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In the Matter of

February 13, 2013


Appeal from the Iowa District Court for Polk County, Ruth B. Klotz, Judge.

The opinion of the court was delivered by: Miller, S.J.

An executor appeals from probate court money judgments against him. REVERSED AND REMANDED.

Considered by Eisenhauer, C.J., Vogel, J., and Miller, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).

Dennis Andrews, removed as executor of the estate of his mother, appeals from probate court money judgments against him. We reverse and remand.


Shirley Andrews died in September 2007. She had given her son, Dennis

Andrews, a power of attorney in May 2007. Her will nominated Dennis to serve as executor, without bond. Dennis was appointed, qualified, and was issued letters of appointment as executor. He filed a designation of attorney Kenneth Rittgers as his attorney to assist in the administration of the estate. See Iowa Code §§ 633.3(17) (2009) (defining a "fiduciary" as including an executor), .82 (providing that the designation of the attorney employed by the fiduciary is to be filed in the estate proceeding).

Lynn Andrews, Dennis's brother and a beneficiary under Shirley's will, apparently believed that Dennis had misused his power of attorney and had not properly accounted for the proceeds of a loan, secured by a mortgage on real estate owned by Shirley, that Dennis had secured shortly before Shirley's death. In April 2008 Lynn filed a motion requesting that Dennis be required to provide an accounting of the proceeds of the loan and to disclose all actions taken by him under the power of attorney. In July 2008 Lynn filed a motion asserting a belief that Dennis had breached his fiduciary duty to preserve assets of the estate, and requesting that Dennis be removed as executor.

The probate court held a hearing on two days in September 2008. Although Dennis had not revoked Rittgers's designation as his attorney, and Rittgers had not withdrawn as attorney for Dennis, Dennis was represented at the hearing by attorney James Sayre. As noted in the court's resulting order filed October 23, 2008, the hearing was only "on the Motion of Lynn Andrews for the Removal of Dennis Andrews as Executor of the Estate of Shirley Andrews." In its order the court made findings of fact as to certain financial transactions in which Dennis had engaged; concluded that Dennis had "mismanaged this estate in the manner in which he has handled the funds of the estate"; and further concluded there were "unresolved issues" concerning whether Shirley had authorized Dennis to engage in several of the financial transactions that had benefitted him.

The court ordered that Dennis was removed as executor but not discharged from responsibility until the successor executor had been able to review records and provide an accounting and a final report with recommendations as to matters in controversy. The court appointed Craig Rogers as successor executor. It directed him to "determine the disposition of" certain bank accounts. It further directed him to verify whether Dennis was the named beneficiary of a certain life insurance policy, was a joint owner of a certain certificate of deposit and the circumstances surrounding the name or names in which it had been placed, who became the owner of a policy on the life of Lynn at Shirley's death, and to "investigate the matter of the gifts reportedly authorized by Shirley to Dennis as offsets to earlier gifts to Lynn."

Rogers qualified as executor and was issued letters of appointment. On February 13, 2009, Rogers filed a "Financial Report of Executor." The report stated that Dennis had removed a total of $35,181.49 from the estate. In further relevant part the report stated: "This court should treat this Report as a Petition for a Hearing, set this matter for hearing and prescribe notice." The prayer for relief stated: "WHEREFORE, THIS EXECUTOR PRAYS, that this Court enter an Order Setting the Time and Place of Hearing on this Report and enter other such direction as the cause of justice requires."

On March 27, 2009, Rittgers, identifying himself as "attorney for the within Estate," filed an application identifying requested fees and expenses for Rogers and for himself and providing an accounting of funds received by Rogers. The application requested a hearing on fees and expenses, on claims that had been filed, and on Rogers's financial report. On the same day the probate court entered an order setting hearing on "the Application of the Executor's Attorney" for May 5, 2009.

Lynn filed a motion on April 20, 2009, seeking continuance of the May 5 hearing. On that same date the probate court entered an order continuing the hearing to June 3, 2009. An "Affidavit of Mailing" filed April 27, 2009, shows that a copy of the motion to continue and the order to continue were served on Dennis. Nothing, however, indicates that a copy was served on either attorney Sayre, who had represented Dennis at the hearing in December 2008, or attorney Rittgers, who continued to be the attorney of record for Dennis in Dennis's capacity as an undischarged executor with limited but continuing responsibilities.

The probate court held a hearing on June 3, 2009. Neither Dennis nor attorney Sayre attended. The court reporter's list of "Appearances" indicates the hearing was attended by attorney Rittgers, whom the reporter refers to as the "attorney for probate"; executor ...

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