Scott v. Scott

• Decision Date: 05 June 2006
• Docket Number: No. 05SC199.,05SC199.
• Citation: 136 P.3d 892
• Parties: Mark A. SCOTT, Petitioner v. Samuel C. SCOTT, Respondent.
• Court: Colorado Supreme Court

Page 892

136 P.3d 892

Mark A. SCOTT, Petitioner v. Samuel C. SCOTT, Respondent.

No. 05SC199.

Supreme Court of Colorado, En Banc.

June 5, 2006.

Rehearing Denied June 26, 2006.

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

Hamil/Hecht LLC, J. Lawrence Hamil, Fred Furst, Michelle W. Stern, Denver, Colorado, Attorneys for Respondent.

Justice RICE delivered the Opinion of the Court.

We granted certiorari to determine whether a party may appeal an order of the probate court prior to resolution of all issues between the parties. Upon review, we hold that when the probate court has entered orders fully determining the rights of the parties with respect to all claims raised in a proceeding, a final judgment exists. If a party wishes to appeal an order of the probate court before the probate court has resolved every claim in the proceeding, a party may seek C.R.C.P. 54(b) certification. Pursuant to C.R.C.P. 54(b), a probate court may enter a final judgment as to fewer than all of the claims presented in a probate action if there is no just reason for delay.

I. Factual and Procedural Background

This probate matter involves a dispute between Petitioner Mark Scott and Respondent Samuel Scott regarding the estate of William Scott. In 1991 William Scott executed a will and a revocable trust agreement. In 1994 William Scott executed a first codicil to his will. Three years later, he executed a second codicil, which purported to exercise a testamentary power of appointment granting Respondent the majority of the estate assets and trust res. William Scott died in 2000.

On April 19, 2000, Petitioner filed the "Petition for Formal Probate of Will and Formal Appointment of Personal Representative."¹ In particular, Petitioner sought: 1) formal probate of William Scott's will; 2) formal appointment of a personal representative other than Respondent; and 3) to have the court exclude the second codicil from probate. In November 2000, Respondent filed objections to the April 19 petition asserting, among other claims, that there was no basis to exclude the second codicil and that the petition did not state a ground to negate Respondent's priority to serve as the personal representative. The parties did not contest the validity of the will; they only contested the effect of the second codicil.

In September 2002, Petitioner filed a motion requesting partial summary judgment declaring the second codicil invalid.² In turn, Respondent requested partial summary judgment declaring the second codicil valid. Next, Petitioner filed a response to Respondent's motion for partial summary judgment, asserting that the Respondent's pleadings "did not frame the issues in a way to permit summary adjudication" because Respondent had not offered the second codicil for admission to probate. Subsequently, on October 11, 2002, Respondent filed a petition for formal probate of the second codicil and formal appointment of a personal representative; Respondent clarified that he submitted the petition "in order to assure that the issue of the validity of the Second Codicil [would] be finally adjudicated in this case."

On November 18, 2002, the probate court granted Petitioner's motion for partial summary judgment, finding that the second codicil was not valid to exercise the testamentary power of appointment. Four days later, the probate court issued an amended notice of trial, stating that the only issue remaining for trial was the appointment of a personal representative. On December 4, 2002, Respondent requested that the probate court certify the partial summary judgment as final for appeal pursuant to C.R.C.P. 54(b).³

In a comprehensive order dated February 11, 2003, the probate court denied Respondent's 54(b) motion. In the same order, the probate court denied Respondent's request to be appointed personal representative and found that an independent fiduciary should be appointed personal representative, thereby resolving the last issue contested by the parties.

On March 28, 2003, Respondent filed a notice of appeal from the probate court's orders dated November 18, 2002 and February 11, 2003. On appeal, Respondent argued that the probate court erred in granting Petitioner's motion for partial summary judgment, concluding that the second codicil was not valid, and in denying Respondent's request to be appointed personal representative. Petitioner claimed the appeal was untimely; he argued that the November 18 order was final, and therefore the court of appeals lacked jurisdiction because more than forty five days passed before Respondent filed a notice of appeal.⁴

In In re Estate of Scott, 119 P.3d 511 (Colo.App.2004), a divided panel of the court of appeals held that the same rules of finality apply to probate proceedings as apply in other civil cases. 119 P.3d at 515. Because the November 18 order granting partial summary judgment adjudicated fewer than all the parties' claims, it was not a final judgment, and Respondent could not appeal the order without C.R.C.P. 54(b) certification. See id. at 515. The majority's holding marked a departure from In re Estate of Binford, 839 P.2d 508 (Colo.App.1992), which held that "[t]he test for determining finality is whether an order disposes of and is conclusive of the controverted claim for which that part of the proceeding was brought." 839 P.2d at 510.

