                                                                              FILED
                                                                       Nov 21 2017, 9:01 am

                                                                              CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Trent A. McCain                                           Elizabeth A. Knight
McCain Law Offices, P.C.                                  Joseph W. Smith
Merrillville, Indiana                                     Knight, Hoppe, Kurnik & Knight,
                                                          Ltd.
Curtis E. Shirley
                                                          Schererville, Indiana
Law Office of Curtis E. Shirley
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re Unsupervised Estate of                              November 21, 2017
Cary A. Owsley                                            Court of Appeals Case No.
                                                          49A02-1701-EU-207
Logan A. Owsley,
                                                          Appeal from the Marion Superior
Appellant,                                                Court
        v.                                                The Honorable Steven R.
                                                          Eichholtz, Judge
Mark E. Gorbett, et al.,                                  Trial Court Cause No.
                                                          49D08-1602-EU-7407
Appellees.



Brown, Judge.




Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017                     Page 1 of 13
[1]   Logan A. Owsley appeals the Marion Superior Court’s dismissal of his verified

      petition to open estate and the denial of his motion to correct error. Logan

      raises one issue which we revise and restate as whether the trial court abused its

      discretion in dismissing the estate proceeding. We affirm.


                                         Facts and Procedural History

[2]   On April 7, 2013, Cary Owsley died from a gunshot wound. In June 2014, the

      Bartholomew Circuit Court appointed Lisa Owsley as personal representative

      of the estate of Cary Owsley (the “Estate”) under cause number 03C01-1406-

      ES-2796 (“Cause No. 2796”). In March 2015, Cheryl Owsley Jackson filed a

      verified petition under Cause No. 2796 to remove Lisa as personal

      representative or to appoint a special administrator. In April 2015, an attorney

      filed an appearance on behalf of Logan, Cary’s son, and a memo in support of

      petitions.1 On April 7, 2015, the court entered an order denying Jackson’s

      petition and stating that Logan “has no matters pending before this Court and

      so this Court is not providing any affirmative or negative relief concerning

      Logan.” Appellant’s Appendix Volume II at 48.


[3]   On April 7, 2015, Logan filed a complaint in the United States District Court

      for the Southern District of Indiana under cause number 1:15-cv-00552-RLY-

      MJD (the “federal lawsuit”) against Mark Gorbett, in his individual and official

      capacities as Sheriff of Bartholomew County; Ernest DeWayne Janes, Sr.,




      1
          The record does not contain a copy of the memo.


      Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 2 of 13
      Dean Johnson, Christie Nunemaker, Brent Worman, William Kinman, Jr., and

      Christopher Roberts in their individual and official capacities as Bartholomew

      County Sheriff’s Deputies; and Larry Fisher, in his individual and official

      capacities as Bartholomew County Coroner. Logan alleged a “[b]otched

      [i]nvestigation” and a cover-up and brought the following claims: Count I,

      obstruction of justice; Count II, conspiracy to obstruct justice based on

      invidious discrimination; Count III, failure to intervene; Count IV, access to

      courts, right to seek remedy; Count V, intentional infliction of emotional

      distress; and Count VI, negligent infliction of emotional distress. Id. at 116.


[4]   On July 10, 2015, the defendants in the federal lawsuit filed a motion to dismiss

      Logan’s complaint and asserted that Logan lacked standing to bring any causes

      of action and that he failed to state claims on which relief could be granted.


[5]   Meanwhile, in May 2015, Logan filed petitions to require a final accounting, to

      remove the personal representative, to distribute abandoned property, and for

      appointment of a special administrator in Cause No. 2796. On February 16,

      2016, the Bartholomew Circuit Court entered an order granting Logan’s

      petition to distribute property and denying the petitions filed by Logan to

      remove the executor and appoint a special administrator. The court approved

      the final accounting as testified to at a prior hearing. The court’s order also

      states:


                Whatever interest the Estate of Cary A. Owsley has in the federal
                lawsuit, the Court ASSIGNS such interest to Logan Owsley. He



      Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 3 of 13
              alone shall inherit and otherwise receive any benefit, proceeds, or
              relief afforded in the litigation pending in federal court.


