Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-131

                                       OCTOBER TERM, 2013

 In re Estate of Danielle L. Morin                     }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Civil Division
                                                       }
                                                       }    DOCKET NO. 172-2-13 Cncv

                                                            Trial Judge: Geoffrey W. Crawford


                          In the above-entitled cause, the Clerk will enter:

       Petitioner appeals the superior court’s decision affirming the probate court’s denial of his
motion to be named co-administrator of the estate of his daughter. We affirm.

        Petitioner is incarcerated under a long-term sentence based on a conviction of aggravated
sexual assault. Petitioner’s daughter was unmarried and had no children when she died from a
drug overdose. The probate court named her brother, petitioner’s son, as administrator of the
estate. Petitioner requested that he be named as co-administrator with his son for the purpose of
prosecuting a pending lawsuit in which the estate alleges that employees of the Department of
Corrections and others bear responsibility for his daughter’s death. The probate court initially
denied petitioner’s motion in May 2011 on the basis that he was incarcerated. On January 22,
2013, the probate court denied petitioner’s renewed request that he be named as co-executor of
the estate along with his son. In denying the motion, the court stated as follows on a motion
reaction form: “The estate already has a competent fiduciary. Co-executors are not necessary or
helpful to the court.” On February 5, 2013, in response to petitioner’s motion for
reconsideration, the court stated as follows in a second motion-reaction form: “The issue is not
the convenience of this court, but the efficient operation of all the courts. Litigation cannot be
efficiently managed through the correctional center by the civil or probate division. Legal
counsel is recommended.”

        Petitioner appealed the probate court’s decision to the superior court, arguing that his son
was incapable of prosecuting the pending wrongful death litigation and that the interests of the
estate—which had no asset other than the potential damages from the lawsuit—depended upon
him being appointed administrator. The superior court affirmed the probate court’s decision,
stating that the court acted within its discretion in declining to appoint petitioner as co-
administrator due to the practical difficulties presented by petitioner’s incarceration. The court
acknowledged that petitioner had acted as his own attorney representing himself in the past, but
concluded that “[i]t is a different matter to seek to serve in a representative capacity on behalf of
others and to hold an important legal office as administrator.”

        On appeal to this Court, petitioner argues that his interests as heir to his daughter’s estate
are perfectly aligned with the interests of the estate, and that neither his pro se status nor the fact
he is incarcerated is a valid reason for denying his motion to be named as administrator of the
estate. He points out that thousands of inmates appear before courts pro se and that pro se parties
are routinely named as administrators, just as his son was in this case. He contends, without
explanation, that the court’s order violated his equal protection rights, and further states in a one-
page addendum to his brief that he preserved his equal protection argument by contending in his
memorandum of law to the superior court that because hundreds of cases in Vermont involve
incarcerated pro se litigants, there can be no support for the probate court’s ruling solely based
on his incarceration.

        Under 14 V.S.A. § 903(1)-(2), if a person dies intestate, as here, “administration shall be
granted” to the “next of kin” if there is no surviving spouse unless the next of kin is “unsuitable.”
Here, the probate court concluded, and the superior court came to the same discretionary
conclusion, that petitioner was not suitable to administer his daughter’s estate because of the
practical difficulties of fulfilling the duties of an administrator and prosecuting the wrongful
death lawsuit while incarcerated. Petitioner has failed to demonstrate error in the superior
court’s determination. See Herald Ass’n, Inc. v. Dean, 174 Vt. 350, 359-60 (2002) (noting that,
under abuse-of-discretion standard, “the decision will stand on appeal unless the requesting party
shows that the court either failed to exercise its discretion altogether or exercised it for reasons
that are clearly untenable or unreasonable”). As the superior court explained, the practical
difficulties of having petitioner act as the estate administrator in this case, which would require
him to effectively communicate with the courts in a timely matter and potentially require him to
obtain transport orders to participate in civil proceedings in which he is not a litigant, are a
sufficient basis for the superior court to exercise its discretion to deny petitioner’s motion.

        As for petitioner’s bare argument that the probate court’s decision violates his equal
protection rights, we do not agree with his contention in the addendum to his brief that he
adequately preserved that argument through the statements he had previously made cited therein.
Those statements merely note that pro se inmates prosecute lawsuits in Vermont; they do not
raise an equal protection claim. See Puppolo v. Donovan & O’Connor, LLC, 2011 VT 119, ¶ 13,
191 Vt. 535 (mem.) (refusing to consider constitutional due process argument because plaintiff
failed to properly preserve issue by presenting it to trial court with specificity and clarity in
manner giving court fair opportunity to rule on it).

       With respect to petitioner’s assertion that his participation is essential to the successful
prosecution of the estate’s wrongful death action, we note that father remains free to try to help




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his son, or whoever else may be appointed as administrator,* develop a case and understand the
legal process if the estate does not hire a lawyer.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice




       *
          As the superior court found, apparently petitioner’s son is unwilling to serve as
administrator unless his father is appointed as co-administrator.


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