IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 23

In the Matter of the Estate of Viola J. Heath, Deceased

GayLe Schleve, Personal Representative and Appellant

and

Bill D. Tisher, Personal Representative

v.

Barbara Ressler, Candy Ash, Carol Hansell,

Charlys Schulenberg, Cody A. Schleve 

(aka Cody A. Hillard), Debra Quarve, 

Devyn S. Kukowski, Douglas Stull, Jane or 

John Doe as trustee of the Randall and 

Norma Heinz Trust dated June 11, 2020, 

Jason Kukowski, Jeff Miller, Josh Kukowski, 

Kami Jo Martinez, Kimberly Helsper, Kurt 

Stull, Kyla Marie Mees, Layne Kreitinger, 

Lea Marie Buss, The Estate of Leann Russell, 

Lori Watts, Lynne A. Lammers, Merrill 

Fahlstrom, Michael Kukowski, Randal Heinz 

(aka Randall Heinz), Richard L. Schleve, 

Robert R. Becker, Robert D. Hellen, Sandra Hanen,

Shari Hellen, Shawn D. Hellen, Sheryl Douglas, 

Tanner C. Schleve, Tara Booth, Thomas Smith, 

The Estate of Tracie Honeycutt (aka Traci Honeycutt),

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

FEBRUARY 8, 2024 

STATE OF NORTH DAKOTA
Trent Piseno, and Trevor Piseno Respondents

and

Wells Fargo Bank, N.A., Interested Party and Appellee

No. 20230250

In the Matter of the Estate of Caleb C. Heath, Deceased

Gayle Schleve, Personal Representative and Appellant

v.

Wells Fargo Bank, N.A., Interested Party and Appellee

No. 20230251

Appeal from the District Court of Dunn County, Southwest Judicial District, 

the Honorable Dann E. Greenwood, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Jon Bogner, Dickinson, ND, for personal representative and appellant.

Zachary E. Pelham, Bismarck, ND, for interested party and appellee.
1

Estates of Heath

Nos. 20230250 & 20230251

Jensen, Chief Justice.

GayLe Schleve (“Schleve”) appeals from a district court order granting 

Wells Fargo Bank, N.A.’s (“Wells Fargo”) motion to vacate an order establishing 

the authority of domiciliary foreign personal representatives and letters 

testamentary in the matter of the Estate of Viola J. Heath, 13-2015-PR-00016, 

and to vacate an order determining heirs and successors in the matter of the 

Estate of Caleb C. Heath, 13-2016-PR-00017. We conclude the court erred in 

determining the Dunn County District Court lacked subject matter jurisdiction 

regarding an application for foreign probate proceedings as the basis for 

granting the N.D.R.Civ.P. 60(b)(4) motion in the Estate of Viola J. Heath;

further, the district court erred in granting the N.D.R.Civ.P. 60(b)(6) motion in 

the Estate of Caleb C. Heath without providing a sufficient finding relating to 

timeliness. We reverse and remand for further determination of whether the 

judgment was void for lack of personal jurisdiction and if relief should be 

granted under Rule 60(b)(4) or if relief should be granted under Rule 60(b)(6) 

in the Estate of Viola J. Heath, and remand for a determination on the 

timeliness of the motion in the Estate of Caleb C. Heath.

I

Viola Heath and Caleb Heath were residents of Montana who owned 

mineral rights in Dunn County, North Dakota. In 1976, the Heaths executed 

wills, and Caleb Heath executed a trust agreement appointing Norwest Capital 

Management & Trust Co. (“Norwest”) as trustee. Caleb Heath’s trust provided 

for the creation of two trusts upon the death of Viola Heath; the Jackson Heath 

Educational Fund and the Jackson Heath Foundation. Caleb Heath died in 

1978, followed by Viola Heath in 1987. Following Viola Heath’s death, litigation 

was initiated between Norwest and the Heath heirs. In 1989, the litigants 

reached a settlement requiring Norwest to transfer certain probate assets to 

Viola Heath’s Estate. At this time, Bill Tisher (“Tisher”) and Schleve were 

appointed co-personal representatives of the Viola Heath Estate in Montana. 
2

In 1993, the Montana probate proceedings were terminated, and the letters of 

appointment issued to Tisher and Schleve were suspended.

