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In the Matter of the Estate of Audrey J. Hollingsworth, Deceased v. Jerry Hollingsworth

January 12, 2012

IN THE MATTER OF THE ESTATE OF AUDREY J. HOLLINGSWORTH, DECEASED LYLE HOLLINGSWORTH, PERSONAL REPRESENTATIVE OF THE ESTATE OF AUDREY HOLLINGSWORTH, PETITIONER AND APPELLANT
v.
JERRY HOLLINGSWORTH, KEVIN HOLLINGSWORTH, AND CORY HOLLINGSWORTH, RESPONDENTS JERRY HOLLINGSWORTH, APPELLEE



Appeal from the District Court of LaMoure County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme CourtEstate of Hollingsworth,

2012 ND 16

This opinion is subject to petition for rehearing. [Go to Documents]

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DISMISSED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Lyle Hollingsworth, as personal representative of the Estate of Audrey Hollingsworth, appeals from a district court judgment determining the distribution of insurance proceeds. We dismiss the appeal for lack of jurisdiction.

I

[¶2] Audrey Hollingsworth died in February 2006 survived by four sons, Lyle, Kevin, Jerry, and Cory Hollingsworth. Audrey Hollingsworth owned farmland, machinery, and a house and garage. Her will devised certain land to Kevin Hollingsworth and to Cory Hollingsworth, noting that Jerry Hollingsworth and Lyle Hollingsworth had previously received land by gift. The farm machinery was devised to Jerry Hollingsworth and Lyle Hollingsworth. The will further provided that Jerry Hollingsworth and Cory Hollingsworth were given the right to use and occupy the house and garage during their lifetimes. The rest of Audrey Hollingsworth's property, including the remainder interest in the house and garage, passed through the will's residuary clause equally to all four sons. Informal probate of the will was begun in 2006, with Lyle Hollingsworth as personal representative.

[¶3] Jerry Hollingsworth had lived in the house with Audrey Hollingsworth and continued to live there after her death. The house was insured under a farm and ranch policy issued by Nodak Mutual Insurance Company ("Nodak") which listed Jerry Hollingsworth as the primary insured, with Audrey Hollingsworth listed as an additional insured. After Audrey Hollingsworth's death, the Estate was listed as the additional insured.

[¶4] In May 2006, the house was destroyed by fire. Nodak issued several checks made payable to Jerry Hollingsworth and the Estate for the loss. Disputes arose over the various parties' rights in the insurance proceeds, and Lyle Hollingsworth, as personal representative of the Estate, began proceedings in the informal probate requesting that the district court order a division of the insurance proceeds. Following an evidentiary hearing, the district court issued its findings of fact, conclusions of law, and order for judgment directing division of various components of the insurance proceeds between Jerry Hollingsworth and the Estate. The court concluded that the portion of the insurance proceeds paid for loss of the dwelling should be divided on the basis of the relative percentage value of Jerry Hollingsworth's life estate and the Estate's remainder interest, as calculated by actuarial tables. The court did not award any portion of the insurance proceeds to Cory Hollingsworth for his life estate, finding that he had not exercised his rights under his life estate.

[¶5] Lyle Hollingsworth asserts that after judgment had been entered, the parties notified the district court that the written findings of fact and judgment failed to address the parties' dispute over $9,200 in insurance proceeds for debris removal. Lyle Hollingsworth contends that "on February 8, 2001, Laurel Alber, Clerk for the Honorable Daniel D. Narum, emailed the parties indicating that the proceeds for debris removal were to be made payable to the Estate and ultimately divided amongst the four children." Lyle Hollingsworth thereafter filed a notice of appeal, stating the appeal was taken from "the order of the District Court entered by the Honorable Daniel D. Narum on January 4, 2011, and orally amended on February 8, 2011."

[ΒΆ6] Shortly after the appeal had been filed, counsel for the parties allegedly signed a written stipulation agreeing that the February 8, 2011, e-mail from Laurel Alber and a March 10, 2011, notice of entry of judgment constituted parts of the record and that the clerk of court could certify and transmit those documents as a supplement to the record on appeal. That stipulation was not contemporaneously filed with the district court, and those documents were not part of the record on appeal when this case was heard. After the oral argument on appeal, the stipulation was filed with the district court. The district court thereafter ordered that the notice of entry of judgment be certified and ...


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