Estate of Fox , 911 N.W.2d 746 ( 2018 )

#28430-dismiss-GAS
2018 S.D. 35
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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ESTATE OF STANTON W. FOX, Deceased.
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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBERT L. SPEARS
Judge
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JASON KW KRAUSE
MATTHEW J. ABEL of
The Krause Law Firm, P.C.
Sioux Falls, South Dakota Attorneys for appellant Lynelle
Herstedt.
JAMES C. ROBY
NANCY L. OVIATT of
Green Roby Oviatt LLP
Watertown, South Dakota Attorneys for appellee Kelly
Fox.
THOMAS F. BURNS
Watertown, South Dakota Attorney for appellee Steven
Fox.
RORY KING of
Bantz, Gosch & Cremer, LLC
Aberdeen, South Dakota Attorneys for appellee Melanie
Morrow.
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CONSIDERED ON BRIEFS
ON JANUARY 8, 2018
OPINION FILED 04/25/18
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SEVERSON, Justice
[¶1.] After Stanton W. Fox passed away, his long-time girlfriend Lynelle
Herstedt filed an application for informal probate and for appointment as personal
representative. The day after the clerk of courts issued the letters of appointment
and statement admitting the will to informal probate, the circuit court entered an
order revoking them. Lynelle appeals. Because the circuit court’s order is not a
final order from which an appeal can be taken, we dismiss Lynelle’s appeal.
Background
[¶2.] Stanton passed away on September 15, 2017. Prior to his death and
for over twenty years, Stanton had been in a relationship with Lynelle. The two
never married but had been engaged to be married for over three years prior to
Stanton’s death. Stanton had no children at the time of his death.
[¶3.] On October 11, 2017, Lynelle filed an “Application for Informal Probate
and Appointment of Personal Representative In Testacy” with the Codington
County Clerk of Court’s Office. She included a supporting affidavit stating that
Stanton died with a will dated January 7, 2016, and that the will nominated her as
personal representative. Lynelle attached a copy (not the original) of the January
2016 will with the application and requested that she be appointed personal
representative of Stanton’s estate.
[¶4.] Based on Lynelle’s application and affidavit, the Codington County
Clerk entered a “Clerk’s Statement of Informal Probate and Appointment of
Personal Representative” on October 11, 2017. On October 12, 2017, Stanton’s
brother Kelly Fox learned of Lynelle’s appointment as personal representative. On
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the same day and through his counsel, Kelly petitioned the circuit court to revoke
Lynelle’s letters of personal representative and the clerk’s statement. Kelly alleged
that Lynelle’s appointment was invalid because the original will was not included
with the application and was not in the possession of the court as required by
SDCL 29A-3-301(a)(2). Kelly’s counsel included an affidavit and a proposed order
revoking the letters of personal representative and clerk’s statement.
[¶5.] After reviewing the petition, the circuit court entered an order—on
October 12, 2017—titled: “Order Revoking Letters of Personal Representative and
Clerk’s Statement of Informal Probate and Appointment of Personal
Representative.” The order revoked the letters appointing Lynelle as personal
representative and directed that upon her receipt of notice of the order, Lynelle
“shall cease all action as Personal Representative.” Neither Lynelle nor her counsel
had been advised of Kelly’s petition prior to the court’s order. On October 12, 2017,
Lynelle’s counsel was served electronically with the circuit court’s order and the
affidavit of Kelly’s counsel.
[¶6.] After learning that the letters had been revoked, counsel for Lynelle
sent an email to the circuit court and counsel for Kelly requesting that the circuit
court reinstate the letters appointing her personal representative and reinstate the
clerk’s statement. The court responded in an email, stating, “I will not proceed any
further on any issues on this matter until the hearing wherein all sides will be
heard on all issues. In the meantime, the letters of personal representative issued
yesterday remain revoked.”
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[¶7.] On October 12, 2017, Kelly learned that an attorney from Watertown,
South Dakota, had provided legal services to Stanton and that the attorney had
located Stanton’s original handwritten revocation of wills dated May 18, 2016. On
October 13, 2017, Kelly filed a “Petition for Adjudication of Intestacy,
Determination of Heirs, and Appointment of Personal Representative.” On October
17, 2017, Stanton’s brother Steven Fox filed a petition similar to Kelly’s, seeking to
be appointed as personal representative. After Lynelle filed this appeal, Stanton’s
sister, Melanie, filed a petition in circuit court similar to the petitions filed by Kelly
and Steven. The circuit court did not hold further proceedings as it related to
Stanton’s estate or to the appointment of a personal representative because of this
appeal.
[¶8.] On appeal, Lynelle states one issue for our review: Whether the circuit
court erred when it revoked the letters of appointment and the clerk’s statement of
informal probate and appointment of personal representative without giving
Lynelle notice or an opportunity to be heard as required by SDCL 29A-3-611 and
SDCL 29A-3-307(b).
Analysis
[¶9.] We first address whether appellate jurisdiction exists from the circuit
court’s order. According to Kelly, the circuit court’s order was not a judgment or
order from which an appeal may be taken. In particular, Kelly claims that Lynelle
may still petition for formal appointment as personal representative of Stanton’s
estate, at which time Lynelle would have an opportunity to be heard on the issue.
