IN THE UTAH COURT OF APPEALS

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In the Matter of the Estate of Eleanor

Amelia Newberry Strand,

Deceased.

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Nupetco Associates, LLC,

Appellant,

v.

Diane Dimeo, a personal representative

of the Estate,

Appellee.

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MEMORANDUM DECISION

Case No. 20110215‐CA

F I L E D

(May 17, 2012)

  2012 UT App 144

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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.
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

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
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).

20110215‐CA 3

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,
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).

20110215‐CA 4

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
20110215‐CA 5

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.

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Michele M. Christiansen, Judge

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¶10 WE CONCUR:

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James Z. Davis, Judge

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William A. Thorne Jr., Judge