Latoya Alexander v. Alexandria P Frakine

FILED Feb 20 2025, 8:54 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Latoya Alexander, individually and as Administrator of the Estate of Terrence A. Simmons, Deceased; Lakasha Thornton; and Shanika Harris, Appellants-Plaintiffs

v.

Alexandria P. Frakine, Travis Baringer, and Francis N. Moya, Appellees-Defendants

February 20, 2025 Court of Appeals Case No. 24A-CT-1806 Appeal from the Marion Superior Court The Honorable James A. Joven, Judge Trial Court Cause No. 49D13-2401-CT-520

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Opinion by Judge Vaidik Chief Judge Altice and Judge Scheele concur.

Vaidik, Judge.

Case Summary [1] Indiana Code section 29-1-10-18 provides that when a wrongful act or omission

in Indiana causes the death of a nonresident, a probate court “may” appoint an

administrator for the decedent’s estate for the sole purpose of bringing a

wrongful-death action. Since the statute is permissive, not mandatory, we have

held that if a personal representative has been appointed in another state, that

foreign personal representative can bring a wrongful-death action in Indiana

without being separately appointed here. Blusy v. Rugh, 476 N.E.2d 874 (Ind.

Ct. App. 1985), reh’g denied, trans. denied. The issue presented in this case is

whether a foreign personal representative can file a wrongful-death action here

if an Indiana probate court has already appointed a different administrator for

that purpose under Section 29-1-10-18. We hold the answer is no.

Facts and Procedural History [2] Terrence Simmons (“Decedent”), a resident of Georgia, died in January 2023

after a car accident in Indianapolis. The same month, Decedent’s adult

daughter who lives in Indianapolis, Terika Jackson (“Daughter”), petitioned

the Marion County probate court to appoint her personal representative of his

estate for the sole purpose of bringing a wrongful-death action against other

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drivers involved in the accident. See Cause No. 49D08-2301-EU-1855. Notice

was given to three women who are mothers of minor children fathered by

Decedent—Latoya Alexander and Shanika Harris, who live in Georgia, and

Lakasha Thornton, who lives in Missouri (“Mothers”). 1 Mothers objected to

Daughter’s petition and asked that they be appointed as co-personal

representatives. They noted that, under Indiana’s wrongful-death statute,

Decedent’s minor children (his “dependent children”) would be beneficiaries of

any damages but his nondependent children, including Daughter, would not.

See Ind. Code § 34-23-1-1. The probate court overruled Mothers’ objection and

appointed Daughter the sole personal representative of the wrongful-death

estate, finding that she has an interest in maximizing the proceeds of any suit or

settlement. [3] In the months that followed, one of the mothers, Alexander, opened an estate

case in Georgia, and a Georgia court appointed her as the administrator. Citing

those developments, Mothers asked the Marion County probate court to set

aside its appointment of Daughter. The probate court denied Mothers’ request.

But the next day, Mothers filed this wrongful-death action in Marion Superior

Court, citing Alexander’s appointment by the Georgia court. A week later,

Daughter filed her own wrongful-death action in a different Marion Superior

1 Thornton’s first name is also shown as “Lakisha” or “LaKisha” at various points in the record. We use “Lakasha” to be consistent with the trial-court caption and the appellate caption.

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Court, citing her appointment by the Marion County probate court. See Cause

No. 49D05-2401-CT-1231. [4] With the dueling wrongful-death actions pending, Mothers filed a notice of

appeal of the Marion County probate court’s order confirming Daughter as

personal representative. See No. 24A-EU-304. In her appellee’s brief, Daughter

argued, in part, that the appeal was untimely and should be dismissed because

Mothers had filed their notice of appeal more than thirty days after the probate

court’s order. [5] The same day Daughter filed her appellee’s brief in that appeal, she moved to

substitute herself as the plaintiff in this wrongful-death action filed by Mothers.

She noted that the Marion County probate court had appointed her as personal

representative for purposes of pursuing a wrongful-death action and had

rejected Mothers’ challenges to the appointment. She argued that she “is the

only properly appointed personal representative of the Wrongful Death Estate

of [Decedent], and thus had the sole authority to pursue a civil case on behalf of

the estate.” Appellants’ App. Vol. II p. 9. The trial court stayed the matter

pending the outcome of the appeal in the estate case. [6] A month later, this Court issued an order dismissing that appeal as untimely,

leaving in place the Marion County probate court’s appointment of Daughter.

Daughter immediately renewed her motion in this case to be substituted as the

plaintiff. Rather than substituting Daughter as plaintiff, the trial court dismissed

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the case, since Daughter had already filed her own wrongful-death action as

personal representative. [7] Mothers now appeal. Because Daughter was never made a party to this action

in the trial court, she isn’t formally a party to this appeal, but she has filed an

amicus brief in support of the trial court’s decision.

