Matter of Emelia Hirsch Trust
2014 ND 135
| N.D. | 2014Background
- In 1994 the Emelia Hirsch Irrevocable Trust was created with Emelia Hirsch transferring assets to it; beneficiaries included three children and ten grandchildren, including Timothy Betz.
- Protracted litigation over whether the trust was irrevocable and controlled by Emelia or could be reformed to revocable status.
- In 2003 Emelia petitioned to dissolve; in 2008 Carolyn Twite and Duane Hirsch moved to reform the trust to revocable and the district court granted reform.
- This Court affirmed the reform to revocable in 2009, noting Betz’s appeal was not frivolous and declining to award fees or costs under Rule 38.
- Betz moved to vacate the reform order and this Court summarily affirmed in 2013, with an order to pay attorney fees of $1,000 plus double costs under Rule 38.
- May 2012 hearing awarded trustees $5,000 in attorney fees; Betz did not appear, was held in contempt, and the court later ordered $5,000 plus interest; September 2013 amended judgment reinstated the $5,000 award and added interest; Betz objected to costs and sought a hearing, which the court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amended judgment and reinstatement of fees were proper. | Betz argues improper sequence and lack of hearing. | Trustees contend timely reinstatement after appeal and proper authority to award fees. | Amended judgment upheld; reinstatement proper and no hearing error. |
| Whether interest on the award should run from September 2012. | Betz challenges interest start date. | Trustees entitled to interest from initial judgment date. | Interest awarded from September 2012 sustained. |
| Whether Betz had a hearing on objections to costs. | Betz asserts denial of hearing. | Betz received notice and failed to appear; hearing not required. | No error; hearing not required given notice and vacatur proceedings. |
| Whether sanctions under Rule 11 or 28-26-01 were proper. | Trustees rely on frivolous conduct grounds. | Betz’s conduct warranted sanctions. | Court did not abuse discretion; fee award upheld. |
| Whether Betz’s appeal was frivolous and justified Rule 38 sanctions on appeal. | Appeal was flagrant and meritless. | Appellate challenges were insufficiently meritorious. | Appeal deemed frivolous; Betz ordered to pay $1,000 to attorney and double costs. |
Key Cases Cited
- Matter of Emelia Hirsch Trust, 2009 ND 135 (2009) (affirmed trust reform; discussed Rule 38 fee standards on appeal; no fees awarded to trustees previously)
- Matter of Emelia Hirsch Trust, 2013 ND 63 (2013) (summarily affirmed denial of Betz’s motion to vacate reform; awarded fees to trustees under Rule 38)
- Sagebrush Res., LLC v. Peterson, 2014 ND 3 (2014) (district court abuse of discretion standards for attorney fee awards under 28-26-01)
- Herring v. Lisbon Partners Credit Fund, Ltd. P’ship, 2012 ND 226 (2012) (appealability of orders for judgment; need for consistent judgment to appeal)