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Amundson v. Brookshire

Oregon Court of Appeals
Feb 16, 1994
133 Or. App. 450 (Or. Ct. App. 1994)

Summary

holding that an order removing the personal representative is appealable under ORS 19.205 because it both affects the person's substantial rights and "prevents entry of a judgment or decree as to that person in his or her capacity as a personal representative"

Summary of this case from In the Matter of the Estate of Toles

Opinion

93C-13321; CA A82915

On respondent's motion to dismiss appeal filed February 16, 1994, motion to dismiss denied March 15, 1995

Appeal from Circuit Court, Marion County.

Ralph W.G. Wyckoff, Judge pro tempore.

Craig O. West and Ferguson, Hawkes West for motion.

JoAnn K. Beck and Engle Schmidtman, contra.

Before Landau, Presiding Judge, and Haselton and Armstrong, Judges.


LANDAU, P.J.

Motion to dismiss denied.


In this probate proceeding, petitioner Steven Amundson moves to dismiss the appeal on the ground that the order being appealed is not appealable under ORS 19.010. We deny the motion.

In the fall of 1993, James Amundson died. On November 12, 1993, Joy Brookshire filed a petition in Marion County Circuit Court seeking to probate James Amundson's estate. On November 17, 1993, the probate court appointed Brookshire personal representative of the estate. On December 3, 1993, Steven Amundson filed a petition to remove Brookshire as personal representative and for other relief. The probate court allowed the petition and entered an order removing Brookshire as personal representative, requiring her to file an accounting and appointing Steven Amundson as personal representative. Brookshire appeals that order. Steven Amundson moves to dismiss the appeal.

Brookshire states that she filed the petition under ORS 112.017(2), as a surviving spouse.

The probate court apparently removed Brookshire as personal representative of the estate on the ground that she did not qualify as a surviving spouse within the meaning of ORS 112.017(2).

Citing Samuels v. Hubbard, 71 Or. App. 481, 692 P.2d 700 (1984), rev den 299 Or. 118 (1985), Brookshire contends that the order removing her as personal representative of the decedent's estate is appealable. We agree. In Samuels, the plaintiff filed an action against Hubbard alleging that Hubbard had committed various torts against the plaintiff through Hubbard's direction and control of the Church of Scientology of California, Inc., and Church of Scientology, Mission of Davis. Hubbard did not appear in the case to defend the action, but the Church of Scientology of California and the Church of Scientology, Mission of Davis, moved to intervene as defendants. The trial court denied those motions and the two churches appealed. We held that the order was appealable under ORS 19.010(2)(a), because, the order in effect determined the action as to the parties who were denied leave to intervene and prevented entry of a judgment as to them. Samuels, 71 Or App at 485.

ORS 19.010(2) provides, in part:

"For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:

"(a) An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein."

2. The personal representative of an estate has broad powers in the administration of the estate. Therefore, a motion to remove a personal representative and to replace him or her affects the substantial rights of both the person serving as personal representative and the person who seeks to have the personal representative replaced.

Moreover, whether the motion to replace the personal representative is granted or denied, the person who loses the motion is thereafter excluded as a party, at least in his or her capacity as personal representative. Thus, an order replacing a personal representative effectively determines the proceeding as to that person and prevents entry of a judgment or decree as to that person in his or her capacity as personal representative. Consequently, the probate court's order in this case removing Brookshire as personal representative of the decedent's estate is appealable under ORS 19.010(2)(a).

Motion to dismiss denied.


Summaries of

Amundson v. Brookshire

Oregon Court of Appeals
Feb 16, 1994
133 Or. App. 450 (Or. Ct. App. 1994)

holding that an order removing the personal representative is appealable under ORS 19.205 because it both affects the person's substantial rights and "prevents entry of a judgment or decree as to that person in his or her capacity as a personal representative"

Summary of this case from In the Matter of the Estate of Toles

holding that an order removing a personal representative is an appealable order

Summary of this case from Widing v. Estate of Glennn A. Widing

addressing a prior version of ORS 19.205

Summary of this case from Maloney v. Bryant (In re Eberhard)

In Amundson, we held that an order removing one person as personal representative in a probate proceeding and appointing another person to serve as personal representative was an appealable order under former ORS 19.010 (1995), renumbered as ORS 19.205 (1997).

Summary of this case from In re Assisted Living Concepts, Inc.

In Amundson, we held that an order removing a personal representative in a probate proceeding and appointing a substitute personal representative was appealable under former ORS 19.010(2)(a).

Summary of this case from Cessna v. Chu-R T
Case details for

Amundson v. Brookshire

Case Details

Full title:In the Matter of the Estate of James W. Amundson, Deceased. Steven A…

Court:Oregon Court of Appeals

Date published: Feb 16, 1994

Citations

133 Or. App. 450 (Or. Ct. App. 1994)
891 P.2d 710

Citing Cases

In re Assisted Living Concepts, Inc.

First, ALC contended that the order met the requirements for an interlocutory appeal provided in ORS…

Cessna v. Chu-R T

Thus, Gillespie and Stanwood, though factually quite different, both indicate that, where an order completely…