IN THE SUPREME COURT
STATE OF NORTH DAKOTA
In the Matter of the Curtiss A. Hogen Trust B, created under the Last Will
and Testament of Curtiss A. Hogen,
Steven C. Hogen, Co-Trustee,
Petitioner and Appellee,
Rodney Hogen, Co-Trustee,
Respondent and Appellant,
Supreme Court No. 20170090
Cass County District Court
Appeal from Interlocutory Orders
of the Cass County District Court,
East Central Judicial District,
Honorable Steven E. McCullough, Presiding
PETITIONER AND APPELLEE'S BRIEF
Sara K. Sorenson, ND ID #05826
OHNSTAD TWICHELL, P.C.
901 - 13th Avenue East
P.O. Box 458
West Fargo, ND 58078-0458
TEL (701) 282-3249
FAX (701) 282-0825
Attorney for Petitioner and Appellee
TABLE OF CONTENTS
TABLE OF AUTHORITIESii
STATEMENT OF THE ISSUES1
STATEMENT OF THE CASE4
STATEMENT OF THE FACTS9
I. This appeal from interlocutory orders concerning a trust under continuing judicial supervision should be dismissed becausethere has been no final judgment and no Rule 54(b) certification 10
II. The trial court correctly ruled that the co-trustees' administrative powers over trust assets, including real estate, remained in effect after the death of Arline Hogen.17
A. The statute of limitations does not bar Steven's causes of action against Rodney for Rodney's breaches of fiduciary duties30
B. Rodney, as 1 of 2 co-Trustees of the Trust, did not have the authority to distribute any Trust assets by himself32
C. Pre-death amounts are not barred by res judicata or collateral estoppel38
D. The district court's determination of the amount of the chose in action is not clearly erroneous42
E. The district court had the authority to order the land sold to pxay for Rodney's choses in action45
III. There were no ex parte communications and no interference with "judicial deliberations."46
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
City of Mandan v. Strata Corp., 2012 ND 173, 819 N.W.2d 55710
Estate of Brakke, 2017 ND 34, 890 N.W.2d 54913
Estate of Hogen, 2015 ND 125, 863 N.W.2d 8765, 39, 42
Estate of Sorensen, 406 N.W.2d 365 (N.D. 1987)15
Hall GMC, Inc. v. Crane Carrier Co., 332N.W.2d 54 (N.D. 1983)18
Hamel v. Hamel, 299 P.3d 278 (Kan. 2013)23
Hofsommer v. Hofsommer Excavating, Inc., 488N.W.2d 380 (N.D. 1992)38
Holkesvig v. Welte, 2012 ND 14, 809 N.W.2d 32348
In re Montgomery, 144N.W.2d 382 (N.D. 1966)21, 22
In re Pederson Trust, 2008 ND 210, 757 N.W.2d 74017
Kraft v. State Bd. of Nursing, 2001 ND 131, 631 N.W.2d 57247
Liporto v. Liporto, No. 12 Misc. 462221 KCL, 2012WL 5494612 (Mass. Land Ct. Nov. 13, 2012)32, 33
Loco Credit Union v. Reed, 516 P.2d 1112 (N.M. 1973)23
Matter of Estate of Starcher, 447 N.W.2d 293 (N.D. 1989)13
Matter of George Massad Trust, 277 N.W.2d 269 (N.D. 1979)21, 22
Matter of Mangnall, 1997 ND 19, 559N.W.2d 22112
Missouri Breaks, LLC v. Burns, 2010 ND 221, 791 N.W.2d 3341
Norberg v. Norberg, 2016 ND 98, 889N.W.2d 88941
North Dakota State Electrical Board v. Boren, 2008 ND 182, 756 N.W.2d 78415
Soefje v. Jones, 270 S.W.3d 617 (Tex. Ct. App. 2008)23
Storbeck v. Oriska Sch. Dist. No.13, 277 N.W.2d 130 (N.D. 1979)18
Union State Bank v. Woell, 357 N.W.2d 234 (N.D. 1984)12
N.D.C.C. ch. 30.1-1613
N.D.C.C. § 59-02-1135
N.D.C.C. § 59-02-1724
N.D.C.C. § 59-04-0212
N.D.C.C. § 59-10-01(2)12
N.D.C.C. § 59-12-1021
N.D.C.C. § 59-15-03(1)33, 35
N.D.C.C. § 59-15-03(5)35
N.D.C.C. ch. 59-1629
N.D.C.C. § 59-18-01(2)44, 45
N.D.C.C. § 59-18-0530
N.D.C.C. § 59-18-05(3)31
76Am.Jur.2d Trusts § 2818
76 Am.Jur.2d Trusts §3618
Bogert's The Law of Trust and Trustees § 1 (3d ed. 2009)19
Restatement (Second) of Trusts § 17 (1959)19
STATEMENT OF THE ISSUES
 Should this appeal from interlocutory orders concerning a trust under continuing judicial supervision be dismissed when there has been no final judgment and no Rule 54(b) certification?
