Estate of Fisk

20090157 In the Matter of the Estate of Mary Ann Fisk, Deceased.
-------------------------------------------------------
North Dakota Department of
Human Services, Petitioner and Appellant
v.
Royce S. Fisk as Personal
Representative of the Estate
of Mary Ann Fisk, deceased, Respondent and Appellee

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Richard L. Hagar
Nature of Action: Probate - Wills - Trusts
Counsel:
Appellant: Blaine L. Nordwall , Spec. Asst. Atty. Gen.
Appellee: Carol K. Larson
Term: 09/2010   Argument: 09/08/2010  1:30pm
ND cite: 2010 ND 186 2010 ND 64
NW cite: 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

Issues: 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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Docket entries:
105/20/2009 NOTICE OF APPEAL: 05/19/2009
206/24/2009 RECORD ON APPEAL
306/29/2009 APPELLANT BRIEF
406/29/2009 APPELLANT APPENDIX
506/29/2009 DISK - ATB (e-mailed)
607/27/2009 MOT. EXT/TIME APPELLEE BRIEF
707/27/2009 ACTION BY CLERK (MAE). Granted: 08/29/2009
808/31/2009 APPELLEE BRIEF (e-filed)
908/31/2009 E-FILED BRIEF (AEB)
1009/01/2009 Received $25 surcharge for AEB (Receipt #18981)
1109/08/2009 Received 7 copies of AEB from Central Duplicating
1209/15/2009 REPLY BRIEF
1309/15/2009 DISK-RYB (E-MAILED)
1410/20/2009 NOTICE OF ORAL ARGUMENT SENT
1511/09/2009 APPEARANCES: Blaine L. Nordwall/Carol K. Larson
1611/09/2009 ARGUED: Nordwall/Larson
1711/09/2009 ORAL ARGUMENT WEBCAST
1804/06/2010 INTERIM DISPOSITION (AFFIRMED IN PART, REVERSED IN PART, AND REMANDED)
1904/06/2010 SPLIT OPINION: Kapsner, Carol Ronning
2004/06/2010 (CONCURRING IN PART AND DISSENTING IN PART): Maring, Mary Muehlen: CON/DIS
2104/06/2010 (JOINED CONCURRING AND DISSENTING): VandeWalle, Gerald W.: JN/CON
2204/06/2010 Costs on appeal not taxed against either party under Rule 39, N.D.R.App.P.
2304/07/2010 Judgment Sent to Parties
2404/19/2010 PETITION FOR REHEARING & Addendum
2504/19/2010 DISK - PER (e-mailed)
2605/11/2010 ACTION BY SUPREME COURT (Petition for Rehearing Granted). Granted
2705/11/2010 The Court directed that the matter be re-briefed
2805/11/2010 MOT. EXT/TIME APPELLANT BRIEF (sua sponte)
2905/11/2010 ACTION BY CLERK. Granted: 06/21/2010
3006/21/2010 APPELLANT BRIEF ON REHEARING
3106/21/2010 DISK-ATB (E-MAILED)
3207/02/2010 MOT. EXT/TIME APPELLEE BRIEF
3307/02/2010 ACTION BY CLERK. Granted: 08/20/2010
3407/28/2010 NOTICE OF ORAL ARGUMENT SENT
3508/19/2010 APPELLEE BRIEF ON REHEARING (E-FILED)
3608/19/2010 E-FILED BRIEF (AEB ON REHEARING)
3709/01/2010 REPLY BRIEF ON REHEARING
3809/01/2010 DISK-RYB (E-MAILED)
3909/08/2010 APPEARANCES: Blaine L. Nordwall, Spec. Asst. Atty. Gen./Carol K. Larson
4009/08/2010 ARGUED: Nordwall; Larson
4109/08/2010 ORAL ARGUMENT WEBCAST
4209/21/2010 DISPOSITION (and Remanded): AFFIRMED/PT, REVERSED/PT
4309/21/2010 SPLIT OPINION: Kapsner, Carol Ronning
4409/21/2010 (CONCURRING IN PART AND DISSENTING IN PART): Maring, Mary Muehlen: CON/DIS
4509/21/2010 (JOIN CONCURRING IN PART AND DISSENTING IN PART): VandeWalle, Gerald W.: JN/CON
4609/21/2010 At court's direction, no costs will be taxed
4709/22/2010 Judgment Sent to Parties
4810/13/2010 MANDATE
4910/14/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 10/20/2014