In re Lentz

Decision Date11 December 2020
Docket NumberNo. 118,307,118,307
Citation476 P.3d 1151
Parties In the MATTER OF the ESTATE OF Lanny LENTZ.
CourtKansas Supreme Court

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, argued the cause and was on the briefs for appellant Diann Wyatt.

Aaron R. Bailey, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, argued the cause, and Alan V. Johnson, of the same firm, was with him on the briefs for appellees Lana Kennedy and Marilyn Lentz.

The opinion of the court was delivered by Wall, J.:

This case requires the court to decide whether Appellant's posttrial motions should be construed as motions to alter or amend judgment under K.S.A. 2019 Supp. 60-259(f) or instead as motions for relief from judgment under K.S.A. 2019 Supp. 60-260(b). The classification is potentially outcome determinative. Construed under K.S.A. 2019 Supp. 60-259(f), the motions tolled the deadline for filing notice of appeal, rendering the appeal timely. Alternatively, construed under K.S.A. 2019 Supp. 60-260(b), the motions did not toll the notice of appeal deadline, depriving the appellate court of jurisdiction.

The matter arises from the district court's distribution of Lanny Lentz' estate among his three daughters: Lana, Marilyn, and Diann. The probate process was contentious. Lana was the first executor and a final settlement was nearly reached during her tenure. But she resigned amid allegations of impropriety. Marilyn then took over as executor. Diann filed a motion seeking damages from Lana but later withdrew it. Marilyn eventually proposed another final settlement, which the district court judge approved with slight modification.

After the district judge entered a journal entry approving the final settlement, Diann filed a "Petition to Set Aside and/or Reconsider" the final settlement wherein she argued she should be allowed to reinstate her claim for damages. Simultaneously, Diann filed an "Objection to Discharge of Executrix ... and Petition to Disgorge Fees for Administration Paid to the Fiduciary" objecting to the court's discharge of Marilyn as the executrix. The district judge denied the motions. Diann appealed, arguing the property values for four properties in the final settlement were not supported by substantial competent evidence.

The Court of Appeals held that it lacked jurisdiction over Diann's appeal because her posttrial motions did not toll the time for her to appeal. The Court of Appeals also wrote that even if it had jurisdiction over Diann's appeal, Diann would nevertheless lose because she did not object to the final settlement valuations. We hold that the Court of Appeals did in fact have jurisdiction over Diann's appeal, and we remand to the Court of Appeals for consideration of the substantial competent evidence issue.

FACTS AND PROCEDURAL BACKGROUND

Lentz amassed numerous Topeka rental properties during his lifetime. He passed away in 2012. His will directed that his estate be divided equally between his three daughters. A district court judge admitted Lentz' will to probate and appointed Lana as executor.

In September 2015, Lana petitioned for final settlement of Lentz' estate and filed an inventory and valuation of the estate's assets. Diann opposed the proposed settlement, alleging Lana had mismanaged the estate. A district judge rejected the settlement in November 2015. In December 2015, Diann petitioned for Lana's removal as executor and sought damages from Lana. After this, Lana resigned as executor and the district judge appointed Marilyn in her stead. In May 2016, Diann withdrew her petition for damages.

In December 2016, Marilyn petitioned for a new final settlement. The proposed settlement gave Marilyn and Lana the family burial plots, five homes, and several vacant lots as tenants in common. Marilyn valued this share at $102,000. The proposed settlement gave Diann two homes that Marilyn valued at a combined $34,000.

Diann objected to the proposed final settlement. The district judge held a hearing on the proposal. Marilyn testified that she was qualified to provide Certified Market Analyses (CMAs) of the estate's properties and explained how she had valued each property. Diann argued that all the properties should be sold at auction and the proceeds divided. The district judge's minutes from this hearing state that the proposed settlement "should be granted with modification."

On December 30, 2016, the district judge issued a journal entry approving a final settlement and amended final accounting. The final settlement adopted the same allocation of real property as the proposed settlement, but the values assigned to some of the properties differed from those values Marilyn provided in her accounting as well as her testimony from the hearing on the proposed final settlement.

On January 27, 2017, Diann filed two motions. The first was a "Petition to Set Aside and/or Reconsider Order of Final Settlement and Reinstitute Claim for Damages Against Former Executrix Lana Kennedy." In this, Diann moved "for her cause of action, in part pursuant to K.S.A. 60-260(b)(1) and (2)." Diann detailed Lana's removal as executor and her own claim for damages against Lana that she subsequently withdrew. Diann wrote that she

"mistakenly believed that she did not have a valid claim [for damages] based upon the representations of her counsel, felt unduly pressured to withdraw her claim and now requests that it be reinstituted. She requests that the Order of Final Settlement be set aside to the extent to allow her to proceed with her damage claims against Lana Kennedy and her opposition to the discharge of Marilyn Lentz."

