ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Kenneth J. Allen F. Joseph Jaskowiak
Bryan L. Bradley Kevin G. Kerr
Michael T. Terwilliger Hoeppner Wagner & Evans LLP
Kenneth J. Allen & Associates, P.C. Valparaiso, Indiana
Valparaiso, Indiana
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In the
Indiana Supreme Court
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No. 56S03-0511-CV-587
IN RE ESTATE OF GARY HAMMAR, DECEASED
MARGARET LEWIS, Appellant (Defendant below),
v.
JANET KAYE HAMMAR, Appellee (Plaintiff below).
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Appeal from the Newton Superior Court, No. 56D01-0504-ES-04
The Honorable Daniel J. Molter, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 56A03-0504-CV-177
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May 23, 2006
Dickson, Justice.
The issue presented in this probate case is whether the trial court properly replaced Mar-
garet Lewis, the decedent's former wife, with Janet Hammar, his widow, as the special adminis-
trator on behalf of the estate in a wrongful death action. In her appeal, Margaret, who is also the
mother to the decedent's four children (two seventeen-year-old minors and two adults) argues
that the trial court erred by removing her as special administrator for reasons other than those
enumerated in the Indiana Code. The Court of Appeals agreed, finding that the statutory re-
quirements for removing a special administrator were not met, and it reversed the trial court. In
re Estate of Hammar, 832 N.E.2d 1065, 1071 (Ind. Ct. App. 2005). We granted Janet's petition
for transfer, automatically vacating the Court of Appeals opinion, and we now affirm the trial
court.
On Thursday, April 7, 2005, the decedent, Gary Hammar, was killed in a vehicular acci-
dent, in which Janet Hammar, his wife of eleven years, was also injured, resulting in her hospi-
talization. Upon her release from the hospital, Janet made arrangements for her deceased hus-
band's visitation to take place on Tuesday, April 12, and the funeral on Wednesday, April 13.
On Monday, April 11, she met with the family attorney to arrange the opening of a general ad-
ministration of the decedent's estate. That same day, April 11, the former wife, Margaret, sought
and obtained permission to serve as special administrator for a wrongful death action on behalf
of the decedent. The next day, April 12, when Janet's attorney filed to have Janet appointed as
the general administrator of the estate, he discovered that the court had already appointed Marga-
ret as special administrator. Janet's counsel immediately filed an objection with the court, and
requested that the court stay the proceedings. That same day the court enjoined all parties from
any action related to the wrongful death claim and scheduled a hearing to address Janet's objec-
tion. At the hearing, after the parties declined the court's invitation that they serve as co-
representatives for the wrongful death claim, the court removed Margaret as the special adminis-
trator and appointed Janet in her place, making the following findings of fact:
1. Margaret Lewis filed her Petition with the Court four (4) days after the dece-
dent's death and did not afford the decedent's widow an opportunity to respond.
2. The Court finds it erred when it appointed Margaret Lewis as Personal Repre-
sentative of the Estate in that Janet Kaye Hammar as widow of the decedent is
closer in proximity to the decedent and the Estate.
3. That [it] is in the best interest of the Estate that Janet Kaye Hammar serve as
Personal Representative of the Estate.
Appellant's App'x at 5.
Margaret challenges the trial court order replacing her as special administrator in favor of
Janet, arguing it was error for the court to order her removal without a supporting reason pro-
vided under the removal statute, Indiana Code § 29-1-10-6. Margaret asserts that she was appro-
priately appointed as the special administrator for the purpose of filing a wrongful death suit on
behalf of her ex-husband's estate, having petitioned the court for the appointment at a time when
2
nobody else had authority to act in the same capacity. Margaret contends that once she was ap-
pointed she could only be removed upon grounds enumerated under the removal statute and that
the trial court's failure to make the necessary statutory findings, together with her removal and
replacement with Janet, constitutes reversible error.
Under the particular circumstances presented, however, we view the trial court's action as
a mere reconsideration of its prior ruling, not a removal of a special administrator under the re-
moval statute. On April 12, 2005, one day after the trial court signed the order making Margaret
the administrator, Janet filed an objection to the appointment of Margaret and requested the court
provide a hearing on the matter. Appellant's App'x at 13. After considering Janet's equitable ar-
gument based on the trial court's discretion to review and Margaret's argument that removal is
inappropriate unless done under the removal statute, the trial court decided to appoint Janet as
special administrator, determining, "The Court . . . always has the right to review its order."
Transcript of Hearing at 15.
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. 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. Jo-
seph Superior Court, 246 Ind. 74, 78, 201 N.E.2d 778, 779-80 (1964) ("[A] court may, upon mo-
tion to reconsider or rehear, upon its own motion or the suggestion of a party, vacate, set aside,
amend or modify a ruling entered in the same term of court, since such a matter is in fieri."). 1
While the trial court was not obligated to provide Janet with a hearing on the matter, see Ind.
Trial Rule 53.4(A), the court certainly had discretion to do so if it deemed it appropriate. Given
that the trial court's original order was obtained ex parte without notice to the decedent's widow,
who had just been released from the hospital and was in the process of making funeral arrange-
ments for her husband, it was not improper for the judge to schedule a hearing and to enjoin
Margaret from acting as special administrator one day after her appointment and, after the hear-
ing three days later, to revise his appointment from Margaret to Janet as special administrator.
1
Because the request before the trial court did not pertain to a final judgment or appealable final order,
Indiana Trial Rule 59, applicable to a motion to correct error, was inappropriate for this case and thus we
need not consider any additional procedural requirements under Trial Rule 59. See Ind. Trial Rule 59(C).
3
The trial court did not abuse its discretion in reconsidering its prior decision, and we af-
firm the trial court's order replacing Margaret with Janet as special administrator for the wrongful
death action.
Boehm, and Rucker, JJ., concur. Sullivan, Justice, concurring, agrees with Chief Justice Shepard
that Margaret and her lawyer should be required to reimburse the widow's attorney fees on ap-
peal. Shepard, C.J., concurs with separate opinion.
4
SHEPARD, Chief Justice, concurring.
I join completely in my brother Dickson’s opinion, though he has been very gentle in de-
scribing the actions taken by Margaret’s lawyer.
Put simply, Margaret’s lawyer seized control of Gary Hammar’s estate for purposes of
filing a contingent fee wrongful death case at a moment when the body had barely turned cold.
He contended – and continues to claim - that “no one else was in a position to act.” It seems by
this counsel means the widow was engaged in organizing the funeral.
The widow and her lawyers have now spent more than a year in regaining what the law
places in her hands. I believe we should order that Margaret and her lawyer reimburse the
widow’s attorney fees on appeal.