In re Elliot
| Decision Date | 23 January 2023 |
| Docket Number | DA 23-0031 |
| Parties | IN RE THE MATTER OF THE ESTATE OF IAN RAY ELLIOT, DECEASED. |
| Court | Montana Supreme Court |
PARTIAL MOTION TO DISMISS APPEAL
MICHAEL P. MANNING, RITCHIE MANNING KAUTZ PLLP, Counsel for Appellee Joseph V. Womack, Special Administrator of the Estate of Ada E. Elliot and Liquidating Partner of StarFire LP.
Jenny Jing, Alice Carpenter, Mike Bolenbaugh, Interested Parties in Ian Elliot's Estate, Pro Se.
Appellants Jenny Jing, Alice Carpenter, and Michael Bolenbaugh have appealed two district court orders-a May 23, 2022 order appointing a special administrator in the Estate of Ian Ray Elliot and a December 9, 2020 order denying their Rule 60(b) motion, which asked the court to vacate its earlier order. While their appeal is timely as to the denial of the Rule 60(b) motion, the appeal of the court's underlying order is not. Accordingly, Appellee Joseph Womack, as the special administrator of the Estate of Ada E. Elliot and the liquidating partner of StarFire, LP, moves under Montana Rule of Appellate Procedure 16 to dismiss the portion of the appeal directed to the district court's May 23, 2022 order. Neither Womack nor any other party should have to spend unnecessary time and resources briefing the merits of that part of the appeal, which was filed months too late. Womack has contacted Jing, Carpenter, and Bolenbaugh regarding this motion. They oppose it.
This Court has weighed in multiple times in the lengthy battle over the Estate of Ada Elliot, which has now spilled over into the estate of her deceased son, Ian. Most recently, the Court affirmed the district court's refusal to remove Womack as the special administrator of Ada's estate, approved Womack's actions as the liquidating partner of StarFire, LP, and rejected Ian's bias claims after he was held in contempt. See In re Est. of Elliot, 2022 MT 91N (unpublished). In doing so, the Court recognized that "Ian obstructed Womack's administration with constant litigation and unfounded accusations," including filing "numerous, lengthy motions objecting to almost every action by Womack," and suing him personally twice. Id., ¶ 19.
Ian passed away while the last appeal was pending, leaving a will naming his domestic partner, Jenny Jing, and ex-wife, Ann Taylor Sargent, as co-personal representatives. See Ex. A, at 1. Because of the historically contentious nature of the proceedings, Womack petitioned for supervised administration of Ian's estate, which Cindy Elliot joined but which Jing and Sargent strongly opposed.[1] Id. After holding two evidentiary hearings, the district court entered a detailed 29-page order on May 23, 2022 granting Womack's petition and appointing attorney Andrew Billstein as the special administrator of Ian's estate. See generally id. Among other things, the court's 65 findings of fact and 35 conclusions of law recount Jing's intimate involvement in Ian's frequent and frivolous pro se litigation, her commitment to continuing the same course of action, her conflict of interest due to debts she owes Ian's estate, and her continued unfounded attacks on Womack and inability to work with him. Id.
On July 11, 2022, Womack filed a Rule 77(d) notice of entry of the district court's order. See Ex. B. He served the notice on all interested parties, including Jing and both Carpenter and Bolenbaugh, who are devisees in Ian's will. Id. No party appealed in the next 30 days. Instead, on October 20, 2022-101 days later-Jing, Carpenter, and Bolenbaugh jointly filed a motion invoking Rules 42(a), 60(b) and 60(d) asking the court to: (1) vacate its May 23, 2022 order; (2) allow an independent action to investigate fraud on the court; and (3) consolidate the various Elliot estate cases (the Rule 60(b) motion). See Ex. C. The district court denied that motion on December 9, 2022, again issuing a detailed order. See Ex. D. On January 9, 2023, Jing, Carpenter, and Bolenbaugh filed their notice of appeal, purporting to appeal not only the December 9 order denying their Rule 60(b) motion, but also the underlying May 23 order appointing Billstein as the special administrator of Ian's estate.
Under Montana law, an order denying a Rule 60(b) motion is a final, appealable order. Donovan v. Graff, 248 Mont. 21, 24, 808 P.2d 491, 493 (1991). Because Jing, Carpenter, and Bolenbaugh's notice of appeal was filed within 30 days of the district court's denial of their Rule 60(b) motion, they properly perfected their appeal of that order. See Mont. R. App. P. 4(5)(a)(i); see also Mont. R. App. P. 3. Accordingly, this motion does not seek to dismiss the portion of the appeal related to the district court's denial of the Rule 60(b) motion.
