Estate of Elliot

FILED
01/23/2023
02/13/2023

No. DA 23-0031 Bowen Greenwood
CLERK OF THE SUPREME COURT
STATE OF MONTANA

Case Number: DA 23-0031

IN THE

Supreme Court of the State of Montana
______________________
IN RE THE MATTER OF THE ESTATE OF IAN RAY ELLIOT,
DECEASED.
__________________

ON APPEAL FROM THE MONTANA THIRTEENTH JUDICIAL DISTRICT COURT,
YELLOWSTONE COUNTY, HON. ROD SOUZA
CASE NO. DP-22-0034

PARTIAL MOTION TO DISMISS APPEAL

MICHAEL P. MANNING
RITCHIE MANNING KAUTZ PLLP
175 North 27th Street
Suite 1206
Billings, MT 59101
(406) 601-1400
mmanning@rmkfirm.com

Counsel for Appellee Joseph V.
Womack, Special Administrator of the
Estate of Ada E. Elliot and Liquidating
Partner of StarFire, LP
 STATEMENT OF THE ISSUE

Appellants Jenny Jing, Alice Carpenter, and Michael Bolenbaugh

have appealed two district court orders—a May 23, 2022 order

appointing a special administrator in the Estate of Ian Ray Elliot and a

December 9, 2020 order denying their Rule 60(b) motion, which asked

the court to vacate its earlier order. While their appeal is timely as to

the denial of the Rule 60(b) motion, the appeal of the court’s underlying

order is not. Accordingly, Appellee Joseph Womack, as the special

administrator of the Estate of Ada E. Elliot and the liquidating partner

of StarFire, LP, moves under Montana Rule of Appellate Procedure 16

to dismiss the portion of the appeal directed to the district court’s

May 23, 2022 order. Neither Womack nor any other party should have

to spend unnecessary time and resources briefing the merits of that

part of the appeal, which was filed months too late. Womack has

contacted Jing, Carpenter, and Bolenbaugh regarding this motion.

They oppose it.

BACKGROUND

This Court has weighed in multiple times in the lengthy battle

over the Estate of Ada Elliot, which has now spilled over into the estate

of her deceased son, Ian. Most recently, the Court affirmed the district
1
court’s refusal to remove Womack as the special administrator of Ada’s

estate, approved Womack’s actions as the liquidating partner of

StarFire, LP, and rejected Ian’s bias claims after he was held in

contempt. See In re Est. of Elliot, 2022 MT 91N (unpublished). In doing

so, the Court recognized that “Ian obstructed Womack’s administration

with constant litigation and unfounded accusations,” including filing

“numerous, lengthy motions objecting to almost every action by

Womack,” and suing him personally twice. Id., ¶ 19.

Ian passed away while the last appeal was pending, leaving a will

naming his domestic partner, Jenny Jing, and ex-wife, Ann Taylor

Sargent, as co-personal representatives. See Ex. A, at 1. Because of the

historically contentious nature of the proceedings, Womack petitioned

for supervised administration of Ian’s estate, which Cindy Elliot joined

but which Jing and Sargent strongly opposed.1 Id. After holding two

evidentiary hearings, the district court entered a detailed 29-page order

on May 23, 2022 granting Womack’s petition and appointing attorney

Andrew Billstein as the special administrator of Ian’s estate. See

generally id. Among other things, the court’s 65 findings of fact and 35

1 Cindy and Ian are the sole heirs of Ada’s estate.
2
conclusions of law recount Jing’s intimate involvement in Ian’s frequent

and frivolous pro se litigation, her commitment to continuing the same

course of action, her conflict of interest due to debts she owes Ian’s

estate, and her continued unfounded attacks on Womack and inability

to work with him. Id.

On July 11, 2022, Womack filed a Rule 77(d) notice of entry of the

district court’s order. See Ex. B. He served the notice on all interested

parties, including Jing and both Carpenter and Bolenbaugh, who are

devisees in Ian’s will. Id. No party appealed in the next 30 days.

