IN THE MATTER OF THE ESTATE OF: HORATIO W. BURNS, Deceased.
DA 22-0456
IN THE SUPREME COURT OF THE STATE OF MONTANA
December 27, 2023
2023 MT 253
COUNSEL OF RECORD:
For Appellant:
Christopher T. Sweeney, Stephanie Denton Baucus, Bobbi K. Owen, Moulton Bellingham PC, Billings, Montana
For Appellee Estate of Horatio W. Burns:
J. Devlan Geddes, Goetz, Geddes & Gardner, P.C., Bozeman, Montana
Ralph W. Steele, Ralph W. Steele, P.C., Bozeman, Montana
For Appellee Alison Burns:
Grant R. Kelly, Golden Triangle Law, PLLC, Fort Benton, Montana
Submitted on Briefs: October 11, 2023
Decided: December 27, 2023
Filed:
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Lindsay Burns Barbier sued to challenge the validity of the 2016 will of her father, Horatio Burns, claiming that her brother Cameron and Cameron‘s wife Alison exerted undue influence over Horatio. Following a jury verdict, the Sixth Judicial District Court, Sweet Grass County, entered judgment validating the 2016 will and awarding attorney fees to both Horatio‘s Estate (the Estate) and Alison. Lindsay appeals, arguing that a new trial is required based on juror misconduct and that the District Court erred in its award of attorney fees and calculation of interest. We affirm the court‘s judgment on the verdict, reverse its attorney fee and interest awards in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Horatio Burns died in 2018. At the time of his death, Horatio had significant assets including properties and ranching operations in Montana and Oregon. In addition to significant personal and real property holdings, Horatio held a 35.10% interest in the H.W. Burns Family LLC (the LLC).1 In 2010, Horatio executed a last will and testament. In his 2010 will, Horatio bequeathed his estate primarily to his wife Judith. In the event that Judith predeceased Horatio, his estate, including his interest in the LLC, would pass into a trust to benefit Cameron, Lindsay, and Seth in equal shares. Judith died in 2013.
¶3 Horatio suffered an ischemic stroke in 2013 and his health began to deteriorate. At trial, multiple witnesses testified that, despite his worsening health, Horatio continued to participate in the operation of the LLC‘s ranching activities. Following Horatio‘s stroke, Cameron and Alison assisted Horatio in the operation of the LLC as well as in managing his personal affairs and estate planning.
¶4 In 2016, Horatio executed a new will. In the 2016 document, Horatio bequeathed his entire interest in the LLC to Cameron. To Alison, Horatio left a roughly 2,700-acre property in Sweet Grass County, commonly referred to as The Iverson. The remainder of Horatio‘s estate would transfer to the LLC. Except to the extent they held shares in the LLC, the 2016 will disinherited Lindsay and Seth.
¶5 Shortly after Horatio‘s death, Cameron applied to enter the 2016 will into probate and requested that the court appoint him as personal representative of the Estate. Lindsay filed an objection to the probate of the 2016 will and claimed it was the result of undue influence on the part of Cameron and Alison. Nearly two years into the ensuing litigation, Alison filed, in her individual capacity, a response to Lindsay‘s objection to
¶6 Given the small population from which to pull a jury and Horatio‘s prominence in the community, the parties were aware of the potential for jurors to have pre-existing relationships with the Burns family. During voir dire, the court and attorneys for both parties inquired with prospective jurors whether they had any knowledge of the Burns family. Multiple jurors informed the parties they had worked with, lived near, or interacted with Horatio and his children. Prospective jurors Carroccia and Agnew both testified that they knew the Burns family but that knowing the family would not impair their ability to be impartial. Neither juror was challenged, and both were seated on the jury.
¶7 At the conclusion of trial, the jury returned a special verdict finding that Horatio did not lack testamentary capacity when he executed the 2016 will and that the 2016 will was not the result of undue influence. Following the verdict, Lindsay and her legal team contacted members of the jury. In their conversations with jurors, Lindsay‘s team learned that during deliberations, juror Wood used his cell phone to research a definition of the word “undue” and had communicated his findings to other jurors.
¶8 On May 20, 2022, Lindsay moved for a new trial. Lindsay offered the affidavits of jurors Wood and Mauland, both of whom testified about Wood‘s internet research. The District Court did not rule on Lindsay‘s motion, and it was deemed denied. Several months later, the District Court awarded attorney fees in the amount of $428,659.00 to the Estate and $86,931.50 to Alison. Lindsay appeals the denial of her motion to strike Alison‘s response, the denial of her motion for a new trial, and the award of and calculation of applicable interest on attorney fees.
