Estate of Bolinger, In re

• Decision Date: 08 December 1998
• Docket Number: No. 98-138,98-138
• Citation: 292 Mont. 97,971 P.2d 767
• Parties: , 1998 MT 303 In Re ESTATE OF Harry Albert BOLINGER, III, Deceased.
• Court: Montana Supreme Court

Page 767

971 P.2d 767

292 Mont. 97, 1998 MT 303

In Re ESTATE OF Harry Albert BOLINGER, III, Deceased.

No. 98-138.

Supreme Court of Montana.

Submitted on Briefs June 25, 1998.

Decided Dec. 8, 1998.

Charles F. Angel, Angel Law Firm; Bozeman, Montana, For Appellants.

John Frohnmayer, Attorney at Law; Bozeman, Montana (for personal representative Deborah Reichman), For Respondent.

TERRY N. TRIEWEILER, Justice.

¶1 Hal Bolinger filed a petition for probate of the will of his son, Harry Albert Bolinger, III(Bud), in the District Court for the Eighteenth Judicial District in Gallatin County. The decedent's three children, as well as the personal representative who had been appointed prior to the discovery of the will, contested the will and asserted, among other things, that the decedent's estate was entitled to a share of the partnership that they claim Hal had formed with Bud. The District Court concluded that a partnership existed and awarded the estate half of the value of the partnership assets. Hal and his spouse appeal and the estate cross-appeals. We reverse in part and affirm in part the judgment of the District Court and remand this case to the District Court for proceedings consistent with this opinion.

¶2 The parties present eleven issues on appeal:

¶3 1. Did the District Court err when it ordered the appellants to comply with the estate's discovery requests?

¶4 2. Did the District Court err when it made findings of fact and granted summary judgment regarding the existence of a partnership between Hal and Bud?

¶5 3. Did the District Court err when it refused to admit a number of appellants' exhibits?

¶6 4. Did the District Court err when it denied by summary judgment the existence of an agister's lien?

¶7 5. Did the District Court err when it awarded one-half of the market value of the ranch equipment and cattle to the estate?

¶8 6. Did the District Court err when it refused to hold the estate accountable for the value of any of the losses from the ranch?

¶9 7. Did the District Court err when it awarded the estate a $9000 credit based on Hal's denial of the estate's attempts to cut and remove hay from the decedent's land?

¶10 8. Did the District Court err when it awarded the estate a $40,500 credit based on Hal's denial of the estate's attempts to use certain pasture land?

¶11 9. Did the District Court err when it determined that the judgment constituted a lien against all the personal property of the partnership?

¶12 10. Did the District Court err when it refused to recognize the real property of the ranch as an asset of the partnership?

¶13 11. Is the estate entitled to attorney fees and costs?

FACTUAL BACKGROUND

¶14 Harry Albert Bolinger, III(Bud) died March 25, 1995. He was survived by his three adult children, as well as his father and stepmother. Intestacy proceedings were initiated, and in April 1995 Deborah Reichman became personal representative of the estate.

¶15 On July 13, 1995, H.A. Bolinger (Hal), Bud's father, submitted a will for probate and petitioned the District Court for appointment as personal representative. The will, which was prepared in 1984, left all of Bud's estate to Hal and nominated him as the personal representative. In the event that Hal failed to survive Bud, the will named Marian Bolinger, Hal's wife, as the sole beneficiary. On November 1, 1995, Hal withdrew his request to be appointed personal representative and suggested that Marian, who was also nominated by the will, be named personal representative.

¶16 This Court discussed the terms of the will in In re Estate of Bolinger (1997), 284 Mont. 114, 943 P.2d 981. In dispute was whether the language of the will created an express trust for the benefit of Bud's three children. We ultimately held that it did not.

¶17 Pursuant to the will contest, the estate filed discovery requests and moved for partial summary judgment. Hal and Marian objected to some of the requests that related to taxes and assets of the ranch, and the existence of a partnership between Hal and Bud on the basis that they were not relevant to the issue of the will's validity. In December 1996, the District Court overruled their objections and ordered that they answer the requests and allow an inspection of the ranch by the end of January 1997.