 Did the trial court correctly rule that the co-trustees' administrative powers over trust assets, including real estate, remained in effect after the death of Arline Hogen?
 Do filings with the Clerk of Court, with service upon opposing counsel, constitute ex parte communications with the court?
STATEMENT OF THE CASE
 Curtiss Hogen (Curtiss) created the Curtiss A. Hogen Trust B (the Trust), by the Last Will and Testament of Curtiss A Hogen (the Will), which he executed in 1984. (App. p. 627). Curtiss died in 1993 and was survived by his wife Arline Hogen (Arline) and their two adult children, Steven and Rodney. (App.p.627). Curtiss owned several parcels of farmland at the time of his death. (App. p.627). Upon his death, an approximately one-half undivided interest of the farmland was placed into the Trust. (App. p. 627). Arline remained as the owner of the other one-half interest in the farmland. (App. p. 627). The income from the Trust was to be paid to Arline during her life. (App. p. 627). After her death, the Trust required the co-trustees to divide the corpus into equal shares and to distribute those shares to Curtiss's living children, Steven and Rodney. (App. p. 627). The Will appointed Steven and Rodney as co-trustees of the Trust. (App. p. 627).
 Arline died on March 23, 2007, and her Will equally devised her property to Steven and Rodney. (App. p. 627). In April 2007, Steven initiated an informal probate of Arline's Will, which eventually led to protracted litigation, including two appeals to this Court with a third appeal likely on the horizon. (App.pp.627-28). See Estate of Hogen, 2015 ND 125, 863 N.W.2d 876.
 Issues raised in the estate proceeding led to the initiation of this Trust action. (App. p. 628). On July 13, 2015, Steven filed his petition. (App. p. 628). The district court granted summary judgment on several issues, concluding that the Trust did not terminate upon Arline's death, that the statute of limitations did not bar Steven's petition, and that Rodney's deeding real property from the Trust were not ministerial acts but were discretionary acts that required Steven's consent. (App.p.628).
 A court trial was held to resolve other issues raised by Steven. (App.p.629). In an order dated March 7, 2017, the district court found several fiduciary breaches by Rodney in an amount totaling $305,961.65. (App. p. 653). Even though the district court reserved the issue of attorney fees for a later date (App. p. 653), Rodney served a notice of appeal just three days later in which he raised 39 issues. (App. p. 655-64).
 Rodney filed the notice of appeal (RodneyApp./655), despite the trial court's March 7, 2017, Order for supervised administration. Steven subsequently filed a motion to dismiss the appeal on the grounds the Orders appealed from were interlocutory in nature, and non-appealable without a Rule 54(b) certification. Sup.Ct.Dkt.#6. The Supreme Court later directed, by letter dated April 5, 2017, that the motion to dismiss will be heard and considered with the merits of the instant appeal. Sup.Ct.Dkt.#9.
STATEMENT OF THE FACTS
 The district court's Post-Trial Opinion and Order, reproduced at pages627 through 654 of Rodney's Appendix, sets out a thorough and accurate account of the factual background of this case. (App. pp. 627-39). In the interest of judicial economy, Steven adopts the district court's statement of facts and will not reproduce a statement of facts here. (App. pp. 627-39).
