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

FILED
Jul 13 2018, 9:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Daniel J. Zlatic KATHY CALLOWAY
Rubino, Ruman, Crosmer & Polen Edward A. McGlone
Dyer, Indiana Terre Haute, Indiana
ATTORNEYS FOR APPELLEE
SHANA TOLIVER
Nathaniel Lee
Jennifer Lee
Faith Alvarez
Lee Cossell & Crowley, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Unsupervised July 13, 2018
Estate of Orlando C. Lewis, Jr., Court of Appeals Case No.
41A01-1712-EU-2893
Orlando Lewis, Sr.,
Appeal from the Johnson Superior
Appellant-Petitioner, Court
v. The Honorable Kevin M. Barton,
Judge
Shana Toliver and Kathy Calloway, Trial Court Cause No.
41D01-1707-EU-179
Appellees-Respondents.1
1
We note that Lewis, Sr. originally, and incorrectly, brought this appeal as the Special Administrator of the
Estate of Lewis, Jr., and Toliver raised this issue in her motion to dismiss which we discuss below. See note 4,
infra. However, this is a technicality that we have remedied by editing the caption accordingly. See Auditor of
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Mathias, Judge.
[1] Orlando Lewis, Sr. (“Lewis, Sr.”) appeals the Johnson Superior Court’s order
rescinding his appointment as the special administrator for the estate of his son
Orlando Lewis, Jr. (“the Estate”).
[2] We affirm.
Facts and Procedural History
[3] Lewis, Sr. is the father of Orland Lewis, Jr. (“Lewis, Jr.”). Lewis, Jr. had two
children—Son J.T., born in 2011 to Shana Toliver (“Toliver”) and Daughter
K.L., born in 2015 to Lewis, Jr.’s wife Shante Lewis (“Shante”). Toliver and
Lewis, Jr. shared custody of Son J.T. with Toliver having primary physical
custody.2
[4] On July 22, 2017, a commercial bus owned by Miller Transportation, Inc. ran
into the back of a stopped vehicle occupied by Lewis, Jr., his wife Shante,
Daughter K.L., and Shante’s mother Rose Ann Pettus (“Rose Ann”) on a
highway in Monroe County. Daughter K.L. was the only survivor. Aside from
Daughter K.L., Lewis, Jr. was survived by his father, his mother Sharon
Norals, and Son J.T.
Owen County v. Asset Recovery, Inc., 991 N.E.2d 984, 986 (Ind. Ct. App. 2013) (explaining that “justice should
not be defeated by technicalities.”).
2
Son J.T. is also medically disabled. His mother explained that he “has ADHD combined type, ODD[]
[which is] oppositional defiant disorder, expressive receptive language disorder, speech delays,
developmental delays, and mild intellectual disabilities.” Tr. pp. 90–91.
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[5] After the accident, Shante’s aunt and Rose Ann’s sister Kathy Calloway
(“Calloway”) rushed to the hospital where Daughter K.L had been taken for
treatment of her broken leg and other injuries. There, Calloway learned that
Daughter K.L. was the only survivor, and after speaking with a caseworker
from the Department of Child Services and completing the paperwork provided
by that caseworker, Daughter K.L. was released from the hospital and into
Calloway’s care. Subsequently, Calloway filed for and was appointed as
Daughter K.L.’s temporary guardian on August 14. And at the time of the
events underlying this appeal, Calloway was awaiting a February 2018 hearing
to become Daughter K.L.’s permanent guardian.
