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Estate of Heath

Docket No. 20230250
Oral Argument: Tuesday, December 5, 2023 9:30 AM

Docket Info

Title
In the Matter of the Estate of Viola J. Heath, Deceased

GayLe Schleve, Personal Representative and Appellant
and
Bill D. Tisher, Personal Representative
v.
Barbara Ressler, Candy Ash, Carol Hansell,
Charlys Schulenberg, Cody A. Schleve
, Debra Quarve,
Devyn S. Kukowski, Douglas Stull, Jane or
John Doe as trustee of the Randall and
Norma Heinz Trust dated June 11, 2020,
Jason Kukowski, Jeff Miller, Josh Kukowski,
Kami Jo Martinez, Kimberly Helsper, Kurt
Stull, Kyla Marie Mees, Layne Kreitinger,
Lea Marie Buss, The Estate of Leann Russell,
Lori Watts, Lynne A. Lammers, Merrill
Fahlstrom, Michael Kukowski, Randal Heinz
, Richard L. Schleve,
Robert R. Becker, Robert D. Hellen, Sandra Hanen,
Shari Hellen, Shawn D. Hellen, Sheryl Douglas,
Tanner C. Schleve, Tara Booth, Thomas Smith,
The Estate of Tracie Honeycutt ,
Trent Piseno, and Trevor Piseno Respondents
and
Wells Fargo Bank, N.A., Interested Party and Appellee
Case Type
CIVIL APPEAL : PROBATE - WILLS - TRUSTS
Appeal From
Case No. 2015-PR-00016
Southwest Judicial District, Dunn County
Dann Edward Greenwood
Oral Argument 12/5/2023

Parties' Statement of Issues

  • Appellant

    [¶ 2] Whether the District Court erred in finding Wells Fargo, N.A. had standing to dispute the District Court’s Order Establishing Proof of Authority of Domiciliary Foreign Personal Representative and Letters Testamentary in the Estate of Viola J. Heath.
    [¶ 3] Whether the District Court erred in finding Wells Fargo, N.A. had standing to dispute the District Court’s Order for Determination of Heirs and Successors in the Estate of Caleb C. Heath.
    [¶ 4] Whether the District Court erred when they found they lacked subject matter jurisdiction to issue the Order Establishing Proof of Authority of Domiciliary Foreign Personal Representative and Letters Testamentary.
    [¶ 5] Whether the District Court erred when they found Wells Fargo, N.A. brought their motions to vacate within a reasonable time under N.D.R.Civ.P 60(b).
    [¶ 6] Whether the District Court's finding that it was common knowledge that Wells Fargo, N.A. was a successor to Norwest Capital Management & Trust Co. is clearly erroneous since there was no evidence to support its findings.
    [¶ 7] Whether the District Court erred when they found Gayle Schleve failed to exercise reasonable diligence prior to providing notice by publication when seeking an Order for Determination of Heirs and Successors in the Estate of Caleb C. Heath.

  • Appellee 1

    1. Did the district court correctly find that Wells Fargo, the personal representative of Caleb Heath’s estate and trustee of his trust, of which Caleb’s minerals are a trust asset, had standing to:
    a. challenge orders in the ancillary proceeding that were used to try to convey title to those minerals, and,
    b. to challenge the order in the heirship proceeding that references title to the minerals?
    2. Did the district court correctly find that it lacked jurisdiction over the ancillary probate where the Montana court overseeing the primary probate had suspended its appointment of personal representatives and closed the probate two decades earlier?
    3. Did the district court correctly find that it lacked jurisdiction over Wells Fargo in the heirship case where the petitioner gave notice only by publication and did not explain what effort, if any, she made to identify Wells Fargo as an interested party?
    4. Did the district court correctly find that its order in the heirship case should be vacated because, in addition to the jurisdictional issue, doing so was justified by extraordinary circumstances?


Summary

Gayle Schleve appeals a district court order granting Wells Fargo’s motion vacating an order establishing the authority of domiciliary foreign personal representatives and letters of testamentary in the matter of the Estate of Viola J. Heath and vacating an order determining heirs and successors in the matter of the Estate of Caleb C. Heath.

