                                                                           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

Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                           Page 1 of 16
      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.

      Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                           Page 2 of 16
[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.

      Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                          Page 3 of 16
      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



      Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018   Page 4 of 16
       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.

       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                             Page 5 of 16
       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.


       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018       Page 6 of 16
[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.


       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018    Page 7 of 16
       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.

       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                              Page 8 of 16
       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

       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018     Page 9 of 16
       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

       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018   Page 10 of 16
       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



       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018   Page 11 of 16
       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.

       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                        Page 12 of 16
       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.


       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                           Page 13 of 16
       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.


       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018   Page 14 of 16
       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.

       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018                          Page 15 of 16
       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.




       Court of Appeals of Indiana | Opinion 41A01-1712-EU-2893 | July 13, 2018   Page 16 of 16