[6] Three days after the accident, on July 25, Lewis, Sr., who at all relevant times
has lived in Illinois, filed a petition for appointment as special administrator for
the sole purpose of pursuing damages for the wrongful deaths of Lewis, Jr. and
Shante in the Johnson Superior Court. The trial court granted Lewis, Sr.’s
petition, and he was issued Letters of Administration on August 1.3
[7] The very next day, on July 26, Son J.T.’s mother Toliver filed her own petition
for appointment as special administrator for the Estate in the Marion County
Superior Court. The court appointed Toliver as the special administrator on
July 27 and issued letters of administration. The Marion Superior Court
3
Although Lewis, Sr. was initially appointed as the special administrator of Shante’s estate for pursuing
damages for her wrongful death, Shante’s father Dante Pettus subsequently filed a motion for substitution of
special administrator in Shante’s estate. Lewis, Sr. then voluntarily withdrew as the special administrator of
Shante’s estate. Shante’s estate is not at issue in this appeal.
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subsequently learned that Lewis, Sr. had filed his petition in Johnson County
prior to Toliver’s petition, and thereupon, the Marion Superior Court stayed its
proceeding pending a determination of venue in the Johnson Superior Court.
[8] On August 28, Toliver filed a petition to intervene in the Johnson County
proceedings and a motion to remove Lewis, Sr. as special administrator of the
Estate. On August 30, Calloway filed a similar petition to intervene, and on
September 6, Calloway filed a motion asking the trial court to reconsider its
appointment of Lewis, Sr. as special administrator of the Estate or to remove
him. Both Toliver and Calloway argued in their motions that they should be
appointed co-special administrators of the Estate because they are the legal
guardian and court-appointed guardian of Lewis, Jr.’s two dependent children
respectively.
[9] On October 12, 2017, the trial court held a combined hearing in which it heard
argument and evidence on all motions pending before it regarding the estates of
both Lewis, Jr. and Shante. On December 4, the trial court issued an order in
which it, in pertinent part and in regards to the Estate: (1) determined that
venue was proper in Johnson County; (2) explained that the beneficiaries of a
wrongful death action on behalf of Lewis, Jr. are his two minor children
Daughter K.L. and Son J.T.; (3) reconsidered and rescinded its prior
appointment of Lewis, Sr. as special administrator and vacated the letters of
administration; and (4) appointed Toliver and Calloway as special co-personal
representatives of the Estate for the limited purpose of pursuing the wrongful
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death claim on behalf of Daughter K.L. and Son J.T. Appellant’s App. pp. 15–
20.
[10] Lewis, Sr. now appeals.4
Discussion and Decision
[11] Lewis, Sr. contends that the trial court abused its discretion when it rescinded
its appointment of him as special administrator of the Estate. Specifically,
Lewis, Sr. maintains that he was appropriately appointed as the special
administrator of the Estate under Indiana Code section 29-1-10-15, and thus the
trial court abused its discretion when it removed him without complying with
Indiana Code section 29-1-10-6 (the “Removal Statute”). Calloway5 argues that
because the Removal Statute was not involved in the court’s decision, the trial
4
While this appeal was pending, Toliver filed a motion for involuntary dismissal of Lewis, Sr.’s appeal. In it
Toliver argued that: (1) Lewis, Sr. was not appealing a final judgment; (2) Lewis, Sr. was statutorily barred
from bringing the appeal pursuant to Indiana Code section 29-1-10-15; (3) Lewis, Sr. had no basis to appeal
because the trial court reconsidered its appointment and did not remove him under Indiana Code section 29-
1-10-6; and (4) Lewis, Sr. improperly brought his appeal as “special administrator” of Lewis, Jr.’s estate even
though he was no longer the special administrator. We denied Toliver’s motion for the following reasons.
