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In re Estate of Bacon

Court of Appeals of Iowa

March 22, 2017

SARAH BACON, Defendant-Appellee. JUSTIN BACON, Plaintiff-Appellant,

         Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.

         An heir seeking to contest his father's will appeals the grant of summary judgment in favor of his half-sister, the executor. AFFIRMED.

          Brian E. Jorde and Christian T. Williams of Domina Law Group P.C., L.L.O., Omaha, Nebraska, for appellant.

          Michael T. Gibbons and Aimee C. Bataillon Smith of Woodke & Gibbons, P.C., L.L.O., Omaha, Nebraska, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          TABOR, Judge.

         This appeal involves an action to contest the will of Ronald Bacon, filed by his son, Justin Bacon. Executor Sarah Bacon moved to dismiss her half-brother's action, alleging his objection was untimely under Iowa Code section 633.309 (2015). The parties agreed Sarah's filing could be converted into a motion for summary judgment, which the district court granted. On appeal, Justin contends the district court abused its discretion by allowing Sarah to offer an affidavit and exhibits in conjunction with her brief in support of summary judgment. He also argues an issue of material fact exists as to whether Sarah complied with the notice requirements of section 633.304.

         Given the specific facts of this case, we find the district court did not abuse its discretion in allowing Sarah to submit additional evidence in support of her motion for summary judgment. And because we find the address where Sarah sent the notices was reasonably calculated to provide Justin with actual notice of the proceedings, we affirm the district court's ruling.

         I. Facts and Prior Proceedings

         Ronald Bacon died on July 20, 2015. Eight days later, his will was admitted to probate. The will-executed on June 30, 2015-indicated Ronald was not married but had two children, Justin and Sarah. The will devised all of Ronald's property to Sarah, per stirpes. Sarah was appointed executor, and she arranged to have notices of probate and appointment of executor published in the local newspaper for two consecutive weeks from August 1 to August 8. On September 10, Sarah's attorney sent the notices to Justin at an address on West Dakota Street in Fremont, Nebraska.

         About four months later, on January 12, 2016, Justin filed a petition to set aside the will. Among other things, Justin alleged "[n]otice was not provided as required by law, " but he did not elaborate further on the issue. Sarah, who had obtained new counsel, filed a motion to dismiss on January 15, citing her prior attorney's affidavit of mailing and challenging Justin's petition as untimely under Iowa Code section 633.309 (requiring will contests to be initiated "within the later to occur of four months from the date of second publication of notice of admission of the will to probate or one month following the mailing of the notice to all heirs of the decedent and devisees under the will whose identities are reasonably ascertainable, at such persons' last known addresses"). Justin did not file a resistance to Sarah's motion.

         On March 4, 2016, the district court held a hearing on Sarah's motion to dismiss. With consent from the parties, the court converted the motion to dismiss into a motion for summary judgment, noting that, unlike a motion to dismiss, "a motion for summary judgment would entertain affidavits that would support either one of [the parties'] positions." Justin offered his own affidavit at the hearing, which contended his mailing and last known address was on North Garfield Street in Fremont and "[n]o notice of the probate of my father's Will or any other details were sent to this address."[1] He did not indicate whether he received notice of the probate proceedings. In conjunction with the affidavit, Justin submitted several documents confirming his attested address, including a state-issued identification card and correspondence with his attorney. Justin's attorney submitted an affidavit and attached a Westlaw "People Map Search" printout for Justin-which the attorney described as "a commonly used service and information gathering tool normally relied upon in the practice of law"-listing the North Garfield address but not the West Dakota address where Sarah's first counsel sent the notices.

         No evidence was offered on Sarah's behalf at the hearing. When asked whether the parties were ready to argue the motion, Sarah's new attorney explained he had not been involved with the original mailing of notices and had not investigated the notice issue himself. At the suggestion of Justin's attorney, the court directed the parties to submit briefs in the matter by March 28. The court left open the possibility of "additional oral argument."

         Four days before the briefing deadline, Sarah submitted a "statement in support of motion for summary judgment" along with four attachments, including her own affidavit. The affidavit regarding the "last known address of Justin Bacon" attested that Sarah, as executor of her father's will, informed her attorney where to send the notices based on text messages she ...

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