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In re Estate of Vendsel

Supreme Court of North Dakota

March 30, 2017

In the Matter of the Estate of Dale Vendsel, Deceased
v.
James Vendsel and Jean Vendsel, as Co-Personal Representatives of the Estate of Dale F. Vendsel, Respondents and Appellees Bonnie Vendsel, Petitioner and Appellant In the Trust of Dale F. Vendsel Family Trust Bonnie Vendsel, Petitioner and Appellant
v.
James Vendsel and Jean Vendsel, Trustees of the Dale F. Vendsel Family Trust, Respondents and Appellees

         Appeal from the District Court of Renville County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.

         AFFIRMED.

          Bonnie Vendsel petitioner and appellant; submitted on brief.

          John S. Steinberger Jr. for respondents and appellees; submitted on brief.

          OPINION

          McEvers, Justice.

         [¶ 1] Bonnie Vendsel appeals a district court's order dismissing, with prejudice, her "Petition for Order in Settlement of Accounts and Distributions Called for in the Decedent's Will and Request for Supervision From the Court." Because the district court did not err in concluding Bonnie Vendsel failed to establish she is entitled to receive a yearly accounting under the terms of the trust, and in concluding her claims against the estate were without merit, we affirm the district court's order dismissing her petition with prejudice.

         I

         [¶ 2] Dale Vendsel died in 2002. Jean Vendsel is Dale Vendsel's surviving spouse. James and Bonnie Vendsel are two of their six children. Dale Vendsel's estate was probated in Renville County. His Will created the Family Trust and designated James and Jean Vendsel ("the Vendsels") as co-trustees of the trust, and co-personal representatives of the estate. The Will provided that Jean Vendsel is the sole income beneficiary of the trust during her lifetime. The Will also provided that the trustee could use the principal of the trust as necessary for support and maintenance of Jean Vendsel in the manner to which she is accustomed and as necessary to maintain her good health. Upon her death, the remaining trust assets are to be distributed under the "Disposition of Residue of My Estate" section of Dale Vendsel's Will.

         [¶ 3] On March 9, 2004, Bonnie Vendsel filed a petition requesting the district court compel the Vendsels to submit an accounting and plan for distribution for the estate. On March 22, 2004, the Vendsels, as personal representatives, filed an "Accounting Receipts and Expenses" document with the district court. A hearing was scheduled for April 13, 2004. In their response to Bonnie Vendsel's petition, the Vendsels noted they submitted an inventory and proposed distribution for the estate and mailed it to all interested parties. On April 13, 2004, the district court postponed the hearing indefinitely, and indicated the parties were "near reaching an agreement." The terms of any agreement the parties entered into are not part of the record. On April 16, 2004, James and Jean Vendsel filed an "Amended Accounting Receipts and Expenses" with the district court. No further action was taken by either party for over ten years.

         [¶ 4] On May 27, 2014, Bonnie Vendsel, acting self-represented, filed in both the estate and the trust cases a "Petition for Order in Settlement of Accounts and Distributions Called for in the Decedent's Will and Request for Supervision From the Court." In 2014, First Western Bank and Trust, the entity administering the trust, provided Bonnie Vendsel a "Summary of Financial Activity." The district court scheduled a hearing for August 13, 2014. This hearing was later cancelled for unknown reasons, but the record reflects the trust case was closed on September 11, 2014.

         [¶ 5] On May 8, 2015, Bonnie Vendsel, acting self-represented, again filed in both cases a "Petition for Order in Settlement of Accounts and Distributions Called for in the Decedent's Will and Request for Supervision From the Court." Bonnie Vendsel requested an accounting, supervision of the trust by the district court, and that James Vendsel submit annual trust accountings to the district court. A hearing was scheduled for July 8, 2015. At the hearing, the district court took evidence and heard testimony. On July 8, 2015, the district court issued an order in the trust case noting Bonnie Vendsel's "lack of standing to participate in any issues related to the distribution of the income of the Trust which is all designated for the decedent's surviving spouse Jean Vendsel." The district court concluded "[a]ll of the issues raised in the Petition were either rendered moot or otherwise resolved with no need for any further action." The district court dismissed Bonnie Vendsel's petition under the trust case with prejudice. On December 11, 2015, the district court filed another order dated July 10, 2015, in both the trust and estate cases. The district court dismissed Bonnie Vendsel's petition with prejudice in both cases on the grounds it was without merit or cause. The court specifically found "the provisions of the Last Will and Testament of Dale Vendsel had been followed in all respects and that no improper activities had occurred nor was there a failure to perform all applicable legal requirements." On June 1, 2016, Bonnie Vendsel appealed, arguing the district court erred by dismissing her petition. Bonnie Vendsel contends she has a right to receive accountings from Dale Vendsel's estate and trust; the Vendsels failed to perform their fiduciary duties; the Vendsels, acting as personal representatives to Dale Vendsel's estate, co-mingled estate assets with their personal assets; the terms of Dale Vendsel's Will were not followed; and, the district court should supervise the management of the trust.

         II

         [¶ 6] Before we address the merits of Bonnie Vendsel's appeal, we first consider the Vendsels' arguments asserting Bonnie Vendsel's appeal is untimely. The Vendsels argue Bonnie Vendsel's appeal is not timely under N.D.R.App.P. 4. In a civil case, a notice of appeal "must be filed with the clerk of the supreme court within 60 days from service of notice of entry of the judgment or order being appealed." N.D.R.App.P. 4(a)(1). The service of a notice of entry of an order commences the time to appeal, and "it is the responsibility of counsel for the prevailing party to serve the notice." Domres v. Domres, 1998 ND 217, ¶ 7, 587 N.W.2d 146. In the absence of service of a notice of order or judgment, actual knowledge evidenced on the record by action on the part of the appealing party commences the time for filing the notice of appeal. See Estate of Thorson v. Thorson, 541 N.W.2d 692, 694 (N.D. 1996).

         [¶ 7] The Vendsels served Bonnie Vendsel with notice of an order dismissing the petitioner in the trust case on July 10, 2015. However, the district court entered a subsequent order in both the trust and the estate case on December 11, 2015. The Vendsels never served Bonnie Vendsel with a notice of entry of the second order. There is nothing in the record showing action by Bonnie Vendsel that would prove she had notice of this subsequent order. Therefore, under N.D.R.App.P. 4(a)(1), the sixty-day time limit for Bonnie Vendsel to file for an appeal ...


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