author: SANDSTROM, Justice. CROTHERS, Justice,

text:
    2006 ND 86
    STEEN AND BERG CO., a North Dakota Corporation, Plaintiff and Appellee v. Jean BERG as Personal Representative of the Estate of R.W. Berg, Defendant and Appellant.
    No. 20050155.
    Supreme Court of North Dakota.
    April 25, 2006.
    Robert G. Manly, Vogel Law Firm, Moorhead, MN, for plaintiff and appellee.
    Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Jean Berg, as the personal representative of the estate of R.W. Berg (“the estate”), appealed from a summary judgment ordering Steen and Berg Company (“Steen”) to pay the estate $160,741 plus interest, and ordering the estate to tender R.W. Berg’s shares and interest in the company to Steen in exchange for the payment under the terms of a stockholders’ agreement. We conclude Steen’s claim against the estate is barred by the non-claim provisions of N.D.C.C. § 30.1-19-03(2)(b), and we reverse.

I

[¶2] Steen is a Fargo automobile repair business that was formed as a corporation by R.W. Berg, his brother, James Berg, and Vernon Baenen. In 1970, they entered into a stockholders’ agreement that provided in part:

DEATH OF A STOCKHOLDER
If a Stockholder shall die, then immediately after his death the Corporation shall purchase all of his stock at its book value. The estate of the decedent shall be obligated to offer the stock for sale to the Corporation, and the offer shall be made or deemed made within 10 days after the death of the Stockholder.
DEFINITION OF BOOK VALUE
For purposes of this agreement, book value shall be the book value of the stock as reflected by the accounting records of the Corporation, as determined by an audit by the Corporation’s accountants.
In the event of death, book value shall be determined as of the end of the first full month following the date of death of the deceased stockholder.

Baenen left Steen in 1974, and the Berg brothers continued to operate the company until R.W. Berg’s death on August 10, 2001.

[¶ 3] Jean Berg, R.W. Berg’s wife, was appointed personal representative of the estate, and shortly thereafter, the parties began negotiating over R.W. Berg’s stock in the company. After the parties were unable to agree on a sales price for the purchase of R.W. Berg’s shares, Steen brought this specific performance action, in May 2002, requesting that the district court enforce the stockholders’ agreement by requiring the estate to sell R.W. Berg’s shares of the company’s stock to Steen for $148,650. According to Steen, an audit by its accountants ultimately determined the book value of the shares to be $160,741. The district court granted Steen’s motion for summary judgment and ruled the estate must comply with the terms of the stockholders’ agreement and sell the stock to Steen for $160,741 plus interest.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The estate’s appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 27-02-04, 28-27-01, and 28-27-02.

II

[¶ 5] The dispositive issue in this case is whether Steen’s action is barred by the nonclaim provisions of the Uniform Probate Code, N.D.C.C. ch. 30.1-19.

[¶ 6] A primary objective of a nonclaim statute is the expeditious and orderly processing of decedents’ estates, and if claims against a decedent’s estate are not timely filed, the claims are barred as a matter of law. Murphy v. Murphy, 1999 ND 118, ¶24, 595 N.W.2d 571. Section 30.1-19-03(2)(b),. N.D.C.C., provides:

2. All claims against a decedent’s estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devi-sees of the decedent, unless presented as follows:
b. Any other claim, within three months after it arises.

“Claims” are defined in N.D.C.C. § 30.1-01-06(7):

7. “Claims”, in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.

[¶ 7] There is no dispute that Steen’s claim is untimely if the nonclaim statute applies. However, the district court concluded the nonclaim provisions of the Uniform Probate Code did not apply because Steen was not making a “claim” against the estate. The court reasoned Steen’s action was not a “claim” because it “is not a claim for an amount due” and the company “is not seeking to extract damages from the decedent’s estate.” The court viewed Steen’s action as an attempt “to make appropriate payment to the estate for the stock certificates that the corporation is entitled to recover!] pursuant to the Agreement,” and it “would not reduce the corpus of the estate or the amount of property that would otherwise be subject to division.”

[¶ 8] We have not previously addressed whether an action to enforce a corporate buy-sell agreement is a “claim” for purposes of the nonclaim provisions of the Uniform Probate Code. This Court has interpreted the meaning of a “claim” under N.D.C.C. § 30.1-01-06(7) on two occasions. In Estate of Powers v. Powers, 552 N.W.2d 785, 786 (N.D.1996), the decedent’s nephew made an untimely claim against the estate based on the decedent’s promise that, after the decedent’s business was sold, the nephew’s profit-sharing trust certificates would be paid in full. The nephew also asserted he was entitled to $10,000 for the appraised value of a vehicle he contended he “co-owne[d]” with the decedent. Id. We ruled the nephew’s claim based on the profit-sharing trust certificates was time-barred, reasoning “[e]ven if the claim need not have been brought against the company rather than the Estate, and we construed [the nephew’s] claim as a contract action based upon [the decedent’s] alleged promise to him, [the nephew’s] request clearly constitutes a creditor’s claim against the Estate to which the non-claim statute applies.” Id. at 786-87. Noting that the definition of “claims” did not include disputes regarding title of a decedent to specific assets alleged to be included in the estate, however, we concluded the “non-claim statute is not applicable to any dispute [the nephew] may have over title to the van by virtue of his asserted joint tenancy interest.” Id. at 787.

[¶ 9] In Murphy, 1999 ND 118, ¶22, 595 N.W.2d 571, the intervenors claimed a twenty-two percent partnership interest in the Murphy Brothers Partnership, which included land and livestock. The personal representative of the estate of one of the alleged partners argued the intervenors’ partnership claims were barred by their failure to bring them in the probate proceeding. Id. at ¶ 24. The intervenors argued that their claim was not a “claim” for purposes of N.D.C.C. § 30.1-01-06(7) because they were partially claiming an interest in real property. Murphy, at ¶ 25. Relying on Powers, this Court concluded that the intervenors’ partnership claim for proceeds from the sale of livestock had already been settled in the probate proceedings and that the intervenors had not “made a ‘colorable showing’ to specific assets alleged to be included in the estate” with regard to the other demands. Id. at ¶ 31. We reasoned “the claims of the In-tervenors regarding their asserted partnership interests, to the extent not previously fully and finally litigated in other proceedings, would arise in tort or contract to which the non-claim statute is applicable,” and ruled those claims were barred by the nonclaim statute. Id.

[¶ 10] Here, in concluding Steen’s claim was not barred by the nonclaim statute, the district court relied on a statement in Powers, 552 N.W.2d at 787, in which this Court said:

[N]on-claim statutes apply only to claims against the estate of a decedent which, if allowed, would reduce the corpus of the estate or the amount of property which would otherwise be subject to division or distribution among the heirs of an intestate decedent or the legatees and devi-sees of a testate decedent. See, e.g., Matter of Estate of Pallister, 13 Kan.App.2d 337, 770 P.2d 494 (1989); Willbanks v. Goodwin, 70 Or.App. 425, 689 P.2d 1004 (1984), reversed on other grounds, 300 Or. 181, 709 P.2d 213 (1985).

The district court reasoned the nonclaim provisions do not apply in this case because, “[l]ike in Estate of Powers, the plaintiffs claim would not reduce the corpus of the estate or the amount of property that would otherwise be subject to division.”

[¶ 11] The district court’s reliance on the language in Powers is misplaced, because it relates to an alternative ruling of this Court. After holding the nonclaim statute did not apply to the nephew’s claim of a joint tenancy interest in the vehicle, we further noted that the decedent’s will provided that “if joint tenancy property ‘does not so pass for any reason, I devise said property to the co-owner, survivor or named beneficiary.’ ” Powers, 552 N.W.2d at 787. We concluded the nephew’s “assertion of rights under the specific bequest provision of the will cannot be regarded as a ‘claim’ against the estate for purposes of the non-claim statute,” and relied upon O’Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649 (1950), Pallister, and Willbanks as support for this conclusion. Those cases involved persons making claims against an estate as either the beneficiaries of a purported will or for specific performance of agreements to execute reciprocal wills naming themselves as beneficiaries. The cases merely stand for the general principle that the assertion of rights as a beneficiary under the terms of a will is not regarded as a claim against an estate. See O’Connor, 11 N.D. at 354-55, 43 N.W.2d at 654-55; Pallister, 770 P.2d at 495; Willbanks, 689 P.2d at 1007-08. Steen is not asserting any rights as a beneficiary of R.W. Berg’s will, but is seeking to specifically enforce a contract R.W. Berg had entered into involving property that is a part of the estate. Powers provides no support for the district court’s decision.

