927 N.W.2d 474
N.D.2019Background
- Decedent Arline Hogen died in 2007, devising her property equally to sons Steven and Rodney Hogen; Steven was appointed personal representative.
- Dispute arose over offsets against Rodney’s share for unpaid farm rent and related amounts; probate court awarded offsets, personal representative fees, and attorney/expert fees after an evidentiary hearing.
- This Court in Estate of Hogen remanded part of the probate ruling for recalculation of certain conservation payments; related trust and quiet-title litigation produced additional appeals and rulings involving the same land and parties.
- On remand the probate court approved complete settlement and distribution of the Estate, ordered sales of land to pay costs, discharged Steven (stayed pending appeal), and allocated attorney fees: $50,000 from each brother for pre-remand fees and $200,000 solely from Rodney for post-remand fees, plus a $23,000 withholding from Rodney for pending appeals.
- Appellants (Susan and Marby Hogen, and Rodney) appealed, arguing the probate court lacked jurisdiction to enter the post-remand settlement/distribution order and erred or abused its authority by charging Rodney with all post-remand attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether probate court had jurisdiction to enter post-remand settlement/distribution order | Appellants: prior order was final and terminated Steven’s authority, so court lacked jurisdiction to act after the appealed order | Respondents: prior order did not terminate the estate or the PR’s authority; administration continued after remand | Court: jurisdiction upheld; prior decision (Hogen v. Hogen) rejects finality argument and confirms probate administration continued |
| Whether court could require Rodney to pay all post-remand attorney fees from his share | Rodney: court lacked statutory authority, abused discretion, conflicts of interest existed, and American Rule should apply; N.D.R.Civ.P.11 procedures not followed | Estate/PR: court has inherent authority and statutory bases to prevent an heir from financing litigation with estate funds and to sanction obstructive conduct | Court: affirmed fee award against Rodney; findings supported by record and within court’s inherent and statutory authority |
| Whether the conduct justified sanctions/fee-shifting as frivolous or in bad faith | Rodney: his claims were not frivolous under N.D.C.C. § 28-26-01(2); no basis for mandatory fee award | Estate: Rodney’s post-remand conduct was obstructive, meritless, and increased costs, fitting standards for fee awards and sanctions | Court: found record-supported findings of unreasonable obstruction; fee award not an abuse of discretion |
| Whether appellate-procedure sanctions (N.D.R.App.P. 38) or other protections were required | Rodney: Kjorvestad relied on appellate rule; that rule and its protections cannot justify district probate fee-shifting here | Estate: distinguishes appellate-rule awards but relies on inherent power and statutes to award fees in probate/district proceedings | Court: Kjorvestad’s principle (not the rule) acknowledged; but principal authority for fee-shifting here is inherent power and statutes affirmed in Nohle and related decisions |
Key Cases Cited
- Estate of Kjorvestad, 375 N.W.2d 160 (N.D. 1985) (approved awarding appellant’s appeal-related fees against appellant’s share to prevent financing litigation from estate funds)
- Estate of Nohle, 893 N.W.2d 755 (2017 ND 100) (affirmed district court’s authority to order probate litigant to pay personal representatives’ attorney fees for frivolous or bad-faith filings and recognized inherent authority to control docket)
- Hogen v. Hogen, 921 N.W.2d 672 (2019 ND 17) (rejected finality/termination argument; held probate administration continued post-remand)
- Matter of Curtiss A. Hogen Trust B, 911 N.W.2d 305 (2018 ND 117) (related trust decision affirming breach of fiduciary duty findings and remedies affecting trust land)
- First Trust Co. v. Conway, 423 N.W.2d 795 (N.D. 1988) (affirmed awarding of appellate attorney fees in probate-related appeal)
- In re Estate of Kesting, 371 N.W.2d 107 (Neb. 1985) (quoted for the principle that an heir should not be allowed to finance litigation against another heir from estate funds)