Hogen v. Hogen (In re Curtiss A. Hogen Trust B)
| Decision Date | 19 March 2020 |
| Docket Number | No. 20190240,20190240 |
| Citation | 940 N.W.2d 635 |
| Parties | In the MATTER OF CURTISS A. HOGEN TRUST B, created under the Last Will and Testament of Curtiss A. Hogen Steven C. Hogen, Co-Trustee, Petitioner and Appellee v. Rodney Hogen, Co-Trustee, Respondent and Appellant |
| Court | North Dakota Supreme Court |
Stephen R. Hanson II (argued) and Robert G. Hoy (on brief), West Fargo, ND, for petitioner and appellee.
Jonathan T. Garaas, Fargo, ND, for respondent and appellant.
[¶1] Rodney Hogen appeals from an order denying his motion and an order terminating a trust. Rodney Hogen argues on appeal he should have received additional funds from the Trust. Specifically, Rodney Hogen argues the district court’s previous order, and this Court’s opinion affirming the order, permitted only $208,000, and no additional funds, to be taken from his share. Rodney Hogen argues the prior order is binding and the order by the court denying his motion impermissibly changes the meaning of the prior order. Rodney Hogen also argues the court erred in terminating the Trust. We affirm.
[¶2] This Court has previously addressed issues surrounding the Trust, estate, and land connected to this case. See Estate of Hogen , 2019 ND 141, 927 N.W.2d 474, cert. denied , ––– U.S. ––––, 140 S.Ct. 220, 205 L.Ed.2d 135 ; Hogen v. Hogen , 2019 ND 17, 921 N.W.2d 672, cert. denied , ––– U.S. ––––, 140 S.Ct. 119, 205 L.Ed.2d 33 ; Matter of Hogen Trust B , 2018 ND 117, 911 N.W.2d 305 ; Estate of Hogen , 2015 ND 125, 863 N.W.2d 876.
[¶3] Arline and Curtiss Hogen owned land in Barnes and Cass County. Their son, Rodney Hogen, farmed with Curtiss Hogen. When Curtiss Hogen died in 1993 his undivided one-half interest in the land was distributed to the Curtiss Hogen Trust. Curtiss Hogen’s will allowed the Trust to continue the farming operation, appointed his two children, Steven Hogen and Rodney Hogen, as co-trustees of the Trust, and authorized the trustee to make payments to Arline Hogen during her lifetime. After Curtiss Hogen died, Rodney Hogen continued to farm under a rental agreement with the Trust and Arline Hogen.
[¶4] When Arline Hogen died in 2007 all of her property was devised equally to her two sons, Steven Hogen and Rodney Hogen. Steven Hogen was appointed personal representative of her estate and evidence indicated the estate may be entitled to an offset from Rodney Hogen’s share. Litigation led to Estate of Hogen , where this Court affirmed the amount Rodney Hogen owed to the estate and the personal representative fees, attorney fees, costs, and expert witness fees from the estate. 2015 ND 125, 863 N.W.2d 876.
[¶5] After Estate of Hogen , 2015 ND 125, 863 N.W.2d 876, Steven Hogen petitioned the district court for supervised administration of the Trust to compel an accounting and recover an offset against Rodney Hogen’s share of the Trust, void deeds unilaterally made by Rodney Hogen, remove Rodney Hogen as co-trustee, and prevent Rodney Hogen from receiving rent from the Trust land. Matter of Hogen Trust B , 2018 ND 117, ¶ 5, 911 N.W.2d 305. The court granted Steven Hogen partial summary judgment, finding the Trust did not automatically terminate upon Arline Hogen’s death and entered an interim order for supervised administration of the Trust. Id. at ¶¶ 6-7. The court denied the request to suspend Rodney Hogen as co-trustee. Id.
[¶6] After a bench trial, the district court found Rodney Hogen breached fiduciary duties and obligations and owed the Trust. Matter of Hogen Trust B , 2018 ND 117, ¶ 8, 911 N.W.2d 305. The court then permanently suspended Rodney Hogen as co-trustee and ordered Steven Hogen to divide and allocate the Trust property, authorizing him to pay outstanding mortgages, debts, and encumbrances, attorney fees, and to pay equal shares with a portion first offset from Rodney Hogen’s share. Id. The court granted Steven Hogen’s petition for approval of a final trustee’s report and request for trustee’s fees and attorney fees. Id. at ¶ 9. The court "awarded trustee’s fees in the amount of $13,750, attorney’s fees in the total amount of $401,916.50, with $208,000 withheld from Rodney Hogen’s share of Trust assets, and associated litigation fees, costs, and expenses in the amount of $26,325.35." Id. The court also directed Steven Hogen to withhold $10,000 from the Trust property for continuing fees and expenses and payment of ongoing attorney fees and capital gains taxes on the land sale. Id.