First, Lewis, Sr. is appealing the trial court’s rescission of his appointment as the special administrator of the
Estate, and thus, the court’s order disposed of the sole claim Lewis, Sr. has with Toliver and Calloway in
their current capacity as special co-personal representatives of the estate. Both our supreme court and our
court have previously examined similar appeals to the one Lewis, Sr. brings here. See In re Estate of Hammar,
847 N.E.2d 960, 962 (Ind. 2006); Estate of Sandefur, 685 N.E.2d 719, 721–22 (Ind. Ct. App. 1997). As to
Toliver’s second and third contentions, although Indiana Code section 29-1-10-15 explains that “[t]he order
appointing a special administrator shall not be appealable[,]” Lewis, Sr. is not appealing the trial court’s
appointment of Toliver and Calloway as special co-administrators. Rather, Lewis, Sr. is appealing the trial
court’s rescission of his appointment as special administrator of the Estate. And we stated in Sandefur,
“although [I.C. § 29-1-10-15] does not allow the appeal of an order appointing a special administrator, the
order removing a special administrator may be appealed by the aggrieved party.” 685 N.E.2d at 722. Here,
Lewis, Sr. is an aggrieved party, and he therefore has a right to appeal. Finally, we addressed Toliver’s fourth
argument above. See note 1, supra.
5
Although Calloway and Toliver are special co-personal representatives of the Estate and they are both
appellees on appeal, we note that Toliver did not file a brief.
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court acted within its discretion when it reconsidered and rescinded its order
appointing Lewis, Sr. as special administrator. Therefore, Calloway maintains
that the trial court did not err when it named her and Toliver as the special co-
personal representatives of the Estate. Under the particular facts and
circumstances presented here, we agree with Calloway.
[12] Indiana Code section 29-1-10-15 provides that a trial court may appoint a
special administrator if:
(a) from any cause delay is necessarily occasioned in granting
letters, or
(b) before the expiration of the time allowed by law for issuing
letters, any competent person shall file his affidavit with the
clerk that anyone is intermeddling with the estate or that there
is no one having authority to take care of the same, or
(c) if any person shall have died testate and objections to the
probate of his will shall have been filed as provided by law.
The appointment of a special administrator may be for a
specified time to perform duties respecting specific property, or to
perform particular acts as shall be stated in the order of
appointment.
***
Otherwise, and except as the provisions of this article by terms
apply to general personal representatives, and except as ordered
by the court, the law and procedure relating to personal
representatives in this article shall apply to special administrators.
The order appointing a special administrator shall not be
appealable.
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[13] We have previously held that this statute authorizes a trial court to appoint a
special administrator for the sole purpose of pursuing a wrongful death action,
and that the trial court has “complete discretion” in the appointment of special
administrators. Estate of Sandefur, 685 N.E.2d 719, 723 (Ind. Ct. App. 1997).
[14] Here, neither party argues that Lewis, Sr. was not properly appointed as special
administrator under section 29-1-10-15. Rather, Lewis, Sr.’s primary argument
is that the trial court had no basis to remove him as special administrator under
the Removal Statute, which provides in relevant part:
(b) 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 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.
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I.C. § 29-1-10-66
[15] Because of this statutory language, a panel of this court explained in Sandefur
that “once the trial court has made an appointment of a special administrator, it
may not remove the administrator without a finding that the special
administrator meets one of the statutory criteria for removal.” 685 N.E.2d at
722. However, the trial court here did not utilize the Removal Statute, but
instead it reconsidered its appointment of Lewis, Sr. as special administrator of
the estate. And, as our supreme court explained in In re Estate of Hammar:
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.
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, 779–80 (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.”).
6
Notably, because Lewis, Sr. lives in Illinois, he would not have qualified to serve as a general administrator
over the Estate in his individual capacity. See Ind. Code § 29-1-10-1(c). And under the Removal Statute, an
individual can be removed as a personal representative of an estate if he “has ceased to be domiciled in
Indiana[.]” I.C. § 29-1-10-6(b). However, there is no such residence restriction under the statute governing
the appointment of special administrators, see I.C. § 29-10-10-15, and thus, although Lewis, Sr. lives out of
state and cannot serve as a general administrator of an Indiana estate in his individual capacity, the
legislature has deemed it appropriate that he has the ability to serve as a special administrator of an Indiana
estate—a determination that is within its province. As this case shows, it may be well for the legislature to
consider the concept of the best person to represent the interests of all beneficiaries in a special administration
after notice to those beneficiaries or their representatives.
