Estate of Stuckle, Matter of

• Decision Date: 28 June 1988
• Docket Number: No. 870375,870375
• Parties: In the Matter of the ESTATE OF Daniel STUCKLE, Deceased. Marion STUCKLE, Petitioner and Appellant, v. Douglas J. STUCKLE, individually and as Personal Representative of the Daniel Stuckle Estate, Bonnie McPherson and LuEtta Bleibaum, Respondents and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 96

427 N.W.2d 96

In the Matter of the ESTATE OF Daniel STUCKLE, Deceased.

Marion STUCKLE, Petitioner and Appellant, v. Douglas J. STUCKLE, individually and as Personal

Representative of the Daniel Stuckle Estate,

Bonnie McPherson and LuEtta Bleibaum,

Respondents and Appellees.

Civ. No. 870375.

Supreme Court of North Dakota.

June 28, 1988.

Joseph F. Larson II (argued), Jamestown, for petitioner and appellant.

Gilje, Greenwood & Dalsted, Jamestown, for respondents and appellees; argued by Charles J. Gilje.

GIERKE, Justice.

Marion Stuckle appeals from county court judgments denying several of her claims in probate against the estate of her husband, Daniel Stuckle. We dismiss the appeal.

The requirements of Rule 54(b), N.D.R.Civ.P., are fully applicable in probate proceedings. Matter of Estate of Erickson, 368 N.W.2d 525, 528 (N.D.1985). In Matter of Estate of Sorensen, 406 N.W.2d 365 (N.D.1987), we said:

"Under North Dakota Century Code Sec. 30.1-02-06.1 [U.P.C. 1-308], the right to appellate review of probate orders is governed by the rules applicable to appeals to the Supreme Court in equity cases from the district court. Section 28-27-02, NDCC, specifies which orders are appealable to this Court. Once jurisdiction is established under Sec. 28-27-02, NDCC, Rule 54(b)'s separate requirements must also be met, if applicable. Gillan v. Saffell, 395 N.W.2d 148, 149 (N.D.1986). Parties in probate cases bear the duty of requesting a Rule 54(b) order or certification if they seek an appeal. First Trust Co. of North Dakota v. Conway, 345 N.W.2d 838, 842 (N.D.1984)."

The parties have acknowledged that Daniel's estate has not been closed and that Marion has additional claims against the estate which remain pending before the county court. There is nothing in the record certified to this court which can be construed as a Rule 54(b), N.D.R.Civ.P., certification. Compare First Trust Co. of North Dakota v. Conway, supra, 345 N.W.2d at 841-842.

Accordingly, the appeal is dismissed.

ERICKSTAD, C.J., and VANDE WALLE and LEVINE, JJ., concur.

MESCHKE, Justice, concurring.

I concur. I write separately to evaluate for myself the functions of Rule 54(b) and final decisions in appeals, particularly of probate proceedings. Perhaps my review will aid others.

Daniel Stuckle died on July 4, 1984, devising his estate to his widow, Marion, and three children by a prior marriage. His son, Douglas, was named personal representative of his estate.

Daniel had sold the east half of section 3 to Douglas in 1979 and willed a "life estate in the balance due in that certain contract for deed" to Marion. In July 1986, Marion sued Douglas in district court for principal and interest overdue on that contract.

In October 1986, Marion petitioned for a family allowance from the estate and to compel settlement of the estate. In March 1987, Douglas petitioned the county court to construe the will, to approve his accounting, and to settle and distribute the estate. Marion then petitioned to remove Douglas as personal representative for cause and to disallow certain of his expenses. In his return to Marion's last petitions, Douglas filed another accounting.

After an April 1987 hearing, the county court made a series of rulings:

(1) Payments of both principal and interest on the contract for deed on the east half of section 3, which were delinquent at the time of Daniel's death, belonged to the estate;

(2) Installments of principal due on that contract after Daniel's death "shall be placed in trust" for Marion, while interest installments, as well as "interest and profits" from the trust, belonged to Marion;

(3) Marion's testamentary life estate in the north half of section 9 was subject to Daniel's right under the will "to purchase from my estate all or any part of the farm land which I may own at the time of my death for an amount equal to 80% of the appreciated value thereof on reasonable terms," so that, if Daniel purchased, the proceeds would also be placed in trust for income to Marion;

(4) Marion "did not show a need for family allowance," and was awarded only $10 per month for 12 months;

(5) Marion's motion for a stay of "determination of the amount owed under the contract for deed," pending her prior district court action, was denied, but the county court did not determine the amount due, nor did it order settlement or distribution of the estate; and

(6) Daniel was removed as personal representative.

