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In re Estate of Hogen

Supreme Court of North Dakota

May 16, 2019

In the Matter of the Estate of Arline H. Hogen, Deceased
v.
Rodney Hogen, Appellant Respondent and Steven C. Hogen, Petitioner and Appellee and Susan Hogen and Marby Hogen, Purported Interested Persons and Appellants

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John C. Irby, Judge.

          Sara K. Sorenson, West Fargo, ND, for petitioner and appellee.

          Jonathan T. Garaas, Fargo, ND, for appellants.

          OPINION

          Jensen, Justice.

         [¶l] Susan and Marby Hogen, as purported interested persons, and Rodney Hogen (collectively "appellants") appeal from probate court orders settling the Arline Hogen Estate and discharging Steven Hogen as personal representative of the Estate. The appellants generally argue that the probate court did not have jurisdiction to enter an order for the complete settlement and distribution of the Estate and that the court lacked authority or abused its discretion in requiring Rodney Hogen to pay from his share of the Estate property all attorney fees incurred by the Estate after this Court's remand in Estate of Hogen, 2015 ND 125, 863 N.W.2d 876. We affirm.

         I

         [¶2] When Arline Hogen died in 2007, she was survived by her two sons, Steven and Rodney Hogen, and all of her property was devised equally to her two sons under her will. Arline Hogen and her deceased husband, Curtiss Hogen, owned farmland in Barnes and Cass Counties, and Rodney Hogen had farmed the land with Curtiss Hogen. When Curtiss Hogen died in 1993, his undivided half interest in the farmland was distributed to the Curtiss Hogen Trust. After his father's death, Rodney Hogen farmed the land under a rental agreement with the Trust and with Arline Hogen, the owner of the other half interest in the farmland. After Arline Hogen's death in 2007, Steven Hogen was appointed personal representative of her Estate. According to Steven Hogen, he discovered evidence indicating the Estate may be entitled to an offset from Rodney Hogen's share of the Estate as compensation for Rodney Hogen's failure to make certain payments to his mother.

         [¶3] Steven Hogen petitioned the probate court for an offset against Rodney Hogen's share of the Estate and a final accounting. After an evidentiary hearing, the court determined Rodney Hogen owed the Estate certain farmland rent, conservation reserve program payments, and interest. The court also approved Steven Hogen's request for personal representative fees and for attorney fees, costs, and expert witness fees.

         [¶4] In Estate of Hogen, 2015 ND 125, ¶ 1, 863 N.W.2d 876, we affirmed the probate court's decision in part, reversed in part as to the calculation of payments attributable to Barnes County conservation reserve program land, and remanded for further proceedings. In a related case involving the Curtiss Hogen Trust, we affirmed a district court decision determining Rodney Hogen breached fiduciary duties to the Trust and authorizing Steven Hogen, as trustee, to sell Trust land to offset against Rodney Hogen's share of the land. Matter of Curtiss A. Hogen Trust B, 2018 ND 117, ¶ 1, 911 N.W.2d 305. More recently, we affirmed a summary judgment dismissing an action by Marby and Susan Hogen against Steven Hogen personally and as personal representative of the Estate and as trustee of the Trust to quiet title to certain land involved in the Estate and the Trust proceedings. Hogen v. Hogen, 2019 ND17, ¶l, 921 N.W.2d672.

         [¶5] On remand in the probate proceeding, the probate court ultimately issued an order approving Steven Hogen's petition as personal representative for the complete settlement and distribution of the Estate, including the sale of certain land to pay for administration costs, expenses, and attorney fees, and discharging Steven Hogen as personal representative of the Estate. The court ordered payment of $50, 000 from each of Steven and Rodney Hogen's share of the Estate for the personal representative's attorney fees and expenses incurred before the remand in Estate of Hogen, 2015 ND 125, 863 N.W.2d 876, and payment of $200, 000 entirely from Rodney Hogen's share of the Estate for the personal representative's attorney fees and expenses after the remand. The court also ordered a withholding of $23, 000 from Rodney Hogen's share of the Estate for the personal representative's attorney fees related to remaining work in the then pending appeal in the quiet title action and for an expected appeal in this case, with any unused funds distributed to Rodney Hogen. The court discharged Steven Hogen as personal representative of the Estate, but stayed the discharge until the expiration of the time for appeal or until the proceeding was finally resolved on appeal.

         II

         [¶6] The appellants generally argue the probate court failed to substantially comply with its statutory jurisdiction, acted in excess of its statutory jurisdiction, or acted without jurisdiction in entering an order on the petition for complete settlement and distribution of the Estate after this Court's remand in Estate of Hogen, 2015 ND 125, 863 N.W.2d 876. They claim the probate proceedings concluded with the order for final accounting and settlement that was appealed in Estate of Hogen. They argue that order was final under N.D.C.C. §30.1-21-01 for distribution of all the Estate land and terminated Steven Hogen's power and authority as personal representative under N.D.C.C. § 30.1-17-10(2). They claim the probate court's post-remand decisions failed to comply with several jurisdictional statutory provisions, including N.D.C.C. § 30.1-21-08 for administration of property after the Estate had been settled, N.D.C.C. § 30.1-19-03(2) for bringing claims after distribution, N.D.C.C. § 30.1-20-11 for the personal representative to allocate real property, N.D.C.C. § 30.1-03-01 for the sale of real property, N.D.C.C. § 30.1-20-06 for the allocation of capital gains, and N.D.C.C. §§ 30.1-18-09 and 30.1-20-03 for a retainer for the 2014 through 2016 crop years.

         [¶7] In Hogen v. Hogen, 2Ol9KD 17, ΒΆ 16, 921 N.W.2d 672, we recently rejected the appellants' similar argument about finality and the termination of Steven Hogen's authority as personal representative. We recognized that the prior order did not terminate the Estate proceeding or discharge Steven Hogen as personal representative, and that the Estate was still subject to administration after our earlier decision in the probte ...


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