Barbara A. Shirley v. Donna Jent (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 15 2017, 9:34 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Joseph Leon Payne John W. Mead
Austin, Indiana Mead, Mead & Clark, P.C.
Salem, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Barbara A. Shirley, November 15, 2017
Appellant, Court of Appeals Case No.
88A05-1703-ES-508
v. Appeal from the Washington
Circuit Court
Donna Jent, The Honorable Larry W. Medlock,
Appellee. Judge
Trial Court Cause No.
88C01-1511-ES-100
Brown, Judge.
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[1] Barbara A. Shirley appeals from an order of the trial court removing her as
personal representative of the estate of Doug Bieghler. Shirley raises one issue
which we revise and restate as whether the court abused its discretion in
removing her as the personal representative of the estate. We affirm.
Facts and Procedural History
[2] On July 15, 2015, Shirley filed a Petition for Appointment of Personal
Representative in the estate of her son Doug Bieghler under cause number
88C01-1507-EU-61 (“Cause No. 61”), and the following day the court issued an
order granting the petition and ordering unsupervised administration. A
number of claims were filed against the estate, including several by Donna Jent.
The chronological case summary includes entries which indicate that Jent or
her attorney filed claims for “List of Gifts,” “$8,000.00,” “$9,935.00,”
“Wheeler, gift,” and “Claim #5: 1/2 Net Estate,” and “Claim #5-A for Baler
parts and manual and for 580K Case Backhoe.” Appellant’s Appendix Volume
2 at 4. On November 18, 2015, Jent filed a Petition for Revocation of Order
Granting Unsupervised Administration. On November 23, 2015, the court
issued an Order Revoking Unsupervised Administration stating that, from that
day forward, Shirley as personal representative of the estate of Bieghler shall
proceed according to the provisions of the Indiana Code governing supervised
estates.
[3] On November 24, 2015, the estate action was transferred from Cause No. 61 to
cause number 88C01-1511-ES-100 (“Cause No. 100”). In December 2015, Jent
filed a Motion for Declaratory Judgment. On March 8, 2016, Shirley as
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administrator of Bieghler’s estate and Jent filed an Agreement Satisfying Claims
of Donna Jent which provided that Jent would receive certain personal
property, would be reimbursed by the estate for the funeral bill of $9,935 and
would be paid $8,000 to satisfy her claim upon sufficient funds being received
by the estate; that Jent would return certain personal property to Shirley as
administrator of the estate; and that Jent would dismiss her motion for
declaratory judgment. The first page of the agreement included language
stating “this agreement satisfies all claims made or to be made by Donna Jent
and she releases the Estate of Doug Bieghler from any further claim, obligation
or liability,” this language was crossed out, and the initials of Shirley and Jent
appear next to the crossed-out language. Appellee’s Appendix Volume 2 at 2.
[4] On June 2, 2016, Shirley filed a Motion for Court Authority to Pay Claims and
Costs of Administration which stated that many of the estate assets were sold at
an auction on April 30, 2016, making the estate solvent and liquid enough to
make payment of most pending claims, and which requested authority to pay
certain claims and costs. The motion, in listing claims, stated in part: “#5
Donna Jent - ½ of net estate - disallowed to be set for mediation.” Appellant’s
Appendix Volume 2 at 50. On August 3, 2016, Jent filed a motion to dismiss
her request for declaratory judgment, and on August 5, 2016, the court granted
the motion to dismiss.
[5] On October 17, 2016, Shirley as administrator of the estate filed a Personal
Representative’s Final Accounting and Petition to Settle and Allow Accounting
which stated in part that upon his death the decedent was the sole owner of
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10.48 acres of unimproved real estate and the real estate is to be transferred to
Shirley and the decedent’s brother as tenants in common, that the personal
property of the estate was sold at public auction, that the amount left after final
distributions was $12,869.71, and that all distribution of the estate’s assets was
accomplished upon certain payments including $6,434.85 to the decedent’s
brother, $6,434.86 to Shirley, and “10.48 Acres to [the decedent’s brother] and
Barbara Shirley.” Appellant’s Appendix Volume 2 at 19.
[6] On December 2, 2016, Jent filed a Motion for Leave of Court to Amend Claim
alleging that she and the decedent cohabitated for many years, she worked side
by side with the decedent in the conduct of his business, she was never
compensated for her labor and services, and she should be permitted to pursue a
wage claim. Also on December 2, 2016, Jent filed a Petition for Removal of
Personal Representative alleging that Shirley failed to properly account for all
known property and assets of the decedent, disposed of property and assets of
the decedent without fair, just and adequate compensation, failed to adjust,
resolve or compromise the claim filed by Jent, failed to file a complete
inventory of the property and assets of the decedent, and failed to properly
account for the decedent’s debts and obligations. On December 9, 2016, the
court granted Jent’s Motion for Leave to Amend Claim.
