MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Apr 06 2020, 7:48 am
regarded as precedent or cited before any
court except for the purpose of establishing                        CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
the defense of res judicata, collateral                              and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
Jonathan E. Lamb                                          Joseph A. Colussi
John A. Cremer                                            Colussi Law Office
Cremer & Cremer                                           Madison, Indiana
Fishers, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elizabeth J. Hollrah and Janice                           April 6, 2020
Stacy, Individually and as                                Court of Appeals Case No.
Beneficiaries and Former                                  19A-EU-1978
Personal Representatives of the                           Appeal from the Decatur Circuit
Estate of Laura E. Barker,                                Court
Appellants-Respondents,                                   The Honorable Timothy B. Day,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          16C01-1906-EU-38
Estate of Laura E. Barker, Don
Wickens, Personal
Representative,
Appellee-Intervenor,

Lisa R. Barker and Connie L.
Barker,
Appellees-Petitioners.



Court of Appeals of Indiana | Memorandum Decision 19A-EU-1978 | April 6, 2020           Page 1 of 10
      Brown, Judge.


[1]   Elizabeth J. Hollrah and Janice Stacy, individually and as beneficiaries and

      former personal representatives of the Estate of Laura E. Barker (the “Estate”),

      appeal the July 25, 2019 order of the Decatur Circuit Court removing them as

      personal representatives. We reverse and remand.


                                      Facts and Procedural History

[2]   Laura E. Barker (“Barker”) and Dewey P. Barker (“Dewey P.”) were husband

      and wife. They had three children: Dewey R. Barker (“Dewey R.”), Elizabeth

      Hollrah, and James Barker (“James”). James predeceased his parents leaving

      three children, Connie L. Barker (“Connie”), Lisa R. Barker (“Lisa”), and

      Victoria Williams.


[3]   Dewey P. died on February 13, 2002. The last will and testament of Dewey P.

      provided, among other bequests, that the residue of his estate go to Union Bank

      & Trust Company to hold to benefit Barker. It also provided that, upon

      termination of the trust, the balance was to be divided among Dewey R.,

      Hollrah, and Connie, Lisa, and Williams.


[4]   On April 20, 2019, Barker died. Barker’s last will and testament bequeathed a

      certain set of dishes to her grandchild, Lisa, and a certain vase to her

      grandchild, Connie. Among other bequests, the last will and testament also

      bequeathed the “rest, residue and remainder of my property, both real and

      personal of any type whatsoever in equal shares in value, with one share to each

      of my children Elizabeth J. Hollrah and Dewey R. Barker who shall survive

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-1978 | April 6, 2020   Page 2 of 10
      me, and one-share to the issue per stirpes of each of my said named children

      who shall not survive me.” Appellants’ Appendix Volume II at 88-89. In her

      last will and testament, Barker nominated and designated her daughter Hollrah

      to serve as executor and provided that Hollrah may nominate another person to

      serve as co-executor.


[5]   On May 8, 2019, Hollrah filed a Petition for Probate of Will, Issuance of

      Letters and Unsupervised Administration in the Shelby Circuit Court under

      cause number 73C01-1905-EU-30. The petition alleged Barker was domiciled

      in Decatur County, Indiana, when she died. Hollrah asserted Barker’s last will

      and testament designated her to serve as personal representative, and she

      nominated Stacy to serve as co-personal representative and noted that Item XI

      of the will provided for unsupervised administration without bond. That same

      day, Dewey R. filed a Consent and Authorization to Appointment of Personal

      Representatives for Estate.


[6]   On May 13, 2019, the Shelby Circuit Court entered an Order Granting Probate

      of Will, Issuance of Letters and Leave to Administer Estate Without Court

      Supervision and Without Bond. That same day, the court entered a Notice of

      Unsupervised Administration stating that Hollrah and Stacy were appointed

      personal representatives of the Estate. On June 6, 2019, Hollrah and Stacy filed

      a Proof of Notice of Administration Upon Beneficiaries.


[7]   Meanwhile, on May 23, 2019, Lisa and Connie filed in the Shelby Circuit

      Court a motion titled “Motion to Transfer Estate to Decatur County, To


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      Remove the Non-Resident Personal Representative Until a Proper Bond Has

      Been Posted and To Convert To a Supervised Estate.” Appellants’ Appendix

      Volume II at 33-35 (some capitalization omitted). They asserted in part that

      there were significant questions concerning the handling of the assets of the

      Dewey P. Estate while under the control of Barker or Hollrah following the

      death of Dewey P. On May 24, 2019, Hollrah and Stacy filed an objection to

      the motion and asserted that notice and a hearing were required upon petition

      for removal of a personal representative. On May 28, 2019, Lisa and Connie

      filed a reply.


