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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 1 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 2 of 9 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.
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 3 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 4 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 5 of 9 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.
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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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 1 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 2 of 9 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.
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 3 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 4 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 5 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 6 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 7 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 8 of 9 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
Court of Appeals of Indiana | Opinion 24A-CT-1806 | February 20, 2025 Page 9 of 9