*1 IN THE MATTER OF THE ESTATE L. BAYERS,
OF SHIRLEY A Protected Person. No. 00-715. Briefs 2001.
Submitted on Decided March 2001. April 19, Rehearing Denied 2001.
For David A. Billings. James Bennett: Gannett, Shirley Bayers: For Ad Litem for Damon Guardian L. Firm, Billings. Gannett Law Mattix, Judy Crowley
For Guardian Trenka: William J. Law Firm, Billings. *2 Moulton, Respondent: Jones, Nancy Bennett,
For John T. Mather, Bellingham, Longo Billings. &
JUSTICE COTTER delivered the Opinion Court. Court, County, Thirteenth Judicial District Yellowstone assessed in against Philip fees as a sanction P. McGimpsey (McGimpsey) vexatiously legal multiplying proceedings, pursuant McGimpsey appeals this sanction. affirm and remand with instructions.
FACTUAL BACKGROUND (Conservator) First Interstate Bank is the court-appointed Shirley Bayers (Bayers), of Estate of L. who is incapacitated due to McGimpsey purports Alzheimer’s disease. to be Bayers’ attorney, Ms. private claiming Bayers hired him after conservatorship underway. were McGimpsey began When expressing an interest in participating involving Bayers’ in matters estate, Conservator became concerned of about the extent Bayers’ in involvement affairs. Conservator’s requesting any legal therefore wrote him a copy documents he had have been Bayers. McGimpsey responded, executed saying he “an provide only attorney-client could his abstract” of agreement Bayers, declining disclosures, with any to make further citing attorney-client relationship. On following a accounting
annual at which the District present, statutorily informed that Conservator was entitled requested the documents it had from him. The District Court then day, instructed in put writing. The next letter, again, counsel Conservator sent a once having requesting possessed documents he to do affairs. with This letter provide: asked
[C]opies any plans you Shirley Bayers, estate have for L. wills; including, any powers attorney; but not limited to: trusts contract, transfer, joint settler; any a or she is provisions or transfer ownership arrangement payment with In the event that or interest at her death of another. of benefits your are knowledge plans that not you have estate person the name and address of the possession, provide please possession of those documents.
The letter went on follows: Furthermore, upon any person taking actions based a Durable Attorney is accountable to the conservator. See Mont. Power of §72-5-501(2). Thus, you taking Ann. in the Code event relationship or have an client direction from Bayers’ agent attorney-in-fact to be or person claiming Attorney Shirley Bayers, please provide L. Durable Power of copies as well as any engagement or retention letters copy of under the provided for services all bills account statements Attorney. Durable Power of information you
If choose seek the ten the conservator will be forced to days, within In event the conservator Court’s intervention. Court, file a with the the conservator required to motion attorneys’ costs. in the form of will seek sanctions *3 (Emphasis original.) in April request. Accordingly, on McGimpsey ignored Conservator’s
24, 2000, compel McGimpsey filed motion to Conservator a information, attorney a fees together with 27,2000, McGimpsey responded by April the motion. On necessitated counsel Rule 11 sanctions threatening a Conservator’s with letter things, compel. Among other if she not withdraw the motion to did McGimpsey stated: understand, it you’ll hoping that I’m put language
[T]o this in your Motion and Brief unwavering belief that my profound and inquiry; filed after reasonable were not written and fact; are not warranted grounded well in extension, good for the existing argument law or a faith in existing (emphasis law.... or reversal modification original) Motion, I your in current you fall too love with deeply
Before (and carefully very, very you a suggest copy secure read) 16, 2000. To Hearing transcript from the the Wars’s from one of Star analogize: you Do remember scene force; was told listen young being movies where Luke to ‘feel feelings?’ ..., you to his Well ‘read the What will transcript.’ magically my surgically scripted is that well-prepared find you put [Guardian litem] remarks will end to and Damon’s ad unnecessary continuous billing ‘housekeeping matters.’ you’re your tall dog litigators [I]f ... anxious to run with the in firm, hours, matter, or for need you productive billable I suggest following subject that the areas directed to the financial management Shirley’s ripe account are for the application your considerable talent.... laundry complaints
There followed a list of and criticisms of handling Bayers’ estate. 8, 2000, May scandalous, On filed a motion to strike immaterial and irrelevant content in Conservator’s motion brief. His motion was denied. On after compel June the motion to briefed, fully was the District Court granted Conservator’s motion to compel attorney and for fees. The District Court indicated in its order that if attorney contested, the amount of fees hearing a would be held to determine the amount of fees to awarded. 7,2000, On June filed a motion to alter or amend the granting attorney Court’s order fees. opposed motion,
motion. The District. denied and ordered awarded, on hearing the amount of sanction to be “unless the the. parties $1,000 agree attorney can being assessed.” agreed to accept suggestion. District Court’s A McGimpsey did not. hearing the amount of fees was therefore July scheduled for 18,2000, July On filed a motion to vacate regarding moved establish schedule attorney fees. beginning July District Court denied the motion at the
2000 hearing. Conservator’s then her counsel testified as to reasonable July 31,2000, fees incurred due McGimpsey’s conduct. On the District Court requiring McGimpsey pay issued order estate fees. filed another motion alter or amend determining the order fees. The District Court 30,2000. August appeals denied the motion on now to this *4 Court.
