Dixon v. Dixon

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 3, 2021
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2021 ND 94

John W. Dixon, Petitioner and Appellant
v.
Billie Dixon, Respondent and Appellee

No. 20210070

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.

MOTION GRANTED AND APPEAL DISMISSED.

Opinion of the Court by Crothers, Justice.

Greg W. Hennessy, Williston, ND, for petitioner and appellant.

Spencer D. Ptacek (argued) and Lawrence Bender (on brief), Bismarck, ND, for
respondent and appellee.
 Dixon v. Dixon
No. 20210070

Crothers, Justice.

[¶1] Respondent and appellee Billie Dixon moves to dismiss petitioner and
appellant John W. Dixon’s appeal due to mootness and lack of jurisdiction
because the appeal was taken without a N.D.R.Civ.P. 54(b) certification. We
grant the motion and dismiss the appeal.

I

[¶2] The Shirley A. Dixon Revocable Trust was created in 1972. The trust
agreement provided that, if Shirley Dixon’s husband did not survive her, her
four children would become remainder beneficiaries of the trust, and trust
property would be allocated equally to them upon her death. Billie Dixon and
John Dixon are two of Shirley Dixon’s four children.

[¶3] This action started in October 2013 when John Dixon sought an
accounting of the trust, removal of Billie Dixon as trustee, court supervised
administration of the trust, reimbursement of the trust for unauthorized
distributions, and his attorney fees expended in the action. Shirley Dixon died
on November 19, 2015. In March 2017, the district court granted summary
judgment denying the petition, and John Dixon appealed. This Court reversed
and remanded for further proceedings. Dixon v. Dixon, 2018 ND 25, ¶ 21, 905
N.W.2d 748. At the time of the first appeal, the district court was not
supervising administration of the trust and an immediate appeal was
permitted. See Matter of Curtiss A. Hogen Trust B, 2018 ND 117, ¶ 12, 911
N.W.2d 305 (“The district court granted Steven Hogen’s request for supervised
administration of the Trust to avoid a ‘plethora of appeals’ and piecemeal
litigation. Rodney Hogen’s initial appeal in this Trust proceeding was from a
decision issued before the court approved the trustee’s final report, and his
second appeal after our temporary remand was from an order approving the
trustee’s final report.”); In re Estate of Grengs, 2015 ND 152, ¶¶ 16-21, 864
N.W.2d 424 (describing the finality rule as applied to supervised and
unsupervised estates).

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[¶4] After trial on remand the district court granted John Dixon’s request for
supervised administration of the trust and denied the remaining requests for
relief. The court also ordered “that Respondent shall proceed with final
disbursement of the Trust’s assets and terminate the Trust, under this Court’s
supervision, upon the completion of any appeal or the expiration of the 60-day
period allowed for the filing of a notice of appeal.” The court directed that “The
clerk shall enter a judgment in accordance with this Order.”

[¶5] A document titled “Judgment” was entered on September 19, 2019. John
Dixon appealed that judgment on November 17, 2019. John Dixon
subsequently withdrew the appeal after this Court requested briefing from
both parties on appealability of the purported judgment. On May 4, 2020, this
Court dismissed John Dixon’s appeal without reaching the question whether
the September 19, 2019 “judgment” was appealable.

[¶6] On December 11, 2020, Billie Dixon filed a Petition for Order Allowing
Trustee to Make Final Distribution and Allowing Termination of the Trust. On
December 28, 2020, John Dixon filed objections to the petition, and on the same
day the court granted Billie Dixon’s petition. On February 26, 2021, John
Dixon appealed the district court’s order granting the petition. On April 12,
2021, Billie Dixon moved to dismiss the appeal. On April 24, 2021, the district
court granted Billie Dixon’s motion for stay, ordering “that its Order Allowing
Trustee to Make Final Distribution and Allowing Termination of the Trust
(Doc. ID# 239), and any attempts to enforce that Order, are hereby stayed,
effective March 29, 2021, pending completion of the appeal in this matter filed
by Petitioner John W. Dixon.”

II

[¶7] Billie Dixon moves to dismiss this appeal as moot and for lack of
N.D.R.Civ.P. 54(b) certification. We conclude the latter issue is dispositive.

A

[¶8] In North Dakota the right to appeal is statutory, and we must dismiss
for lack of jurisdiction if the law does not provide a basis for an appeal. In re

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Estate of Hollingsworth, 2012 ND 16, ¶ 7, 809 N.W.2d 328. “Only judgments
and decrees constituting a final judgment and specific orders enumerated by
statute are appealable.” Investors Title Ins. Co. v. Herzig, 2010 ND 138, ¶ 23,
785 N.W.2d 863 (citation omitted); accord N.D.R.Civ.P. 54(a). Our framework
for analyzing finality and our appellate jurisdiction involving unadjudicated
claims is well established:

“First, the order appealed from must meet one of the statutory
criteria of appealability set forth in NDCC § 28-27-02. If it does
not, our inquiry need go no further and the appeal must be
dismissed. If it does, then Rule 54(b), NDRCivP, [if applicable,]
must be complied with. If it is not, we are without jurisdiction.”

