In the Matter of the Estate of Eleanor Strand

IN THE UTAH COURT OF APPEALS

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In the Matter of the Estate of Eleanor ) MEMORANDUM DECISION
Amelia Newberry Strand, )
) Case No. 20110215‐CA
Deceased. )
____________________________________ )
) FILED
Nupetco Associates, LLC, ) (May 17, 2012)
)
Appellant, ) 2012 UT App 144
)
v. )
)
Diane Dimeo, a personal representative )
of the Estate, )
)
Appellee. )

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Second District, Layton Department, 063600007
The Honorable Thomas L. Kay

Attorneys: Charles M. Bennett, Salt Lake City, for Appellant
George A. Hunt and Richard C. Dibblee, Salt Lake City, for Appellee

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Before Judges Davis, Thorne, and Christiansen.

CHRISTIANSEN, Judge:

¶1 Nupetco Associates, LLC (Nupetco) appeals the probate court’s denial of its
petition to vacate the order appointing Diane Dimeo as the personal representative of
the Estate of Eleanor Amelia Newberry Strand (the Order). We affirm.
I. This Court Has Jurisdiction.

¶2 Nupetco initially asserts that this court has jurisdiction to hear its appeal despite
the fact that the probate court refused to certify the Order as final pursuant to rule 54(b)
of the Utah Rules of Civil Procedure. We agree that the unique circumstances of this
case, together with Utah’s “pragmatic, case‐by‐case approach to finality in probate
matters,” resulted in finality for the purposes of this appeal. See In re Estate of Morrison,
933 P.2d 1015, 1016‐17 (Utah Ct. App. 1997); see also In re Estate of Voorhees, 12 Utah 2d
361, 366 P.2d 977, 980 (1961) (determining that an order deciding “the real issue
between the parties” was final and appealable despite the probate court’s continuing
“jurisdiction . . . to adjudicate further matters”).

¶3 Similar to the Utah Supreme Court’s determination in In re Tasanen’s Estate, 25
Utah 396, 71 P. 984 (1903), the Order was final because “[t]here was nothing further to
be done in the matter” as it relates to Nupetco. See id. at 986; In re Estate of Morrison, 933
P.2d at 1017 (recognizing the exception set forth in In re Tasanen’s Estate). Thus, this
court has jurisdiction to review the Order.1

II. The Probate Court Had Authority to Appoint a Personal Representative.

¶4 In an attempt to provide certainty to property rights, the Utah Legislature has
included in the Utah Probate Code, see generally Utah Code Ann. §§ 75‐1‐101 to ‐8‐101
(1993), provisions limiting certain proceedings where neither an heir nor a creditor has
requested the administration of the estate within three years of the decedent’s death, see
id. § 75‐3‐107. This case demonstrates some of the problems associated with
substantially delaying the determination of heirs and property owned by the decedent
at the time of the decedent’s death and the distribution of that property. That being
said, the parties do not dispute that there are four heirs, that the decedent owned some
interest in two parcels of property at the time of her death, and that the probate code
clearly allowed the probate court to enter an order identifying the heirs and the
property owned by the decedent at the time of her death,2 see id. § 75‐3‐107(3). The

1. In her brief, Dimeo does not challenge the finality of the Order but asserts that
Nupetco improperly requested a rule 54(b) certification. Because we determine that the
Order was final, we need not reach this issue.

2. Nupetco attempts to challenge the subject matter jurisdiction of the probate court but
agrees that the probate code allows the probate court to determine the heirs and
(continued...)

20110215‐CA 2
parties’ dispute arises from their disagreement over the probate court’s powers to
effectuate the distribution of property pursuant to section 75‐3‐107(3). Specifically,
Nupetco argues that the probate code did not authorize the probate court to appoint a
personal representative in the context of administrating an intestate estate. We
disagree.

¶5 Section 75‐3‐107 unambiguously addresses this issue. Although subsection (1)
provides, with exceptions that are irrelevant here, that “formal testacy[3] or
appointment proceedings . . . may [not] be commenced more than three years after the
decedent’s death,” id. § 75‐3‐107(1), subsection (2) states that “[t]he limitations provided
in Subsection (1) do not apply to proceedings to . . . determine heirs of an intestate,” id.
§ 75‐3‐107(2). Subsection (3) further addresses the determination of heirs by stating,

