#30590, #30604-dismiss-MES 2024 S.D. 55
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
IN THE MATTER OF THE ESTATE OF FRED AGER, Deceased. ****
ORIGINAL PROCEEDING
ERIC SCHLIMGEN SPENCER R. PROSEN of Schlimgen Law Firm Spearfish, South Dakota Attorneys for appellant Linda Ager Coyle.
ERIN MELLING of Melling & Roseland Law, P.C. Belle Fourche, South Dakota
RICHARD A. PLUIMER Spearfish, South Dakota Attorneys for appellee Arlene Ager.
CONSIDERED ON BRIEFS MAY 10, 2024 OPINION FILED 09/04/24 #30590, #30604
SALTER, Justice
[¶1.] The circuit court denied a personal representative’s motion for
confirmation of a specific devise. She filed a notice of appeal, and we issued an
order directing the parties to address the question of appellate jurisdiction. After
briefing, we stayed consideration of the merits pending our resolution of the
jurisdictional issue. We now dismiss the appeal for lack of jurisdiction.
Factual and Procedural Background
[¶2.] Linda Ager Coyle is the personal representative of the estate of Fred
Ager. Initially, administration of the estate was unsupervised, but on August 24,
2023, Fred’s wife and beneficiary, Arlene Ager, filed a petition for supervised
administration. Shortly after, on September 5, Linda filed a motion for
confirmation of a specific devise relating to the proceeds of a sale of storage units
Fred had owned and sold prior to his death. As written, Fred’s will directed the
units be given, in equal shares, to his children, Linda and Jeff, subject to a life
estate interest in one-half of the net rental income to Arlene. 1
[¶3.] The circuit court held a hearing on both motions at which the parties
stipulated to supervised administration. On October 12, 2023, the court entered an
order granting Arlene’s motion for supervised administration. Approximately two
months later, on December 8, the court denied Linda’s motion for confirmation of
the specific devise.
1. Linda and Jeff are Fred’s children from a previous marriage. -1- #30590, #30604
[¶4.] Linda filed a notice of appeal challenging the circuit court’s denial of
her motion. Arlene, in turn, filed a notice of review seeking review of the court’s
earlier decision denying her motion to remove Linda as the personal representative.
[¶5.] We issued an order to show cause that directed both parties to submit
briefs addressing whether the order denying the motion to confirm a specific devise
was appealable. Linda asserts it is, and, in her response, she cites our decision in
In re Estate of Geier, 2012 S.D. 2, ¶ 15, 809 N.W.2d 355, 359, where we held that
each proceeding in an unsupervised administration is a final order. Because her
motion was filed while the estate was still unsupervised, Linda argues that it
remained a separate Geier-type proceeding, meaning the order denying it was
appealable despite the fact that it was signed and entered well after the
administration of the estate became supervised. Arlene disagrees. She asserts the
December 8 order is not final and concedes that her notice of review issue is also not
subject to review.
Analysis
[¶6.] Our appellate jurisdiction is never “presumed but must affirmatively
appear from the record.” Johnson v. Lebert Constr., Inc., 2007 S.D. 74, ¶ 4, 736
N.W.2d 878, 879 (quoting Double Diamond Constr. v. Farmers Coop. Elevator, 2003
S.D. 9, ¶ 6, 656 N.W.2d 744, 746). For this reason, we may properly raise the
question of our authority to exercise appellate review even when the parties have
not identified a jurisdictional issue. Id.
[¶7.] The jurisdictional issue we have identified here is one of first
impression, but it is closely related to a familiar topical area. For unsupervised
-2- #30590, #30604
probate actions, we recently held “that a single action can contain multiple, discrete
‘proceeding[s],’ each of which results in a final order.” In re Estate of Smeenk, 2024
S.D. 23, ¶ 23, 6 N.W.3d 250, 255 (quoting In re Estate of Petrik, 2021 S.D. 49, ¶ 17,
963 N.W.2d 766, 770 (citing Geier, 2012 S.D. 2, ¶ 13, 809 N.W.2d at 359)). Our
decisions in the Geier line of cases are based upon specific text in SDCL 29A-3-107,
which states that “each proceeding before the court or clerk is independent of any
other proceeding involving the same estate; and petitions for formal orders of the
court may combine various requests for relief in a single proceeding if the orders
sought may be finally granted without delay.”
[¶8.] However, the text of SDCL 29A-3-501 relating to supervised probate
actions, like this one, is different:
Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent’s estate under the continuing authority of the court, which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding.
(Emphasis added.)
[¶9.] The contrast between this “single in rem proceeding” text and the
language of SDCL 29A-3-107 authorizing multiple, independent proceedings is
apparent. But, beyond this, SDCL 29A-3-107 also contains a subordinate clause
which specifically conditions its applicability on the absence of a supervised probate
action. See SDCL 29A-3-107 (“Unless supervised administration as described in
Part 5 is involved, . . . .”).
