Springer v. Gollyhorn

• Decision Date: 19 February 1997
• Citation: 934 P.2d 501,146 Or.App. 389
• Parties: In the Matter of the Estate of William A. Gollyhorn, Deceased. Sharon SPRINGER, Personal Representative of the Estate of William A. Gollyhorn, Deceased and Sharon Springer, Personally, Appellant, v. William R. GOLLYHORN, Respondent. 94 PR 30; CA A92041.
• Court: Oregon Court of Appeals

Page 501

934 P.2d 501

146 Or.App. 389

In the Matter of the Estate of William A. Gollyhorn, Deceased.

Sharon SPRINGER, Personal Representative of the Estate of

William A. Gollyhorn, Deceased and Sharon

Springer, Personally, Appellant, v. William R. GOLLYHORN, Respondent.

94 PR 30; CA A92041.

Court of Appeals of Oregon.

Argued and Submitted Dec. 3, 1996.

Decided Feb. 19, 1997.

George W. Kelly, Eugene, argued the cause and filed the brief, for appellant.

Toni DeFriez Skinner, Hermiston, argued the cause and filed the brief, for respondent.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

In this probate proceeding, William Gollyhorn, an heir to an estate, filed an objection to the final accounting filed by the personal representative, Sharon Springer. The trial court did not enter an order approving the final account and decree of final distribution or otherwise close the estate, but found that the personal representative breached her fiduciary duty because she failed to comply with the statutorily prescribed duties of a personal representative. The trial court then awarded Gollyhorn a personal judgment against the personal representative in the amount of $2,279.08 along with his attorney fees and costs. The personal representative appeals those decisions, assigning error to each. We dismiss the appeal.

We state the facts as found in the transcript of the proceedings below and the record on appeal. On July 25, 1994, testator died, leaving an estate of about $25,000. He was survived by four adult children, including the parties before us. After initially consulting an attorney to file a petition for probate of the will, the personal representative proceeded pro se. In November 1995, the personal representative filed a final accounting for the estate.

The personal representative incurred some expenses associated with the estate's administration, the bulk of which centered on long distance dealings with a bank regarding the bank's unauthorized release of certain monies from one of decedent's accounts to Gollyhorn and the personal representative's attempts to have the bank collect that money for inclusion in the estate assets for distribution.

After filing the final accounting with the court, but before receiving the court's approval, the personal representative issued checks to the estate heirs, as required by the accounting. All four of testator's children were to receive an equal amount of $4,047.80. However, the personal representative deducted the value of the property that Gollyhorn had taken from decedent's house shortly after the death, plus the expenses incurred to recover money improperly paid to Gollyhorn from one of decedent's bank accounts. As a result, Gollyhorn received a check for $22.06.

Gollyhorn filed an objection to the personal representative's final accounting, seeking only a hearing on the objections. The hearing was held on December 21, 1995. That morning Gollyhorn filed with the court a memorandum in support of objections, raising for the first time the questions of holding the personal representative personally liable for breach of fiduciary duty and his entitlement to attorney fees and costs.

At trial, evidence was adduced that the personal representative failed to fulfill the duties prescribed by statute for a personal representative. That evidence came in by way of the personal representative's testimony during the presentation of Gollyhorn's case. The trial court concluded that the personal representative's own testimony settled all of the factual questions regarding Gollyhorn's contention that the personal representative had breached her fiduciary duty. Moreover, the trial court accepted Gollyhorn's rough accounting in establishing his portion of the estate. Because it concluded that the factual issues were settled, the trial court did not allow the personal representative to present evidence to explain her actions. Gollyhorn's rough accounting disallowed a number of the personal representative's expenses, and the personal representative was not given the opportunity to challenge Gollyhorn's figures or to legitimize her expenses.

On January 24, 1996, the court entered a document entitled Findings, Order and Money Judgment, awarding Gollyhorn a $2,279.08 judgment against the personal representative as his portion of the estate and his attorney fees and costs. This appeal followed.

