Brown, Judge.
Logan A. Owsley appeals the Marion Superior Court's dismissal of his verified petition to open estate and the denial of his motion to correct error. Logan raises one issue which we revise and restate as whether the trial court abused its discretion in dismissing the estate proceeding. We affirm.
On April 7, 2013, Cary Owsley died from a gunshot wound. In June 2014, the Bartholomew Circuit Court appointed Lisa Owsley as personal representative of the estate of Cary Owsley (the "Estate") under cause number 03C01-1406-ES-2796 ("Cause No. 2796"). In March 2015, Cheryl Owsley Jackson filed a verified petition under Cause No. 2796 to remove Lisa as personal representative or to appoint a special administrator. In April 2015, an attorney filed an appearance on behalf of Logan, Cary's son, and a memo in support of petitions.
On April 7, 2015, Logan filed a complaint in the United States District Court for the Southern District of Indiana under cause number 1:15-cv-00552-RLY-MJD (the "federal lawsuit") against Mark Gorbett, in his individual and official capacities as Sheriff of Bartholomew County; Ernest DeWayne Janes, Sr., Dean Johnson, Christie Nunemaker, Brent Worman, William Kinman, Jr., and Christopher Roberts in their individual and official capacities as Bartholomew County Sheriff's Deputies; and Larry Fisher, in his individual and official capacities as Bartholomew County Coroner. Logan alleged a "[b]otched [i]nvestigation" and a cover-up and brought the following claims: Count I, obstruction of justice; Count II, conspiracy to obstruct justice based on invidious discrimination; Count III, failure to intervene; Count IV, access to courts, right to seek remedy; Count V, intentional infliction of emotional distress; and Count VI, negligent infliction of emotional distress. Id. at 116.
On July 10, 2015, the defendants in the federal lawsuit filed a motion to dismiss Logan's complaint and asserted that Logan lacked standing to bring any causes
Meanwhile, in May 2015, Logan filed petitions to require a final accounting, to remove the personal representative, to distribute abandoned property, and for appointment of a special administrator in Cause No. 2796. On February 16, 2016, the Bartholomew Circuit Court entered an order granting Logan's petition to distribute property and denying the petitions filed by Logan to remove the executor and appoint a special administrator. The court approved the final accounting as testified to at a prior hearing. The court's order also states:
Id. at 131.
On February 29, 2016, Logan filed a Verified Petition to Open Estate for Limited Purpose and for Unsupervised Administration under cause number 49D08-1602-EU-7407 ("Cause No. 7407") in the Marion Superior Court. Logan requested to be appointed as the personal representative of the Estate for the sole purpose of managing and resolving the federal lawsuit.
That same day, the Marion Superior Court entered an order in Cause No. 7407 stating that the property at issue for the Estate in this matter belongs solely to Logan. The court stated that it had jurisdiction over this matter because the Estate property which remained for administration was the federal lawsuit located in Indianapolis. It appointed Logan as the personal representative of the Estate and authorized him to administer the Estate without court supervision.
On March 15, 2016, the United States District Court for the Southern District of Indiana entered an Order on Motion for Leave to File Amended Complaint which states in part: "unless and until the Order of the Marion County Superior Court is overturned by the state court, this Court must view it as a valid Order. Therefore, for the purposes of this Motion, Plaintiff is the Personal Representative of the Estate." Id. at 181. That same day, Logan, in his individual capacity and as administrator of the Estate, filed an amended complaint in the federal lawsuit alleging that there was a rush to classify the death as a suicide, contamination and destruction of evidence, and a cover-up. The amended complaint alleged: Count I, obstruction of justice; Count II, conspiracy to obstruct based on invidious discrimination; Count III, failure to intervene; Count IV, access to courts, right to seek remedy; Count V, conspiracy; Count VI, intentional infliction of emotional distress; and Count VII, negligent infliction of emotional distress. On March 21, 2016, the Southern District court denied as moot the federal defendants' motion to dismiss because their motion was directed at a pleading that was "no longer operative." Appellant's Appendix Volume IV at 11.
In April 2016, Gorbett, Johnson, Kinman, Roberts, and Worman filed a Petition to Intervene and Motion to Vacate Order and Dismiss the Estate Proceeding in Cause No. 7407. They argued that Logan's request for appointment was without legal
On November 1, 2016, the Marion Superior Court entered an order in Cause No. 7407 concluding that the decedent has no constitutional rights to adjudicate and therefore the letters of administration by the court were improperly issued and dismissing the matter. Specifically, the order states:
Id. at 19-20.
Logan filed a motion to correct error under Cause No. 7407, which was deemed denied.
The issue is whether the trial court abused its discretion in dismissing the estate. Logan argues that the reasoning of Love v. Bolinger, 927 F.Supp. 1131 (S.D. Ind. 1996), which was cited by the trial court, is not instructive because the alleged conspiracy to cover up his father's death violated his right to bring a wrongful death claim. He argues that civil rights claims for conspiracy and denial of access to courts brought pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 are the property of a decedent's estate and must be brought in federal court by the estate, rather than by a relative individually. Logan requests that we should reverse the trial court and reinstate him as personal representative of his father's estate for the sole purpose of pursuing the federal civil rights action in the federal lawsuit.
