In The Matter Of The Estate Of Robert W. Cashmore v. Cashmore

• Decision Date: 17 August 2010
• Docket Number: No. 20090315.,20090315.
• Citation: 2010 ND 159,787 N.W.2d 261
• Parties: In the Matter of the ESTATE OF Robert W. CASHMORE, Deceased.Thain M. Cashmore, individually, as Personal Representative of the Estate of Robert W. Cashmore and as Trustee of the Robert Cashmore Trust, Bourck D. Cashmore, individually and as Trustee of the Robert Cashmore Trust, Appellantsv.Trudy L. Cashmore, Tricia L. Cashmore, and Kendra A. Cashmore, Appellees.
• Court: North Dakota Supreme Court

787 N.W.2d 261

2010 ND 159

In the Matter of the ESTATE OF Robert W. CASHMORE, Deceased.

Thain M. Cashmore, individually, as Personal Representative of the Estate of Robert W. Cashmore and as Trustee of the Robert Cashmore Trust, Bourck D. Cashmore, individually and as Trustee of the Robert Cashmore Trust, Appellants

v.Trudy L. Cashmore, Tricia L. Cashmore, and Kendra A. Cashmore, Appellees.

No. 20090315.

Supreme Court of North Dakota.

Aug. 17, 2010.

Clark Jay Bormann (argued), Bismarck, N.D., for appellant, Thain M. Cashmore, as personal representative.

Kent A. Reierson (argued) and Kirsten Marie Sjue (on brief), Williston, N.D., for appellants, Thain M. Cashmore and Bourck D. Cashmore, individually and as trustees.

Carol K. Larson (argued), Minot, N.D., for appellees.

SANDSTROM, Justice.

[¶ 1] Thain and Bourck Cashmore appealed from a district court order denying a motion to approve amended final report and account and proposed distribution in the estate of Robert Cashmore. We affirm, concluding the district court did not abuse its discretion in denying the motion or in allowing additional personal representative's fees and attorney's fees in an amount less than requested.

I

[¶ 2] Robert Cashmore died in 2002. Thain and Bourck Cashmore are adult children from Robert Cashmore's first marriage, which ended in divorce. Trudy Cashmore is Robert's second wife, and Tricia and Kendra Cashmore are Robert and Trudy's children.

[¶ 3] After Robert's death, Thain Cashmore applied for probate of Robert's will and to be appointed personal representative. Extensive litigation involving numerous contested estate issues followed, with Thain and Bourck Cashmore on one side and Trudy, Tricia, and Kendra Cashmore on the other. Most of these contested issues were resolved by the district court in an order dated July 24, 2007.

[¶ 4] Thain Cashmore, as personal representative, filed a motion to approve final report and account and proposed distribution on March 20, 2008. On April 7, 2008, Thain Cashmore filed a final report and account and proposed distributions (“final report”) which listed the assets of the estate and proposed distributions. This final report showed a balance in the estate of $72,598.56. Trudy, Tricia, and Kendra Cashmore objected to certain portions of the final report, and a hearing on the motion to approve the final report was held on August 5, 2008.

[¶ 5] Between October and December 2008 there was extensive correspondence among the district court and the attorneys for the parties regarding the proposed findings of fact, conclusions of law, and order for judgment. All parties were given the opportunity to, and did, present objections and suggestions to the proposed findings, conclusions, and order. The district court's findings of fact, conclusions of law, and order for judgment were filed on January 21, 2009, and judgment was entered on March 2, 2009. The judgment approved the final report with certain enumerated adjustments.

[¶ 6] Notice of entry of judgment was served on April 3, 2009. On April 13, 2009, Thain Cashmore filed a motion to approve amended final report and account and proposed distribution (“amended final report”). This amended final report purportedly showed changes to the final accounting resulting from changes the district court had ordered in the March 2, 2009, judgment, as well as changes in the value of certain items of estate property which had occurred since the filing of the original final report in April 2008. In particular, Thain and Bourck Cashmore contended that five vehicles and certain stock that belonged to the estate were sold after the August 5, 2008, hearing, but before entry of judgment, and brought less than their appraised value as listed in the original final report. The proposed amended final report also sought $2,502.13 in additional personal representative's fees, $9,965.20 in additional attorney's fees, and $8,000 in estimated additional fees to close the estate. The ultimate effect of the proposed amended final report was that, rather than showing a $72,000 balance in the estate, the estate had a zero balance and would not be able to pay Trudy Cashmore the amounts the district court had ordered the estate to pay her in the original judgment.

