Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Benny A. Graff, Surrogate Judge on Assignment to the South Central Judicial District.
William C. Severin, for petitioners and appellees.
Clark J. Bormann (argued) and Sophie Y. Morgan (appeared), for respondent and appellant.
[¶ 1] Neil Bartelson ("Bartelson") appeals from a district court order denying his petition to remove Guardian and Protective Services ("GAPS") as the personal representative of the Estate of Ralph Bartelson, an order denying his motion to vacate the order denying his petition and an order awarding attorney's fees. We reverse and remand.
[¶ 2] The facts of this case are explained in In re Estate of Bartelson, 2011 ND 219, 806 N.W.2d 199, and will not be repeated except as necessary to explain the resolution of issues in this appeal.
[¶ 3] Ralph Bartelson had four children--Jean Valer, Jane Haught, Bartelson and Diane Fischer. In 2008, in the context of a petition for appointment of a guardian and conservator for Ralph Bartelson, the district court approved a settlement agreement appointing Valer as guardian and GAPS as conservator. Ralph Bartelson died August 23, 2008, and GAPS was appointed the personal representative of the estate.
[¶ 4] Bartelson and Fischer alleged Valer and Haught misappropriated Ralph Bartelson's funds. GAPS did not pursue a misappropriation claim against Valer and Haught. The district court ordered it did not have jurisdiction over claims of misappropriation occurring before the court's 2008 appointment of a guardian and conservator for Ralph Bartelson. Bartelson and Fischer appealed. We reversed the district court's decision, holding the court erred in determining it did not have jurisdiction over the misappropriation claims. Bartelson, 2011 ND 219, ¶ 1, 806 N.W.2d 199. We remanded for further proceedings and for the court to determine whether Bartelson and Fischer had standing to assert their misappropriation claims when they did not allege that GAPS breached its fiduciary duty by not filing a misappropriation claim against Valer and Haught. Id. at ¶ 15. Fischer died while the appeal was pending.
[¶ 5] On remand, Bartelson filed a petition on February 21, 2012, to be appointed as the successor personal representative. After a hearing, the district court ruled neither Bartelson nor Fischer's estate had standing to assert their misappropriation claims. Bartelson and Fischer's estate moved for reconsideration and requested the court rule on Bartelson's petition to be appointed as a successor personal representative. On May 30, 2012, the court denied the motion to reconsider and Bartelson's petition to be named the successor personal representative.
[¶ 6] On August 1, 2012, Bartelson petitioned to remove GAPS as personal representative of Ralph Bartelson's estate, arguing GAPS breached its fiduciary duty by failing to pursue collection of assets belonging to the estate and failing to bring an action against Valer and Haught for misappropriation. On August 9, 2012, Valer and Haught filed an objection to the petition and requested attorney's fees and costs. On August 20, 2012, Bartelson filed a reply to Valer and Haught's objection.
[¶ 7] On August 21, 2012, the district court denied Bartelson's petition, ruling Bartelson was lawfully excluded from the estate, does not have an interest in the assets of the estate and does not have standing to seek removal of the personal representative. The court also stated that it previously determined GAPS is qualified to act as the personal representative and has competently performed its responsibilities. The court found Bartelson's petition was frivolous because Bartelson has full knowledge that he does not have an interest in the estate or the conduct of the personal representative. The court granted Valer and Haught's motion for costs and attorney's fees.
[¶ 8] On August 22, 2012, Bartelson filed and served a notice of hearing, advising that a hearing on his petition to remove GAPS as personal representative was scheduled for September 10, 2012. The hearing was later canceled. On September 7, 2012, GAPS filed a response to Bartelson's petition.
[¶ 9] On September 11, 2012, Bartelson moved under N.D.R.Civ.P. 60(b) to vacate the order denying his petition to remove GAPS as the personal representative. Bartelson argued the court failed to follow statutory procedure before entering its order denying his petition; the court failed to hold a hearing required by statute; and the court failed to consider his reply brief, Valer and Haught's response to his reply brief, or GAPS' response brief. Bartelson also argued he is an interested person and he has standing to seek removal of the personal representative, the court has not previously determined whether GAPS has breached its fiduciary ...