No. 02-483
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 203N
IN THE MATTER OF M.L.V.,
An Incapacitated Person.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDP 2002-029,
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Fausto G. Turrin, Attorney at Law, Great Falls, Montana
For Respondents:
Michael McPherson and Karl K. Rudbach, McPherson & Hutchison,
Great Falls, Montana
Robert M. Kampfer, Attorney at Law, Great Falls, Montana
Submitted on Briefs: July 17, 2003
Decided: August 12, 2003
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Fausto G. Turrin (Turrin) appeals from the Eighth Judicial District Court’s order
dated July 31, 2002, awarding Turrin $960 in attorney fees to be paid from the Estate of
M.L.V. We affirm.
¶2 Pursuant to Section I, Paragraph 3(d)(i), Montana Supreme Court 1996 Internal
Operating Rules (Memorandum Opinions), we determine that the legal issues raised in this
appeal are clearly controlled by settled Montana law. Further, pursuant to Section I,
Paragraph 3(d)(v), the following decision shall not be cited as precedent but shall be filed
as a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶3 Turrin was initially hired by M.L.V.’s daughter, Margaret Nygard (Nygard), to
represent her in her petition to establish herself as the temporary guardian and conservator
for her mother. The District Court appointed Nygard as limited temporary guardian and
conservator and appointed attorney Robert M. Kampfer to represent M.L.V.’s interests.
Shortly thereafter, M.L.V.’s other two children (Respondents herein) filed an objection to
Nygard’s appointment. Nygard then filed a petition to resign as temporary guardian and to
nominate Cascade County Public Administrator, John Boland, for appointment as temporary
guardian. The District Court held a hearing on the matter and appointed Boland temporary
guardian and appointed M.L.V.’s three children co-guardians.
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¶4 Turrin then filed a motion to have M.L.V.’s Estate pay his legal fees or, in the
alternative, have Respondents and their counsel pay his fees. At that time, Turrin had
incurred over $8,000 in legal fees. After a thorough review of briefs from both parties on
the matter, the court ordered the Estate to pay $960 of Turrin’s fees. According to the court,
it based the award on a “finding that Mr. Turrin is spending the bulk of his time in this case
representing Margaret Nygard rather than the Estate of [M.L.V.].” The court also expressed
“grave concerns over Mr. Turrin’s apparent representation of three of the parties in the
proceeding . . . [and that t]hese concerns make it exceedingly difficult for the Court to find
that all of the time which has been expended by Mr. Turrin is for the benefit of the Estate.”
On appeal, Turrin contends that his legal fees currently total approximately $17,820.
¶5 Turrin argues that the District Court abused its discretion in allowing the Estate to pay
only a limited portion of his legal fees. Turrin contends that the majority of the legal fees
were incurred on behalf of M.L.V.’s Estate and therefore, these fees should be paid out of
her estate. Respondents contend that the District Court did not abuse its discretion in
awarding the sum to be paid from the Estate because it determined that Turrin was primarily
working on behalf of Nygard, not M.L.V. Respondents claim that the District Court was in
the best position to determine what portion of the legal fees were for services for the Estate.
¶6 The appointing court’s discretionary power encompasses approval of attorney fees
incurred by a guardian within the scope of the guardianship. In re Estate of Bayers, 1999
MT 154, ¶ 12, 295 Mont. 89, ¶ 12, 983 P.2d 339, ¶ 12. In Bayers we held that the District
Court did not abuse its discretion by approving attorney fees to be paid by the estate because
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the amounts requested were both reasonable and necessary for the benefit of the protected
person. Here, the District Court concluded that only a portion of the requested fees, $960,
was incurred for the benefit of the protected person, M.L.V. The court’s determination was
preceded by its thorough review of Turrin’s and Respondents’ briefs. Nothing in the record
indicates that the District Court abused its discretion in its finding that Turrin was working
primarily for Nygard and awarding payment from the Estate in the sum of $960. Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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