[¶10.] We noted these textual distinctions between SDCL 29A-3-501 and
SDCL 29A-3-107 earlier this year in Smeenk. 2024 S.D. 23, ¶ 23 n.7, 6 N.W.3d at
-3- #30590, #30604
255 n.7. However, we stopped short of “express[ing] an opinion on whether the
Geier final order rule applies to orders made within a supervised probate action.”
Id.
[¶11.] Here, however, this question is squarely presented, and we now hold
that a decision made prior to a final order terminating a supervised probate action
is not governed by Geier’s individual proceeding finality rule. This conclusion
necessarily follows from the key textual differences between the unambiguous
provisions of SDCL 29A-3-107 and SDCL 29A-3-501 described above. See Healy
Ranch, Inc. v. Healy, 2022 S.D. 43, ¶ 29, 978 N.W.2d 786, 795 (“When the language
in a statute is clear, certain, and unambiguous, there is no reason for construction,
and this Court’s only function is to declare the meaning of the statute as clearly
expressed.” (citation omitted)).
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#30590, #30604-dismiss-MES 2024 S.D. 55
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
IN THE MATTER OF THE ESTATE OF FRED AGER, Deceased. ****
ORIGINAL PROCEEDING
ERIC SCHLIMGEN SPENCER R. PROSEN of Schlimgen Law Firm Spearfish, South Dakota Attorneys for appellant Linda Ager Coyle.
ERIN MELLING of Melling & Roseland Law, P.C. Belle Fourche, South Dakota
RICHARD A. PLUIMER Spearfish, South Dakota Attorneys for appellee Arlene Ager.
CONSIDERED ON BRIEFS MAY 10, 2024 OPINION FILED 09/04/24 #30590, #30604
SALTER, Justice
[¶1.] The circuit court denied a personal representative’s motion for
confirmation of a specific devise. She filed a notice of appeal, and we issued an
order directing the parties to address the question of appellate jurisdiction. After
briefing, we stayed consideration of the merits pending our resolution of the
jurisdictional issue. We now dismiss the appeal for lack of jurisdiction.
Factual and Procedural Background
[¶2.] Linda Ager Coyle is the personal representative of the estate of Fred
Ager. Initially, administration of the estate was unsupervised, but on August 24,
2023, Fred’s wife and beneficiary, Arlene Ager, filed a petition for supervised
administration. Shortly after, on September 5, Linda filed a motion for
confirmation of a specific devise relating to the proceeds of a sale of storage units
Fred had owned and sold prior to his death. As written, Fred’s will directed the
units be given, in equal shares, to his children, Linda and Jeff, subject to a life
estate interest in one-half of the net rental income to Arlene. 1
[¶3.] The circuit court held a hearing on both motions at which the parties
stipulated to supervised administration. On October 12, 2023, the court entered an
order granting Arlene’s motion for supervised administration. Approximately two
months later, on December 8, the court denied Linda’s motion for confirmation of
the specific devise.
1. Linda and Jeff are Fred’s children from a previous marriage. -1- #30590, #30604
[¶4.] Linda filed a notice of appeal challenging the circuit court’s denial of
her motion. Arlene, in turn, filed a notice of review seeking review of the court’s
earlier decision denying her motion to remove Linda as the personal representative.
[¶5.] We issued an order to show cause that directed both parties to submit
briefs addressing whether the order denying the motion to confirm a specific devise
was appealable. Linda asserts it is, and, in her response, she cites our decision in
In re Estate of Geier, 2012 S.D. 2, ¶ 15, 809 N.W.2d 355, 359, where we held that
each proceeding in an unsupervised administration is a final order. Because her
motion was filed while the estate was still unsupervised, Linda argues that it
remained a separate Geier-type proceeding, meaning the order denying it was
appealable despite the fact that it was signed and entered well after the
administration of the estate became supervised. Arlene disagrees. She asserts the
December 8 order is not final and concedes that her notice of review issue is also not
subject to review.
Analysis
[¶6.] Our appellate jurisdiction is never “presumed but must affirmatively
appear from the record.” Johnson v. Lebert Constr., Inc., 2007 S.D. 74, ¶ 4, 736
N.W.2d 878, 879 (quoting Double Diamond Constr. v. Farmers Coop. Elevator, 2003
S.D. 9, ¶ 6, 656 N.W.2d 744, 746). For this reason, we may properly raise the
question of our authority to exercise appellate review even when the parties have
not identified a jurisdictional issue. Id.
