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In the Matter of the Estate

January 11, 2012

IN THE MATTER OF THE ESTATE OF MINNIE GEIER, DECEASED.


APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT EDMUNDS COUNTY, SOUTH DAKOTA THE HONORABLE SCOTT P. MYREN Judge

The opinion of the court was delivered by: Gilbertson, Chief Justice

#25925-dismissed-DG

CONSIDERED ON BRIEFS ON NOVEMBER 14, 2011

[¶1.] Leo Geier, an heir to his mother's estate, petitioned for supervised administration of the estate and removal of the estate's personal representative. The circuit court heard evidence on the petition. The court denied the petition. Leo appeals from the order denying his petition. Appellees filed a motion to dismiss the appeal, asserting that Leo did not appeal from a final order and that not all the required parties were served with notice of appeal. Although we conclude that the order of the circuit court was one from which Leo could appeal, we dismiss the appeal for failure to serve the notice of appeal upon the heirs.

FACTS

[¶2.] Minnie Geier died in February 2010. Minnie had previously named her son Clemens as her attorney-in-fact in 1999. Minnie left a will naming her daughter Darlene as the personal representative. Darlene petitioned for formal probate of Minnie's estate. She was appointed personal representative in March 2010. Darlene arranged a meeting of all the heirs in May 2010. An accounting was furnished to each of the heirs in June 2010. No heirs objected to the accounting. Darlene wrote to all the heirs in July 2010 informing them that she would close the estate.

[¶3.] After receiving the July 2010 letter, Leo petitioned for supervised administration of the estate and removal of the personal representative. Leo claimed that Clemens diverted funds in violation of his position as Minnie's attorney-in-fact. Leo also claims that payments to Darlene were inappropriate. None of the other heirs joined Leo's petition.

[¶4.] The circuit court received evidence and heard arguments regarding payments to Darlene and Clemens. The court found that the reimbursements and compensation payments to Darlene and Clemens were not excessive, unnecessary, or unreasonable. Accordingly, the court found that neither supervised administration nor removal of the personal representative was necessary. The court issued an order denying Leo's petition (dated February 3, 2011, with Notice of Entry on February 9, 2011). Leo attempts to appeal from this order.

[¶5.] The court held a hearing for complete settlement of the estate on February 22, 2011. Neither Leo nor his counsel appeared at the hearing. The circuit court issued an order that same day for complete settlement of the estate. No appeal was taken from this order.

[¶6.] Appellees, the Estate of Minnie Geier and the personal representative (collectively "the Estate"), filed a motion to dismiss the appeal after Leo's brief was filed with this Court. The Estate argued that the order from which Leo attempted to appeal was not a final, appealable order and that Leo failed to serve all required parties. This Court ordered briefing on these two issues. We do not reach the merits of this appeal as we conclude a jurisdictional issue is dispositive.

1. Whether the appeal was filed from a final order.

2. Whether all the parties were served with notice of appeal.

STANDARD OF REVIEW

[¶7.] This Court's appellate jurisdiction is limited to "appeals only from a final order or judgment." Link v. L.S.I., Inc., 2010 S.D. 103, ¶ 43, 793 N.W.2d 44, 57. Furthermore, "failure to timely file and serve the notice of appeal is jurisdictionally fatal to the validity of an appeal . . . ." W. ...


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