May 13 2009
DA 08-0094
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 167N
IN THE MATTER OF THE ESTATE OF
ERNESTINE STUKEY,
Deceased.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADP 01-068
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Steven T. Potts, Thompson, Potts & Donovan, Great Falls, Montana
For Appellee Charlene Howard:
Ward E. Taleff, Taleff Law Office, Great Falls, Montana
Submitted on Briefs: December 10, 2008
Decided: May 13, 2009
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Evon Leistiko, Tessa Leistiko, Laura Leistiko, Tyson Leistiko, Curtis Clark, Melody
Klisch, and Cherie Smith (Stukey heirs) appeal from an order of the District Court of the
Eighth Judicial District, Cascade County, denying the Stukey heirs’ motion to compel
discovery and granting attorney fees and costs to Charlene Howard.
¶3 Ernestine Stukey died on March 8, 2001. Evon Leistiko is Ernestine’s daughter and
the other Stukey heirs are Ernestine’s grandchildren. Charlene Howard is Ernestine’s niece.
The extensive history of this case can be found in In re Estate of Stukey, 2004 MT 279, 323
Mont. 241, 100 P.3d 114 (Stukey I), and In re Estate of Stukey, 2005 MT 349, 330 Mont.
401, 126 P.3d 507 (Stukey II).
¶4 In April 2007, the personal representative petitioned for approval of the final account
of Ernestine’s estate. At that time, Howard moved for $31,614 in attorney fees and costs
related to prior estate litigation, to be paid from the Stukey heirs’ portion of the estate. The
Stukey heirs objected to Howard’s motion and, in conjunction with the objection, requested
discovery. Howard objected to the discovery requests as irrelevant or privileged. The
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Stukey heirs moved to compel.
¶5 The record reflects that the District Court held a hearing on the remaining issues in
this estate on June 27, 2007. The transcript of the hearing shows counsel for Howard had
filed an affidavit and brief concerning the amount he claimed as attorney fees. Counsel for
the Stukey heirs stated that the District Court could resolve “all of it based on briefs” and
that a response would be filed. On October 24, 2007, the District Court denied the Stukey
heirs’ motion to compel discovery and ordered the Stukey heirs’ distribution reduced by the
amount of Howard’s attorney fees and costs.
¶6 A District Court’s ruling on discovery is reviewed for abuse of discretion. In re
Estate of Bolinger, 1998 MT 303, ¶ 24, 292 Mont. 97, 971 P.2d 767. We review a District
Court’s award of attorney fees for abuse of discretion. In re Estate of McMurchie, 2004 MT
98, ¶ 8, 321 Mont. 21, 89 P.3d 18.
¶7 Parties “may obtain discovery regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending action.” M. R. Civ. P. 26(b)(1). The Stukey
heirs waived further discovery at the June 27, 2007, hearing by stating that the matter could
be decided based on briefs and by not requesting a further hearing, which the District Court
had offered to hold upon request. The District Court did not abuse its discretion by not
ordering discovery.
¶8 The Stukey heirs contest only the decision to award attorney fees. They have not
objected on appeal to the amount of the fees awarded.
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¶9 Several statutory bases for an award of fees exist in this case, including: § 37-61-421,
MCA, (assessing excess costs for multiplying the proceedings unreasonably and
vexatiously); § 72-1-111, MCA, of the Uniform Probate Code (providing restitution against
the perpetrator of fraud); and M. R. Civ. P. 11 (providing for sanctions including costs and
reasonable attorney fees when an attorney submits a document for an improper purpose, such
as to delay proceedings).
¶10 On the face of the briefs and the record on appeal, it is manifest that the appeal is
without merit as the issues are clearly controlled by settled Montana law, which the District
Court correctly interpreted, and because there is clearly sufficient evidence to support the
District Court’s order awarding fees to Howard to be paid from the Stukey heirs’ share of the
estate.
¶11 Howard has petitioned for an award of costs and attorney fees on appeal. We
conclude such should be granted.
¶12 Affirmed. Remanded to the District Court to assess costs and determine the
reasonable amount of attorney fees to be awarded to Howard.
/S/ JOHN WARNER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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