Estates of Shubert, 2013 ND 215

Background

Lowell Shubert died in May 2010; his cousin Charlene Wikholm was informally appointed personal representative the same day; probate of Lowell’s estate was later consolidated with his parents’ estates (Gust and Anne).
No inventory/appraisal or timely statutory notices were initially filed; Wikholm later filed an inventory and appraisal after counsel changed.
In February 2012 Wikholm (as personal representative) entered a purchase agreement to sell ~758 acres for $1,411,000, reserving minerals; she petitioned the court for sale approval in April 2012.
Heir Gary Puhr objected to the sale as for less than fair market value and later filed for notice and to remove Wikholm as personal representative for mismanagement and statutory duty failures.
The district court approved the land sale (May 2012) and later denied the petition to remove Wikholm (July 2012); Wikholm conveyed the land by personal representative’s warranty deed in August 2012.
On appeal the Supreme Court dismissed the appeal from the sale as moot (no stay obtained; conveyance to third parties completed) and affirmed the denial of removal (no abuse of discretion).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of appeal from order approving land sale	Appellants argued sale approval reversible; they filed lis pendens and sought relief	Wikholm argued conveyance was completed to third parties and appellants did not obtain a stay, so appeal is moot	Appeal dismissed as moot because land was conveyed and no stay was obtained; court could not provide effective relief
Necessity/effect of stay pending appeal of real property sale	Appellants claimed stay would likely be futile or unaffordable	Wikholm argued rule requires an undertaking to stay execution of a real property sale; appellants did not seek it	Stay provisions (N.D.R.Civ.P. 62(h)) apply; failure to obtain a stay moots challenge to completed conveyance
Appealability of order denying removal of personal representative	Appellants argued order was not final absent 54(b) certification	Wikholm argued order was interlocutory because no 54(b) certification was entered	Order is appealable in informal unsupervised probate proceedings; denial of removal is a concluding order and appealable without 54(b) certification
Whether district court abused discretion in denying removal	Appellants alleged mismanagement, failure to give statutory notices, failure to file inventory/appraisal, and denial of ability to examine initial attorney	Wikholm and court argued delays/irregularities were addressed, inventory/appraisal filed, no evidence of mismanagement or other statutory grounds for removal	No abuse of discretion; court found inadequate evidence of cause for removal though notices and timing were not ideal

Key Cases Cited

Forum Publ’g Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986) (explains "great public interest" test for mootness and adoption of "capable of repetition yet evading review" doctrine)
State v. Liberty Nat’l Bank & Trust Co., 427 N.W.2d 307 (N.D. 1988) (discusses tests used by the court to resolve mootness questions)
In re Estate of Starcher, 447 N.W.2d 293 (N.D. 1989) (an unsupervised/informal probate’s separate proceedings are independent; concluding orders on petitions are final and appealable)
In re Estate of Eggl, 783 N.W.2d 36 (N.D. 2010) (order resolving an estate-related petition in unsupervised administration is appealable without 54(b) where it settles existing claims)
Estate of Hass, 643 N.W.2d 713 (N.D. 2002) (standard that removal of a personal representative is discretionary with the district court)
In re Estate of Johnson, 214 N.W.2d 109 (N.D. 1973) (recognizes Supreme Court authority to issue stay after district court denial)
Matter of Combined Metals Reduction Co., 557 F.2d 179 (9th Cir. 1977) (failure to obtain stay moots appeals challenging court-authorized conveyances to third parties)