                Filed 03/19/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 2020 ND 71

In the Matter of Curtiss A. Hogen Trust B, created under the Last Will and
Testament of Curtiss A. Hogen


Steven C. Hogen, Co-Trustee,                           Petitioner and Appellee
      v.
Rodney Hogen, Co-Trustee,                          Respondent and Appellant



                                No. 20190240

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven E. McCullough, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice, in which Justice Tufte and Chief
Justice Jensen joined. Justice Crothers filed an opinion concurring in part and
dissenting in part, in which Justice VandeWalle joined.

Stephen R. Hanson II (argued) and Robert G. Hoy (on brief), West Fargo, ND,
for petitioner and appellee.

Jonathan T. Garaas, Fargo, ND, for respondent and appellant.
                         Matter of Hogen Trust B
                              No. 20190240

McEvers, Justice.

[¶1] Rodney Hogen appeals from an order denying his motion and an order
terminating a trust. Rodney Hogen argues on appeal he should have received
additional funds from the Trust. Specifically, Rodney Hogen argues the
district court’s previous order, and this Court’s opinion affirming the order,
permitted only $208,000, and no additional funds, to be taken from his share.
Rodney Hogen argues the prior order is binding and the order by the court
denying his motion impermissibly changes the meaning of the prior order.
Rodney Hogen also argues the court erred in terminating the Trust. We affirm.

                                      I

[¶2] This Court has previously addressed issues surrounding the Trust,
estate, and land connected to this case. See Estate of Hogen, 2019 ND 141, 927
N.W.2d 474, cert. denied, 140 S.Ct. 220; Hogen v. Hogen, 2019 ND 17, 921
N.W.2d 672, cert. denied, 140 S.Ct. 119; Matter of Hogen Trust B, 2018 ND 117,
911 N.W.2d 305; Estate of Hogen, 2015 ND 125, 863 N.W.2d 876.

[¶3] Arline and Curtiss Hogen owned land in Barnes and Cass County. Their
son, Rodney Hogen, farmed with Curtiss Hogen. When Curtiss Hogen died in
1993 his undivided one-half interest in the land was distributed to the Curtiss
Hogen Trust. Curtiss Hogen’s will allowed the Trust to continue the farming
operation, appointed his two children, Steven Hogen and Rodney Hogen, as co-
trustees of the Trust, and authorized the trustee to make payments to Arline
Hogen during her lifetime. After Curtiss Hogen died, Rodney Hogen continued
to farm under a rental agreement with the Trust and Arline Hogen.

[¶4] When Arline Hogen died in 2007 all of her property was devised equally
to her two sons, Steven Hogen and Rodney Hogen. Steven Hogen was
appointed personal representative of her estate and evidence indicated the
estate may be entitled to an offset from Rodney Hogen’s share. Litigation led
to Estate of Hogen, where this Court affirmed the amount Rodney Hogen owed



                                      1
to the estate and the personal representative fees, attorney fees, costs, and
expert witness fees from the estate. 2015 ND 125, 863 N.W.2d 876.

[¶5] After Estate of Hogen, 2015 ND 125, 863 N.W.2d 876, Steven Hogen
petitioned the district court for supervised administration of the Trust to
compel an accounting and recover an offset against Rodney Hogen’s share of
the Trust, void deeds unilaterally made by Rodney Hogen, remove Rodney
Hogen as co-trustee, and prevent Rodney Hogen from receiving rent from the
Trust land. Matter of Hogen Trust B, 2018 ND 117, ¶ 5, 911 N.W.2d 305. The
court granted Steven Hogen partial summary judgment, finding the Trust did
not automatically terminate upon Arline Hogen’s death and entered an interim
order for supervised administration of the Trust. Id. at ¶¶ 6-7. The court
denied the request to suspend Rodney Hogen as co-trustee. Id.