Instead, on October 20, 2022—101 days later—Jing, Carpenter, and

Bolenbaugh jointly filed a motion invoking Rules 42(a), 60(b) and 60(d)

asking the court to: (1) vacate its May 23, 2022 order; (2) allow an

independent action to investigate fraud on the court; and (3) consolidate

the various Elliot estate cases (the Rule 60(b) motion). See Ex. C. The

district court denied that motion on December 9, 2022, again issuing a

detailed order. See Ex. D. On January 9, 2023, Jing, Carpenter, and

Bolenbaugh filed their notice of appeal, purporting to appeal not only

the December 9 order denying their Rule 60(b) motion, but also the

underlying May 23 order appointing Billstein as the special

administrator of Ian’s estate.
3
 ARGUMENT

I. The Appeal of the District Court’s Order Denying the Rule
60(b) Motion Is Timely.

Under Montana law, an order denying a Rule 60(b) motion is a

final, appealable order. Donovan v. Graff, 248 Mont. 21, 24, 808 P.2d

491, 493 (1991). Because Jing, Carpenter, and Bolenbaugh’s notice of

appeal was filed within 30 days of the district court’s denial of their

Rule 60(b) motion, they properly perfected their appeal of that order.

See Mont. R. App. P. 4(5)(a)(i); see also Mont. R. App. P. 3. Accordingly,

this motion does not seek to dismiss the portion of the appeal related to

the district court’s denial of the Rule 60(b) motion.

II. The Appeal of the District Court’s Underlying Order
Appointing a Special Administrator Is Woefully Untimely.

That said, an appeal of the denial of a Rule 60(b) motion “brings

up for review only the order of the denial itself and not the underlying

judgment.” Donovan, 248 Mont. at 24, 808 P.2d at 493. Thus, to also

perfect an appeal of the district court’s May 23, 2022 order, Jing,

Carpenter, and Bolenbaugh were required to file a timely notice of

appeal as to that specific order. They did not come close.

Under Montana Rule of Appellate Procedure Rule 4(5)(a)(i), Jing,

Carpenter, and Bolenbaugh had 30 days after Womack’s Rule 77(d)

4
notice to appeal the May 23 order. Accordingly, their notice of appeal

needed to be filed no later than August 10, 2022, meaning that their

January 9, 2023 notice was 166 days too late. See, e.g., Greenup v.

Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124 (“[I]t is

reasonable to expect all litigants, including those acting pro se, to

adhere to procedural rules.”).

The Court should reject any argument that Jing, Carpenter, and

Bolenbaugh’s time to appeal was extended under Rule 4(5)(a)(iii)(E)

simply because they later filed the Rule 60(b) motion. Montana law is

clear that “a Rule 60(b) motion may not be used as a substitute for

appeal.” Donovan, 248 Mont. at 25, 808 P.2d 494; see also State v.

Osborn, 2015 MT 48, ¶ 15, 378 Mont. 244, 343 P.3d 1188. Moreover, in

unpublished decisions, the Court has interpreted the timeliness

requirement in Rule 4(5)(a)(iii)(E) to mean that a Rule 60(b) motion

extends the deadline for appealing an underlying order only if it is filed

before expiration of the initial time for appealing that order. See, e.g.,

Boland v. Boland, 2020 MT 30N, ¶ 11, 399 Mont. 551, 456 P.3d 588

(Table). Although Womack acknowledges that Boland is not

precedential, it appears the Court has found this interpretation so

5
fundamentally mandated by the Rules of Appellate Procedure that a

published decision elaborating on it has been unnecessary.

The result makes sense—any other rule would allow a party to

resurrect a long-forfeited right to appeal merely by filing a Rule 60(b)

motion months after the deadline has run. Here, Jing, Carpenter, and

Bolenbaugh are trying to do just that. Had they filed their Rule 60(b)

motion before August 10, 2022, the deadline to appeal the May 23 order

would have run from denial of the Rule 60(b) motion. See Mont. R. App.

P. 4(5)(a)(iii)(E). But they did not, so their time to appeal expired on

August 10. They did not somehow create a new right to appeal by filing

a Rule 60(b) motion three months later asking the Court to vacate the

May 23 order. Rather, they attempted to use Rule 60(b) as a substitute

for an appeal, which Donovan and other cases forbid.

Simply put, Jing, Carpenter, and Bolenbaugh’s appeal of the

district court’s order appointing a special administrator in Ian’s estate

is untimely. Consequently, that portion of the appeal should be

dismissed to avoid unnecessary merits briefing about an unappealable

order.