In 2015, Tisher and Schleve filed for ancillary probate in Dunn County 

in the Estate of Viola J. Heath, requesting an order recognizing the authority 

of domiciliary foreign personal representatives and the issuance of letters 

testamentary. Tisher and Schleve provided the Dunn County District Court

copies of Viola Heath’s will, their appointment as personal representatives in

Montana, the 1989 Montana settlement agreement, and the docket entry from 

the Montana probate proceedings suspending their appointment. The court 

subsequently issued an order recognizing the authority of Tisher and Schleve

as domiciliary foreign personal representatives and issued letters 

testamentary.

In 2016, Schleve filed a petition to determine heirs and successors in 

Dunn County for the Estate of Caleb C. Heath. With the petition, Schleve filed 

copies of the documents they filed in the Estate of Viola J. Heath, along with 

Caleb Heath’s will, an inventory for Viola Heath’s estate, the personal 

representative mineral deed, and an affidavit of publication. An order 

determining the heirs and successors in the Estate of Caleb C. Heath was 

granted. In addition to determining the heirs and successors, the order 

included a finding that Norwest and the trust referenced in Caleb Heath’s will 

no longer existed. The order also granted to the Estate of Viola J. Heath the 

mineral rights that are the subject of this litigation and claimed by Wells Fargo 

to belong in the trusts created by Caleb Heath. Subsequent to the issuance of 

these orders, the mineral rights at issue were dispersed among Viola Heath’s 

heirs.

During the 1980s, Northwestern Union Trust Co. changed its name to 

Norwest Capital Management & Trust Co., and, in 2000, Norwest merged with 

Wells Fargo under the “Wells Fargo” name. Since then, Wells Fargo has 

managed the Jackson Heath Educational Fund and the Jackson Heath 

Foundation. During a review of the trust operations in May 2017, Wells Fargo 

discovered it was no longer receiving revenue from the Dunn County mineral 

rights. In 2018, Wells Fargo again detected revenue from the Dunn County 
3

minerals was not being received. In 2019, Wells Fargo identified the reason for 

the unpaid revenue as being the transfer of the mineral rights as part of the

Dunn County foreign probate proceedings involving the Estate of Viola J. 

Heath.

In March 2023, Wells Fargo filed a motion in the Dunn County Estate of 

Caleb C. Heath probate proceedings to vacate the 2015 order determining the 

heirs of Caleb Heath and filed a second motion in the Estate of Viola J. Heath 

probate proceedings seeking to vacate the 2016 order, which provided for the 

transfer of the Dunn County mineral interests to the heirs of Viola Heath. The 

motions were brought under N.D.R.Civ.P. 60(b)(4) and 60(b)(6). The district 

court consolidated the proceedings. In July 2023, the court granted the 

motions.

On appeal, Schleve challenges Wells Fargo’s standing to initiate the 

proceedings to vacate the orders. Schleve also asserts the district court erred 

in granting Wells Fargo’s motion to vacate the order establishing the authority 

of domiciliary foreign personal representatives and letters testamentary after 

wrongfully determining the court lacked subject matter jurisdiction at the time 

the order was issued. Schleve also argues the court erred in granting the 

motion to vacate the order determining heirs and successors based, in part, on 

a finding that because it was common knowledge Wells Fargo was a successor 

to Norwest, Schleve failed to exercise reasonable diligence by limiting service 

to notice by publication. Finally, Schleve argues Wells Fargo failed to bring the

motion to vacate within a reasonable time under N.D.R.Civ.P. 60(c)(1).

