                                                                   Jul 30 2013, 7:34 am
FOR PUBLICATION



ATTORNEYS FOR APPELLANT:                    ATTORNEY FOR APPELLEE:

STEPHEN L. WILLIAMS                         MARK D. HASSLER
Williams Law Firm                           Hunt, Hassler & Lorenz LLP
Terre Haute, Indiana                        Terre Haute, Indiana

G. STEPHEN FLESCHNER
Fleschner Law Firm
Terre Haute, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

DARLA M. BRENTON, AS PERSONAL               )
REPRESENTATIVE OF THE ESTATE OF             )
EVELYN NORFLEET, DECEASED,                  )
                                            )
     Appellant,                             )
                                            )
            vs.                             )      No. 77A01-1302-ES-86
                                            )
LESLIE D. LUTZ,                             )
                                            )
     Appellee.                              )


                  APPEAL FROM THE SULLIVAN CIRCUIT COURT
                         The Honorable P.J. Pierson, Judge
                    The Honorable Ann Smith Mischler, Magistrate
                           Cause No. 77C01-1210-ES-35



                                   July 30, 2013


                         OPINION - FOR PUBLICATION

NAJAM, Judge
                            STATEMENT OF THE CASE

       Darla Brenton appeals the trial court’s order removing her as Special

Administrator of the Estate of Evelyn Norfleet (“the Estate”). Brenton presents a single

dispositive issue for our review, namely, whether the trial court abused its discretion

when it removed her as Special Administrator of the Estate.

       We affirm.

                      FACTS AND PROCEDURAL HISTORY

       On October 16, 2012, Norfleet, who was seventy-one years old, was struck and

killed by a motor vehicle operated by Robert Foutch. Six days later, on October 22,

Norfleet’s daughter, Brenton, filed a Petition to Appoint Administrator for the Sole

Purpose of Collecting Damages for Wrongful Death. The trial court granted that petition

the same day, and Brenton executed her Oath of Acceptance. Brenton did not inform the

court that Norfleet had died testate. In her will, executed on November 17, 2010,

Norfleet: nominated and appointed her son Leslie Lutz (“Lutz”) as Executor of her will;

“empower[ed]” Lutz to settle, compromise, or pay “any claims” asserted in favor of

Norfleet or her estate; designated a sole heir of her residual estate, namely, Chelcie Lutz

(“Chelcie”), Lutz’s daughter; and declared that she made “no bequest to [her] four

surviving children[, Lutz, Brenton, Russell Lutz (“Russell”), and James Lutz (“James”),]

not out of any lack of love or affection, but for reasons only known to me.” Appellant’s

App. at 17-18.

       On November 28, Lutz filed his Petition for Removal of Personal Representative

and Her Attorney and for Appointment of Successor Personal Representative. In that


                                            2
petition, Lutz informed the court that Norfleet had died testate, and he attached as an

exhibit to the petition a copy of Norfleet’s will. Brenton filed a response to Lutz’s

petition and, following a hearing, the trial court granted Lutz’s petition and removed

Brenton as Special Administrator. In its order, the trial court found in relevant part that

Norfleet’s will named Lutz as Executor and expressly gave him the power to settle “any

claims” asserted in favor of Norfleet or her estate. The trial court further found and

ordered:

       8.    That the parties herein never disputed that the Last Will and
       Testament of Evelyn Jean Norfleet was validly executed.

       9.     That on October 22, 2012, Darla M. Brenton, As Personal
       Representative of the Estate of Evelyn Norfleet, filed a civil lawsuit entitled
       “Darla M. Brenton, as Personal Representative of the Estate of Norfleet v.
       Robert J. Foutch” under Cause No. 77C01-1210-CT-00645 and that the law
       firm of Fleschner, Stark, Tanoos and Newlin paid the sum of $139.00 to file
       the civil lawsuit.

              The Court, after hearing arguments and having reviewed the above-
       referenced evidence, now GRANTS the Petition for Removal.

             IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by
       the Court as follows:

       1.     That Evelyn Jean Norfleet died testate.

       2.     That the Last Will and Testament of Evelyn Jean Norfleet was
       properly executed and is therefore admitted to probate.