STANDARDS OF REVIEW
¶9 A district court has discretion to allow intervention or joinder of a non-party to a suit, and this Court will review such a decision for abuse of that discretion. Connell v. State Dep‘t of Soc. & Rehab. Servs., 2003 MT 361, ¶ 13, 319 Mont. 69, 81 P.3d 1279; Wheat v. Safeway Stores, 146 Mont. 105, 111-14, 404 P.2d 317, 320-21 (1965). A court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in a substantial injustice. Shilhanek v. D-2 Trucking, Inc., 2000 MT 16, ¶ 24, 298 Mont. 101, 994 P.2d 1105.
¶10 The decision to grant or deny a new trial based on jury misconduct is within the discretion of the trial judge and we will not disturb that decision absent a showing of manifest abuse of discretion. Allers v. Riley, 273 Mont. 1, 4, 901 P.2d 600, 602 (1995). A manifest abuse is one that is “obvious, evident, or unmistakable.” Stebner v. Associated Materials, Inc., 2010 MT 138, ¶ 11, 356 Mont. 520, 234 P.3d 94 (internal citation omitted).
¶11 We review a district court‘s interpretation and construction of statutory provisions de novo to determine if it was correct. Reichert v. State, 2012 MT 111, ¶ 19, 365 Mont. 92, 278 P.3d 455. Whether a party is statutorily entitled to attorney fees is a question of law that we review for correctness. Mlekush v. Farmers Ins. Exch., 2015 MT 302, ¶ 8, 381 Mont. 292, 358 P.3d 913.
DISCUSSION
¶12 1. Whether the District Court erred in allowing Alison to file a response.
¶13 Lindsay filed her petition objecting to the probate of the 2016 will on September 3, 2019. She alleged, among other things, that the 2016 will was made as the “direct result of undue influence” by Alison. Following Lindsay‘s petition, both Lindsay and Alison actively participated in the litigation, including the exchange of discovery and participating in depositions and mediation. Nearly two years into Lindsay‘s challenge to the 2016 will, Alison, acting in her personal capacity, filed a response to Lindsay‘s petition. Lindsay moved the District Court to strike Alison‘s response. She argued that it was untimely, that Alison‘s interests were fully represented by the Estate, and that Alison did not seek leave to intervene under
¶14 Montana has codified the Uniform Probate Code under
¶15 The Montana Rules of Civil Procedure, however, include several provisions that allow non-parties to enter a case.
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
District courts have broad discretion over the joinder of proper parties under
¶16 In addition, under
¶17 Lindsay challenges the District Court‘s holding that Alison‘s status as an interested person rendered her a party to the case. But even if Alison was not a party by virtue of Lindsay‘s petition, we conclude that the District Court did not act arbitrarily or without employment of conscientious judgment when it allowed Alison to respond to the petition. Shilhanek, ¶ 24. Despite several procedural anomalies in the way Alison‘s participation unfolded,2 the court clearly considered the relevant factors in giving her party status. As the District Court noted, Lindsay and Alison behaved as though Alison was a party to the case from the beginning of the process. Lindsay‘s primary allegations of undue
the court must disregard all errors and defects that do not affect any party‘s substantial rights“). The District Court did not abuse its discretion by allowing Alison to participate in the case and to file a response to Lindsay‘s petition.
¶18 Lindsay persists that Alison‘s response nonetheless should be time-barred, as it was filed nearly two years after the petition. The District Court, relying on our decision in Raleigh v. Dist. Ct. First Judicial Dist., 24 Mont. 306, 61 P. 991 (1900), found that Alison‘s response was not time-barred. We held in Raleigh that a “statement of opposition to the probate of [a] will may properly be filed at any time prior to the hearing of proof of the will.” 24 Mont. at 311, 61 P. at 993. Raleigh predated Montana‘s adoption of the MUPC and the Montana Rules of Civil Procedure by several decades, did not address a response to a petition to declare a will invalid, and is not applicable under the circumstances here.
¶19 Regardless, the District Court did not abuse its discretion in rejecting Lindsay‘s motion. Timeliness of intervention depends on the facts and circumstances of each case, and the district court has discretion when determining whether to allow such a motion.