II

Schleve asserts Wells Fargo does not have standing to challenge the 

district court’s issuance of the order establishing proof of authority of 

domiciliary foreign personal representative and letters testamentary in the 

Estate of Viola J. Heath because Wells Fargo lacked sufficient interest in the 

matter. The existence of standing is a question of law, which we review de novo.

Nodak Mut. Ins. Co. v. Ward Cnty. Farm Bureau, 2004 ND 60, ¶ 12, 676 N.W.2d 

752. To be recognized as possessing standing for the purpose of participating 
4

in a proceeding, we have held a party must have sufficient interest in the 

matter as follows:

A party is entitled to have a court decide the merits of a dispute 

only after demonstrating the party has standing to litigate the 

issues placed before the court. Standing is the concept used to 

determine if a party is sufficiently affected so as to insure that a 

justiciable controversy is presented to the court.

Rebel v. Nodak Mut. Ins. Co., 1998 ND 194, ¶ 8, 585 N.W.2d 811 (cleaned up).

Caleb Heath appointed Norwest as an alternative personal 

representative over his estate and trustee of the trust Wells Fargo now 

manages. At its inception, the trust was to include the Dunn County minerals

at issue as an asset. In the Estate of Viola J. Heath, the Dunn County District 

Court issued an order establishing the authority of domiciliary foreign 

personal representatives and issued letters testamentary to Tisher and 

Schleve, along with an order determining heirs and successors. Through those 

orders, the Dunn County mineral interests were transferred to the heirs of 

Viola Heath. Wells Fargo, as the successor trustee, claiming an ownership 

interest in the Dunn County mineral rights now challenges the transfer of 

those mineral rights to the heirs of Viola Heath. Schleve contends the 

determination in the earlier proceeding that Norwest and the trust no longer 

existed and the mineral interests were never transferred to the trust

terminated any potential standing.

Wells Fargo, as the successor trustee, has an interest in asserting a claim 

to the mineral interest it contends were intended to be part of the trust 

established by Caleb Heath and were ultimately transferred to the heirs of 

Viola Heath through the two Dunn County proceedings. We conclude Wells 

Fargo has sufficient standing to challenge the order establishing the authority 

of domiciliary foreign personal representatives and letters testamentary in the 

matter of the Estate of Viola J. Heath, as well as the order determining heirs 

and successors in the matter of the Estate of Caleb C. Heath.
5

III

Schleve further asserts the district court erred when it granted Wells 

Fargo’s N.D.R.Civ.P. 60(b)(4) motion to vacate the order establishing the 

authority of domiciliary foreign personal representatives and issuing the 

letters testamentary in the matter of the Estate of Viola J. Heath. Specifically, 

Schleve contends the court erroneously determined the Dunn County District 

Court lacked subject matter jurisdiction at the time it issued the order and 

letters testamentary.

We have consistently held:

Our standard of review for motions under Rule 60(b)(iv) is plenary. 

A motion under subdivision iv is not left to the court’s discretion. 

The court’s task is purely to determine the validity of the 

judgment. If the judgment is valid, the motion must be denied. If 

the judgment is void, the court has no discretion to protect it. The 

question to be resolved is whether the judgment is void as a matter 

of law.

First W. Bank & Tr. v. Wickman, 527 N.W.2d 278, 279 (N.D. 1995) (cleaned 

up).

A judgment is void only if the district court lacks subject matter 

jurisdiction over the action itself or personal jurisdiction over the parties. 

Johnson, Johnson, Stokes, Sandberg & Kragness, Ltd. v. Birnbaum, 555 

N.W.2d 583, 585 (N.D. 1996). A district court’s misapplication of statute 

generally implicates neither subject matter nor personal jurisdiction. Matter of 

Estate of Hansen, 458 N.W.2d 264, 268 (N.D. 1990). “Subject-matter 

jurisdiction is the court’s power to hear and determine the general subject

involved in the action[.]” Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 

580 N.W.2d 583. For subject matter jurisdiction to attach, the particular issue 

to be determined must be properly brought before the court. Id. at ¶ 11. 