I. This appeal from interlocutory orders concerning a trust under continuing judicial supervision should be dismissed because there has been no final judgment and no Rule 54(b) certification.
 "Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable." City of Mandan v. Strata Corp., 2012 ND 173, ¶ 5, 819 N.W.2d 557 (quotation omitted). "Rule 54(b), N.D.R.Civ.P., preserves this Court's long-standing policy against piecemeal appeals in actions involving multiple claims or parties and authorizes a district court to expressly direct entry of a final judgment adjudicating fewer than all of the claims if the court expressly determines no just reason for delay exists." Id.
 Here, the district court did not render a Rule 54(b) certification for either of its March 7 Orders. (App. pp. 623, 627). The district court expressly reserved the issues of attorney fees and the Trustee's fee for a later date. (App.p.653). Additionally, Trust assets needed to be sold to pay mortgages and debts before a final distribution of the Trust assets could be made, all of which is subject to final approval of the district court. (Doc ID #420, ¶¶ 1-5). The March 7 Orders simply do not adjudicate all of the claims of the parties, are not final judgments, and therefore are not appealable without a Rule 54(b) certification. Forthis reason alone, the Court should dismiss this appeal for lack of jurisdiction.
 In addition, the district court ordered "that the administration of the Curtiss A. Hogen Trust B, as created under the Last Will and Testament of CurtissA. Hogen, will be under the continuing supervision of the Court." (Doc ID#159, ¶ 29). Section 59-10-01(2), N.D.C.C., provides, "A trust is not subject to continuing judicial supervision unless ordered by the court." Supervised administration is something that is probably more common in probate cases, but as indicated in N.D.C.C. §59-10-01(2), it can also be ordered in trust cases. This trust statute calls it "continuing judicial supervision." One of the benefits of "supervised administration" or "continuing judicial supervision" is the avoidance of "piecemeal litigation," meaning "piecemeal appeals." Matter of Mangnall is a case applying the predecessor trust statute to the current North Dakota Uniform Trust Code (the North Dakota Uniform Trust Code was adopted in North Dakota effective 8/1/07). 1997 ND 19, ¶¶15-18, 559N.W.2d 221. Matter of Mangnall explains:
Title 59, N.D.C.C., . . . outline[s] statutory provisions for Trusts. . . . A district court has jurisdiction over trust . . . proceedings. See N.D.C.C. . . . 59-04-02 (supervised administration of trusts in district court). . . .
* * *
The scope of a district court's authority . . . is broad enough for the court to decide all of a trustee's liabilities and responsibilities to the trust, . . . in a single, supervised administration proceeding.
* * *
We generally discourage piecemeal litigation. See, e.g., Union State Bank v. Woell, 357 N.W.2d 234, 237 (N.D. 1984) (N.D.R.Civ.P. 54(b) intended to avoid piecemeal appeals). . . . [W]e believe the district court should have decided all of the issues raised by the parties regarding . . . the Trust . . . in one proceeding.
Id. at ¶¶ 15, 16, 18.
 Simply put, "supervised administration" or "continuing judicial supervision" of a trust proceeding avoids piecemeal appeals, just as it does in probate proceedings. See N.D.C.C. ch. 30.1-16 (supervised administration of probate cases); Matter of Estate of Starcher, 447 N.W.2d 293, 296 (N.D. 1989) ("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 a Rule 54(b) certification."); see also Estate of Brakke, 2017 ND 34, ¶ 19, 890N.W.2d 549 (applying Uniform Probate Code to issue that Uniform Trust Code did not explicitly address).
 In this case, there has been no Rule 54(b) certification. Because the trust is under continuing court supervision, the district court's March 7 Orders are not final Orders adjudicating all of the claims of the parties and cannot be appealed without a Rule 54(b) certification.
 For these reasons, this Court must dismiss the instant appeal for lack of jurisdiction. See Estate of Sorensen, 406 N.W.2d 365, 365 (N.D. 1987) (dismissing appeal of interlocutory order in a supervised probate proceeding when no Rule 54(b) certification appeared of record); North Dakota State Electrical Board v. Boren, 2008ND 182, ¶ 4, 756 N.W.2d 784, 786 ("The right of appeal is governed solely by statute in this state, and without any statutory basis to hear an appeal, we must take notice of the lack of jurisdiction and dismiss the appeal.").