Judge Casebolt dissented, reasoning that probate cases are distinct from other civil cases and the Binford precedent controlled. Id. at 517-18 (Casebolt, J., dissenting). Judge Casebolt would have dismissed Respondent's appeal as untimely. He would have concluded that the November 18 order was final because it "completely determined the issue of decedent's legal capacity to execute the second codicil ... and was conclusive of that controverted claim." Id. at 518.

Petitioner sought further review, and we granted certiorari to determine whether a party may appeal an order of the probate court prior to resolution of all issues between the parties.

II. Analysis

In examining whether a party may appeal an order of the probate court prior to resolution of all issues between the parties, we must determine: 1) which judgments of the probate court are final for purposes of appellate review; 2) the related question of what constitutes a discreet proceeding in the unsupervised administration of an estate;⁵ and 3) whether C.R.C.P. 54(b) applies to probate proceedings.

A. What Constitutes a Final Judgment of the Probate Court

We look first to the probate code. Section 15-10-308, C.R.S. (2005), states, "Appellate review, including the rights to appellate review, interlocutory appeal, provisions as to time, manner, notice ... and power of the appellate court, is governed by the Colorado appellate rules." The Colorado Appellate Rules instruct that the court of appeals may review judgments of the probate court. C.A.R. 1(a)(1). Neither final the probate code nor the appellate rules provides specific guidance regarding what constitutes a final judgment; hence, we look to our precedent. See In re Estate of Dandrea, 40 Colo.App. 547, 551, 577 P.2d 1112, 1115 (1978).

In other civil matters we have consistently held that a "final judgment is one which ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceeding." Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 n. 2 (Colo.1982); People in re E.A., 638 P.2d 278, 282 (Colo. 1981); Stillings v. Davis, 158 Colo. 308, 310, 406 P.2d 337, 338 (1965).

In 1992, however, the court of appeals held that in probate cases "the test for determining finality is whether an order disposes of and is conclusive of the controverted claim for which that part of the proceeding was brought." Binford, 839 P.2d at 510 (citing In re Estate of Dodge, 685 P.2d 260 (Colo.App. 1984)). Under this rule, if an order leads to further hearings on the same issue, it is interlocutory, but if no additional hearings are required, the order is final regardless of whether other aspects of the estate remain for disposition. Id.

Although it has been said that the Binford rule stands as settled law,⁶ others point to the confusion caused by the issue-based test for finality. For example, one author wrote:

[Binford] illustrates a potential trap in probate proceedings concerning orders which may be final, but some additional action is required at the trial level. Because the determination of whether an order is a final order considers all the facts surrounding each individual order in many jurisdictions, there will often be uncertainty as to whether an order is final.

John F. Kuether, Significant Probate and Trust Decisions, 30 Real Prop., Prob. & Tr. J. 645, 665 (Winter 1996).

In Scott, the court of appeals majority determined that the Binford issue-based test for finality does not accord with Colorado precedent. We agree. Although Binford cited In re Estate of Dodge for the issue-based test, neither that case nor any other Colorado case supported the test. Specifically, in Dodge, the court of appeals examined whether it had jurisdiction to review the probate court's judgment regarding a homestead exemption. 685 P.2d at 262. The Dodge court followed the traditional claim-based test for finality, stating that "a complete determination of the rights of the parties is necessary in order to achieve an appealable `final judgment.'" Id. Although the Dodge court phrased its conclusion regarding finality in terms of the single contested issue, the facts of the case demonstrate that, before the appellant filed a notice of appeal, the probate court had completely determined the parties' rights with respect to every claim in the proceeding. Id.

In arguing that the Binford test accords with Colorado Supreme Court precedent, Petitioner contends that In re Estate of Decker, 194 Colo. 143, 570...