In re the Estate of: Randy Brian Sukut, Deceased.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0748

In re the Estate of: Randy Brian Sukut, Deceased.

Filed January 29, 2018
Reversed and remanded
Reyes, Judge

Nicollet County District Court
File No. 52-PR-16-224

Kenneth R. White, Law Office of Kennet h R. White, P.C., Mankato, Minnesota (for
appellant Linda Sukut)

Julie Wacker Hanjani, Hanjani Law Office, Hutchinson, Minnesota (for respondent Jeremy
McInerney)

Considered and decided by Hooten, Pres iding Judge; Reyes, Judge; and Smith,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges the district court’s decision to remove her as trustee. We
reverse and remand the district court’s appoi ntment of respondent because notice under
Minn. Stat. § 501C.0203 (2016) was not proper.
FACTS
Randy Sukut (decedent) and appellant Lind a Sukut (Sukut) married in 2007. They
have a large, blended family , with each having four child ren from prior relationships.
2
Decedent’s children are respondent Jeremy McInerney (McInerney), Tanya Thom, Stacy
Sassen, and Christina Pagelsdorf. Sukut’s children are Jenna Odegard, Justin Dauer, Jacob
Dauer, and Jared Dauer.
On March 24, 2014, dece dent executed a will appointing Sukut as his personal
representative. Decedent an d Sukut also executed a tr ust agreement appointing the
surviving spouse as trustee and transferred all separate and marital property into the trust.
The trust provides for the separation and distribution of property upon the death of
either spouse based on the property’s status as marital property or separate property. In the
event of the death, incapacity, or removal, decedent and Sukut’s children, in order named,
govern as successor trustees as set forth in the trust: Jenna Odegard (Sukut’s daughter),
McInerney, Jared Dauer, and Ta nya Thom. The trust’s schedul e of assets provides in
relevant part that decedent’s separate property consists of 50% of a parcel of South Dakota
real property, a Northwestern Mutual investment account, a boat, and a gun collection.
Decedent passed away on Febr uary 3, 2015. On February 1, 2016, Sukut as trustee
attempted to distribute decedent’s separate property to decedent’s children according to the
terms of the trust, with each receiving a check for $53,949.18. One of decedent’s children,
Stacy Sassen, accepted the terms and payment.
On April 7, 2016, McInerney served Suku t with a Petition for Formal Probate of
Will and for Formal Appointment of Personal Representative. On May 26, 2016, the day
before an evidentiary hearing, McInerney filed and served an amended petition because he
failed to include and serve the original pleadi ng on his sister Stacy Sassen, an interested
party, as required by Minn. Stat. § 524.1-403(3)(i) (2016).
3
At the May 27, 2016 hearing, the partie s contested the valua tion of certain items,
the validity of the trust, the distribution of the estate, and the validity of the transfers of the
money from Northwestern Mutual. McInerney’ s appointment as trustee was brought up
only once, in passing. The district court scheduled an evidentiary hearing for July 14, 2016,
to resolve the parties’ disagreements.
On July 13, 2016, the day before the ev identiary hearing, McInerney mailed Sukut’s
counsel a Responsive Petition to Amend Petition for Formal Probate of Will and for Formal
Appointment of Personal Representative (responsive petition). In it, he requested that the
district court appoint him as trustee. Mc Inerney did not mail the responsive petition to
Sukut personally, nor did he serve the res ponsive petition on any of the other qualified
beneficiaries, including Odegard. Sukut’s counsel did not receive the responsive petition
until July 15, 2016, one day after the evidentiary hearing.
At the evidentiary heari ng, the district court he ard testimony from Sukut, her
financial advisor, McInerney, and his sisters Thom and Pagelsdorf. Sukut’s children were
not present and did not testify, and little was said about the trust during the hearing.
McInerney testified that he believed that Sukut was not living up to her
responsibilities as to either the will or the trus t in this matter. His counsel referenced his
appointment without specifying whether she meant appointment as personal representative
or trustee. McInerney testified about the actions he had taken to ask Sukut to distribute the
property. He also testified that he is willing to either be the trustee or personal
representative, and that he would act diligently and dutifully in executing the will and trust.
Thom testified that she wants McInerney to di stribute the estate, either as the trustee or
4
personal representative. Pagelsdorf testified that she is asking that McInerney handle the
estate of her father.
On October 7, 2016, the district court filed an or der denying McInerney’s petition
for probating of decedent’s will and granting his request for the removal of Sukut as trustee
and his appointment as trustee. Based on Sukut’s testimony at the hearing, the district court
found that Sukut shirked her duties as trustee because she did not fully understand her
responsibilities in executing the trust. Despite acknowledging the validity of the trust and
that Odegard is the first-named successor trus tee, the district court named McInerney as
trustee due to substantial mistrust and ill will between decedent’s and Sukut’s children.
On November 4, 2016, S ukut filed a motion for amended findings and for relief
from the order and judgment pursuant to Minn. R. Civ. P. 52.02 and 60.02. The motion
contained affidavit attachments from Sukut , her former counsel, and her daughter,
Odegard. Sukut’s former counsel wrote that she did not know that Sukut’s position as
trustee was at issue during the hearing. Sukut wrote the same. Odegard wrote that, as the
first successor trustee in the trust agreement, had she known that the identity of the trustee
would be an issue, she would have appeared at the hearing and testified. On March 21,
2017, the district court filed an order denying Sukut’s motion. Sukut appeals.
D E C I S I O N
Sukut argues in part that the district court improperly removed her as successor
trustee because McInerney did not follow th e statutory requirements in Minn. Stat.
§ 501C.0203. We agree.
5
The interpretation of a statute is a ques tion of law that we review de novo.
Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (M inn. 2016). When a district court finds
that a party consented to a new argument at an evidentiary hearing, our review is for clear
error. See Hopper v. Rech, 375 N.W.2d 538, 542-43 (Minn. App. 1985) (citing Minn. R.
Civ. P. 15.02), review denied (Minn. Dec. 30, 1985).
Generally, the district court “is required to base relief on issues either raised by the
pleadings or litigated by consent” because “it is fundamental that a party must have notice
of a claim against him and an opportunity to oppose it before a binding adverse judgment
may be rendered.” F o l k v . H o m e M u t . I n s . C o ., 336 N.W.2d 265, 267 (Minn. 1983).
“Procedural due process provi des a constitutional floor that requires any notice to be
‘reasonably calculated’ to ‘appraise interested parties of the pendency of the action’ before
depriving them of life, liberty, or property.” Jaeger v. Palladium, 884 N.W.2d 601, 606
(Minn. 2016) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314,
70 S. Ct. 652 (1950)). However, neither precedent nor the Due Process Clause of the 14th
Amendment prevent states from adopting statutes “that exceed the minimum requirements
of due process.” Jaeger, 884 N.W.2d at 606 (states may adopt procedural rules “that
exceed the minimum requirements of due proce ss”). Thus, we must analyze the text of
Minn. Stat. § 501C.0201 (2016).
A person interested in a trust may petition th e district court for an order to remove
a trustee for cause. Minn. Stat. § 501C.0201( a), .0202(9) (2016). The statute sets out
procedures for removal petitions. Minn. St at. § 501C.0203. A petitioner “must” give
notice of the hearing:
6
(1) by publishing, at least 20 da ys before the date of the
hearing, a copy of the order for hearing one time in a legal
newspaper for the county in which the petition is filed; and (2)
by mailing, at least 15 days before the date of the hearing, a
copy of the order for hearing to those current trustees and
qualified beneficiaries of the trust whose identity is known and
whose location is known or re asonably ascertainable to the
petitioner after making reasonabl e efforts to locate such
persons.