Matter of Estate of Stensland, 1998 ND 37, ¶ 10, 574 N.W.2d 203 (quoting Gast
Constr. Co., Inc. v. Brighton P’ship, 422 N.W.2d 389, 390 (N.D. 1988) (citations
omitted)). For purposes of this appeal we assumed without deciding the
December 28, 2020 order satisfies N.D.C.C. § 28-27-02(5) as one involving the
merits of an action.

[¶9] “We ‘will not consider an appeal in a multi-claim or multi-party case
which disposes of fewer than all claims against all parties unless the trial court
has first independently assessed the case and determined that a Rule 54(b)
certification is appropriate.’” Pifer v. McDermott, 2012 ND 90, ¶ 9, 816 N.W.2d
88 (quotation omitted). We have made clear that the purpose of N.D.R.Civ.P.
54(b) is to facilitate our longstanding policy to discourage piecemeal appeals of
multi-claim or multi-party litigation. Mangnall v. Adams, 1997 ND 19, ¶ 18,
559 N.W.2d 221 (stating policy of discouraging piecemeal litigation and
requiring complete accounting of trustee’s responsibilities); Citizens State
Bank-Midwest v. Symington, 2010 ND 56, ¶ 9, 780 N.W.2d 676 (providing
district courts with five non-exclusive factors for considering whether
N.D.R.Civ.P. 54(b) certification is appropriate).

[¶10] “Even if the trial court does make the requisite determination under
Rule 54(b), we are not bound by the court’s finding that ‘no just reason for delay
exists.’” Pifer, 2012 ND 90, ¶ 9 (quotation omitted). “We will sua sponte review

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the court’s certification to determine if the court has abused its discretion.” Id.
(quotation omitted).

[¶11] “Under N.D.R.Civ.P. 54(b), the district court is authorized to enter a final
judgment adjudicating fewer than all claims of all parties when the court
expressly concludes there is no just reason for delay and expressly directs the
entry of judgment.” Hollingsworth, 2012 ND 16, ¶ 9 (quoting Investors Title,
2010 ND 138, ¶ 24). However, we have cautioned against improvident use of
the rule:

“Upon requesting Rule 54(b) certification, the burden is upon the
proponent to establish prejudice or hardship which will result if
certification is denied. The district court must weigh the competing
equities involved and take into account judicial administrative
interests in making its determination whether or not to certify
under the Rule. A N.D.R.Civ.P. 54(b) certification should not be
routinely granted and is reserved for cases involving unusual
circumstances where failure to allow an immediate appeal would
create a demonstrated prejudice or hardship. Upon review, we
determine whether the case presents an infrequent harsh case
warranting the extraordinary remedy of an otherwise
interlocutory appeal.”

Capps v. Weflen, 2013 ND 16, ¶ 7, 826 N.W.2d 605 (citations and quotation
marks omitted).

B

[¶12] Billie Dixon argues the district court’s December 28, 2020 order was not
final so that this appeal is premature absent a N.D.R.Civ.P. 54(b) certification.
In Matter of Curtiss A. Hogen Trust B, 2018 ND 117, ¶ 1, an interested party
in a supervised administration of a trust appealed from the district court’s
order granting the trustee’s petition for approval of a final report and
accounting. On the question whether the order was appealable, we stated:

“Under N.D.C.C. § 59-10-01(2), a trust is not subject to
continuing judicial supervision unless ordered by the court. Here,
the district court granted Steven Hogen’s petition for supervised

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 administration of the Trust and ultimately issued an order
granting his petition for approval of the trustee’s final report and
accounting. We need not fully delineate issues about appealability
for every conceivable court proceeding involving a trust. Rather,
we conclude we now have jurisdiction to review issues in Rodney
Hogen’s appeal from an order granting approval of the trustee’s
final report and accounting in the supervised administration of
this Trust.”

Id. at ¶ 14.

[¶13] The conclusion in Hogen Trust B was based on our cases explaining
finality for appeals in the probate of estates. 2018 ND 117, ¶ 13. We noted that
orders in unsupervised estates generally were appealable without Rule 54(b)
certification if the order or decree was final, even if other claims by or against
the estate remained unresolved. Id. That holding was premised on each
proceeding in an unsupervised probate being considered independent of other
claims involving the same estate. See In re Estate of Hass, 2002 ND 82, ¶ 7,
643 N.W.2d 713. “Thus, in an unsupervised probate, an order settling all
claims of one claimant is final, even if there are pending claims by other
claimants.” In re Estate of Eggl, 2010 ND 104, ¶ 7, 783 N.W.2d 36 (quoting
Schmidt v. Schmidt, 540 N.W.2d 605, 607 (N.D. 1995)). By contrast, “In a
supervised administration, an order entered before approval of distribution of
the estate and discharge of the personal representative is not final and cannot
be appealed without [certification under N.D.R.Civ.P. 54(b)].” In re Estate of
Starcher, 447 N.W.2d 293, 296 (N.D. 1989).

