In re Conservatorship of A.M.M.

• Decision Date: 24 August 2015
• Docket Number: No. DA 14–0441.,DA 14–0441.
• Parties: In the Matter of the GUARDIANSHIP and Conservatorship OF A.M.M., an incapacitated person.
• Court: Montana Supreme Court

380 Mont. 451
356 P.3d 474
2015 MT 250

In the Matter of the GUARDIANSHIP and Conservatorship OF A.M.M., an incapacitated person.

No. DA 14–0441.

Supreme Court of Montana.

Submitted on Briefs April 1, 2015.
Decided Aug. 24, 2015.

356 P.3d 476

For Appellant T.M.M.: Genet McCann, Avalon Law, LLC; Big Sky, Montana.

For Appellee and Co-conservators: Douglas J. Wold, Wold Law Firm, P.C.; Poison, Montana.

For Appellee P.J.M. Jr., S.M.M. and W.P.M.: Robert J. Long, Long Law Office; Poison, Montana.

For Appellee Guardian: Casey Emerson, Clinton J. Fischer Law Office; Poison, Montana.

Opinion

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

380 Mont. 452

¶ 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 Court's March 14, 2014

380 Mont. 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 born 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. Paul Sr.'s estate includes

356 P.3d 477

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, Paul 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

380 Mont. 454

State 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 friend of A.M.M., and attorney Steven Eschenbacher of OPD to serve as A.M.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 A.M.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 A.M.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

380 Mont. 455

March 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

356 P.3d 478

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. Emerson filed a statement for charges incurred, and the District Court awarded attorney fees to Emerson for her work preparing for the July 9 and 11, 2014 hearing.

¶ 12 The District Court held a second hearing on attorney fees on August 29, 2014, on Wold's second and third petitions for fees. Timothy did not appear at the hearing. Instead, he merely filed a “Notice of Objection to the Hearing” with the District Court shortly before the hearing and then left the courthouse. The District Court granted Wold's...