       3.     That Item 5 of the Last Will and Testament of Evelyn Jean Norfleet
       states who the Personal Representative will be and that they [sic] have the
       power to settle, compromise or pay any claims, including taxes, asserted in
       favor of [Norfleet] or against [Norfleet] or [her] estate.

       4.    That Darla M. Brenton is removed as Special Administrator and that
       G. Steven Fleschner, the law firm of Fleschner, Stark, Tanoos & Newlin
       and Stephen L. Williams, and the Williams Law Firm are all hereby
       removed as attorneys for the Estate of Evelyn Jean Norfleet.
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       5.    That Mark D. Hassler is authorized to file his Appearance in Cause
       No. 77C01-1201-CT-000645.

       6.      That the law firm of Fleschner, Stark, Tanoos and Newlin are
       entitled to be reimbursed for the filing fee in [the wrongful death action]. . .
       .

       7.    That the Estate of Evelyn Jean Norfleet shall be administered as a
       supervised estate.

       8.     That upon Leslie D. Lutz taking an oath the Clerk of this Court is
       directed to issue Letters Testamentary to Leslie D. Lutz, as Successor
       Personal Representative.

Id. at 6-7. This appeal ensued.

                            DISCUSSION AND DECISION

       Brenton contends that the trial court abused its discretion when it removed her as

Special Administrator of Norfleet’s estate for the purpose of bringing the wrongful death

action. In particular, Brenton maintains that the trial court did not comply with Indiana

Code Section 29-1-10-6, which governs the removal of personal representatives. But

Lutz contends that Brenton was not qualified to serve as Special Administrator in the first

instance and the trial court properly exercised its discretion when it removed Brenton.

We agree with Lutz.

       Indiana Code Section 29-1-10-15 provides in relevant part:

       A special administrator may be appointed by the court 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



                                              4
       (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. The fact that a person has been
       designated as executor in a decedent’s will shall not disqualify him from
       being appointed special administrator of such decedent’s estate or any
       portion thereof.

In her Petition to Appoint Administrator for Sole Purpose of Collecting Damages for

Wrongful Death, Brenton did not cite to Indiana Code Section 29-1-10-15, nor did she

allege facts that would qualify her to serve as special administrator under any of the

subsections of the statute.

       At the hearing on his Petition for Removal of Brenton as Special Administrator,

Lutz argued that Brenton had not shown that appointment of a special administrator was

appropriate under the statute. In response, Brenton argued that, because the damages in a

wrongful death action inure to the benefit of the four children, they should get to decide

who serves as personal representative for the wrongful death estate.           And Brenton

presented evidence that three of the four children had chosen Brenton to serve in that

capacity. Brenton also asserted that nothing in Norfleet’s will dictates who should serve

as personal representative for purposes of bringing a wrongful death action.

       But Brenton’s primary argument to the trial court was that the court had no basis

to remove her as special administrator under Indiana Code Section 29-1-10-6, 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
                                             5
      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.

      And, on appeal, Brenton maintains that, because the trial court does not reference

Indiana Code Section 29-1-10-6 in its order removing her as special administrator, the

court’s order is invalid. In support of that contention, Brenton cites In re Estate of

Sandefur, 685 N.E.2d 719 (Ind. Ct. App. 1997), where this court held that the trial court

had erroneously removed the appellant as special administrator for the purpose of

bringing a wrongful death action.      In Sandefur, we stated that, “[o]nce a valid

appointment of a special administrator has been made, removal of that administrator must

follow the statutory provisions for removal.” Id. at 724. We observed that the trial

court’s appointment of the special administrator was proper under Indiana Code Section

29-1-10-15. Id. at 723. But we held that there was “no proper basis” for her removal

under Indiana Code Section 29-1-10-6 and reversed on that ground. Id. at 724.

      We find this case distinguishable from Sandefur for two reasons. First, here,

Norfleet died testate, unlike the decedent in Sandefur. Second, and moreover, the trial

court’s appointment of Brenton as special administrator has not been shown to have been
                                           6
proper under Indiana Code Section 29-1-10-15. Without a valid appointment of a special

administrator, there is no reason to seek removal under Indiana Code Section 29-1-10-6.

