Justices hear dad’s appeal of removal from son’s estate

November 20, 2018

The Indiana Supreme Court heard argument Tuesday contending the appointment of a deceased man’s father as the special administrator of his wrongful-death estate should not have been reconsidered, despite counter-arguments that he was not the best fit for the appointment.

Justices heard In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr. v. Shana Toliver and Kathy Calloway, 18S-EU-00507. In that case, Orlando Lewis Jr., and his wife were killed in an auto accident in July 2017. His father, Orlando Lewis Sr., was appointed as the administrator of Jr.’s estate to pursue wrongful death claims on behalf of the deceased’s minor children.

Extended family members Kathy Calloway and Shana Toliver — who separately serve as guardians to Lewis Jr.’s dependent children — intervened. The women argued that because they were the children’s legal or court-appointed guardians, they should be co-special administrators, and the Johnson Superior Court ultimately granted their motions and removed Orlando Lewis Sr. The Indiana Court of Appeals then affirmed that ruling in July, noting the trial court merely reconsidered his appointment.

Daniel Zlatic, counsel for Lewis Sr., argued to the Supreme Court that the decision conflicted with prior authority stating that where the original appointment of a special administrator was valid, subsequent removal must follow the provisions of the removal statute.

Specifically, Zlatic argued that precedent from In re Estate of Hammar, 847 N.E.2d 960, 962 (Ind. 2006), conflicted with the appellate decision; the same caselaw the COA relied upon in its determination.

“… The facts in Hammar are distinguishable from those in the present case to show that while the matter of the appointment of the special administrator in Hammar was in fieri, the facts in this case do not support such a finding in this case.”

However Chief Justice Loretta Rush stated she wasn’t seeing the difference between the cases, and asked Zlatic when the court would lose its authority to reconsider.

“The moment when the relevant action had been decided,” he answered. “In this case it was decided by the trial court.”

Justice Steven David then posed the question of whether Zlatic’s position was that because Lewis Sr. was first to the courthouse, he was the ultimate winner of the appointment.

“That’s not the basis of our argument,” Zlatic said. “The trial court found he was qualified in his order and that undoubtedly Lewis Sr. had the kids’ interests at heart.”

But counsel for Calloway and Toliver argued that the high court reaffirm the trial court’s use of Hammar, arguing the case illustrates the ability of trial courts to reconsider in case information is withheld from the decision making.

“Other times the trial court may not know about other claimants. Without the ability to reconsider, they may not have the best administrator,” Edward McGlone argued, as Calloway’s counsel.

McGlone further contended the first person to arrive at the courthouse should not be the key consideration of who is best-suited to be charged with administering an estate.

“We should look at who is the best special (administrator) to the case,” he said.








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