In re The Estate of Joseph R. Roberto
CourtSupreme Court of The Commonwealth of The Northern Mariana Islands
Date FiledMay 12, 2010
DocketCV-07-0006-GA
JudgeCastro
StatusPublished
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Full Opinion
IN THE
SUPREME COURT
OF THE
COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS
IN THE MATTER OF THE ESTATE OF JOSEPH RUFO ROBERTO,
a.k.a. Joseph Rufu Roberto,
Deceased.
SUPREME COURT NO. CV-07-0006-GA
SUPERIOR COURT NO. 98-983D
Cite as: 2010 MP 7
Decided May 12, 2010
Douglas F. Cushnie, Saipan, Commonwealth of the Northern Mariana Islands, for Executor-Appellant
Brien Sers Nicholas, Saipan, Commonwealth of the Northern Mariana Islands, for Claimant-Appellee
BEFORE: ALEXANDRO C. CASTRO, Associate Justice; F. PHILIP CARBULLIDO, Justice Pro Tem; and
ROBERT J. TORRES, Justice Pro Tem
CASTRO, J.:
¶1 The executor1 of the estate of Joseph R. Roberto (“decedent”) appeals the trial court’s Order
Granting Partial Removal of Non-Estate Assets (“removal order”) on the grounds that the trial court failed
to comply with the mandate and law of In the Matter of the Estate of Roberto, 2003 MP 16 (“Roberto I”).
Appellee Matilde DLG Fejeran (“Fejeran”) claims that this Court lacks jurisdiction to hear the appeal, and
in the event that we find jurisdiction that the trial court did comply with the mandate and law of the case
on remand. We find that this Court has jurisdiction to hear the appeal. We further hold that the trial court
complied with the mandate and law of Roberto I with respect to certain assets, and that it did not do so
concerning other assets. We therefore, AFFIRM in part, REVERSE in part, and REMAND this matter back to
the trial court for determination consistent with this opinion.
I
¶2 Decedent was born in Guam on November 7, 1922, and he died in Saipan on July 14, 1998. The
decedent either lived in Guam or on the U.S. mainland for most of his life. He moved to Saipan in 1990
or 1991 and shared a home with his first cousin Fejeran. Two of Fejeran’s daughters, Teressa F. Saucedo
and Anna F. Racomora, are also parties to this action. Decedent never married and has no children.
Fejeran and the decedent had business dealings, they held several joint bank accounts, and Fejeran was
the beneficiary and a co-trustee of a trust (“the Roberto Trust”) that decedent created.2 Decedent’s only
sibling was his brother Thomas John Roberto who died in Florida on June 26, 1999. Thomas Roberto is
survived by his wife Jacqueleen F. Roberto, and his three children Joseph Lee Roberto, Michael L.
Roberto, and Dolores Maria Roberto. These children are the only heirs to decedent’s estate.
¶3 Probate proceedings began in 1998. The executor filed an initial inventory of the estate, and
Fejeran, on her own behalf and as attorney in fact for her two daughters, filed a notice of claims thereto
and requested service of pleadings. Subsequently, the executor twice supplemented the inventory, and
Fejeran timely filed amended notices of her claims. Eventually, the trial court issued its Findings of Fact
and Conclusions of Law in October 2001 (“2001 order”). Fejeran appealed this decision claiming that the
trial court failed to exclude certain items of real and personal property from the estate. In response to
Fejeran’s appeal, this Court issued Roberto I that affirmed in part and reversed in part the 2001 order, and
remanded the matter for further proceedings.
¶4 In response to Roberto I, the trial court issued the removal order in 2007. As stated above, the
executor appeals the trial court’s removal order on the grounds that the trial court failed to comply with
1
The estate’s executor is decedent’s nephew Joseph L. Roberto.
2
The Roberto Trust contains twenty-three parcels of real property located in the Commonwealth. Decedent
purchased these pieces of real estate and later placed the land into the trust to be managed for the benefit of Fejeran.