6
Dated: January 23, 2023

Respectfully submitted,

/s/ Michael P. Manning
RITCHIE MANNING KAUTZ PLLP

Counsel for Joseph V. Womack,
Special Administrator of the Estate of
Ada E. Elliot and Liquidating Partner
of Starfire, LP

7
 CERTIFICATE OF COMPLIANCE

I certify that, pursuant to Mont. R. App. P. 16(3), this response

brief is proportionately spaced, has a typeface of 14 points or more, and

contains 1,247 words, as determined by the undersigned’s word

processing program.

/s/ Michael P. Manning
Michael P. Manning
RITCHIE MANNING KAUTZ PLLP

Counsel for Joseph V. Womack,
Special Administrator of the Estate of
Ada E. Elliot and Liquidating Partner
of Starfire, LP

8
 1

3
MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY
4
Cause No.: DP 22-34
5 IN THE MATTER OF THE ESTATE OF:
Judge Rod Souza
6 IAN RAY ELLIOT,
FINDINGS OF FACT, CONCLUSIONS OF
7 Deceased. LAW, AND ORDER GRANTING
PETITION FOR SUPERVISED
8 ADMINISTRATION THAT INTERESTED
PERSON JOINED AND APPOINTING
9 SPECIAL ADMINISTRATOR
10
This matter conies before the Court on the Petition for Supervised Administration of the
11
Estate of Ian Elliot. The petitioner is Joseph Wornack (hereafter "Womack.") [Dkt. I.]
12
Interested Person Cindy Elliot (hereafter "Cindy") has joined in seeking supervised
13
administration. [Dkt. 9 at 7.] Jenny Jing (hereafter "Jenny") and Ann Taylor Sargent (hereafter
14
"Ann") strongly oppose supervised administration. The Court took evidence through witness
15
testimony and admission of exhibits during a hearing on March 7, 2022 and April I, 2021
16 [Dkts. 25, 36.] Now the Court rnakes the following:

17 FINDINGS OF FACT

18 Introducing the Parties
19 1. The deceased is Ian Ray Elliot (hereafter "Ian"). Ian died on December 19, 2021.

20 2. Jenny was Ian's domestic partner.

3. Ann is Ian's ex-wife.
2]
4. Adrian Elliot Olson (hereafter "Adrian") is Ian's nephew.
22
5. Ex. B to Dkt. 7 is a copy of Ian's will. The will appoints Jenny and Ann as co-personal
23
representatives of Ian's estate. [Ex. B at 1 to Dkt. 7.] All parties agree the will is valid.
24

"Exhibit A"
 1 6. Ian was the son of Ada H. Elliot (hereafter "Ada") and one of two heirs to her Estate.

2 Ada passed away in January 2017. Before she died, Ian was appointed Ada's guardian
,
3 and Joyce Wuertz was appointed Ada's conservator.

7. Ian's sister Cindy is the other heir to the Estate of Ada Elliot.
4
8. The rnajor asset in Ada's Estate is StarFire, Limited Partnership (hereafter
"StarFire.")
Ian and Cindy are StarFire's two general partners. Cindy was StarFire's prirnary
6
manager and handled its business affairs. StarFire's primary asset is farrnland (called
7
the Ecton Ranch) in Gallatin County, Montana. Long before Ada passed, Ian and Cindy
8
had been embroiled in conflict and litigation over StarFii•e.
9
9. After Ada passed away, Ian sought appointment as personal representative of Ada's
10
Estate. At this point, lan was represented by counsel. Cindy objected. In June 2017,
11 Judge (now Montana Supreme Court Justice) Gustafson granted Cindy's petition
for
12 special administration. [DP 17-36, Dkt. 29.] In her order, Judge Gustafson directed
the
13 parties to confer and attempt to agree on a special administrator. Ian notified the Court

14 agreement could not be reached. [Dkt. 31.]

15 10. Ian requested Judge Gustafson arnend her prior decision. [DP ] 7-36, Dkt. 30.]

