Estate of Ager

#30590, #30604-dismiss-MES
2024 S.D. 55

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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IN THE MATTER OF THE
ESTATE OF FRED AGER,
Deceased.
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ORIGINAL PROCEEDING

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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.

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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.
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[¶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

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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

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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.

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[¶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

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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.
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