[¶ 12] In other Uniform Probate Code jurisdictions, courts have generally found that disputes over title to specific items of real or personal property, like the dispute over the vehicle in Powers, 552 N.W.2d at 787, are not “claims” under statutory counterparts to N.D.C.C. § 30.1-01-06(7). See, e.g., In re Estate of Renczykowski, 409 N.W.2d 888, 891 (Minn.App.1987) (claim for farm equipment and machinery commenced before decedent’s death not barred by nonclaim statute); Matter of Howard, 315 S.C. 356, 434 S.E.2d 254, 259 n. 8 (1993) (dispute over title to a gun was not a claim for purposes of nonclaim statute); Labayog v. Labayog, 83 Hawai'i 412, 927 P.2d 420, 441 (App.1996) (motion to enforce divorce decree ordering deceased husband to convey property to children was a demand regarding title of decedent and not subject to the nonclaim statute). We have found only one case in which a court has analyzed the Uniform Probate Code nonclaim provisions in connection with a stock purchase agreement. In Wunschel v. IDA Holding Co., 407 N.W.2d 341, 342-43 (Iowa 1987), the Iowa Supreme Court interpreted Nebraska’s Uniform Probate Code in determining whether the plaintiffs’ contract action based on a stock purchase agreement against the estate of a party to the agreement was barred by the nonclaim statute. The plaintiffs sought to enforce the stock sale provisions of the agreement and require the estate to purchase their shares. Id. at 343. The Court concluded that Nebraska’s four-month limitation period governing claims which arise at or after the death of the decedent applied, and because the claim was filed within the four-month period, the claim was not barred. Id. at 343-44.

[¶ 13] Although the fact situation in Wunsehel differs from this case because Steen is attempting to force the estate to sell, rather than purchase, shares of stock, the Wunsehel decision conforms with decisions of other non-Uniform Probate Code jurisdictions holding that nonclaim provisions apply to claims arising from buy-sell agreements. See, e.g., Grossman v. Selewacz, 417 So.2d 728, 730 (Fla.App.1982) (nonclaim statute applied to plaintiffs’ option agreement to purchase decedent’s stock); Estate of Penzenik v. Penz Products, Inc., 749 N.E.2d 61, 63-64 (Ind.App.2001) (nonclaim statute applied to corporation’s attempt to enforce buy-sell agreement to require an estate to sell its shares of stock back to the corporation); Spaceway Distrib. & Storage Co. v. Williamson, 41 Ohio App.3d 187, 535 N.E.2d 321, 325 (1987) (nonclaim statute applied to corporation’s claim under buy-sell agreement to require estate to sell decedent’s stock back to the corporation).

[¶ 14] In this case, Steen argues its action against the estate is not a “claim” for purposes of N.D.C.C. § 30.1-01-06(7), because it does not involve liabilities or debt, but involves only a dispute over the title and ownership of R.W. Berg’s stock certificates, which are specific, identifiable property. Although stock certificates might fall within the literal definition of tangible personal property, they are generally regarded as intangible property because their value is derived from the intangible rights they represent. See State ex rel. Clayburgh v. American West Cmty. Promotions, Inc., 2002 ND 98, ¶ 17, 645 N.W.2d 196; see also Grossman, 417 So.2d at 731 (an option to purchase shares in a corporation is not an option to buy specific identifiable property). “Claims” under N.D.C.C. § 30.1-01-06(7) specifically include “liabilities of the decedent ... arising in contract.” Steen would have no right to purchase the estate’s shares' of stock if it were not for the stockholders’ agreement, a contract executed by R.W. Berg.

[¶ 15] We believe the decision of the court in Estate of Leavitt, 733 A.2d 348 (Me.1999), is instructive in resolving the issue. In Leavitt, at 348, an employee of the decedent filed an untimely claim under Maine’s version of the Uniform Probate Code against the estate of his employer, contending that he owned equitable title to the deceased’s flower shop because the deceased had promised him the shop during his 32 years of employment there. The court rejected the employee’s argument that his claim should be interpreted as an issue of title exempted from the definition of “claims” under the statutory equivalent of N.D.C.C. § 30.1-01-06(7) rather than as a contract claim against the decedent’s estate. Id. at 350. The court reasoned:

Wadsworth’s claim cannot reasonably be construed as a title dispute regarding a piece of property; it is a claim that Leavitt breached his promise to devise the flower shop to Wadsworth in return for his years of employment. Such a claim falls squarely within section 1-201(4) and is subject to the time restrictions of the Code.... [Cjreative labeling cannot exempt a “claim” from the requirements of the Probate Code.

Id. Leavitt is in accord with our decision in Murphy, 1999 ND 118, ¶¶25, 31, 595 N.W.2d 571, that merely casting a claim in terms of title to property is insufficient to avoid the time limitations of the nonclaim statute if the gist of the claim sounds in tort or in contract.

[¶ 16] We reject Steen’s attempt to creatively label its claim as a dispute over title to the stock certificates exempt from the nonclaim statute. We conclude Steen’s action to specifically enforce the stockholders’ agreement is a claim that seeks to impose a liability on the estate based on a contract right to purchase shares of stock that have devolved to R.W. Berg’s heirs. Because the nonclaim provisions apply to Steen’s claim, and it is undisputed that the claim was untimely, we conclude the district court erred in awarding Steen specific performance of the stockholders’ agreement.

Ill

[¶ 17] It is unnecessary to address the other issues raised. The summary judgment is reversed.

[¶ 18] GERALD W. VANDE WALLE, C.J., and ZANE ANDERSON, D.J., concur.

[¶ 19] The Honorable ZANE ANDERSON, D.J., sitting in place of KAPSNER, J., disqualified.

CROTHERS, Justice,

dissenting.

[¶ 20] I respectfully dissent because the non-claim statute does not apply to the stockholder’s agreement (“Agreement”). I would affirm the District Court’s conclusion on that issue but would remand for trial because of material issues of disputed fact regarding availability of the specific performance remedy and regarding the amount due under the Agreement.

[¶ 21] The estate argues the non-claim statute applies and that judicial decisions from other jurisdictions support the position. See Wunschel v. Ida Holding Co., Inc., 407 N.W.2d 341 (Iowa 1987); Estate of Penzenik v. Penz Prods., Inc., 749 N.E.2d 61 (Ind.Ct.App.2001); Spaceway Distribution & Storage Co., Inc. v. Williamson, 41 Ohio App.3d 187, 535 N.E.2d 321 (1987). The Company responds that the Uniform Probate Code (“UPC”) does not apply because this case does not involve liabilities or a debt as necessary for a claim against the estate envisioned by the UPC, and because this Court held in Matter of Estate of Powers, 552 N.W.2d 785, 787 (N.D.1996), that the non-claim statute only applies to claims reducing the corpus of the estate or the amount of property otherwise subject to division.

[¶ 22] Both parties interpret the statute differently, but neither directly argues the statute is ambiguous. Yet the clear import of their arguments, taken together, is that ambiguity exists. See Phipps v. N.D. Dept. of Transp., 2002 ND 112, ¶¶ 15-16, 646 N.W.2d 704 (concluding that when each party argued for a different, but rational, interpretation of a word within a statute, an ambiguity existed). If a statute is ambiguous, “a court may resort to extrinsic aids, including legislative history, to interpret the statute.” In re G.R.H., 2006 ND 56, ¶ 15, 711 N.W.2d 587. The majority fails to perform proper statutory analysis to ascertain the meaning of North Dakota’s statute and instead embarks on a lengthy discussion of cases from foreign jurisdictions with laws different than North Dakota’s UPC. Doing so, this Court has failed to follow its own well-established precedent providing:

Statutory interpretation is a question of law subject to full review upon appeal. Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in [the Century Code] are to be understood as thus explained. When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. In construing a statute, our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving its plain, ordinary, and commonly understood meaning. We construe statutes as a whole and harmonize them to give meaning to related provisions.