Decedent, Decedent’s brother Thomas Roberto, and Fejeran were co-trustees. As discussed extensively in Roberto I,
while decedent owned the land in fee simple absolute, he was not of Northern Mariana Island descent.
the mandate and law of Roberto I on remand. The removal order excluded the following assets from
decedent’s estate: (1) the Roberto Trust, (2) Lot No. 1734-New-8, (3) Lot No. 1734-New-15 and past and
future rental income derived therefrom, (4) the Pacific Financial Corporation Certificates of Deposits
Nos. 2927, 3262, 3588, and 3590, and (5) Pacific Century Trust Account Numbers 140011651 and
140017153.
¶5 On February 2, 2007, the executor filed a motion for reconsideration with the trial court. In late
February 2007, the executor also filed this appeal challenging the removal order pursuant to 8 CMC §
2206. Thirty days later the trial court vacated the scheduled hearings on the motion for reconsideration
because the present appeal was pending. On March 29, 2007, the executor filed a motion to remand with
this Court. Executor admits in his reply memorandum filed with the motion to remand that no procedure
exists for this Court to grant the motion. Therefore, this Court declines to create a new procedural rule in
order to address executor’s motion to remand.3
II
¶6 The issues before us are two fold: (i) whether we have jurisdiction over this appeal under 8 CMC
§ 2206, and (ii) whether the trial court followed the mandate and law of Roberto I. Both are questions of
law, and therefore, both are subject to a de novo standard of review. Wabol v. Villacrusis, 4 NMI 314, 315
(1995).4
III
A. The Commonwealth Constitution and Interlocutory Orders
¶7 In November 1997, House Legislative Initiative 10-3, HS1, HD1 (1997) amended Article IV of
the Commonwealth Constitution. The initiative established this Court as the appellate and highest court of
the Commonwealth with jurisdiction to “hear appeals from final judgments and orders of the
Commonwealth superior court.” NMI Const. art. IV § 3 (emphasis added). The initiative further stated
that “all laws, regulations, and rules affecting the judiciary shall continue to exist as if established
pursuant to this [amendment], and shall unless clearly inconsistent, be read to be consistent with [this
amendment].” House Legislative Initiative 10-3, HS1, HD1 at 4 (emphasis added).
¶8 Recently, this Court had the opportunity to examine the interplay between the constitutional
mandate of final judgments and orders under House Legislative Initiative 10-3, HS1, HD1 and appeals of
non-final orders under 8 CMC § 2206. In In re Estate of Pilar De Castro, 2009 MP 3 ¶ 18, we cited
3
If executor wished for the trial court to hear his motion for reconsideration he should have filed a dismissal
of this appeal pursuant to then applicable Com. R. App. Proc. 42(b).
4
We acknowledge, as the dissent points out, that there may be other issues with the holding of Roberto I.
Those matters are not properly before us at this time. We are only asked to determine whether the trial court
complied with the mandate and law of the case when it issued its removal order.
Malite v. Tudela, 2007 MP 3 ¶ 21, for the proposition that 8 CMC § 2206 appeals are interlocutory. In
Malite, the petitioners originally sought a writ of mandamus from this Court ordering attorney fees to be
returned in a probate matter. Id. ¶ 1. The Court denied probate for the issuance of a writ, but we converted
the petition into an 8 CMC § 2206 interlocutory appeal and found jurisdiction. Id. In doing so, the Court
explicitly stated that:
We have jurisdiction to hear this interlocutory appeal by virtue of 8 CMC section
2206, which grants the Heirs a right of appeal from an order either “directing or
allowing the payment of a debt, claim, legacy, or attorney’s fee . . . [or] refusing
to make [such an] order . . . .” Id. ¶ 21 (quoting 8 CMC § 2206).
The Malite Court made clear that an “immediate appeal” is permitted when “section 2206’s necessary
prerequisites” are met. Id. Malite, however, did not explicitly address the issue of the potential
inconsistency between 8 CMC § 2206 and the Commonwealth Constitution after the passage of House
Legislative Initiative 10-3, HS1, HD1. We now take the opportunity to provide the rationale behind the
continued applicability of 8 CMC § 2206 following the passage of the 1997 amendments to the
Commonwealth Constitution.
¶9 In 1990, before the 1997 amendments to the Commonwealth Constitution, but after passage of 8
CMC § 2206 in 1984, the Court determined it was only able to hear appeals from final orders.