Id. (emphasis added). This is the same manner that notice is given pursuant to Rule 4 of
the Minn. R. Civ. P. Minn. Stat. § 501C .0203, subd. 2. The statute clearly and
unambiguously requires that McInerney notify Sukut and the other qualified beneficiaries
by mail 15 days before the hearing. McInerne y failed to comply with this requirement.
Instead, McInerney filed his responsive pe tition seeking the removal of Sukut and his
appointment as trustee just one day before the July 14, 2016 hearing and then only served
it on Sukut’s counsel and not on Sukut or the other qualified beneficiaries personally.
The statute states that notice may also “b e given in any other manner as the court
directs.” Id. Here, the district court did not direct or provide another manner for McInerney
to inform Sukut that th e identity of the trustee was at issue. Instea d, more than a month
after the July 14, 2016 hearing, the district court found that Sukut had implicitly consented
to the trustee-removal issue.
The supreme court has distinguished co mpliance and notice, stating that an
unambiguous statute or rule must be stri ctly or substantially complied with. Jaeger, 884
N.W.2d at 608. Compliance is based on adherence to the statutory requirements, not notice
or inferred consent. Id. at 608-09; see Rios v. Jennie-O Turkey Store, Inc. , 793 N.W.2d
309, 317-18 (likening notice and inferred consent as one in the same). Instead, we interpret
7
statutes based on their plain language regardless of whether the parties have received actual
notice of the action. Jaeger, 884 N.W.2d at 609 (citing Melillo v. Heitland, 880 N.W.2d
862, 864 (Minn. 2016) (the plain language of the service-by-mail rule, Minn. R. Civ. P.
4.05, “must be followed”); Shamrock Dev., Inc. v. Smith , 754 N.W.2d 377, 383 (Minn.
2008) (interpreting the service-by-publication rule, Minn. R. Civ. P. 4.04(a) in accordance
with its plain language)). Thus, the district court erred in removing Sukut as trustee based
on the finding of Sukut’s inferred consent to litigation of the trustee-removal issue because
McInerney failed to strictly comply with the unambiguous statutory requirements of Minn.
Stat. § 501C.0203.
Because we reverse and remand on the removal of Sukut as trustee, we also vacate
the appointment of McInerney.
Reversed and remanded.