The opinion
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-PR-1733
IN RE ESTATE OF CLARATEEN G. NELSON;
JAMES M. TAYLOR, JR., APPELLANT.
Appeal from the Superior Court of the
District of Columbia
(ADM-1201-11)
(Hon. John M. Campbell, Trial Judge)
(Argued November 5, 2013 Decided February 27, 2014)
Andrea J. Sloan for appellant.
Michael P. Bentzen, with whom Elizabeth Hughes was on the brief, for
appellees.
Before WASHINGTON, Chief Judge, MCLEESE, Associate Judge, and KING,
Senior Judge.
KING, Senior Judge: James Taylor, Jr., appellant, challenges his removal as
co-personal representative of his mother‟s estate and the denial of his emergency
petition for appointment of a successor personal representative. Appointed
alongside his sister, appellee Jo Ann Smoak, James Taylor was removed during a
hearing convened to consider Smoak‟s motion to strike Andrea Sloan as his
counsel. After finding that there was no basis upon which to strike Sloan‟s
2
appearance and to disqualify her, the trial court ordered James Taylor‟s removal as
co-personal representative, leaving Smoak as the sole personal representative of
the estate. We remand the case,1 with instructions for the Probate Division to
conduct a hearing in accord with D.C. Code § 20-526 (b) (2012 Repl.) and to state
the grounds for James Taylor‟s removal, if the Probate Division finds an adequate
basis to do so. We dismiss for lack of standing the portion of James Taylor‟s
appeal dealing with his petition for appointment of a successor personal
representative.
I.
After Clarateen Nelson‟s death on October 9, 2011, two of her children—
James Taylor, Jr. and Jo Ann Smoak—were appointed on December 15, 2011, as
co-personal representatives (CPRs) of her estate pursuant to a provision in
1
A “case” remand . . . returns the case to the trial court for all
purposes. This court retains no jurisdiction over the case and the
appeal is terminated. If, after a case remand, a party is dissatisfied
with the action of the trial court, the only course available to obtain
review in this court is to file a new notice of appeal, once a final order
or judgment is entered.
Bell v. United States, 676 A.2d 37, 41 (D.C. 1996).
3
decedent‟s will. James Taylor was represented by Andrea Sloan, who had been
appointed previously as Nelson‟s conservator and guardian. Following a period of
friction between the CPRs and a delay in administering the estate, James Taylor
and his brother, Carl Taylor, filed a joint emergency petition to remove Smoak as
CPR on February 24, 2012. In so doing, James Taylor offered to resign as CPR on
the condition that Smoak be removed and that a disinterested member of the bar be
appointed in their place. Smoak filed an opposition on March 5, 2012, denying
James Taylor‟s allegations that she had breached her fiduciary duties, and asking
the trial court to accept his resignation, thereby allowing Smoak to administer the
estate as the sole personal representative.
On March 5, 2012, the Honorable John Campbell ordered a hearing on the
petition for removal pursuant to D.C. Code § 20-526 (b). At that hearing on April
5, Judge Campbell acknowledged that Sloan‟s representation of James Taylor was
causing issues in the estate‟s administration, noting that he was surprised that
James Taylor hired Sloan as his attorney and, because of Sloan‟s previous
involvement as conservator, “Mr. Taylor‟s decision to retain [Sloan] as counsel . . .
seems like a poison pill” because of a “practical” conflict of interest. Sloan agreed
to resign as his counsel and the hearing then ended. On April 13, however, James
4
Taylor filed a Joint2 Motion for Judgment on the Pleadings or, in the alternative, a
Joint Motion for Summary Judgment on the petition to remove Smoak as CPR,
which was signed by Sloan as his counsel. In the motion, James Taylor stated,
“the Court cannot order [Sloan‟s resignation] without [James Taylor‟s] consent”
and “he wished to continue to retain the services of . . . Sloan . . . as his counsel in
th[e] matter.”
Smoak opposed the Joint Motion and also filed a Motion to Strike Sloan‟s
appearance and disqualify her as James Taylor‟s counsel on April 30, 2012, noting
that she “has an actual, unwaivable conflict of interest resulting from her position
as the Conservator for Clarateen Nelson.” At the next hearing, Judge Campbell
indicated his surprise that Sloan was present as James Taylor‟s attorney. Asserting
her client‟s right to select counsel, Sloan continued with the representation. Judge
Campbell theorized that James Taylor was attempting to “force [his] hand” by
“compelling [him] to grant [James Taylor‟s] motion to remove [Smoak] and to
remove [James Taylor]” in the process. Judge Campbell then denied the motion to
remove Smoak, noting that there was no sufficient reason to remove her.