“[S]ubject matter jurisdiction of a district court is not determined by whether 

or not it correctly applied a statute to a particular cause of action because, to 

hold otherwise, would vest subject matter jurisdiction in a district court subject 

to divestment upon an erroneous ruling.” Hansen, at 268 (quoting Production 
6

Credit Ass’n v. Dobrovolny, 415 N.W.2d 489, 491 (N.D. 1987)). Instead, an error 

in the application of law in the proceedings may furnish grounds for appeal but 

it does not invalidate the judgment. Id.

Under N.D.C.C. § 30.1-24-06, “[a] domiciliary foreign personal 

representative who has complied with section 30.1-24-05 may exercise, as to 

assets in this state, all powers of a local personal representative and may 

maintain actions and proceedings in this state subject to any conditions 

imposed upon nonresident parties generally.” Stuber v. Engel, 2017 ND 198, 

¶ 23, 900 N.W.2d 230. To obtain appointment as a foreign personal 

representative, an applicant must fully comply with the requirements under 

N.D.C.C. § 30.1-24-05, which reads, in part, as follows:

If no local administration . . . is pending in this state, a domiciliary 

foreign personal representative may file . . . authenticated or 

certified copies of the person’s appointment and of any official bond 

the person has given, and the court shall enter an order 

establishing the filing of the copies.

In its ruling, the district court found the Dunn County District Court

lacked the subject matter jurisdiction needed to establish Tisher and Schleve 

as domiciliary foreign personal representatives because the Montana probate 

proceedings had been terminated and the personal representative’s authority 

was suspended. Specifically, the district court found as follows:

[A]s a matter of law that there no longer was a foreign probate and 

neither Tisher nor Schleve was a domiciliary foreign personal 

representative at the time they filed the Proof of Authority of 

Domiciliary Foreign Personal Representative form. As a result,

neither a North Dakota district court judge nor the Dunn County 

District Court deputy clerk who signed such had authority under 

the statute to sign the Order Establishing Authority of Domiciliary 

Foreign Personal Representative and Letters Testamentary dated 

May 6, 2015.

The record supports the district court’s holding that Tisher and Schleve 

no longer had the power to act as personal representatives in the Montana 

probate proceedings; a prerequisite for appointment as a foreign personal 
7

representative in North Dakota is proof of the authority to act as the personal 

representative in the foreign jurisdiction. Schleve does not dispute when the 

application for foreign probate proceedings was initiated in Dunn County, the 

Montana probate had been terminated, and the authority of the personal 

representatives suspended. The question presented is whether a court lacked

subject matter jurisdiction, characterized by the court’s reference to lack of 

authority, when it is not possible to satisfy all the legal requirements to 

establish a foreign probate proceeding.

We conclude the district court erred in holding the Dunn County District 

Court lacked subject matter jurisdiction regarding an application for foreign 

probate proceedings. Chapter 30.1-24, N.D.C.C., clearly provided the district 

court with the authority to consider petitions to initiate foreign probate 

proceedings. We conclude the court erred in determining the Dunn County 

District Court lacked subject matter jurisdiction to issue an order in the Estate 

of Viola J. Heath.

Although the district court based its ruling on the erroneous finding that 

the Dunn County District Court lacked subject matter jurisdiction regarding 

an application for foreign probate proceedings under N.D.R.Civ.P. 60(b)(4), a 

judgment can be void if the court lacked personal jurisdiction over the parties.