[8]   On May 30, 2019, Dewey R. filed a Confirmation By Child of Decedent As To

      Approval of Personal Representatives. That same day, the Shelby Circuit

      Court entered an order stating that Lisa and Connie had “moved the Court to

      transfer this matter to Decatur County pursuant to I.C. 29-1-7-1 and Trial Rule

      75(B), to remove the non-resident Personal Representative, Elizabeth J.

      Hollrah, for failing to comply with I.C. 29-1-10-1 and to convert the matter to

      supervised administration.” Id. at 66. The court ordered “that this matter shall

      be transferred to Decatur Circuit Court by the Personal Representative within

      twenty days” and that the “Personal Representative shall pay the costs

      chargeable for the transfer and shall see that all papers and records filed in this

      Court are certified and delivered to the Decatur Circuit Court upon transfer.”

      Id.


[9]   On June 7, 2019, Hollrah and Stacy filed a response in the Decatur Circuit

      Court to Lisa and Connie’s May 28, 2019 reply and asserted in part that Lisa

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-1978 | April 6, 2020   Page 4 of 10
       and Connie had no standing because they received the property mentioned in

       Barker’s last will and testament and attached documents allegedly signed by

       Lisa and Connie indicating receipt of dishes and a vase on May 6, 2019.


[10]   On June 18, 2019, the Decatur Circuit Court scheduled a hearing for August

       16, 2019, pursuant to Ind. Code § 29-1-10-6, on Lisa and Connie’s motion to

       remove personal representative. On June 24, 2019, Hollrah and Stacy filed an

       amended inventory in the Decatur Circuit Court.


[11]   On July 11, 2019, the Decatur Circuit Court set a hearing on all pending

       matters in cause number 16C01-1906-EU-38, the cause from which this appeal

       arises, at the same time as a hearing scheduled for July 28, 2019, on all pending

       matters in the Dewey P. Barker Estate under cause number 16C01-0207-ES-41.

       On July 15, 2019, Hollrah and Stacy filed a motion to reset hearing. On July

       16, 2019, Connie and Lisa filed a response to the motion. That same day, the

       Decatur Circuit Court rescheduled the hearing to August 16, 2019.


[12]   On July 25, 2019, the Decatur Circuit Court entered an order stating that

       “having reviewed the pleadings filed in this cause of action and having

       conducted a telephonic pretrial with counsel of record [the court] determines

       that it is in the best interest of all parties involved that an unrelated,

       independent personal representative be appointed by the Court and this estate

       administered as a supervised estate.” Id. at 211. The court appointed Attorney

       Don Wickens as the personal representative of the Estate and vacated all

       scheduled hearings.


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-1978 | April 6, 2020   Page 5 of 10
[13]   On August 19, 2019, Hollrah and Stacy filed a motion to reconsider the court’s

       July 25, 2019 order. On August 21, 2019, Connie and Lisa filed a response.

       That same day, Hollrah and Stacy filed a reply, and the court entered an order

       denying the motion to reconsider and stating that “[t]he Court’s

       removal/appointment was at the suggestion of the parties’ attorneys.”

       Appellants’ Appendix Volume III at 59.


                                                    Discussion

[14]   Hollrah and Stacy argue that Lisa and Connie lacked standing because they

       were not interested parties under Ind. Code § 29-1-1-3 and failed to file a claim

       in the Estate under Ind. Code § 29-1-14-1, and that “the Decatur Circuit Court

       erred by not dismissing Lisa and Connie’s Motion.” Appellants’ Brief at 16.

       They also contend the Decatur Circuit Court failed to hold a hearing required

       under Ind. Code § 29-1-10-6 prior to removing them as personal representatives.

       They assert the court’s July 25, 2019 order contains no finding of an emergency

       as required by Ind. Code § 29-1-10-6 to circumvent the need for a hearing.


[15]   Generally, “[t]he probate court has great latitude and wide discretion in matters

       concerning the appointment and removal of executors.” Matter of Estate of

       Runyan, 557 N.E.2d 1353, 1356 (Ind. Ct. App. 1990) (citing Estate of Jaworski v.

