Pope by Smith v. Pope
| Decision Date | 30 October 1998 |
| Docket Number | No. 89A01-9804-CV-141,89A01-9804-CV-141 |
| Citation | 701 N.E.2d 587 |
| Parties | Michael Lee Brandon POPE, Minor Child, by Next Friend, Hope Denise SMITH, Mother, Appellant-Petitioner, v. Thedda D. POPE, Special Administratrix of the Estate of Parrish Allen Pope, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Parrish Allen Pope died intestate leaving his five-year old son Michael Lee Brandon Pope ("Brandon") as his only heir. Parrish's sister, Thedda D. Pope ("Thedda"), petitioned for letters of special administration for the sole purpose of pursuing a wrongful death action. After the regular judge recused himself, a judge pro tempore granted Thedda's petition and appointed her special administratrix of her brother's estate. Hope Denise Smith ("Hope"), Brandon's mother, petitioned to close the estate or alternatively, to remove Thedda and substitute herself as the special administratrix. The trial court denied Hope's motion, and she now appeals.
We dismiss the appeal as premature and remand.
Hope seeks review of the following dispositive issue: Whether the trial court lacked the authority to appoint Thedda as special administratrix. In her cross-appeal, Thedda asks us to decide whether Hope has the substantive right to appeal from the court's order. 1
On November 1, 1997, thirty-six year old Parrish Allen Pope was severely injured in an automobile collision. He died on November 6, 1997, with no appreciable assets. Parrish had never married, but paternity of Brandon had been established prior to Parrish's death.
On November 10, 1997, Thedda filed her Petition for Issuance of Letters of Special Administration in Wayne Superior Court No. 2, where the Honorable Gregory A. Horn presides. In her petition, Thedda claimed to be an "interested person" entitled to be appointed special administratrix because "she is the surviving sister of the decedent" and because the decedent's mother and other siblings agreed to her appointment. The single reason Thedda sought to open the estate was to pursue a wrongful death claim. Brandon is Parrish's sole dependent. Thedda attached a proposed contingent fee agreement and asked the court for authorization to employ the named counsel under the stated contractual terms.
On the same day, Judge Horn recused himself and appointed the Honorable P. Thomas Snow to serve as judge pro tempore for fifteen minutes "for the sole purpose of ... signing an Order of Issuance of Letters of Special Administration...." 2 Judge Snow granted Thedda's petition during that time. On November 14, 1997, the case was transferred first to the Wayne Circuit Court and then to Wayne Superior Court No. 1, where Judge Snow regularly presides.
Unaware that Thedda had opened Parrish's estate, Hope filed her own petition seeking letters of administration and appointment as special administratrix on November 21, 1997. Upon learning of Thedda's prior appointment, Hope moved to close the estate or, alternatively, to remove Thedda as special administratrix and to appoint herself in that capacity. Hope challenged the court's authority to enter the order and argued Thedda was a stranger to her son and not a suitable person to pursue a claim on his behalf. Following a hearing, the court denied Hope's petition, ruling that Hope had made "no showing" for Thedda's removal.
Hope filed a timely praecipe and thereafter petitioned this court for an order staying the wrongful death litigation pending appeal. Following an emergency hearing on Hope's petition, we denied the stay so that Thedda could pursue the claim but ordered her to postpone settlement negotiations and trial until we issued our opinion. We further ordered Thedda's counsel to inform Hope's counsel of all matters related to the pending suit and to provide counsel with copies of all notices, pleadings, motions, discovery and correspondence.
Indiana's wrongful death statute grants the right to maintain a wrongful death action only to the decedent's personal representative. IND.CODE § 34-1-1-2 (re-codified at IND.CODE § 34-23-1-1); South v. White River Farm Bureau Co-op., 639 N.E.2d 671, 673 (Ind.Ct.App.1994), trans. denied. A special administratrix is a type of personal representative who is appointed for a special purpose with limited powers and duties. She is responsible to the estate only for that portion of its affairs entrusted to her but, as to those duties, she is a fiduciary charged with acting in the best interests of the successors to the estate. 31 AM.JUR.2D Executors and Administrators § 1165, at 556-57 (1989). A special administratrix 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
(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.