Approximately one month after the motion and supporting brief was filed, Ian's counsel
16
sought withdrawal. [DP 17-36, Dkt. 36.] Judge Gustafson permitted Ian's counsel to
17
withdraw. [DP 17-36, Dkt. 37.]
18
11. From this point forward, Ian represented himself. Concomitant with this self
19
representation, the Estate's adrninistration has been marred by contentious litigation.
20
12. Now self-representing, Ian appealed appointment of special administrator to the
21
Montana Supreme Court. The Montana Supreme Court affirmed Judge Gustafson
22 appointing a special administrator. In re Estate of Elliot, 2018 MT 171N, IN 1 1-12, 393
23 Mont. 538, 421 P.3d 795 (table opinion). The Court observed that Ian's "motion to alter

24

"Exhibit A"
 1 and amend and for reconsideration" requested "the [district] court...re-evaluate the

evidence and reach a different conclusion,...a request the [district] court was under no

3 obligation to honor." 2018 MT 17IN at IT 10.

13. After remand, Judge Knisely assumed jurisdiction on December 6, 2018. [DP 17-36,

Dkt. 54.] In May 2019, Judge Knisley appointed Duncan Peete as the Special
5
Administrator of Ada's Estate. [DP 17-36, Dkt. 60.] However, as Mr. Peete's law firm
6
previously represented Ian, Mr. Peete resigned. [DP 17-36, Dkt. 59.j Judge Knisely then
7
appointed Joe Womack as special administrator on May 30, 2019. [DP 17-36, Dkt. 60.]
8
Womack has been a licensed Montana attorney since September 1984. The Montana
9
Supreme Court described Womack as "the natural choice for liquidating partner given
10 his extensive experience and the disqualifying acrimony between" Ian and Cindy. In re
11 Estate of Elliot, 2022 MT 91N at 16.
12 14. The contentious litigation pursued by Ian referenced in Finding of Fact No. 11 supra

13 will be detailed ir?fra beginning with Finding of Fact 24. At this point, the Court turns to

14 Ian's nephew, Adrian Olson. Adrian provided compelling testimony regarding the role

15 ofJenny Jing, Ian's domestic partner in Ian's ongoing Iitigation strategy. Adrian also

offered important insight on the long-running family dispute between Ian and Cindy and
16
Adrian's efforts to resolve the conflici.
17
Jenny Jing's longstanding involvement in Ian's litigation
18
15. Adrian and Ian were very close. At one point, Ian had custody of Adrian. Adrian would
19
visit Ian in Montana yearly.
20
16. In 2013, on his way to Glacier National Park, Adrian spent a week in Billings. As a
21
mediator and peacemaker (the Iitigation between Cindy and Ian having destroyed the
22 family), Adrian proposed selling the entire Gallatin property. Ian and Cindy would then
23 equally split the proceeds. Cindy and Ian agreed.

24
3

"Exhibit A"
 1 17. Jenny Jing, Ian's domestic partner, became upset with Ian:
A heated argument ensued.
2 At one point, Jenny started screaming at Cindy. Adrian believe
d the conflict could turn
3 physical between Jenny and Cindy. To deescalate, Adrian's
girlfriend escorted him
away. When the proposal and explosive reaction happened, Adrian
did not know Jenny
well and was shocked how interested she was in the affairs
5 of Adrian's family. Adrian
cornrnented the situation "blew his mind." Jenny's disagreement
6 led Ian to reject
Adrian's proposal.
7
l 8. Due to Adrian's close relationship with Ian, Adrian attempting
to serve as peacemaker
8
in the dispute between Ian and Cindy, and his ability to recall details
of the meeting
9
almost nine years later, the Court deems Adrian's testirnony credib]
e and entitled to
10
great weight. Moreover, Womack detailed a timeline of events
early in his tenure as
11 special administrator of Ada's estate that similarly showcased
Jenny's involvement with
12 Ian and her perpetuation of the acrirnonious dispute between Ian
and Cindy. Womack
13 held a meeting with Ian, Cindy, and her attorney. Jenny was exclude
d from this
14 rneeting. During the meeting, Ian was very kind, and an agreement
was reached. After

15 the meeting (with Jenny now having access to Ian), Ian's positio
n diametrically
changed. Ian proclaimed Cindy, her attorney, and Womack were all lying
16 about the
outcome of the rneeting, which necessitated another hearing in
17 front of Judge Knisely.
19. Adrian testified Jenny assisted Ian with his court filings. On rnultipl
18 e occasions he saw
Jenny on a computer working on court documents. Adrian specifi
cally referenced
19
observing Jenny frequently on the computer over a two-week period
in 2017 (which
20
would be the early stages of DP 17-36, years before Womack was
appointed). In 2018,
21
Adrian observed Jenny working on legal matters. Adrian regularly
conversed with Ian
22 and Jenny regarding how much legal research and writing she comple
ted for Ian.
23

24
4

"Exhibit A"
 1 20. Adrian also compared Jenny's and Ann's filings in this case with Ian's pro se filings.