[¶ 7] Trudy, Tricia, and Kendra Cashmore objected to the amended final report, arguing the prior judgment was final. After a hearing, the district court issued an order denying the motion to approve the amended final report and ordered the estate to pay Trudy Cashmore $6,377.83, as required by the original judgment, within ten days. The court also allowed $1,250 in additional personal representative's fees and $1,500 in additional attorney's fees. Thain and Bourck Cashmore appealed.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 30.1-02-02. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 30.1-02-06.1.

II

[¶ 9] Thain and Bourck Cashmore contend the district court abused its discretion under N.D.C.C. § 30.1-21-01(1) in denying the motion to approve the amended final report. Section 30.1-21-01(1) provides:

A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs and adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and, after receiving satisfactory evidence of payment of any estate tax due, directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.

[¶ 10] Thain and Bourck Cashmore argue that because the statute specifies “the court may enter an order or orders,” the district court may entertain multiple petitions for approval of a final accounting, allowing the parties to seek approval of an “Amended Final Report” after the court has already entered a final judgment approving a prior final report and ordering distribution. Thain and Bourck Cashmore summarized their position in their brief on appeal:

Although N.D.C.C. § 30.1-21-01(1) does not specifically address the issue of approving an amended final accounting, the plain language indicates that more than one order may be appropriate, as required by the circumstances of the case, to approve settlement and distribution of the estate. Here, where the original final accounting was almost a year old by the time judgment was entered upon it, and the ultimate balance of the estate had changed significantly during that time, submission of an amended final accounting for approval by the district court was required by the circumstances, both for the benefit of the district court and all interested parties in the estate.

[¶ 11] The only authority cited in support of this unique argument is In re Estate of Leslie, 886 P.2d 284 (Colo.Ct.App.1994). Thain and Bourck Cashmore note the Colorado court considered a “supplementary order of final settlement and distribution,” which followed an original order of final settlement and distribution entered more than a year earlier. Id. at 285. There was no issue raised in Leslie, however, regarding the appropriateness of entering a second order approving final settlement, and the court did not mention Colorado's version of § 3-1001 of the Uniform Probate Code, upon which N.D.C.C. § 30.1-21-01 is based. Furthermore, the fact situation in Leslie is entirely distinguishable from this case. In Leslie, the original order approving final settlement noted that other related litigation was pending and expressly authorized the personal representative to “hold up” final distribution and “apply to this Court for an additional Order or Orders regarding the payment and burden of additional expense.” Leslie, at 286. The “supplementary order” resolved the issue of these additional expenses. Thus, in Leslie, the original order was not intended by the court or the parties to be final, and further proceedings and orders were expressly envisioned.

[¶ 12] There is no indication in this case that the district court did not intend its March 2, 2009, judgment to be final. Thain Cashmore, as personal representative, moved for an order approving a “Final Report and Account and Proposed Distributions.” Judgment was entered resolving the remaining disputes between the parties and approving distribution of all estate property. Thain and Bourck Cashmore do not point to anything in the record demonstrating they advised the court other issues would be raised or further proceedings were anticipated. The district court entered a final judgment, and Leslie is inapposite.

[¶ 13] Nor do we agree with Thain and Bourck Cashmore's interpretation of N.D.C.C. § 30.1-21-01(1). Although the statute notes the court may issue “an order or orders” resolving the petition, we do not read this language as authorizing attempts to change the distribution ordered in a prior final judgment approving a final accounting and distribution. The relevant statutes clearly envision a final resolution of the estate. For example, N.D.C.C. § 30.1-16-05 directs that, “[u]nless otherwise ordered by the court, supervised administration is...