Maloney v. Bryant

“Redirect may extend to the facts elicited on cross examination; matters that tend to limit, explain, or qualify them; or matters that tend to rebut or modify any inference resulting from the cross-examination – provided that the inquiries are directly connected with the matter stated in cross-examination”. State v. Wirfs, 250 Or App 269, 275 (2012). “A personal representative has ‘a fiduciary duty to the beneficiaries of the estate’ and ‘must be in a position to act indifferently in matters of the estate’”. Wharff v. Rohrback, 152 Or App 68, 72 (1998). “An order in action that affects a substantial right, and that effectively determines the action so as to prevent judgement in the action, may be appealed in the same manner as provided in this chapter for judgements.” ORS 19.205(2).

Respondent appealed an order removing him as personal representative of an estate and the denial of his ORCP 71 motion. Respondent assigns three errors to the trial court arguing (1) that it was an abuse of discretion to deny him the opportunity to finish is own direct examination, (2) there was no conflict of interest identified for his removal as personal representative, and (3) that because (1) and (2) were based on a ‘mistake’ denial of his ORCP 71 motion was an error. “Redirect may extend to the facts elicited on cross examination; matters that tend to limit, explain, or qualify them; or matters that tend to rebut or modify any inference resulting from the cross-examination – provided that the inquiries are directly connected with the matter stated in cross-examination”. State v. Wirfs, 250 Or App 269, 275 (2012). “A personal representative has ‘a fiduciary duty to the beneficiaries of the estate’ and ‘must be in a position to act indifferently in matters of the estate’”. Wharff v. Rohrback, 152 Or App 68, 72 (1998). “An order in action that affects a substantial right, and that  effectively determines the action so as to prevent judgement in the action, may be appealed in the same manner as provided in this chapter for judgements.” ORS 19.205(2). The Court reasoned that because Respondent could have spoken to evidence missed on direct during redirect, the trial court did not abuse its discretion. The Court further reasoned that because evidence of Respondent’s mistake in drafting the will showed a lack of indifference, there was a conflict of interest identified. The Court held that Respondent’s third error was not appealable because the denial of the motion did not “effectively determine the action”. Therefore, the judgment is affirmed.