The Appellees argue that the order dismissing the estate proceeding should be affirmed because there was no estate property to be administered in Marion County. They assert that, to the extent the trial court's February 16, 2016 order assigned to Logan "[w]hatever interest the Estate of Cary A. Owsley has in the federal lawsuit," this was a legal nullity because the decedent's estate never had any interest in Logan's federal lawsuit to assign. Appellees' Brief at 22. They argue that Logan's petition was an improper collateral attack on the Bartholomew Circuit Court's orders including orders denying requests to replace Lisa as personal representative and requests for appointment of a special administrator to pursue Logan's federal lawsuit. They also contend that the order dismissing the estate proceeding should be affirmed because Bartholomew County is the only county in which an estate for decedent could be opened and cite Ind. Code § 29-1-7-1.
We need not reach the question of whether Gorbett, Johnson, Kinman, Roberts, and Worman, properly identify themselves as appellees because, even assuming that they are not appellees or parties to this appeal, we cannot say that reversal of the dismissal is warranted.
"A court of probate jurisdiction has great latitude and wide discretion in matters concerning the appointments and the removal of administrators ..., and this court will not attempt to control or interfere with the Probate Court's action therein, except in a case where it is clear that its discretion has been abused." Hauck v. Second Nat. Bank of Richmond, 153 Ind.App. 245, 267, 286 N.E.2d 852, 865 (1972) (citing Helm v. Odle, 129 Ind.App. 478, 480, 157 N.E.2d 584, 585 (1959)), reh'g denied. A trial court's control and discretion to change its own rulings is firmly established in common law, and we will review a trial court's reconsideration of its prior rulings for abuse of discretion. In re Estate of Hammar, 847 N.E.2d 960, 962 (Ind. 2006) (citing Pond v. Pond, 700 N.E.2d 1130, 1135 (Ind. 1998) ("A trial court may reconsider an order or ruling if the action remains in fieri, or pending resolution."); State ex rel. Rans v. St. Joseph Superior Court, 246 Ind. 74, 78, 201 N.E.2d 778, 779-780 (1964) ("[A] court may, upon motion to reconsider or rehear, upon its own motion or the suggestion of a
The Marion Superior Court's November 1, 2016 order in Cause No. 7407 states that the claim for a violation of the decedent's constitutional rights was not an asset of the Estate subject to administration and cites Love v. Bolinger, 927 F.Supp. 1131, 1136 (S.D. Ind. 1996). In Love, Joseph Love's estate, his parents, and his brother brought a lawsuit alleging various federal and state constitutional causes of action against a number of state, county, and city defendants, arising out of Joseph's arrest, the criminal proceedings against him, his death, and an alleged cover-up of the circumstances of his death. 927 F.Supp. at 1133. Defendants Karl Manders, the Coroner of Marion County, and Bob Ward, the Chief Deputy Coroner, filed a motion to dismiss. Id. at 1133-1134. In addressing the plaintiff's claim under 42 U.S.C. § 1983, the court held that "[a]fter death, one is no longer a person within our constitutional and statutory framework, and has no rights of which he may be deprived." Id. at 1136 (quoting Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979)). The court held that "[t]he alleged cover-up by Manders and Ward took place after Joseph Love was killed, and thus could not have violated any of Joseph Love's constitutional rights." Id. (citing Whitehurst, 592 F.2d at 840; Guyton v. Phillips, 606 F.2d 248 (9th Cir. 1979) ("the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985, does not provide a cause of action on behalf of a deceased based upon alleged violation of the deceased's civil rights which occurred after his death")). The court clarified: "We do not hold that cover-up of a wrongful death is without civil or criminal effect; rather, we hold that `the victims of a cover-up are the decedent's survivors, not the decedent himself.'" Id. (quoting Gibson, 910 F.2d at 1523 (citing Bell v. City of Milwaukee, 746 F.2d 1205, 1264 (7th Cir. 1984)). The court held that "to the extent that plaintiffs allege that, by covering up the circumstances of Joseph Love's death, Manders and Ward violated Joseph Love's Constitutional rights, the Motion to Dismiss is granted." Id.
While Logan argues that Love is distinguishable from this case because the plaintiffs in Love did not allege that they were prevented from filing a wrongful death suit under state law and he did allege such a claim in his amended complaint, he does not point to a claim in his amended complaint based upon an alleged violation of Cary's rights which occurred prior to his death. His amended complaint in the federal lawsuit alleged that there was a rush to classify the death as a suicide, contamination and destruction of evidence, and a cover-up, all of which were alleged to have occurred after Cary's death. Based upon 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 dismissing the matter.
For the foregoing reasons, we affirm the trial court's order.
Affirmed.
Najam, J., and Kirsch, J., concur.
