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In re Unsupervised Estate of Lewis

Supreme Court of Indiana

June 3, 2019

In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr., Appellant,
v.
Shana Toliver and Kathy Calloway, Appellees.

          Argued: November 20, 2018

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

         On Petition to Transfer from the Indiana Court of Appeals, No. 41A01-1712-EU-2893

          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

          OPINION

          SLAUGHTER, JUSTICE

         In 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.

         Factual and Procedural History

         On July 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.

         After 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.

         Three 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 retain.

         On July 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.

         On 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.

         On 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 ...


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