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847 N.E.2d 960, 962 (Ind. 2006). We have similarly noted that trial courts have
the inherent power to reconsider its appointment of special administrators.
Brenton v. Lutz, 993 N.E.2d 235, 239 (Ind. Ct. App. 2013), trans. denied. And as
stated above, we will consider the trial court’s decision here to reconsider its
appointment of Lewis, Sr. as special administrator for an abuse of discretion.
Hammar, 847 N.E.2d at 962.
[16] The trial court explained its rationale for reconsidering its original decision:
Typically, the issue of who will serve as Special Administrator is
determined by the family. Indiana does not set forth a statutory
procedure to notify other potential applicants of the petition for
appointment. Inasmuch as the issue is normally resolved by the
family, a dispute over appointment is rare. The procedures
utilized by the court allow for the expeditious appointment of a
special administrator in the typical situation. Unfortunately, in
this case, a family agreement was not made. The Court
unwittingly rewarded the victor in the race to the courthouse
without considering the claims of the rival claimants. No
disclosures were made of rival claimants. The Court did not on
it’s [sic] own consider the interests of rival claimants.
Appellant’s App. p. 13. After considering the claims of all rival claimants
during the October hearing, the trial court reconsidered its original decision and
relied on our supreme court’s decision in Hammar when it rescinded its
appointment of Lewis, Sr. as special administrator of the Estate. Appellant’s
App. p. 20.
[17] Lewis, however, contends that Hammar does not support the trial court’s
decision. In that case, Hammar was killed in an automobile accident in which
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his wife Janet was also injured. Four days after the accident, Hammar’s ex-wife
Margaret sought and obtained permission to serve as special administrator for a
wrongful death action on Hammar’s behalf. The next day, Janet’s attorney filed
a petition to have Janet appointed as general administrator of the estate; but he
discovered that Margaret had already been appointed as special administrator.
Janet’s attorney filed an objection with the court, and the court stayed all
proceedings until a hearing could be held addressing Janet’s claims.
[18] At the hearing, the trial court removed Margaret as special administrator and
appointed Janet in her place. The court stated, in part, that “it erred when it
appointed Margaret [] as Personal Representative of the Estate in that Janet []
as widow of the decedent is closer in proximity to the decedent and the estate.”
Hammar, 847 N.E.2d at 962 (quoting Appellant’s App. p. 5). On appeal,
Margaret argued that the trial court erred when it removed her as special
administrator without a supporting reason under the Removal Statute. Id.
[19] Our supreme court rejected Margaret’s argument and explained, “we view the
trial court’s action as a mere reconsideration of its prior ruling, not a removal of
a special administrator under the removal statute.” Id. The Hammar court then
found that the trial court did not abuse its discretion when it reconsidered its
original order, in part, because “the trial court’s original order was obtained ex
parte without notice to the decedent’s widow, who had just been released from
the hospital and was in the process of making funeral arrangements for her
husband.” Id. at 962–63. In a concurring opinion, then Chief Justice Shepard
remarked, “Margaret’s lawyer seized control of [] Hammar’s estate for purposes
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of filing a contingent fee wrongful death case at a moment when the body had
barely turned cold. He contended—and continues to claim—that ‘no one else
was in a position to act.’” Id. at 963 (Shepard, C.J., concurring).
[20] Lewis, Sr. contends that Hammar is not controlling in the case before us because
the circumstances present in Hammar “differ greatly from those present in the
instant case.” Appellant’s Br. at 16. Specifically, Lewis, Sr. alleges that unlike in
Hammar, here “the trial court . . . removed a person with a close relationship
with the decedent, his father, [Lewis, Sr.], in favor of the ex-wife of decedent,
Toliver.” Id. at 17. We agree that Hammar’s facts are different than the ones
before us in this case, but Hammar’s rationale is an equitable one, and one we
believe should be applied here to find the best special administrator(s) for this
estate in the face of the fragmented family involved.
