Shante Lewis, and Shante's
mother, after a bus ran into the back of their stopped
vehicle. Of the vehicle's four passengers, the only
survivor was the Lewises' two-year-old daughter, K.L. In
addition to K.L., Lewis, Jr., was survived by his
six-year-old son, J.T., whose mother is Shana Toliver; and
both his parents, including his father, Orlando Lewis, Sr.
K.L. was treated for her injuries at Riley Children's
Hospital in Indianapolis, she was released to her aunt, Kathy
Calloway. Before the accident, Calloway was in regular
contact with K.L.'s parents and provided significant
financial support to the family. Afterward, on August 14,
Calloway was appointed as K.L.'s temporary guardian. K.L.
has remained with Calloway ever since.
days after the accident, on July 25, Orlando Senior, who
lives in Illinois, sought appointment in the Johnson Superior
Court as special administrator to Junior's estate so he
could pursue damages for the wrongful death of his late son.
Johnson County is where Junior and Shante lived when they
died. That court granted Senior's petition the next day
and issued letters of administration to Senior on August 1.
Letters of administration authorize a personal
representative, here a special administrator with limited
powers and duties, to manage the interests of a decedent. See
Ind. Code ch. 29-1-10. Senior then filed a wrongful-death
action for Junior's estate in the Monroe Circuit Court.
Senior's appointment as special administrator to file a
wrongful-death action meant he controlled this potentially
lucrative claim. And it positioned him to receive possible
remuneration both for himself and for the lawyers he would
26, Shana Toliver, J.T.'s mother, filed her own petition
for appointment as special administrator for Junior's
estate in the Marion Superior Court. Toliver supports J.T.,
who is medically disabled. The Marion County court appointed
Toliver as the special administrator on July 27 and issued
letters of administration. She then filed a wrongful-death
action for Junior's estate in Marion County.
August 28, Toliver sought to intervene in the Johnson County
proceedings and to remove Senior as special administrator of
Junior's estate. On August 30, Calloway also petitioned
to intervene in Johnson County, and on September 6 she asked
the trial court either to reconsider its appointment of
Senior as special administrator or to remove him. Both
Toliver and Calloway argued they should be appointed special
administrators because they are the legal and court-appointed
guardians of Junior's two dependent children, J.T. and
K.L., respectively. In contrast, before Junior's death,
Senior had met J.T. once and seen K.L. four or five times.
December 4, the Johnson County court ordered, in relevant
part, that: (1) venue was proper in Johnson County; (2) K.L.
and J.T. are beneficiaries of a wrongful-death action filed
on Junior's behalf; (3) it would reconsider and rescind
its prior appointment of Senior as special administrator and
vacate his letters of administration; and (4) it would
appoint Toliver and Calloway as ...