In the Matter of the Estate of Richard Willard Lamour, Leslee Heiberger and Liz Kilburg

IN THE COURT OF APPEALS OF IOWA

No. 16-1282
Filed June 7, 2017

IN THE MATTER OF THE ESTATE OF
RICHARD WILLARD LAMOUR, Deceased,

LESLEE HEIBERGER and LIZ KILBURG,
Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.

Two sisters, Leslee Heiberger and Liz Kilburg, appeal a district court order

approving a final report and inventory of their father’s estate. REVERSED AND

REMANDED.

Robert J. Murphy of Robert J. Murphy Law Office, Dubuque, for

appellants.

Dustin A. Baker of Baker Law, Dubuque, for appellee.

Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

Two sisters, Leslee Heiberger and Liz Kilburg, appeal a district court order

approving a final report and inventory of their father’s estate. They claim the

district court did not have authority to approve the final report in contradiction to a

previous order entered by another district court judge. We find the second

district court judge did not have authority to disregard a final judgment previously

entered. Accordingly, we reverse and remand.

I. Background Facts and Proceedings

Richard LaMour died on May 17, 2013, survived by four children, a son

and three daughters. Richard’s will appointed his son, Logan LaMour, as

executor. Logan filed a report and inventory in December showing a gross

estate of nearly $100,000. As executor, Logan requested a conversion to a small

estate, which was granted.1 Logan filed a request for executor fees of $8000,

noting the probate inventory totaled $99,815.61. Two of Logan’s sisters, Leslee

Heiberger and Liz Kilburg, filed a resistance to the fee request. The district court

awarded Logan $2994.47 in executor fees.

On March 27, 2014, Leslee and Liz claimed Logan had withheld additional

assets from several estate accounts. In July, Logan filed a new report and

inventory with assets totaling $675,688.09 and stated, “the total value of the

estate . . . would be distributed equally among the heirs.” At the end of July,

Logan alleged improper filings by Leslee and Liz and requested additional

expenses of $5112.12 to be paid from the sisters’ shares. Judge Ackley

1
Any estate with gross value under one hundred thousand dollars may be administered
as a small estate upon petition. Iowa Code § 635.1 (2013).
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approved the fees and ordered “this sum as well as any court costs attributable

to the objections raised by Leslee and Liz shall be paid out of Leslee and Liz’s

shares.” Leslee and Liz timely objected

On September 5, Logan again filed an application for executor fees

calculated at $13,633.76 including an additional $5112.12, comprising mainly

travel expenses from July. On October 28, Logan filed a final report showing all

assets being divided equally. In November, Logan again requested extraordinary

fees to be paid from Leslee and Liz’s shares. On December 15, Judge Ackley

approved a distribution of “approximately 50 percent” of the parties’ share of the

estate.

On April 28, 2015, the parties appeared before Judge Bitter for a hearing

on three issues, the estate’s attorney’s request for extraordinary fees, the

approval of Logan’s report, and the district court’s order assessing executor fees

to only Leslee and Liz’s shares of the estate. Logan again stated the decedent’s

intent was for all assets, including those held jointly, to be distributed equally

among the children. On May 4, Judge Bitter entered an order approving the final

report, indicating that all assets would be distributed equally, with two exceptions.

First, Logan’s travel expenses were to be included in the total executor’s fee of

$13,634, and second, the fees would be deducted from the estate as a whole,

not only from Leslee and Liz’s shares alone.

Logan did not file a final report until September 23. Even after such a

lengthy delay, the final report did not conform to Judge Bitter’s order. The report

did not include any of the money in the jointly held accounts. Leslee and Liz

again objected, and another hearing was held on January 21, 2016. The hearing
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was scheduled with Judge Ackley, but after the start of the hearing, Judge Ackley

determined Judge Bitter should preside; as a result, Judge Bitter finished the

hearing. After this hearing, Judge Bitter entered an order stating, in part, “that

previous ruling from the court stands,” and requiring Logan to enter a final report

consistent with the May 4, 2015 order. Judge Ackley also entered an order

following the hearing. In her order, Judge Ackley spent considerable time

admonishing the parties and disagreeing with the conclusions in Judge Bitter’s

order. However, Judge Ackley also stated Judge Bitter “gave final direction to

the executor and that therefore shall be followed by the parties.” Judge Ackley

noted she was the administrative judge in charge of probate and “will continue to

monitor this proceeding for closure. It is therefore expected that the final report

will be filed, and this case shall be closed within sixty days.”

On March 23, 2016, Logan filed a motion for clarification claiming the

orders in the case were confusing on the issue of the jointly held accounts.

Leslee and Liz again objected. Judge Ackley entered an order May 17,

approving the September 23, 2015 final report, which did not distribute the jointly

held assets, and stated she would “review this matter in thirty days for the entry

of an order closing the estate.” Leslee and Liz filed several motions in an attempt

to stop the estate from being closed and secure the disbursement of the jointly

held assets. Their attempts were overruled and their motions were denied by

Judge Ackley.

Logan re-filed the September 23, 2015 final report on May 23, 2016.

Again the sisters objected, but again Judge Ackley summarily denied all motions.

The sisters now appeal.
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II. Standard of Review

The sisters urge a standard of correction of errors at law and abuse of

discretion. See In re Estate of Herron, 561 N.W.2d 30, 31 (Iowa 1997). The

cases they cite state the correct standard of review for an application for

reopening an estate. However, “[a]ctions to set aside or contest wills, for the

involuntary appointment of guardians and conservators, and for the

establishment of contested claims shall be triable in probate as law actions, and

all other matters triable in probate shall be tried by the probate court as a

proceeding in equity.” Iowa Code § 633.33. We find this action does not fall

within the categories triable at law, and therefore, shall be reviewed de novo.

III. Final Judgment

Leslee and Liz claim Judge Bitter’s May 4, 2015 order established a final

judgment and, therefore, Judge Ackley did not have the authority to approve a

final report contrary to Judge Bitter’s instructions. “Every final adjudication of any

of the rights of the parties in an action is a judgment.” Iowa R. Civ. P. 1.951. A

judgment is final if it is “one that conclusively determines the rights of the parties

and finally decides the controversy.” Franzen v. Deere & Co., 409 N.W.2d 672,

674 (Iowa 1987). Additionally, “the authority of the district court to decide

substantive issues in a particular case terminates when a final judgment is

entered and postjudgment motions have been resolved.” Id. We do note “[t]he

district court retains jurisdiction during and after appeal from its final judgment to

enforce the judgment itself.” Waterhouse v. Iowa Dist. Ct., 593 N.W.2d 141, 142

(Iowa 1999).
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Judge Bitter’s May 4, 2015 order resolved the three contested issues in

the case. The order further set the total fees for both the estate’s attorney and

the executor. Judge Bitter also ordered Logan to file an amended report in

accordance with the ruling. We find Judge Bitter entered a final judgment in the

case on May 4, 2015. Both Judge Bitter and Judge Ackley entered further orders

after the second hearing requiring Logan to comply with the May 4 order. The

order did require Logan to amend and file a final report, but we find this was

simply a statement that jurisdiction was retained for the purpose of enforcing the

judgment. Judge Bitter’s order conclusively determined the rights of the parties.

See Franzen, 409 N.W.2d at 674. Therefore, Judge Ackley did not have

authority to approve a final report that did not comply with the May 4, 2015 order.

Accordingly we reverse and remand.

REVERSED AND REMANDED.