[7] On January 20, 2017, Jent filed an Amended Claim in which she alleged that a
partnership between herself and the decedent arose as a result of a seventeen-
year relationship in which she and the decedent cohabitated as husband and
wife. She alleged that throughout the relationship the decedent was engaged in
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the business of installing agricultural tile, that she worked side by side with him
and provided services and labor in the installation of tile, that she was never
compensated for her services, and that she should be compensated for her labor
in a wage comparable to that of a construction wage for laborers. Jent sought
damages in an amount equal to one-half of the decedent’s net distributable
estate or $200,000, whichever is greater, and attorney fees and costs.
[8] On January 23, 2017, the court held a hearing on Jent’s Petition for Removal of
Personal Representative at which it heard testimony from Jent, Shirley, the
decedent’s brother, and James Moon. On February 6, 2017, the court issued an
Order Removing Personal Representative and Appointing Successor Personal
Representative. The order provides in part:
3. Removal of Barbara Shirley as personal representative is
appropriate as a result of the following:
• Failed to properly account for all known property and
assets of the decedent;
• Disposed of property and assets of the decedent
without fair, just, and adequate compensation;
• Failed to adjust, resolve, or compromise the claim filed
by claimant, Donna Jent;
• Failed to file a complete inventory of the property and
assets of the decedent; and
• Failed to properly account for the debts and obligations
of the decedent.
4. Removal of the original personal representative and
appointment of the successor personal representative is in the
best interests of all of the beneficiaries under the decedent’s will.
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5. The parties will have 5 business days to agree on the person to
be appointed as the successor personal representative. If the
parties do not reach an agreement, the Court will appoint an
uninterested personal representative.
Appellant’s Appendix Volume 2 at 18. Shirley appealed the court’s order. The
trial court later subsequently appointed Andrew Wright as special personal
representative.
Discussion
[9] The issue is whether the trial court abused its discretion in removing Shirley as
the personal representative of the estate.1 “A court of probate jurisdiction has
great latitude and wide discretion in matters concerning the appointments and
the removal of administrators . . . , and this court will not attempt to control or
interfere with the Probate Court’s action therein, except in a case where it is
clear that its discretion has been abused.” Hauck v. Second Nat. Bank of
Richmond, 153 Ind. App. 245, 267, 286 N.E.2d 852, 865 (1972) (citing Helm v.
Odle, 129 Ind. App. 478, 480, 157 N.E.2d 584, 585 (1959)), reh’g denied. Ind.
Code § 29-1-10-6(b) provides:
When the personal representative becomes incapacitated (unless
the incapacity is caused only by a physical illness, infirmity, or
impairment), disqualified, unsuitable or incapable of discharging
1
Jent asks us to dismiss on grounds that Shirley did not name Andrew Wright as special personal
representative as a party to this appeal. Shirley was required to file, and did file, her notice of appeal well
before the trial court issued its order appointing Wright, Wright filed his oath, and letters of administration
were issued. Under the circumstances we decline to dismiss, and we exercise our discretion to review the
trial court’s order.
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the representative’s duties, has mismanaged the estate, failed to
perform any duty imposed by law or by any lawful order of the
court, or has ceased to be domiciled in Indiana, the court may
remove the representative in accordance with either of the
following:
(1) The court on its own motion may, or on petition of
any person interested in the estate shall, order the
representative to appear and show cause why the
representative should not be removed. The order shall set
forth in substance the alleged grounds upon which such
removal is based, the time and place of the hearing, and
may be served upon the personal representative in the
same manner as a notice is served under this article.
(2) The court may without motion, petition or
application, for any such cause, in cases of emergency,
remove such personal representative instantly without
notice or citation.
[10] The removal of a personal representative after letters are duly issued does not
invalidate official acts performed prior to removal. Ind. Code § 29-1-10-6(c). A
personal representative of an estate is regarded as a trustee appointed by law for
the benefit of and the protection of creditors and distributees of that estate. In re
Bender, 844 N.E.2d 170, 178 (Ind. Ct. App. 2006), reh’g denied, trans. denied. The
personal representative has a duty to protect and preserve the assets of the estate
to properly distribute those assets to the rightful heirs and devisees of the
decedent. Estate of Daniels ex rel. Mercer v. Bryan, 856 N.E.2d 763, 768 (Ind. Ct.
App. 2006). The personal representative has a duty to care for and conserve the
assets of a decedent’s estate so that such assets are not wasted or mismanaged.
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Ind. Dep’t of State Revenue, Inheritance Tax Div. v. Cohen’s Estate, 436 N.E.2d 832,
836 (Ind. Ct. App. 1982).