DISCUSSION by sanctioning the Did District Court abuse its discretion ¶8 37-61-421, MCA, unreasonably § 300 Court? vexatiously multiplying proceedings the District
and The Court fees to Conservator under 37-61- § District awarded MCA, 421, provides: who, in proceeding
An the party to court court, multiplies determination ofthe case vexatiously may required by court to be costs, attorney fees satisfy personally expenses, the excess reasonably incurred because of such conduct. discretion to award fees under §
It is within district court’s (1997), 37-61-421, Rocky Flooring Ent. v. Pierce 286 MCA. Mountain 1326, 282, 301, 1338. review district court’s Mont. 951 P.2d We 37-61-421, MCA, pursuant grant determination to § 156, 159- (1990), Tigart Thompson v. an abuse discretion. 60, 582, defers to discretion of generally 796 P.2d 584. This Court position it is in the best regarding the district court sanctions because disregarding rights of others and parties to know whether (1997), v. Scheeler 285 appropriate. which sanction is most McKenzie 1168, Mont. ordering argues erred in him that District Court 37-61-421, MCA, in a action such as fees under because civil pay § one, including sanctions, discovery disputes, all
(cid:127)this Procedure, by Civil and not governed by must be Montana Rules of 37-61-421, error the District argues MCA. He also that it was findings fact as to him because it made no his Court sanction Lastly, he asserts unreasonable and vexatious conduct. carry to the totally proof failed to its burden of as amount Conservator his attorney spent time its due to conduct. Court counters that the issue was before litigation no and no discovery dispute not a because there was discovery. governing as the rules adversity parties envisioned
301
damages. Hearing
Judiciary
as
HB 541
the House
awarded
Before
(1985) (statement
Committee,
Hotter,
Legis.
Judge
49th
of
M.
Robert
District).
19th Judicial
It was
in 1985 to
redress
adopted
convenience,
against
judicial process
abuse the
for their
persons who
reasons,
vengeful
tactical
or
of
personal gain,
the satisfaction
motives.
Judiciary Committee,
on HB
Hearing
Legis.
541
the House
49th
Before
(1985) (statement
District).
Judge
Keedy,
Michael
11thJudicial
assertions,
Contrary to
have
upheld
we
the award
discovery
37-61-421,
See,
of attorney fees for
violations under
MCA.
§
e.g.,
(1994),
625,
In re Marriage of Rager
263 Mont.
868 P.2d
(failure
628
at
appear
provide discovery
and refusal to
see,
responses
37-61-421, MCA);
warranted sanction under
also
§
Tigart,
159-60,
at
(withholding
given multiplication pointless and the involvement dispute. District Court in this prolonged this The District Court found that vexatiously, meeting the requirements
matter thus it The District Court noted would have set forth in response a one-sentence very simple McGimpsey 'write been requested. This have ended the he did not have the information necessity and would have obviated the numerous inquiry, briefs, due to hearings legal proceedings which ensued justifiably found that McGimpsey’s recalcitrance. The District *6 “pushing Bennett’s “playing games” by forcing this matter forward. We counsel] buttons” [Conservator’s District Court did not abuse its discretion conclude that the attorney against pursuant to assessing fees on this issue. MCA. The District Court affirmed inclination prolong this matter Unfortunately, McGimpsey’s did end in District Court. vexatiously the unnecessarily on appeal, forced this matter forward attorney defending requiring respondents expend additional fees noted, 37-61-421, MCA, already Court. As the order of unreasonably multiplies require the Court to who permits satisfy personally expenses fees conduct. conclude that reasonably incurred because of such this responsible respondent’s should statute appeal as well as below. expenses fees incurred on we to the District Court for assessment Accordingly, remand attorney fees respondent’s costs and against herein. incurred GRAY, NELSON and LEAPHART
CHIEF JUSTICE JUSTICES concur. concurring dissenting:
JUSTICE REGNIER
opinion
the Court's
part
I
dissent to that
respectfully
certainly has
attorneys
Although
fees on
this Court
appeal.
awards
37-61-421, MCA, as well as
authority
pursuant
to award said
Procedure, I
that the
Appellate
note
Rule 32 of the Montana Rules
In
appeal.
fees on
First Interstate Bank does not
Respondent
sponte. In all
appeal
I
sua
case
not award fees
the instant
agree
opinion.
I
Court's
aspects,
other
notes
Bayers.
Conservator also
only party
involved was
fees, heard
examined Conservator’s
the District Court
Services,
Audit
factors set forth in
testimony,
applied
the seven
(1979),
Finally,
Mont.