[¶6] After a bench trial, the district court found Rodney Hogen breached
fiduciary duties and obligations and owed the Trust. Matter of Hogen Trust B,
2018 ND 117, ¶ 8, 911 N.W.2d 305. The court then permanently suspended
Rodney Hogen as co-trustee and ordered Steven Hogen to divide and allocate
the Trust property, authorizing him to pay outstanding mortgages, debts, and
encumbrances, attorney fees, and to pay equal shares with a portion first offset
from Rodney Hogen’s share. Id. The court granted Steven Hogen’s petition for
approval of a final trustee’s report and request for trustee’s fees and attorney
fees. Id. at ¶ 9. The court “awarded trustee’s fees in the amount of $13,750,
attorney’s fees in the total amount of $401,916.50, with $208,000 withheld
from Rodney Hogen’s share of Trust assets, and associated litigation fees, costs,
and expenses in the amount of $26,325.35.” Id. The court also directed Steven
Hogen to withhold $10,000 from the Trust property for continuing fees and
expenses and payment of ongoing attorney fees and capital gains taxes on the
land sale. Id.

[¶7] Rodney Hogen appealed. This Court concluded the district court did not
abuse its discretion by approving the trustee’s final report. This Court also
affirmed the court’s decision that the Trust had not terminated at Arline
Hogen’s death, that Rodney Hogen breached fiduciary duties to the Trust, and
the authorization for Steven Hogen to sell the Trust land to offset against


                                       2
Rodney Hogen’s share. Matter of Hogen Trust B, 2018 ND 117, ¶¶ 22, 31, 36,
911 N.W.2d 305. We also affirmed the award of attorney fees to Steven Hogen.
Id. at ¶ 39.

[¶8] In June 2019, Steven Hogen, as the trustee, filed a final report of
distribution. Rodney Hogen then filed a “motion for surcharge of fiduciary and
motion for attorney fees” arguing he should receive $239,960.43 from the Trust,
the difference between the preliminary cash allocation of $447,960.43 and
$208,000 withheld from his portion of the Trust assets. The district court
denied Rodney Hogen’s motion, stating the correct amount had been
distributed and “[t]he $208,000 portion was to be withheld from Rodney’s
portion, however, the remaining attorney fees were to be equally withheld from
remaining Trust property.” The court also terminated the Trust. Rodney
Hogen appeals the order denying his motion and the order terminating the
Trust.

                                       II

[¶9] Rodney Hogen argues that this Court’s prior decision permitted only
$208,000 to be taken from his share. Rodney Hogen argues the district court
violated the mandate rule by not following this Court’s prior decision.

             Generally, the law of the case is defined as the principle that
      if an appellate court has passed on a legal question and remanded
      the cause to the court below for further proceedings, the legal
      question thus determined by the appellate court will not be
      differently determined on a subsequent appeal in the same case
      where the facts remain the same. In other words, [t]he law of the
      case doctrine applies when an appellate court has decided a legal
      question and remanded to the district court for further
      proceedings, and [a] party cannot on a second appeal relitigate
      issues which were resolved by the Court in the first appeal or
      which would have been resolved had they been properly presented
      in the first appeal. The mandate rule, a more specific application
      of law of the case, requires the trial court to follow pronouncements
      of an appellate court on legal issues in subsequent proceedings of
      the case and to carry the [appellate court’s] mandate into effect
      according to its terms. . . . and we retain the authority to decide


                                        3
      whether the district court scrupulously and fully carried out our
      mandate’s terms.

Viscito v. Christianson, 2016 ND 139, ¶ 7, 881 N.W.2d 633.

[¶10] However, the fact a matter has been appealed does not bar all corrections
or clarifications. For example, a district court may correct clerical errors even
after appeal, if the correction fits under N.D.R.Civ.P. 60(a) and the appellate
court has not ruled explicitly or implicitly on the issue that is the subject of the
correction. Roth v. Hoffer, 2006 ND 119, ¶ 10, 715 N.W.2d 149. Clarification
of a judgment is similar to a correction for clerical error under N.D.R.Civ.P.
60(a), because in both instances the court is addressing ambiguities or an error
of omission to clarify a judgment to reflect the court’s intent when the initial
judgment was entered. See Roth, at ¶ 9 (discussing F.R.Civ.P. 60 authorizing
a court to correct ambiguities). Under N.D.R.Civ.P. 60(a), a clerical mistake
that can be corrected is a “blunder in execution” rather than an instance where
a court changes its mind. Roth, at ¶ 9. Because we allow courts to correct
clerical errors to correct ambiguities following an appeal when we have not
ruled on the issue, likewise, we will allow clarification under the facts of this
case.