 Despite a strong belief this appeal should be dismissed, Steven will, asrequested by this Court, address the substantive issues raised by Rodney.
II. The trial court correctly ruled that the co-trustees' administrative powers over trust assets, including real estate, remained in effect after the death of Arline Hogen.
 Rodney argues that the Trust terminated upon Arline's death. "Whether a trust should be terminated is a mixed question of law and fact." In re Pederson Trust, 2008 ND 210, ¶ 17, 757 N.W.2d 740. "This Court reviews . . . mixed questions of law and fact under the de novo standard of review." Id.
 As noted above, the Trust is a testamentary trust, established upon Curtiss's death (in 1993) under and pursuant to Curtiss's Will. "In general, the rules for construction of written instruments apply to the interpretation of trusts, so that the meaning of a trust instrument is determined by the same rules that govern the interpretation of contracts, deeds, or wills." 76Am.Jur.2d Trusts § 28. "Indetermining what law was in force at the time a legal instrument such as a trust was executed, a court assumes that testators know and understand the meaning and effect of the terms used in a trust as defined under state law." 76 Am.Jur.2d Trusts §36. "A general principle of contract law is that existing law at the time of the formation of a contract becomes a part of the contract. E.g., Storbeck v. Oriska Sch. Dist. No.13, 277 N.W.2d 130 (N.D. 1979)." Hall GMC, Inc. v. Crane Carrier Co., 332N.W.2d 54, 62 (N.D. 1983). As set forth in N.D.C.C. §30.1-09-03, "[t]he intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions."
 A testator may create a trust as a means to dispose of property in his or her Will. See Restatement (Second) of Trusts § 17 (1959) ("A trust may be created by . . . a transfer by will by the owner of property to another person as trustee for a third person . . . ."). Curtiss created the Trust in his Will, which provided for his spouse, Arline, as the income beneficiary (during her life) and for his sons, Rodney and Steven, as the residuary beneficiaries. Id. at § 54 (describing the requirements to create a trust, including identifying beneficiaries); see also Bogert's The Law of Trust and Trustees § 1 (3d ed. 2009) (beneficiaries are those persons for whose benefit the trustee holds the trust property). As noted above, Curtiss's Will appointed Rodney and Steven as co-Trustees of the Trust.
 Also as noted above, in Article III, paragraph (3) of his Will, Curtissdirected the division of the Trust into equal separate shares for Rodney and Steven, after Arline's death, as follows:
Upon the death of . . . my said spouse . . ., my Trustee shall divide this Trust into equal separate shares so as to provide One (1) share for each then living child of mine. . . .
(App. p. 29). Then, after that division of the Trust into "equal separate shares so as to provide One (1) share for each then living child of mine" occurs, Curtiss then directed as follows in subparagraph (a) of ArticleIII, paragraph (3):
(a) Each share provided for a living child of mine shall be distributed to such child.
(App. p. 29).
 Rodney contends the provisions of the Trust are clear and unambiguous and specifically indicate that the Trust terminated upon Arline's death. Generally, under the North Dakota Uniform Trust Code enacted in 2007, "a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful or impossible to achieve." N.D.C.C. § 59-12-10. Rodney contends that Matter of George Massad Trust, 277 N.W.2d 269 (N.D. 1979), and In re Montgomery, 144N.W.2d 382 (N.D. 1966), stand for the proposition that all trusts cease when all the income beneficiaries die because the trusts in those cases terminated upon the income beneficiaries' death.
 Rodney's reliance on these cases is misplaced, and the cases are distinguishable. In Montgomery, the purpose of the particular trust in that case was found to be accomplished if the last beneficiary died within a 15-year time period. 144 N.W.2d at 385. Curtiss's Will does not call for the termination of the Trust upon Arline's death. To the contrary, it lacks any language indicating when the Trust terminates, and instead requires two distinct steps upon Arline's death: first, the co-Trustees must "divide this Trust into equal shares so as to provide One (1) share for each then living child of mine," and then second, after doing so, "[e]ach share provided for a living child of mine shall be distributed to such child." The North Dakota Supreme Court in Matter of George Massad Trust does not provide a recitation of the actual language contained in the Will at issue in that case, and so it carries no precedential value under the circumstances of this case. The Massad case merely says "the George Massad Trust terminated on Anna's death." 277N.W.2d at 272. Consequently, the Court should not rely upon either of these two cases in interpreting the Trust in Curtiss's Will.