Adrian described Jenny's and Ann's filings as having the same style, headings, and

3 numbering as well as the sarne tactic of "objecting to everything" and "aggressive

statements."
4
21. Womack testified Jenny has appeared at every hearing and was at every meeting
5
Womack had with Ian. Jenny has attempted to speak during court hearings, and Judge
6
Knisely had to order her to stop speaking. The papers Jenny and Ann have filed in this
7
case have the same formatting as the papers Ian filed in Ada's probate case and have the
8
sarne type of inflammatory allegations that were in the papers Ian filed pro se, Ian told
9
Womack that Jenny helped with research throughout Ada's probate case.
10 22. Therefore, the Court finds Jenny has been heavily involved with Ian's decisions and
11 questionable litigation tactics for years, lfJenny serves as co-personal representative,

12 she will pick up where Ian left off. Jenny will not work with Womack. Jenny will

13 pursue litigation to the detriment of Ian's estate and the Estate of Ada Elliot. Such

14 actions will cascade to needlessly delay closure and squander Ian's Estate's remaining

assets.
15
23. The Court details below the expansive fora of Ian's pro se litigation.
16
Ian's Litigation Strategy
17
24. Cindy filed the case of SlarFire v. Ian Elliot, DV 2014-829 in Montana's Eighteenth
18
Judicial District before the Hon. Holly Brown. Cindy commenced that case to remove
19
Ian as a StarFire general manager. Ian represented himself.
20
25. Judge Brown said Ian "is cautioned that legally unfounded motions filed with the Court
21
can subject him to sanctions by the Court, including the payrnent of attorney's fees."
22 [DV14-829, Dkt. 67 at 4.] Judge Brown moreover "direct[ed Ian] to Rule 11,
23 M.R.Civ.P., specifically including Rule 11(b), relating to the representations made to

24
5

"Exhibit A"
 1 the Court by a party upon the filing of any pleading, motion, or other paper, and the

2 availability of sanctions for a violation of Rule 1 1 by a party." [Id.]

3 26. Judge Brown issued an order requiring mediation that also bolded for ernphasis

"[w]illful failure of a party to schedule, attend[,] and/or participate in good faith in the
4
mediation may result in...sanctions, up to and including...ent[ty of] default." [DV 14-
5
829, Dkt. 117.] Despite this clear, strong language, Ian filed a rnotion essentially asking
6
"the Court to...vacate its...[o]rder.. . requiring...mediation." [DV 14-829, Dkt. 119.]
7
Judge Brown denied this motion. [Id.] This case has been closed.
8
27. In Ada's guardianship/conservatorship case, DG 2014-132 in Yellowstone County, Ian
9
pro se moved to rernove Ms. Wuertz as conservator. [Dkt. 26.] Judge Gustafson denied
10 Ian's motion. [DG 2014-132, Dkt. 36.] Ian appealed, and the Montana Supreme Court
11 affirmed denial of rernoval. In re the Estate ofA.H.E., 2016 MT 315N, 12, 14, 16,
12 386 Mont. 395, 384 P.3d 1 14 (tabie opinion).

13 28. Nevertheless, in DV 18-536 in Yellowstone County, Ian filed suit against Terry Seiffert,

14 Joyce Wuertz, Michael Usleber and everyone else involved in the conservatorship,

including Glen Pike, Ada's and StarFire's accountant.
15
29. Uslebei• and his law firm moved to dismiss for failure to state a claiin. [DV 18-536, Dkt.
16
11.] In Montana, a litigant rnust satisfy a high threshold before obtaining such a
17
dismissal. "A dismissal under Rule 12(b)(6) is likely to be granted only in the unusual
18
case in which plaintiff includes allegations that show on the face of the complaint that
19
there is some insuperable bar to relief." Glaude v. State Compensation Ins. Fund, 894
20
P.2d 940, 942 (Mont. 1995). Despite this high threshold, Judge Harada dismissed all of
21
Ian's clahns that she was specifically asked to dismiss. [DV 18-536. Dkt. 28.]
22

23

24
6

"Exhibit A"
 1 30. Elliot v. Elliot, 1 :15-cv-00107 is a case Ian flied in the U.S. District Court for the

2 District of Montana. Ian accused Cindy and her d/b/a of negligence, fraud, and breach

3 of fiduciary duty in administering StarFire and taking care of Ada.

