First Trust Co. of North Dakota v. Conway

• Decision Date: 23 February 1984
• Docket Number: No. 10499,10499
• Citation: 345 N.W.2d 838
• Parties: FIRST TRUST COMPANY OF NORTH DAKOTA, Petitioner and Appellee, v. Eileen CONWAY, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 838

345 N.W.2d 838

FIRST TRUST COMPANY OF NORTH DAKOTA, Petitioner and Appellee, v. Eileen CONWAY, Respondent and Appellant.

Civ. No. 10499.

Supreme Court of North Dakota.

Feb. 23, 1984.

J. Philip Johnson, of Pancratz, Yuill, Wold, Johnson & Feder, Fargo, for petitioner and appellee.

C. Nicholas Vogel, of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for respondent and appellant.

VANDE WALLE, Justice.

Eileen Conway, one of the principal beneficiaries of her parents' estates, appealed from three orders issued by the Nelson County court, which approved the petition of First Trust Company, the successor personal representative, for payment of services rendered by two attorneys and an accounting firm. We affirm.

This court has previously discussed the events engendering litigation between Eileen Conway and Lorraine Parker, sisters and principal beneficiaries of the estates of Guy and Selma Kjorvestad. See Conway v. Parker, 250 N.W.2d 266 (N.D.1977) ["Kjorvestad I"]; Matter of Estates of Kjorvestad, 287 N.W.2d 465 (N.D.1980) ["Kjorvestad II"]; Matter of Estates of Kjorvestad, 304 N.W.2d 83 (N.D.1981) ["Kjorvestad III"].

In Kjorvestad I Conway appealed from an order of the district court, which determined adversely to her three issues. The district court ordered her as joint personal representative to execute a power of attorney to Edward W. Brady, Ltd. ("Brady firm"), in order to resolve pending cases before the Internal Revenue Service; it determined that her sister, Lorraine Parker, was entitled to reimbursement from the estates for attorney fees paid to Garry Pearson, even though Parker hired Pearson without her consent; and it permitted both sisters to receive $35,000 as partial distribution The present case constitutes Conway's fourth appeal to this court. She appealed from three orders ¹ of the Nelson County court which approved direct payment from the estates for the following claims: a $28,550.33 claim submitted by Garry Pearson for legal services, a $6,829.73 claim submitted by Gordon Caldis for legal services, and a $7,890 claim submitted by the Brady firm for accounting services. On appeal Conway raises three issues. She contends that the county court improperly granted the petition of First Trust Company of North Dakota, the successor personal representative, for payment of the claims directly from the estates because a previous district court order stated that Conway and Parker, not First Trust, could petition the court for reimbursement of attorney fees and expenses incurred when they acted as corepresentatives of the estates. In the alternative, Conway contends that even if the county court could grant the petition of First Trust, the county court's findings of fact fail to meet the requirements of Rule 52(a), N.D.R.Civ.P. Finally, Conway contends that the findings of fact are clearly erroneous. Appellee First Trust moved this court to dismiss Conway's appeal because the interests of justice require an end to litigation or because the orders are nonappealable.

of the estates. In recognizing that disagreements between corepresentatives must not preclude efficient administration of probate proceedings, this court affirmed the district court's decision. In Kjorvestad II Conway appealed from the district court's judgment, which granted Pearson's petition for payment of attorney fees. We affirmed the district court's decision and held that Pearson's services were for the benefit of the estates, as previously resolved in Kjorvestad I; that the services were for the common benefit of the estates; and that Pearson's fees were reasonable. We stated that Conway's intransigence had frustrated amicable settlement of the estates. In Kjorvestad III Conway appealed from the district court's judgment which removed both Conway and Parker as corepresentatives. Initially, Conway had petitioned the probate court to remove Parker as a personal representative. After Parker cross-petitioned the court to remove Conway and agreed to resign if Conway were removed, the probate court decided to remove the sisters as corepresentatives. This court dismissed the appeal because of Conway's failure to comply with the North Dakota Rules of Appellate Procedure. We stated that the appeal was substantially without merit and that any further delay in settling the estates would dissipate the funds of the estates.

MOTION TO DISMISS

First Trust cites as authority for its first ground--that the interests of justice require dismissal--this court's acceptance in Kjorvestad III of Justice Story's statement in Ocean Ins. Co. v. Fields, 18 Fed.Cas. 532, 539 (C.C.D.Mass.1841) (No. 10406): "[I]t is for the public interest and policy to make an end to litigation, ... [so that] suits may not be immortal, while men are mortal." 304 N.W.2d at 87. In addition, First Trust argues that the appellate process should not be used to the detriment and prejudice of the estates.

