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In re Estate of Hammar8/17/2005
FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Margaret Lewis (Margaret), appeals the trial court's Order removing her as special administratrix of the Estate of Gary Hammar and appointing Appellee-Plaintiff, Janet Kaye Hammar (Janet), as special administratrix to pursue an action for wrongful death.
We reverse.
ISSUE
Margaret raises one issue on appeal, which we restate as follows: whether the trial court abused its discretion when it replaced Margaret as special administratrix of the estate in favor of Janet.
FACTS AND PROCEDURAL HISTORY
On April 7, 2005, Gary Hammar (Gary) died intestate when the vehicle he was driving on Interstate 70, in Madison County, Ohio, was struck head-on by a tractor-trailer operated by Howard Tyron and A & R Transport, Inc. Gary's spouse, Janet, who was a passenger in the car, was injured and hospitalized in Ohio. At the time of his death, Gary also left behind four children. Margaret is the biological mother of the four children and Gary's former spouse.
On April 11, 2005, Margaret filed her Verified Petition to Appoint a Personal Representative for the Sole Purpose of Collecting Damages for Personal Injuries and Wrongful Death. No estate had yet been opened at the time she filed her petition. That same day, the trial court issued its Order, appointing Margaret as personal administratrix of Gary's estate for the sole purpose of collecting damages for personal injury and wrongful death. Gary's visitation and funeral, arranged by Janet, took place on April 12 and 13, 2005 respectively.
On April 12, 2005, Janet filed her Petition for Issuance of Letters of Administration and for Authorization to Pursue Wrongful Death Claims on Behalf of Estate under a separate cause number. Upon being advised that Margaret had obtained permission to serve as administratrix for the wrongful death claim, Janet immediately objected and moved to stay the proceedings. Recognizing that Margaret's appointment was being contested, the trial court entered a stay the same day and set the matter for a hearing on April 26, 2005.
However, on April 14, 2005, Margaret filed an emergency petition to partially lift the stay in order to prevent irreparable prejudice to the estate and to seek the preservation of evidence in the wrongful death case. In response to the emergency petition, the trial court conducted a hearing that same day. Prior to the hearing, Margaret filed a response opposing her removal as administratrix of the estate or, alternatively, Margaret proposed the Horizon Trust & Investment Management, N.A. as successor personal representative. After hearing arguments, the trial court removed Margaret and instead appointed Janet as personal administratrix for the purpose of pursuing a wrongful death claim. In its Order, the trial court found as follows:
The court now having heard arguments of counsel and having been duly advised the appointment of co-representatives by the court is unacceptable[,] the court now finds:
1. [Margaret] filed her Petition with the court four (4) days after the decedent's death and did not afford the decedent's widow an opportunity to respond.
2. The court finds it erred when it appointed [Margaret] as Personal Representative of the Estate in that [Janet] 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] serve as Personal Representative of the Estate.
4. The stay entered by the court should be lifted in order that all evidence may be preserved for purpose of
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