 Moreover, other courts have stated that where a Will lacks express termination language, the trust does not terminate until another of the contingencies for terminating the trust, such as fulfilling the purpose of the trust, occurs. SeeHamel v. Hamel, 299 P.3d 278, 284-85 (Kan. 2013) (finding a Will which did not expressly call for the immediate termination of the trust at the settlor's death meant the trust existed until the purpose of the trust was satisfied); Soefje v. Jones, 270 S.W.3d 617, 630 (Tex. Ct. App. 2008) (finding that when a trust fails to specify a particular date or event for its termination, then the trust may terminate if "the purposes of the trust have been fulfilled"); Loco Credit Union v. Reed, 516 P.2d 1112, 1116 (N.M. 1973) ("Since the written instrument evidencing the trust's creation fails to show an agreement as to the date of the termination of the trust, it will continue until the trust purposes have been accomplished.").
 Finally, and most importantly, the controlling statute at the time Curtiss executed his Will on June 25, 1984, which was also the controlling statute at the time of Arline's death on March 23, 2007, was N.D.C.C. § 59-02-17, one of the trust statutes that was repealed with the adoption of the North Dakota Uniform Trust Code effective August 1, 2007. That statute, the former § 59-02-17, provided:
59-02-17. Trusts -- How terminated. A trust is extinguished by the entire fulfillment of its object or upon its object becoming impossible or unlawful.
Accordingly, the Court should construe the Trust provision in Curtiss's Will as writtenùi.e., as continuing the Trust until its express purposes are entirely fulfilled, not terminating the Trust immediately on Arline's death.
 Based upon the Trust language Curtiss included in his Will, the Trust had two purposes. The first purpose was to provide support for Arline during her lifetime through net income and discretionary principal payments. This purpose ceased upon Arline's death. The second purpose, however, remained unsatisfied at Arline's death, and that was (a) to "divide this Trust into equal separate shares so as to provide One (1) share for each then living child of mine," and then, after that happened, (b) "[e]ach share provided for a living child of mine shall be distributed to such child."
 Curtiss's Will does not provide a time line for when (a) the equal division, and (b)the subsequent distribution must occur. In this case, Steven sought court direction and approval with regard to a complete settlement (i.e., equal division, and then distribution) of the Trust in compliance with the Trust provisions of Curtiss's Will.
 Furthermore, after Arline's death in 2007 Rodney and Steven proceeded without exception with the operation of the Trust, pending an equal division. Oneexample of this occurred on May25, 2010, when both Rodney and Steven, as co-Trustees of the Trust, executed a farm lease agreement between the Trust and Dennis and Adele Smith for Barnes County farmland contained in the Trust. (SeeDoc. #22). Additionally, Rodney and Steven engaged in negotiations in 2008-2010 over farm rental rates for land which remained in the Trust. (SeeDoc.#10, #11, and #15).
 After Arline died, there was nothing in the Will that precluded Rodney and Steven, as co-Trustees, from dealing with property in the Trust before division of "this Trust into equal separate shares so as to provide One (1) [equal] share for each then living child of mine," before "[e]ach [equal] share provided for a living child of mine [could then] be distributed to such child." After Arline's death, division of the trust assets "into equal separate shares" remained undone. The Trust did not terminate upon Arline's death on March23, 2007; rather, it remained in existence and in operation.
 Several of Rodney's arguments, including arguments that Rodney did not breach any fiduciary duties after Arline's death, that Rodney's accounting should be limited to crop year 2007, and that Steven does not have standing to object for pre-death financial matters, are specious because the underlying premise for the arguments, that the Trust terminated on Arline's death, is wrong. The powers of Rodney and Steven as co-Trustees were not limited to "winding up powers" after Arline's death, and as a result, their powers and fiduciary duties according to N.D.C.C. chapter 59-16 remained intact. The district court correctly determined that the Trust did not terminate upon the death of Arline, and the decision should be affirmed.