       Lutz’s petition to remove Brenton was tantamount to a motion to reconsider under

Indiana Trial Rule 53.4, which authorizes a court to reconsider its previous rulings. In

construing Rule 53.4, this court has held that “a trial court has the inherent power to

reconsider any of its previous rulings so long as the action remains in fieri.” Stephens v.

Irvin, 734 N.E.2d 1133, 1135 (Ind. Ct. App. 2000), trans. denied. An action is “in fieri”

if it is “pending resolution” and remains on the court’s docket. See Pond v. Pond, 700

N.E.2d 1130, 1135 (Ind. 1998).

       Here, the trial court had the inherent power to reconsider its appointment of

Brenton as special administrator. Indeed, a trial court has “complete discretion” in the

appointment of special administrators. In re Estate of Hutman, 705 N.E.2d 1060, 1063

(Ind. Ct. App. 1999) (quoting Sandefur, 685 N.E.2d at 723). The trial court’s findings

show that it considered the fact that Norfleet died testate to be important, and Brenton

had failed to provide that information to the trial court in her petition. The trial court

clearly found relevant the fact that Norfleet had named Lutz as executor and gave him the

power to settle or compromise “all claims” asserted in favor of her or her estate.

Appellant’s App. 6. Further, the trial court found, with reference to Indiana Code Section

29-1-10-15(c) by implication, that “the parties herein never disputed that the Last Will

and Testament of Evelyn Jean Norfleet was validly executed.” Id. Thus, the trial court

concluded that Brenton should be removed as special administrator. We hold that the

trial court did not abuse its broad discretion when it so ruled.


                                              7
       Further, we address Brenton’s contention that, “[u]nder the Wrongful Death Act,

the Wrongful Death beneficiaries, not the decedent, determine the Personal

Representative of the Wrongful Death Estate.” Brief of Appellant at 22. In support of

that contention, Brenton cites Indiana Code Section 34-23-1-2(d), which provides:

“Damages awarded under subsection (c)(3)(A) for medical, hospital, funeral, and burial

expenses inure to the exclusive benefit of the adult person’s estate for the payment of the

expenses.     The remainder of the damages inure to the exclusive benefit of a

nondependent parent or nondependent child of the adult person.” Brenton maintains that,

because she and her siblings are the beneficiaries of the remainder of the damages, it

follows that they “may nominate and select the Personal Representative of the Wrongful

Death Estate.” Brief of Appellant at 22. We do not agree with Brenton’s reasoning on

this point, and we reject her contention. Again, it is well settled that the trial court has

broad discretion in choosing a special administrator for the purpose of bringing a claim

under the Wrongful Death Act, and the special administrator must be appointed pursuant

to Indiana Code Section 29-1-10-15.

       Finally, Brenton contends that “Lutz is not the preferred personal representative of

the wrongful death estate solely because he was named as Executor in the Last Will and

Testament.”1 Brief of Appellant at 31 (emphasis added). Brenton is correct that Indiana

Code Section 29-1-10-1(a)(1), which governs the preference of persons entitled to

domiciliary letters testamentary, “by its clear language . . . applies to the appointment of


       1
            To be clear, the trial court was not required to appoint Lutz as special administrator for
purposes of bringing the wrongful death claim merely because Norfleet had named him executor of her
will, but the court was entitled to know that a will existed and to consider the terms of that will in
exercising its discretion on this issue.
                                                  8
general administrators and, therefore, not to the appointment of special administrators.”

See Sandefur, 685 N.E.2d at 723. But while Lutz erroneously based his initial petition

for Brenton’s removal on that statute, his primary argument in his reply brief, filed after

the hearing, focused on Brenton’s failure to comply with Indiana Code Section 29-1-10-

15 when she first sought appointment as special administrator. And the trial court makes

no mention of Indiana Code Section 29-1-10-1 in its order removing Brenton as special

administrator.   Because we hold that Brenton was not qualified to serve as special

administrator under Indiana Code Section 29-1-10-15, Brenton has not shown any error

to the extent the trial court may have considered Indiana Code Section 29-1-10-1 in

ruling on Lutz’s petition.

       Affirmed.

BAILEY, J., and BARNES, J., concur.




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