Estate of Heath
- In the Matter of the Estate of Viola J. Heath, Deceased
GayLe Schleve, Personal Representative and Appellant
Bill D. Tisher, Personal Representative
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
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
Parties' Statement of Issues
[¶ 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.
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?
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.
(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)|
|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|
|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|
|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|