Estate of Fisk
In the Matter of the Estate of Mary Ann Fisk, Deceased.
North Dakota Department of
Human Services, Petitioner and Appellant
Royce S. Fisk as Personal
Representative of the Estate
of Mary Ann Fisk, deceased, Respondent and Appellee
North Central Judicial District,
Judge Richard L. Hagar
|Nature of Action:||Probate - Wills - Trusts|
|Term:||09/2010  Argument: 09/08/2010 1:30pm|
|ND cite:||2010 ND 186 2010 ND 64|
788 N.W.2d 611 780 N.W.2d 697
Listen to recording of oral argument in MP3 format
Listen to recording of second oral argument
Appellant's Statement of the Issues:|
1. The District Court determined that payment of funeral expenses totaling $6,206.25 has a priority over the Department's claim for repayment of medical assistance furnished to the decedent's late spouse. The issue is whether the District Court erred in this determination.
2. The District Court determined that the fees proposed to be paid to the personal representative were not unreasonable. The issue is whether this determination was supported by the facts and the law.
3. The District Court approved without comment, and as a part of the personal representative's fee, amounts paid to an attorney although there is no record of any activity undertaken by that attorney for the benefit of the estate. The issue is whether these attorney fees were properly approved.
4. The personal representative acknowledged paying certain decedent's debts owed to creditors with claims junior to the Department's claim. The District Court made no determination approving or disapproving this acknowledgment, although the personal representative's inventory discloses no funds from which the junior claims could have been paid, and the personal representative's final accounting discloses no payment. The issue is whether a determination was required by the facts and the law.
APPELLANT'S BRIEF ON REHEARING
1.The District Court did not apply N.D.C.C. 50-24.1-07(1) to determine claim priorities in this insolvent estate with a claim for repayment of medical assistance furnished to the decedent's late spouse. The issue is whether the District Court applied the wrong statute in this determination.
2.The District Court determined that the fees proposed to be paid to the personal representative were not unreasonable. The issue is whether the District Court made clearly erroneous findings unsupported by any facts in the record and ignored statutes requiring the personal representative to act as a fiduciary.
3.The District Court approved without comment, and as a part of the personal representative's fee, amounts paid to an attorney by the personal representative. The issue is whether the District Court abused its discretion in approving these attorney fees when there is no evidence in the record of any activity undertaken by that attorney for the benefit of the estate.
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|1||05/20/2009||NOTICE OF APPEAL: 05/19/2009|
|2||06/24/2009||RECORD ON APPEAL|
|5||06/29/2009||DISK - ATB (e-mailed)|
|6||07/27/2009||MOT. EXT/TIME APPELLEE BRIEF|
|7||07/27/2009||ACTION BY CLERK (MAE). Granted: 08/29/2009|
|8||08/31/2009||APPELLEE BRIEF (e-filed)|
|9||08/31/2009||E-FILED BRIEF (AEB)|
|10||09/01/2009||Received $25 surcharge for AEB (Receipt #18981)|
|11||09/08/2009||Received 7 copies of AEB from Central Duplicating|
|14||10/20/2009||NOTICE OF ORAL ARGUMENT SENT|
|15||11/09/2009||APPEARANCES: Blaine L. Nordwall/Carol K. Larson|
|17||11/09/2009||ORAL ARGUMENT WEBCAST|
|18||04/06/2010||INTERIM DISPOSITION (AFFIRMED IN PART, REVERSED IN PART, AND REMANDED)|
|19||04/06/2010||SPLIT OPINION: Kapsner, Carol Ronning|
|20||04/06/2010||(CONCURRING IN PART AND DISSENTING IN PART): Maring, Mary Muehlen: CON/DIS|
|21||04/06/2010||(JOINED CONCURRING AND DISSENTING): VandeWalle, Gerald W.: JN/CON|
|22||04/06/2010||Costs on appeal not taxed against either party under Rule 39, N.D.R.App.P.|
|23||04/07/2010||Judgment Sent to Parties|
|24||04/19/2010||PETITION FOR REHEARING & Addendum|
|25||04/19/2010||DISK - PER (e-mailed)|
|26||05/11/2010||ACTION BY SUPREME COURT (Petition for Rehearing Granted). Granted|
|27||05/11/2010||The Court directed that the matter be re-briefed|
|28||05/11/2010||MOT. EXT/TIME APPELLANT BRIEF (sua sponte)|
|29||05/11/2010||ACTION BY CLERK. Granted: 06/21/2010|
|30||06/21/2010||APPELLANT BRIEF ON REHEARING|
|32||07/02/2010||MOT. EXT/TIME APPELLEE BRIEF|
|33||07/02/2010||ACTION BY CLERK. Granted: 08/20/2010|
|34||07/28/2010||NOTICE OF ORAL ARGUMENT SENT|
|35||08/19/2010||APPELLEE BRIEF ON REHEARING (E-FILED)|
|36||08/19/2010||E-FILED BRIEF (AEB ON REHEARING)|
|37||09/01/2010||REPLY BRIEF ON REHEARING|
|39||09/08/2010||APPEARANCES: Blaine L. Nordwall, Spec. Asst. Atty. Gen./Carol K. Larson|
|40||09/08/2010||ARGUED: Nordwall; Larson|
|41||09/08/2010||ORAL ARGUMENT WEBCAST|
|42||09/21/2010||DISPOSITION (and Remanded): AFFIRMED/PT, REVERSED/PT|
|43||09/21/2010||SPLIT OPINION: Kapsner, Carol Ronning|
|44||09/21/2010||(CONCURRING IN PART AND DISSENTING IN PART): Maring, Mary Muehlen: CON/DIS|
|45||09/21/2010||(JOIN CONCURRING IN PART AND DISSENTING IN PART): VandeWalle, Gerald W.: JN/CON|
|46||09/21/2010||At court's direction, no costs will be taxed|
|47||09/22/2010||Judgment Sent to Parties|
|49||10/14/2010||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|