Commonwealth v. Hasinto, 1 NMI 377, 385 (1990). This was the case even though there was no explicit
requirement of finality under the Commonwealth Constitution or statutory law at that time. Id. at 380.
Despite the finality requirement, the Court held that interlocutory appeals could be permitted where
expressly allowed by statute. Id. at 385. Furthermore, the Court also noted that an additional exception to
the finality rule occurred under the “collateral orders doctrine.”5 Under Hasinto, because the Court
permitted interlocutory appeals authorized by statute, the appeals permitted by 8 CMC § 2206 would have
been permissible before the passage of House Legislative Initiative 10-3, HS1, HD1.
¶ 10 When the 1997 amendments to the Commonwealth Constitution were passed, the intent was
“[t]o amend Article IV of the Constitution of the Commonwealth of the Northern Marianna Islands so that
the Judicial Branch, consisting of a Supreme Court and a Superior Court, would have a firm and secure
constitutional foundation, co-equal with the Executive and Legislative Branches.” House Legislative
Initiative 10-3, HS1, HD1. In Borja v. Tenorio, we held that House Legislative Initiative 10-3, HS1, HD1
“did not change or give additional authority to the Court . . . . It merely turned a statutory court into a
constitutional judiciary.” 1998 MP 2 ¶ 12. Stated differently, this Court concluded that the amendments
5
Although not directly at issue in this case, the collateral order doctrine remains in effect today. Its
continued existence is useful in our assessment of the applicability of the exceptions allowed by 8 CMC § 2206. See
Commonwealth v. Camacho, 2002 MP 14 ¶ 1, n.1 (holding that interlocutory appeals are warranted when “the order
constitutes a complete, formal, and in trial court, final rejection of the claim the order addresses”).
did not fundamentally change the nature of the Commonwealth Supreme Court. Furthermore, in
Camacho, this Court acknowledged that exceptions to the finality requirement first recognized before the
1997 amendments still existed after its passage. Camacho, 2002 MP 14 ¶ 1 n.1. Therefore, we hold that
this Court still has jurisdiction to hear interlocutory appeals authorized by 8 CMC § 2206 in light of the
Constitution’s finality requirement because the statute is not clearly inconsistent with the Constitution.
B. Rule 54(b) Certification and the Separate Document Rule
¶ 11 We also find that the absence of a Rule 54(b) certification does not prevent this Court from
exercising jurisdiction. Commonwealth Rule of Civil Procedure 54(b) is a mechanism by which non-final
orders are deemed final by the trial court. Generally, non-final orders appealed to this Court must comply
with this certification requirement. Orders under 8 CMC § 2206, however, do not require this certification
because the probate statute is determinative of jurisdiction.6 In other words, there is no need for Rule
54(b) certification in cases where a statute gives a party a right to appeal an interlocutory order.
Therefore, 8 CMC § 2206 and not Commonwealth Rule of Civil Procedure 54(b) confers jurisdiction.
¶ 12 The separate document rule requires that a separate entry of judgment form be filed with the
Superior Court Clerk before a matter can be appealed to this Court. In re Estate of Pilar De Castro, 2009
MP 3 ¶ 13. This Court finds that it has jurisdiction notwithstanding the requirement “that the separate
document rule applies to 8 CMC § 2206.” Id. ¶ 20. A separate entry of judgment document was not filed
with the Superior Court Clerk for the removal order. The separate document rule will not, however,
prevent us from exercising jurisdiction over this appeal because the parties waived its applicability.
“[T]he separate document rule may be waived if a litigant requests that an appellate court set aside an
appealable order,” and “the non-appealing party does not contest the appeal on the basis of the separate
document rule.” Id. ¶ 21. In the present case, both of these waiver requirements are met. First, the
executor requests that this Court set aside the trial court’s removal order; second, Fejeran has not
challenged our jurisdiction on the basis of the separate document rule. Therefore, the separate document
rule is not a bar to jurisdiction in this case if an independent ground for jurisdiction exists.
C. Statutory Jurisdiction and the Law of the Case7
6
In re Estate of Pilar De Castro, 2009 MP 3 (finding jurisdiction to review an appeal under 8 CMC § 2206
without a finding of certification pursuant to NMI. R. Civ. P. 54(b)). See also Matsunaga v. Matsunaga, 2001 MP
11 ¶ 13 (the court may hear appeals from non-final orders when expressly allowed by statute).