A. The statute of limitations does not bar Steven's causes of action against Rodney for Rodney's breaches of fiduciary duties.
 Rodney asserts that the statute of limitations bars Steven's claims because of the Trust's termination. Steven sought redress for breaches of trust committed by Rodney while Rodney had been a co-trustee of the Trust since 2004. As explained below, the statute of limitations for such claims has not yet started to run. Pursuant to the North Dakota Uniform Trust Code, actions against trustees for breaches of trust are governed by N.D.C.C. § 59-18-05, which provides:
1. A beneficiary may not commence a proceeding against a trustee for breach of trust more than one year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary in the report or in a separate notice accompanying the report of the time allowed for commencing a proceeding.
2. A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence.
3. If subsection 1 does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within five years after whichever occurs first: the removal, resignation, or death of the trustee; the termination of the beneficiary's interest in the trust; or the termination of the trust.
N.D.C.C. § 59-18-05.
 Here, it is undisputed that subsection 3 applies because Rodney has never alleged that he provided any such report mentioned in subsections 1 and 2. Rodney's arguments regarding subsection 3 are without merit. That section provides that the five-year statute of limitations commences to run at the earliest of (1) "the removal, resignation, or death of the trustee," (2) "the termination of the beneficiary's interest in the trust," or (3) "the termination of the trust." N.D.C.C. § 59-18-05(3). The circumstances under the first and second contingencies do not apply because (a)the co-Trustees (Rodney and Steven) have not been removed, and neither of them has resigned, and neither of them has died, and (b) Steven's interest in the Trust has not been terminated. For the reasons set forth above, the third contingency also has not occurred because the Trustdid not terminate on Arline's death, but rather, still exists. As a result, the statute of limitations has yet to commence in this case, and Steven's causes of action for breach of fiduciary duty from 2004 to the present are not barred.
B. Rodney, as 1 of 2 co-Trustees of the Trust, did not have the authority to distribute any Trust assets by himself.
 Rodney argues that his purported "distributions" of Trust assets (i.e., deeding of Trust real property) were merely "ministerial acts" which did not need a majority vote of the co-Trustees. He contends both he and Steven were required to expeditiously distribute the trust assets upon Arline's death, and Rodney only took actions to fulfill that duty. Rodney relies upon Liporto v. Liporto, No. 12 Misc. 462221 KCL, 2012WL 5494612 (Mass. Land Ct. Nov. 13, 2012), to support his contention.
 Rodney's reliance on Liporto is misplaced. Liporto, an unpublished, non-binding Massachusetts land court case, stated "[t]he distribution of the Trust property does not require any majority vote of the co-trustees; it is, as plaintiffs contend, a ministerial act." Id. at *4. As explained below, North Dakota law requires co-trustees to act by unanimous or majority decision and makes no exception for ministerial acts, N.D.C.C. § 59-15-03(1), even assuming the act was ministerial, which the district court found it was not. (App. p. 88).
 In this matter, although Rodney and Steven operated as co-Trustees of the Trust after Arline's death, Rodney unilaterally executed and recorded deeds for Trust propertyùwithout the joinder or consent of Steven. Doc. #6 and #7 in this case establish that Rodney was the sole grantor in deeds of the property, and the quit claim deeds bear only his signature, and not Steven's. In purporting to distribute the property without Steven's joinder or consent, Rodney failed to act by way of unanimous vote or majority decision. Consequently, he acted without authority to transfer this property and his actions amounted to an impermissible use of his power as a co-Trustee. The deeds were invalid and void as the district court held.