2
The motion stated, “[b]y express consent of counsel . . . , Carl Jeffrey
Taylor joins in support of this Motion.”
5
The next hearing, meant to focus on Smoak‟s Motion to Strike Sloan‟s
appearance as James Taylor‟s counsel, occurred on September 5, 2012. Judge
Campbell stated that he could not “find grounds at this point to remove Ms. Sloan
under [the Rules of Professional Conduct].” Judge Campbell then turned his
attention to James Taylor, stating that the problems with administration of the
estate—
seem[ed] to be an effort by Mr. James Taylor to torpedo
this co-personal representative relationship; to make it
fail.
In fact, he has as much as acknowledged that by
saying let me resign. Let me resign. But, get rid of
[Smoak], too, and then in later pleadings from Ms. Sloan,
saying that, you know, what you really ought to do is to
get rid of both of them and appoint a Member of the Bar.
I believe that the litigation here and the glacial
pace as Ms. Sloan describes the progress of the matter is
largely Mr. Taylor‟s responsibility because he has
persisted in this issue with Counsel or where Counsel has
the not removable conflicts but issues that should give
everyone pause.
I believe that for that, we will go back to an earlier
solution suggested by Ms. Smoak and remove Mr. Taylor
as co-personal representative in this case.
Ms. Smoak will continue as the sole personal
representative of the estate.
6
Judge Campbell went on to state, “the grounds [for James Taylor‟s removal] are
very clear,” but did not expand further. A brief order, removing James Taylor, was
filed on September 13, 2012.
James and Carl Taylor then filed an emergency petition for the appointment
of a successor personal representative on September 21, 2012, citing the language
in Item VIII3 of Nelson‟s will as a basis for removing Smoak as personal
representative and appointing Carl Taylor as successor. The court denied the
petition on October 1, stating that the will‟s language was clear and that a
successor personal representative, Carl Taylor, would be appointed only if Smoak
could not complete her duties as the remaining CPR.
On the basis of the September 13, 2012, order removing James Taylor and
3
Item VIII of the will provides:
In the event that the above-named Co-Personal Representatives
shall, for any reason, fail to qualify, or having qualified, fail to
complete the administration of my estate, I nominate and appoint my
son, CARL J. TAYLOR instead and give said Personal Representative
all rights, powers, and immunities set forth in this Will, including the
requirement that said Personal Representative serve without bond.
7
the October 1, 2012, order denying the emergency petition, James Taylor filed a
notice of appeal on October 12, 2012.4
II.
James Taylor argues that his removal as CPR violated D.C. Code § 20-526
because Smoak never filed a motion to remove him as CPR, he had no notice that
he could be removed, and none of the bases for removal in Section 20-526 were
articulated by the trial court. He also argues that Smoak‟s appointment as the sole
personal representative is contrary to Item VIII of Nelson‟s will. In response,
Smoak argues that James Taylor‟s removal was not a final order, pursuant to
Super. Ct. Prob. R. 8, and therefore this court does not have jurisdiction to consider
this appeal, that he waived his right to serve as CPR when he offered to resign,5
4
As noted in our March 13, 2013, order denying his request to join the
appeal, Carl Taylor did not file a timely notice of appeal. Therefore, James Taylor
is the only appellant before us.
5
We reject Smoak‟s contention that James Taylor resigned from his
position. He conditioned his resignation on Smoak‟s removal as co-personal
representative; however, that condition did not occur. Further, his willingness to
resign in a petition to remove Smoak did not satisfy the statutory requirements for
resignation. See D.C. Code § 20-525 (2012 Repl.) (“A personal representative
may resign by filing a written statement of resignation with the Register after
(continued…)
8
and that his removal met procedural requirements under Section 20-526. Smoak
also claims that James Taylor does not have standing to contest the decision not to
appoint Carl Taylor as successor personal representative and, even if he did, Judge
Campbell properly interpreted Item VIII of Nelson‟s will.