              There being no further issue before the Court, the Court
              DISCHARGES the personal representative and directs the Clerk
              to close this estate. Any surety is released.


              Pursuant to trial rule 54(B) the Court finds no just reason for
              delay and enters this as a final, appealable order on all issues.


      Id. at 131.


[6]   On February 29, 2016, Logan filed a Verified Petition to Open Estate for

      Limited Purpose and for Unsupervised Administration under cause number

      49D08-1602-EU-7407 (“Cause No. 7407”) in the Marion Superior Court.

      Logan requested to be appointed as the personal representative of the Estate for

      the sole purpose of managing and resolving the federal lawsuit.


[7]   That same day, the Marion Superior Court entered an order in Cause No. 7407

      stating that the property at issue for the Estate in this matter belongs solely to

      Logan. The court stated that it had jurisdiction over this matter because the

      Estate property which remained for administration was the federal lawsuit

      located in Indianapolis. It appointed Logan as the personal representative of

      the Estate and authorized him to administer the Estate without court

      supervision.


[8]   On March 15, 2016, the United States District Court for the Southern District

      of Indiana entered an Order on Motion for Leave to File Amended Complaint


      Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 4 of 13
       which states in part: “unless and until the Order of the Marion County Superior

       Court is overturned by the state court, this Court must view it as a valid Order.

       Therefore, for the purposes of this Motion, Plaintiff is the Personal

       Representative of the Estate.” Id. at 181. That same day, Logan, in his

       individual capacity and as administrator of the Estate, filed an amended

       complaint in the federal lawsuit alleging that there was a rush to classify the

       death as a suicide, contamination and destruction of evidence, and a cover-up.

       The amended complaint alleged: Count I, obstruction of justice; Count II,

       conspiracy to obstruct based on invidious discrimination; Count III, failure to

       intervene; Count IV, access to courts, right to seek remedy; Count V,

       conspiracy; Count VI, intentional infliction of emotional distress; and Count

       VII, negligent infliction of emotional distress. On March 21, 2016, the

       Southern District court denied as moot the federal defendants’ motion to

       dismiss because their motion was directed at a pleading that was “no longer

       operative.” Appellant’s Appendix Volume IV at 11.


[9]    In April 2016, Gorbett, Johnson, Kinman, Roberts, and Worman filed a

       Petition to Intervene and Motion to Vacate Order and Dismiss the Estate

       Proceeding in Cause No. 7407. They argued that Logan’s request for

       appointment was without legal basis in fact and done “only to shoehorn himself

       into a position that was denied him in no less than 2 orders from the

       Bartholomew County Circuit Court.” Appellees’ Appendix Volume II at 5.


[10]   On November 1, 2016, the Marion Superior Court entered an order in Cause

       No. 7407 concluding that the decedent has no constitutional rights to adjudicate

       Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 5 of 13
and therefore the letters of administration by the court were improperly issued

and dismissing the matter. Specifically, the order states:


        On April 7, 2013 Cary Owsley died, intestate, from a gunshot
        wound in Bartholomew County. His death was ruled a suicide.
        On June 23, 2014, Cary’s estranged wife, Lisa Owsley, was
        appointed personal representative of his estate by the
        Bartholomew County Circuit Court. After lengthy disputes
        among family members, the Bartholomew County estate was
        closed on February 16, 2016. The court awarded Logan Owsley
        “Whatever interest the Estate of Cary A. Owsley has in the
        federal lawsuit, the Court ASSIGNS such interest to Logan
        Owsley. He alone shall inherit and otherwise receive any benefit,
        proceeds, or relief afforded in the litigation pending in federal
        court.” Verified petition to open estate exhibit 1.


        On April 7, 2015 the decedent’s son and only heir filed a federal
        lawsuit in United States District Court against various
        Bartholomew County officials. The litigation brought by Logan
        in federal court is an action alleging that the decedent’s
        constitutional rights were violated under sections 42 U.S.C. §§
        1983 or 1985. The defendants in the federal lawsuit are the same
        petitioners to intervene in this case. On February 29, 2016 Logan
        was appointed personal representative of his father’s estate for
        the purpose of managing and resolving the federal lawsuit on
        behalf of the decedent and distributing the property to Logan the
        beneficiary of any proceeds, as a result of this matter been
        awarded to him solely to pursue by the Bartholomew County
        Circuit Court.