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[¶10.] SDCL 15-26A-3 identifies the judgments and orders from which
appeals may be taken. Lynelle’s notice of appeal asserted that this Court has
appellate jurisdiction under SDCL 15-26A-3(2) because, in her view, the circuit
court entered a final order affecting her substantial rights, which in effect
determined the action and prevented a judgment from which an appeal may be
taken. In In re Estate of Geier, we examined what constitutes a final order in a
probate proceeding. 2012 S.D. 2, ¶¶ 10-14, 809 N.W.2d 355, 357-59. We recognized
that under our previous case law, a final order is one that finally disposes of the
entire proceeding. Id. ¶ 10 (quoting In re Estate of Lingscheit, 387 N.W.2d 738, 740
(S.D. 1986)). We, however, determined that “[t]he relevant provisions of the UPC
[(Uniform Probate Code)] suggest a more expansive determination of the finality of
probate orders than articulated in Lingscheit.” Id. We found the analysis from
other courts persuasive. In particular, we quoted the Colorado Supreme Court for
the proposition that an order in a probate proceeding “is final if it ends the
particular action in which it is entered and leaves nothing further for the court
pronouncing it to do in order to completely determine the rights of the parties as to
that proceeding.” Id. ¶ 13 (quoting Scott v. Scott, 136 P.3d 892, 896 (Colo. 2006)).
[¶11.] Here, the particular action in which the circuit court’s order was
entered relates to the appointment of a personal representative for Stanton’s estate
and to the probate of Stanton’s will. The action began on October 6, 2017, when
Lynelle filed an application with the clerk of courts for appointment as personal
representative and for informal probate of Stanton’s January 2016 will. On October
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11, 2017, the clerk of courts issued Lynelle letters of appointment and admitted
Stanton’s will to informal probate.
[¶12.] We recognize that the clerk’s informal appointment fully established
Lynelle’s “status of personal representative and the powers and duties pertaining to
the office[.]” See SDCL 29A-3-307(b). We further note that the clerk’s statement
admitting Stanton’s will to informal probate was “conclusive as to all persons until
superseded by an order in a formal testacy proceeding.” SDCL 29A-3-302.
However, due to the matter being stayed pending this appeal, the circuit court has
not yet held a hearing to determine whether the October 11, 2017 Clerk’s Statement
of Informal Probate and Appointment of Personal Representative is void because
Lynelle failed to state, as required by SDCL 29A-3-301(a)(2)(i), that the original of
the decedent’s will is in the possession of the circuit court or accompanies the
application.
[¶13.] Therefore, even assuming that the circuit court was without authority
to enter its order, the court has yet to finally determine the rights of the parties as
it relates to the probate of Stanton’s will and as it relates to the appointment of a
personal representative. Indeed, after the circuit court entered the order, it
informed the parties that it did not intend to take further action “on any issues on
this matter until the hearing wherein all sides will be heard on all issues.”
(Emphasis added.) Moreover, two days after the clerk issued letters of appointment
and admitted Stanton’s January 2016 will to informal probate, Kelly and his
siblings petitioned the circuit court to determine testacy and to appoint a personal
representative. In particular, Kelly’s petition requested that the circuit court fix a
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time and place for a hearing and that the court enter an order formally declaring
that Stanton died intestate. Kelly served notice of his petition upon Lynelle.
[¶14.] We recently recognized that South Dakota probate law “contemplates
the use of a mixture of formal and informal probate proceedings.” In re Estate of
Ricard, 2014 S.D. 54, ¶ 12, 851 N.W.2d 753, 757. Therefore, “what may have
started as an informal proceeding can transform into a formal process by filing a
petition, giving notice, and having a hearing before a judge.” Id. ¶ 12 n.1. Here,
regardless of the circuit court’s October 12, 2017 order, Kelly’s petition for formal
probate commenced a formal testacy proceeding, which may involve a contested
case on the validity of a will. See SDCL 29A-3-401 (requirements for commencing a
formal testacy proceeding); SDCL 29A-3-407 (describing burdens in a contested
case). Moreover, SDCL 29A-3-401(d) provides that “a previously appointed personal
representative, after receipt of notice of the commencement of a formal testacy
proceeding, shall refrain from exercising the power to make any further distribution
of the estate during the pendency of the formal proceeding.” Petitions for formal
testacy may also request an order restraining a previously appointed personal
representative “from exercising any of the powers of office and requesting the
appointment of a special administrator.” Id.
[¶15.] At this juncture, and in light of the fact Kelly and his siblings
instituted formal testacy proceedings, we conclude that the circuit court has yet to
determine whether Stanton left a valid will (as Lynelle attested) or whether (as
Kelly attested) Stanton died intestate. Likewise, the court has yet to determine the
appointment of a personal representative, including whether Lynelle should be
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appointed. Therefore, under the circumstances, the circuit court’s order revoking
the letters of appointment and clerk’s statement did not end “the particular action
in which it [was] entered and leave[] nothing further for the court pronouncing it to
do in order to completely determine the rights of the parties as to that proceeding.”
Estate of Geier, 2012 S.D. 2, ¶ 13, 809 N.W.2d at 358 (quoting Scott, 136 P.3d at
896).
[¶16.] Until further proceedings determine the rights of the parties as it
relates to the appointment of a personal representative and to the probate of
Stanton’s will, this Court does not have appellate jurisdiction under
SDCL 15-26A-3(2).
[¶17.] Dismissed.
[¶18.] GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,
Justices, concur.
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