In Re the Estate Hildreth

2015 UT App 222

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ESTATE OF LEWIS HILDRETH.

STACY HILDRETH,
Appellant,
v.
DAVID M. SMITH,
Appellee.

Per Curiam Decision
No. 20150375-CA
Filed September 3, 2015

Fourth District Court, Spanish Fork Department
The Honorable M. James Brady
No. 153300001

Stacy Hildreth, Appellant Pro Se
Rodney W. Rivers, Attorney for Appellee

Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
JOHN A. PEARCE.

PER CURIAM:

¶1 Stacy Hildreth (Hildreth) appeals the April 17, 2015 Order
appointing David M. Smith as personal representative for the
Estate of Lewis Hildreth (the Estate). This case is before the court
on a sua sponte motion for summary disposition. We affirm.

¶2 Smith filed a “petition for informal appointment as
personal representative” of the Estate. Smith alleged that he was
a creditor of the Estate and an “interested person.” See Utah
Code Ann. § 75-1-201(24) (LexisNexis Supp. 2014) (defining
“interested person” to include creditors); see also id. § 75-3-203(1)
(Michie 1993) (establishing priority among persons seeking
appointment as personal representative). The petition included
In re Estate of Hildreth

the names and addresses of the decedent’s spouse and three
children. See id. § 75-3-301(2) (LexisNexis Supp. 2014)(requiring
that an application for informal appointment of a personal
representative contain “the names and addresses of the spouse,
children, heirs, and devisees”). After receiving notice of the
petition in November 2014, Hildreth filed a letter with the
district court on January 5, 2015, expressing his concerns about
the appointment of Smith as personal representative of the
Estate. On January 27, 2015, the district court held a hearing on
the petition, at which Hildreth appeared telephonically. The
district court’s bench ruling was included in a February 27, 2015
Order. That order provided that Hildreth or his brother “shall
have until February 17, 2015 to nominate themselves or another
qualified individual to serve as Personal Representative of the
Estate of Lewis Hildreth.” The court ordered that if another
qualified individual was nominated, discovery could be
conducted until April 17, 2015, and the matter would be heard
on April 28, 2015. The order further stated that if no alternative
to Smith was “submitted on or before April 17, 2015, the above
identified discovery and hearing date[s] shall be cancelled and
David Smith shall immediately be appointed to serve as the
Personal Representative of the Lewis Hildreth Estate.”1

¶3 In an April 17, 2015 Order, the district court found that no
person other than Smith had requested to serve as personal
representative and ordered that David Smith was appointed to
serve as personal representative of the Estate. On April 27, 2015,
Hildreth filed a letter that the district court construed as a notice
of appeal in which he listed new concerns and stated that
“[t]hese concerns have prompted me to write an appeal and
request to be Lewis Hildreth’s Personal Representative.” The
letter further stated that he “would like to appeal this decision to

1. Despite the apparent inconsistency in the order about the date
by which an alternative individual must be nominated, the
record shows that no other individual was nominated at any
time prior to the entry of the final order.

20150375-CA 2 2015 UT App 222
In re Estate of Hildreth

have David Smith appointed as my father’s representative based
on conflicts of interest in order to step in and assume all
responsibilities required of me to become my father’s personal
representative.” The district court construed the letter as a notice
of appeal.

¶4 At the January 27 hearing, and in the February 27, 2015
Order, the district court set out the procedures to nominate an
alternative person to be appointed as personal representative.
The district court ordered that if no alternative person was
nominated on or before April 17, 2015, the court would appoint
Smith as the personal representative of the Estate. Neither
Hildreth nor any other person sought to be appointed as
personal representative prior to April 17, 2015. The district court
acted in accordance with the February 27, 2015 Order and
appointed Smith as personal representative of the Estate.
Hildreth’s letter filed with the court on April 27, 2015, was not a
timely request to be appointed as personal representative.

¶5 Hildreth did not file a response to the sua sponte motion
and has not demonstrated that the district court erred in the
proceedings leading to Smith’s appointment. Although Hildreth
cited Utah Code section 75-3-61l in his docketing statement,
which describes the procedures by which an interested party
may “petition for removal of a personal representative for
cause,” Hildreth has not filed such a petition in the district court
under that statute. Any issues that might be raised in a petition
under section 75-3-611 cannot be considered in this appeal
because we are limited to review of the order granting Smith’s
petition to be appointed as personal representative and those
additional issues must be asserted, if at all, in an appropriate
proceeding commenced in the district court. See Utah Code Ann.
§ 75-3-611 (Michie 1993).

¶6 Accordingly, we affirm the order appointing David Smith
as personal representative of the Estate of Lewis Hildreth.

20150375-CA 3 2015 UT App 222