7
The dissent argues that Roberto I improperly exercised jurisdiction when it heard Fejeran’s appeal from the
trial court’s 2001 order. We explicitly withhold judgment on the question of whether an appeal lies from a trial
court’s findings of fact and conclusions of law under 8 CMC § 2206. We do recognize, however, that California’s
Estate of Thompson, 61 Cal. App. 2d 188, 188 (1943), refused to hear such an appeal under repealed Probate Code §
1240. We are unwilling to reexamine Roberto I’s jurisdictional foundation, potentially completely vacate the
opinion, and reset the litigation circa 2001. After the denial of a Petition for Rehearing, In the Matter of the Estate of
Joseph Rufo Roberto, 2004 MP 7, a dismissal from the Ninth Circuit, Appellee’s Excerpts of Record (“ER”) at 8,
and the denial of a Petition for Cert from the United States Supreme Court, Appellee’s ER at 11, such a course of
¶ 13 This Court has jurisdiction to hear the executor’s appeal of the trial court’s removal order. The
executor brings this action under 8 CMC § 2206, which provides:
An appeal may be taken from an order . . . determining heirship or the persons to
whom distribution should be made or trust property should pass; distributing
property; refusing to make any order mentioned in this section . . . . 8 CMC §
2206.
We have had few opportunities to discuss the jurisdictional contours of 8 CMC § 2206. The statute,
however, virtually mirrors repealed California Probate Code § 1240. There are numerous California cases
that interpret repealed Probate Code § 1240, including the language relevant to this appeal. Therefore, we
will examine California jurisprudence for guidance in this matter.
¶ 14 In Estate of Friedman, 100 Cal. App. 3d 810, 813 n.2 (1979) (citing Estate of Warner, 162 Cal.
App. 2d 799, 803 (1958)), a California court found that “[t]he right to appeal under section 1240 is
determined by the effect of an order, not by its form.”8 The appeal concerned who would take estate
assets in the event that the in terrorem clause of the will was violated. The court held that it had
jurisdiction pursuant to repealed Probate Code § 1240. The court found that it could examine the in
terrorem clause because the effect of the appeal concerned the distribution of estate assets even though the
statute did not explicitly allow for appeals concerning in terrorem clauses. Thus, the appellate court had
jurisdiction under the statute because the ultimate issue was the determination of which parties would take
under the will.
action at this time would work a manifest injustice upon the prevailing party who may have relied on Roberto I’s
finality regarding specific assets. In Moriarty v. Svec, 233 F.3d 955, 961 n.1 (7th Cir. 2000), the appellant argued for
the second time before the court that the National Labor Relations Board was the sole body with jurisdiction to hear
his “Claim I.” The court, in rejecting this argument stated “[appellant] does not bring any new theories, but
continues to argue the same ones that we considered in the first case. We rejected [appellant’s] argument in our
initial decision . . . and [appellant’s] attempt to resurrect it without good reason is barred by the law of the case.” Id.
In Estate of Aguirre v. Koruga, 154 Fed. Appx. 652 (9th Cir. 2005), the estate challenged a jury’s verdict that power
of attorney could be awarded based on extrinsic evidence. The case had previously been appealed to the court, and
an earlier panel held that a power of attorney could come into existence based on such evidence. In responding to the
dissent, the majority explicitly found that “[r]egardless of whether we would have reached the same decision as the
original panel, we cannot say that its decision was clearly erroneous. The prior panel was not so clearly mistaken in
its interpretation of the Washington law as to defeat the law of the case.” Id. at 653. Thus, it will take more than the
same rehashed arguments by the executor, and claims by the dissent that it would have decided matters differently,
for this Court to reopen Roberto I and potentially vacate the entire decision.
