In the Matter of the Barbara Mills Trust Dated April 16, 2015, Molly Bodish, Trustee-Appellant. ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0610
Filed August 16, 2017
IN THE MATTER OF THE BARBARA MILLS TRUST DATED APRIL 16, 2015,
MOLLY BODISH,
Trustee-Appellant.
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Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
Molly Bodish appeals a district court determination that attorney fees
would be assessed against her personally. APPEAL DISMISSED.
Brian W. Peters of Kintzinger, Harmon, Konrardy, P.L.C., Dubuque, for
appellant.
Douglas M. Henry and Mark J. Willging of Fuerste, Carew, Juergens &
Sudmeier, P.C., Dubuque, for appellee Barbara Mills-Larkin.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.
Beneficiaries of a trust filed petitions asking the district court to take
jurisdiction of the trust and compel trustee Molly Bodish to provide an accounting.
See Iowa Code § 633A.6202 (2016). In time, the beneficiaries sought attorney
fees. See id. § 633A.4507 (“In a judicial proceeding involving the administration
of a trust, the court, as justice and equity may require, may award costs and
expenses, including reasonable attorney fees, to any party, to be paid by another
party or from the trust that is the subject of the controversy.”); In re Tr. No. T-1 of
Trimble, 826 N.W.2d 474, 492-93 (Iowa 2013) (discussing factors for
consideration in applying section 633A.4507). The district court granted the
request, as follows:
[T]he Court hereby determines that the request for fees associated
with the representation of [the beneficiaries] are appropriate. The
attorneys shall submit fee affidavits associated with their
representation of these individuals named herein. Upon receipt of
the affidavits, the Court will enter a judgment for fees against Molly
Bodish personally.
The court denied Bodish’s motion to reconsider, which asserted in part that the
court had yet to hold an evidentiary hearing in the case to make predicate
findings. Bodish filed a notice of appeal.
“Appeals are available as of right only from final orders, and we lack
jurisdiction of appeals from interlocutory orders unless permission to appeal is
granted.” Rowen v. LeMars Mut. Ins. Co. of Iowa, 357 N.W.2d 579, 581 (Iowa
1984); accord Iowa Rs. App. P. 6.101(1), .103, .104(1)(a), .108. “A final order or
judgment on an application for attorney fees entered after the final order or
judgment in the underlying action is separately appealable.” Iowa R. App.
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P. 6.103(2). A judgment is final if it “conclusively adjudicates all of the rights of
the parties” and “puts it beyond the power of the court to place the parties in their
original positions.” Richers v. Marsh & McLennan Grp. Assocs., 459 N.W.2d
478, 480 (Iowa 1990) (quoting Lyon v. Willie, 288 N.W.2d 884, 886 (Iowa 1980)).
“A ruling is not final when the trial court intends to do something further to signify
its final adjudication of the case,” and where “the ruling specifically provides for
subsequent entry of a final order, the ruling itself is not a final judgment or
decision.” In re Marriage of McCreary, 276 N.W.2d 399, 400 (Iowa 1979)
(emphasis added).
The attorney fee order filed by the district court was not entered after a
final order or judgment in the underlying action. Iowa R. App. P. 6.103(2). In
addition, the order did not fully resolve the attorney-fee issue. The court required
the attorneys to submit fee affidavits and stated the court would “enter judgment
for fees against Molly Bodish personally” “[u]pon receipt” of those affidavits. The
order was not final.
As noted, we have authority to treat a notice of appeal from a non-final
order as an application for interlocutory appeal and grant the application. See
Iowa R. App. P. 6.108. We decline to do so here because the question of finality
is “not at all close; the order under challenge is plainly interlocutory.” In re
Marriage of Graziano, 573 N.W.2d 598, 599 (Iowa 1998). The appeal is
dismissed.
APPEAL DISMISSED.