A. James Taylor’s Removal
D.C. Code § 20-526, governing the removal of a personal representative,
states:
(a) Cause for removal. -- A personal representative
shall be removed from office upon a finding by the Court
that such representative:
(1) misrepresented material facts in
the proceedings leading to the appointment;
(2) willfully disregarded an order of
the Court;
(3) is unable, for any reason, to
discharge the duties and powers effectively;
(…continued)
giving at least 15 days written notice to all interested persons of intention to resign.
. . . The resignation of a personal representative shall be effective upon approval
by the Court.”).
9
(4) has mismanaged property; or
(5) has failed, without reasonable
excuse, to perform any material duty of such
office; provided, that the Court may
continue the personal representative in
office following a finding in accordance
with paragraph (5) if the Court finds that
such continuance would be in the best
interests of the estate and would not
adversely affect the rights of interested
persons or creditors.
(b) Hearing. -- The Court shall conduct a hearing
prior to the removal of a personal representative. Such
hearing may be held on the Court‟s own motion, on
motion of the Register, or on the written petition of any
interested person. The Register shall give notice of such
hearing to all interested persons and the Court shall
conduct the hearing within a reasonable time thereafter.
Upon receipt of such notice, the personal representative
may exercise only the powers of a special administrator,
as provided in by section 20-533.
Preliminarily, we disagree with Smoak‟s argument, citing Super. Ct. Prob.
R. 86 and its Comment,7 that the removal of a personal representative is not a final
6
(a) Generally. Any person who is aggrieved by a final order or
judgment of the Probate Division of the Superior Court of the District
of Columbia and who participated in the determination of that order or
judgment may file an appeal therefrom to the District of Columbia
Court of Appeals.
(continued…)
10
order. D.C. Code § 11-721 (a)(1) (2012 Repl.) provides that this court has
jurisdiction over “all final orders and judgments of the Superior Court.” Section
(…continued)
...
(c) When Allowed—Decedents‟ Estates. . . . [A]ll orders
and judgments of the court determining rights of any interested
person or party in any proceeding in the administration of the
estate of a decedent shall be deemed final with respect to
matters provided for in subsections (1) through (6) of this
section as follows:
(1) Order granting or denying probate;
(2) Order construing the decedent‟s will;
(3) Order determining heirs or legatees;
(4) Order determining title to assets;
(5) Order determining that property should be sold;
(6) Order approving a final account.
Super. Ct. Prob. R. 8.
7
[Super. Ct. Prob. R. 8] recognizes that, in the context of a
decedent‟s estate, an order approving the final account is generally the
only order that disposes of all the issues as to all the parties.
Examples of probate orders that are not final absent an express
determination by the Court include (but are not limited to) orders
appointing or removing fiduciaries . . . .
Super. Ct. Prob. R. 8 cmt.
11
11-721 is modeled after 28 U.S.C. § 1291, which states that “[t]he courts of
appeals . . . shall have jurisdiction of appeals from all final decisions of the district
courts of the United States . . . .” We rely on our statute, which trumps Probate
Rule 8, because “absent express statutory authorization, „no rule of court can
enlarge or restrict jurisdiction.‟” Ford v. ChartOne, Inc., 834 A.2d 875, 879 (D.C.
2003) (quoting Washington-Southern Navigation Co. v. Baltimore & Philadelphia
Steamboat Co., 263 U.S. 629, 635 (1924)).
Applying the language of the jurisdiction statute, we hold that the order
removing James Taylor was final and therefore appealable. Collins v. Miller, 91
U.S. App. D.C. 143, 144-46, 198 F.2d 948, 950-51 (1953) (“The order [removing
the administrator of a will] was not a mere step toward final judgment in which it
would merge. On final distribution of the estate it will be too late effectively to
review the order, and the rights conferred by the Code to prompt and proper
administration of the estate will be lost, probably irreparably. We think that like
the order in . . . [Cohen v. Beneficial Indus. Loan Corp.] . . . , the order in the
instant case is appealable because it was a final disposition of the claimed right, not
an ingredient of the administration of the estate itself and not requiring
12
consideration with it.”);8 cf. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949) (“But this order of the District Court did not make any step toward final
disposition of the merits of the case and will not be merged in final judgment.
