In re Estate of Shubert v. Novak

• Decision Date: 21 November 2013
• Docket Number: No. 20120276.,20120276.
• Citation: 839 N.W.2d 811,2013 ND 215
• Parties: In the Matter of the ESTATE OF Lowell R. SHUBERT, Deceased In the Matter of the Estate of Anne Shubert, Deceased In the Matter of the Estate of Gust Shubert, Deceased Gary Puhr, Kristen Pfahl, Brad Schubert and Brian Schubert, Appellants v. Ronald Novak, Laverne Mikkelson, John M. Pietsch, Lynn Puhr, Joyce Gilbertson, Bonnie Schlegel, Charlene Wikholm, Louise M. Wadeson, Doris Betcher, David Wikholm, Karen Puhr Lambert, Nathan Smith, and Orvill Shubert, Respondents Charlene Wikholm, Appellee.
• Court: North Dakota Supreme Court

839 N.W.2d 811

2013 ND 215

In the Matter of the ESTATE OF Lowell R. SHUBERT, DeceasedIn the Matter of the Estate of Anne Shubert, DeceasedIn the Matter of the Estate of Gust Shubert, DeceasedGary Puhr, Kristen Pfahl, Brad Schubert and Brian Schubert, Appellants

v. Ronald Novak, Laverne Mikkelson, John M. Pietsch, Lynn Puhr, Joyce Gilbertson, Bonnie Schlegel, Charlene Wikholm, Louise M. Wadeson, Doris Betcher, David Wikholm, Karen Puhr Lambert, Nathan Smith,andOrvill Shubert, RespondentsCharlene Wikholm, Appellee.

No. 20120276.

Supreme Court of North Dakota.

Nov. 21, 2013.

Donavin L. Grenz, Linton, N.D., for appellants.

Samuel G. Larson (argued) and Damian J. Huettl (appeared), Bismarck, N.D., for appellee.

MARING, Justice.

[¶ 1] Gary Puhr, Kristen Pfahl, Brad Schubert, and Brian Schubert (collectively “appellants”) appeal from orders in consolidated probates of the estates of Lowell, Gust, and Anne Shubert approving a land sale by the estates' personal representative, Charlene Wikholm, and denying the appellants' petition to remove Wikholm as the estates' personal representative. We conclude that the appeal from the order approving the land sale is moot and that the order denying the petition to remove Wikholm is appealable and the district court did not abuse its discretion in denying the petition to remove Wikholm as the estates' personal representative. We therefore dismiss the appeal from the order approving the land sale and affirm the order denying the removal of Wikholm as personal representative.

I

[¶ 2] Lowell Shubert died on May 8, 2010. On May 11, 2010, Wikholm, with the assistance of counsel, applied for informal appointment as personal representative of Lowell Shubert's estate, alleging she was entitled to act as personal representative because:

she is the [first] cousin of said decedent and was the daughter of Lowell R. Shubert's sister, Louise M Wadeson who is 84. It is believed that Lowell R. Shubert does not have a Last Will and Testament. He does have sixty head of cattle which must be fed and it appears there [are] a number of assets that must be immediat[e]ly safeg[u]arded. It is believed that there is no relative having a better claim to being the personal representative and there are none closer. [Wikholm's] mother is the one having the first claim to being the personal representative to the deceased there being no[ ] children or wife and no other sister or brother has survived him.

Wikholm's application for appointment as personal representative said Lowell Shubert was 75 years old when he died and listed five surviving heirs: Louise M. Wadeson; Joyce Gilbertson; Orvill Shubert; and Wikholm and her husband. The district court appointed Wikholm as personal representative of Lowell Shubert's estate on May 11, 2010. In October and November 2010, notice to creditors of Lowell Shubert's estate was published in the Minot Daily News. When Lowell Shubert died, he was the personal representative for the unprobated estates of his parents, Gust and Anne Shubert, and ultimately those probate proceedings were consolidated with the probate of his estate.

[¶ 3] The record does not reflect any further proceedings in the informal probate of Lowell Shubert's estate until 2012. On February 19, 2012, Wikholm, as personal representative, executed a written purchase agreement to sell approximately 758 acres of the estates' farmland to Ronald Novak, Laverne Mikkelson, and John Pietsch for $1,411,000. The purchase agreement said the seller “reserves 100 percent of all remaining oil, gas and any other minerals.”

[¶ 4] Gary Puhr claimed he was an heir of Lowell Shubert, and on March 22, 2012, he filed a demand for notice of any order or filing in the probate of Lowell Shubert's estate, a demand for an inventory and appraisal, and an objection to the land sale for less than fair market value. On April 2, 2012, Wikholm, through her current counsel, petitioned the district court for approval of the land sale. In support of her request to approve the land sale, Wikholm provided the court with copies of four written offers from Nathan Smith to counsel for Lowell Shubert's estate to purchase the land: a September 30, 2011, offer for $1,380,000 effective until October 15, 2011; an October 13, 2011, offer for $1,410,000 effective until November 1, 2011; a March 2, 2012, offer for $1,700,000 explicitly authorizing the seller to reserve all minerals, effective until April 1, 2012; and a March 19, 2012, offer for $2,000,000, effective until April 1, 2012.