¶18 After a hearing, and based on all the evidence before it, on December 18, 1996, the District Court made findings of fact and conclusions of law in response to the summary judgment motion. It stated that "[i]n the interest of judicial economy, the Court feels it advisable to make detailed findings at this time, to assist in determining other issues which may hereafter need to be determined." Most of the District Court's findings and conclusions pertained to the terms of the will, but in addition, the District Court found that Hal and Bud had entered into a written partnership agreement in 1968. It found that despite the express ten-year term of the agreement, Hal and Bud operated the ranch as a partnership until Bud's death. In addition, it found that Hal had filed a $49,000 claim against the estate, based on an agister's lien claim, to recover for his expenses incurred to feed Bud's cattle from January 1, 1994, to May 15, 1995; Reichman denied the claim in June 1995 prior to the discovery of the will. It went on to find that there were no written documents regarding the terms of the alleged agreement, and that Marian, the only witness to Hal and Bud's agreement, had described the extent of the agreement as a statement by Hal and subsequent acknowledgment by Bud that he would "have to pay his share."

¶19 Based on the District Court's findings, the estate made a second motion for partial summary judgment in January 1997. It contended that the findings established the existence of a partnership and that the District Court should order an accounting of the partnership. Furthermore, it contended that the agister's lien should be denied in its entirety as a matter of law, based on a lack of specificity in the alleged agreement between Hal and Bud. In response, Hal and Marian contended that their affidavits established genuine issues of fact regarding the lien which precluded summary judgment, and that summary judgment regarding the existence of a partnership must be denied for the same reason.

¶20 On February 25, 1997, the District Court concluded that the alleged agreement between Hal and Bud, which was the basis of Hal's claimed agister's lien, was not specific and, therefore, was unenforceable as a matter of law. The District Court also concluded, based on Hal's testimony, that a partnership existed. Accordingly, it granted the motion for partial summary judgment and ordered that an accounting be performed.

¶21 The accounting was eventually performed and considered by the District Court at a hearing in May 1997. On September 3 1997, the District Court issued its findings of fact, conclusions of law, and judgment pursuant to the accounting, in which it determined the amount of ranch property that should be credited to the estate. Based on its interpretation of the partnership agreement, the District Court concluded that the land on which the partnership operation was conducted was never intended to be an asset of the partnership and excluded its value from the determination of the estate's interest. The division and valuation of the remaining partnership assets relied, in large part, on the fact that Hal and Marian had refused to respond to Reichman's discovery requests and the District Court's subsequent orders to compel, so that they were estopped from contesting the values or division arrived at by the District Court.

¶22 The judgment awarded Bud's estate included one-half the market value of the partnership cattle and equipment, and compensation for lost use of pasture land and hay taken from Bud's land, for a total of approximately $225,000. Finally, the District Court held that the judgment constituted a lien against all personal property of the partnership.

ISSUE 1

¶23 Did the District Court err when it ordered the appellants to comply with the estate's discovery requests?

¶24 We review a district court's ruling on discovery matters to determine whether the district court abused its discretion. See McKamey v. State (1994), 268 Mont. 137, 145, 885 P.2d 515, 520; In re Marriage of Caras (1994), 263 Mont. 377, 384, 868 P.2d 615, 619. We stated in Massaro v. Dunham (1979), 184 Mont. 400, 404-05, 603 P.2d 249, 251-52, that a district court has inherent discretionary power to control discovery, and that we will reverse its discovery decisions only when the substantial rights of a party have been materially affected such that there exists the possibility of a miscarriage of justice.

¶25 Appellants concede that the District Court has discretionary authority to control discovery, but rely solely on their assertion that "such discretionary power is not unfettered." They imply that the District Court abused its discretion when it did not hold a hearing to address their objections.

¶26 We note from our review of the record that the discovery about which appellants now complain had been the subject of a previous order by the District Court and that prior to the order complained of on appeal, appellants did in fact have an opportunity to raise their objections at a hearing before the District Court. For these reasons, we conclude that the appellants' substantial rights have not been affected by the District Court's order to compel discovery.

ISSUE 2

¶27 Did the District Court err when it made findings of fact and granted summary judgment regarding the existence of a partnership between Hal and Bud?

¶28 The question of whether a partnership exists constitutes a mixed question of fact and law. See Blocker Exploration Co. v. Frontier Exploration, Inc. (Colo.1987), 740 P.2d 983, 988. Courts must decide as a matter of law what constitutes a partnership, but the determination of whether...