In Re the Guardianship & Conservatory of A.M.M.

2015 MT 250, 356 P.3d 474, 380 Mont. 451, 2015 Mont. LEXIS 438
CourtMontana Supreme Court
DecidedAugust 24, 2015
DocketDA 14-0441
StatusPublished
Cited by14 cases

This text of 2015 MT 250 (In Re the Guardianship & Conservatory of A.M.M.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Guardianship & Conservatory of A.M.M., 2015 MT 250, 356 P.3d 474, 380 Mont. 451, 2015 Mont. LEXIS 438 (Mo. 2015).

Opinions

JUSTICE SHEA

delivered the Opinion of the Court.

¶1 Timothy McCann appeals numerous orders and judgments of the Twentieth Judicial District Court, Lake County, in the guardianship and conservatorship proceedings for Timothy’s mother, A.M.M. We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court abused its discretion by denying Timothy’s motion to vacate the District Courts March 14, 2014 [453]*453 Findings of Fact, Conclusions of Law, and Judgment.
2. Whether the District Court erred by 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 A.M.M.’s elected corporate roles.
4. Whether the District Court abused its discretion by awarding attorney fees to Wold.
5. Whether the District Court abused its discretion by ordering Timothy to personally pay attorney fees to Emerson as part of a Rule 11 sanction.
6. Whether Timothy can allege violations of the Montana Rules of Professional Conduct in this appeal.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 A.M.M. was bom in 1922 and is the mother of eight adult children: William, Thomas, Paul Jr., Miriam, Genet, Timothy, Kathleen, and Sheila. A.M.M.’s husband and the father of her children, Paul Sr., passed away in June 2013. Paid Sr.’s estate includes considerable assets and ownership interests in several corporations. The estate is currently being probated in Lake County.

¶4 On January 13,2014, Timothy filed a petition for temporary and permanent guardianship and conservatorship of A.M.M. His petition explained that he had cared for both A.M.M. and his late father starting in 2007 when his parents moved to Poison. Timothy’s petition requested that he be appointed A.M.M.’s sole guardian and conservator. Timothy filed an affidavit from A.M.M., dated January 14, 2014, which stated that A.M.M. wished for Timothy “to take care of me & manage my affairs and my finances.” On January 13, 2014, Paid Jr., Sheila, and William also filed a petition for determination of incapacity and request for appointment of temporary guardians and conservators. The second petition specifically noted that A.M.M. suffers from Alzheimer’s type dementia. The petition included a psychological evaluation dated December 13,2013, which concluded that “if left alone, [A.M.M.] would not be able to function independently,” and that she “should be closely monitored and supervised.” The evaluating psychologist also concluded that A.M.M. did not have the capacity to understand the process of probating her late husband’s estate “to the extent necessary for making decisions in her best interest.”

¶5 The District Court consolidated the two petitions and on January 15, 2014, issued a temporary order, and appointed the Office of the [454]*454State Public Defender (OPD) to represent A.M.M. “unless she hires private counsel of her own choice.” Ronn Larsen, an Adult Protection Specialist with the Department of Public Health and Human Services, was appointed temporary guardian and conservator of A.M.M. for six months or until further court order. On February 6,2014, the District Court appointed attorney Casey Emerson as visitor or Mend of A.M.M., and attorney Steven Eschenbacher of OPD to serve as AM.M.’s attorney until trial.

¶6 A hearing to determine the need for guardians and conservators of A.M.M. was initially scheduled for February 19,2014. On February 13,2014, Paul Jr., Sheila, and William filed for a continuance, stating that A.M.M.’s children and relatives needed additional time to travel to Poison for the hearing. The District Court reset the hearing for March 5,2014. On March 3,2014, Timothy filed a notice of removal of his two attorneys with the District Court. On March 5,2014, Paul Jr., Sheila, and William filed an objection to any possible continuance that Timothy may seek due to his removal of his attorneys. Trial on the issue of A.M.M.’s incapacity was held, as scheduled, on March 5-6, 2014.

¶7 On March 14,2014, the District Court issued detailed Findings of Fact, Conclusions of Law, and Judgment which found that AM.M. is an incapacitated person as defined by § 72-5-101(1), MCA. The District Court found that A.M.M. had been incapacitated since at least December 2013, when the psychological evaluation was performed, and found that AM.M. “lacked capacity to enter into legally-enforceable contracts since at least December 13, 2013.” The court appointed Poison attorney Casey Emerson as guardian and appointed Paul Jr., Timothy, and Poison attorney Douglas J. Wold as joint conservators. The court ordered that any actions taken as conservators required a majority vote.

¶8 On April 11,2014, Timothy, acting pro se, filed a motion to vacate the court’s March 14,2014 order and grant a new trial, arguing among other claims that A.M.M.’s due-process rights were violated, that various temporary and permanent appointments were void, and that the District Court failed to follow the statutory procedures for guardianship and conservatorship proceedings. After being granted an extension, Wold answered Timothy’s motion on May 2,2014, on behalf of himself, joint conservator Paul Jr., and guardian Emerson. Timothy filed a reply brief with the District Court on May 19,2014. Timothy did not serve his reply brief until May 21,2014, however, and the District Court issued an order striking Timothy’s reply for untimely service. On June 9,2014, the District Court denied Timothy’s motion to vacate the [455]*455March 14,2014 order on A.M.M.’s incapacity.

¶9 On June 12, 2014, Wold petitioned the District Court for a declaratory judgment on the joint conservator’s authority to act on behalf of A.M.M. in her roles as a director and signatory of several corporations. The District Court ordered that the joint conservators of A.M.M.’s estate “are not legally entitled to act in her place as a director of any corporation in which” A.M.M served as an elected and acting member of the board of directors, and “are not legally entitled to act in her place as a signatory for any corporation.”

¶10 On June 12,2014, Wold filed a petition for attorney fees with the District Court, stating that Timothy refused to pay Wold’s bills. The March 14,2014 order stated that “Casey Emerson and Douglas J. Wold shall be compensated at their usual hourly rates, as [A.M.M.]’s assets are sufficient therefor.” Wold filed a second petition for attorney fees on June 20,2014, and a third petition for attorney fees on July 8,2014.

¶11 On July 9 and 11, 2014, the District Court held a hearing on Wold’s first petition for attorney fees. The District Court granted Wold’s petition for attorney fees to be paid by the conservators, and granted Wold’s motion for Rule 11 sanctions against Timothy. The order required Timothy to personally pay Wold’s attorney fees incurred for the hearing preparation. The order found that Timothy breached his fiduciary duty as A.M.M.’s conservator by bringing an “unnecessary proceeding” challenging Wold’s fees, and required Timothy to personally pay guardian Emerson’s attorney fees for her work preparing for the July hearing. The court also modified the March 14, 2014 order to allow one conservator, either Paul Jr. or Timothy, to approve any future bill from Wold.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 MT 250, 356 P.3d 474, 380 Mont. 451, 2015 Mont. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-conservatory-of-amm-mont-2015.