Marion has appealed from each of these rulings except the removal of Daniel as personal representative. Marion also complains about the failures of the county court to set aside her exempt property entitlement under NDCC 30.1-07-01 and to decide whether she or the estate was entitled to crop share rental from the north half of section 9 during administration of the estate.

NDRCivP 54(b) says:

"Judgment Upon Multiple Claims or Involving Multiple Parties. If more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or if multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of that determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties does not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

When our civil rules were adapted from the Federal Rules of Civil Procedure in 1957, Rule 54(b) was imported to our practice, largely in its present form, applicable to both multiple claims and multiple parties. ¹ So designed, Rule 54(b) gives a trial court considerable power to decide what is a final order in each case and what is an order that the trial court may later revise in the course of that case. Rule 54(b) reflected the long-standing federal jurisprudence generally requiring a final judgment or order for an appeal. ² Thus, unheralded and unnoticed for nearly a decade, ³ Rule 54(b) annexed most of the federal doctrine of "final decisions" ⁴ to our haphazard scheme of "reviewable orders." ⁵

The federal doctrine, generally allowing appeal of only a "final decision," has been statutorily fixed for many years. 28 U.S.C. Sec. 1291; 9 Moore's Federal Practice p 110.06 (1987). North Dakota has not usually had a comparable statutory imprint. Our appeals statute, NDCC 28-27-02, derived from the "Field Code of Procedure," has long spoken only in terms of appealable orders, without expressly referring to final judgments. ⁶ Today, only subsection 2 of seven categories of appealable orders expressly calls for a "final order." ⁷ Subsection 1 implies something final, when it authorizes review of an order which "in effect determines the action...." But, at best, North Dakota's statutory tradition about limiting appeals to final decisions has been weak.

Nevertheless, North Dakota has had some tradition against piecemeal appeals. Thus, for example, our first supreme court recognized "... a mere interlocutory order [ ] is not appealable, ..." Persons v. Simons, 1 N.D. 243, 245, 46 N.W. 969, 970 (1890).

This loose custom was capricious and vacillating. Appeals were allowed from some kinds of intermediate orders, such as one denying leave to amend an answer, Hermes v. Markham, 78 N.D. 268, 49 N.W.2d 238 (1951), or striking an affirmative defense, La Duke v. E.W. Wylie Co., 77 N.D. 592, 44 N.W.2d 204 (1950); but not from others, such as one allowing an amended complaint, Holobuck v. Schaffner, 30 N.D. 344, 152 N.W. 660 (1915), or denying a motion to strike a complaint (but reviewing the sufficiency of the complaint, anyway), Torgerson v. Minneapolis, St. P. & S.S.M. Ry. Co., 51 N.D. 745, 200 N.W. 1013 (1924). Appeals were allowed from some kinds of intermediate procedural orders, such as one granting or denying a change of venue, Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082 (1904); but not from others, such as one denying consolidation of two actions, Swiggum v. Valley Inv. Co., 73 N.D. 422, 15 N.W.2d 862 (1944). These examples illustrate that the concept of finality for a civil appeal was not confirmed in North Dakota before the advent of Rule 54(b). Nevertheless, there were occasional flashes of insight before that about the importance of finality to bring about appellate review. ⁸ The final decision doctrine seems to have really been vitalized in North Dakota by Rule 54(b) and its correlation with the strong federal tradition. ⁹ This was rational. The same reasons of effectiveness and efficiency of judicial determination support the policy in this state as elsewhere. ¹⁰ Unfortunately, our application of the finality doctrine has been disordered and erratic, even after the complementary function of Rule 54(b) was recognized. See, as illustrations of varying results, Arneson v. City of Fargo, 303 N.W.2d 515 (N.D.1981) (Justice Pederson, concurring); Sheets v. Letnes, Marshall and Fiedler, 311 N.W.2d 175 (N.D.1981); and Union State Bank v. Woell, 357 N.W.2d 234 (N.D.1984). In recent years, we have struggled to shape a coherent and sensible approach to the subject. Compare Keller v. Gama, 378 N.W.2d 867 (N.D.1985) and Geo-Mobile, Inc. v. Dean Bender Chevrolet, Inc., 386 N.W.2d 918 (N.D.1986), where we decided appeals from intermediate orders, with Gillan v. Saffell, 395 N.W.2d 148 (N.D.1986) and Gast Construction Company, Inc. v. Brighton Partnership, 422 N.W.2d 389 (N.D.1988), where we declined appeals, without Rule 54(b) action, when there were unadjudicated claims remaining to be resolved in the...