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COA upholds dismissal of petition to open estate

November 21, 2017

An Indiana trial court properly applied district court precedent to determine that a claim for violation of a deceased man’s constitutional rights cannot be considered an asset in the deceased’s estates, the Indiana Court of Appeals ruled Tuesday.

After Cary Owsley died from a gunshot wound in 2013, his wife, Lisa Owsley was appointed as personal representative of his estate. However, Cheryl Owsley Jackson, Cary’s sister, moved to remove Lisa as personal representative or to appoint a special administrator, while Logan Owsley, Cary’s son, filed a memo in support of petitions. The Marion Superior Court denied Jackson’s motion.

On the same day, Logan Owsley filed a complaint in the U.S. District Court for the Southern District of Indiana against multiple defendants, including Bartholomew County Sheriff Mark Gorbett, various county sheriff’s deputies and coroner Larry Fisher, alleging a “(b)otched (i)nvestigation” into his father’s death. The defendants moved for dismissal on the grounds that Logan lacked standing and had failed to state claims on which relief could be granted.

Meanwhile, the Bartholomew Circuit Court granted a motion Owsley had filed to distribute property, approved a final accounting and determined he would inherit or receive any benefits afforded from the federal litigation. The court then discharged Lisa Owsley as personal representative and closed the estate.

Less than two weeks later, the Marion Superior Court, at Logan Owsley’s request, appointed him as personal representative “for the sole purpose of managing and resolving the federal lawsuit.” He then filed an amended complaint in federal court alleging there was a rush to classify his father’s death as a suicide, contamination and destruction of evidence and a cover-up.

In response, the district court denied as moot the defendants’ motion to dismiss. However, the Marion Superior Court then determined the decision to allow the estate to be reopened to pursue the federal claim was erroneous because “(t)he claim for a violation of decedent’s constitutional rights is not an asset of the estate subject to administration.” The Marion County court relied on the holding in Love v. Bolinger, 927 F. Supp. 1131, 1136 (S.D. Ind. 1996) – which found that the victims of a cover-up are the decedent’s survivors, not the decedent – to reach that decision.

After his motion to correct error was denied, Owsley appealed, claiming the trial court abused its discretion in dismissing the estate. But the Indiana Court of Appeals affirmed that decision Tuesday, with Judge Elaine Brown writing the Marion Superior Court properly applied the Love holding to the instant case.

“Based up 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 dismissingly the matter,” Brown wrote.

The case is In re Unsupervised Estate of Cary A. Owsley Logan A. Owsley v. Mark E. Gorbett, et al., 49A02-1701-EU-207.

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