[11] Ind. Code §§ 29-1-7.5 relates to unsupervised estates, and Ind. Code § 29-1-7.5-
3.2(a) provides that “[n]ot more than two (2) months after the appointment of a
personal representative under this chapter, the personal representative shall
prepare a verified inventory of the decedent’s probate estate. The inventory
may consist of at least one (1) written instrument.” Ind. Code § 29-1-7.5-3.2(b)
provides that the inventory must indicate the fair market value of each item
including a statement of all known liens and other charges on any item and that
the property must be classified as real property; furniture and household goods;
emblements and annual crops raised by labor; corporate stocks; mortgages,
bonds, notes, or other written evidences of debt or of ownership described by
the name of the debtor; bank accounts, money, and insurance policies; and all
other personal property identified including the decedent’s proportionate share
in any partnership. Ind. Code § 29-1-12-1 regarding the classification of
properties contains similar requirements. Ind. Code § 29-1-16-4 provides in part
that “[a]ccounts rendered to the court by a personal representative shall be for a
period distinctly stated and shall consist of three (3) schedules, of which the first
shall show the amount of the property chargeable to the personal representative;
the second shall show payments, charges, losses and distributions; the third
shall show the property on hand constituting the balance of such account, if
any.”
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[12] Shirley argues that the court abused its discretion by removing her without
cause. She argues no facts adduced at the hearing tended to show she failed to
account for all assets of the decedent, the personal property was sold at public
auction, the estate was unsupervised when an accounting was performed and
she was not required to file the same with the court, and that she paid all of the
claims except for Jent’s claim. Jent maintains that, in addition to the
equipment, the estate included real property, income from crops, and at least
one bank account, and that Shirley’s accounting did not account for all
property, show what property she has on hand, or account for the disposition of
significant items of personal property that were not sold at auction. She argues
sufficient evidence was submitted to support the trial court’s decision to remove
Shirley and appoint a special administrator.
[13] The record reveals that the October 17, 2016 accounting filed by Shirley
indicates the estate included real property and income from crops. It also
reveals that, in addition to six claims filed by Jent or her attorney against the
estate, other claims were filed on behalf of ten other claimants. Shirley’s June
2, 2016 motion for authority to pay claims stated in part: “Donna Jent - ½ of
net estate - disallowed to be set for mediation.” Appellant’s Appendix Volume
2 at 50. Moon testified that he went to the property of the decedent for the
purpose of conducting an inventory and appraisal of certain equipment and that
he prepared an estimate of equipment values for the estate in August 2015, and
the sixteen-page list of assets and estimated values was admitted at the January
23, 2017 hearing. The list prepared by Moon stated that it did not include the
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value of four items. Moon indicated there were items which would commonly
be referred to as junk at the place. Moon’s list did not identify any real
property, income from crops, money, or bank accounts. The court also
admitted into evidence the final settlement from the April 30, 2016 auction
which set forth the proceeds of the sale, the seller’s expenses, and the total
proceeds to the seller.
[14] Jent testified that to her knowledge certain items on the list prepared by Moon
did not sell at the auction and specifically noted thirteen items in Moon’s list
which had not been sold. Moon’s list shows that he estimated that the value of
each of the thirteen items identified by Jent ranged from $250 to $9,000, and the
total of the estimated values for those items was over $30,000.
[15] When asked if the document prepared by Moon reflected the real property
owned by the decedent, Shirley testified “[w]ell, you realize, my late husband
and I, had, was in the excavating business, and like that car and things, some of
the tings [sic] his dad and I had bought for him” and “[s]o there was things on
there, and he had used the equipment after his dad passed away when he
started back into excavating, he used his dads [sic] equipment, and that’s where
he started from.” Transcript at 12-13. When asked if there was equipment in
Moon’s list that did not belong to the decedent, Shirley answered “I can’t
answer that, I don’t really know. I’m not as familiar with the equipment as
everybody else is.” Id. at 13. When asked “were there any errors or inaccuracy
in [Jent’s] testimony about wasn’t sold,” Shirley answered “I don’t know for
sure.” Id. Shirley testified that the decedent had a bank account.
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[16] The decedent’s brother testified that he was present at the sale at the property,
that several items that belonged to his brother did not sell, that some of the shop
equipment belonged to him, and that a lot of the tools “was my dad[’]s, and my
grandfather[’]s, and some was mine.” Id. at 20-21. When asked the value of
the unsold items, he answered “[p]robably 5, 6,000 dollars.” Id. at 21. Shirley’s
October 17, 2016 accounting does not appear to explicitly account for the
distribution of property which was not sold at the auction.
[17] Based upon the record and in light of the trial court’s great latitude in matters
concerning the removal of administrators, we cannot say that the court abused
its discretion in finding that Shirley should be removed as the personal
representative of the estate and a special personal representative appointed.
Conclusion
[18] For the foregoing reasons, we affirm the order of the trial court.
Affirmed.
Najam, J., and Kirsch, J., concur.
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