[21] A special administrator has a legal relationship with the estate’s personal
representative that becomes extremely important in circumstances such as those
before for us in this case, where the proceeds from settlement or trial of the
personal injury claims of the beneficiaries will constitute nearly all of the assets
of the estate. In such an estate, a special administrator’s interests may actually
conflict with the interests of the personal representative of the estate, for
example, in the fees charged by the special administrator or the counsel chosen
by that special administrator. In a case like the one before us, while
consanguinity and degrees of relationship are important, they should not be
controlling and should be considered along with the nature of the estate and the
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best interests of all of its beneficiaries, after proper notice is given to all
beneficiaries or their legal representatives.
[22] Incredibly, the special administrator statute requires no notice to beneficiaries
prior to appointment of a special administrator, and neither petitioner, Lewis,
Sr. in Johnson County, nor Toliver in Marion County gave such notice. And
just as incredibly, after an appointment of a special administrator without
notice, “[t]he appointment of a special administrator shall not be appealable.”
I.C. § 29-1-10-15. Any conflict between Sandefur and Hammer is caused by this
untenable procedure. Notice prior to appointment of a special administrator is
required as a matter of equity in order to properly and fully inform the trial
court prior to appointment, and it should also be required as a matter of law.7
[23] Here, the only beneficiaries are Daughter K.L. and Son J.T, the latter of whom
has very challenging special needs. See I.C. § 34-23-1-1. The “best interests”
consideration in this case should turn on an assessment of personal interest in
and concern for those beneficiaries, and not on a race to the courthouse or the
hurried consolidation of parties by one law firm.
[24] Lewis, Sr., who won the race to the courthouse, has lived in Illinois his entire
life. Son J.T. was born in 2011, and the first time Lewis, Sr. ever asked Toliver
7
We respectfully request that the General Assembly reconsider the language of Indiana Code section 29-1-
10-15 and create a special administrator appointment process that requires notice to beneficiaries or their
representatives prior to appointment and that provides standards for the appointment of a special
administrator by the trial court.
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to see Son J.T. was on August 15, 2017—nearly a month after the accident. Tr.
pp. 38, 73. Shante’s son M.B., III8 who lived with Lewis, Jr., Shante, and
Daughter K.L., testified that Lewis, Sr. came over to the house on two
occasions. Id. at 136.9 And in his petition for appointment as special
administrator of the Estate, in the paragraph where Lewis, Sr. lists Lewis, Jr’s
decedents, Son J.T. is only listed by his first name, with no last name or
address. Moreover, since Daughter K.L.’s birth in 2015, Lewis, Sr. has only
seen her “[a]bout four or five times.” Tr. p. 49. For these reasons, we agree
with the trial court’s assessment that Lewis, Sr. did not “demonstrate[] a
particularly close relationship with either grandchild prior to the collision.”
Appellant’s App. p. 20.
[25] Lewis, Sr. additionally contends that “[u]nlike the appellee in Hammar, the
appellees in this case, Toliver and Calloway, waited thirty-three (33) and thirty-
five (35) days respectively before petitioning to intervene in the underlying
case.” Appellant’s Br. at 17–18. Although this is true, a panel of this court has
previously explained “that the determination of who becomes a special
administrator does not rest solely upon who wins the proverbial race to the
courthouse.” In re Estate of Hutman, 705 N.E.2d 1060, 1065 (Ind. Ct. App.
8
M.B., III is Shante’s child from a former relationship and was eight years old at the time of the accident.
Although his interests under Shante’s estate are not at issue in this appeal, we find portions of his testimony
relevant to our decision.
9
It is unclear from the record whether Son J.T. was present at the time of these visits.
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1999). Our facts here demonstrate an important reason not to blindly rely on
such a race.
