In the Matter of the Guardianship of AMM

In the Matter of the Guardianship of AMM, 2015 MT 250 (Aug. 24, 2015) (Shea, J.; Rice, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court abused its discretion in denying Timothy’s motion to vacate the March 24, 2014 FOF/COLs and Judgment; (2) whether the district court erred in striking Timothy’s reply brief; (3) whether the district court abused its discretion by limiting the powers of the joint conservators and not allowing them to act in AMM’s elected corporate roles; (4) whether the district court abused its discretion in awarding attorney fees to Wold; (5) whether the district court abused its discretion in ordering Timothy to personally pay attorney fees to Emerson as part of a Rule 11 sanction; and (6) whether Timothy can allege violations of the Montana Rules of Professional Conduct in this appeal.

Short Answer: (1) No; (2) no; (3) no; (4) no; (5) no; and (6) no, as they were not raised in the district court.


Facts: AMM, born in 1922, had eight children: William, Thomas, Paul Jr., Miriam, Genet, Timothy, Kathleen, and Sheila. Paul Sr., AMM’s husband and the father of her children, died in June 2013. His estate includes considerable assets and is currently being probated in Lake County.

In January 2014, Timothy petitioned for temporary and permanent guardianship and conservatorship of AMM and requesting that he be appointed the sole guardian and conservator. Timothy filed an affidavit from AMM stating she wished for Timothy to take care of her and manage her affairs and finances. The same day. Paul Jr., Sheila and William also filed a petition for determination of incapacity and request for appointment of temporary guardians and conservators, noting that AMM suffers from Alzheimer’s type dementia. The second petition included a psychological evaluation form December 2013 saying AMM could not function independently, and did not have the capacity to understand the probate of her late husband’s estate to the extent necessary for making decisions in her best interest.

The district court consolidated the petitions and issued a temporary order appointing OPD to represent AMM unless she hires private counsel of her own choice. Ronn Larsen of DPHHS was appointed temporary guardian and conservator. On Feb. 26, 2014, the court appointed attorney Casey Emerson as visitor or friend of AMM, and attorney Steve Eschenbacher of OPD to serve as AMM’s attorney until trial.

Trial was held March 5-6, 2014, and five weeks later the district court issued detailed findings, conclusions, and a judgment finding AMM an incapacitated person who has lacked capacity to enter into legally enforceable contracts since at least Dec. 13, 2013, the date of the psych eval. The court appointed Casey Emerson guardian and appointed Paul Jr., Timothy, and Polson attorney Doug Wold joint conservators, specifying that any actions taken as conservators required a majority vote.

Timothy moved to vacate the March 14, 2014 order and grant a new trial, arguing AMM’s due-process rights were violated, the appointment s were void, and the district court failed to follow statutory procedures. The district court denied the motion in June 2014.

Wold petitioned the district court for a declaratory judgment on the joint conservators’ authority to act on AMM’s behalf in her role as director and signatory of several corporations. The court held they were not so entitled.

Wold petitioned the district court for attorney fees in June 2014, stating Timothy refused to pay Wold’s bills. He filed subsequent petitions on June 20 and July 8, 2014.

Procedural Posture & Holding: The district court held a hearing and granted Wold’s first petition for fees, as well as Wold’s motion for Rule 11 sanctions against Timothy. The court modified its March 2014 order to allow only one conservator to approve Wold’s bills. The court held a second hearing and granted Wold’s second and third petitions, and again ordered Timothy to pay Wold and Emerson the reasonable costs of their preparation for the hearing as a Rule 11 sanction. Timothy appeals, and the Supreme Court affirms.

Reasoning: (1) Timothy argues the court should have ordered a new trial due to irregularities in the proceedings and multiple abuses of discretion by the district court. Timothy does not have standing to assert violation of AMM’s due-process rights. Timothy removed his own counsel just before trial, and the district court did not err when it held the opposing party was not bound to the notice requirements of Rule 10 and § 37-61-405, MCA, and did not abuse its discretion in denying Timothy’s motion for a continuance. The district court’s appointment of Emerson as AMM’s guardian was not an abuse of discretion. The distrust among the siblings and the complexity of the estate gave the district court good cause to appoint three joint conservators, including one without statutory priority. This was not an abuse of discretion, and the district court did not abuse its discretion by denying Timothy’s motion to vacate its March 2014 order.

(2) Timothy’s reply brief on his motion to vacate was due May 19, 2014. It was filed that day, and the certificate of service stated it was served that day, but the postmark was dated May 21, 2014. Wold moved to strike the reply brief as untimely served, and the district court’s decision to grant the motion was not an abuse of discretion.

(3) The plain language of § 72-5-430(2), MCA, allowed the district court to limit the conservators’ power. It did not abuse its discretion in declaring the conservators could not act in AMM’s elected role of a corporation, or in her designated role as signatory for a corporation.

(4) If an attorney is appointed a conservator, the attorney is entitled to reasonable legal fees incurred on behalf of the estate. The district court determined the reasonableness of Wold’s fees, and was within its discretion in ordering payment of those fees.

(5) Timothy was ordered to personally pay Emerson’s reasonable legal fees for hearing preparation because he breached his fiduciary duty as a conservator of a protected person, and was being sanctioned under M.R. Civ. P. 11(b). The court held that Timothy’s objections to Wold’s petitions for fees were without merit and designed to harass, cause unnecessary delay and needlessly increase the cost of litigation, citing Rule 11. The district court’s order requiring Timothy to personally pay Emerson and Wold for their time preparing for the hearings was not an abuse of discretion.

(6) Timothy did not raise allegations of violations of the Montana Rules of Professional Conduct below, and they are not properly before the Court in this appeal.

Justice Rice’s Concurrence: Appointment of the public defender’s office in a guardianship case is authorized by the Probate Code. The district court was authorized to appoint a public defender to represent AMM, and had appropriate reason to do so. However, “[i]n guardianship cases where significant private assets are involved, and the client has the ‘financial ability to pay,’ § 47–1–110(2)(d), MCA, the public defender and the courts should be diligent to ensure that appropriate reimbursement is ordered to the defender system for services provided.” ¶ 83.