31. A settlement was reached between StarFire, Cindy, and Womack (on behalf of Ada's
4
Estate). Ian strenuously objected to the settlement. All but lan's derivative claims were
5
dismissed. Ian appealed the dismissal to the Ninth Circuit Court of Appeals. The Ninth
6
Circuit dismissed Ian's appeal for lack of standing. Ian's actions consumed money,
7
tirne, and a substantiai amount of effort. Ian's derivative claims were stayed pending a
8
complete accounting of StarFire.
9
32. Ian interfered with completion of this accounting. Ian sent the accountant an ernail
10
stating there was a restraining order against Womack which precluded Womack from
11 paying the accountant without consent of Ian or the Court. Not only was this email false

12 but also it resulted in the accountant temporarily stopping work, delaying completion of

13 the accounting.

14 33. DV 20-244 is a Yellowstone County case where Ian sued Wornack. Ian's multi-count

15 complaint alleged Womack's administration of StarFire and Ada's Estate breached

fiduciary duty and committed "negligence and/or abuse of discretion." [DV 20-244,
16
Dkt. 1 at 12 (internal emphasis omitted). Like DV 18-536, Judge Knisely dismissed this
17
case at the pleading stage. [Id., Dkt. 16.]
18
34. Ian, individually and derivatively on StarFire's behalf, filed DV 21-811, apro se
19
complaint against Womack in Yellowstone County. [Dkt. 1.] Ian's complaint raised
20
claims of fraud, constructive fraud, breach of fiduciary duty, and negligence. [ld. at 15-
21
17.] Ian surnrnarized his complaint in DV 21-811 as rewriting and refiling his complaint
22 that Judge Knisely dismissed in DV 20-244. [Ex. N at 6-7.] The proposed Amended
23 Complaint attached to Ian's Motion to Amend [dv 20-244, dkt.6] raises the same claims

24
7

"Exhibit A"
 (fraud, constructive fraud, breach of fiduciary duty, and negligence) as his complai
nt
[dkt. 1] in DV 21-811. This was improper procedure. One must appeal adverse
district
court decisions to the Montana Supreme Court, not subsequently refile them
in another

4 district court. Article II, Section 7 of the Montana Constitution gives the
Montana
Supreme Court exclusive appellate jurisdiction over Montana district
courts.
35. DV 21-811 is pending before the Honorable Ashley Harada (including Womac
k's
motions to dismiss and for summary judgment and Wornack's motion to have
Ian
7
declared a vexatious litigant). [DV 2 1-811, Dkts. 8, 10.] Along with violations
of
8
various Montana Rules of Civil Procedure, Womack is seeking dismissal based
on res
9
judicata and collateral estoppel. [DV 21-811, Dkt. 9.]
10
36. As referenced supra, DP 17-36 is the probate of Ada's Estate. Womack describe
d Ian's
11 pro se litigation as duplicative and repetitious, repeatedly raising the same points.

12 Review of DP 17-36 and Ian's extraordinary nurnber of filings therein reveals the

13 accuracy of Wornack's characterization.

14 37. Judge Knisely held a hearing on April 22, 2021. During the hearing, Judge
Knisely

15 orally ruled she had no intent "to entertain further objections to or attempted

interference with Womack's performance of his duties as...Special Administrator..
16 .."
[Ex. E-1 at 18. See, also, DP 17-36, Dkt. 151.]
17
38. After Judge Knisely's oral ruling, Ian told a broker "Womack's authority to sell
18
Starfire...property was still in dispute" and his later email to the broker suggeste
d
19
Womack lacked authority to sell StarFire real estate. [Ex. E-3 at 2.] Ian's
20
communications precipitated the broker withdrawing from listing and sale activitie
s.
21
Judge Knisely had to hold Ian in contempt and state her willingness to use
22 incarceration, "fines, and other severe measures" to force Ian's compliance with court
23

24

"Exhibit A"
 1 orders. [Ex. E-3 at 2.] It is remarkable Judge Knisely had to threaten incarceration to

2 achieve compliance with a court order.