- the length of time the intervenor knew or should have known of its interest in the case before moving to intervene;
- the prejudice to the original parties, if intervention is granted, resulting from the intervenor‘s delay in making its application to intervene;
- the prejudice to the intervenor if the motion is denied; and
- any unusual circumstances mitigating for or against a determination that the application is timely.
In re C.C.L.B., ¶ 24 (citations omitted). “None of these factors are, by themselves, dispositive.” In re C.C.L.B., ¶ 24.
¶20 No prejudice came to the Estate or to Lindsay by allowing Alison to continue to participate in a process that she had been part of from the beginning. Conversely, to suddenly disallow Alison‘s participation after two years would have prejudiced Alison‘s ability to defend her interests in the case. Finally, the manner in which the parties proceeded in this case supports the District Court‘s decision to allow Alison‘s participation. We agree with the District Court that Alison “certainly could have, and should have,” filed her response sooner. The District Court, however, did not act arbitrarily or without the conscientious exercise of judgment when it allowed Alison to file her response.
¶21 2. Whether Lindsay is entitled to a new trial for juror misconduct.
¶22 Under
-
irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; - misconduct of the jury.
¶23 In support of her motion, Lindsay offered her own affidavit and the affidavits of her brother Seth, jurors Mauland and Wood, Lindsay‘s attorney (Ms. Baucus), and Ms. Baucus‘s paralegal (Ms. Willson). In some circumstances, juror affidavits may be admissible to show misconduct under
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon that or any other juror‘s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror‘s mental processes in connection therewith. Nor may a juror‘s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury‘s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury‘s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.
Under this Rule, juror affidavits may not be used to impeach a verdict based on internal influences, but a party may offer them to show that external influence impacted deliberation. Stebner, ¶¶ 16-17. To render a verdict invalid, the evidence must be sufficient to show that an external influence was brought to bear upon any juror and that the party was “deprived of a fair trial.” Stebner, ¶ 17. If a party presents evidence showing external influence on deliberations, we will presume that juror misconduct has occurred. Stebner,¶ 17 (citing Allers, 273 Mont. at 8, 901 P.2d at 605). This presumption is not absolute, however, and a new trial is warranted only if the misconduct in question shows a “natural tendency” to prejudice. Allers, 273 Mont. at 8, 901 P.2d at 605 (citing Putro v. Baker, 147 Mont. 139, 147-48, 410 P.2d 717, 721-22 (1966)).
¶24 In her motion for a new trial, Lindsay included the signed affidavits of jurors Wood and Mauland. Mauland stated that during deliberations one of the male jurors looked up a definition for the term “undue” on his cell phone. Although she could not remember the definition, she recalled it “being something to the effect of being malicious or malicious sounding.” In his affidavit, Wood recounted that during deliberations he accessed a dictionary definition of “undue” from Google, which defined the term as “unwarranted or inappropriate because excessive or disproportionate.” In response, the Estate and Alison offered the affidavits of jurors Lehman, Agnew, Isaacs, and DeBoer, all of whom attested that they either did not know of or were not affected by Wood‘s research.
¶25 “[I]ndependent research on extraneous material which redefine[s] [a] critical element” of a case is external to deliberations. Allers, 273 Mont. at 7, 901 P.2d at 604. Allers involved a jury‘s use of external sources to define words contained in the jury instructions. During deliberations, the jury foreperson requested the bailiff provide the jury with a dictionary. Allers, 273 Mont. at 2, 901 P.2d at 601. Without permission from the district court, the bailiff delivered the dictionary to the jury, and the jury used it to look up the terms “proximate cause” and “prudent.”