[¶11] The district court’s prior order stated: “Steven C. Hogen is AWARDED
attorney’s fees in the total amount of $401,916.50, $208,000 of which is to be
withheld from Rodney Hogen’s portion of the Trust assets.” The issue on the
award of attorney fees in the previous appeal was only whether the court
should have denied the request for attorney fees. Matter of Hogen Trust B,
2018 ND 117, ¶ 37, 911 N.W.2d 305. This Court affirmed the attorney fees,
stating: “The district court awarded Steven Hogen: . . . 2) $401,916.50 from
Trust property for attorney’s fees with $208,000 withheld from Rodney Hogen’s
portion of Trust assets.” Id. at ¶ 38. When affirming the court’s award of
attorney fees, this Court did not interpret the meaning of the court’s order.
The language in our prior decision merely stated what the court had ordered.
The mandate rule requires “the trial court to follow pronouncements of an
appellate court on legal issues in subsequent proceedings of the case.” “[W]e
retain the authority to decide whether the district court scrupulously and fully


                                         4
carried out our mandate’s terms.” In the previous appeal, there was no remand
or mandate directing the court to construe its order in any particular way.
Therefore, the court interpreting its own order did not violate the mandate
rule.

                                     III

[¶12] Rodney Hogen argues the district court’s prior order is binding and the
order denying his motion impermissibly changes the meaning of the prior
order. Essentially, he argues the order denying his motion is a modification of
the previous order and the previous order permitted only $208,000, and no
more, to be taken from him.

[¶13] In Matter of Hogen Trust B, this Court analyzed the appealability of the
previous order and determined it was a final order for purposes of appeal. 2018
ND 117, ¶¶ 10-14, 911 N.W.2d 305. An order intended to be a final judgment
will be treated as a final judgment. Funke v. Aggregate Constr., Inc., 2015 ND
123, ¶ 8, 863 N.W.2d 855.

            Interpretation of a judgment is a question of law, and an
      unambiguous judgment may not be modified, enlarged, restricted,
      or diminished. If the same trial judge clarifies an original
      judgment, we afford the judge’s clarification considerable
      deference. When, however, one trial judge interprets the decree of
      another, the interpreting court is in no better position than we are
      to determine the original judge’s intentions, and this court reviews
      such interpretations de novo. Following our rule on contract
      interpretation, the question whether a judgment is ambiguous is a
      question of law for the court to decide. There is an ambiguity when
      language can be reasonably construed as having at least two
      alternative meanings.

Dakutak v. Dakutak, 1997 ND 76, ¶ 6, 562 N.W.2d 750 (citations omitted).

[¶14] While a modification is not permitted, a clarification is permissible. We
have allowed clarification if there is an ambiguous provision in the judgment
that creates an actual controversy between the parties. Neubauer v. Neubauer,
524 N.W.2d 593, 595 (N.D. 1994). “Clarification of a judgment is appropriate


                                       5
when the judgment fails to specify some particulars, and uncertainties in the
decree arise from subsequent events.” Hoverson v. Hoverson, 2017 ND 27, ¶ 6,
889 N.W.2d 858. “A trial court’s clarification of a previously entered decree by
that same court is given considerable deference by this Court in construing the
original order or decree.” Quamme v. Bellino, 2002 ND 159, ¶ 10, 652 N.W.2d
360.

      [When] a court is clarifying its own decree, it quite naturally is in
      a position superior to ours for the construction of items commonly
      referred to as findings of fact. It only follows then that
      “[c]onstruction of its own decree by the trial court must be given
      great weight in determining the intent of the trial court.”

State v. Greenshields, 2019 ND 229, ¶ 7, 932 N.W.2d 903 (citation omitted).

[¶15] At the district court, Rodney Hogen asserted the amended final report
and accounting of the Trust contemplated he would be allocated $447,960.43
and that amount, less the $208,000 for attorney fees meant he should receive
$239,960.43. Steven Hogen asserted that after subtracting $208,000 from the
total amount of attorney fees, $401,916.50, there was still $193,916.50 in
attorney fees and the fees were to be taken equally out of the Trust property.
This meant one-half of these remaining attorney fees would also be taken from
Rodney Hogen’s share. One-half of the remaining fees would be $96,958.25.
The $208,000 Rodney Hogen owed, plus half of the remaining fees, $96,958.25,
meant Rodney Hogen’s portion would be reduced by a total of $304,958.25 in
attorney fees.

