Fuentes v. Tillett

Under ORS 125.480, intermediate accounting orders are final only as to the conservator's liability with respect to matters that were actually presented to, and considered by, the probate court when it approved the intermediate accountings.

Plaintiffs appealed three interrelated judgments in two separate actions, contending that the probate court and trial court erroneously denied them the opportunity to challenge the alleged mishandling of a conservatorship by the conservator and her attorney. In the probate case, under ORS 125.080, the statutory text shows that the legislature intended evidentiary hearings to be required only when objections have been filed, and intended that finality attach to a final accounting that has been approved in accordance with statutory requirements. In light of that, the only plausible interpretation of the phrase "upon notice and hearing" in ORS 125.480 is that the order be preceded by the requisite notice and an opportunity to be heard. Intermediate accounting orders were final only as to the conservator's liability regarding matters that were actually presented to, and considered by, the probate court when it approved the intermediate accountings. The text of ORS 125.480 provides: An intermediate accounting order is final "as to the liabilities of the conservator concerning the matters considered in connection with the intermediate accounting." A matter is "considered" by a court when the matter is thought about and judged. However, it does not insulate a conservator from subsequent claims of breach of fiduciary duty that are raised while the conservatorship remains open and the final accounting has not been approved. In Case No. P0806024, August 21, 2009, judgment reversed and remanded; October 12, 2010, judgment reversed and remanded as to claims against Tillett and St. Paul, and affirmed as to claims against Fellows. In Case No. CV09080193, affirmed.