¶26 The fundamental claim Lindsay made in her objection to the probate of the 2016 will was that Alison exerted undue influence on Horatio at the end of his life. In Instruction No. 16, the District Court instructed the jury that “[u]ndue influence exists when a confidential relationship or a position of authority is used to take an unfair advantage of the testator‘s weakness of mind, or to take a grossly oppressive and unfair advantage of the testator‘s necessities or distress.” Despite this instruction, Wood consulted external sources when distinguishing between influence and undue influence. Just as in Allers, the jury‘s use of external sources is a proper subject for a juror‘s affidavit under
¶27 To the limited extent Lindsay‘s proffered evidence is admissible, she has failed to show that Wood‘s internet research had a “natural tendency” to prejudice her substantial rights. Allers, 273 Mont. at 8, 901 P.2d at 605. To warrant a new trial, misconduct “must be such that actual or potential injury results to the losing party.” Allers, 273 Mont. at 7, 901 P.2d at 604 (citing Brockie v. Omo Constr., 255 Mont. 495, 498, 844 P.2d 61, 64 (1992)). In Allers, the dictionary definition of “proximate cause” on which the jury relied
said nothing about the element of foreseeability. 273 Mont. at 2-3, 901 P.2d at 601. The court‘s instruction in the case, however, correctly included the elements of proximate cause under Montana law. Allers, 273 Mont. at 3, 901 P.2d at 601. Accordingly, the jury in Allers materially changed a “critical jury instruction” through their “review of extraneous materials.” 273 Mont. at 9, 901 P.2d at 605. The same prejudice is not shown in this case.
¶28 In his affidavit, juror Wood explained that during deliberation he found a Google definition of the term “undue” as “unwarranted or inappropriate because excessive or disproportionate.” Though the language differs from the definition used in Instruction No. 16, the difference is not material like it was in Allers. The definitions of “oppressive” and “unfair,” used in the instructions given to the jury, and “excessive” and “disproportionate,” used in the definition found by Wood, all contain an element of one party possessing an inappropriately outsized power over another. See Black‘s Law (Bryan A Garner ed., 11th ed. 2019) (defining oppressive as “[t]he act or an instance of unjustly exercising authority or power . . .“; unfair persuasion as “[a] type of undue influence in which a stronger party achieves a result by means that seriously impair the weaker party‘s free and competent exercise of judgment;” excessive as “[t]he action of exceeding one‘s authority or overstepping a prescribed limit . . .“; and disproportionate as “[h]aving too much or too little in comparison with something else in size, amount, importance[.]“). These definitions show that, in the context of persuasion over another, the terms used in the court‘s instruction and Wood‘s research are not substantially different. Unlike in Allers, where the extraneous definition eliminated a crucial element from a legal claim, the definition found by Wood does not materially affect the instruction in a meaningful way. 273 Mont. at 9, 901 P.2d at 605.
¶29 Further, the evidence available does not demonstrate a likelihood that the jury‘s verdict was influenced by juror Wood‘s research. Four members of the jury attested that they either did not know of or did not rely on Wood‘s extraneous research. The facts of this case are more analogous to those in Stebner. There we concluded that a juror‘s research regarding the definition of the term
¶30 We nonetheless reiterate a point we made in Stebner—the use of personal devices by jurors during deliberation is an emerging and increasing problem. Stebner, ¶ 24. We again encourage district courts across Montana to include in their cautionary instructions to all juries, both at the beginning and at the conclusion of trial, a firm prohibition against internet research during trial and deliberations.
¶31 As noted above, Lindsay also offered the affidavits of herself, Seth, Ms. Baucus, and Ms. Willson purporting to show that juror Carroccia improperly relied on his preexisting opinion of Horatio‘s mental capacity to determine whether undue influence had occurred and that juror Agnew failed to disclose during voir dire that he was predisposed to disbelieve claims of the type Lindsay alleged. All four affidavits purport to recount conversations Lindsay‘s team had with jurors following the trial and all consist overwhelmingly of inadmissible hearsay evidence.
¶32 Lindsay maintains that several hearsay exceptions apply to certain statements. First, Lindsay argues that hearsay statements in the affidavits of herself, Seth, and Ms. Willson that Carroccia said he relied on his prior opinion of Horatio to determine he had testamentary capacity are not hearsay under
Lindsay fails to allege that Carroccia was unavailable as that term is used in
¶33 Next, Lindsay argues that statements recounted in Ms. Willson‘s affidavit that Agnew was prejudiced against Lindsay‘s claims also fall under the present sense impression exception of
¶34 Finally, Lindsay‘s reliance on Agnew‘s and Carroccia‘s purported statements is not ground for a new trial, as she was aware of both jurors’ experiences when they were seated. During voir dire, the following interaction took place between Lindsay‘s attorney and Agnew:
MR. SWEENEY: This is a [w]ill dispute. Has anybody been involved in a situation like this either as a party in a law suit or is related to somebody or anything like that? . . .
