Estate of Kautzman: No Piecemeal Appeals in Formal Probate—Rule 54(b) Certification Required; Disqualification Orders Remain Enforceable Pending Appeal

Introduction

In Estate of Kautzman, 2025 ND 57, the North Dakota Supreme Court dismissed an appeal taken from an interlocutory order in a formal probate proceeding. The underlying estate dispute involves competing wills—an uncontested 2012 will and a 2023 will executed in a hospital in the presence of the decedent’s nephew, Paul Kautzman, and Paul’s attorney, Jonathan Garaas. After the district court:

concluded the matter would proceed as a formal probate,
granted an emergency appointment of an interim special administrator (Kim Kautzman), and
disqualified Paul’s attorney (Garaas),

Paul appealed. The Supreme Court dismissed for lack of appellate jurisdiction because the order adjudicated fewer than all claims and lacked the requisite certification under N.D.R.Civ.P. 54(b). The Court also flagged, without deciding, issues surrounding the propriety of a notice of appeal filed by disqualified counsel and emphasized that the disqualification order remains effective and enforceable notwithstanding counsel’s participation on appeal.

Summary of the Opinion

Chief Justice Jensen, writing for a unanimous Court, held that the appeal must be dismissed. Two controlling principles dictated the outcome:

Appealability in North Dakota requires statutory authorization under N.D.C.C. § 28-27-02; and
When an order resolves fewer than all claims or parties, N.D.R.Civ.P. 54(b) certification is generally required to avoid piecemeal appeals (¶¶ 11–14).

The district court’s order was expressly interlocutory: it set the probate on a formal track and contemplated further proceedings including a scheduling conference and an evidentiary hearing (¶ 15). Regardless of whether specific components of the order might arguably fit within § 28-27-02, the district court had not considered, and the appellant had not obtained, Rule 54(b) certification. The Court therefore dismissed the appeal (¶ 15).

The Court further clarified that counsel’s participation in the appeal, despite being the subject of a disqualification order, does not constitute recognition of counsel’s authority; the disqualification order “remains in effect and may be enforced in all subsequent proceedings” (¶ 9). The Court declined to resolve questions about counsel’s authority to file the notice of appeal in the absence of full briefing (¶ 9).

Analysis

Precedents and Authorities Cited

In re Estate of Kish, 2024 ND 76, 5 N.W.3d 814 (¶¶ 11–14). Kish supplies the framework for appealability in probate settings through a two-step inquiry:
- First, does the order fit within the appealability categories in N.D.C.C. § 28-27-02?
- Second, if the order adjudicates fewer than all claims or parties, has the district court entered a proper Rule 54(b) certification?
Kish also underscores party responsibility to request Rule 54(b) certification and recognizes that, in some instances, the Supreme Court may retain jurisdiction and remand for the district court to consider 54(b)—but that path is discretionary, not automatic.
N.D.C.C. § 28-27-02(1), (5) (¶ 12). These subsections define appealable orders, including:
- Orders affecting a substantial right that effectively determine the action and prevent a judgment; and
- Orders involving the merits of an action or some part thereof.
The Court reiterates that to be appealable under § 28-27-02(5), an order must in effect finally determine a substantive right or be dispositive of a substantive issue; orders that merely move the case toward trial are not immediately appealable (¶ 12).
Gonzalez v. Perales, 2023 ND 145, 994 N.W.2d 183 (¶ 12). Quoted for the principle that § 28-27-02(5) requires a final determination of a substantive right or a dispositive resolution of a substantive issue, not mere case-management or process-direction orders.
Berg v. Kremers, 154 N.W.2d 911 (N.D. 1967) (¶ 13). An early and enduring articulation of the policy against piecemeal appeals: Rule 54(b) aims to discourage fragmented appellate review absent an express finding of no just reason for delay and a direction for entry of judgment as to fewer than all claims.
Capps v. Weflen, 2013 ND 16, 826 N.W.2d 605 (¶ 14). Emphasizes that Rule 54(b) certification is reserved for “unusual circumstances” where denying an immediate appeal would cause demonstrated prejudice or hardship. This acts as a limiting principle against routine certification.

