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COA upholds reconsideration of special administrator appointment

July 13, 2018

A dispute between extended family members over who will become the special administrator of a Johnson County estate was resolved in favor of the guardians of the deceased’s children after the Indiana Court of Appeals determined that administrator appointments cannot be made based on who files a petition first.

After Orlando Lewis, Jr. and his wife were killed in a highway accident in July 2017, their daughter, K.L., was placed in the care of her great aunt, Kathy Calloway. Calloway became K.L.’s temporary guardian the following month.  

Meanwhile, Lewis, Jr.’s father, Orlando Lewis, Sr., was appointed special administrator of his son’s estate “for the sole purpose of pursuing damages for the wrongful deaths” in Johnson County. However, Shana Toliver, the mother of Lewis Jr.’s son, J.T., was also appointed special administrator by a Marion Superior Court, which stayed its proceedings when it learned of Lewis’ Johnson County petition.

Toliver moved to intervene in the Johnson County proceedings and filed a motion to remove Lewis as special administrator. Calloway followed suit, with both women arguing that because they were the legal or court-appointed guardians of Lewis, Jr.’s dependent children, they should be co-special administrators.

The trial judge granted the women’s motions, reconsidering and rescinding Lewis’ appointment and instead appointing them co-personal representatives of the estate, prompting Lewis, Sr.’s appeal in the case of In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr. v. Shana Toliver and Kathy Calloway, 41A01-1712-EU-2893. On appeal, Lewis, Sr. argued the trial court erred by removing him without complying with Indiana Code section 29-1-10-6, known as the Removal Statute.

But relying on precedent from In re Estate of Hammar, 847 N.E.2d 960, 962 (Ind. 2006), the Indiana Court of Appeals upheld the trial court’s ruling on Friday. Judge Paul Mathias noted in the unanimous opinion that Lewis, Sr., only saw his grandchildren a handful of times during their lives, giving weight to the trial court’s finding that he did not demonstrate “a particularly close relationship with either grandchild prior to the collision.”

Mathias also rejected Lewis’ argument that he should remain the special administrator because Toliver and Calloway waited more than a month to file their petitions, noting that “the determination of who becomes a special administrator does not rest solely upon who wins the proverbial race to the courthouse.”

The panel also pointed to the fact that neither Toliver nor Calloway were given notice that Lewis was filing a special administrator petition.

“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,’” Mathias wrote. “‘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.’”

“We agree, and it is for these reasons that trial courts are afforded the ability to reconsider prior rulings as long as the action remains in fieri,” Mathias said.

Thus, the appellate panel determined the trial court’s ruling was merely a reconsideration, not a removal subject to the Removal Statute, so its reconsideration was not an abuse of discretion.

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