        Without reaching whether or not the motion to intervene should
        be granted, the court upon review of the proceedings finds that
        the decision to allow an estate to be opened to pursue this claim
        was incorrect. The estate assets had been probated, administered
        and distributed in the Bartholomew County courts. The claim

Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 6 of 13
        for a violation of the decedent[’]s constitutional rights is not an
        asset of the estate subject to administration. In a similar fact
        pattern alleging violations of the constitutional rights of the
        decedent by officials investigating the decedent[’]s death the
        United States District Court, for the Southern District of Indiana
        found:


                 After death, one is no longer a person within our
                 constitutional and statutory framework, and has no rights
                 of which he may be deprived.” Whitehurst v. Wright, 592
                 F.2d 834, 840 (5th Cir. 1979). The alleged cover-up by
                 Manders and Ward took place after Joseph Love was
                 killed, and thus could not have violated any of Joseph
                 Love’s constitutional rights. Id.; Guyton v. Phillips, 606
                 F.2d 248 (9th Cir. 1979) (“the Civil Rights Act, 42 U.S.C.
                 §§ 1983 and 1985, does not provide a cause of action on
                 behalf of a deceased based upon alleged violation of the
                 deceased’s civil rights which occurred after his death.”)[,
                 cert. denied, 445 U.S. 916, 100 S. Ct. 1276 (1980)]. We do
                 not hold that cover-up of a wrongful death is without civil
                 or criminal effect; rather, we hold that “the victims of a
                 cover-up are the decedent’s survivors, not the decedent
                 himself.” Gibson [v. City of Chicago, 910 F.2d 1510, 1523
                 (7th Cir. 1990)], citing, Bell v. City of Milwaukee, 746 F.2d
                 1205, 1264 (7th Cir. 1984). Thus, to the extent that
                 plaintiffs allege that, by covering up the circumstances of
                 Joseph Love’s death, Manders and Ward violated Joseph
                 Love’s Constitutional rights, the Motion to Dismiss is
                 granted.


        Love v. Bolinger, 927 F. Supp. 1131, 1136 (S.D. Ind. 1996)[.]


        Based upon a review of the foregoing authority the court finds
        that the claim being pursued by the personal representative in
        federal court is not an asset nor property of the decedent’s estate.

Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017      Page 7 of 13
               The decedent has no constitutional rights to adjudicate and
               therefore the letters of administration by the court were
               improperly issued.


               It is therefore ordered that the letters of administration granted to
               Logan Owsley are hereby vacated and this matter is dismissed.


       Id. at 19-20.


[11]   Logan filed a motion to correct error under Cause No. 7407, which was

       deemed denied.


                                                    Discussion

[12]   The issue is whether the trial court abused its discretion in dismissing the estate.

       Logan argues that the reasoning of Love v. Bolinger, 927 F. Supp. 1131 (S.D. Ind.

       1996), which was cited by the trial court, is not instructive because the alleged

       conspiracy to cover up his father’s death violated his right to bring a wrongful

       death claim. He argues that civil rights claims for conspiracy and denial of

       access to courts brought pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 are the

       property of a decedent’s estate and must be brought in federal court by the

       estate, rather than by a relative individually. Logan requests that we should

       reverse the trial court and reinstate him as personal representative of his father’s

       estate for the sole purpose of pursuing the federal civil rights action in the

       federal lawsuit.


[13]   The Appellees argue that the order dismissing the estate proceeding should be

       affirmed because there was no estate property to be administered in Marion


       Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 8 of 13
County. They assert that, to the extent the trial court’s February 16, 2016 order

assigned to Logan “[w]hatever interest the Estate of Cary A. Owsley has in the

federal lawsuit,” this was a legal nullity because the decedent’s estate never had

any interest in Logan’s federal lawsuit to assign. Appellees’ Brief at 22. They

argue that Logan’s petition was an improper collateral attack on the

Bartholomew Circuit Court’s orders including orders denying requests to

replace Lisa as personal representative and requests for appointment of a special

administrator to pursue Logan’s federal lawsuit. They also contend that the

order dismissing the estate proceeding should be affirmed because Bartholomew

County is the only county in which an estate for decedent could be opened and

cite Ind. Code § 29-1-7-1.2




2
    Ind. Code § 29-1-7-1 provides:
           (a) The venue for the probate of a will and for the administration of an estate shall be:

                    (1) In the county in this state where the decedent had his domicile at the time of
                    his death.
                    (2) When not domiciled in this state in any county in the state, where he left any
                    property at the time of his decease; or into which county any property belonging
                    to his estate may have come after his decease.