In re Estate of Kimbrell, 2005 ND 107, ¶ 9, 697 N.W.2d 315 (citations and quotations omitted).

[¶ 23] Our non-claim statute provides:

All claims against a decedent’s estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as foliotes:
b. Any other claim, within three months after it arises.

N.D.C.C. § 30.1-19-03(2) (emphasis added). The term “claims” is defined for purposes of the non-claim statute:

“Claims”, in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.

N.D.C.C. § 30.1-01-06(7).

[¶ 24] First turning as we must to language of the statute, “claims” include liabilities of the decedent. The Company argues payment to the estate exceeding $160,000 cannot be rationally considered a “liability” of the estate. The estate responds that the Company’s tender of the sum due under the Agreement provides inadequate compensation for the asset taken and, therefore, the alleged underpayment constitutes a liability in the sense the corpus of the estate will be reduced.

[If 25] “Liability” is not defined in the UPC. We therefore use the ordinary, usual and commonly accepted definition of the word to interpret the statute. N.D.C.C. § 1-02-02. Liability is defined as “the quality or state of being liable,” “something for which one is liable; [especially] pecuniary obligation” and “one that acts as a disadvantage.” Merriam-Webster’s Collegiate Dictionary 715 (11th ed.2003).

[¶ 26] A contract calling for payment to an estate is not a pecuniary obligation or a disadvantage of the estate. Therefore, the payment to the estate required by the Agreement appears to fall outside the bar of the non-claim statute. However, such a conclusion would be premature because a “claim” is defined not as a liability, but “includes liabilities of the decedent.” N.D.C.C. § 30.1-01-06(7) (emphasis added). This requires consideration of the effect that inclusion of the term “includes” has on the meaning of the definition. Tenets of statutory construction require that we examine the context of the provision in question: “ ‘Statutes must be construed as a whole and harmonized ... to give meaning and effect to every word, phrase, and sentence.’ ” Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 12, 665 N.W.2d 679 (quoting Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 21, 663 N.W.2d 186).

[¶ 27] North Dakota’s non-claim statute is part of the Century Code providing for administration of claims against an estate. Chapter 30.1-19, Creditors’ Claims, contains provisions controlling notice to creditors and the presentation, classification, allowance and payment of claims. These many provisions of chapter 30.1-19 plainly are oriented towards creditors, not debtors, of the estate and resolving claims against an estate where someone wants to obtain payment from the estate. Importantly, nothing in the wording of these sections evince legislative intent that these same sections were enacted for resolution of obligations resulting in payments to the estate. Therefore, I part company with the majority and would hold the Agreement in this case is not subject to the non-claim statute based on the language of the non-claim statute, the definitions of claims and liability, and the remaining statutes in chapter 30.1-19.

[¶ 28] My conclusion in this ease is consistent with the prior holding in Estate of Powers. 552 N.W.2d at 787. In Powers this Court held “non-claim statutes apply only to claims against the estate of a decedent which, if allowed, would reduce the corpus of the estate or the amount of property which would otherwise be subject to division or distribution.... ” Id. Although based on considerably different facts, the conclusion reached in Powers is clear on its face and is consistent with my conclusion. I reach here that chapter 30.1-19 is aimed at creditors’ claims and not situations where payments are made to an estate.

[¶ 29] I also note that the district court specifically relied on this Court’s unequivocal holding in Powers to conclude the Agreement was not subject to the non-claim statute of the UPC. Yet the majority would reject the district court’s reasonable — and required — reliance on Powers and reverse when the district court did not somehow divine that the explicit holding in Powers is not reliable precedent “because it relates to an alternative ruling of this Court.” Majority opinion at ¶ 11. If indeed Powers stands for the limited proposition cited by the majority, that part of Powers should be overruled and not just marginalized as useless and confusing judicial debris.

[¶ 30] Daniel J. Crothers

Mary Muehlen Maring


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2006 ND 88
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 5, with Chambers in Ellendale, North Dakota, Southeast Judicial District.
    No. 20060035.
    Supreme Court of North Dakota.
    April 26, 2006.
   PER CURIAM.

[¶ 1] On February 3, 2006, Governor John Hoeven officially notified the Supreme Court that the Honorable Ronald E. Goodman, Judge of the District Court, designated as Judgeship No. 5 with chambers in Ellendale, Southeast Judicial District, is retiring on August 1, 2006. Judge Goodman’s impending retirement will create a vacancy under Section 27-05-02.1, N.D.C.C.

I. Judicial Vacancy

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy filled in its current location or order the vacant office transferred to any location in which a judge is necessary for effective judicial administration. N.D.C.C. § 27-05-02.1(5).

[¶ 3] Under N.D. Sup.Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the Southeast Judicial District was posted February 8, 2006, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were invited and a hearing held March 27, 2006. This procedure is sufficient for purposes of the consultation required under N.D.C.C. § 27-05-02.1.

[¶ 4] ■ A Report containing population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, was filed March 13, 2006, by the Southeast Judicial District.

[¶ 5] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data. As noted below in ¶ 8, the district, as a whole, experiences a shortage of judicial resources with the current number of judges chambered within the district. We determine that Judgeship No. 5 is necessary for effective judicial administration in the Southeast Judicial District.

II. Chamber Location

[¶ 6] The Southeast Judicial District has six district judgeships serving eleven comities. The judgeships are currently chambered in Ellendale, Jamestown, New Rockford, Valley City and Wahpeton. The counties served are Barnes, Dickey, Eddy, Foster, Griggs, LaMoure, Ransom, Rich-land, Sargent, Stutsman and Wells. While chamber location may always be considered by this Court when a judgeship is being vacated, no Petition for Relocation of Judgeship No. 5, with chambers in Ellen-dale, has been filed. Nonetheless, we have reviewed information under the criteria identified in N.D. Sup.Ct. Admin. R. 7.1, § 4. Discussion of the factors follows.

a. Annual district court combined civil, criminal and formal juvenile caseload for the most recent three-year period and any discernible caseload trends or patterns.

[¶ 7] Our weighted caseload study allocates judicial resources (including judges and judicial referees) needed to handle cases after weighting each type of case by the time required to process an average case of that type. The study also allocates time not available for handling cases but which is required from a judge, such as for travel and for the presiding judge to handle administrative matters. The resulting computation expresses the minimum judicial resources as the judicial Full Time Equivalent (“judicial FTE”) required to meet the needs of the district based upon weighted case filings. When minimum judicial FTE’s are compared to available judicial FTE’s, the difference is expressed as a positive number, indicating there are more judicial resources available than current weighted case filings require, or a negative number, indicating there are fewer judicial resources than are needed to serve those weighted case filings. Ideally a judicial district as a whole would show a small positive number, indicating judicial resources for that district have a margin for contingencies such as the prolonged illness of a judge and similar circumstances not currently accounted for in the weighted caseload study as well as some margin for error in the' structure of the study.

[¶ 8] Our study shows the Southeast Judicial District continues to have a shortage of judicial resources.

Weighted Judicial PTE

Year Pilings Required Difference

2003 419,243 6.96 -0.96

2004 443,445 7.35 -1.35

2005 430,669 7.15 -1.15

See Petition to Change Judgeship from Valley City to Jamestown, 2002 ND 124 ¶¶ 6 and 7, 650 N.W.2d 808, regarding judicial resources in the Southeast Judicial District from 1997 through 2001.

[¶ 9] Judicial overages and shortages in counties in which judgeships are chambered are listed in the chart below.

Year Barnes Dickey Eddy Richland Stutsman

-2003 0.86 0.64 0.80 -0.35 -1.07

2004 0.68 0.62 0.79 -0.48 -1.23

2005 0.68 0.61 0.79 -0.44 -1.20

Judicial shortages for counties that have no chambered judgeships are listed in the chart below.

Year Foster Griggs LaMoure Ransom Sargent Wells

2003 -0.25 -0.14 -0,46 -0.40 -0.24 -0.33

2004 -0.27 -0.18 -0.28 -0.44 -0.26 -0.32

2005 -0.25 -0.17 -0.20 -0.43 -0.22 -0.32

[¶ 10] The Report filed by the Southeast Judicial District indicates that Judgeship No. 5, while chambered in Dickey County, is responsible for the caseload in Dickey, LaMoure and Sargent Counties, as well as a share of the caseload in Ransom and Richland Counties. These five counties currently have a combined judge shortage of 0.68. The remaining six counties in the Southeast Judicial District have a combined judge shortage of 0.47. Eddy, Dickey and Barnes Counties, which have chambered judgeships, are the only counties with judicial overages. Both Richland and Stutsman Counties have chambered judgeships, and show a judicial shortage, with the largest shortage being in Stuts-man County.