[26] Moreover, we note that Lewis, Sr. filed his petition to be appointed special
administrator just three days after the accident and nearly a week before Lewis,
Jr.’s funeral. Cf. Sandefur, 685 N.E.2d at 720 (individual appointed as special
administrator filed her petition for appointment thirteen days after decedent’s
death). The trial court addressed the issue of timing in its order quite well when
it stated, “While longer than the one day in [] Hammar, no evidence is presented
that the competing claimants did not act with reasonable promptness in
asserting their claims.” Appellant’s App. p. 14.
[27] It is precisely because of Lewis, Sr.’s race to the courthouse “that the
circumstances of appointment did not permit all interested parties to have an
opportunity to seek appointment.” Id. at 20. Neither Toliver (Son J.T.’s mother
and legal guardian) nor Calloway (Daughter K.L.’s caretaker and temporary
guardian) had any notice that Lewis, Sr. was filing his petition. See Pope by
Smith v. Pope, 701 N.E.2d 587, 593 (Ind. Ct. App. 1998) (holding that although
petitioner seeking to be appointed special administrator “was not required to
name the persons most closely related by blood or marriage to the sole statutory
beneficiary,” it was incumbent on the petitioner or her attorney to inform the
court that the only minor beneficiary was in the custody of his natural mother).
[28] It is also quite concerning that during the time period covering the proceedings
underlying this appeal, Lewis, Sr. filed suit against both Toliver and Calloway.
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See Tr. pp. 40, 51, 52, 73, 186; cf. Hutman, 705 N.E.2d at 1065 (finding that
decedent’s mother would be a neutral special administrator due to potential
competing interests among other petitioners). Although Lewis Sr.’s lawsuits are
for grandparent visitation rights, it is notable that prior to the accident, Lewis,
Sr. had seen Son J.T., age six, and Daughter K.L., aged two and one-half, fewer
than ten times combined. Thus, although we acknowledge the difference in
timing between Hammar and the case before us, it is not dispositive. Rather,
what is persuasive is the underlying concerns of the Hammar court that are also
present here. See Hammar, 847 N.E.2d at 963 (Shepard, C.J., concurring).10
[29] We have previously explained that when appointing a special administrator,
“the trial court must have confidence . . . that the person does not have an
interest in pending litigation, or bias or prejudice, such that the appointment
would be adverse to the interest of those to be served by the appointment.”
Hutman, 705 N.E.2d at 1065. Here the trial court noted, “[t]he circumstance
that so many people with ties to Orlando Lewis, Jr. . . . ended up at the same
law firm within a short period after death is disquieting. While diligence and
promptness are virtues[, r]epresentation of the interests of the minor
beneficiaries should not be accorded to the victor in the race to the courthouse
alone to the disadvantage of other parties when other parties have not had an
opportunity to assert their claim.” Appellant’s App. p. 20. We agree, and it is
10
We acknowledge that Lewis, Sr. lists more purported differences in circumstances between Hammar and
the case before us, see Appellant’s Br. at 18–19; however, those differences are unavailing, and we decline to
address them.
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for these reasons that trial courts are afforded the ability to reconsider prior
rulings as long as the action remains in fieri.
[30] Therefore, based on the facts and circumstances before us, we view the trial
court’s action rescinding Lewis, Sr. as special administrator of the Estate as a
mere reconsideration of its prior ruling, and not a removal of a special
administrator requiring application of the Removal Statute. And because of the
trial court’s inherent power to reconsider its appointment of a special
administrator, we conclude that it did not abuse its discretion when it revised its
appointment of Lewis, Sr. to Toliver and Calloway as special co-personal
representatives.
Conclusion
[31] The trial court did not abuse its discretion by reconsidering its appointment of
Lewis, Sr. when important new facts came to its attention, and we affirm its
order replacing Lewis, Sr. with Toliver and Calloway as special co-personal
representatives for the wrongful death action on behalf of the Estate.
Riley, J., and May, J., concur.
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