           (b) If proceedings are commenced in more than one (1) county, they shall be stayed except
           in the county where first commenced until final determination of the venue by the court in
           the county where first commenced, and thereupon all proceedings in any county, other
           than the county where jurisdiction has been finally determined to exist, shall be dismissed.
           If the proper venue is finally determined to be in another county, the court, after making
           and retaining a true copy of the entire file, shall transmit the original to the proper county.
           The proceeding shall be deemed commenced by the filing of a petition; and the proceeding
           first legally commenced shall extend to all of the property of the estate in this state.

           (c) If it appears to the court at any time before the decree of final distribution in any
           proceedings that the proceeding was commenced in the wrong county or that it would be
           for the best interests of the estate, the court, in its discretion, may order the proceeding with
           all papers, files and a certified copy of all orders therein transferred to another court having
           probate jurisdiction, which other court shall thereupon proceed to complete the
           administration proceedings as if originally commenced therein.

Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017                             Page 9 of 13
[14]   In reply, Logan argues that the Appellees are not parties to this appeal, points

       out that the Marion Superior Court never granted their motion to intervene and

       that they did not file a cross-appeal, and asserts that their brief should be

       stricken. He alleges that we should reverse even if we determine that the

       Appellees are parties to this appeal. His contention is that Ind. Code § 29-1-7-

       1(b) does not apply because Cause No. 2796 in the Bartholomew Circuit Court

       was closed. He also appears to argue that, even if Ind. Code § 29-1-7-1(b)

       applies, dismissal is not appropriate because the county is a party and change of

       venue must be granted pursuant to Ind. Trial Rule 76(A) 3, and dismissal is not

       appropriate under Ind. Trial Rule 75(B)(1).4


[15]   We need not reach the question of whether Gorbett, Johnson, Kinman,

       Roberts, and Worman, properly identify themselves as appellees because, even

       assuming that they are not appellees or parties to this appeal, we cannot say

       that reversal of the dismissal is warranted.


[16]   “A court of probate jurisdiction has great latitude and wide discretion in

       matters concerning the appointments and the removal of administrators . . . ,




       3
         Ind. Trial Rule 76(A) provides in part: “In civil actions where the venue may be changed from the county,
       such change of venue from the county may be had only upon the filing of a verified motion specifically
       stating the grounds therefor by the party requesting the change. The motion shall be granted only upon a
       showing that the county where suit is pending is a party or that the party seeking the change will be unlikely
       to receive a fair trial on account of local prejudice or bias regarding a party or the claim or defense presented
       by a party. A party shall be entitled to only one change of venue from the county.”
       4
        Ind. Trial Rule 75(B)(1) provides: “Whenever a claim or proceeding is filed which should properly have
       been filed in another court of this state, and proper objection is made, the court in which such action is filed
       shall not then dismiss the action, but shall order the action transferred to the court in which it should have
       been filed.”

       Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017                         Page 10 of 13
       and this court will not attempt to control or interfere with the Probate Court’s

       action therein, except in a case where it is clear that its discretion has been

       abused.” Hauck v. Second Nat. Bank of Richmond, 153 Ind. App. 245, 267, 286

       N.E.2d 852, 865 (1972) (citing Helm v. Odle, 129 Ind. App. 478, 480, 157

       N.E.2d 584, 585 (1959)), reh’g denied. 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. In re

       Estate of Hammar, 847 N.E.2d 960, 962 (Ind. 2006) (citing 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, 779-780 (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.”)).