MR. AGNEW: It was when my father passed there was a lawsuit involving his stepchildren and my siblings and I and it
was contentious and bitter and resolved to no one‘s great satisfaction. MR. SWEENEY: Yeah, I get you. Okay. And so, that‘s what this case is and do you think that anything about your past experience is going to either jade you or irritate you or essentially just make you not the right juror for this case because you don‘t think what‘s going on here is the right thing to be done.
MR. AGNEW: I can‘t help but think that I would have strong feelings about some of the issues that will arise.
Although Agnew later stated that his mind was not made up because he did not know the particulars of the case, he then stated in regard to his past experience, “I had strong feelings at the time and I‘m sure they will rise up.” Despite Agnew‘s statements, Lindsay‘s attorneys chose not challenge Agnew for cause. Lindsay cannot now claim irregularity when she had this information before jury selection was completed.
¶35 As for Carroccia, when questioned by Mr. Sweeney the following colloquy occurred:
MR. SWEENEY: When do you think is the, well let me ask you this, how often would you go visit [Horatio] at the ranch?
MR. CARROCCIA: I think only twice is all I‘ve ever been there.
MR. SWEENEY: And when do you think the last time was?
MR. CARROCCIA: I think it was just, I think it was the summer that he died, but maybe it was the summer before. I don‘t know. But he had had his stroke, yeah.
At a minimum, Lindsay‘s attorney should have been aware that Carroccia may have interacted with Horatio at a time critical to their claims in the case. Nonetheless, Sweeney did not follow up to inquire about Carroccia‘s impressions of Horatio, did not ask whether Carroccia would be impacted by the meeting, and did not challenge Carroccia for cause.
¶36 Finally, Lindsay also alleges that a new trial is warranted under
¶37 Considering the admissible evidence Lindsay has presented, we conclude that the District Court‘s deemed denial of her motion for a new trial was not an abuse of discretion.
¶38 3. Whether the District Court correctly awarded attorney fees to both the Estate and Alison and properly calculated interest on those awards.
¶39 Following trial, the District Court awarded attorney fees to the Estate in the amount of $428,659.00, and to Alison in the amount of $86,931.50. The District Court found both awards compelled by a. Award of attorney fees to Alison ¶40 Montana law provides for the award of attorney fees in challenges to probate proceedings. When the validity or probate of a will is contested through court action, the attorney fees and costs, as provided in ¶41 Lindsay argues that the District Court erred when it awarded costs and fees both to the Estate and to Alison. Assuming Alison is properly in the case to defend her own interest in the 2016 will, Lindsay argues, she cannot receive attorney fees under ¶42 The fee-shifting scheme created by ¶43 As described above, the District Court allowed Alison to participate as a party to defend her own interests and to respond to Lindsay‘s allegations against her. Neither Alison nor the Estate argues that the Estate‘s defense of the will was insufficient without Alison‘s participation. The record supports a conclusion that Alison was defending her own interest in the 2016 will and is therefore not entitled to an award of fees under b. Interest rate ¶44 The applicable interest rate to be applied to an award of attorney fees is governed by (1)(a) ... interest is payable on judgments recovered in the courts of this state and on the cost incurred to obtain or enforce a judgment at a rate equal to the rate for bank prime loans published by the federal reserve system in its statistical release H.15 Selected Interest Rates or in any publication that may supersede it on the day judgment is entered, plus 3%. The interest may not be compounded. (b) The rate for bank prime loans established in subsection (1)(a) must be set as of January 1 of each year and remain in effect until December 31 of each year. ¶45 When interpreting a statute, a court‘s role is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” ¶46 Subsections 1(a) and (b) were added to ¶47 The language of ¶48 Accordingly, the appropriate rate of interest in this case is 3% above the federal bank prime rate as of January 1, 2022. On that date, the federal bank prime rate was 3.25% and the applicable post-judgment interest rate in this matter is 6.25%. ¶49 The District Court acted within its discretion when it denied Lindsay‘s motion to strike Alison‘s response and Lindsay‘s motion for a new trial. We therefore affirm the court‘s judgment on the jury verdict. We reverse the District Court‘s award of attorney fees and costs to Alison and its calculation of interest on the award of attorney fees and costs to the Estate. The case is remanded for entry of final judgment consistent with this Opinion. /S/ BETH BAKER We Concur: /S/ MIKE MCGRATH /S/ LAURIE MCKINNON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE
CONCLUSION