Discussion and Decision [8] Mothers’ primary argument on appeal is as follows: (1) because Decedent was

domiciled in Georgia at the time of his death, Georgia maintains “original,

exclusive, and general jurisdiction” over his estate; (2) because Georgia has

jurisdiction, Indiana must give “full faith and credit” to the Georgia court’s

order appointing Alexander as personal representative; (3) because Indiana

must give full faith and credit to the Georgia order, the Marion County probate

court “did not have the jurisdiction to appoint an administrator to [Decedent’s]

estate”; and (4) because the Marion County probate court didn’t have

jurisdiction to appoint an administrator, its appointment of Daughter is invalid

and Mothers are proper plaintiffs in the wrongful-death action. Appellants’ Br.

pp. 15-27. This is clearly an attempt by Mothers to revive their untimely appeal

of the Marion County probate court’s orders. In fact, Mothers’ arguments about

jurisdiction and full faith and credit are largely copied and pasted from their

lead argument in the estate appeal. See Appellant’s Br. pp. 16-27, No. 24A-EU-

304 (Mar. 19, 2024). If Mothers disagreed with our dismissal in that appeal,

they should have petitioned for rehearing by this Court or for transfer to our

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Supreme Court. They did neither. The time for appealing the Marion County

probate court’s orders has passed, so we will not consider Mothers’ arguments

on the issue. [9] That said, Mothers also argue that even if the probate court’s appointment of

Daughter isn’t set aside, they should still be allowed to pursue the wrongful-

death action. This is a question of law, so our review is de novo. Bruder v. Seneca

Mortg. Servs., LLC, 188 N.E.3d 469, 471 (Ind. 2022). [10] In Indiana, the only proper plaintiff in a wrongful-death action is the personal

representative of the decedent’s estate. I.C. § 34-23-1-1; Robertson v. Gene B. Glick

Co., 960 N.E.2d 179 (Ind. Ct. App. 2011), trans. denied. Indiana Code section

29-1-10-18 provides that when the decedent was not a resident of Indiana, an

Indiana probate court may appoint a personal representative (“administrator”)

solely to bring a wrongful-death action: “Any court having probate jurisdiction

in the state of Indiana may appoint an administrator for the estate of a

nonresident for the sole purpose of bringing an action to recover damages for

the wrongful death of such nonresident.” The Marion County probate court

cited this statute in rejecting Mothers’ challenges to the appointment of

Daughter. See Appellants’ App. Vol. II p. 28. [11] Even so, Mothers argue that they are proper plaintiffs in a wrongful-death

action because one of them, Alexander, was appointed as administrator of

Decedent’s estate in Georgia. They cite Blusy v. Rugh, 476 N.E.2d 874 (Ind. Ct.

App. 1985), reh’g denied, trans. denied. In Blusy, an Ohio resident died while

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working in Indiana. An Ohio court appointed a “fiduciary” for the decedent’s

estate, and the fiduciary brought a wrongful-death action in Indiana. Id. at 875.

The defendants argued that “a foreign personal representative, i.e. one

appointed in another state, but not in Indiana, lacks the capacity to bring a

wrongful death action” in Indiana. Id. Specifically, they asserted that the

foreign personal representative had to be separately appointed in Indiana under

Section 29-1-10-18 before bringing a wrongful-death action. We held that the

words “may appoint” in Section 29-1-10-18 mean the statute is permissive, not

mandatory, and therefore “a foreign personal representative may bring a

wrongful death action in Indiana within two years of the deceased’s death

without the necessity of appointment as personal representative in Indiana.” Id.

at 877. [12] The only issue presented in Blusy, and the only issue we decided, was whether a

foreign personal representative needs to be separately appointed under Section

29-1-10-18 before filing a wrongful-death action in Indiana. Our answer was no.

This case presents a different issue: whether a foreign personal representative

can file such an action when an Indiana probate court has already appointed a

different personal representative for that exact purpose under Section 29-1-10-

18. Again, our answer is no. A holding to the contrary would invite the sort of

confusion and chaos we saw here, with wrongful-death defendants forced to

respond to duplicative suits and two judges left wondering who’s in charge.

Therefore, if a foreign personal representative wants to prosecute a wrongful-

death action, but, before they file, an Indiana probate court appoints a different

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personal representative under Section 29-1-10-18, the foreign personal

representative’s remedy is to ask the probate court to set aside the appointment

and, if unsuccessful, to appeal. They can’t simply ignore the appointment and

plow ahead with a wrongful-death action. [13] Here, Mothers opposed Daughter’s petition to be appointed personal

representative and later sought to have the appointment set aside. The Marion

County probate court rejected both efforts. Mothers then tried to appeal, but

their notice was late, and we dismissed the appeal. As a result, Daughter’s

appointment as personal representative remains intact, so the trial court

properly dismissed Mothers’ wrongful-death action. Going forward, if Mothers

have evidence that Daughter isn’t diligently, competently, and honestly

prosecuting her wrongful-death action, they can ask the probate court to revisit

her appointment. [14] Affirmed.

Altice, C.J., and Scheele, J., concur.

ATTORNEY FOR APPELLANTS Nathaniel Lee Lee Cossell Feagley, LLP Indianapolis, Indiana

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ATTORNEY FOR AMICUS CURIAE TERIKA JACKSON, PERSONAL REPRESENTATIVE IN THE MATTER OF THE WRONGFUL DEATH ESTATE OF TERRENCE SIMMONS, DECEASED Sarah Graziano Hensley Legal Group, PC Fishers, Indiana

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