Estate v. Boland

• Decision Date: 04 February 2020
• Docket Number: DA 19-0132
• Citation: 456 P.3d 588 (Table),2020 MT 30 N
• Parties: In re the Estate of Dixie L. BOLAND, Deceased, Paul Edward Boland and Mary Gettel, As Heirs of the Estate of Dixie L. Boland, Appellants, v. Chris BOLAND and Barry Boland, Appellees.
• Court: Montana Supreme Court

456 P.3d 588 (Table)

2020 MT 30 N

In re the Estate of Dixie L. BOLAND, Deceased,Paul Edward Boland and Mary Gettel, As Heirs of the Estate of Dixie L. Boland, Appellants,

v.Chris BOLAND and Barry Boland, Appellees.

DA 19-0132

Supreme Court of Montana.

Submitted on Briefs: October 30, 2019

Decided: February 4, 2020

For Appellants: Mary Boland Gettel, Paul Edward Boland, Self-represented, Great Falls, Montana

For Appellees: Robert B. Pfennigs, Mark T. Wilson, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls, Montana

Justice Dirk M. Sandefur 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 Paul Edward Boland (Paul) and Mary Gettel (Mary) appeal the January 2019 order of the Montana Thirteenth Judicial District Court, Yellowstone County, denying their motion for post-judgment relief from the court’s November 2018 order removing and replacing them as co-personal representatives of the estate of Dixie L. Boland. We affirm.

¶3 This case arises from one of several ongoing disputes among estate heirs regarding the respective estates of their parents, Ed Boland (Ed) and Dixie L. Boland (Dixie).¹ Ed died testate on December 26, 2014. Dixie died testate a year later on January 4, 2016. Ed and Dixie’s adult children (Chris Boland, Barry Boland, Paul Boland, Mary Gettel, and Jacquie Boland) are now the surviving heirs of both estates.² The administration of Ed’s estate remains pending before the Montana Eighth Judicial District Court in Cascade County (Cause ADP-15-1525). The administration of Dixie’s estate remains pending in the underlying Thirteenth Judicial District matter (Cause DP-16-0017). The administration of both estates has been plagued by protracted, personally acrimonious litigation across multiple district court cases between Paul and Mary on one side and Chris and Barry on the other.

¶4 Chris and Barry initially obtained appointment as co-personal representatives of Ed’s estate. However, in July 2015, the Eighth Judicial District Court granted Paul’s motion to remove Barry and then appointed Paul as co-representative in conformance with Ed’s will.³ Contested litigation arose in Ed’s estate based, inter alia , on Paul and Mary’s claim that Chris and Barry owed the estate various substantial sums of money. However, in March 2018, the court found that they owed no debts or unaccounted-for sums to Ed’s estate other than two previously acknowledged sums. Undaunted, Paul and Mary filed a motion for post-judgment relief pursuant to M. R. Civ. P. 60(b) based, inter alia , on various assertions of evidentiary error. However, in a series of rulings on the motion and related issues under M. R. Civ. P. 11, the court denied the Rule 60(b) motion, found Paul and his counsel in violation of Rule 11, and then removed Paul as co-personal representative of Ed’s estate as a Rule 11 sanction and pursuant to § 72-3-526(2)(a), MCA.⁴ We affirmed those rulings on October 1, 2019. Boland , ¶ 63, reh’g denied , Nov. 5, 2019.

¶5 At the time of Ed’s death, Dixie had long been suffering from disabling health problems and had previously executed a 2013 will in which she nominated Chris as her personal representative and provided for equal distribution of her estate among her five children. However, six months after Ed died, Dixie took a number of actions that substantially altered the administration of her affairs and her prior estate plan. Paul and Barry alleged that she revoked a 2013 power of attorney granted to Chris, granted a new power of attorney to Paul and Mary, executed a new will codicil in July 2015, and then executed a new will in October 2015. Inter alia , the new will disinherited Chris and Barry and nominated Paul and Mary as co-personal representatives instead of Chris. On December 2, 2015, a month before her death, Dixie filed a complaint in the Thirteenth Judicial District Court (Cause DV-15-1560) alleging that Chris failed to account for $100,000 removed from a joint account that he and Dixie owned and that he further failed to account for the proceeds of the liquidation of her costume shop business. Upon Dixie’s death, Paul and Mary commenced the underlying estate administration matter in the Thirteenth Judicial District Court (Cause DP-16-0017) and were appointed as her co-personal representatives in accordance with her 2015 will.⁵ Chris and Barry subsequently alleged that Dixie executed the new will and instituted the 2015 lawsuit against Chris as a result of undue influence exerted by Paul and Mary. In June 2016, Paul and Mary, acting as personal representatives of Dixie’s estate, amended the previously filed Yellowstone County complaint against Chris (Cause DV-15-1560) to additionally claim that he failed to turn over $100,000 of $400,000 proceeds of Ed’s life policy to his estate for distribution to Dixie under his will and that those actions tortiously caused Dixie to suffer emotional distress.

