                         IN THE

  Indiana Supreme Court                                               FILED
                                                                  Jun 03 2019, 1:18 pm


            Supreme Court Case No. 18S-EU-507                         CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court


       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 | Decided: June 3, 2019

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



                 Opinion by Justice Slaughter
 Chief Justice Rush and Justices David, Massa, and Goff concur.
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


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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 co-special administrators for Junior’s
estate for the limited purpose of pursuing the wrongful-death claim.

  The court of appeals affirmed in a precedential opinion. In re
Unsupervised Estate of Orlando C. Lewis, Jr., 106 N.E.3d 1057 (Ind. Ct. App.
2018). It held that the trial court’s decision to replace Senior was not a
removal of a special administrator subject to the removal statute, Ind.
Code § 29-1-10-6, but merely a reconsideration of its earlier decision. Id. at


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1066. It also held that the trial court could reconsider its prior decisions as
part of its “inherent power”, and that the trial court did not abuse its
discretion in doing so here. Id. Senior then sought transfer, which we
granted, thus vacating the appellate decision.


Standard of Review
   A trial court may reconsider its prior rulings while the underlying
matter is still pending. We review such reconsiderations for an abuse of
discretion. Hammar, 847 N.E.2d at 962.


Discussion and Decision
   A special administrator appointed to bring a wrongful-death lawsuit
acts as trustee for the suit’s statutory beneficiaries—here, Junior’s minor
children, J.T. and K.L. The issue here is not whether the trial court was
entitled to appoint Senior as a special administrator under Indiana Code
section 29-1-10-15. Everyone agrees it was. The issue, instead, is whether
the court was entitled to rescind its appointment of Senior without
triggering the removal provision in the same chapter, I.C. § 29-1-10-6.
Senior claims he was duly appointed under Section 15, and that the trial
court abused its discretion when it removed him without complying with
Section 6.

   On the merits, we hold, first, that the trial court could reconsider its
appointment of Senior because the matter was still pending; second, that
the court did not abuse its discretion in rescinding Senior’s appointment;
and, third, that a court should give notice and hold a hearing before
appointing a special administrator or reconsidering such an appointment,
even if the governing statute and trial rule do not require these things.


   A. The trial court could reconsider its prior appointment of
      Senior because the underlying matter was still pending.
  In rescinding Senior’s appointment, the trial court did not invoke the
removal statute but relied, instead, on its inherent power to reconsider a


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prior ruling. As we held in Pond v. Pond, 700 N.E.2d 1130 (Ind. 1998), “A
trial court may reconsider an order or ruling if the action remains in fieri,
or pending resolution.” Id. at 1135. An action is in fieri—i.e., still pending—
until the court enters judgment. Id. In Hammar, we observed that a court’s
authority to reconsider a prior ruling “is firmly established in common
law”. 847 N.E.2d at 962. And we extended this general rule to affirm a
court’s reconsideration of its prior appointment of a special administrator.
Id. Senior acknowledges Hammar, but contends its holding does not
govern here. We disagree.

   In Hammar, just four days after the decedent died in a car accident, his
ex-wife sought appointment as special administrator to pursue a
wrongful-death action—beating decedent’s widow to the courthouse by
one day. Id. at 961. The widow, also injured in the accident, sought to be
appointed special administrator the next day—only to learn the ex-wife
had already been appointed ex parte and without notice to the widow. Id.
Two days later, the trial court reconsidered its decision and replaced the
ex-wife as special administrator. Id. at 963. On appeal, we affirmed the
trial court. Finding the action in Hammar was still pending, we held the
court’s order replacing one special administrator with another was a
“mere reconsideration of its prior ruling”, id. at 962, not a removal of a
special administrator subject to the removal statute. Id. Thus, we held, the
trial court was well within its discretion to reconsider the appointment. Id.
at 963.

   The same equitable considerations vis-a-vis the race to the courthouse
present in Hammar are also present here. Only four days after Junior’s
death, Senior was appointed ex parte and without notice to either Toliver
or Calloway. Senior beat Toliver’s petition by one day. And Calloway’s
followed about a month later. By December 4—only months after Junior’s
July 22 death—the trial court reconsidered its previous order naming
Senior special administrator and replaced him with Toliver and
Calloway—just as the trial court in Hammar had chosen what it found was
a more suitable successor. The minimal time differences at issue here and
in Hammar are immaterial. As in Hammar, the Johnson County matter was
still pending when the petitions were filed seeking reconsideration of
Senior’s appointment.


