Darla M. Brenton, as Personal Representative of the Estate of Evelyn Norfleet v. Leslie D. Lutz , 993 N.E.2d 235 ( 2013 )


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  •                                                                    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.
    3
    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
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    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.
    9
    

Document Info

Docket Number: 77A01-1302-ES-86

Citation Numbers: 993 N.E.2d 235

Filed Date: 7/30/2013

Precedential Status: Precedential

Modified Date: 1/12/2023