 Moreover, as of August 1, 2007, North Dakota follows the provisions of the Uniform Trust Code. Section 59-15-03(1) of the North Dakota Century Code provides only two options for co-trustees to act: (a)through a unanimous decision, or (b) by majority decision. The statute also recognizes delegation of duties, but it makes no exception that delegation may be done without a unanimous decision or by a majority vote. N.D.C.C. § 59-15-03(5).1
 Also, Rodney's assertion that he was fulfilling his duty to expeditiously distribute the trust property to himself and Steven is disingenuous. First, Rodney asserts the trust terminated on March 23, 2007 (the date of Arline's death), but he did not execute the quit claim deeds until 2014, over seven years later. Second, Rodney transferred the property after entry of the Court's order in Arline's Estate ruling that Rodney owed money to the estate for a failure to fully pay rent and for his overpayment of expenses out of his mother's assets, and that such indebtedness would be offset against Rodney's share of the Estate. Since the issues presented in this matter mirror to a large extent those of the estate matter, it is transparent Rodney was attempting to thwart his repayment to the Trust of amounts owing the Trust when he made the purported distribution.
 Finally, Rodney and his so-called "distribution" jumped the gun, because there had been no "division" of "the Trust into equal separate shares so as to provide One (1) share for each then living child" of Curtiss. As the district court found, it is apparent a sale of Trust farmland is necessary to pay Rodney's loans from Farm Credit Services, which are now in default. (App. 624-25).
C. Pre-death amounts are not barred by res judicata or collateral estoppel.
 Rodney argues amounts claimed for crop years 2004-2006 and pre-death purloined amounts (i.e., the damages for his breach of fiduciary duty) are barred by res judicata or collateral estoppel. "The applicability of res judicata or collateral estoppel is a question of law." Hofsommer v. Hofsommer Excavating, Inc., 488N.W.2d 380, 383 (N.D. 1992).
 The problem with Rodney's argument is that in the Estate matter, the court never reached the issue of damages with regard to the crop years 2004 through 2006 because it held that with regard to the rent owed her, individually, Arline Hogen waived her right to seek such damages by agreeing that the rent paid to her was sufficient to satisfy Rodney's contract with her. Estate of Hogen, 2015 ND 125, ¶ 43, 863 N.W.2d 876 ("The court explained that what Rodney Hogen deemed reconciled over the course of the parties' contractual relationship was Arline Hogen agreeing that his reconciliations were sufficient to satisfy his contractual obligations.").
 Unlike the Estate claim for pre-death rents, where the rent was owed to Arline, the Trust claim for pre-death rents is for rent owed the Trust. There was no waiver by the Trust of amounts owed the Trust for rents prior to the death of Arline, and this claim was therefore properly decided on the merits by the district court.
 The Court in the Estate matter never reached the issue of damages with regard to the breach of contract claim for pre-death rents owing Arline Hogen, and therefore neither res judicata nor collateral estoppel can apply to bar damages with regard to the pre-death rents owing the Trust. See Norberg v. Norberg, 2016 ND 98, ¶ 11, 889N.W.2d 889 ("[C]ollateral estoppel may apply to bar the relitigation of factual and legal issues that were already established in an earlier . . . proceeding."); Missouri Breaks, LLC v. Burns, 2010 ND 221, ¶ 12, 791 N.W.2d 33 (requiring a final decision on the merits for the application of res judicata).
D. The district court's determination of the amount of the chose in action is not clearly erroneous.
 In a conclusory fashion, Rodney contends "[t]he lower court errs by accepting Steven's flawed mathematical formula to determine the Trust's share of crop inputs for 2004 through 2008 . . . [because] Rodney's tax returns reflect only 2/3 of the input costs for the land." (Appellant's Br. ¶ 80.) This is incorrect. As explained in further detail in Steven Hogen's post-trial brief, for the years 2004 through 2006, Rodney contended that he paid all input costs on the Cass County farmland (including the Trust's and Estate's share of the inputs) in exchange for not paying rent on the Barnes County farmland. (Doc. ID #389, ¶¶ 57-66); see also Estate of Hogen, 2015ND 125, ¶ 42, 863 N.W.2d 876. Accordingly, calculated total input costs for the crop share acres for those years does include all input costs incurred and is appropriately divided by 6 to determine the Trust's 1/6 share. With regard to 2007 and 2008, Rodney testified that the Trust also paid input costs as reflected on its tax return. (Court Trial Tr. Vol. II, pp. 140-42). Therefore, all input costs (those on Rodney's return and those on the Trust's return) were used to arrive at the calculated total input costs for the crop share acres and divided by 6 to reach the Trust's 1/6 share for those years. (Doc. ID #389, ¶¶ 63-66; Doc. ID #394).