Here, the court concluded Wells Fargo was not properly served in the Estate of 

Caleb C. Heath proceedings, but did not make a determination whether the 

Dunn County District Court had adequate personal jurisdiction over the 

parties in the Estate of Viola J. Heath. Additionally, Wells Fargo moved to 

vacate the orders under both Rule 60(b)(4) and 60(b)(6). However, presumably

because it had already concluded relief was available under Rule 60(b)(4), the 

court did not rule on Wells Fargo’s Rule 60(b)(6) motion to vacate. As such, we

reverse and remand for further determination of whether the judgment was 

void for lack of personal jurisdiction and if relief should be granted under Rule 

60(b)(4), or if relief should be granted under Rule 60(b)(6).

IV

Schleve asserts the district court erred when it granted Wells Fargo’s 

N.D.R.Civ.P. 60(b)(6) motion to vacate an order determining heirs and 
8

successors in the matter of the Estate of Caleb C. Heath by improperly taking 

judicial notice that it was common knowledge Wells Fargo was the successor 

to the prior trustee. Schleve also argues the court failed to make adequate 

findings as to whether the Rule 60(b)(6) motion was brought within a 

reasonable time.

We review a district court’s decision to grant a party relief under Rule

60(b)(6) under the abuse of discretion standard:

[I]ts decision whether to vacate the judgment will not be disturbed 

on appeal unless the court has abused its discretion. The trial court 

abuses its discretion when it acts in an arbitrary, unreasonable, or 

unconscionable manner. A trial court acts in an arbitrary, 

unreasonable, or unconscionable manner when its decision is not 

the product of a rational mental process by which the facts and law 

relied upon are stated and considered together for the purpose of 

achieving a reasoned and reasonable determination.

Kopp v. Kopp, 2001 ND 41, ¶ 7, 622 N.W.2d 726 (internal citations omitted). 

Rule 60(b)(6) provides relief “when the movant demonstrates it would be 

manifestly unjust to enforce a court order or judgment, and provides an escape 

from the judgment, unhampered by detailed restrictions.” Kopp, 2001 ND 41, 

¶ 10. When a judgment is “so blatantly one-sided or so rankly unfair under the 

uncovered circumstances that courts should not enforce it,” this rule allows the 

court to vacate the judgment to accomplish justice. Id. Under N.D.R.Civ.P. 

60(c)(1), “[a] motion under Rule 60(b) must be made within a reasonable 

time[.]” 

Schleve asserts the district court erred in taking judicial notice that

Wells Fargo was a successor to Norwest.

We review a district court’s decision to take judicial notice of 

evidence under an abuse of discretion standard. A court abuses its 

discretion when it acts in an arbitrary, unreasonable, or 

unconscionable manner, it misinterprets or misapplies the law, or 

if its decision is not the product of a rational mental process 

leading to a reasoned determination. 
9

Orwig v. Orwig, 2021 ND 33, ¶ 6, 955 N.W.2d 34 (internal citations omitted).

Under N.D.R.Ev. 201(b), “The court may judicially notice a fact that is 

not subject to reasonable dispute because it: (1) is generally known within the 

trial court’s territorial jurisdiction; or (2) can be accurately and readily 

determined from sources whose accuracy cannot reasonably be questioned.” A 

court “may take judicial notice on its own.” N.D.R.Ev. 201(c)(1).

In its memorandum decision, the district court took judicial notice that 

“Attorney Bogner is a contemporary of the undersigned and a lifelong resident 

of the Dickinson, North Dakota area.” The court then proceeded to use that as 

a basis in its finding that Wells Fargo’s successor status to Norwest was readily 

known to those in the area. As this is neither information generally known 

within the court’s jurisdiction nor information that can be accurately and 

readily determined, the court misapplied the law regarding judicial notice. 

Wood v. Krenz, 392 N.W.2d 395, 396 (N.D. 1986) (a judge cannot take judicial 

notice of his personal experience in private practice paired with differing 

statements of industry customs to declare a custom or a fact as being generally 

known); see Guyton v. Monteau, 332 S.W.3d 687, 692 (Tex. App. 2011) (personal 

knowledge of judge is not judicial knowledge); In re C.L., 304 S.W.3d 512, 515 

(Tex. App. 2009) (a court cannot take judicial notice of a fact just because the 

judge’s recollection of a previous proceeding); City of Beaver Dam v. 