The second filing was an "Objection to Discharge of Executrix, Marilyn Lentz, and Petition to Disgorge Fees for Administration Paid to the Fiduciary." In it, Diann alleged she withdrew her claim for damages "under the incomplete and erroneous advice and pressure by her counsel." She argued that Marilyn

"should not be discharged for it was her duty to prosecute the damages claim against the former fiduciary. She should have not sought or accepted being appointed successor fiduciary where it was evident that she, despite specific Court findings to the contrary, did not believe that the original fiduciary committed any malfeasance. That further bias and conflict of interest is apparent in the granting of real properties at final settlement which were requested, disbursed and ordered to be held in joint tenancy between Marilyn and Lana."

Diann requested that Marilyn's $12,000 executor fee be disgorged back to the estate.

The district judge held a hearing on these new filings on April 27, 2017. With respect to the motion to set aside the final settlement, Diann's counsel referred to the motion as a "petition to set aside and/or reconsider the order of final settlement related to the prior claim for damages against the former Executrix." Diann testified that she was represented by varying attorneys throughout the pendency of the estate. She said that her third attorney told her there was "no merit to the claim [for damages Diann filed against Lana], that there wouldn't be any damage relief." The attorney also counseled that "there was nothing left to get and this would be the time to go ahead and drop the claims for the damages and try to resolve any relationship that was left between the sisters" and that if Diann dropped the damages claim, Marilyn and Lana would be more inclined to settle. As a result, in May 2016, Diann withdrew her petition for damages.

Diann also said her attorneys did not advise her that she could pursue a "personal judgment against [Lana] for breach of fiduciary duties." Diann requested that the district judge "allow [her] to set aside that portion of the order for final settlement dealing with this dismissal of [her] claims and allow [her] to re-institute those and proceed forward on those against [her] sister at this time."

The district judge rejected the motion. He said that Diann's decision to withdraw her petition for damages was a voluntary choice she made following discussion with her attorney. He found that there was no merit to Diann's attempt to set aside the final settlement.

With respect to the objection to the discharge of Marilyn as executor, Diann's counsel argued that Marilyn should have to disgorge her executor's fee because Marilyn had a duty to pursue claims against Lana for mismanagement and self-dealing, but failed to do so. As a result, Diann argued, Marilyn "basically provided no service to the estate." The district judge rejected this argument, finding that Diann could have raised these same arguments in a timely manner at the hearing on the final settlement in December 2016, but failed to do so. The district judge held: "[T]here's no further litigation, if you will, about what should be in the final settlement. That's already been determined."

On June 5, 2017, the district judge filed a journal entry memorializing his denial of Diann's posttrial motions. On June 21, 2017, the district judge filed a journal entry of final discharge for the estate. On July 5, 2017, Diann filed a notice of appeal. Therein, Diann appealed from "the Order of Final Settlement, filed on December 30, 2016, and Order denying said heir's Petitions for Reconsideration and Objection to Discharge of Executrix, filed on June 5, 2017."

Before the Court of Appeals, Diann argued that the property values used in the final settlement were not supported by substantial competent evidence. Lana and Marilyn argued that the Court of Appeals lacked jurisdiction over Diann's appeal because Diann's petition for reconsideration was filed only pursuant to K.S.A. 60-260(b)(1) and (2), which does not toll the time to file an appeal, and only addressed her petition for damages against Lana, not the values used in the final settlement. In her reply brief, Diann argued that her motion to set aside the final settlement was filed only "in part pursuant to K.S.A. 60-260(b)(1) an...

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    ...Kansas Constitution does not include the power to give advisory opinions." 285 Kan. at 898; see In re Estate of Lentz, 312 Kan. 490, 505, 476 P.3d 1151 (2020) (Luckert, C.J., concurring) (discussing error in deciding hypothetical jurisdiction rationales and jurisprudential and constitutiona......
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    ...within the boundaries of the doctrine of stare decisis, it is at least adjacent to it. Cf. In re Estate of Lentz , 312 Kan. 490, 506, 476 P.3d 1151 (2020) (Luckert, C.J., concurring) ("The concept that a court consider jurisdiction as an antecedent to a merits determination has a practical ......
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    ...that outcome, the panel refrained from addressing the merits of Grandmother's appeal. See In re Estate of Lentz , 312 Kan. 490, 504, 476 P.3d 1151 (2020) (a court that dismisses for lack of jurisdiction should not opine on the merits).Grandmother then petitioned our court for review. We gra......
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