 Rodney also contends that the trial court erred when it failed to take into account the hail insurance proceeds the Trust received. (Appellant's Br. ¶ 81). This objection has no bearing on the calculation of the amount owing. As set forth in Bradley's expert report, the amount for rent is based on calculations from crop sales. (Doc. ID #347). The insurance proceeds would reflect amounts for crop loss, and as set forth in the exhibit offered by Rodney, the insurance proceeds were divided among Rodney Hogen, the Estate, and the Trust. Accordingly, the insurance proceeds have no bearing on Bradley's calculation relating to amounts owing as a result of crop sales. (Id.).
 Steven agrees with Rodney's assertion that the district court erred in its determination of the interest charged to Rodney. (Appellant's Br. ¶ 82). Steven will ask the district court to rectify this error when he submits a final accounting. Rodney also claims the amount of rent shorted the trust should be based on his profits from failing to pay rent. As stated above, the Court can fashion any remedy it chooses for a breach of fiduciary duty. N.D.C.C. § 59-18-01(2). Rodney also claims he should be credited for mortgage payments he made on his personal loans secured by Trust property. Rodney should not get a credit for making payments that benefit him. Thedistrict court did not err.
E. The district court had the authority to order the land sold to pay for Rodney's choses in action.
 Rodney argues that the district court erroneously authorized the sale of the land to pay for Rodney's choses in action. But breaches of duty by Rodney may be rectified in any number of ways under N.D.C.C. § 59-18-01(2), including "impos[ing] a lien on trust property" and "compel[ling] the trustee to redress a breach of trust by paying money, restoring property, or other means[.]" See N.D.C.C. §59-18-01(2). This statute gave the district court broad authority to redress Rodney's breach of duty, including the authority to order the sale of land, which was the only sufficient trust asset which could be liquidated for the purpose.
III. There were no ex parte communications and no interference with "judicial deliberations."
 Rodney argues that the district court was not impartial because of alleged ex parte communications and alleged interference with "judicial deliberations" by Steven's counsel.
 Ex parte communications are defined as "without notice and opportunity for all parties to participate in the communication." Kraft v. State Bd. of Nursing, 2001 ND 131, ¶ 44, 631 N.W.2d 572 (quotation omitted). None of the communication between Steven's counsel and the district court was ex parte because Rodney's counsel was contemporaneously emailed via Odyssey every document that was filed with the court. (See, e.g., App. pp. 81, 138, 141). Rodney's counsel therefore had notice of every communication with the court and could have filed whatever response he wanted.
 Rodney takes issue with the fact that Steven's counsel made filings with the district court while the case was under advisement, but he cites no rule prohibiting a party from making filings with a court while a matter is under advisement. Rodney contends that the district court was not impartial by pointing to several adverse rulings. "But adverse rulings alone are not evidence of judicial bias or partiality." Holkesvig v. Welte, 2012 ND 14, ¶ 7, 809 N.W.2d 323.
 Rodney had notice of every communication with the district court and an opportunity to respond. Nothing in the record demonstrates that the district court was not impartial. Rodney's arguments are entirely without merit.
 Rodney's appeal should be dismissed as premature. If the Court reaches the merits, many of Rodney's arguments are premised on the false notion that the Trust terminated upon Arline Hogen's death. The terms of the Trust demonstrate that it did not terminate immediately upon Arline's death. Rodney's other contentions concerning the Trust and alleged ex parte communications are without merit. Except with regard to the minor issue regarding interest charged on unpaid rents, the district court should be affirmed in all respects.
Dated: June 30, 2017.
/s/ Sara K. Sorenson
Sara K. Sorenson, ND ID #05826
OHNSTAD TWICHELL, P.C.
901 - 13th Avenue East
P.O. Box 458
West Fargo, ND 58078-0458
TEL (701) 282-3249
FAX (701) 282-0825
Attorney for Petitioner and Appellee