8
Estate of Estrem, 107 P.2d 36, 38 (1940) (effect of order denying a motion to set aside will was to allow
will into probate); Estate of Hart, 119 Cal. App. 2d 310, 313 (1953) (“order awarding the costs of the executors
against Hart, Jr., was in effect an order refusing to direct the executors”); Estate of Effron, 117 Cal. App. 3d 915,
921 n.3 (1981) (“the legal effect here of the order refusing to start the process through which the Bank could have
been discharged is the equivalent of the appealable order refusing to revoke letters testamentary”); Estate of Richter,
12 Cal. App. 4th 1361, 1366 (1993) (order that determined whether a proposed action violated a will’s no contest
clause was an appealable order because it determined heirship).
¶ 15 Similarly, Maxine B. Dow v. Superior Court of City and County of San Francisco, 140 Cal. App.
2d 399, 407 (1956), held that an order that directed the payment of money and distributed property and
rights in property was appealable under repealed Probate Code § 1240. In contrast, in Estate of Cole, 106
Cal. App. 2d 823, 824 (1951), a distinction was made between an order “directing payment or allowing
payment of a claim and an order of the court merely approving or allowing the claim.” The court found
that an appeal was not allowed for an order permitting a claim because assets were not being distributed
as a result of the order. Id. Thus, these cases stand for the proposition that jurisdiction pursuant to
repealed Probate Code § 1240 exists even though the language of the appeal does not precisely fit within
the language of the statute when the legal effect of the order falls within the meaning of the statute.
¶ 16 Here, the trial court’s removal order uses language that does not precisely fit within the types of
appeals provided by 8 CMC § 2206 because the statute does not specifically allow for appeals from
orders removing non-estate assets. Like in Estate of Friedman and the other cases cited above, however,
the legal effect of the removal order determines which parties will receive which assets. The removal
order, unlike Estate of Cole, is not a preliminary step in the probate process. Instead, the removal order is
concerned with distributing property to parties in this probate case. Therefore, we hold that the legal
effect of the removal order falls within the types of orders that are appealable under 8 CMC § 2206.
¶ 17 Before turning to the merits, we address the dissent’s argument that the law of the case doctrine
does not apply to the instant appeal and that we should revisit our opinion in Roberto I in resolving the
issues involved in this appeal. The dissent states that “our failure to reconsider the Roberto I decision
would not only wreak manifest injustice on the heirs of Roberto’s Estate, but would also result in harm to
the Commonwealth as a whole.” Dissent ¶ 43. We disagree.
¶ 18 The law of the case doctrine developed to “maintain consistency and avoid reconsideration of
matters once decided during the course of a single continuing lawsuit.” Cushnie v. Arriola, 2000 MP 7 ¶
14 (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction § 4478
(1981) (“Wright & Miller”)). The doctrine favors finality of court decisions, which:
Is demanded by the very object for which civil courts have been established, which is to
secure the peace and repose of society by the settlement of matters capable of judicial
determination. Its enforcement is essential to the maintenance of social order; for the aid
of judicial tribunals would not be invoked for the vindication of rights of person and
property if, as between parties and their privies, conclusiveness did not attend the
judgment of such tribunals in respect of all matters properly put in issue, and actually
determinate by them.
Aldan-Pierce v. Mafnas, 1999 MP 11 ¶ 16 (citing Ute Indian Tribe of Uintah & Ouray Res v. Utah, 114
F.3d 1513, 1524 (10th Cir. 1997) (quoting Southern Pac. Ry. Co. v. United States, 168 U.S. 1, 49
(1897))); See Wabol, 4 NMI at 318. While the doctrine is not a limit on a court’s power, it is our practice
to “generally refuse to reopen what has been decided,” Cushnie, 2000 MP 7 ¶ 14, and rests on “the desire
to protect both court and parties against the burdens of repeated reargument by indefatigable diehards. . .
.” Camacho v. J.C. Tenorio Enterprises, 2 NMI 407, 413-14 (1992) (quoting Wright & Miller). This
policy “is true even where the court on remand disagrees with or finds error in the remanding court’s
decisions. Wabol, 4 NMI at 318 (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895). Like
almost any legal principle, exceptions exist to its application, but none of those exceptions are present in
this case. Specifically, there are no unusual circumstances present to warrant our review of Roberto I, and
second there are no clear errors in Roberto I that would work a manifest injustice. Cushie, 2000 MP 7 ¶
16; Arizona v. California, 460 U.S. 605, 619 n.8 (1982) (finding that the general rule is that a court may
depart from a prior holding if it was clearly erroneous and would work a manifest injustice). As will be
discussed later in the opinion, there is nothing in Robert I that is sufficient for this Court to abandon the
law of the case and reopen a seven year old opinion.