[¶ 11] An overage in a chambered county addresses the needs of non-chambered counties as well as other chambered counties within the district, because judges regularly provide services in counties other than the chambered county. Given the geographical proximity of chambered and non-chambered counties in the district, the judicial overages in Barnes and Eddy Counties are most proximate to the judicial shortage in Stutsman County, and the overage in Dickey County is most proximate to the shortage in Richland County.

b. Number and location of attorneys.

[¶ 12] There are 31 licensed attorneys in Dickey, LaMoure, Ransom, Richland and Sargent Counties. The majority of those attorneys, 16, are in Wahpeton. Dickey County, where Judgeship No. 5 is chambered, has 4 attorneys. The remaining counties in the Southeast Judicial District have 51 attorneys, with 21 of those in Jamestown, and 17 in Valley City.

c. Community facilities (restaurants, motels, etc.), and d. Convenience of travel access from surrounding communities (highway, bus, train, air, and parcel services, etc.).

[¶ 13] Except for communities centrally located, these factors would favor moving all judgeships to larger communities, which in this instance would be Jamestown or Wahpeton.

e. Compliance with or commitment to court facility standards.

[¶ 14] The Report filed by the Southeast Judicial District indicates that every county in the district maintains court facilities, and that the individual counties take great pride in their local courthouses, especially the courtrooms.

f. Proximity to detention facilities for adults and juveniles.

[¶ 15] There are Class I jails in Barnes, Stutsman and Richland Counties. A Class I jail allows an inmate to be held up to one year. Stutsman County is also the location of the James River Correctional Center, operated by the Prisons Division of the North Dakota Department of Corrections and Rehabilitation. In addition, the State Hospital for the Mentally Ill is in Stutsman County. To the extent the presence of these institutions makes demand upon our judicial resources, the demand has been reflected in our weighted caseload studies and are indicated in ¶¶ 8 and 9 above. We do not find it a significant factor that Ellendale, the chamber location of Judgeship No. 5, does not have a Class I jail. The Southeast Judicial District acknowledges this is a traveling judgeship primarily responsible for the caseload in three counties, and partially responsible for the caseload in two additional counties.

g. Cooperative court service arrangements with the county courts.

[¶ 16] This factor is obsolete, and has no bearing on the location of the chambers of Judgeship No. 5.

h. Proximity to a Human Service Center of the Department of Human Services.

[¶ 17] The Department of Human Services operates eight regional human service centers. Each provides help to individuals and families with concerns including family and relationship issues, mental illness, addiction, disabilities, and other needs. The counties of the Southeast Judicial District are served by either the South Central Human Service Center, which is located in Jamestown, or the Southeast Human Service Center, which is located in Fargo.

i. Impact of any change of chamber on travel time for judges, court personnel, attorneys, and litigants.

[¶ 18] The Southeast Judicial District is a high travel district. Our weighted caseload study allocates 9,225 minutes per year to each judge in the district for travel. It is unclear if we were to transfer Judgeship No. 5 to Jamestown or Wahpe-ton whether the total mileage chargeable to the state would be reduced. Both Judge Simonson and Judge Paulson, chambered in Valley City, currently travel to Jamestown on a regular basis, which is a distance of 32 miles. However, if Judgeship No. 5 were to be moved to Jamestown they would have to travel, perhaps less frequently, to LaMoure, Ransom, Dickey, Sargent and Richland Counties. The distance from Valley City to Wahpeton is 111 miles; to Ellendale, 87 miles; to Lisbon, 52 miles; to LaMoure, 51 miles; and to Forman, 76 miles. If Judge Bekken, who is chambered in New Rockford, assists in the disposition of the caseload in these five counties, the distances to the various county seats increase by as much as 92 miles. Likewise, if the judgeship were moved to Wahpeton, the distance to Ellendale is 110 miles; to Lisbon, 65 miles; to LaMoure, 94 miles; and to Forman, 59 miles. Presumably, there would also be the periodic need to travel to Jamestown to assist in disposition of the caseload, which is 144 miles from Wahpeton.

[¶ 19] In projecting travel distances, we are mindful the governing statute, Section 27-05-08, N.D.C.C., does not require a judge to live in the city where the chambers are located, but only requires the judge to live within the district where the chambers are located. Therefore, if we were to transfer the judgeship, the actual impact on travel time of the judge appointed to Judgeship No. 5 is unknown at this time.

j. Population distribution in the judicial district or defacto subdistrict.

[¶ 20] We have previously reviewed the population trends of the Southeast Judicial District. See 2002 ND 124 ¶¶ 12 and 13, 650 N.W.2d 808. The population of the district declined to 84,481 in 2005 and is projected to decline to 82,214 in 2015. See North Dakota State Data Center, Population Projections in North Dakota: 2005-2020, available at http://unow.ndsu. no-dak.edu/publications /population/18J) release.pdf (Issued September 2002). The population in Barnes, Eddy, Foster, Griggs, Stutsman and Wells Counties is 46,672. There are four judgeships primarily responsible for the caseload in these counties. The population of Dickey, La-Moure, Ransom, Richland and Sargent Counties is 37,809. There are two judge-ships primarily responsible for the caseload of these counties.

[¶ 21] Despite the impact of population concentration on demand for judicial services, we remain mindful of the legislative policy directing a percentage of chambers to be located in our state’s smaller cities. Section 27-05-08, N.D.C.C., provides: “However, not more than seventy percent of the chambers of the district judges may be located in cities with, a population of more than ten thousand.” The North Dakota State Data Center reports the population of Ellendale as 1,559 and Jamestown as 15,527 based on the 2000 census. Currently 33 percent of judicial chambers are located in cities of less than 10,000. Transfer of this judgeship to Jamestown would bring us to the statutory limit, which will reduce the flexibility needed to respond to population shifts and still comply with Section 27-05-08, N.D.C.C. Transferring the judgeship to Wahpeton, which has a population of 8,586, would have no effect on the current percentages. Compliance with the statutory directive has created and will continue to create inefficiencies within the judicial system. ⅛. Impact on affected judicial system employees (juvenile, transcript preparation, and clerks of district court).

[¶ 22] The relocation of a judgeship may impact all staff. Although moving Judgeship No. 5 to one of the larger cities in the district may aid in transcript preparation, as there would be additional employees to cover court duties when a transcript deadline is approaching, this is not a predominate factor that favors moving the judgeship.

1. Recommendation of the presiding judge of the judicial district, after consultation with the judges of the judicial district.

[¶ 23] The Report filed by the district contains no recommendation on the location of Judgship No. 5.

[¶ 24] We have expressed a preference to change the designations of district judgeships upon the vacancy of a judgeship rather than moving a sitting judge. See 2002 ND 124, ¶ 17, 650 N.W.2d 808, and Matter of the Considtations Under Section 27-05-02.1, 1999 ND 226, ¶ 38, 603 N.W.2d 57. Additionally, the requirement of adequate judicial services must be the primary consideration of the Court’s exercise of its authority to designate the location of judgeships under Section 27-05-02.1, N.D.C.C. We recognize a number of the factors favor moving a judgeship to Jamestown or Wahpeton, which are located in the two largest counties in the district. However, this vacancy does not appear to be the most appropriate vacancy in the district to transfer, and we do not believe a review of the factors compels a transfer of Judgeship No. 5.

[¶ 25] We have confidence that the Honorable John T. Paulson, Presiding Judge of the Southeast Judicial District, together with the judges of the district and their successors, will continue to do their best to provide routine, effective judicial services throughout the district.

[¶ 26] IT IS HEREBY ORDERED, that Judgeship No. 5 of the Southeast Judicial District, with chambers in Ellen-dale, be filled in the manner provided by N.D.C.C. Chapter 27-25.