[17]   The Marion Superior Court’s November 1, 2016 order in Cause No. 7407 states

       that the claim for a violation of the decedent’s constitutional rights was not an

       asset of the Estate subject to administration and cites Love v. Bolinger, 927 F.

       Supp. 1131, 1136 (S.D. Ind. 1996). In Love, Joseph Love’s estate, his parents,

       and his brother brought a lawsuit alleging various federal and state

       constitutional causes of action against a number of state, county, and city

       defendants, arising out of Joseph’s arrest, the criminal proceedings against him,

       his death, and an alleged cover-up of the circumstances of his death. 927 F.

       Supp. at 1133. Defendants Karl Manders, the Coroner of Marion County, and

       Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 11 of 13
       Bob Ward, the Chief Deputy Coroner, filed a motion to dismiss. Id. at 1133-

       1134. In addressing the plaintiff’s claim under 42 U.S.C. § 1983, the court held

       that “[a]fter death, one is no longer a person within our constitutional and

       statutory framework, and has no rights of which he may be deprived.” Id. at

       1136 (quoting Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979)). The

       court held that “[t]he alleged cover-up by Manders and Ward took place after

       Joseph Love was killed, and thus could not have violated any of Joseph Love’s

       constitutional rights.” Id. (citing Whitehurst, 592 F.2d at 840; Guyton v. Phillips,

       606 F.2d 248 (9th Cir. 1979) (“the Civil Rights Act, 42 U.S.C. §§ 1983 and

       1985, does not provide a cause of action on behalf of a deceased based upon

       alleged violation of the deceased’s civil rights which occurred after his death”)).

       The court clarified: “We do not hold that cover-up of a wrongful death is

       without civil or criminal effect; rather, we hold that ‘the victims of a cover-up

       are the decedent’s survivors, not the decedent himself.’” Id. (quoting Gibson,

       910 F.2d at 1523 (citing Bell v. City of Milwaukee, 746 F.2d 1205, 1264 (7th Cir.

       1984)). The court held that “to the extent that plaintiffs allege that, by covering

       up the circumstances of Joseph Love’s death, Manders and Ward violated

       Joseph Love’s Constitutional rights, the Motion to Dismiss is granted.” Id.


[18]   While Logan argues that Love is distinguishable from this case because the

       plaintiffs in Love did not allege that they were prevented from filing a wrongful

       death suit under state law and he did allege such a claim in his amended

       complaint, he does not point to a claim in his amended complaint based upon

       an alleged violation of Cary’s rights which occurred prior to his death. His

       Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017   Page 12 of 13
       amended complaint in the federal lawsuit alleged that there was a rush to

       classify the death as a suicide, contamination and destruction of evidence, and a

       cover-up, all of which were alleged to have occurred after Cary’s death. Based

       upon Love, we cannot say that the Marion Superior Court erred in concluding

       that the claim being pursued in federal court was not an asset or property of the

       Estate and, accordingly, in dismissing the matter.5


                                                         Conclusion

[19]   For the foregoing reasons, we affirm the trial court’s order.


[20]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       5
         Logan asserts that civil rights claims for denial of access to courts and conspiracy brought pursuant to 42 U.S.C.
       §§ 1983, 1985, and 1986 are the property of a decedent’s estate and must be brought in federal court by the estate
       and cites Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), Russ v. Watts, 414 F.3d 783 (7th Cir. 2005),
       reh’g and reh’g en banc denied, cert. denied, 546 U.S. 1094, 126 S. Ct. 1065 (2006), and Barrett v. United States,
       689 F.2d 324 (2d Cir. 1982), cert. denied, 462 U.S. 1131, 103 S. Ct. 3111 (1983). See Appellant’s Brief at 9-10.
       Those cases all involved alleged government misconduct prior to death. See Bell, 746 F.2d at 1215 (addressing the
       shooting and killing of a man by a police officer); Russ, 414 F.3d at 783 (same); Barrett, 689 F.2d at 326
       (observing that the decedent died from an injection of a mesclaline derivative administered to him while he
       unknowingly served as a test subject in an Army chemical warfare experiment). Thus, we find those cases
       distinguishable.

       Court of Appeals of Indiana | Opinion 49A02-1701-EU-207 | November 21, 2017                           Page 13 of 13