Even though nearly a decade after the deaths of the Kjorvestads the estates have not yet been settled, we recognize that the Legislature, and not this court, controls the right to appeal. City of Riverside v. Smuda, 339 N.W.2d 768 (N.D.1983); State v. Jefferson Park Books, Inc., 314 N.W.2d 73 (N.D.1981); Sheets v. Letnes, Marshall & Fiedler, Ltd., 311 N.W.2d 175 (N.D.1981). The right to appeal is statutory. The party attempting to appeal must show that the right to appeal comes within the provisions of a specific statute. State v. Peterson, 334 N.W.2d 483 (N.D.1983). The right to appeal, however, is an important right, and statutes conferring the right of appeal must be liberally construed to maintain that right. State v. Howe, 247 Section 28-27-02, N.D.C.C., specifies which orders are appealable to this court. If an order comes within the meaning of Section 28-27-02, the order is appealable to this court even if it might be argued that the interests of justice clearly support the contention that this court should dismiss the appeal. See Section 30.1-02-06.1 [U.P.C. 1-308], N.D.C.C. First Trust argues that the orders do not come within the meaning of Section 28-27-02. Conway contends that the orders are appealable under subsections 1 and 5 of Section 28-27-02. Subsection 1 allows an appeal when an order in any action affects a substantial right, and the order in effect determines the action and precludes a judgment from which a party may appeal; subsection 5 allows an appeal when an order involves the merits of an action or some part thereof.

N.W.2d 647 (N.D.1976). In Liebelt v. Saby, 279 N.W.2d 881, 884 (N.D.1979), we stated that "[i]t has been the general rule of this court to decide each case on its merits and not to dismiss an appeal on a technical ground or, in the alternative, to remand it for further proceedings to the district court or even to the probate court."

Rule 54(b), N.D.R.Civ.P., provides, in part:

"(b) 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."

Rule 54(b) pertains to finality and does not supersede statutes which control appellate jurisdiction. Gauer v. Klemetson, 333 N.W.2d 436 (N.D.1983); Sheets v. Letnes, Marshall & Fiedler, Ltd., 311 N.W.2d 175 (N.D.1981). Rule 54(b) is designed to deter piecemeal disposal of litigation and to avoid possible injustice caused by unnecessary delay in adjudicating a separate claim. See Striegel v. Dakota Hills, Inc., 343 N.W.2d 785 (N.D.1984); Hennebry v. Hoy, 343 N.W.2d 87 (N.D.1983); Melland Firestone, Inc. v. Streich, 226 N.W.2d 141 (N.D.1975); Rule 54(b), F.R.Civ.P., explanatory note. Although thoughtless bifurcation of actions results in unnecessary appeals, we recognize that there are circumstances where the ends of justice require bifurcation of actions by Rule 54(b) order or certification. City of Minot v. Central Ave. News, Inc., 325 N.W.2d 243 (N.D.1982).

In the present case the county court did not explicitly mention Rule 54(b); yet, when it rendered its decision from the bench, it recognized that there was no just reason for delay and that the orders were subject to appeal. The court decided to issue separate orders to each creditor for two significant reasons. The creditors could be paid even though the court decided to leave pending Conway's petition for expenses. The court recommended that Parker, who had not yet sought reimbursement for expenses, inform First Trust of her expenses. The court stated that if First Trust did not challenge the reasonableness of either Parker's or Conway's expenses, it would accept First Trust's decision and save time by not requiring another hearing. It stated that if a hearing on the expenses was necessary, it promised to decide the matter within a month. The court also explained that it was issuing separate orders to facilitate the process of appeal. The court stated, "We will make these separate orders and should you decide to exercise your right to appeal, that will be your decision."

The county court fully informed the parties that the orders were appealable and emphasized that there was no reason for delay. Although a county court should explicitly refer to Rule 54(b) in directing entry of judgment, we believe that our determination that the county court issued a Rule 54(b) order is consistent with the rationale of Rule 54(b) and the Uniform Probate Code. Section 30.1-01-02(2)(c) [U.P.C. 1-102] provides that one of the purposes of the Uniform Probate Code is to

"promote a speedy and efficient system for liquidating the estate of the decedent ..." We recognize that in some probate cases litigation may extend for almost a

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