Cromheecke, 587 N.W.2d 923, 926 n.3 (Wis. Ct. App. 1998) (although a judge 

knows a fact to be true, that alone is not sufficient to show that fact is generally 

known within the territorial jurisdiction); O’Neill v. Dep’t of Revenue, 227 

Mont. 226, 739 P.2d 456, 459-60 (1987) (concluding a court could not take 

judicial notice a motel did not generate business similar to other motels in the 

area as it was based on the judge’s own impressions and not commonly known 

nor an ascertainable fact). We conclude the court abused its discretion by 

taking judicial notice that it was common knowledge Wells Fargo was the 

successor to Norwest and as a result, notice by publication was insufficient to 

provide notice of the proceedings to Wells Fargo.

Although we conclude the district court abused its discretion by taking 

judicial notice, the court determined this case is worthy of relief under Rule
10

60(b)(6) based on several factors, not just the determination Schleve failed to 

make a reasonable diligent effort to effect service on Wells Fargo or to 

determine if Norwest was merged into another entity. These included Schleve’s 

indication that the determination of heirship and successors was not intended 

as a quiet title action, the lack of evidence presented indicating interested 

parties have altered their positions since the petition was executed and 

mineral rights have been dispersed, and concerns the orders are inconsistent 

with the last wishes of Caleb Heath.

The district court ultimately concluded “[Schleve’s] actions in the two 

probates lend themselves to the perception that Schleve’s conduct was a known 

attempt to circumvent what were the outcomes in those matters,” and there 

“constitutes extraordinary circumstances which justify the relief requested.” 

As the court’s determination is a product of a rational mental process by which 

the facts and law relied, it did not abuse its discretion in determining whether 

relief was warranted under Rule 60(b)(6). 

While the district court’s findings of fact would not indicate an abuse of 

discretion in its determination, the court’s lack of findings regarding Wells 

Fargo bringing the motion in a reasonable time is problematic. The court’s only 

reference regarding timeliness is:

Schleve’s argument that Wells Fargo took too long to file its Motion 

to Vacate has merit, but the Court concludes that it is but one 

factor to consider and, after consideration of all of the 

circumstances, is not outcome determinative. 

This is an incorrect application of the law, as under N.D.R.Civ.P. 60(c)(1), 

“[a] motion under Rule 60(b) must be made within a reasonable time”; if not 

found to be made within a reasonable time, the motion must be denied. The 

findings present in the district court order that Wells Fargo “took too long to 

file its Motion to Vacate has merit,” but “is not outcome determinative” is not 

sufficient to make a finding that the Rule 60(b)(6) motion was timely. We 

conclude the court abused its discretion in granting the Rule 60(b)(6) motion 

vacating the order determining heirs and successors in the matter of the Estate 

of Caleb C. Heath without sufficient findings related to timeliness.
11

V

We conclude the district court abused its discretion in granting the 

N.D.R.Civ.P. 60(b)(4) motion in the matter of the Estate of Viola J. Heath, 13-

2015-PR-00016, as the Dunn County District Court did have subject matter 

jurisdiction to issue the order; however, we reverse and remand for further 

determination relating to whether the Dunn County District Court had 

personal jurisdiction over the matter, and Wells Fargo’s N.D.R.Civ.P. 60(b)(6) 

motion to vacate the judgment. Additionally, we conclude the district court 

abused its discretion in granting the Rule 60(b)(6) motion in the matter of the 

Estate of Caleb C. Heath, 13-2016-PR-00017, without sufficient findings 

related to timeliness and reverse and remand for a determination. We affirm 

in part, reverse in part, and remand.

Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr