In the Matter of the Barbara Mills Trust Dated April 16, 2015, Molly Bodish, Trustee-Appellant.

• Court: Court of Appeals of Iowa
• Decided: August 16, 2017
• Docket: 17-0610
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0610 Filed August 16, 2017

IN THE MATTER OF THE BARBARA MILLS TRUST DATED APRIL 16, 2015,

MOLLY BODISH, Trustee-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.

Molly Bodish appeals a district court determination that attorney fees

would be assessed against her personally. APPEAL DISMISSED.

Brian W. Peters of Kintzinger, Harmon, Konrardy, P.L.C., Dubuque, for

appellant.

Douglas M. Henry and Mark J. Willging of Fuerste, Carew, Juergens &

Sudmeier, P.C., Dubuque, for appellee Barbara Mills-Larkin.

Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ. 2

VAITHESWARAN, Presiding Judge.

Beneficiaries of a trust filed petitions asking the district court to take

jurisdiction of the trust and compel trustee Molly Bodish to provide an accounting.

See Iowa Code § 633A.6202 (2016). In time, the beneficiaries sought attorney

fees. See id. § 633A.4507 (“In a judicial proceeding involving the administration

of a trust, the court, as justice and equity may require, may award costs and

expenses, including reasonable attorney fees, to any party, to be paid by another

party or from the trust that is the subject of the controversy.”); In re Tr. No. T-1 of

Trimble, 826 N.W.2d 474, 492-93 (Iowa 2013) (discussing factors for

consideration in applying section 633A.4507). The district court granted the

request, as follows:

[T]he Court hereby determines that the request for fees associated with the representation of [the beneficiaries] are appropriate. The attorneys shall submit fee affidavits associated with their representation of these individuals named herein. Upon receipt of the affidavits, the Court will enter a judgment for fees against Molly Bodish personally.

The court denied Bodish’s motion to reconsider, which asserted in part that the

court had yet to hold an evidentiary hearing in the case to make predicate

findings. Bodish filed a notice of appeal.

“Appeals are available as of right only from final orders, and we lack

jurisdiction of appeals from interlocutory orders unless permission to appeal is

granted.” Rowen v. LeMars Mut. Ins. Co. of Iowa, 357 N.W.2d 579, 581 (Iowa

1984); accord Iowa Rs. App. P. 6.101(1), .103, .104(1)(a), .108. “A final order or

judgment on an application for attorney fees entered after the final order or

judgment in the underlying action is separately appealable.” Iowa R. App. 3

P. 6.103(2). A judgment is final if it “conclusively adjudicates all of the rights of

the parties” and “puts it beyond the power of the court to place the parties in their

original positions.” Richers v. Marsh & McLennan Grp. Assocs., 459 N.W.2d

478, 480 (Iowa 1990) (quoting Lyon v. Willie, 288 N.W.2d 884, 886 (Iowa 1980)).

“A ruling is not final when the trial court intends to do something further to signify

its final adjudication of the case,” and where “the ruling specifically provides for

subsequent entry of a final order, the ruling itself is not a final judgment or

decision.” In re Marriage of McCreary, 276 N.W.2d 399, 400 (Iowa 1979)

(emphasis added).

The attorney fee order filed by the district court was not entered after a

final order or judgment in the underlying action. Iowa R. App. P. 6.103(2). In

addition, the order did not fully resolve the attorney-fee issue. The court required

the attorneys to submit fee affidavits and stated the court would “enter judgment

for fees against Molly Bodish personally” “[u]pon receipt” of those affidavits. The

order was not final.

As noted, we have authority to treat a notice of appeal from a non-final

order as an application for interlocutory appeal and grant the application. See

Iowa R. App. P. 6.108. We decline to do so here because the question of finality

is “not at all close; the order under challenge is plainly interlocutory.” In re

Marriage of Graziano, 573 N.W.2d 598, 599 (Iowa 1998). The appeal is

dismissed.

APPEAL DISMISSED.