Wisdom v. Mallo

Decision Date14 October 2010
Docket NumberDocket No. 36976,Docket No. 36617,Docket No. 36616
Citation2010 Unpublished Opinion No. 667
PartiesALLEN L. WISDOM, Plaintiff-Appellant, v. JANET C. MALLO, an individual; KAREN McMURTRIE, an individual; WILLIAM F. YOST, III, an individual; ALLIED MUTUAL INSURANCE COMPANY, an Iowa Mutual Insurance Company, Defendants-Respondents. IN THE MATTER OF THE ESTATE OF LESSIE MAY STEIL, AKA LESSIE W. STEIL. ALLEN L. WISDOM, Plaintiff-Appellant, v. JANET C. MALLO, personal representative of the ESTATE OF LESSIE MAY STEIL, aka LESSIE W. STEIL, Defendant-Respondent.
CourtIdaho Court of Appeals

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.

Judgment dismissing tort action and order for submission of will to probate, affirmed.

Allen L. Wisdom, Idaho City, pro se appellant.

Terry Michaelson of Hamilton, Michaelson & Hilty, LLP, Nampa, for respondents.

LANSING, Chief Judge

In this consolidated appeal, Allen L. Wisdom challenges the dismissal of his tort claims against William Yost, Janet Mallo, Karen McMurtrie, and Allied Mutual Insurance Company, and the order submitting his mother's will to probate. Wisdom asserts the district court made multiple errors. We affirm.

I.BACKGROUND

These consolidated cases arise out of a dispute concerning the disposition of the estate of Wisdom's mother, Lessie May Steil. From 2004 to 2005, Steil executed three different wills, which were drafted and notarized by her attorney, Defendant William Yost. Steil's last will revoked all previously made wills and trusts, appointed Defendant Janet Mallo as the personal representative of the estate, and appointed Defendant Karen McMurtrie as the alternate personal representative. Mallo, in her capacity as personal representative of Steil's estate, filed a petition for formal probate of this will after Steil's death. Wisdom filed an objection in the probate case, challenging the validity of the will and requesting the appointment of a disinterested personal representative. The magistrate court ultimately entered an order admitting the will to probate and appointing Mallo as the personal representative. Wisdom appealed the magistrate court's decision to the district court.

While the probate case was pending in the magistrate court, Wisdom filed a separate tort action in the district court naming Yost, Mallo, McMurtrie, and Allied Mutual Insurance Company (Allied Mutual) as defendants (collectively referred to as Defendants). Wisdom alleged that the Defendants were liable for civil conspiracy, breach of fiduciary duty, tortiousinterference with economic expectancy, undue influence, and fraud. Additionally, Wisdom asserted a claim against Yost for legal malpractice and against Yost and his surety, Allied Mutual, for breach of the Idaho Notary Public Act. Upon Wisdom's appeal to the district court in the probate case, the district court decided to hear the probate appeal as a trial de novo and consolidated the tort action with the probate appeal.1 The district court conducted a bench trial despite Wisdom's request for a jury.

Before trial, Wisdom moved for defaults against Defendants in the tort case for failure to timely file responsive pleadings. Defendants filed motions to dismiss or, alternatively, motions for summary judgment. The court denied Wisdom's application for defaults and granted summary judgment for Defendants on Wisdom's tort claims for undue influence and fraud because the court determined that they were duplicative of Wisdom's claims in the probate case. The court also granted summary judgment on Wisdom's civil conspiracy and tortious interference with economic expectancy claims because Idaho does not recognize causes of action for civil conspiracy or for attempted interference with an inheritance. Yost was granted summary judgment on Wisdom's legal malpractice and breach of fiduciary duty claims on the ground that Yost did not owe Wisdom a fiduciary duty. Mallo and McMurtrie were granted partial summary judgment on Wisdom's breach of fiduciary duty claim. The court determined that transactions conducted after the appointment of the personal representative should be heard in the probate action and granted summary judgment in the tort case with regard to those transactions. However, the court concluded that to the extent Wisdom was making claims regarding sales of Steil's property or other transactions that Mallo and McMurtrie conducted under a power of attorney while Steil was still living, the claims would remain in the tort action. Finally, the court dismissed Wisdom's breach of the Idaho Notary Public Act claim against Yost in the tort action for failure to plead fraud with particularity and dismissed all claims against Allied Mutual because Allied Mutual's only connection to the suit was as surety for Yost, who had been dismissed. In sum, the court dismissed all tort claims against Yost and Allied Mutual and granted summary judgment on all claims against Mallo and McMurtrie except for the breach of fiduciary duty prior to Steil's death.

