In re Unsupervised Estate of Cary A. Owsley, Logan A. Owsley v. Mark E. Gorbett

FILED
Nov 21 2017, 9:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Trent A. McCain Elizabeth A. Knight
McCain Law Offices, P.C. Joseph W. Smith
Merrillville, Indiana Knight, Hoppe, Kurnik & Knight,
Ltd.
Curtis E. Shirley
Schererville, Indiana
Law Office of Curtis E. Shirley
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re Unsupervised Estate of November 21, 2017
Cary A. Owsley Court of Appeals Case No.
49A02-1701-EU-207
Logan A. Owsley,
Appeal from the Marion Superior
Appellant, Court
v. The Honorable Steven R.
Eichholtz, Judge
Mark E. Gorbett, et al., Trial Court Cause No.
49D08-1602-EU-7407
Appellees.
Brown, Judge.
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[1] Logan A. Owsley appeals the Marion Superior Court’s dismissal of his verified
petition to open estate and the denial of his motion to correct error. Logan
raises one issue which we revise and restate as whether the trial court abused its
discretion in dismissing the estate proceeding. We affirm.
Facts and Procedural History
[2] On April 7, 2013, Cary Owsley died from a gunshot wound. In June 2014, the
Bartholomew Circuit Court appointed Lisa Owsley as personal representative
of the estate of Cary Owsley (the “Estate”) under cause number 03C01-1406-
ES-2796 (“Cause No. 2796”). In March 2015, Cheryl Owsley Jackson filed a
verified petition under Cause No. 2796 to remove Lisa as personal
representative or to appoint a special administrator. In April 2015, an attorney
filed an appearance on behalf of Logan, Cary’s son, and a memo in support of
petitions.1 On April 7, 2015, the court entered an order denying Jackson’s
petition and stating that Logan “has no matters pending before this Court and
so this Court is not providing any affirmative or negative relief concerning
Logan.” Appellant’s Appendix Volume II at 48.
[3] On April 7, 2015, Logan filed a complaint in the United States District Court
for the Southern District of Indiana under cause number 1:15-cv-00552-RLY-
MJD (the “federal lawsuit”) against Mark Gorbett, in his individual and official
capacities as Sheriff of Bartholomew County; Ernest DeWayne Janes, Sr.,
1
The record does not contain a copy of the memo.
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Dean Johnson, Christie Nunemaker, Brent Worman, William Kinman, Jr., and
Christopher Roberts in their individual and official capacities as Bartholomew
County Sheriff’s Deputies; and Larry Fisher, in his individual and official
capacities as Bartholomew County Coroner. Logan alleged a “[b]otched
[i]nvestigation” and a cover-up and brought the following claims: Count I,
obstruction of justice; Count II, conspiracy to obstruct justice based on
invidious discrimination; Count III, failure to intervene; Count IV, access to
courts, right to seek remedy; Count V, intentional infliction of emotional
distress; and Count VI, negligent infliction of emotional distress. Id. at 116.
[4] On July 10, 2015, the defendants in the federal lawsuit filed a motion to dismiss
Logan’s complaint and asserted that Logan lacked standing to bring any causes
of action and that he failed to state claims on which relief could be granted.
[5] Meanwhile, in May 2015, Logan filed petitions to require a final accounting, to
remove the personal representative, to distribute abandoned property, and for
appointment of a special administrator in Cause No. 2796. On February 16,
2016, the Bartholomew Circuit Court entered an order granting Logan’s
petition to distribute property and denying the petitions filed by Logan to
remove the executor and appoint a special administrator. The court approved
the final accounting as testified to at a prior hearing. The court’s order also
states:
Whatever interest the Estate of Cary A. Owsley has in the federal
lawsuit, the Court ASSIGNS such interest to Logan Owsley. He
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alone shall inherit and otherwise receive any benefit, proceeds, or
relief afforded in the litigation pending in federal court.
There being no further issue before the Court, the Court
DISCHARGES the personal representative and directs the Clerk
to close this estate. Any surety is released.
Pursuant to trial rule 54(B) the Court finds no just reason for
delay and enters this as a final, appealable order on all issues.
Id. at 131.
[6] On February 29, 2016, Logan filed a Verified Petition to Open Estate for
Limited Purpose and for Unsupervised Administration under cause number
49D08-1602-EU-7407 (“Cause No. 7407”) in the Marion Superior Court.
Logan requested to be appointed as the personal representative of the Estate for
the sole purpose of managing and resolving the federal lawsuit.
[7] That same day, the Marion Superior Court entered an order in Cause No. 7407
stating that the property at issue for the Estate in this matter belongs solely to
Logan. The court stated that it had jurisdiction over this matter because the
Estate property which remained for administration was the federal lawsuit
located in Indianapolis. It appointed Logan as the personal representative of
the Estate and authorized him to administer the Estate without court
supervision.
[8] On March 15, 2016, the United States District Court for the Southern District
of Indiana entered an Order on Motion for Leave to File Amended Complaint
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which states in part: “unless and until the Order of the Marion County Superior
Court is overturned by the state court, this Court must view it as a valid Order.
Therefore, for the purposes of this Motion, Plaintiff is the Personal
Representative of the Estate.” Id. at 181. That same day, Logan, in his
individual capacity and as administrator of the Estate, filed an amended
complaint in the federal lawsuit alleging that there was a rush to classify the
death as a suicide, contamination and destruction of evidence, and a cover-up.
The amended complaint alleged: Count I, obstruction of justice; Count II,
conspiracy to obstruct based on invidious discrimination; Count III, failure to
intervene; Count IV, access to courts, right to seek remedy; Count V,
conspiracy; Count VI, intentional infliction of emotional distress; and Count
VII, negligent infliction of emotional distress. On March 21, 2016, the
Southern District court denied as moot the federal defendants’ motion to
dismiss because their motion was directed at a pleading that was “no longer
operative.” Appellant’s Appendix Volume IV at 11.
[9] In April 2016, Gorbett, Johnson, Kinman, Roberts, and Worman filed a
Petition to Intervene and Motion to Vacate Order and Dismiss the Estate
Proceeding in Cause No. 7407. They argued that Logan’s request for
appointment was without legal basis in fact and done “only to shoehorn himself
into a position that was denied him in no less than 2 orders from the
Bartholomew County Circuit Court.” Appellees’ Appendix Volume II at 5.
[10] On November 1, 2016, the Marion Superior Court entered an order in Cause
No. 7407 concluding that the decedent has no constitutional rights to adjudicate
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and therefore the letters of administration by the court were improperly issued
and dismissing the matter. Specifically, the order states:
On April 7, 2013 Cary Owsley died, intestate, from a gunshot
wound in Bartholomew County. His death was ruled a suicide.
On June 23, 2014, Cary’s estranged wife, Lisa Owsley, was
appointed personal representative of his estate by the
Bartholomew County Circuit Court. After lengthy disputes
among family members, the Bartholomew County estate was
closed on February 16, 2016. The court awarded Logan Owsley
“Whatever interest the Estate of Cary A. Owsley has in the
federal lawsuit, the Court ASSIGNS such interest to Logan
Owsley. He alone shall inherit and otherwise receive any benefit,
proceeds, or relief afforded in the litigation pending in federal
court.” Verified petition to open estate exhibit 1.
On April 7, 2015 the decedent’s son and only heir filed a federal
lawsuit in United States District Court against various
Bartholomew County officials. The litigation brought by Logan
in federal court is an action alleging that the decedent’s
constitutional rights were violated under sections 42 U.S.C. §§
1983 or 1985. The defendants in the federal lawsuit are the same
petitioners to intervene in this case. On February 29, 2016 Logan
was appointed personal representative of his father’s estate for
the purpose of managing and resolving the federal lawsuit on
behalf of the decedent and distributing the property to Logan the
beneficiary of any proceeds, as a result of this matter been
awarded to him solely to pursue by the Bartholomew County
Circuit Court.