Legal Reasoning

The Court applies the Kish two-step appealability analysis. While the opinion acknowledges that statutory appealability under § 28-27-02 is a necessary predicate, it expressly bypasses a merits ruling on that question because the decisive defect is the absence of Rule 54(b) certification in a case where multiple claims remain unresolved (¶ 15). The reasoning proceeds as follows:

Interlocutory posture: The district court’s order did not finally resolve any substantive estate rights; it set the matter for further proceedings, including an evidentiary hearing (¶ 15). Such orders typically “merely direct that the case proceed to trial” and therefore do not satisfy § 28-27-02(5) standing alone (¶ 12).
Rule 54(b) prerequisite for partial adjudications: Even assuming some components of the order could be argued to “affect a substantial right” or “involve the merits,” appellate review must still await either the final disposition of all claims or a proper Rule 54(b) certification. Here, no 54(b) determination was made (¶ 15).
Party responsibility and judicial discretion: The Court reiterates that parties in probate carry the burden to request Rule 54(b) certification (¶ 14). Kish recognizes the Supreme Court “may” retain jurisdiction and remand for 54(b) consideration (¶ 14), but that option is discretionary. In Kautzman, the Court exercised its discretion to dismiss rather than remand (¶ 15), reinforcing that litigants should proactively seek certification when they intend to appeal a partial adjudication.
Effect of disqualification order during appeal: The Court flags, but does not decide, whether a disqualified lawyer can properly file a notice of appeal or represent the client on appeal (¶ 9). Importantly, the Court cautions that allowing counsel to submit appellate filings does not validate counsel’s authority; the disqualification order “remains in effect” and “may be enforced” in the district court and in the Supreme Court (¶ 9). This is a practical directive ensuring that the disqualification order retains teeth during the pendency of an appeal that is ultimately dismissed.

Impact and Practical Implications

Probate appeals will not proceed piecemeal: Parties cannot immediately appeal from interlocutory probate rulings (such as orders designating the proceeding as formal probate, appointing an interim special administrator, or disqualifying counsel) unless they both (a) satisfy the statutory appealability requirements and (b) obtain Rule 54(b) certification when the order adjudicates fewer than all claims (¶¶ 11–15).
No automatic remand for Rule 54(b): Although Kish permits the Supreme Court to retain jurisdiction and remand for a 54(b) determination, Kautzman underscores that the Court will not do so as a matter of course. The default consequence of neglecting to obtain 54(b) certification is dismissal (¶ 15). Litigants must affirmatively move the district court for certification and show “unusual circumstances” and “cogent reasons” (¶ 14).
Disqualification orders carry immediate operational effect: Even when embedded in a non-final order, a disqualification ruling remains enforceable. Counsel subject to such an order should not assume that filing appellate papers cures the authority problem; the Supreme Court expressly warned against that inference (¶ 9).
Estate administration proceeds apace: By dismissing the interlocutory appeal, the Court ensures that the formal probate—complete with a scheduling conference and evidentiary hearing—continues without appellate interruption (¶ 15). Interim measures (like emergency appointment of a special administrator) remain in place to protect estate assets pending final adjudication.
High bar for 54(b) in probate: Echoing Capps and the Kish concurrence/dissent cited by the Court (¶ 15), district courts should reserve 54(b) certification for truly exceptional cases where delay will work a concrete hardship. Routine probate management orders rarely qualify.

Complex Concepts Simplified

Formal vs. Informal Probate: Informal probate is a streamlined administrative process handled by a registrar. Formal probate involves court adjudication with notice, hearings, and potential evidentiary proceedings. When disputes arise (e.g., competing wills), courts typically convert or proceed in formal probate, as here (¶ 8, ¶ 15).
Interim Special Administrator: A temporary fiduciary appointed to protect and manage estate assets during emergencies or pending disputes. The district court appointed Kim Kautzman on an interim basis (¶ 8).
Attorney Disqualification: Removal of an attorney from a case, often due to conflicts of interest or other ethical concerns. Here, the district court disqualified Paul’s attorney, and that order remains enforceable despite the attempted appeal (¶ 8, ¶ 9).
N.D.C.C. § 28-27-02: The statute identifying which orders are appealable. Two commonly invoked provisions:
- (1) Orders affecting a substantial right that, in effect, determine the action and prevent a judgment.
- (5) Orders involving the merits of the action or some part thereof. But to qualify, they must finally determine a substantive right or be dispositive of a substantive issue (¶ 12).
N.D.R.Civ.P. 54(b): A procedural rule allowing a district court to make a partial judgment immediately appealable. The court must expressly determine there is “no just reason for delay” and direct entry of judgment as to fewer than all claims. It is used sparingly, only in unusual circumstances to prevent prejudice or hardship from delaying appellate review (¶¶ 13–14).
Two-Step Appealability Test (from Kish):
- Step 1: Does the order qualify as appealable under § 28-27-02?
- Step 2: If the order addresses fewer than all claims or parties, has the district court issued a valid Rule 54(b) certification? Without both, the appeal will generally be dismissed (¶ 11).