[¶7.] The jurisdictional issue we have identified here is one of first
impression, but it is closely related to a familiar topical area. For unsupervised
-2- #30590, #30604
probate actions, we recently held “that a single action can contain multiple, discrete
‘proceeding[s],’ each of which results in a final order.” In re Estate of Smeenk, 2024
S.D. 23, ¶ 23, 6 N.W.3d 250, 255 (quoting In re Estate of Petrik, 2021 S.D. 49, ¶ 17,
963 N.W.2d 766, 770 (citing Geier, 2012 S.D. 2, ¶ 13, 809 N.W.2d at 359)). Our
decisions in the Geier line of cases are based upon specific text in SDCL 29A-3-107,
which states that “each proceeding before the court or clerk is independent of any
other proceeding involving the same estate; and petitions for formal orders of the
court may combine various requests for relief in a single proceeding if the orders
sought may be finally granted without delay.”
[¶8.] However, the text of SDCL 29A-3-501 relating to supervised probate
actions, like this one, is different:
Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent’s estate under the continuing authority of the court, which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding.
(Emphasis added.)
[¶9.] The contrast between this “single in rem proceeding” text and the
language of SDCL 29A-3-107 authorizing multiple, independent proceedings is
apparent. But, beyond this, SDCL 29A-3-107 also contains a subordinate clause
which specifically conditions its applicability on the absence of a supervised probate
action. See SDCL 29A-3-107 (“Unless supervised administration as described in
Part 5 is involved, . . . .”).
[¶10.] We noted these textual distinctions between SDCL 29A-3-501 and
SDCL 29A-3-107 earlier this year in Smeenk. 2024 S.D. 23, ¶ 23 n.7, 6 N.W.3d at
-3- #30590, #30604
255 n.7. However, we stopped short of “express[ing] an opinion on whether the
Geier final order rule applies to orders made within a supervised probate action.”
Id.
[¶11.] Here, however, this question is squarely presented, and we now hold
that a decision made prior to a final order terminating a supervised probate action
is not governed by Geier’s individual proceeding finality rule. This conclusion
necessarily follows from the key textual differences between the unambiguous
provisions of SDCL 29A-3-107 and SDCL 29A-3-501 described above. See Healy
Ranch, Inc. v. Healy, 2022 S.D. 43, ¶ 29, 978 N.W.2d 786, 795 (“When the language
in a statute is clear, certain, and unambiguous, there is no reason for construction,
and this Court’s only function is to declare the meaning of the statute as clearly
expressed.” (citation omitted)). The North Dakota Supreme Court reached the same
result based upon its comparable, Uniform Probate Code-based statutes. See In re
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.”).
[¶12.] But even with this rule for supervised probate actions, the resolution
of the specific jurisdictional question here requires us to consider a peculiar factual
feature. The resolution of Linda’s motion straddles the temporal line between
unsupervised to supervised administration, and, as a consequence, she argues that
because her motion was filed prior to the supervised administration order, the order
denying her motion is a Geier-type final order.
-4- #30590, #30604
[¶13.] Invoking Geier, Linda claims her first-in-time motion for confirmation
of a specific devise “define[d]” the unsupervised proceeding, which must be allowed
to run its course to completion without regard to an intervening order granting
supervised administration. 2012 S.D. 2, ¶ 13, 809 N.W.2d at 359 (quoting Scott v.
Scott, 136 P.3d 892, 896 (Colo. 2006)). But Geier does not support this fixed or
permanent proceeding theory. Geier involved only unsupervised administration of
an estate, and we did not address the question whether an individual unsupervised
estate proceeding extends into an estate that becomes supervised during the
pendency of the case.
[¶14.] And, further, accepting Linda’s argument about the lingering effect of
pre-supervised administration motions that are decided after supervision creates
perceptible tension between SDCL 29A-3-107 and SDCL 29A-3-501, which appear
to contemplate mutual exclusivity. Indeed, SDCL 29A-3-107 is expressly
conditioned upon the absence of supervised administration.
[¶15.] Here, the undisputed procedural sequence of events demonstrates that
the order for supervised administration was signed before the circuit court’s order
denying Linda’s motion for confirmation of a specific devise. See SDCL 15-6-58 (“A
judgment or order becomes complete and effective when reduced to writing, signed
by the court or judge, attested by the clerk and filed in the clerk’s office.”). Under
the circumstances, the action had become a supervised administration and a single
-5- #30590, #30604
in rem proceeding not subject to Geier’s individual-proceeding rule of finality. We
therefore dismiss Linda’s appeal and, likewise, Arlene’s notice of review. 2
[¶16.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
2. We lack jurisdiction to consider Arlene’s notice of review issue for an additional reason. Arlene’s current effort to seek review of the circuit court’s decision denying her motion to remove Linda as the personal representative was also the subject of an earlier appeal in #30501 that occurred before the court ordered supervised administration, making it a Geier-type appeal. However, we dismissed that appeal upon Linda’s motion because Arlene did not serve her notice of appeal on all the interested parties. Arlene cannot, therefore, seek to revive that appeal here. -6-