[¶16] “An ambiguity exists when rational arguments can be made in support
of contrary positions as to the meaning of the language in question.” Kuperus
v. Willson, 2006 ND 12, ¶ 11, 709 N.W.2d 726 (discussing interpretation of a
contract). We conclude the previous order granting attorney fees and
designating that $208,000 was to be withheld from Rodney Hogen’s portion of
the Trust assets is ambiguous. The order finds allocating a portion of the
attorney fees against Rodney Hogen’s portion of the Trust is appropriate based
on Rodney Hogen’s burdensome, vigorous, and expensive litigation strategy.
The district court clearly designates $208,000 to be withheld from Rodney


                                       6
Hogen’s portion. However, the court did not explicitly state how the remainder
of the attorney fees would be allocated, whether from Steven Hogen’s portion
alone or to be shared equally from Steven Hogen’s and Rodney Hogen’s portion
of the Trust. The order lends itself to two alternate reasonable meanings.

[¶17] Shortly after one of Rodney Hogen’s appeals, but before this Court issued
its opinion in Matter of Hogen Trust B, 2018 ND 117, 911 N.W.2d 305, Steven
Hogen requested attorney fees, arguing $208,000 of the fees were attributable
to Rodney Hogen’s “burdensome,” “unnecessary,” “wasteful,” and “duplicative”
litigation. Steven Hogen further argued that when a trustee is also a
beneficiary of a trust (as Rodney Hogen was) and that trustee is guilty of
serious breaches of trust resulting in litigation, allocation of attorney fees
should be allocated solely against, and paid entirely from that
trustee/beneficiary, and the remaining beneficiaries should not be required to
pay any part of the attorney fees of that litigation. The district court declined
to award attorney fees until after the appeal, but specifically noted Steven
Hogen’s request for $208,000 of attorney fees be paid from Rodney Hogen’s
share of the Trust. In addition, the court required Rodney Hogen to obtain a
supersedeas bond in the amount of $600,000 for various offsets and fees,
expressly including $208,000 allegedly owed by Rodney Hogen for attorney
fees. The court, in requiring the bond, noted that the $120,000 amount of
attorney fees to come from the Trust were not included in its calculation, as it
was already part of the Trust.

[¶18] After this Court decided Matter of Hogen Trust B, 2018 ND 117, 911
N.W.2d 305, the district court found Rodney Hogen had taken unauthorized
action with the Trust property, filed pleadings not authorized by the rules,
repeatedly argued points already decided, and clouded legal title. The court
found allocating a portion of attorney fees to Rodney Hogen would be
appropriate due to Rodney Hogen’s conduct.

[¶19] In the order denying Rodney Hogen’s recent “motion for surcharge of
fiduciary and motion for attorney fees”, the district court said:

      In a prior order, the Court ordered $208,000.00 of attorney fees be
      withheld from Rodney’s portion of trust assets, with the remaining

                                       7
      portion to be taken from Trust property. Rodney claims he was
      owed the difference between his preliminary cash allocation and
      the amount of attorney fees withheld from his portion of Trust
      assets, for an amount of $239,960.43.
            However, the Trustee in fact distributed the correct amount
      to Rodney. The $208,000.00 portion was to be withheld from
      Rodney’s portion, however, the remaining attorney fees were to be
      equally withheld from remaining Trust property.

[¶20] The judge who clarified the judgment was the same judge who presided
over all the proceedings. The district court knew what it intended when using
its equitable powers to allocate attorney fees. The court was aware from
Steven Hogen’s request how the fees should be split and ordered Rodney Hogen
to obtain a bond based on the fees that may be allocated to him, other than the
fees that could have come from the Trust. We give great deference to the court
in construing its original intent. The court’s denial of Rodney Hogen’s motion
clarifies the previous order, and does not modify the order. The court did not
impermissibly change the meaning of its prior order.

                                     IV

[¶21] Rodney Hogen claimed the distribution was “conversion.” To claim
conversion, Rodney Hogen would have to rely on the Trust property already
belonging to him. This Court has already rejected the argument that the Trust
property belonged to Rodney Hogen, as the Trust did not terminate upon
Arline Hogen’s death. Matter of Hogen Trust B, 2018 ND 117, ¶ 22, 911 N.W.2d
305. Rodney Hogen also claims he is entitled to attorney fees and interest
because of an improper exercise of authority and power by the district court.
There was no improper exercise of authority or power and Rodney Hogen is not
entitled to attorney fees.