2. (...continued)
property in this case. The probate court clearly had subject matter jurisdiction over the
action. See Utah Code Ann. § 75‐1‐302(1)(a), (2) (1993) (“To the full extent permitted by
the Constitution of Utah, the [probate] court has jurisdiction over all subject matter
relating to: . . . estates of decedents including . . . determination of heirs and successors
of decedents and estates of protected persons. . . . The [probate] court has full power to
make orders, judgments, and decrees and take all other action necessary and proper to
administer justice in the matters which come before it.”); id. § 75‐3‐107(3); In re Estate of
McLaughlin, 754 P.2d 679, 681‐82 (Utah Ct. App. 1988) (“A court has subject matter
jurisdiction if the case is one of the type of cases the court has been empowered to
entertain by the constitution or statute from which the court derives its authority.”); id.
at 683 (“The probate court has the powers granted by statute or reasonably implied
from the statutory grant or reasonably necessary to effectuate the powers which are
given.”). We focus only on whether the probate court had the authority to appoint
Dimeo as personal representative. See generally Johnson v. Johnson, 2010 UT 28, ¶ 9, 234
P.3d 1100 (“The concept of subject matter jurisdiction does not embrace all cases where
the court’s competence is at issue. ‘Where the court has jurisdiction over the class of
case involved, judgment is not void on the ground that the right involved in the suit did
not embrace the relief granted.’ Rather, the concept of subject matter jurisdiction relates
to ‘the relationship between the claim and the forum that allows for the exercise of
jurisdiction.’” (citations omitted)), cert. denied, 131 S. Ct. 656 (2010).

3. “A formal testacy proceeding is litigation to determine whether a decedent left a
valid will.” Utah Code Ann. § 75‐3‐401(1) (1993).

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If no will is probated within three years from death, the
presumption of intestacy is final and the court shall enter an
order to that effect and provide for the distribution of the
decedent’s property in accordance with the laws of intestacy
under Title 75, Chapter 2, Part 1.[4] The [probate] court has
continuing jurisdiction to handle all matters necessary to
distribute the decedent’s property, including jurisdiction to
determine what property was owned by the decedent at the
time of death.

Id. § 75‐3‐107(3) (emphases added). Thus, while the probate code does not allow the
probate court to make determinations or administrations of wills not probated within
three years of a decedent’s death, the probate code clearly allows the probate court “to
determine what property was owned by the decedent at the time of death” and “to
handle all matters necessary to distribute the decedent’s property.” See id.

¶6 When, as here, the probate court is unable or does not have sufficient
information to effectuate the distribution of property, it seems only logical that the court
would appoint a personal representative5 for the very purpose of taking those actions
necessary “to settle and distribute the estate of the decedent in accordance with the
terms of . . . th[e probate] code.” See id. § 75‐3‐703(1). A probate judge is not expected
to personally visit the decedent’s property and inventory what the decedent owned at
the time of death to determine and resolve issues related to the property. Instead, the
probate court can appropriately rely on a personal representative to do the leg work
necessary to allow the court to determine what property was owned by the decedent
and then distribute that property as a matter of law.

¶7 In this case, the parties do not dispute that the decedent owned some interest in
real property at the time of her death. Accordingly, to comply with the requirements of
the probate code and adjudicate Dimeo’s petition, the probate court was required to

4. Title 75, Chapter 2, Part 1 specifically addresses who is entitled to receive a
decedent’s assets that are not disposed of by will, i.e., intestate succession. See generally
Utah Code Ann. §§ 75‐2‐101 to ‐114 (1993).

5. Utah Code section 75‐1‐201(36)(a) broadly defines a “personal representative” to
“include[ an] executor, administrator, successor personal representative, special
administrator, and persons who perform substantially the same functions under the law
governing their status.” Utah Code Ann. § 75‐1‐201(36)(a) (Supp. 2011).

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determine the value of the decedent’s property and distribute that property to the
undisputed heirs. See id. § 75‐3‐107(2)‐(3). To determine each heir’s distribution, the
probate court, with the help of a personal representative, needed to establish the status
of the property, including a resolution of any secured encumbrances held against the
property. See generally id. § 75‐3‐104 (listing limitations on creditors, but stating that
those limitations “ha[ve] no application to a proceeding by a secured creditor of the
decedent to enforce his right to his security”). Thus, the probate court had the authority
to appoint a personal representative to aid in the determination and subsequent
distribution of the property.

¶8 Although we understand Nupetco’s approach in challenging the appointment of
the personal representative and attempting to invalidate all of her actions, what
Nupetco really seems to take issue with is the personal representative’s authority to file
a quiet title action that could ultimately eliminate any interest that Nupetco has in the
property that was owned by the decedent. We do not review whether the probate
court’s actions involved in authorizing such an action were proper because Nupetco has
not challenged them on appeal.

¶9 Thus, we affirm the probate court’s denial of Nupetco’s petition to vacate the
order appointing Dimeo as the personal representative.

____________________________________
Michele M. Christiansen, Judge

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¶10 WE CONCUR:

____________________________________
James Z. Davis, Judge

____________________________________
William A. Thorne Jr., Judge

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