¶6 In February 2018, with contested litigation ongoing in parallel in Cascade County in Ed’s estate (ADP-15-1525), and the Yellowstone County lawsuit against Chris (DV-15-1560), Chris and Barry filed a motion in this matter (DP-16-0017) to remove Paul and Mary as co-personal representatives of Dixie’s estate pursuant to § 72-3-526(2)(a), MCA. In reference to the various ongoing disputes, Chris and Barry asserted that Dixie’s estate would "essentially become valueless" unless the court removed Paul and Mary and then appointed an "independent third party who can value the multitude of claims without the emotional prejudice exhibited by [them]."

¶7 Following an earlier hearing, the District Court issued a written order in November 2018 removing Paul and Mary as co-personal representatives of Dixie’s estate and replacing them with a Deputy Yellowstone County Attorney (Kevin Gillen) "as the independent [p]ersonal [r]epresentative with all rights allowed under the law." Taking "judicial notice of the proceedings [in Ed’s estate] in Great Falls" and the procedural history and parties’ competing assertions in this case, the court found that: (1) "significant hostility between Chris and Barry and Paul and Mary ... has led to significant delays and full stops in the management of not only Dixie’s [e]state but also Ed’s [e]state"; (2) Paul and Mary had not acted in the best interests of Dixie’s estate; and (3) "ongoing litigation between Chris and Barry and Paul and Mary is prohibiting [the administration of Dixie’s estate] from moving forward ... and [is] generating massive attorneys’ fees on both sides of the litigation." The court found that "irrefutable" hostility existed between the parties as manifest in the nature of the claims and assertions by the estate against Chris, Barry, and the presiding judge in Ed’s estate (ADP-15-1525), the resulting removal of Paul as co-personal representative in that matter, the nature of the claims asserted against Chris in DV-15-1560, and the fact that "litigation in Dixie[’s] [e]state continues to be delayed by" the "bad conduct" of Paul and Mary.

¶8 On December 14, 2018, Paul and Mary filed a motion for relief from the November 2018 judgment pursuant to M. R. Civ. P. 60(b) based on their assertions that: (1) it adversely affected their standing to continue to prosecute their parallel-pending appeal of adverse rulings in Ed’s estate (ADP-15-1525); (2) the court erroneously based its predicate findings of fact on disputed matters still on appeal in Ed’s estate; (3) the court erroneously removed Mary as co-personal representative based solely on Paul’s alleged misconduct; and (4) the court erroneously predicated its ruling on erroneous findings of fact regarding proceedings in DV-15-1560. On January 30, 2019, the District Court issued a written order denying Paul and Mary’s Rule 60(b) motion on the grounds that proceedings on appeal in Ed’s estate (ADP-15-1525) had effectively preserved their standing to pursue their personal interests in that matter, that the court properly cited proceedings in DV-15-1560 merely as evidence of the hostility between the parties without regard for the ultimate merits, and that Paul and Mary failed to assert any specific legal or factual basis upon which relief is available under M. R. Civ. P. 60(b). On February 28, 2019, without reference to the underlying November 2018 order, Paul and Mary filed a notice of appeal in this Court of the January 2019 order denying their motion for Rule 60(b) relief. They also subsequently filed a district court notice of appeal of the Rule 60(b) ruling, noting it as an appealable final order as defined by M. R. App. P. 6(4)(a).

¶9 "[I]n estate ... and probate matters," an "order ... revoking ... letters testamentary or of administration" are "considered final and must be appealed immediately, and failure to do so will result in waiver of the right to appeal." M. R. App. P. 6(4)(a). Here, in accordance with § 72-3-103, MCA (personal representative "must be appointed ... and be issued letters" to "acquire the powers ... of a personal representative"), the November 2018 order removing and replacing Paul and Mary as co-personal representatives of Dixie’s estate was an immediately appealable final "order ... revoking ... letters testamentary or of administration" as referenced in M. R. App. P. 6(4)(a). The order was thus also a "final order" as referenced in M. R. Civ. P. 60(b).

¶10 Rule 60(b) narrowly affords relief from final judgments based, inter alia , on: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud ..., misrepresentation,...