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   B. The trial court did not abuse its discretion in
      reconsidering its appointment of Senior.
   As we held in Hammar, a trial court has power to rescind its
appointment of a special administrator. And we hold on this record that
the court’s exercise of that power to rescind its appointment of Senior was
not an abuse of discretion. Under Hammar, a petition to reconsider
appointment of a special administrator does not render the removal
statute meaningless. Such petition merely provides the trial court with an
equitable basis for revisiting what here was an ex parte, without-notice
initial appointment of Senior as special administrator. That is particularly
true when the special administrator is responsible for pursuing what is
potentially a multimillion-dollar claim.

   In Hammar, the trial court noted that the widow stood in closer
proximity to the estate than the ex-wife. Id. at 962. Here, it is Toliver and
Calloway who are guardians of the decedent’s dependent children, the
beneficiaries of any wrongful-death action. Toliver and Calloway also
have had long-term, ongoing relationships with J.T. and K.L. In contrast,
Senior appears never to have met J.T. before Junior’s death, and had met
K.L. only a handful of times. The trial court found that Senior: lives in
Illinois; had infrequent contact with Junior and the grandchildren before
the accident; and met with counsel and petitioned for appointment as
special administrator only days after Junior died and nearly a week before
his funeral.

   Toliver is J.T.’s mother and legal guardian. Calloway is K.L.’s great
aunt—Shante’s sister. Before Junior and Shante died, Calloway cosigned a
lease so they had a place to live, bought them a vehicle, and helped them
with food and utilities. And since their deaths, Calloway has served as
K.L.’s court-appointed guardian. In contrast, the court found that others’
post-accident efforts to develop a relationship with K.L. appeared
“mercenary”. The court said it acted “unwittingly” in appointing Senior,
who won the race to the courthouse, before considering the competing
claims of Toliver and Calloway. According to the court, Toliver and
Calloway acted with reasonable promptness in seeking to intervene in
Johnson County and to ask that Senior’s appointment be rescinded.


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Toliver filed her motion to intervene on August 28, a month after the
accident; and Calloway filed hers August 30.

   The court also found it “compelling” that Toliver and Calloway should
serve as co-special administrators for the benefit of their respective wards
to ensure the children’s interests are well-represented. After all, the
beneficiaries of the wrongful-death claim are not Junior’s parents but his
surviving children. The court thus gave higher priority to the rights of
these children’s parents or guardians than to their grandparents. And it
defended that determination by finding that neither grandparent was
particularly close to either grandchild before the accident. The court
concluded that although “diligence and promptness are virtues”, the best
interests of Junior’s surviving children should not be determined solely by
who files first. We hold that the court did not abuse its discretion in
rescinding its appointment of Senior and vacating his letters of
administration.


   C. Though not required by statute or rule, an appointing or
      rescinding court should notify interested parties and
      hold a hearing.
   Senior’s race to the courthouse just days after the accident deprived
other interested parties of the opportunity to seek their own appointment.
One source of this problem is that the governing statute requires no notice
to beneficiaries or other interested parties before the court appoints a
special administrator. I.C. § 29-1-10-15. Compounding this problem is that
the statute affords no right of appeal to someone aggrieved by the court’s
appointment. Id. Although the statute does not require it, to avoid
potential due-process problems, a court faced with a motion for
appointment as a special administrator should afford notice to
beneficiaries or their legal representatives and hold a hearing. The motion
should identify each potential beneficiary or legal representative likely to
be interested in the appointment of a special administrator, along with
each person’s contact information. The court should then notify such
persons of the motion and the date, time, and place for hearing on the
motion. The hearing is to determine whether the movant would be a


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suitable special administrator and to permit other interested persons the
opportunity to object or to file their own requests for appointment. If the
motion does not identify a potential beneficiary or legal representative, it
is more likely the trial court will have abused its discretion if it later
refuses to rescind its appointment should that person, unnamed and
unidentified in the initial motion, later come forward and assert an
interest in the appointment. Though not required by Trial Rule 53.4, the
trial court should promptly (within five days) schedule a hearing and
provide notice when someone moves to reconsider the appointment of a
special administrator.


Conclusion
  For these reasons, we affirm the trial court’s order reconsidering its
appointment of Senior as special administrator.




Rush, C.J., and David, Massa, and Goff, JJ., concur.



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




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