After these dismissals and partial summary judgments, Wisdom filed motions to enter defaults against Yost, Mallo, and McMurtrie; compel discovery; vacate the scheduling order; and postpone the trial. Wisdom argued that tort claims still existed against Yost, Mallo, and McMurtrie and that they were in default for failing to file an answer to the remaining claims against them. Wisdom also argued that Defendants had not responded to his discovery requests, making it impossible for him to be prepared for trial. Defendants asserted that they had made available to Wisdom all the requested information they possessed. The court never ruled on Wisdom's motion for defaults. Wisdom's other motions were denied, and the consolidated cases proceeded to trial on May 19, 2009. On that date Wisdom continued to maintain that he was not prepared for trial, and he did not proffer evidence to support his claims. The extent of his participation at trial was to cross-examine some of Defendants' witnesses and make some objections. Thereafter, the court entered an order admitting Steil's will to probate and appointing Mallo as personal representative and a judgment dismissing Wisdom's remaining breach of fiduciary duty claims against Mallo and McMurtrie.

On appeal, Wisdom argues that the district court erred by not granting his requests for entry of defaults, granting partial summary judgments to Mallo and McMurtrie, "transferring" tort causes of action to the probate case "and later causing the transferred causes of action to disappear," refusing to order Mallo and McMurtrie to file an answer, granting summary judgment to Yost, dismissing Allied Mutual, denying Wisdom the opportunity to participate in scheduling, conducting a bench trial instead of a jury trial, denying Wisdom the opportunity to conduct discovery, declining to continue the trial, refusing to hear Wisdom's motion for the appointment of a special administrator, allowing irregularities at trial, admitting Steil's last will and testament to probate, appointing a conflicted personal representative, and awarding attorney fees to Defendants. Wisdom also claims these various errors violated his due process rights. Many of Wisdom's claims on appeal are so interrelated that we have re-organized and combined them for ease and clarity of discussion.

II.DISCUSSION
A. Did the District Court Err in Not Granting Wisdom's Requests for Entry of Defaults?

Having been personally served with Wisdom's tort complaint on November 13, 2008, Yost, McMurtrie, and Allied Mutual were required to file responsive pleadings on or before December 3, 2008. Idaho Rule of Civil Procedure 12(a). Mallo was personally served on November 17, 2008, and was required to file a responsive pleading on or before December 7, 2008. Id. A notice of appearance was filed on November 18, 2008, for Mallo and McMurtrie, and on November 24, 2008, for Yost and Allied Mutual. On December 4, 2008, Allied Mutual filed an I.R.C.P. 12(b)(6) motion to dismiss. Then on December 11, 2008, Wisdom filed a motion for entry of defaults against the Defendants and served the motion upon them by mail. On December 15, 2008, Yost, Mallo, and McMurtrie filed an I.R.C.P. 12(b)(6) motion to dismiss or, alternatively, for summary judgment. Wisdom then sought to "strike" the motions to dismiss as untimely because they were not filed within twenty days after service of Wisdom's complaint. The district court denied Wisdom's application for entry of default because default "would not be in the interests of justice" and also stated that it would entertain the motions to dismiss because Wisdom did not indicate any prejudice that may result from the court considering the motions to dismiss on the merits. On February 3, 2009, the district court granted summary judgment to Yost, granted partial summary judgment to McMurtrie and Mallo, and dismissed Wisdom's claims against Allied Mutual.

On March 3, 2009, Wisdom filed another motion for default against Yost, Mallo, and McMurtrie in the tort case. Wisdom argued that because the district court appeared to have "transferred" his causes of action against these three to the probate case, they were still required to file an answer to the claims in his tort action within ten days of the court's summary judgment decision pursuant to I.R.C.P. 12(a). Additionally, he pointed out, Mallo and McMurtrie were required to file an answer to the surviving claims in the tort action. As none of the defendants had filed an answer within ten days, Wisdom argued that defaults should be entered against them. Yost, Mallo, and McMurtrie never responded to this motion, and it does not appear from the record that the district court ever ruled on it. On appeal, Wisdom argues that the district court abused its discretion by not granting...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT