McCann v. McCann

2018 MT 207, 425 P.3d 682, 392 Mont. 385
CourtMontana Supreme Court
DecidedAugust 28, 2018
DocketDA 17-0538
StatusPublished
Cited by6 cases

This text of 2018 MT 207 (McCann v. McCann) 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
McCann v. McCann, 2018 MT 207, 425 P.3d 682, 392 Mont. 385 (Mo. 2018).

Opinion

Justice Jim Rice delivered the Opinion of the Court.

***387¶ 1 Genet McCann (Genet) appeals from the District Court's entry of judgment as a matter of law in favor of the Defendants, including individuals and corporate entities, at the close of her case-in-chief in the bench trial held on her claims. We affirm and remand for a determination of attorney fees, addressing the following issues:

1. Did the District Court err by granting the motion for judgment in favor of the McCann and corporate Defendants?
2. Did the District Court err by granting the motion for judgment in favor of Defendant Douglas Wold?
3. Did the District Court err in granting Wold attorney fees?
4. Was Genet denied a fair trial?
5. Should Genet be declared a vexatious litigant?

*686FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Paul McCann, Sr. (Paul Sr.) passed away in 2013, and his estate included considerable assets, including ownership interests in a number of corporations. After Paul Sr.'s death, a guardianship and conservatorship of his wife, A.M.M., and her interests were established due to her diminished capacity. Paul Sr. and A.M.M. have eight adult children, including five who were involved in related legal proceedings: Thomas McCann, Paul McCann Jr. (Paul Jr.), Genet, Timothy McCann, and Sheila McCann (Sheila).

¶ 3 The District Court appointed Paul Jr. and attorney Douglas Wold to serve as co-conservators of A.M.M.'s estate. Genet, either personally, or as counsel for Timothy, has been involved in unsuccessful litigation challenging the guardianship and conservatorship, including three appeals to this Court. In re Guardianship & Conservatorship of A.M.M. , 2015 MT 250, 380 Mont. 451, 356 P.3d 474 ( In re A.M.M. I ); In re Guardianship & Conservatorship of A.M.M. , 2016 MT 213, 384 Mont. 413, 380 P.3d 736 ( In re A.M.M. II ); and In re Guardianship & Conservatorship of A.M.M. , No. DA 16-0729, 2017 MT 227N, 389 Mont. 544, 2017 WL 4004410, 2017 Mont. LEXIS 566 ( In re A.M.M. III ). Genet was licensed to practice law ***388in Montana, but since the trial in this matter, has been disbarred due to professional misconduct in the guardianship proceedings. In re McCann, 2018 MT 140, 391 Mont. 443, 421 P.3d 265 ( In re McCann I ); In re McCann , No. PR 16-0635, Or. (Mont. June 6, 2018) (In re McCann II ). Genet has attempted to challenge her disbarment several times in U.S. District Court, so far unsuccessfully. In re McCann , No. CV 18-02-H-SEH (D. Mont. Jan. 11, 2018) (In re McCann III ), mandamus denied , No. 18-71154, 2018 U.S. App. Lexis 10532 (9th Cir. Apr. 25, 2018); In re McCann , No. CV 18-03-H-SEH (D. Mont. Jan. 11, 2018) (In re McCann IV ); McCann v. Supreme Court of Montana , No. CV 18-42-H-SEH (D. Mont. June 11, 2018) (McCann v. Supreme Court I ); McCann v. Supreme Court of Montana , No. CV 18-57-H-SEH (D. Mont. June 11, 2018) (McCann v. Supreme Court II ).

¶ 4 In September 2014, Genet, Thomas, and Timothy brought this action against the named corporate Defendants, which are affiliated with the estate; against Sheila and Paul Jr., individually and in their role as directors or officers of the corporate Defendants; and against Paul Jr. and Wold, individually and in their capacity as co-conservators of the estate. Subsequently, Thomas and Timothy withdrew and settled, respectively. Although naming Wold, Genet did not serve him until January 2017, over two years after she filed the complaint and seventeen days before trial. Wold nonetheless appeared ready to defend.

¶ 5 On the scheduled day for trial, Genet arrived several hours late. The District Court introductorily noted that Genet's claims were "not entirely clear," but understood them to constitute a derivative action seeking forced dissolution of the corporations based upon allegations of corporate oppression under § 35-1-938(2)(b), MCA. Genet proceeded to offer evidence in support of her case, which focused primarily on allegations of corporate records mismanagement. Genet called several witnesses, including court-appointed auditor Natalya Abdrasilova, CPA, who testified that she found missing or incomplete stock records, and court-appointed signature analyst Brent Lund, who identified possible forgeries on several stock certificates. Genet also offered testimony, including by a priest, who testified about the wishes of A.M.M., an issue that had previously been litigated in the guardianship and conservatorship proceedings.

¶ 6 During cross-examination of these witnesses, the defense attempted to demonstrate that any failure to properly maintain records had occurred long ago, and that the Defendants, particularly Paul Jr. and Wold, had worked diligently to correct and bring current ***389the corporate shareholder list and financial records. Testimony indicated that the legal standing of the corporations had been neglected or mismanaged in Paul Sr.'s later years, but this had substantially improved due to the efforts of Paul Jr. and Wold. The District Court, Hon. James Manley presiding, had approved annual conservatorship accountings and granted permission *687for Wold to serve as counsel to resolve legal issues related to the corporations, including wage claims, record requests, an issue with the State Auditor, and unpaid taxes. The original twenty corporations had been structurally reorganized and reduced to eleven corporate entities. Numerous board of director and shareholding meetings had been conducted and, for the first time in a long time, the corporations paid stockholder dividends, which totaled four million dollars during 2016.

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Cite This Page — Counsel Stack

Bluebook (online)
2018 MT 207, 425 P.3d 682, 392 Mont. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccann-v-mccann-mont-2018.