That said, an appeal of the denial of a Rule 60(b) motion "brings up for review only the order of the denial itself and not the underlying judgment." Donovan, 248 Mont. at 24, 808 P.2d at 493. Thus, to also perfect an appeal of the district court's May 23, 2022 order, Jing, Carpenter, and Bolenbaugh were required to file a timely notice of appeal as to that specific order. They did not come close.
Under Montana Rule of Appellate Procedure Rule 4(5)(a)(i), Jing, Carpenter, and Bolenbaugh had 30 days after Womack's Rule 77(d) notice to appeal the May 23 order. Accordingly, their notice of appeal needed to be filed no later than August 10, 2022, meaning that their January 9, 2023 notice was 166 days too late. See, e.g., Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124 ().
The Court should reject any argument that Jing, Carpenter, and Bolenbaugh's time to appeal was extended under Rule 4(5)(a)(iii)(E) simply because they later filed the Rule 60(b) motion. Montana law is clear that "a Rule 60(b) motion may not be used as a substitute for appeal." Donovan, 248 Mont. at 25, 808 P.2d 494; see also State v. Osborn, 2015 MT 48, ¶ 15, 378 Mont. 244, 343 P.3d 1188. Moreover, in unpublished decisions, the Court has interpreted the timeliness requirement in Rule 4(5)(a)(iii)(E) to mean that a Rule 60(b) motion extends the deadline for appealing an underlying order only if it is filed before expiration of the initial time for appealing that order. See, e.g., Boland v. Boland, 2020 MT 30N, ¶ 11, 399 Mont. 551, 456 P.3d 588 (Table). Although Womack acknowledges that Boland is not precedential, it appears the Court has found this interpretation so fundamentally mandated by the Rules of Appellate Procedure that a published decision elaborating on it has been unnecessary.
The result makes sense-any other rule would allow a party to resurrect a long-forfeited right to appeal merely by filing a Rule 60(b) motion months after the deadline has run. Here, Jing, Carpenter, and Bolenbaugh are trying to do just that. Had they filed their Rule 60(b) motion before August 10, 2022, the deadline to appeal the May 23 order would have run from denial of the Rule 60(b) motion. See Mont. R. App. P. 4(5)(a)(iii)(E). But they did not, so their time to appeal expired on August 10. They did not somehow create a new right to appeal by filing a Rule 60(b) motion three months later asking the Court to vacate the May 23 order. Rather, they attempted to use Rule 60(b) as a substitute for an appeal, which Donovan and other cases forbid.
Simply put, Jing, Carpenter, and Bolenbaugh's appeal of the district court's order appointing a special administrator in Ian's estate is untimely. Consequently, that portion of the appeal should be dismissed to avoid unnecessary merits briefing about an unappealable order.
I certify that, pursuant to Mont. R. App. P. 16(3), this response brief is proportionately spaced, has a typeface of 14 points or more, and contains 1,247 words, as determined by the undersigned's word processing program.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING PETITION FOR SUPERVISED ADMINISTRATION THAT INTERESTED PERSON JOINED AND APPOINTING SPECIAL ADMINISTRATOR
This matter conies before the Court on the Petition for Supervised Administration of the Estate of Ian Elliot. The petitioner is Joseph Wornack (hereafter "Womack.") [Dkt. I.] Interested Person Cindy Elliot (hereafter "Cindy") has joined in seeking supervised administration. [Dkt. 9 at 7.] Jenny Jing (hereafter "Jenny") and Ann Taylor Sargent (hereafter "Ann") strongly oppose supervised administration. The Court took evidence through witness testimony and admission of exhibits during a hearing on March 7, 2022 and April I, 2021 [Dkts. 25, 36.] Now the Court rnakes the following:
FINDINGS OF FACT
1. The deceased is Ian Ray Elliot (hereafter "Ian"). Ian died on December 19, 2021.
2. Jenny was Ian's domestic partner.
3. Ann is Ian's ex-wife.
4. Adrian Elliot Olson (hereafter "Adrian") is Ian's nephew.
5. Ex B to Dkt. 7 is a copy of Ian's will. The will appoints Jenny and Ann as co-personal representatives of Ian's estate. [Ex. B at 1 to Dkt. 7.] All parties agree the will is valid 6. lan was the son of Ada H. Elliot (hereafter "Ada") and one of two heirs to her Estate. Ada passed away in January 2017. Before she died, Ian was appointed Ada's guardian,...
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