IV
A. Roberto I’s Law and Mandate
¶ 19 The executor claims that the removal order did not comply with the mandate and law of Roberto
I. The assets from Roberto I consist of: (1) the Roberto Trust, (2) Lot No. 1734-New-8, (3) Pacific
Financial Corporation Certificates of Deposits Nos. 2927, 3262, 3588, and 3590, (4) Pacific Century
Trust Account No. 140011651, (5) Pacific Century Trust Account No. 140017153, and (6) Lot No. 1734-
New-15 and the initial lease payment and subsequent lease income. While the executor did not appeal the
removal order’s distribution of the certificates of deposit, a brief discussion of those assets is necessary to
determine whether the removal order properly distributed the initial lease payment.
1. The Roberto Trust
¶ 20 The Court in Roberto I ordered the trial court to award the Roberto Trust, and the parcels of land
that constituted the trust res, to Fejeran as her sole property. Roberto, 2003 MP 16 ¶ 31. The Court
ordered the trial court to exclude the trust res from the estate because none of decedent’s heirs were of
Northern Mariana descent, and therefore, the estate was prevented “from taking any interest in the land in
the Roberto Trust.” Id. ¶ 24. Additionally, we found that Fejeran was the beneficiary of the trust so she
was the rightful taker of the trust property. Id. ¶ 21. The removal order awarded the properties held in the
Roberto Trust to Fejeran in fee simple absolute. The order did not diverge from the remand instructions in
any manner; therefore, we find that the trial court’s removal order complied with the mandate and law of
the case from Roberto I with respect to the Roberto Trust.
¶ 21 Upon first blush, Roberto I seemingly relies on two different strands of legal reasoning in
awarding Fejeran all of the real property. On the one hand Roberto I apparently awards Fejeran the
property on the ground that the decedent’s possession of the property was void ab initio and on the other
hand that Fejeran exercised her right of recovery within the statute of limitations timeframe pursuant to 2
CMC § 4991. Roberto I was our first case to discuss the applicability of the statute of limitations from 2
CMC § 4991 to Article XII claims.9 Roberto I squared these two competing rationales by accepting that a
sale of land to a non-NMD is void ab initio, but that the grantor may only recover the land within six
years, and after that the government is the only entity capable of confiscating the property. Id. ¶ 25. We
found the statute of limitations constitutional pursuant to Article XII, Section 6’s enforcement powers. Id.
¶ 26. Thus, Roberto I has never stood for the proposition that land sales to non-NMDs are merely
voidable instead of void ab initio, and the two principles coexisted in the context of our previous opinion.
We are unwilling to rule that the statute of limitations is unconstitutional at this time, and without either
approving or disapproving of Robert I’s reasoning, we acknowledge that it will take a future appeal to
challenge the constitutionality of 2 CMC § 4991 before we will pass judgment anew on the statute. We
will not sua sponte decide that 2 CMC § 4491 is unconstitutional, and that Roberto I incorrectly found
otherwise in the context of this appeal. This aspect of Roberto I’s holding constitutes neither unusual
circumstances nor a clear error that if left uncorrected would work a manifest injustice sufficient to allow
us to reopen to law of the case and pass constitutional judgment at this time. Such a reversal of a recently
established precedent demands briefing by the parties, oral argument, and an amicus brief filed by the
Attorney General’s office. Therefore, for the purposes of this appeal, we accept Roberto I’s
pronouncements concerning the statute of limitations as binding.
2. Lot No. 1734-New-8
¶ 22 Roberto I determined that Lot No. 1734-New-8 must be excluded from the estate and re-
conveyed to the Roberto Trust. Id. ¶ 33. The Court found that the lot was initially part of the Roberto
Trust, and that it was conveyed from the trust to the decedent by a quitclaim deed on August 19, 1997. Id.