[¶ 27] GERALD W. VANDEWALLE, C.J., DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, JJ., concur.


text:
    2006 ND 89
    IN THE MATTER OF THE JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 4, WITH CHAMBERS IN DICKINSON, NORTH DAKOTA, SOUTHWEST JUDICIAL DISTRICT.
    No. 20060098.
    Supreme Court of North Dakota.
    May 4, 2006.
   PER CURIAM.

[¶ 1] On March 30, 2006, Governor John Hoeven officially notified the Supreme Court that the Honorable Ronald L. Hilden, Judge of the District Court, with chambers in Dickinson, Southwest Judicial District, is retiring effective November 1, 2006. Judge Hilden’s impending retirement will create a vacancy under Section 27-05-02.1, N.D.C.C.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy filled or order the vacant office transferred to a judicial district in- which an additional judge is necessary, to be filled in that district.

[¶ 3] Under N.D. Sup.Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the South Central Judicial District was posted April 5, 2006, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through May 1, 2006. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., this procedure is sufficient for determining the disposition of this vacancy.

[¶ 4] A Report containing population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, was filed April 21, 2006, by the Southwest Judicial District.

[¶ 5] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court determines that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship at Dickinson in the Southwest Judicial District be filled in the manner provided in N.D.C.C. Chapter 27-25.

[¶ 8] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE Y. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


author: CARTER, Justice.

text:
    Mary Jane SIEH, Executor of the Estate of Edward A. Sieh, Appellant, v. Rodger Alan SIEH and Carene Ellen Larsen, Trustees under the Edward A. Sieh Trust Agreement Dated May 19, 1992; Rodger Alan Sieh, Individually; and Carene Ellen Larsen, Individually, Appellees.
    No. 04-1219.
    Supreme Court of Iowa.
    March 17, 2006.
    Rehearing Denied April 19, 2006.

      Paul C. Peglow of Johnson, Sudenga, Latham, Peglow & O’Hare, P.L.C., Mar-shalltown, for appellant.
    Mark E. Kirk and Jen Bries of Ball, Kirk & Holm, P.C., Waterloo, for appel-lees.
   CARTER, Justice.

Mary Jane Sieh, surviving spouse of Edward A. Sieh, deceased, who has elected against his will, appeals from an order in probate refusing to include the assets of a revocable inter vivos trust created by Edward during his lifetime as property subject to Mary Jane’s statutory share under Iowa Code section 633.238 (2003). The appellees are Rodger Alan Sieh and Car-ene Ellen Larsen, Edward’s son and daughter, who are the beneficiaries of the inter vivos trust. After reviewing the record and considering the arguments presented, we conclude that because Edward had full control of the assets of the inter vivos trust at the time of his death, including the power to revoke the trust, the trust assets were property possessed by the decedent during the marriage and thus subject to the spouse’s statutory share under section 633.238. We reverse the judgment of the probate court and remand the,case to that court for recomputing Mary Jane’s statutory share under that statute.

The revocable inter vivos trust at issue here was created by Edward on May 19, 1992. At that time, he was unmarried. On the day the trust was created, Edward transferred all of his personal effects, furniture, appliances, vehicles, tools, and shop equipment to the trust. On December 23, 1992, he transferred a substantial amount of Grundy County farmland owned by him to the trust. On June 21, 1998, Edward married Mary Jane. They remained married until Edward’s death on September 25, 2003.

Rodger and Carene caused Edward’s will to be proved and filed without present administration and notice of that act was published on October 9, 2003, and October 16, 2003. They also caused to be published on October 16, 2003, and October 23, 2003, the following notice:

To all persons regarding Edward A. Sieh, deceased, who died on or about September 25, 2003. You are hereby notified that Carene Ellen Larsen and Rodger Alan Sieh are the trustees of the Edward A. Sieh trust....
Any action to contest the validity of the trust must be brought in the district court of Grundy County, Iowa, within the later to occur of sixty days from the date of second publication of this notice, or thirty days from the date of mailing this notice to all heirs of the decedent, spouse of the decedent, and beneficiaries under the trust whose identities are reasonably ascertainable....
Creditors having claims against the trust must mail them to the trustee at the address listed below via certified mail, return receipt requested. Unless creditor claims are mailed by the later to occur of sixty days from the second publication of this notice or thirty days from the day of mailing this notice, a claim shall be forever barred.

A copy of the foregoing notice, which was in compliance with Iowa Code section 633.3109, was mailed to Mary Jane.

On February 20, 2004, Mary Jane caused herself to be appointed executor of Edward’s estate and published notice thereof pursuant to Iowa Code section 633.304. She immediately filed an election to take against the will. She then sought a declaratory decree in probate establishing that the assets of the revocable trust should be included in the statutory share that she would receive as a result of her election against the will. Both Mary Jane and the appellees moved for summary judgment. The court overruled Mary Jane’s motion and granted appellees’ motion.

I. Scope of Review.

Because the ruling being appealed was made by sustaining the appellees’ motion for summary judgment, we review the issues presented for errors at law. Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004). We examine the record to determine whether any genuine issue of material fact exists and whether the court correctly applied the law. Id.; Hegeman v. Kelch, 666 N.W.2d 531, 533 (Iowa 2003).

II. Probate Court’s Ruling.

In granting summary judgment in favor of appellees, the probate court concluded that, because the revocable inter vivos trust existed as a legally recognized entity separate and distinct from the estate of the decedent, the trust assets were not subject to a surviving spouse’s election under section 633.238. In so ruling, the court acknowledged a split of authority on this issue from other jurisdictions. Cases cited by the court that agreed with its view included Bezzini v. Department of Social Services, 49 Conn.App. 432, 715 A.2d 791 (1998); Taliaferro v. Taliaferro, 252 Kan. 192, 843 P.2d 240 (1992); Soltis v. First American Bank, 203 Mich.App. 435, 513 N.W.2d 148 (1994); and Dumas v. Estate of Dumas, 68 Ohio St.3d 405, 627 N.E.2d 978 (1994). The court also noted in its ruling that the Iowa Court of Appeals in considering a request for a spouse’s twelve-month subsistence allowance under Iowa Code section 633.374 has held that the assets of a revocable trust created by the decedent are not available for the payment of such allowance. In re Estate of Epstein, 561 N.W.2d 82, 87 (Iowa Ct.App.1996).

Cases considered by the district court that subjected the assets of a revocable trust to a surviving spouse’s election included Dunnewind v. Cook, 697 N.E.2d 485, 489 (Ind.Ct.App.1998), and In re Estate of Inter, 444 Pa.Super. 417, 664 A.2d 142, 147 (1995). The results in the latter two cases are consistent with the views that have been expressed by the American Law Institute in the Restatement (Third) of Property (Wills & Don. Trans.) and the Restatement (Third) of Trusts. The Restatement (Third) of Property provides:

In a state whose statute subjects the decedent’s “estate” to the [spouse’s elective share], the elective share is applied to the value of the decedent’s estate which, for purposes of calculating the elective share, includes (i) the value of the decedent’s probate estate, (ii) the value of property owned or owned in substance by the decedent immediately before death but passed outside of probate at the decedent’s death to donees other than the surviving spouse, and (iii) the value of irrevocable gifts to donees other than the surviving spouse made by the decedent in anticipation of imminent death.

Restatement (Third) of Property: Wills and Donative Transfers § 9.1(c) (2003). Comment j to this section of the Restatement provides:

Although property owned or owned in substance by the decedent immediately before death that passed outside of probate at the decedent’s death is not part of the decedent’s probate estate, such property is owned in substance by the decedent through various powers or rights, such as the power to revoke, withdraw, invade, or sever, or to appoint the decedent or the decedent’s estate as beneficiary. Consequently, for purposes of calculating the amount of the [spouse’s] elective share the value of property owned or owned in substance by the decedent immediately before death that passed outside of probate at the decedent’s death to donees other than the surviving spouse is counted as part of the decedent’s “estate.”. The decedent’s motive in creating, exercising or not exercising any of these powers is irrelevant.

Restatement (Third) of Property: Wills and Donative Transfers § 9.1 cmt. j (2003) (emphasis added).

The Restatement (Third) of Trusts provides:

A trust that is not testamentary is not subject to the formal requirements of § 17 [requirements for execution and witnessing]' or to procedures for the administration of a decedent’s estate; nevertheless, a trust is ordinarily subject to substantive restrictions on testation and to rules of construction and other rules applicable to testamentary dispositions, and in other respects the property of such a trust is ordinarily treated as though it were owned by the settlor.

