Matter of Emelia Hirsch Trust
2017 ND 291
| N.D. | 2017Background
- Emelia Hirsch created an irrevocable trust in 1994 naming children and grandchildren (including Timothy Betz) as beneficiaries.
- After long litigation, the district court in 2008 reformed the trust to a revocable trust; that decision was affirmed on appeal.
- Betz continued multiple post-2008 actions and filings challenging the trust and related probate matters; several prior appeals and fee orders against him are part of the record.
- In Feb 2017 Betz moved to reopen the case and to vacate the 2008 order; the district court denied reopening and did not enter further substantive orders; Betz did not timely appeal that denial.
- In Mar–Apr 2017 the co-trustees moved for a pre-filing order under N.D. Sup. Ct. Admin. R. 58; following a hearing the court found Betz a vexatious litigant and issued a pre-filing order requiring leave of court before Betz (self-represented) may file new litigation or new documents in existing litigation.
- Betz appealed the April 2017 pre‑filing order; the Supreme Court reviewed for abuse of discretion and affirmed, declining to award attorney fees but awarding double costs to the co‑trustees.
Issues
| Issue | Betz's Argument | Co-trustees' Argument | Held |
|---|---|---|---|
| Validity of pre-filing order under Admin. R. 58 | Order based on incomplete/inaccurate facts; court erred in finding him vexatious | Rule 58 permits pre-filing orders where criteria met; Betz repeatedly relitigated and filed unmeritorious papers | Affirmed: court followed Rule 58 procedure and made findings supporting vexatious‑litigant status; no abuse of discretion |
| Whether court misapplied standard for vexatious litigant | Said court ignored relevant evidence and new tax evidence re: irrevocable trust | Court relied on Betz’s pattern of filings, prior adverse determinations, and frivolous filings | Affirmed: factual findings (voluminous filings, repeated relitigation, fee orders) support conclusion under Rule 58 |
| Can Betz raise challenges to 2008 order in this appeal | Sought relief from 2008 trust order and contended new evidence existed | Co-trustees: those issues were previously decided and Betz failed to timely appeal earlier denial | Rejected: Betz only appealed the April 2017 pre‑filing order; he did not appeal the Feb 2017 denial and is precluded from relitigating the 2008 order here |
| Request for appellate attorney fees and costs | N/A (Betz opposed fees) | Sought attorney fees under N.D.R.App.P. 38, 39 as appeal frivolous and for extra work responding to unrelated issues | Court declined fee award (appeal of Rule 58 order not frivolous) but awarded double costs because co‑trustees had to address unrelated claims |
Key Cases Cited
- Matter of Emelia Hirsch Trust, 2009 ND 135, 770 N.W.2d 225 (state trust reformation affirmed)
- Holkesvig v. Grove, 2014 ND 57, 844 N.W.2d 557 (standard: abuse of discretion review for injunctions on future filings)
- Bernhardt v. Bernhardt, 1997 ND 80, 561 N.W.2d 656 (use of discretionary term "may" means permissive)
- Federal Land Bank v. Ziebarth, 520 N.W.2d 51 (N.D. 1994) (review of orders enjoining future litigation)
- Podrygula v. Bray, 2014 ND 226, 856 N.W.2d 791 (standards for awarding fees on frivolous appeal)
- United Bank of Bismarck v. Young, 401 N.W.2d 517 (N.D. 1987) (when appeal is frivolous and fee assessment justified)