¶ 32. The decedent, however, was not of Northern Mariana Island decedent, and thus, the form of title that
he held violated Article XII. Id. ¶ 33. As a result, “[t]he conveyance of Lot 1734-New-8 from the Roberto
Trust to Decedent violated Article XII and is void.” Id. We found that the transaction “clearly violates
Article XII and Ms. Fejeran, an interested party as both co-trustee and beneficiary of the Roberto Trust,
challenged this transaction in a timely manner. . . .” Id. The Court remanded the matter and ordered that
the lot be reconveyed back to the Roberto Trust, and therefore, to Fejeran. The trial court, following
Roberto I’s remand instructions, ordered the property returned to the Roberto Trust, and thus, to Fejeran
in fee simple absolute. There is nothing in its disposition of the property that is in contravention with
9
The case does not explicitly rely on the statute of limitations in ordering certain assets be awarded to
Fejeran, and therefore it may be possible to interpret the statute of limitations language as dicta. We will not
speculate on this matter now because it is inconsequential to determining whether the trial court followed the law
and mandate of Roberto I. That opinion engaged in legal analysis, and then for every appealed asset, gave clear and
unambiguous instructions for how it was to be distributed; since we are only asked whether the trial court followed
those specific instructions, we will limit our discussion of Roberto I’s legal analysis to only those areas where it is
necessary to determine this appeal.
Roberto I. The lot was ordered back into the Roberto Trust, and thus, owned by Fejeran; therefore, the
trial court followed the mandate and law of the case in Roberto I with respect to Lot No. 1734-New-8.
3. Pacific Financial Corporation Certificates of Deposits Nos. 2927, 3262, 3588, and 3590
¶ 23 We acknowledge that the executor did not challenge the removal order’s disposition of the
certificates of deposit. Roberto I, however, stated that the initial lease payment from Lot 1734-New-15
would be distributed in the same manner as the certificates of deposit and trust accounts because the
initial lease payment was comingled with those funds. Id. ¶ 36. Roberto I ordered the trial court to
distribute the certificates of deposit, or the proceeds therefrom, to Fejeran as her sole property. Id. ¶ 47.
Accordingly, the trial court’s removal order directed that the proceeds from the certificates of deposit be
turned over to Fejeran. We keep this distribution in mind when we analyze the initial lease payment
below.
4. Pacific Century Trust Account No. 140011651
¶ 24 The Court in Roberto I ordered that the proceeds from Pacific Century Trust Account number
140011651 be turned over to Fejeran. The Court found that despite Fejeran’s name being removed from
the account prior to decedent’s death, it was decedent’s intent “to maintain a joint tenancy with right of
survivorship.” Id. ¶ 42. Roberto I stated that the trial court “committed clear error” in not finding that the
account was held in joint tenancy with the right of survivorship. Id. ¶ 42. As a result, “[o]n remand, the
trial court shall order that the account, or account proceeds, be returned to Ms. Fejeran, with interest as
appropriate.” Id. ¶ 42. In response to Roberto I, the removal order stated that account 140011651 was the
sole property of Fejeran, and ordered that the proceeds be turned over to her possession. Therefore, the
removal order complied with the mandate and law of Roberto I.
¶ 25 We acknowledge that Roberto I broke with the common law when it awarded Pacific Century
Trust Account No. 140011651 to Fejeran. Roberto I, based on extrinsic evidence, found that it was the
decedent’s intent for the accounts to remain joint accounts with the right of survivorship, and that the only
reason Fejeran’s name was removed was because the decedent did not want her soon-to-be ex-husband
claiming any of those proceeds in the then upcoming divorce proceedings. Id. ¶ 38. Roberto I found that
the account was established as a joint account with the right of survivorship, id. ¶ 37, that decedent wrote
a letter indicating that Fejeran was still to have rights to authorize the account and sign on the account,
and that a bank employee testified that the decedent wanted the account to remain a joint account and that
he would add Fejeran’s name once her divorce was finished. Id. ¶ 40. Roberto I concluded that even
though her name was not on the account when he died that the evidence was overwhelming that he
intended to maintain a joint account with the right of survivorship with Fejeran. Id. ¶ 42.