Restatement (Third) of Trusts § 25 (2003). Comment d of this restatement provides:

[I]n most American jurisdictions the surviving spouse of a married decedent is entitled to a share of the estate of which the spouse cannot be deprived by the decedent’s will in the absence of an election by the spouse to accept something less or different, or nothing, as may be provided by the decedent’s will. Although modern versions of these so-called “forced” or “elective” share statutes vary considerably in language and in details of implementation, a married property owner cannot properly circumvent the policy of such statutes through the use of an inter vivos trust that is revocable, directly or indirectly (such as through an unrestricted power of amendment or appointment), by the set-tlor.

Restatement (Third) of Trusts § 25 cmt. d (2003).

The issue now presented to this court is one of first impression. Over ninety years ago, we determined that the assets in an irrevocable trust created by a deceased spouse during his lifetime could not be included in the surviving spouse’s statutory share following an election against the will. Haulman v. Haulman, 164 Iowa 471, 484, 145 N.W. 930, 935 (1914). In so holding, we emphasized the lack of control that the decedent had over the trust assets. Id. In the present case, the decedent had complete control over the trust assets at all times prior to his death. Under the position adopted by the American Law Institute in the restatements to which we have referred, that fact would allow the assets in the revocable trust to be included in the statutory share of Edward’s spouse electing against the will. We adopt the view of the American Law Institute on this issue. Although Edward very likely did not intend for Mary Jane to share in any of the trust assets, we are satisfied that this is her right by reason of section 633.238.

In adopting this position, we are influenced by the fact that we have previously recognized the right of a general creditor to proceed against the assets in a revocable inter vivos trust for purposes of satisfying a valid claim filed in the estate of the settlor. In re Estate of Nagel, 580 N.W.2d 810, 811 (Iowa 1998). Although the appel-lees point out that the trust in Nagel contained language authorizing the payment of debts, we did not decide the case on that basis. We relied on the principle that a trust settlor should not be allowed to retain all the benefits of ownership without assuming any of the burdens. Id.

We are convinced that the rights of a surviving spouse should not be less favored than the interests of general creditors. We conclude that the district court erred in not subjecting the assets of the revocable inter vivos trust created by Edward to Mary Jane’s spousal election under section 633.238.

III. Whether Mary Jane’s Election is Time Barred Pursuant to Iowa Code Section 633.3109.

The district court concluded that, even if Mary Jane was entitled to subject the assets of the revocable trust to her spousal election, that election was time barred by reason of Iowa Code section 633.3109. That statute provides for the giving of notice of the type served on Mary Jane by the trustees and provides that, unless an action to contest the validity of the trust is brought within the later to occur of sixty days from the date of the second publication of the notice or thirty days from the date of mailing the notice, such claims are barred. Iowa Code § 633.3109(3)(d). This statute further provides creditors having claims against a trust must

mail proof of their claim to the trustee via certified mail, return receipt requested, within the later to occur of sixty days from the second publication of the notice or thirty days from the date of mailing of the notice, or thereafter be forever barred.

Iowa Code § 633.3109(3)(e).

Mary Jane urges that this statute does not operate to bar her effort to include the assets of the revocable trust in the statutory share to which she is entitled by reason of her timely election against Edward’s will. We agree. Pursuant to her election to take against the will, the district court had authority to decide whether her statutory share embraced the trust assets by ruling in the estate proceedings. It was not necessary for Mary Jane to file a claim in the trust or bring a separate action involving the trust in order to obtain the relief she was seeking. An analogous situation exists with regard to creditors filing claims in an estate following the publication of notice under Iowa code sections 633.230 or 633.304. Those creditors may seek to subject revocable trust assets to their claims in the estate proceeding through the regular claims process and are not subject to the requirements of section 633.3019(3). Iowa Code § 633.3019(2). The notice and bar provisions of section 633.3019(3) are conditioned on an absence of proper notice to creditors in the estate proceeding. See id.

We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is remanded to that court for a determination of Mary Jane’s spousal share under section 633.238 in accordance with the directives of this opinion.

REVERSED AND REMANDED.

      .Pursuant to Iowa Code section 633.238 (2003), a surviving spouse electing against the will is entitled to the following share of the estate:
      If the surviving spouse elects to take against the will, the share of such surviving spouse will be:
      1. One-third in value of all the legal or equitable estates in real property possessed by the decedent at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the surviving spouse has made no relinquishment of right.
      2. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution.
      3. One-third of all other personal property of the decedent that is not necessary for the payment of debts and charges.

      . Section 2-202 of the Uniform Probate Code also provides for an augmented estate in computing the spousal elective share, including assets in revocable trusts created by the deceased's spouse. After this case had been decided in the district court, the Iowa legislature amended section 633.238 to include the assets in revocable trusts created by a deceased spouse in the surviving spouse's statutory share. 2005 Iowa Acts ch. 38, § 14. This legislation would be significant to our present consideration only if our attempt to determine what the law was prior to the amendment leaves us with some doubt. Bob Zimmerman Ford, Inc. v. Midwest Auto. I, L.L.C., 679 N.W.2d 606, 610 (Iowa 2004). For the reasons we indicate in our opinion, it does not.


author: LAVORATO, Chief Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Kay E. DULL, Respondent.
    No. 05-2024.
    Supreme Court of Iowa.
    April 28, 2006.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.
    Kay E. Dull, Spirit Lake, pro se.
   LAVORATO, Chief Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct, now the Iowa Supreme Court Attorney Disciplinary Board, filed a multi-count complaint against attorney Kay E. Dull. The allegations of misconduct fall into four categories: appearing in court while under the influence of alcohol; being convicted of operating a motor vehicle while intoxicated (OWI), third offense; neglecting legal matters entrusted to her; and failing to respond to inquiries from the Board.

Following a hearing, the Grievance Commission of the Iowa Supreme Court found that Dull had violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers. The Board and Dull filed a stipulation with the Commission for a one-year suspension to run concurrently with a temporary suspension we imposed on March 11, 2003. The Commission rejected the stipulation and recommended that Dull’s license to practice law be suspended for two years from the date of its hearing, September 29, 2005. We agree with the Commission’s findings and recommendation of a two-year suspension but order that such suspension run from the date of this opinion. We rescind the March 11, 2003 temporary suspension order.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Sup.Ct. Att’y Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 178 (Iowa 2005). The Board must establish the charges by a convincing preponderance of the evidence. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 122 (Iowa 1999). “This quantum of proof is ‘something less than required in a criminal prosecution, and is something more than is required in a civil proceeding.’ ” Id. (citation omitted).

II. Facts.

On our de novo review, we find the following facts. Dull has been practicing law as a solo practitioner in northwest Iowa since 1991. From 1986 to 1991, Dull was employed by a law firm.

At the disciplinary hearing, Wanda Rae Smith, Aimee Devereaux, Jeffrey Ryan, and Ellen Langseth, Dull’s former clients, testified. Dull appeared but did not testify. The Board offered and the Commission received into evidence twenty-eight exhibits.

A. Appearing in court while under the influence of alcohol. On January 28, 2002, Dull appeared for a hearing before Judge James D. Scott while under the influence of alcohol. When the judge questioned Dull about it, she denied she had been drinking. Dull admitted these facts in her answer to the Board’s complaint.

B. Conviction of OWI, third offense. On December 31, 2002, Dull was convicted of OWI, third offense, in violation of Iowa Code section 321J.2 (2001). The offense occurred on April 25, 2002. A third offense OWI is a class “D” felony. Iowa Code § 321J.2(2)(c). Dull’s answer to the Board’s complaint did not deny these facts. In evidence is a judgment of conviction of that offense.

C. Neglect.

1. Wanda Rae Smith. In October 2000 Smith hired Dull to obtain a dissolution of marriage for Smith. Smith gave Dull $500 for the legal services necessary to dissolve her marriage. On November 17, 2000, Dull filed Smith’s petition for dissolution of marriage.

Smith began calling Dull about the progress of her case. She called Dull daily for about a month before she was ever able to speak with her. When Smith finally reached Dull, Dull put Smith on hold and never returned to the phone.