Viola and Caleb Heath were residents of Montana who owned mineral rights in North Dakota. Caleb Heath executed a trust agreement and appointed Norwest Capital Management & Trust Co., which became Wells Fargo’s trustee. After the death of Viola Heath, Bill Tisher and Gayle Schleve were appointed co-personal representatives in Montana, which were later suspended. After this suspension, Schleve filed an ancillary probate in Dunn County for the Estate of Viola J. Heath and a petition to determine heirs and successors in Dunn County for the Estate of Caleb C. Heath. The district court granted the orders. Wells Fargo moved to vacate these orders, alleging the Montana personal representative appointment used as the basis for the auxiliary probate was inactive, and they were not provided notice. A subsequent motion hearing was held, and the court vacated the orders in favor of Wells Fargo.

On appeal, Schleve asserts the district court erred, first in finding Wells Fargo had standing to dispute these orders; secondly, in granting the motions to vacate both the order for domiciliary foreign personal representatives and the letters of testamentary after wrongfully determining the previous court lacked subject matter jurisdiction; thirdly, in granting the motion to vacate the order determining heirs and successors based on finding that it was common knowledge that Wells Fargo merged with Norwest and Schleve failed to exercise reasonable diligence before providing notice by publication; and fourthly, by finding Wells Fargo brought their motion to vacate within a reasonable time.


Briefs

Filing Date Description
08/31/2023 APPELLANT BRIEF View
10/20/2023 APPELLEE BRIEF View
11/01/2023 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Jon Bogner - 03468
APPELLEE PRIVATE PRACTICE Zachary Evan Pelham - 05904

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 07/25/2023 NOTICE OF APPEAL : 07/25/2023 View
2 07/27/2023 Rec'd filing fee for 20230250
3 07/31/2023 Rec'd filing fee for 20230251
4 08/01/2023 ORDER FOR TRANSCRIPT (Wells Fargo Bank, N.A.) : 08/02/2023 View
5 08/01/2023 This case is consolidated w/ 20230251. Make all entries except ROA, DIS, & MAN in this case.
6 08/02/2023 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV. View
7 08/02/2023 Notice served on Jon Bogner, Zachary E. Pelham, Joshua A. Swanson, & Jack M. Buck
8 08/29/2023 ELEC. RECORD ON APPEAL DATED AUGUST 28, 2023 (ENTRY NOS. 1-71)
9 08/31/2023 APPELLANT BRIEF View
10 08/31/2023 Oral Argument Request by Appellant
11 09/05/2023 Rec'd 3 copies of ATB from CSD
12 09/18/2023 MOT. EXT/TIME APPELLEE BRIEF (Wells Fargo Bank) View
13 09/18/2023 ACTION BY CLERK - Granted : 10/13/2023
14 10/06/2023 MOT. EXT/TIME TRANSCRIPT View
15 10/06/2023 ACTION BY TRIAL COURT - Granted : 10/13/2023
16 10/09/2023 SECOND MOT. EXT/TIME APPELLEE BRIEF (Wells Fargo Bank) View
17 10/09/2023 ACTION BY CLERK - Granted : 10/20/2023
18 10/13/2023 All Transcripts Filed in Record
19 10/16/2023 1ST ELEC. SUPP. RECORD ON APPEAL DATED OCTOBER 13, 2023 (ENTRY NOS. 72-75) View
20 10/20/2023 APPELLEE BRIEF View
21 10/20/2023 Oral Argument Request by Appellee
22 10/23/2023 Rec'd corrections to AEB
23 10/25/2023 Rec'd 3 copies of AEB from CSD
24 11/01/2023 REPLY BRIEF View
25 11/02/2023 Rec'd corrections to RYB
26 11/06/2023 Rec'd 3 copies of RYB from CSD
27 11/21/2023 NOTICE OF ORAL ARGUMENT SENT
28 12/05/2023 APPEARANCES: Jon Bogner; Zachary E. Pelham
29 12/05/2023 ARGUED: Jon Bogner; Zachary E. Pelham
30 12/05/2023 ORAL ARGUMENT WEBCAST