[¶14] In Hogen Trust B this Court did not “fully delineate issues about
appealability for every conceivable court proceeding involving a trust.” Hogen,
2018 ND 117, ¶ 14. Thus, we must determine in this case whether the district
court’s December 28, 2020 order was final and immediately appealable. The
order directed:

“[T]hat, within ninety days of the date of this Order, Billie shall
pay the remaining bills and obligations of the Trust, Billie shall
distribute the Trust’s remaining assets in equal shares to and for
the benefit of Billie, Petitioner John W. Dixon (‘John’), and Dorothy

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 S. Dixon (‘Dotti’), according to the terms of the Shirley A. Dixon
Trust agreement, as amended, and upon final payment of bills and
final distribution of assets, Billie is in all things discharged from
her duties as Trustee of the Trust and is discharged from further
claim or demand of any interested person pertaining to the Trust
and the trust may in all things be closed.”

On its face, this order is unclear whether the district court intended it to be
final and a “judgment” for purposes of N.D.R.Civ.P. 54(a) (“‘Judgment’ as used
in these rules includes a decree and any order from which an appeal lies.”). The
court’s order stated the trustee had 90 days to wind up the trust and distribute
the assets. That directive suggests finality, but also can be construed as leaving
open the possibility of additional claims if the trustee does not correctly or
timely pay bills and distribute all assets according to the terms of the trust.
The court also ordered the trustee’s discharge, conditioned “upon final
payment of bills and final distribution of assets.” Again, this provision suggests
finality but ultimately may not be final because under plain terms of the order
the trustee would not be discharged if administration terminating the trust
was not correctly completed within 90 days and further claims were made as a
result.

[¶15] The ambiguities present in this case can be avoided in other cases if a
district court also issues an order, decree or judgment confirming final
administration of the trust and affirmatively discharging the trustee. Absent
such a final order, we anticipate confusion like that in the present case, which
likely leads to protective filings by both parties (i.e. notices of entry of orders
by prevailing parties, and notices of appeal by non-prevailing parties). Without
an expressly final order, we also anticipate that continuing ambiguities will
lead to needless additional work by the attorneys, additional and unnecessary
expenses for clients, and additional proceedings in this Court to determine
whether an order constitutes an appealable judgment or needs N.D.R.Civ.P.
54 certification.

[¶16] Here, the district court resolved ambiguities about finality of the
December 28, 2020 order subsequent to John Dixon’s notice of appeal. The
notice of appeal was filed on February 26, 2021. On April 24, 2021, the district

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court granted Billie Dixon’s motion for stay. The order stayed the December 28,
2020 order, stayed the trustee’s distribution of assets, prevented “any attempts
to enforce that Order,” and stayed discharge of the trustee. This action by the
court confirms that administration of the trust is not complete. Rather,
language of the December 28, 2020 order, when read with the stay, establishes
there is an opportunity for more claims and proceedings potentially giving rise
to appealable issues and, thus, the order was not a “judgment” under
N.D.R.Civ.P. 54(a). See Gasic v. Bosworth, 2014 ND 85, ¶ 12, 845 N.W.2d 306
(“based on the district court’s failure to address the counterclaim in its order
of eviction and reference to a future hearing in its stay of eviction, we conclude
the court did not intend the order of eviction to be a final order or judgment”);
Matter of Estate of Stensland, 1998 ND 37, ¶ 17 (where at time of notice of
appeal funds had not been restored and a corrected accounting had not been
filed or approved, this Court concluded the judgment left potential interrelated
disputes unsettled and lacked finality).

[¶17] We conclude this Court is without jurisdiction to adjudicate the appeal
because the trust is court supervised, the order is not final as to all matters
relating to the trust, and the district court did not issue a N.D.R.Civ.P. 54(b)
certification prior to John Dixon’s appeal. For the same reasons, Rule 54(b)
certification would be improper and we therefore do not remand for the district
court to consider that step. See Capps v. Weflen, 2013 ND 16, ¶ 7 (“A
N.D.R.Civ.P. 54(b) certification should not be routinely granted and is reserved
for cases involving unusual circumstances where failure to allow an immediate
appeal would create a demonstrated prejudice or hardship.”).

III

[¶18] Billie Dixon’s motion is granted and the appeal is dismissed.

[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte

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