                                      V

[¶22] Rodney Hogen argues the district court erred in terminating the Trust,
without notice, resulting in a lack of due process.

[¶23] “Whether a trust should be terminated is a mixed question of law and
fact.” Matter of the Trust of Pederson, 2008 ND 210, ¶ 17, 757 N.W.2d 740. “A

                                      8
trust terminates upon its object becoming impossible.” Id. “Determining
whether the purpose of the trust was frustrated is a finding of fact . . . . This
Court reviews both conclusions of law and mixed questions of law and fact
under the de novo standard of review.” Id.

[¶24] “The fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.” Cockfield v. City of
Fargo, 2019 ND 77, ¶ 17, 924 N.W.2d 403.

[¶25] The order that the Trust would be terminated upon a final settlement
and distribution was issued in March 2017. That order was affirmed on appeal.
Matter of Hogen Trust B, 2018 ND 117, ¶ 42, 911 N.W.2d 305. The final report
of distribution and a proposed order to terminate the Trust and discharge the
trustees were filed with the district court on June 6, 2019. Rodney Hogen filed
his motion for “surcharge of fiduciary and motion for attorney’s fees” on June
12, 2019, and made no arguments that the Trust should not be terminated.
Rodney Hogen filed his motion under N.D.R.Ct. 3.2, and did not request oral
argument. Steven Hogen filed an answer to Rodney Hogen’s motion on June
24, 2019. After Rodney Hogen replied on June 26, 2019, the court issued an
order denying Rodney Hogen’s motion on July 3, 2019. On July 5, 2019, the
court issued an order terminating the Trust.

[¶26] Rodney Hogen had an opportunity to be heard. He was aware from the
district court’s 2017 order that the Trust would be terminated upon a final
settlement and distribution. Furthermore, he was again given the opportunity
to contest the Trust’s termination and only argued he was entitled to additional
funds from the Trust. The court did not deny Rodney Hogen’s due process
rights in terminating the Trust.

                                      VI

[¶27] Steven Hogen argues he is entitled to additional attorney fees because
this appeal is frivolous.

      Rule 38, N.D.R.App.P., authorizes this Court to award just
      damages and single or double costs including reasonable attorney’s
      fees if the Court determines an appeal is frivolous. An appeal is

                                       9
      frivolous when it is flagrantly groundless. Where the appellant’s
      arguments are both factually and legally so devoid of merit that he
      should have been aware of the impossibility of success on appeal,
      an assessment of costs and attorney fees is proper. This Court has
      also stated, when a party seeks more than a token amount of
      attorney fees, an affidavit documenting the work performed should
      accompany the request.

Matter of Emelia Hirsch Trust, 2017 ND 291, ¶ 14, 904 N.W.2d 740 (citations
omitted).

[¶28] Steven Hogen argues this appeal is frivolous because Rodney Hogen
knew the attorney fees would be coming from the Trust fund, as he argued in
Matter of Hogen Trust B, 2018 ND 117, ¶ 21, 911 N.W.2d 305, “Over Rodney’s
objections, the District Court, relying upon N.D.C.C. § 59-15-09, awarded
attorney fees to Steven totaling $401,916.50 from the Trust property, and an
additional $10,000.00 for continuing fees and expenses.” Rodney Hogen argues
this was taken out of context, because of the argument he made in the previous
appeal, namely that Arline Hogen’s property passed directly to him upon her
death.

[¶29] Rodney Hogen’s claims do not rise to the level of being frivolous. They
are not so devoid of factual and legal merit that he should have been aware of
the impossibility of success. We decline to award Steven Hogen attorney fees.

                                    VII

[¶30] We have considered the remaining issues raised by Rodney Hogen and
they are either unnecessary to our opinion or without merit. The district
court’s orders are affirmed.

[¶31] Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen, C.J.




                                      10
Crothers, Justice, concurring in part and dissenting in part.

[¶32] I concur in Parts I and IV-VII of the majority opinion. I respectfully
dissent from Parts II and III regarding deduction of more than $208,000 from
Rodney Hogen’s share of the Trust.