       Jaworski, 479 N.E.2d 89 (Ind. Ct. App. 1985), reh’g denied, trans. denied). This

       court will not interfere with the probate court’s action unless it is clear its

       discretion has been abused. Id. When a statute prescribes the steps necessary to

       remove a personal representative, the statute must be obeyed, and a non-

       complying order of removal is ineffectual. Id. (citing HENRY’S PROBATE LAW
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       AND PRACTICE,        § 1304, at 528 (1989); 31 AM. JUR. 2d Executors and

       Administrators, § 295 (1989)).


[16]   Ind. Code § 29-1-10-6 governs removal of personal representatives and

       provides:


               (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.

               (c) The removal of a personal representative after letters are duly
               issued does not invalidate official acts performed prior to
               removal.


[17]   Ind. Code § 29-1-10-6 “contemplates removal of a personal representative in

       two ways: 1) after notice of the charges and a hearing; or 2) without notice or


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-1978 | April 6, 2020   Page 7 of 10
       citation in the case of emergency.” Matter of Estate of Runyan, 557 N.E.2d at

       1356 (citing HENRY’S PROBATE LAW AND PRACTICE, § 1307, at 537). An

       emergency is defined as an unforeseen set of circumstances which calls for

       immediate action. Id. (citing May v. Sansberry, 119 Ind. App. 523, 86 N.E.2d 88

       (1949)). Absent a clear emergency, the personal representative who is sought to

       be removed is entitled to notice and a hearing. Id. (citing State v. Johnston, 204

       Ind. 563, 185 N.E. 278 (1933)). When a personal representative is removed

       without notice and a hearing, the probate court must disclose, at least in

       substance, the facts constituting the emergency so that this court may review

       the probate court’s action to determine if there has been an abuse of discretion.

       Id. (citing Meyer v. Anderson Banking Co., 243 Ind. 145, 177 N.E.2d 662 (1961);

       AM. JUR. supra, § 303).


[18]   To the extent Hollrah and Stacy assert that the Decatur Circuit Court failed to

       hold a hearing, which we find to be the dispositive issue, the court scheduled a

       hearing for August 16, 2019, and yet entered an order removing Hollrah and

       Stacy as personal representatives on July 25, 2019. While the court’s July 25,

       2019 order referred to a “telephonic pretrial with counsel,” Appellants’

       Appendix Volume II at 211, and the court’s August 21, 2019 order denying the

       motion to reconsider states that “[t]he Court’s removal/appointment was at the

       suggestion of the parties’ attorneys,” Appellants’ Appendix Volume III at 59,

       we cannot say that the teleconference satisfied the hearing requirement under

       the statute or determine from the record before us that the trial court’s removal

       was proper. See Matter of Estate of Runyan, 557 N.E.2d at 1358 (“Based on the


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-1978 | April 6, 2020   Page 8 of 10
above, we find that although the court’s order claimed several improprieties,

neither the order nor the record presented to us discloses ‘an emergency’ (an

immediate threat to the administration of the estate) as would justify a removal

without a hearing.”); Meyer v. Anderson Banking Co., 243 Ind. 145, 149-151, 177

N.E.2d 662, 664-665 (1961) (addressing the removal of a personal

representative, observing that, “other than the recital that a hearing was had,

embodied in the order of removal, no evidence was heard, no citation was

issued or notice given of a proceeding for the removal of the administrator,”

noting that “[o]ther than the recital in the order itself, there was no showing of

emergency and no evidence adduced from which an emergency could be

inferred, nor was there any evidence taken in said hearing on the removal

question disclosed by the record,” and reversing the trial court’s order, and

remanding for further proceedings). 1




1
    In Meyer, the Indiana Supreme Court interpreted a similar statute. Specifically, the Court observed:

           The removal statute, Acts 1953, ch. 112, § 1006, p. 295, being § 7-406 Burns’ 1953
           Replacement, reads as follows:
           ‘When personal representative may be removed.-When the personal representative
           becomes mentally incompetent, disqualified, unsuitable or incapable of discharging his
           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 the state of Indiana, the court
           may remove him as hereinafter provided:
           ‘(a) 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 he should not be removed.
           Such 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 pursuant to the provisions of the
           code.
           ‘(b) 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 | Memorandum Decision 19A-EU-1978 | April 6, 2020                            Page 9 of 10
[19]   For the foregoing reasons, we reverse and remand for a hearing consistent with

       this decision.


[20]   Reversed and remanded.


       Mathias, J., and Pyle, J., concur.




               ‘The removal of a personal representative after letters are duly issued to him does not
               invalidate his official acts performed prior to removal.’
       243 Ind. at 150, 177 N.E.2d at 664-665.

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