¶ 26 We acknowledge that this holding modified the common law rule concerning joint bank accounts
with the rights of survivorship by creating an exception that states that the right of survivorship can
continue to exist based on extrinsic evidence sufficiently indicating the decedent’s intent. Regardless of
whether this rule constituted clear error for the purposes of overturning the law of the case, it does not
work a manifest injustice. Arizona, 460 U.S. at 619 n. 8. Roberto I found that it was the decedent’s intent
for Fejeran to have the funds after his death, and we do not believe that this finding amounts to manifest
injustice because it was supported by several pieces of extrinsic evidence. At this point in the litigation,
we feel that manifest injustice would result from reopening Roberto I and redistributing the account
proceeds. Therefore, the removal order properly awarded account 140011651 to Fejeran.
5. Pacific Century Trust Account No. 140017153
¶ 27 Roberto I ordered the trial court to make additional findings of fact to determine whether Pacific
Century Trust Account No. 140017153 was held in joint tenancy with the right of survivorship or whether
it was held in decedent’s name alone. The Court stated that if it was a joint account then it should be
disposed of in the same manner as account 140011651. If the trial court determined that account
140017153 was not held jointly between the decedent and Fejeran, then the account would be part of
decedent’s estate. The trial court determined that account 140017153 was the sole property of Fejeran. Its
disposition of account 140017153 in the removal order mirrored its disposition of account 140011651. In
making this ruling, however, the trial court did not make any findings of fact. Its order simply stated that
account 140017153 was the sole property of Fejeran. Removal Order at 4. The trial court must determine
the status of account 140017153 in light of Roberto I’s analysis concerning how a joint bank account with
the right of survivorship may continue to exist based on extrinsic evidence clearly indicating the
decedent’s intent. Therefore, we hold that the trial court did not comply with the mandate and law of
Roberto I. We remand the determination of this account’s status back to the trial court. We instruct the
trial court to make findings of fact concerning whether Pacific Century Trust Account No. 140017153
was a joint account with right of survivorship, or whether it was decedent’s personal property.
6. Lot No. 1734-New-15
¶ 28 The Court in Roberto I determined that Lot 1734-New-15 was originally part of the Roberto Trust
as part of a larger parcel of land known as Lot 1734-New-R2. Id. ¶ 35. We did not, however, determine
whether the lot was reconveyed to the decedent prior to it being leased to Calvary Christian Academy, or
whether it was leased while it was still part of the Trust. Instead, we concluded that in either event, the lot
would become Fejeran’s property because it was either part of the Trust, or if it was reconveyed to the
decedent it would be treated like Lot 1734-New-8, and Fejeran properly exercised her right of recovery as
a co-trustee of the Roberto Trust. Id. Our mandate was clear that Fejeran would take possession of the
property, id., and the removal ordered followed our mandate by stating that “Lot No. 1734-New-15 is
hereby excluded from this Estate and is awarded to Claimant Fejeran as her sole property in fee simple
absolute . . . .” Removal Order at 2-3. We also ordered that the $99,000 initial lease payment be analyzed
similarly to Pacific Century and Pacific Financial accounts because the funds were commingled. All of
the above accounts are to be awarded to Fejeran except account 140017153 because, as discussed above,
the trial court must make additional findings of fact before it can determine who owns those proceeds.
The removal order was silent regarding the initial lease payment, though it discussed the amounts that
comprised the other accounts. The trial court must explicitly distribute the initial lease payment. We find
that the law and mandate of Roberto I was not followed in disposing of the initial lease payment;
therefore, we order the trial court to distribute the $99,000 initial lease payment in the same manner as the
other accounts.
¶ 29 The removal order also specified that the lease income from Lot 1734-New-15 be turned over to
Fejeran. The income that the executor possessed at the time of the removal order was $219,030 for
September 2000 through October 2004. Id. at 3. From October 2004 through January 2007 the rental
income was in held in trust by Calvary’s attorney and totaled $123,011.58. Id. The trial court ordered that
all of this money be turned over to Fejeran, and that all future rental payments were to be made to
Fejeran. Roberto I did not discuss the rental income from Lot 1734-New-15, and we also failed to
determine or order the trial court to determine, who owned the lot when the lease was entered into.
Fejeran is entitled to the lease income regardless of whether the Roberto Trust or the dec