Without reaching whether or not the motion to intervene should
be granted, the court upon review of the proceedings finds that
the decision to allow an estate to be opened to pursue this claim
was incorrect. The estate assets had been probated, administered
and distributed in the Bartholomew County courts. The claim
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for a violation of the decedent[’]s constitutional rights is not an
asset of the estate subject to administration. In a similar fact
pattern alleging violations of the constitutional rights of the
decedent by officials investigating the decedent[’]s death the
United States District Court, for the Southern District of Indiana
found:
After death, one is no longer a person within our
constitutional and statutory framework, and has no rights
of which he may be deprived.” Whitehurst v. Wright, 592
F.2d 834, 840 (5th Cir. 1979). The alleged cover-up by
Manders and Ward took place after Joseph Love was
killed, and thus could not have violated any of Joseph
Love’s constitutional rights. Id.; Guyton v. Phillips, 606
F.2d 248 (9th Cir. 1979) (“the Civil Rights Act, 42 U.S.C.
§§ 1983 and 1985, does not provide a cause of action on
behalf of a deceased based upon alleged violation of the
deceased’s civil rights which occurred after his death.”)[,
cert. denied, 445 U.S. 916, 100 S. Ct. 1276 (1980)]. We do
not hold that cover-up of a wrongful death is without civil
or criminal effect; rather, we hold that “the victims of a
cover-up are the decedent’s survivors, not the decedent
himself.” Gibson [v. City of Chicago, 910 F.2d 1510, 1523
(7th Cir. 1990)], citing, Bell v. City of Milwaukee, 746 F.2d
1205, 1264 (7th Cir. 1984). Thus, to the extent that
plaintiffs allege that, by covering up the circumstances of
Joseph Love’s death, Manders and Ward violated Joseph
Love’s Constitutional rights, the Motion to Dismiss is
granted.
Love v. Bolinger, 927 F. Supp. 1131, 1136 (S.D. Ind. 1996)[.]
Based upon a review of the foregoing authority the court finds
that the claim being pursued by the personal representative in
federal court is not an asset nor property of the decedent’s estate.
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The decedent has no constitutional rights to adjudicate and
therefore the letters of administration by the court were
improperly issued.
It is therefore ordered that the letters of administration granted to
Logan Owsley are hereby vacated and this matter is dismissed.
Id. at 19-20.
[11] Logan filed a motion to correct error under Cause No. 7407, which was
deemed denied.
Discussion
[12] The issue is whether the trial court abused its discretion in dismissing the estate.
Logan argues that the reasoning of Love v. Bolinger, 927 F. Supp. 1131 (S.D. Ind.
1996), which was cited by the trial court, is not instructive because the alleged
conspiracy to cover up his father’s death violated his right to bring a wrongful
death claim. He argues that civil rights claims for conspiracy and denial of
access to courts brought pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 are the
property of a decedent’s estate and must be brought in federal court by the
estate, rather than by a relative individually. Logan requests that we should
reverse the trial court and reinstate him as personal representative of his father’s
estate for the sole purpose of pursuing the federal civil rights action in the
federal lawsuit.
[13] The Appellees argue that the order dismissing the estate proceeding should be
affirmed because there was no estate property to be administered in Marion
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County. They assert that, to the extent the trial court’s February 16, 2016 order
assigned to Logan “[w]hatever interest the Estate of Cary A. Owsley has in the
federal lawsuit,” this was a legal nullity because the decedent’s estate never had
any interest in Logan’s federal lawsuit to assign. Appellees’ Brief at 22. They
argue that Logan’s petition was an improper collateral attack on the
Bartholomew Circuit Court’s orders including orders denying requests to
replace Lisa as personal representative and requests for appointment of a special
administrator to pursue Logan’s federal lawsuit. They also contend that the
order dismissing the estate proceeding should be affirmed because Bartholomew
County is the only county in which an estate for decedent could be opened and
cite Ind. Code § 29-1-7-1.2
2
Ind. Code § 29-1-7-1 provides:
(a) The venue for the probate of a will and for the administration of an estate shall be:
(1) In the county in this state where the decedent had his domicile at the time of
his death.