[¶7] Rodney Hogen appealed. This Court concluded the district court did not abuse its discretion by approving the trustee’s final report. This Court also affirmed the court’s decision that the Trust had not terminated at Arline Hogen’s death, that Rodney Hogen breached fiduciary duties to the Trust, and the authorization for Steven Hogen to sell the Trust land to offset against Rodney Hogen’s share. Matter of Hogen Trust B , 2018 ND 117, ¶¶ 22, 31, 36, 911 N.W.2d 305. We also affirmed the award of attorney fees to Steven Hogen. Id. at ¶ 39.
[¶8] In June 2019, Steven Hogen, as the trustee, filed a final report of distribution. Rodney Hogen then filed a "motion for surcharge of fiduciary and motion for attorney fees" arguing he should receive $239,960.43 from the Trust, the difference between the preliminary cash allocation of $447,960.43 and $208,000 withheld from his portion of the Trust assets. The district court denied Rodney Hogen’s motion, stating the correct amount had been distributed and "[t]he $208,000 portion was to be withheld from Rodney’s portion, however, the remaining attorney fees were to be equally withheld from remaining Trust property." The court also terminated the Trust. Rodney Hogen appeals the order denying his motion and the order terminating the Trust.
[¶9] Rodney Hogen argues that this Court’s prior decision permitted only $208,000 to be taken from his share. Rodney Hogen argues the district court violated the mandate rule by not following this Court’s prior decision.
Generally, the law of the case is defined as the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. In other words, [t]he law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings, and [a] party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal. The mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the [appellate court’s] mandate into effect according to its terms.... and we retain the authority to decide whether the district court scrupulously and fully carried out our mandate’s terms.
Viscito v. Christianson , 2016 ND 139, ¶ 7, 881 N.W.2d 633.
[¶10] However, the fact a matter has been appealed does not bar all corrections or clarifications. For example, a district court may correct clerical errors even after appeal, if the correction fits under N.D.R.Civ.P. 60(a) and the appellate court has not ruled explicitly or implicitly on the issue that is the subject of the correction. Roth v. Hoffer , 2006 ND 119, ¶ 10, 715 N.W.2d 149. Clarification of a judgment is similar to a correction for clerical error under N.D.R.Civ.P. 60(a), because in both instances the court is addressing ambiguities or an error of omission to clarify a judgment to reflect the court’s intent when the initial judgment was entered. See Roth , at ¶ 9 (). Under N.D.R.Civ.P. 60(a), a clerical mistake that can be corrected is a "blunder in execution" rather than an instance where a court changes its mind. Roth , at ¶ 9. Because we allow courts to correct clerical errors to correct ambiguities following an appeal when we have not ruled on the issue, likewise, we will allow clarification under the facts of this case.
[¶11] The district court’s prior order stated: "Steven C. Hogen is AWARDED attorney’s fees in the total amount of $401,916.50, $208,000 of which is to be withheld from Rodney Hogen’s portion of the Trust assets." The issue on the award of attorney fees in the previous appeal was only whether the court should have denied the request for attorney fees. Matter of Hogen Trust B , 2018 ND 117, ¶ 37, 911 N.W.2d 305. This Court affirmed the attorney fees, stating: "The district court awarded Steven Hogen: ... 2) $401,916.50 from Trust property for attorney’s fees with $208,000 withheld from Rodney Hogen’s portion of Trust assets." Id. at ¶ 38. When affirming the court’s award of attorney fees, this Court did not interpret the meaning of the court’s order. The language in our prior decision merely stated what the court had ordered. The mandate rule requires "the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case." "[W]e retain the authority to decide whether the district court scrupulously and fully carried out our mandate’s terms." In the previous appeal, there was no remand or mandate directing the court to construe its order in any particular way. Therefore, the court interpreting its own order did not violate the mandate rule.
[¶12] Rodney Hogen argues the district court’s prior order is binding and the order denying his motion impermissibly changes the meaning of the prior order. Essentially, he argues the order denying his motion is a modification of the previous order and the previous order permitted only $208,000, and no more, to be taken from him.
[¶13] In Matter of Hogen Trust B , this Court analyzed the...
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