Estate of White

2016 MT 148N

• Court: Montana Supreme Court
• Decided: June 14, 2016
• Docket: 15-0548
• Status: Published

Opinion

06/14/2016

DA 15-0548 Case Number: DA 15-0548

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 148N

IN THE MATTER OF THE ESTATE OF:

ROBERT A. WHITE,

Deceased.

APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DP 94-44 Honorable Mike Salvagni, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Terry F. Schaplow, Attorney at Law, Bozeman, Montana

For Appellee:

Jami Rebsom, Attorney at Law, Livingston, Montana

Submitted on Briefs: April 27, 2016

Decided: June 14, 2016

Filed:

__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Robert L. White (White) appeals from an order entered by the Sixth Judicial

District Court, Park County, denying his motions for an accounting and production of

documents and granting Deborah Juhnke’s (Juhnke), Robert A. White’s personal

representative, motion to close the estate. We affirm.

¶3 White and Juhnke are the sibling descendants of the decedent, Robert A. White.

On April 8, 2015, the District Court granted Juhnke’s motion to close the estate of Robert

A. White. On April 13, 2015, the District Court filed its order closing Robert A. White’s

estate. Juhnke filed a notice of entry of final judgment on May 14, 2015. On June 12,

2015, White filed a motion for the District Court to correct its order, wherein White

accused Juhnke of fraud. The District Court did not expressly rule on this motion, but it

was deemed denied pursuant to Mont. R. Civ. P. 59(f) after 60 days. White filed a notice

of appeal with the Montana Supreme Court on September 8, 2015.

¶4 The dispositive issue raised is whether this appeal is timely. This Court has

appellate jurisdiction and “may make rules governing appellate procedure.” Mont. Const.

art. VII, § 2(1), (3). “A party may appeal from a final judgment.” M. R. App. P. 6(1).

“A final judgment conclusively determines the rights of the parties and settles all claims

2 in controversy in an action or proceeding.” M. R. App. P. 4(1)(a). “In civil cases . . . the

notice of appeal shall be filed with the clerk of the supreme court within 30 days from the

date of entry of the judgment or order from which the appeal is taken.” M. R. App. P.

4(5)(a)(i). If notice of entry of judgment is required, the thirty day period “shall not

begin to run until service of the notice of entry of judgment.” M. R. App. P. 4(5)(a)(i).

¶5 Here, the District Court filed its order closing the estate of Robert A. White on

April 13, 2015. The order closing the estate constituted a final judgment in this matter.

Juhnke filed a notice of entry of final judgment on May 14, 2015. White had thirty days

from May 14, 2015, to file a notice of appeal with this Court. Instead, White filed this

appeal on September 8, 2015, or 117 days after the notice of entry of final judgment. We

conclude that this appeal is not timely.

¶6 In her brief, Juhnke asks this Court to impose sanctions upon White for filing this

appeal. “The supreme court may, on a motion to dismiss, a request included in a brief, or

sua sponte, award sanctions to the prevailing party in an appeal, cross-appeal, or a motion

or petition for relief determined to be frivolous, vexatious, filed for purposes of

harassment or delay, or taken without substantial or reasonable grounds. Sanctions may

include costs, attorney fees, or such other monetary or non-monetary penalty as the

supreme court deems proper under the circumstances.” M. R. App. P. 19(5). “This Court

does not readily impose sanctions for filing frivolous appeals. As a general rule, we

impose sanctions in cases only where the appeal is entirely unfounded and intended to

cause delay, or where counsel’s actions otherwise constitute an abuse of the judicial

3 system.” Bi-Lo Foods Inc. v. Alpine Bank, 1998 MT 40, ¶ 36, 287 Mont. 367, 955 P.2d

154 (citations omitted).

¶7 Juhnke argues that, in this appeal, White is “using the justice system to harass and

intimidate [her].” Juhnke complains that White “has been intervening and interfering

with [her] job as Personal Representative in this matter since its inception in 1994.” She

requests her attorney fees and costs incurred in defending this appeal pursuant to M. R.

App. P. 19(5). Upon review of the record, we find White’s appeal to be an abuse of the

judicial system, filed for the purpose of harassing Juhnke. This appeal is entirely

unfounded because it is not timely. We invoke M. R. App. P. 19(5) to grant Juhnke her

request for attorney fees and costs associated with this appeal to be determined on

remand to the District Court.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no issues of first impression and does not establish new precedent or modify

existing precedent.

¶9 We affirm and remand for determination of Juhnke’s attorney fees and costs

incurred on appeal.

/S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JIM RICE