(2) When not domiciled in this state in any county in the state, where he left any
property at the time of his decease; or into which county any property belonging
to his estate may have come after his decease.
(b) If proceedings are commenced in more than one (1) county, they shall be stayed except
in the county where first commenced until final determination of the venue by the court in
the county where first commenced, and thereupon all proceedings in any county, other
than the county where jurisdiction has been finally determined to exist, shall be dismissed.
If the proper venue is finally determined to be in another county, the court, after making
and retaining a true copy of the entire file, shall transmit the original to the proper county.
The proceeding shall be deemed commenced by the filing of a petition; and the proceeding
first legally commenced shall extend to all of the property of the estate in this state.
(c) If it appears to the court at any time before the decree of final distribution in any
proceedings that the proceeding was commenced in the wrong county or that it would be
for the best interests of the estate, the court, in its discretion, may order the proceeding with
all papers, files and a certified copy of all orders therein transferred to another court having
probate jurisdiction, which other court shall thereupon proceed to complete the
administration proceedings as if originally commenced therein.
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[14] In reply, Logan argues that the Appellees are not parties to this appeal, points
out that the Marion Superior Court never granted their motion to intervene and
that they did not file a cross-appeal, and asserts that their brief should be
stricken. He alleges that we should reverse even if we determine that the
Appellees are parties to this appeal. His contention is that Ind. Code § 29-1-7-
1(b) does not apply because Cause No. 2796 in the Bartholomew Circuit Court
was closed. He also appears to argue that, even if Ind. Code § 29-1-7-1(b)
applies, dismissal is not appropriate because the county is a party and change of
venue must be granted pursuant to Ind. Trial Rule 76(A) 3, and dismissal is not
appropriate under Ind. Trial Rule 75(B)(1).4
[15] We need not reach the question of whether Gorbett, Johnson, Kinman,
Roberts, and Worman, properly identify themselves as appellees because, even
assuming that they are not appellees or parties to this appeal, we cannot say
that reversal of the dismissal is warranted.
[16] “A court of probate jurisdiction has great latitude and wide discretion in
matters concerning the appointments and the removal of administrators . . . ,
3
Ind. Trial Rule 76(A) provides in part: “In civil actions where the venue may be changed from the county,
such change of venue from the county may be had only upon the filing of a verified motion specifically
stating the grounds therefor by the party requesting the change. The motion shall be granted only upon a
showing that the county where suit is pending is a party or that the party seeking the change will be unlikely
to receive a fair trial on account of local prejudice or bias regarding a party or the claim or defense presented
by a party. A party shall be entitled to only one change of venue from the county.”
4
Ind. Trial Rule 75(B)(1) provides: “Whenever a claim or proceeding is filed which should properly have
been filed in another court of this state, and proper objection is made, the court in which such action is filed
shall not then dismiss the action, but shall order the action transferred to the court in which it should have
been filed.”
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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. A trial court’s control and discretion to
change its own rulings is firmly established in common law, and we will review
a trial court’s reconsideration of its prior rulings for abuse of discretion. In re
Estate of Hammar, 847 N.E.2d 960, 962 (Ind. 2006) (citing Pond v. Pond, 700
N.E.2d 1130, 1135 (Ind. 1998) (“A trial court may reconsider an order or ruling
if the action remains in fieri, or pending resolution.”); State ex rel. Rans v. St.
Joseph Superior Court, 246 Ind. 74, 78, 201 N.E.2d 778, 779-780 (1964) (“[A]
court may, upon motion to reconsider or rehear, upon its own motion or the
suggestion of a party, vacate, set aside, amend or modify a ruling entered in the
same term of court, since such a matter is in fieri.”)).