Finally, Smith had to hire another attorney to complete the matter for her. The attorney sent Dull a letter requesting Smith’s file and an itemized statement of services. Dull never responded. Consequently, the attorney had to copy the court file so the attorney could proceed to obtain the dissolution for Smith.

Once the dissolution was finalized, Smith tried to contact Dull again to recover the money she had paid Dull. Smith talked to Dull once, and Dull told her the bookkeeper would send a check for what was due Smith. Smith never received a check.

2. Aimee Devereaux. In January 2002 Dull agreed to represent Devereaux regarding $26,000 in back child support owed by Devereaux’s ex-husband. At the time, Devereaux left several original documents with Dull. The documents included a journal regarding child support issues, a divorce decree, and other court orders concerning child support matters. Dull told Devereaux that she had commitments and other issues she was working on at the time but she would get back to Devereaux in about three weeks.

After four or five weeks of no word from Dull, Devereaux tried to call her with no success. Devereaux left messages with a secretary and then with an answering machine. At first, Devereaux called to get a progress report on her case. When Dull did not return Devereaux’s calls, Dever-eaux left messages in an attempt to get her file back so she could engage another lawyer to pursue her case.

Eventually, with the help of the Dickinson County Attorney, Devereaux was able to get her file back in October 2002. Dev-ereaux had not paid Dull any retainer.

3. L.M. Dull undertook to represent L.M., a mother in a termination of parental rights appeal. On August 2, 2002, this court dismissed L.M.’s appeal for failure to prosecute the appeal. The dismissal order, which is in evidence, stated that there had been three motions to dismiss filed and each related to Dull’s failure to prosecute the appeal. The order further stated, “The appeal has been marked by delay and neglect resulting from appellate counsel’s failure to comply with the applicable rules of appellate procedure.”

4. Jeffrey D. Ryan. In late 2000 Dull began representing Ryan in a modification of a dissolution-of-marriage decree. Ryan sought to modify the decree so that he could have custody of his son. At their first meeting, Ryan gave Dull a $200 retainer. At their second and third meetings, Ryan gave Dull $500 and $300, respectively.

On February 19, 2002, Dull filed a motion to modify the decree. On April 18 trial was set for May 30. In the meantime, Ryan tried to get information from Dull about the action. Ryan asked about approaching court dates, and Dull never responded to those inquiries. Ryan learned of the May 30 trial date from his ex-wife. To make matters worse, Dull did not appear for trial on May 30. Fortunately for Ryan, the court gave him a continuance. Through the efforts of another attorney, Ryan was able to win custody of his son, which cost him $7500 in attorney fees to the new attorney and $5000 to Ryan’s ex-wife to induce her to settle.

Ryan filed a claim with the Client Security Commission for the fees he had paid Dull. Ryan was unable to recall how much the Client Security Commission had paid him, but whatever they paid him did not fully compensate him.

5. Ellen Langseth. In April 2002 Langseth’s husband filed a petition for dissolution of marriage. Langseth tried to represent herself but then sought Dull’s help in August at which time she gave Dull a $500 retainer. Dull was able to get a continuance, and as a result trial was set for October 1.

In the meantime, Langseth’s accountant tried several times to fax Dull Langseth’s financial information; the accountant was unsuccessful because Dull’s fax machine was turned off. Consequently, Dull never prepared and filed an affidavit of financial status on Langseth’s behalf as required by a pretrial order.

On the day of trial, Dull did not have the financial information the accountant was trying to fax to her. Concerned about losing her Iowa Public Employees’ Retirement System (IPERS) pension because she had no financial statement as required by the pretrial order, Langseth felt compelled to reach a settlement with her husband on her own. She settled with her husband by paying him $2700 in return for her keeping her IPERS pension and some burial plots.

6. Other cases. The Board filed two other counts alleging neglect of a client’s legal matter. Like the Commission, we find the Board failed in its proof on those allegations.

C. Failing to respond to Board inquiries. Dull failed to give any response to notices of inquiry in four of the counts. As to some of the counts, she admitted she received more than one notice of inquiry and that she did not respond. Dull failed to respond in a timely manner to the notices of inquiry from the Board in one of the counts.

III. Ethical Violations.

A. Appearing in court while under the influence of alcohol. The Commission found that Dull violated several disciplinary rules by appearing in court while under the influence of alcohol and in denying she had been drinking. These include DR 7-106(C)(6) (in appearing in a professional capacity before a tribunal, lawyer shall not engage in undignified or discourteous conduct that is degrading to a tribunal), DR 1 — 102(A)(1) (lawyer shall not violate a disciplinary rule), (4) (lawyer shall not engage in conduct involving dishonesty or misrepresentation), (5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice), and (6) (lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law).

We have found a violation of DR 7-106(C)(6) when counsel made “outrageously unprofessional” comments in a brief, Sonksen v. Legal Servs. Corp., 389 N.W.2d 386, 388-89 (Iowa 1986), and when counsel lost his temper in chambers, slammed a book on the floor, and used obscene language to criticize the judge’s refusal to grant a continuance, Comm, on Prof'l Ethics & Conduct v. Rauch, 486 N.W.2d 39, 39-40 (Iowa 1992) (per curiam). We find that Dull’s appearance in court while under the influence of alcohol and denial of such condition qualify as a display of undignified or discourteous conduct toward a tribunal in violation of this disciplinary rule. In addition, we find that such conduct also violates DR 1-102(A)(1), (4)-(6). See Iowa Sup.Ct. Att’y Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 409-10 (Iowa 2005) (holding that attorney’s conduct in appearing in court while under the influence of alcohol and in telling the judge that he had not been drinking violated DR 1 — 102(A)(1), (4)-(6)).

B. Conviction of OWI, third offense. In its complaint, the Board charged that Dull violated DR 1-102(A) by her conviction of OWI, third offense. The Commission found that Dull had violated DR 1 — 102(A)(5)—(6), a finding we adopt. See Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 880-81 (Iowa 1996) (holding that a conviction for OWI, third offense, is a violation of DR 1 — 102(A)(6)). In Marcucci, we noted that a felony conviction is “an extremely serious breach of the rules of society” and, under Iowa Code section 602.10122(1), may be grounds for revocation or suspension of a lawyer’s license. Id. at 882.

Exhibits in evidence indicate that Dull has been convicted of OWI four times with two of those arrests resulting in those convictions coming within a month’s time. Less than three months after the arrest for the offense in question, Dull was arrested for OWI, fourth offense. Less than seven months after the arrest in question, Dull was again arrested for OWI, fourth offense. We mention Dull’s OWI history to underscore her serious problem with alcohol abuse.

C. Neglect. Regarding Smith, Devereaux, L.M., Ryan, and Langseth, the Board charged that Dull violated DR 6-101(A)(3) (lawyer shall not neglect a client’s legal matter), DR 7-101(A) (lawyer shall not fail to seek the lawful objectives of a client through reasonably available means), and DR 1-102(A)(1), (5)-(6). Regarding Smith, the Board additionally charged that Dull violated DR 9-102 by not making a timely accounting and refund of the unearned portion of the retainer Smith paid Dull.

In several cases we have discussed what constitutes neglect for purposes of DR 6-101(A)(3). In Committee on Professional Ethics & Conduct v. Bitter, we said:

The rule, however, does not proscribe mere delay — it must amount to “neglect.” Application of the rule should require a lawyer to complete legal matters entrusted to him in a reasonably timely manner. If necessary, he should decline additional legal matters if accepting them would result in neglecting pending, matters, seek assistance, or disengage himself from these lingering ■matters and allow another lawyer to complete them.

279 N.W.2d 521, 524 (Iowa 1979).

More specifically, we have detailed what constitutes neglect as

“indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect usually involves more than a single act or omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith.”

Comm, on Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981) (citation omitted).

In the same vein, we said in Iowa Supreme Court Board of Professional Ethics & Conduct v. Moorman:

Neglect is not defined by our rules of ethics, but it has generally been recognized to involve indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client. Neglect is more than ordinary negligence and usually involves multiple acts or omissions. It is a form of professional incompetence that often involves procrastination, such as a lawyer doing little or nothing to advance the interests of a client after agreeing to represent the client.

