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IN THE COURT OF APPEALS OF IOWA No. 0-889 / 10-0778 Filed January 20, 2011

IN THE MATTER OF THE ESTATE OF OWEETIS FRYE, Deceased ROBERT D. FRYE, BENJAMIN D. FRYE, and HANNA M. FRYE, Beneficiaries-Appellants. ________________________________________________________________ Appeal from the Iowa District Court for Buchanan County, George L. Stigler, Judge.

Beneficiaries appeal from an order denying their motion for summary judgment to remove the executor and granting the executor's motion for summary judgment. AFFIRMED.

Mark J. Willging and Danita L. Grant of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque, for beneficiaries-appellants. Thomas P. Peffer of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for executor-appellee.

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

2 DOYLE, J. The crux of the current dispute originates from a petition to remove BankIowa as executor of the Oweetis Frye estate. The petitioners, three After

beneficiaries of the estate, claim BankIowa mismanaged the estate. 1

extensive discovery was conducted, the petitioners filed a motion for summary judgment seeking BankIowa's removal. BankIowa resisted and reque sted leave to file a cross-motion for summary judgment. The district court granted BankIowa's motion for summary judgment and denied the petitioners' motion, effectively dismissing the petition. Under the

circumstances presented to us, we agree no purpose would be served by the appointment of a successor executor at this late stage in the probate proceedings. The district court's ruling does not preclude petitioners from

litigating in the probate court their pending objections to the final report, nor does the ruling preclude the adjudication in another forum of any claims petitioners may have against BankIowa. Therefore, we affirm. I. Background Facts and Proceedings. Oweetis and Wilbert Frye had two children, sons Robert and Richard. Wilbert Frye died in 1989. His will created a residuary trust. The trust was funded by the residue of Wilbert's estate, which included several real estate tracts and all stock in Pilot Grove Farm, Inc. BankIowa was appointed trustee of the trust. The net income of the trust was to be paid to Oweetis during her lifetime. Upon her death certain real estate was to go to son Robert; certain real

Petitioners are Robert Frye, son of Oweetis, and his children, Benjamin and Hanna Frye. For clarity, we refer to them as "the petitioners" in this opinion.

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3 estate was to go to son Richard; the Pilot Grove Farm stock was to go to Richard; and the remainder of the trust assets were to be paid one-half to Robert and one-half to Richard. Oweetis Frye died on February 19, 2007. BankIowa filed its final trust report in October 2007. Robert and his two children, Benjamin and Hanna Frye, filed objections to the trust report and requested BankIowa be removed as trustee. Contending the objectors lacked standing, BankIowa filed a motion to dismiss. The district court granted the motion, and the objectors appealed. This court affirmed the dismissal.2 Oweetis's will named her sons and her five grandchildren as beneficiaries.3 BankIowa was appointed as executor on February 23, 2007.

Robert, Benjamin, and Hanna filed a petition to remove BankIowa as executor on May 29, 2008, alleging BankIowa breached its fiduciary duties and mismanaged the estate. BankIowa filed a response on June 24, 2008, and it filed its

"Executor's Final Report and Application for Discharge" the next day. The other grandchildren beneficiaries joined in BankIowa's response to the petition for removal. The petitioners also filed an objection to the final report, to which

BankIowa responded. The objection remains pending in the estate. On July 28, 2008, the petitioners filed a motion to dismiss the final report. In the meantime, BankIowa filed a supplemental response to the petition for

In so affirming, this court held Benjamin and Hanna had no standing to allege BankIowa breached its fiduciary duty to the trust, and, although Robert was an interested party as a remainder beneficiary of the trust, he had no standing to invoke judicial intervention in the trust case. See In re Will of Frye, No. 08-0775 (Iowa Ct. App. Feb. 4, 2009). 3 Oweetis's son Richard preceded her in death.

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4 removal. In an August 5, 2008 order, the district court determined the application for approval of the final report was premature because of the pendency of the application to remove the executor. On January 5, 2009, BankIowa filed a motion for summary judgment claiming it was entitled to summary judgment with regard to the petitioners ' request for an order: (1) Ordering BankIowa to appear and show cause why it should not be removed as Executor of the Oweetis Frye Estate; (2) Ordering BankIowa to deliver to a successor executor a copy of any and all records, accounts and property of the estate. BankIowa argued "[t]here are no facts in dispute and there are no claims on the face of this case that a new Executor could pursue against BankIowa." The petitioners filed a resistance to the motion and BankIowa responded. By an order filed April 11, 2009, the district court denied BankIowa's motion for summary judgment. In its analysis, the court stated: Although the aforementioned facts may be clear as to the trust and the actions taken by the trustee, the overlapping role that BankIowa has played in these proceedings definitely presents a factual question for determination to be made concerning the steps necessary to protect all interests it was attempting to cover. Since [Oweetis] had suffered a stroke and was not capable of bringing about objections on her own, or changing her mind pertaining to decisions that had previously been made while her husband was alive, as it may have been prudent to appoint a guardian ad litem or attorney to represent her interest in these proceedings, thereby instructing BankIowa as her agent and the trustee of her husband's trust to make the best decisions for her as income beneficiary. To continue on with the course of conduct that had previously suited [Oweetis] may not have been financially appropriate for her given her circumstances and her medical needs. There is an issue raised in these proceedings that will need to be decided based on full evidentiary presentations. As a result, the court cannot grant summary judgment in these proceedings.

5 In November 2009, petitioners filed a motion for summary judgment, later amended, requesting removal of BankIowa as executor and appointment of a successor executor. BankIowa filed its resistance with a motion to allow a crossmotion for summary judgment.4 Although no proposed cross-motion was

attached to its filings, BankIowa's filings clearly include the substance of its cross-motion for summary judgment, the basis therefore, and the relief requested. The bank requested the court dismiss the petition and provide that any objections to the handling of the estate be heard as part of the closing of the estate or in a direct action by the petitioners against BankIowa.5 Hearing on petitioners' motion for summary judgment and BankIowa's motion to allow a cross-motion for summary judgment was held on December 22, 2009. After the petitioners' motion was fully argued, BankIowa argued for leave to file its cross-motion for summary judgment. Thereafter, the district court entered its order granting BankIowa's "motion for summary judgment" and denying petitioners' motion for summary judgment, stating: This estate has been pending for a substantial period of time. The issues that the [petitioners] raise are matters that could
Since it was less than sixty days prior to trial, BankIowa requested permission, pursuant to Iowa Rule of Civil Procedure 1.981(3), to file its motion for summary judgment. 5 The petitioners assert the grounds for BankIowa's first and second motions for summary judgment are the same and the district court's denial of the first operates as issue preclusion as to the second. We disagree. BankIowa's position in its cross-motion for summary judgment is significantly different than the position it took in its first failed motion for summary judgment. In the first, BankIowa argued the petitioners had no claim because it was not guilty of mismanagement. The court found there were genuine issues of material fact on that claim such that summary judgment was not proper. In the cross-motion, BankIowa asserts the petition should be dismissed "as any claims the Petitioners believe they have can be addressed in the normal course of the Estate or in a direct action against BankIowa."
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6 directly be litigated in an action by them against BankIowa. The estate possesses marginal assets and no purpose would be served by appointing a replacement executor in lieu of BankIowa and a new attorney for the new executor. Any matters or claims that the [petitioners] have or believe they may have against BankIowa could be litigated in a different forum with no expenses to the estate. The petitioners now appeal. II. Scope and Standards of Review. Claims for removal of an executor are tried in equity. Iowa Code

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