In re Estate of Scott, No. 03CA0631.

• Decision Date: 22 August 2005
• Docket Number: No. 03CA0631.
• Parties: In the Matter of the ESTATE OF William C. SCOTT, Deceased. Samuel C. Scott, Appellant, v. Mark A. Scott, Appellee.
• Court: Colorado Supreme Court

119 P.3d 511

In the Matter of the ESTATE OF William C. SCOTT, Deceased.

Samuel C. Scott, Appellant, v. Mark A. Scott, Appellee.

No. 03CA0631.

Colorado Court of Appeals, Division II.

December 16, 2004.

Rehearing Denied February 24, 2005.

Certiorari Granted August 22, 2005.

Hamil/Hecht, LLC, J. Lawrence Hamil, Fred Furst, Denver, Colorado, for Appellant.

Sims & Boster, C. Garold Sims, Frank W. Suyat, Denver, Colorado, for Appellee.

Opinion by Judge CARPARELLI.

In this probate proceeding, Samuel C. Scott (proponent), appeals the probate court's order granting partial summary judgment in favor of Mark A. Scott (objector) and denying partial summary judgment to proponent, determining that William C. Scott (decedent), proponent's father and objector's grandfather, lacked the legal capacity to exercise a power of appointment. We reverse and remand for further proceedings.

I.

Objector contends that proponent's appeal is untimely and that, as a result, this court lacks jurisdiction. We disagree.

A.

In 1997, in a second codicil to his will, decedent purported to exercise a power of appointment regarding the assets of a trust. Decedent died in 2000. Upon decedent's death, objector petitioned the probate court to probate decedent's will and the first codicil and to exclude the second codicil. Proponent filed a petition in the same action seeking probate of the second codicil and seeking appointment as the personal representative.

Objector filed a motion for partial summary judgment, contending that the exercise of the power of appointment in the second codicil was ineffective. Proponent then filed a motion for partial summary judgment arguing that there was no evidence upon which to invalidate the second codicil. On November 18, 2002, the probate court denied proponent's motion and granted objector's motion, finding, based on a letter from decedent's personal physician, that decedent lacked legal capacity to exercise the power of appointment. Four days later, the court issued an amended notice of trial, stating that designation of the personal representative remained to be decided.

In December 2002, proponent asked the court to certify, as final for appeal, the partial summary judgment regarding the validity of decedent's attempt to exercise the power of appointment.

In an order dated February 11, 2003, the court denied that motion, referring to the fact that the balance of the trust estate had been frozen so that there could be no withdrawals for any purpose without order of the court and concluding, therefore, that there was substantial justification to defer appeal until all issues were resolved. However, in the same order, the court also resolved the only other issue then pending between the parties by denying proponent's request that he be appointed personal representative of the estate. Proponent filed a notice of appeal on March 28, 2003, seeking review of both the November 18, 2002 and February 11, 2003 orders. Arguing that the appeal was either premature or untimely as to the November order, objector moved to dismiss the appeal. After proponent responded, the motions division of this court deferred determination of that issue to the division deciding the case. Accordingly, we first determine whether the notice of appeal was timely filed. We conclude that it was timely.

B.

Pursuant to §§ 13-4-102, 15-10-308, C.R.S.2004, and C.A.R. 1(a), final judgments of the probate court are reviewable on appeal. To perfect an appeal, a notice of appeal generally must be filed within forty-five days from the date a final judgment is entered. See C.A.R. 4(a). The timeliness of this appeal as to the November 18, 2002 order depends on whether that order was a final judgment when entered.

1.

Unlike most lawsuits, the probate process may continue after the court has resolved the claims of one or more claimants and may include additional hearings when other claimants submit new and unrelated claims to be resolved. Thus, probate proceedings do not necessarily involve the same parties throughout, and unrelated claims may be resolved in separate hearings. See In re Estate of Cook, 245 So.2d 694 (Fla.Dist.Ct.App.1971). Despite this, both the legislature and the supreme court have directed that C.R.C.P. 54 be applied to such proceedings.

The Colorado Rules of Civil Procedure, including the rules related to appellate review, govern proceedings under the Colorado Probate Code "[u]nless specifically provided to the contrary in [the Code] or unless inconsistent with its provisions." Section 15-10-304, C.R.S.2004; accord C.R.C.P. 1.