683 N.W.2d 549, 551-52 (Iowa 2004) (citations omitted); accord Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 559 (Iowa 2004).

Dull’s actions toward these five clients represent a pattern of indifference and procrastination. In each instance, Dull would take the case and do little or nothing thereafter to advance the interests of the client. She repeatedly failed to return calls. In one instance when Dull did take a call, she left the client holding and never returned to talk to her. In three of the cases, the client had to retain another attorney to complete the work. In one case, Dull let an appeal be dismissed because of her inaction in failing to respond to three motions to dismiss for failure to prosecute the appeal. In another case, Dull actually showed up for a hearing but was so unprepared because of her repeated failure to communicate with the client and the client’s accountant that the client felt compelled to settle to protect her IPERS pension.

We agree with the Commission and find that Dull’s conduct towards these five clients constitutes neglect in violation of DR 6-101(A)(3) and also constitutes a violation of DR 7-101(A), and DR 1-102(A)(1), (5)-(6). Regarding Smith, we agree with the Commission and find that Dull violated DR 9-102 when she failed to make a timely accounting and refund of the unearned portion of the retainer that Smith paid Dull.

D. Failing to respond to Board inquiries. The Commission found and we agree that Dull’s failure to respond to notices from the Board regarding complaints constitutes a violation of DR 1-102(A)(5)-(6) as charged by the Board. See Iowa Sup.Ct. Att’y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 399-400 (Iowa 2005) (holding that failure to respond to Board inquiries is a violation of DR 1-102(A)(5) — (6)).

IV. Discipline.

In determining the appropriate sanction in attorney disciplinary cases, we focus on the attorney’s “ ‘ “fitness to continue in the practice of law, deterrence of others from similar conduct, and assurance to the public that the courts will maintain the ethics of the profession.” ’ ” Zenor, 707 N.W.2d at 185 (citations omitted). Additional considerations include the nature of the violations and aggravating and mitigating circumstances. Id. While we recognize that there is no standard discipline imposed for particular instances of attorney misconduct, we look to similar cases for guidance. Id.

In those cases in which neglect is the principal violation, discipline generally ranges from a public reprimand to a six-month suspension. Kadenge, 706 N.W.2d at 410. We have, however, imposed a one-year suspension for multiple instances of neglect of client’s legal matters that resulted in client harm, Iowa Sup.Ct. Att’y Disciplinary Bd. v. Maxwell, 705 N.W.2d 477, 480-81 (Iowa 2005), and a two-year suspension in a case involving multiple instances of neglect in which clients suffered harm, Moorman, 683 N.W.2d at 552-53.

Here at least one client— L.M. — was directly harmed by Dull’s neglect. L.M. lost her opportunity to appeal the termination of her parental rights due to Dull’s failure to prosecute the appeal. In Ryan’s case, Dull’s neglect delayed his custody suit not to mention the fact that Dull’s actions caused him anxiety and frustration. Langseth felt compelled to reach a settlement she otherwise might have avoided had Dull been prepared. Dever-eaux had to have legal help just to get her file back. Smith’s new attorney had to copy her court file to secure the dissolution decree because Dull would not respond to the attorney’s letter. Smith, Devereaux, and Ryan had to hire new lawyers to complete the work Dull agreed to do. Moreover, Dull never responded to Smith when she asked:for a return of the unearned retainer. Ryan went so far as to file a claim with the Client Security Commission, which paid some of the unearned retainer. These repeated instances of neglect constitute aggravating circumstances for us to consider in determining discipline. Moorman, 683 N.W.2d at 553. They alone warrant suspension for a considerable period of time.

Appearing in court in an intoxicated condition is a serious violation of our code of ethics. Kadenge, 706 N.W.2d at 410. We noted in Kadenge that in other jurisdictions sanctions for similar conduct have ranged from public reprimand to disbarment. Id. Dull compounded this serious violation by lying to the judge when she was asked if she had been drinking. See id. at 409-10.

Dull stands convicted of OWI, third offense, a felony. In our determination of appropriate discipline, we consider only this conviction because that is the only one the Board charged. The felony conviction alone could warrant revocation. See Iowa Code §§ 602.10121, 602.10122(1). In Mar-cucci, this court imposed a six-month suspension. 543 N.W.2d at 883. In that case, the only matter before the Commission was the attorney’s conviction of felony OWI. Id. at 880-81. In addition, the record showed that the attorney continued to be an effective advocate notwithstanding his problems with alcohol abuse, a mitigating factor in the attorney’s favor. Id. at 881.

Finally, there is the matter of Dull’s failure to respond to Board inquiries. Dull’s attitude in this respect reflects disdain for the disciplinary system. We have imposed a reprimand when such failure was the only misconduct considered. See Comm, on Prof'l Ethics & Conduct v. Stienstra, 390 N.W.2d 135, 136 (Iowa 1986).

Dull has been disciplined before — a reprimand in 2001 for neglect of a client’s legal matter and for failure to provide the Board with a timely response. The reprimand is an aggravating circumstance that we consider in our determination of discipline. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 656 N.W.2d 123, 126 (Iowa 2003). Another aggravating factor is experience in the practice of law. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999). Dull has practiced law since 1986 and should have been well aware that her actions constituted serious breaches of our ethical rules.

Dull stated in an answer to a Board interrogatory filed in May 2005 that she does not intend to practice law again in this state. In the same answer Dull stated she has serious health problems. She disclosed she has been diagnosed with end-stage liver disease and is awaiting a liver transplant. According to Dull, the damage to her liver creates a condition known as encephalopathy. The symptoms of this condition, she says, include confusion, fatigue, memory failure, lack of focus, and insomnia. However sympathetic we may feel, her state of health will not excuse her ethical violations because “it is our duty to protect the public we serve from lawyers rendered unfit from any cause.” Comm, on Prof'l Ethics & Conduct v. Paulos, 410 N.W.2d 260, 261 (Iowa 1987). However, we can and do consider Dull’s state of health in determining a sanction. See Iowa Sup.Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006).

In answer to another interrogatory, Dull stated that she (1) had not consumed alcohol for nine months, (2) has completed an inpatient alcohol treatment program, and (3) regularly attends Alcoholics Anonymous meetings. Like the Commission, we commend Dull for her efforts to maintain sobriety, for her recognition that she suffers from alcoholism, and for her apparent acceptance of her present situation by indicating she does not intend to practice law in Iowa.

When assessing the multiple violations and the aggravating and mitigating circumstances we have mentioned, we conclude the Commission’s recommendation of a two-year suspension is appropriate. However, we do not agree with the Commission’s recommendation that the suspension should run from September 29, 2005, the date of the disciplinary hearing. Rather we conclude the suspension should run from the date of this opinion.

In a case strikingly similar to this one, we imposed a sanction of eighteen months for neglect of legal matters, mishandling a client trust account, misrepresentations to another member of the bar, misdemeanor conviction for public intoxication arising out of a court appearance, denying to the court that he had been drinking, and failing to respond to Board inquiries. Ka-denge, 706 N.W.2d at 405, 409. The material difference is that Kadenge was not convicted of a felony, and had no prior disciplinary violations. Id. at 407, 410-11.

Y. Disposition.

We suspend Dull’s license to practice law in this state indefinitely with no possibility of reinstatement for two years from the date of this opinion. The suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12. Dull has been temporarily suspended from the practice of law since March 11, 2003 because of her OWI, third offense, conviction. The suspension was ordered pursuant to Iowa Court Rule 35.14. We now rescind that order. In imposing the two-year suspension, we reject the Board’s and Dull’s stipulation for a one-year suspension to run concurrently with the March 11, 2003 suspension. See Comm, on Prof'l Ethics & Conduct v. Nadder, 467 N.W.2d 250, 254-55 (Iowa 1991).

Upon any application for reinstatement, Dull must establish that she has not practiced law during the suspension period, she has in all ways complied with the requirements of Iowa Court Rule 35.13, and she has refunded unearned fees to those clients mentioned in this opinion. Dull must also provide this court with an evaluation by a licensed health care professional verifying her fitness to practice law. Before obtaining this evaluation, Dull shall submit the names of the proposed evaluators and the nature of the evaluation to the Board for its prior approval. Dull shall also comply with the notification requirements of Iowa Court Rule 35.21.

Costs are taxed to Dull pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.