[¶ 5] Puhr again objected to the land sale, claiming the personal representative's sale without advertising or appraising the land breached her legal and fiduciary duties to Lowell Shubert's heirs. After a hearing, the district court issued a May 21, 2012, order approving the land sale. The court determined Wikholm acted reasonably in entering the purchase agreement, there was no collusion or undue influence, and the purchase price was reasonable. The appellants appealed the May 2012, order approving the land sale.

[¶ 6] Meanwhile, on June 6, 2012, the appellants petitioned the district court to remove Wikholm as personal representative of the estates, claiming she had mismanaged the estates and failed to perform legal and fiduciary duties, she had failed to give information to the decedents' heirs as required by N.D.C.C. § 30.1–18–05, and she had failed to file and serve an inventory and appraisal as required by N.D.C.C. § 30.l–18–06. After a July 17, 2012, hearing, the district court denied the appellants' petition to remove Wikholm as personal representative. The court determined it was not in the best interest of the estates to remove Wikholm, she had not intentionally misrepresented material facts leading to her appointment, she had not disregarded court orders, she had not become incapable of discharging her duties, she had not mismanaged the estate or failed to perform any duty of the job, and there was no cause to remove her. The court explained any irregularities in Wikholm's appointment were due to actions by the court and the urgent circumstances when she was appointed, which did not warrant removal or render her appointment void.

[¶ 7] This Court temporarily remanded the appeal from the order approving the land sale for limited consideration of the appellants' motions under N.D.R.Civ.P. 54(b), 59, and 60. The appellants thereafter moved for relief under N.D.R.Civ.P. 59 and 60 from the orders approving the land sale and denying the petition to remove Wikholm as personal representative. The appellants filed a notice of lis pendens, dated December 28, 2012, against the land. After a February 2013 hearing, the district court denied the appellants' motions for relief from the prior orders under N.D.R.Civ.P. 59 and 60. The court also granted the appellants' request for a N.D.R.Civ.P. 54(b) certification of the order approving the land sale and denied their request for a similar certification of the order denying their petition to remove Wikholm as personal representative.

[¶ 8] The appellants thereafter appealed from the order denying their petition to remove Wikholm as personal representative and from the order denying their motion for relief under N.D.R.Civ.P. 59 and 60.

II

[¶ 9] Wikholm has moved to dismiss the appeals, claiming any issues about the completed land sale are moot because she executed a personal representative's warranty deed conveying the land to Novak, Mikkelson, and Pietsch on August 2, 2012. Wikholm also argues any issues about her removal as personal representative are interlocutory because the court denied the appellants' request for certification of that order under N.D.R.Civ.P. 54(b).

A

[¶ 10] Wikholm argues the appellants did not request a stay of the land sale pending appeal and the land was conveyed to Novak, Mikkelson, and Pietsch by a personal representative's warranty deed on August 2, 2012. She claims the land cannot be returned to the estates and the appeal from the order approving the land sale is moot because this Court cannot grant relief from the completed land sale. She also argues issues about the land sale are not of great public interest involving the authority and power of public officials, or capable of repetition yet evading review under this Court's mootness jurisprudence.

[¶ 11] The appellants claim they have not voluntarily and unequivocally acquiesced in the order approving the land sale because they requested a new trial and filed a lis pendens against the property. They claim there is a great public interest that statutes pertaining to a personal representative's duties be enforced.

[¶ 12] Courts will not issue advisory opinions and will dismiss an appeal as moot if the issues become academic and there is no actual controversy left to be determined. In re E.T., 2000 ND 174, ¶ 5, 617 N.W.2d 470. No actual controversy exists if subsequent events make it impossible for a court to provide effective relief, or if the lapse of time has made the issue moot. In re W.O., 2004 ND 8, ¶ 10, 673 N.W.2d 264. Courts will determine a moot issue rather than dismiss an appeal, however, if the controversy is one of great public interest and involves the authority and power of public officials, or if the matter is capable of repetition, yet evading review. Id. at ¶ 11. In State v. Liberty Nat'l Bank & Trust Co., 427 N.W.2d 307, 309 n. 1 (N.D.1988), this Court said the requirements of “great public interest” and “authority and power of public officials,” or “capable or repetition, yet evading review” are elements of two separate tests for determining mootness:

Whether the matter in controversy is one of great public interest and involves the authority and power of public officials is the test this court has historically employed in resolving mootness issues. See North Dakota Wheat Growers' Ass'n v. Moore, 52 N.D. 904, 204 N.W. 834 Syllabus 2 (1925); State v. Stutsman, 24 N.D. 68, 139 N.W. 83 Syllabus 1 (1912). We...