* * * * * *
Otherwise, and except as the provisions of this article by terms apply to general personal representatives, and except as ordered by the court, the law and procedure relating to personal representatives in this article shall apply to special administrators. The order appointing a special administrator shall not be appealable.
IND.CODE § 29-1-10-15 (emphasis added).
This statute has been held to authorize a probate court to appoint a special administrator for the sole purpose of pursuing a wrongful death action. See, e.g., Matter of Estate of Sandefur, 685 N.E.2d 719 (Ind.Ct.App.1997); South, 639 N.E.2d at 671. The trial court has "complete discretion" in the appointment of special administrators. Sandefur, 685 N.E.2d at 723.
We first consider the question of whether Hope has the right to appeal the trial court's refusal to remove Thedda as special administratrix. In essence, Thedda argues that, because Hope cannot directly appeal Thedda's appointment, Hope should not be permitted to indirectly appeal that decision. We cannot agree.
This court has previously reviewed a trial court's ruling on a motion to remove a special administrator. Sandefur, 685 N.E.2d at 719. In Sandefur, we compared Indiana Code § 29-1-10-15, which specifically makes an order appointing a special administrator nonappealable, to the removal provision, Indiana Code § 29-1-10-6, 3 which does not expressly prohibit the appeal of orders removing a personal representative. Id. at 722. We then reasoned:
[B]y specifically providing a procedure for the removal of administrators, the legislature limited the discretion of the trial court. By imposing such limitations, it follows that the legislature intended that the trial court's discretion in the removal of personal representative[s] would be reviewable for abuse of that discretion.
Id. Thus, we held that the order removing a special administrator may be appealed "by the aggrieved party." Id.
Thedda distinguishes Sandefur on the ground that the trial court in that case had removed the administrator while, here, the trial court declined to remove the special administratrix and, thus, upheld its original appointment. According to Thedda, only a special administratrix who has been removed is "aggrieved" and has the right to an appeal.
Significantly, the Sandefur opinion was not limited to those instances where the trial court decides to remove the special administrator. Further, the statute itself provides that, unless rendered inapplicable, the law and procedures which govern personal representatives also govern special administrators. IND.CODE § 29-1-10-15; Sandefur, 685 N.E.2d at 722. A party has the right to appeal an order denying its petition to remove a personal representative. See, e.g., Hauck v. Second Nat'l Bank of Richmond, 153 Ind.App. 245, 286 N.E.2d 852 (1972); von der Lieth v. Young, 139 Ind.App. 525, 212 N.E.2d 404 (1965).
The court that appointed the special administratrix has the statutory power to remove her for cause. DEBRA A. FALENDER, 1 HENRY'S INDIANA PROBATE LAW AND PRACTICE § 1301, at 523 (8th ed.1989) (citing I ND.CODE § 29-1-10-6). While the initial appointment of a special administratrix is not subject to appeal, a special administratrix remains under the authority of the probate court. Thus, the court's decision to remove or not to remove a special administratrix is appealable. The statutory provision rendering an order appointing a special administrator nonappealable is a limited exception to the following general rule enacted by the legislature:
Any person considering himself aggrieved by any decision of a court having probate jurisdiction in proceedings under this article may prosecute an appeal to the court having jurisdiction of such appeal. Such appeal shall be taken as appeals are taken in civil causes. Executors, administrators, guardians and fiduciaries may have a stay of proceedings without bond.
IND.CODE § 29-1-1-22 (emphasis added). Hope has the right to appeal the court's denial of her petition to remove Thedda as special administratrix. We now turn to the merits of Hope's appeal.
Hope first contends that the trial judge had no authority to rule on Thedda's petition seeking letters of administration. We must agree.
The record demonstrates that Thedda filed her petition on November 10, 1997, in Wayne Superior Court No. 2. Judge Horn, who is...
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