3 39. Even before Judge Knisely issued fi ndings and conclusions, Ian moved for additional

findings and amended findings, to alter or amend the order, for a new trial, and to stay

the order. [DP 17-36, Dkt. 155.] lan previously argued his mere moving for an
5
injunction constituted a court order precluding Womack from paying expenses. [Ex. E-1
6
at 4-5. See, also, DP 17-36, Dkt. 130 at 2-3.]
7
40. The order denying Ian's motion to amend findings and for additional findings, to alter
8
or amend, or for new trial stated Ian's "current [m]otions include nothing more than
9
frivolous arguments to again delay the progress of this 2017 Estate proceeding to
10
closure." [Ex. E-2 at 4.] Judge Knisely said Ian "continues to frustrate the Court's
11 [o]rders and cause great difficulty and financial expense for the other parties." [Ex. E-2

12 at 4.]

13 41. On July 16, 2021, Ian moved to stay pending appeal, [DP 17-36, Dkt. 171.] Judge

14 Knisely denied this motion. [DP, 17-36, Dkt. 175.] Judge Knisely described Ian's

15 argument as "nonsensical," and another as "meritless." [DP 17-36, Dkt. 175 at 3-4.] The

order characterizes Ian's request for discovery as "a fishing expedition to support
16
motions containing baseless allegations." [Id. at 4.]
17
42. On Septernber 15, 2021, Ian petitioned the Montana Suprerne Court for Writ of
18
Injunction, Supervisory Control, or Other Appropriate Writ, Elliot v. Womack and
19
Elliot, OP 21-473, Petition. The Montana Supreme Court issued an order denying and
20
dismissing Ian's Petition. Elliot v. Womack and Elliot, OP 21-473, Order.
21
43. Ian then sought to remove Judge Knisely. On December 7, 2021, Ian requested
22 disqualification ofJudge Knisely alleging bias based on her previous rulings. [Ex. N.]
23 The Montana Supreme Court issued an order denying this request as void and stated

24
9

"Exhibit A"
 adverse rulings "cannot support disqualification." [Ex. E-4.] Ian seeking disqualifi
cation
2 led to yet rnore delay as all rnatters in Ada's Estate were halted until the Montana

3 Supreme Court issued a ruling. Adrian reviewed Ian's pro se litigation and was most

upset at Ian seeking disqualification. Adrian's sentiment reflects Montana Supreme
4
Court precedent.
5
44. "[A] judge's previous adverse rulings against a party do not constitute sufficient
6
evidence to demonstrate a judge's personal bias or prejudice against that party."
Siam. I,
7
Strang, 2017 MT 217, 1 25, 388 Mont. 428, 401 P.3d 690 (citing cases).
8
"Disqualify[ing] judges for bias was never intended to enable a discontented litigant
to
9
oust a judge because of adverse rulings rnade." Slate v. 2008 Mont. Dist. LEXIS
10
715, *16, 1 26 (20th Jud. Dist.) (internal quotation marks omitted) (quoting
Ex parte
11 American Steel Barrel Co., 230 U.S. 35, 43-44 (1913)).
12 45. Ian appealed Judge Knisely's orders in DP 17-36 to the Montana Supreme Court,
On
13 May 12, 2022, the Montana Supreme Court issued an unpublished opinion unanimou
sly
14 affirming Judge K.nisely. ln re Estate of Elliot, 2022 MT 91N, The Montana Suprerne

15 Court stated "[t]he record demonstrates that, however sincere he rnay have been,
lan
obstructed Womack's administration with constant litigation and unfounded
16
accusations." In re Estate of Elliot, 2022 MT 91N at ¶ 19. The Court also stated Ian
17
"filed numerous, lengthy motions objecting to almost every action by Womack, and
]8
even sued hirn twice personally." Id "[D]espite his oft-stated purpose to save money
for
19
the Estate, Ian's interference objectively and significantly increased costs and delays,
20
further necessitating the second sale. Womack spent a considerable amount of tirne
21
responding to Ian's various motions and lawsuits, tirne which was necessarily charged to
22 the Estate.- In re Estate of Elliot, 2022 MT 91N at ¶ 23.
23