[¶33] In the Parts from which I dissent, the majority affirms the district court’s
July 3, 2019 Order Denying Motion for Surcharge of Fiduciary and Motion for
Attorney Fees. Majority opinion, at ¶¶ 8-20. In that order the district court
held, “the Trustee in fact distributed the correct amount to Rodney. The
$208,000.00 portion was to be withheld from Rodney’s portion, however, the
remaining attorney fees were to be equally withheld from remaining Trust
property.” I believe the district court was wrong both because of the mandate
rule and because the district court’s prior order said nothing about splitting
future fees and did not authorize the Trustee to withhold fees in excess of the
amount specifically set aside to pay future fees.

[¶34] On appeal the majority holds in Part II that the district court did not
violate the mandate rule because it was merely correcting an ambiguity.
Majority opinion, at ¶ 10. I respectfully disagree.

[¶35] I agree the district court has authority to interpret and clarify its orders
and judgments. Id. But I do not agree with the majority’s conclusion that what
the district court did here is mere “interpretation” of an ambiguous order.
Rather, by denying Rodney Hogen’s motion the district court changed the
September 14, 2017 order that we affirmed in Matter of Curtiss A. Hogen Trust
B, 2018 ND 117, 911 N.W.2d 305.

[¶36] The district court’s prior order provided:

      “1.   Steven C. Hogen’s PETITION FOR APPROVAL OF
      AMENDED FINAL REPORT AND ACCOUNT is GRANTED.
      2.    Steven C. Hogen is AWARDED Trustee’s fees in the amount
      of $13,750.00.
      3.    Steven C. Hogen is AWARDED attorney’s fees in the total
      amount of $401,916.50, $208,000 of which is to be withheld from
      Rodney Hogen’s portion of the Trust assets.


                                       11
      4.     Steven C. Hogen is AWARDED litigation associated fees,
      costs, and expenses in the total amount of $26,325.35.
      5.     Steven C. Hogen shall WITH[H]OLD $10,000 for continuing
      fees and expenses from the Trust property, for payment of ongoing
      attorney’s fees and capital gains taxes on the land sale.”

[¶37] The district court’s order that this Court affirmed is far from
ambiguous—it is clear that $208,000 in attorney’s fees could be withheld from
Rodney Hogen’s share of Trust assets. The order also is clear that an additional
$10,000 could be held in Trust property “for continuing fees and expenses” and
“for payment of ongoing attorney’s fees and capital gains taxes on the land
sale.” The court’s order is only made ambiguous when the majority goes beyond
the face of the order and inspects Rodney Hogen’s and Steven Hogen’s
respective arguments leading up to entry of the order. Majority opinion, at
¶ 15. Of course, it is improper to use prior arguments as a divining rod to find
ambiguity in a subsequent order. Rather, ambiguity must be found on the face
of the order itself. See Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736
N.W.2d 441 (“[T]he rules for interpreting judgments mirror the rules for
interpreting contracts.”); Flaten v. Couture, 2018 ND 136, ¶ 15, 912 N.W.2d
330 (“extrinsic evidence may not be used to vary or contradict the terms of the
agreement or to create an ambiguity.”) (citations omitted).

[¶38] The district court’s order here was denominated as “Approval of Final
Report and Account.” Our disposition of the appeal of that order was expressly
premised on the order being the final disposition of a supervised accounting.
Id. at ¶ 14 (“we conclude we now have jurisdiction to review issues in Rodney
Hogen’s appeal from an order granting approval of the Trustee’s final report
and accounting in the supervised administration of this Trust.”). Therefore, the
“final distribution” was just that—the fixed amount that the Trust was
authorized to withhold and distribute from Trust assets. As a result, the
Trustee could no more exercise a further set-off against Rodney Hogen’s
distribution from Trust assets than he could unilaterally increase the amount
of fees the district court awarded him for his work on the Trust.

[¶39] I would reverse that part of the district court’s order denying Rodney
Hogen’s motion. I also would direct the district court to order the Trustee to


                                      12
pay Rodney Hogen his share of Trust assets (minus no more than $208,000).
Rodney Hogen also is entitled to interest on the amount at the legal rate from
the date payment was required under the prior order. These amounts can be
determined as a matter of law.

[¶40] Daniel J. Crothers
      Gerald W. VandeWalle




                                     13