[17] The Marion Superior Court’s November 1, 2016 order in Cause No. 7407 states
that the claim for a violation of the decedent’s constitutional rights was not an
asset of the Estate subject to administration and cites Love v. Bolinger, 927 F.
Supp. 1131, 1136 (S.D. Ind. 1996). In Love, Joseph Love’s estate, his parents,
and his brother brought a lawsuit alleging various federal and state
constitutional causes of action against a number of state, county, and city
defendants, arising out of Joseph’s arrest, the criminal proceedings against him,
his death, and an alleged cover-up of the circumstances of his death. 927 F.
Supp. at 1133. Defendants Karl Manders, the Coroner of Marion County, and
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Bob Ward, the Chief Deputy Coroner, filed a motion to dismiss. Id. at 1133-
1134. In addressing the plaintiff’s claim under 42 U.S.C. § 1983, the court held
that “[a]fter death, one is no longer a person within our constitutional and
statutory framework, and has no rights of which he may be deprived.” Id. at
1136 (quoting Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979)). The
court held that “[t]he alleged cover-up by Manders and Ward took place after
Joseph Love was killed, and thus could not have violated any of Joseph Love’s
constitutional rights.” Id. (citing Whitehurst, 592 F.2d at 840; Guyton v. Phillips,
606 F.2d 248 (9th Cir. 1979) (“the Civil Rights Act, 42 U.S.C. §§ 1983 and
1985, does not provide a cause of action on behalf of a deceased based upon
alleged violation of the deceased’s civil rights which occurred after his death”)).
The court clarified: “We do not hold that cover-up of a wrongful death is
without civil or criminal effect; rather, we hold that ‘the victims of a cover-up
are the decedent’s survivors, not the decedent himself.’” Id. (quoting Gibson,
910 F.2d at 1523 (citing Bell v. City of Milwaukee, 746 F.2d 1205, 1264 (7th Cir.
1984)). The court held that “to the extent that plaintiffs allege that, by covering
up the circumstances of Joseph Love’s death, Manders and Ward violated
Joseph Love’s Constitutional rights, the Motion to Dismiss is granted.” Id.[18] While Logan argues that Love is distinguishable from this case because the
plaintiffs in Love did not allege that they were prevented from filing a wrongful
death suit under state law and he did allege such a claim in his amended
complaint, he does not point to a claim in his amended complaint based upon
an alleged violation of Cary’s rights which occurred prior to his death. His
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amended complaint in the federal lawsuit alleged that there was a rush to
classify the death as a suicide, contamination and destruction of evidence, and a
cover-up, all of which were alleged to have occurred after Cary’s death. Based
upon Love, we cannot say that the Marion Superior Court erred in concluding
that the claim being pursued in federal court was not an asset or property of the
Estate and, accordingly, in dismissing the matter.5
Conclusion
[19] For the foregoing reasons, we affirm the trial court’s order.
[20] Affirmed.
Najam, J., and Kirsch, J., concur.
5
Logan asserts that civil rights claims for denial of access to courts and conspiracy brought pursuant to 42 U.S.C.
§§ 1983, 1985, and 1986 are the property of a decedent’s estate and must be brought in federal court by the estate
and cites Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), Russ v. Watts, 414 F.3d 783 (7th Cir. 2005),
reh’g and reh’g en banc denied, cert. denied, 546 U.S. 1094, 126 S. Ct. 1065 (2006), and Barrett v. United States,
689 F.2d 324 (2d Cir. 1982), cert. denied, 462 U.S. 1131, 103 S. Ct. 3111 (1983). See Appellant’s Brief at 9-10.
Those cases all involved alleged government misconduct prior to death. See Bell, 746 F.2d at 1215 (addressing the
shooting and killing of a man by a police officer); Russ, 414 F.3d at 783 (same); Barrett, 689 F.2d at 326(observing that the decedent died from an injection of a mesclaline derivative administered to him while he
unknowingly served as a test subject in an Army chemical warfare experiment). Thus, we find those cases
distinguishable.
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