Case Timeline and Procedural Posture

2012: James Kautzman executes a will dividing his estate between his siblings and his late wife's siblings (¶ 2).
October 2023: While hospitalized, James signs a 2023 will leaving his entire estate to Paul and naming Paul as personal representative (¶ 4). The meeting is attended by Paul and attorney Garaas; disputes about conflict and capacity are foreshadowed (¶¶ 2–3).
April 2024: James dies; Kim petitions for formal probate of the 2012 will; Paul seeks informal probate of the 2023 will (¶ 5).
May–June 2024: Emergency petition for special administrator, motion to disqualify counsel, and objections to informal probate are filed; hearings are held, with additional notice to cure earlier service issues (¶¶ 6–7).
September 2024: The district court orders the case to proceed as a formal probate, appoints Kim as interim special administrator, and disqualifies Paul’s counsel; an evidentiary hearing is contemplated (¶ 8).
Appeal: Paul notices an appeal via disqualified counsel; Supreme Court dismisses for lack of appellate jurisdiction, citing absence of Rule 54(b) certification and the pendency of unresolved claims (¶¶ 9–15).

Why the Court Chose Dismissal Over Remand for Rule 54(b)

Kish acknowledges that the Supreme Court “may” retain jurisdiction and remand to the district court to consider 54(b) certification when an appellant fails to obtain it (¶ 14). In Kautzman, the Court instead dismissed the appeal (¶ 15). The opinion’s structure highlights key considerations informing that choice:

The interlocutory order set the matter for prompt evidentiary resolution; the probate would meaningfully progress without appellate intervention.
Parties bear the burden to request 54(b); the Court will not routinely salvage an interlocutory appeal absent a developed request and district court findings supporting certification (¶ 14).
The Court cites the Kish concurrence/dissent cautioning against overuse of 54(b), signaling institutional reluctance to expand piecemeal appeals in probate (¶ 15).

Takeaways for Practitioners

Do not assume interlocutory probate orders are immediately appealable; build the record and seek Rule 54(b) certification if you can establish unusual circumstances and concrete prejudice from delay.
Even if you believe an order fits § 28-27-02(1) or (5), you still need Rule 54(b) when unresolved claims remain. Both steps are required.
Disqualification orders remain enforceable pending appeal. If disqualified, promptly address representation issues; do not rely on appellate participation to “cure” disqualification concerns (¶ 9).
Expect the Supreme Court to prefer letting formal probate proceed to an evidentiary hearing before entertaining appellate review, absent a compelling 54(b) record.

Conclusion

Estate of Kautzman reaffirms and sharpens North Dakota’s commitment to finality and efficiency in probate appellate practice. The opinion does three important things:

It applies the Kish two-step appealability framework to dismiss an interlocutory appeal from a formal probate order that resolved fewer than all claims without Rule 54(b) certification (¶¶ 11–15).
It underscores that district courts and litigants—not the Supreme Court—carry the primary responsibility for developing the record and obtaining 54(b) certification in the rare case warranting immediate review (¶ 14).
It cautions that attorney disqualification orders remain effective and enforceable even if a disqualified lawyer attempts to prosecute an appeal, and the Court will not treat such participation as validation of authority (¶ 9).

In short, Kautzman is a procedural but consequential decision: it preserves the integrity of the probate process by preventing piecemeal appeals, channels interlocutory grievances into the proper 54(b) framework, and maintains the enforceability of ethical rulings during ongoing litigation. Parties contesting wills or fiduciary appointments in North Dakota should plan their litigation strategy with these jurisdictional guardrails front of mind.