On appeal, the personal representative argues that the trial court erred in holding her liable for breach of fiduciary duty because it calculated Gollyhorn's portion of the estate based on materials that were not in evidence. She further argues that it erred in refusing her the opportunity to present evidence about what Gollyhorn had challenged and to justify some of her expenses. The personal representative also contends that the trial court erred in awarding Gollyhorn attorney fees and costs because he failed to comply with the requirements of ORCP 68 C.

We do not reach the merits of this case. Appellate courts have a duty to examine their jurisdiction, sua sponte, and to dismiss any case that lacks the requisite basis for appeal. Goeddertz v. Parchen, 299 Or. 277, 701 P.2d 781 (1985).

An order entered in a probate proceeding is not appealable if it fails to settle the controversy completely and finally. Harrington v. Thomas, 63 Or.App. 292, 295, 663 P.2d 1298, rev den 295 Or. 617, 670 P.2d 1033 (1983). The trial court purported to establish Gollyhorn's share of the estate when it entered its Findings, Order and Money Judgment. ¹ To the best that we are able to determine from the trial court file, however, the court did not otherwise approve or disapprove a final account or decree a final distribution of the estate, ORS 116.113(1), thereby closing the estate and conclusively determining the extent and character of Gollyhorn's interest in the estate and that of all successors in interest to the estate. ORS 116.113(4).

This case is like Harrington because the trial court's purported judgment in this case does not, as a matter of law, finally settle the rights and liabilities of any of the parties with an interest in an estate any more than did the order in Harrington.

The premise of the dissent is that the instrument on review is a judgment--but that merely begs the question. While it is true that all judgments must be so labeled, all documents so labeled are not necessarily judgments. An instrument is not a "judgment" simply because it is labeled as such. It is well established that the character of an instrument is determined by its contents, not by its title. Cockrum v. Graham, 143 Or. 233, 242, 21 P.2d 1084 (1933). With the exception of judgments entered pursuant to ORCP 67, B, a judgment is final, and therefore appealable, only if it finally determines the rights and liabilities of all parties on all issues in an action. ORCP 67, A. Until a decree of final distribution is made, any determination of the interested parties' rights, no matter what it is called, is not final and is subject to modification. ORS 116.113(4). ² The trial court failed to complete the final accounting process, and it follows that the "judgment" against the personal representative has no more effect than an interim order and is not final. It is freely subject to change by the trial court. ³ Accordingly, the matters in controversy are not concluded by the trial court's "Findings, Order and Money Judgment." ⁴

Moreover, the trial court could not have approved the final account or otherwise closed the estate, as a matter of law, because the personal representative testified that she did not file any documentation concerning the payment of the necessary state income and personal property taxes. ORS 116.113(2). The personal representative's testimony even fails to reveal if those taxes were paid in the first place. It follows, therefore, that ORS 19.033(4) ⁵ is not applicable. See Parnicky v. Williams, 302 Or. 150, 727 P.2d 121 (1986).

Accordingly, we dismiss the appeal on our own motion for want of appellate jurisdiction.

Appeal dismissed.

EDMONDS, Judge, dissenting.

The majority holds that the money judgment against the personal representative entered by the trial court is not appealable. According to the majority, the judgment does not finally settle the rights and liabilities of any of the parties with an interest in the estate because no final account or decree of final distribution has been entered. Even though all money judgments are, for all legal intents and purposes, final judgments, the majority holds that we lack jurisdiction under the above circumstances. For the reasons that follow, I disagree.

Preliminarily, ORS 19.010 establishes our appellate jurisdiction. Specifically,

"[a]ppeals from a circuit court sitting in probate are taken in the same manner as other appeals from circuit court. ORS 111.105(2). ORS 19.010 specifies what lower court determinations are appealable. The character of a document is to be determined by its content and not by its title. However, to constitute a judgment, the document must be so labeled[.] ORCP 70." Goeddertz v. Parchen, 299 Or 277, 279-80, 701 P2d 781 (1985) (citation omitted).

In this case, the document from which the appeal is taken is labeled "FINDINGS, ORDER AND MONEY JUDGMENT." Initially, the document expresses the trial court's findings and its conclusion that appellant has breached her fiduciary duty as a personal representative. It then orders her to pay $2,279 to respondent, "as...