An appeal to this court may generally only be taken from a final judgment of the trial court. C.A.R. 1(a). The supreme court has consistently held that a final judgment is one that ends the particular action and leaves nothing more for the trial court to do to completely determine the rights of the parties. E.O. v. People in Interest of C.O.A., 854 P.2d 797 (Colo.1993); Mission Viejo Co. v. Willows Water Dist., 818 P.2d 254 (Colo.1991); Kempter v. Hurd, 713 P.2d 1274 (Colo.1986); Moore & Co. v. Williams, 672 P.2d 999 (Colo.1983); Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo.1982); Stillings v. Davis, 158 Colo. 308, 406 P.2d 337 (1965); see In re Estate of Dodge, 685 P.2d 260 (Colo.App.1984).

C.R.C.P. 54(b) provides an exception whereby a trial court may direct the entry of final judgment as to fewer than all a party's claims, but may do so only upon an express determination that there is no just reason for delay. The purpose of this rule is to avoid dissipation of judicial resources through piecemeal appeals. Harding Glass Co. v. Jones, supra. In the absence of a determination by the trial court that there is no just reason for delay, an order that adjudicates fewer than all the claims in an action does not terminate the action as to any of the claims, and the order is subject to revision at any time before the entry of judgment adjudicating all the claims. C.R.C.P. 54(b).

Nowhere does the Probate Code state that these rules are to be interpreted differently or not applied in probate cases.

In In re Estate of Binford v. Gibson, 839 P.2d 508 (Colo.App.1992), a division of this court stated that a probate order is final when it "disposes of and is conclusive of the controverted claim for which that part of the proceeding was brought." In re Estate of Binford v. Gibson, supra, 839 P.2d at 510. Although the division cited Estate of Dodge as support for this premise, there is no language in Estate of Dodge that supports the existence of such a test in Colorado. Instead, the test appears to come from a decision of the Texas Court of Appeals, which uses virtually identical language. See Estate of Wright, 676 S.W.2d 161, 163 (Tex.App.1984)("A probate order or judgment is final if it finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought.")(citing, among other Texas cases, Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210 (1960)).

We conclude that we are bound by § 15-10-304, C.R.C.P. 1 and 54(b), C.A.R. 1(a), and the decisions of our supreme court, and that the "test of finality" referenced in Binford is not derived from any of these sources. Consequently, absent an amendment to the Probate Code, the rules of procedure, or a decision of the supreme court, the application of such a rule by this court creates policy and procedure that is contrary to the applicable statute and rules and, as a result, sets a trap for litigants and trial courts.

Indeed, neither Estate of Binford nor the Colorado and Texas cases upon which it relies reached conclusions that were plainly contrary to C.R.C.P. 54(b). See, e.g., In re Estate of Binford v. Gibson, supra (order to refund excessive compensation to conservatorship was an appealable final judgment when no other claims were pending regarding appellant's entitlements from and obligations to the conservatorship and only administration of the conservatorship remained); In re Estate of Dodge, supra (denial of co-conservator's motion regarding homestead exemption was an appealable final judgment when no other claims were pending before the probate court and all that remained was administration of the estate); see also Estate of Wright, supra (summary judgment regarding petitions of heirship was an appealable final judgment when no other claims were then pending, notwithstanding district court's subsequent invalid reconsideration and setting aside of the judgment).

Thus, we conclude that, in accordance with Colorado statute and rules, the same rules of finality apply here as in other civil cases.

In accordance with C.R.C.P. 54(b), when there are no active contested claims against an estate, administration of the estate need not be completed before a probate court's judgment regarding all pending claims and parties is final for appellate purposes. C.A.R. 1(a); C.R.C.P. 54(b).

2.

Here, proponent's petition sought admission of decedent's second codicil into probate and appointment as personal representative of the estate. The probate court resolved proponent's first claim when it granted objector's motion for partial summary judgment in November 2002. When the court entered that order, proponent's petition for appointment as the personal representative was still before the court and awaiting resolution. The court did not resolve that petition until February 2003. Moreover, the court explicitly denied proponent's motion for C.R.C.P. 54(b) certification of its grant of partial summary judgment, stating there was "substantial justification . . . to defer appeal until all issues are resolved."

Because proponent simultaneously raised two issues with the probate court and the court's November 2002 order adjudicated fewer than all proponent's pending claims in the proceedings, it did not constitute a final judgment. Moreover, proponent complied with Colorado law and rules when he sought...