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In re Estate of Nelson

Court of Appeals of Oregon

November 29, 2017

In the Matter of the Estate of Lelah A. Nelson, Deceased.
v.
STATE OF OREGON, acting by and through Department of Human Services; Evelyn Wilson; and Clifford Nelson, Personal Representative of the Estate of Lelah A. Nelson, Deceased, Claiming Successors-Respondents. Cassandra GIVAN and Richard Lariviere, Jr., Claiming Successors-Appellants,

          Argued and submitted May 18, 2016

         Columbia County Circuit Court 13PB00876 Jenefer Stenzel Grant, Judge.

         Stanley D. Gish argued the cause and fled the brief for appellants.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          No appearance for respondent Evelyn Wilson.

          No appearance for respondent Clifford Nelson.

          Before Tookey, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge. [*]

         [289 Or.App. 126] Case Summary: Appellants fled claims against the decedent's estate. The decedent's estate was initially administered in a small estate proceeding and later put into full probate. The probate court allowed appellants' claims in the small estate proceeding but denied them in whole or part in the full probate proceeding. On appeal, appellants challenge the probate court's actions, asserting that, on the procedural facts of this case, the probate court lacked jurisdiction to order distribution of the property of the estate in a manner other than that provided in ORS 114.555. One appellant also challenges an attorney fee award against her contained in a supplemental limited judgment. Held: Where the probate court did not appoint a personal representative within four months of the fling of the small estate affidavit, the probate court lacked jurisdiction to administer the estate in a manner contrary to ORS 114.555.

         General judgment vacated and remanded; appeal of supplemental limited judgment dismissed.

         [289 Or.App. 127] AOYAGI, J.

         This appeal pertains to the estate of Lelah Nelson. Givan and LaRiviere are grandchildren of the decedent and claimants against her estate. Their claims were allowed in a small estate proceeding. That proceeding was later converted to full probate, after which the probate court disallowed Givan's claim, gave nonpriority status to a portion of LaRiviere's claim, and entered a limited supplemental judgment for attorney fees against Givan.

         Givan's and LaRiviere's first three assignments of error challenge different rulings but all fundamentally turn on one legal issue-whether the probate court had jurisdiction to order distribution of the property of the estate in a manner other than that provided in ORS 114.555. We conclude that it did not. We therefore vacate and remand the general judgment based on the first assignment of error and do not reach the second and third assignments of error. As to the fourth assignment of error, in which Givan challenges the limited supplemental judgment for attorney fees, we dismiss that portion of the appeal for lack of jurisdiction.

         I. PROCEDURAL FACTS

         The following facts are undisputed. Lelah Nelson of St. Helens died, testate, in January 2012. On February 15, 2012, her son Clifford Nelson (Nelson) filed a small estate affidavit pursuant to ORS 114.515, triggering the small estate procedures in ORS 114.505 to 114.560. Various claims were made against the estate, including (1) a claim by the Department of Human Services (DHS) in the amount of $49, 004 for repayment of public assistance; (2) a claim by Nelson that included funeral expenses in the amount of $7, 640, in which LaRiviere has an interest; and (3) a claim by Givan in the amount of $32, 503 for "health care representative" services provided to the decedent.

         In early 2013, Nelson and another claimant, Wilson, each petitioned for summary review of the administration of the estate, as provided in ORS 114.550. Wilson challenged Nelson's and Givan's claims. In June 2013, the probate court entered a limited judgment allowing the funeral expenses in full as an administrative expense. It also allowed Givan's [289 Or.App. 128] claim in full as an administrative expense. Administrative expenses receive priority in the distribution of estate proceeds. ORS 115.125(1)(b).

         Nothing further occurred in the small estate proceeding.[1] Instead, on November 4, 2013, Nelson filed a petition under ORS 113.035 to admit the decedent's will to probate and to appoint himself as the personal representative. That step appears to have been spurred by an issue related to selling the decedent's real property. In any event, the court granted the petition, stating, "This proceeding shall incorporate, supersede and replace the Small Estate Proceedings, Columbia County Circuit Court Case No. 12-104SE. All allowed, adjudicated, pending and disputed claims and claim determinations made in that proceeding are incorporated into this proceeding." The court later described this as "converting" the small estate proceeding to "full probate."[2]

         The details of the full probate proceeding are not relevant except as follows. In March 2014, Nelson filed a statement in lieu of final account, which included a proposed distribution that gave Nelson's and Givan's claims priority over DHS's claim, such that DHS would not be paid in full on its claim. Both DHS, which had previously expected to be paid in full, and Wilson filed objections to Nelson's statement. That triggered the first of several filings by Givan (the last of which would be joined by LaRiviere) to try to persuade the probate court to abide by the claims rulings in the earlier small estate proceeding. The court ultimately granted DHS's objections, disallowing Givan's claim in its entirety and ruling that only $3, 500 of funeral expenses were entitled to priority.

         [289 Or.App. 129] Givan later filed a motion for new trial on her claim, based on newly discovered evidence, which the court denied. Viewing the motion as frivolous, the court awarded approximately $6, 000 in attorney fees and costs to DHS, against Givan, in a "limited supplemental judgment" entered on April 1, 2015. Givan appeals that judgment.

         On April 28, 2015, the court entered its general judgment, which both Givan and LaRiviere appeal.

         II. ANALYSIS-GENERAL JUDGMENT

         In their first assignment of error, Givan and LaRiviere assert that the probate court erred in allowing and not dismissing DHS's and Wilson's objections to Nelson's statement in lieu of final account as it pertained to their claims. They argue that, under ORS 114.555, once Nelson filed a small estate affidavit and the court did not appoint a personal representative within four months, the court lacked jurisdiction to resolve claims and distribute estate property in a manner other than that provided in ORS 114.555. DHS concedes that ...


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