When that time comes, it will be too late effectively to review the present order
and the rights conferred by the statute, if it is applicable, will have been lost,
probably irreparably. . . . This decision appears to fall in that small class which
finally determine claims of right separable from, and collateral to, rights asserted in
the action, too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case is
adjudicated.” (emphasis added)).
With respect to the merits of the claims asserted, we begin by assuming,
without deciding, that James Taylor had notice of his removal proceedings and a
hearing was properly held,9 we turn to the grounds for his removal.
8
M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“With respect to decisions
of the United States Court of Appeals [for the District of Columbia Circuit]
rendered prior to February 1, 1971, we recognize that they, like the decisions of
this court, constitute the case law of the District of Columbia.”).
9
Although there may have been no notice and no proper hearing, our
decision to remand effectively provides James Taylor with notice of a future
hearing on this issue.
13
Because the court has no discretion, but is statutorily
bound to remove the personal representative if it finds
that []he committed one of the enumerated infractions,
we review only the determination of whether an
infraction has been committed. In re Estate of Delaney,
819 A.2d 968, 1002 (D.C. 2003). We review the trial
court‟s conclusions of law de novo, and we may set aside
any decisions insofar as they rest on an erroneous view of
the law. D.C. Code § 17-305 (a) (2001); Moshovitis v.
The Bank Companies, 694 A.2d 64, 67 (D.C. 1997). We
may not set aside a judgment of a trial court in a matter
tried without a jury except for errors of law unless it
appears that the judgment is plainly wrong or without
evidence to support it. See In re Estate of Delaney,
supra, 819 A.2d at 1002.
In re Estate of Bates, 948 A.2d 518, 524 (D.C. 2008) (emphasis added). The
language of Section 20-526 (a) is clear that “[a] personal representative shall be
removed from office upon a finding by the Court that such representative”
committed one of the acts enumerated. Neither the hearing transcript nor the order
removing James Taylor expressly states the grounds for his removal. In the
absence of such findings, we cannot properly review the Probate Division‟s
decision.
However, Smoak argues that the Probate Division “essentially” found James
Taylor to have violated Section 20-526 (a)(2) (willfully disregarding a court order),
14
(a)(3) (“unable . . . to discharge the duties and powers effectively”), and (a)(5)
(failing to perform any material duty without a reasonable excuse). We cannot
agree that the trial court implicitly made those findings. Judge Campbell did state
that he believed James Taylor was “torpedo[ing]” the co-personal representative
relationship and administration‟s progress was moving at a “glacial pace.” Neither
of these statements, however, clearly indicates that Judge Campbell believed James
Taylor willfully disregarded an order, was not discharging his duties effectively, or
failed to perform any specific duties as a co-personal representative. In absence of
reviewable findings in Judge Campbell‟s September 13, 2012, order, remand is
necessary for the trial judge to conduct a hearing on this issue and state the grounds
for James Taylor‟s removal, if such grounds are found to exist.
B. Denial of the Motion to Appoint Carl Taylor
James Taylor also claims that the trial court erred in not appointing Carl
Taylor to replace him as successor personal representative. We do not reach the
issue because a personal representative who has been removed by the probate court
has no standing to contest the appointment of a successor. In re Estate of Delaney,
supra, 819 A.2d at 1003 (holding that a removed personal representative who was
15
also a legatee under the will was not an “aggrieved” party in the meaning of D.C.
Code § 11-721 (b) (2001) and the appointment of a successor personal
representative causes no injury to the former representative‟s “legal rights or to
some legally protected relationship”). James Taylor has not described how he was
aggrieved by this decision, nor has he cited any authority in support of his
argument that, as a legatee, he has standing whenever the trial court construes the
will. James Taylor‟s appeal of the October 1, 2012, order is therefore dismissed.
See id. (“An appeal may be dismissed if the appellant lacks standing as an
aggrieved party. (citing In re C.T., 724 A.2d 590, 595 (D.C. 1999))).
III.
For the foregoing reasons, Judge Campbell‟s September 13, 2012, order
removing James Taylor is reversed and the case is remanded. The Probate
Division is instructed to hold a hearing on his removal as co-personal
representative and state the basis for any such removal in accordance with Section
20-526. James Taylor‟s appeal of the October 1, 2012, order is dismissed.
So ordered.