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In the Matter of the Estate of v. Robert "Bob" Mullen

October 31, 2012

IN THE MATTER OF THE ESTATE OF JOHN H. HIBSMAN, JR., DECEASED: JASON HIBSMAN, APPELLANT (FORMER PERSONAL REPRESENTATIVE),
v.
ROBERT "BOB" MULLEN, APPELLEE (PERSONAL REPRESENTATIVE), AND TRUDY HIBSMAN, REBECCA HIBSMAN AND EMILY HIBSMAN, APPELLEES (HEIRS).



Appeal from the District Court of Natrona County The Honorable David B. Park, Judge

The opinion of the court was delivered by: Hill, Justice.

Before KITE, C.J., and GOLDEN*fn1 , HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Jason Hibsman (Appellant) appeals an order issued by the district court finding prima facie evidence for the Personal Representative of John H. Hibsman, Jr.'s estate to proceed in recovering "not less than $137,566.46" from Appellant. Finding that this Court does not have jurisdiction to hear this appeal, it is dismissed.

ISSUE

[¶2] Appellant states one issue:

1. Whether there was sufficient evidence presented at the September 9, 2011, hearing to find that [Appellant] concealed, embezzled, conveyed away and/or disposed of monies and other property of the Estate and whether the evidence presented at the September 9, 2011 hearing supported the judgment entered against [Appellant] in an amount not less than $137,566.46.

FACTS

[¶3] John H. Hibsman, Jr. died testate on June 22, 2008. His Last Will and Testament named his four adult children as his heirs. The will was admitted to probate by the district court on December 23, 2008 and, consistent with his directive, his son Jason was named executor and personal representative of the estate, albeit six months after the elder Mr. Hibsman had passed. During those six months, a dispute had ensued with another heir, Appellant's sister Trudy Hibsman, who contested Appellant's appointment as Personal Representative.

[¶4] After his appointment, Appellant hired attorney Michael Zwickl (now deceased) to represent him. The estate contained two properties which Appellant renovated and then petitioned the court for permission to list and sell. Both properties sold, as did two of the decedent's vehicles. Appellant and his siblings distributed some of the estate property among themselves and, after holding a small estate sale, moved the balance of the decedent's belongings to a storage unit in Casper. Eventually, Appellant moved the contents of the storage unit to his home in Colorado.

[¶5] On October 18, 2010 Appellant's attorney, Mr. Zwickl, filed an "Application for Allowance of Ordinary Fees for Personal Representative and Ordinary and Extraordinary Fees for Attorney for the Estate," as well as the "Final Report, Accounting, and Petition for Distribution." An Exhibit "A" was attached to the final report that valued the estate's "gross value" as $478,894.94. The report showed expenditures of $358,466.26, including an advance distribution that Appellant made to himself for $16,998.82, and miscellaneous expenses of $195,452.21, $51.670.65 of which was paid to himself. The report also asked the court to approve a final payment of $26,525.69 to Appellant and his attorney. Trudy Hibsman objected to the final report, and a hearing was set for November 17, 2010.

[¶6] Up to this point, Appellant had not complied with his statutory duty to give the district court an inventory of estate assets within the 120-day window provided by Wyo. Stat. Ann. §§ 2-7-403(a) and 2-7-806 (LexisNexis 2011). A June 5, 2009 district court filing entitled, "Inventory and Appraisement" does not qualify to be an inventory of all assets as contemplated by the statute because it is an appraisal of a single residence owned by the decedent. Along with no proper inventory being filed, the record lacks a proper application for partial distribution as required by Wyo. Stat. Ann. § 2-7-807 (LexisNexis 2011) and an application for authority to allow Appellant to pay himself for working on the estate under Wyo. Stat. Ann. § 2-7-805 (LexisNexis 2011).

[¶7] On November 17, 2010 the district court held a hearing and removed Appellant as Personal Representative of his father's estate. Appellant was not present at the hearing. The court appointed Michael Zwickl, Appellant's attorney, as the temporary/interim Personal Representative, froze the estate bank account, and prohibited the transfer of any estate asset without prior court approval. In addition, the district court ordered Appellant to provide Mr. Zwickl with written statements for estate assets and incurred liabilities, verified as to truth and accuracy by Appellant, within ten days of the court order.

[ΒΆ8] On January 18, 2011, two months after being removed as personal representative, identifying himself as "formerly appointed personal representative," Appellant filed an "Inventory ...


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