24
10

"Exhibit A"
 1 46. The Montana Suprerne Court described Womack as "the natural choice for liquidating

2 partner given his extensive experience and the disqualifying acrirnony between" Cindy

3 and Ian. 2022 MT 91N at (II 16. "[R]ulings in favor of Womack do not equate to bias

against Ian." In re Estate of Elliot, 2022 MT 91N at 41127. The Court also described Ian's
4
position as "not the reality of the situation." Id. at ¶ 23. The Montana Supreme Court
5
stated "the accounting was essential to ending the seven years of litigation over StarFire
6
and the almost five years of litigation over the Estate." Id. at ¶ 23.
7
47. The orders and opinions referenced supra all regard motions or appeals Ian filed pro se.
8
This pro se litigation in multiple fora reveal troubling themes. The first was Ian's
9
willingness to make arguments unsupported by law or fact, and second was Ian's
10
unwillingness to accept adverse court rulings or comply with court orders. Ian's
11 objections have tremendously delayed, arguably by years, closing of Ada's probate case

12 and have caused exponential escalation of Womack's fees.

13 A special administrator must be appointed to avoid undue delay and a conflict
14 of interest.

15 48. The Montana Supreme Court stated "Ian similarly struggled to stay within the scope of

questioning and limit his arguments to the present issues during hearings." In re Estate
16
of Elliot, 2022 MT 91N at ¶ 28. This statement exactly describes Jenny's conduct
17
during the March 7, 2022 and April 1, 2022 hearings. Jenny's conduct revealed she
18
would frustrate administration of Ian's estate.
19
49. Jenny asked questions having nothing to do with whether to appoint a special
20
administrator. For example, Jenny asked questions regarding Ada's care in 2010 and
21
2011, around 11 years before the hearing. Also, Jenny repeatedly launched into
22
testimony while examining witnesses. The Court sustained countless objections on this
23 issue. However, Jenny persisted.

24

"Exhibit A"
 1 50. Jenny additionally asked questions and argued the Court needed to accept Ian's
will
after Womack and Cindy made clear at the start of the March 7 hearing they were not

3 challenging that will. Equally important, much ofJenny's questioning of witnesses
was
meant to cast aspersion on Womack, Cindy, and Adrian. This shows Jenny's lack
4 of
understanding that a special administrator would be neutral, making decisions
5 involving
the Estate after their own investigation and would not be an extension of Womack
6 or
Cindy.
7
51. During the hearings, Jenny demonstrated unwillingness to accept adverse
rulings.
8
During questioning by Ann, Womack characterized Jenny as dogmatic, argumen
tative,
9
and persistent with the same things over and over again. The Court believes
Womack's
10
testimony that how Jenny acted in this case is precisely what happened in DP
17-36.
11 52. Moreover, Jenny is incapable of working with Womack. Jenny insists on
having only
12 written communication with Womack, a position Ann adopted during the
first meeting
13 she had with Womack. The Court agrees with Womack's characterization
ofJenny's
14 feelings towards hint as anger and hatred.

15 53. As the March 7, 2022 hearing drew to a close, the Court asked Jenny
what she wanted,
and Jenny launched into an expansive narrative where she disparaged Womack
16 and an
attorney involved in Ada's conservatorship. Jenny described Womack as
17 "predatoiy"
and "not ethical." Of significant note, this is the exact language "Ian" used to
18 describe
Womack in his written motion to recuse Judge Knisely. [DP 17-36, Dkt.
188 at 2
19
("predatory" and "unethical") Dkt. 188 at 10 ("predatory.")] The fact that the sante.
20
precise language was used to disparage Womack is compelling evidence that Jenny
has
21
consistently engaged in ghostwriting of Ian's documents. Even if not so, Jenny
has fully
22 embraced Ian's long-terrn litigation strategy of casting Womack as an enemy which
will
23

24

"Exhibit A"
 inevitably delay closure of the Estate and further increase Womack's already mounting

fees.

3 54. During the March 7 and April 1, 2022 hearings, Jenny suggested Ian acted alone.

However, this claim is belied by Jenny's own sworn court filing opposing Womack's
4
petition. [See Dkt. 7.] In that filing Jenny acknowledged previously performing legal
5
research for Ian. [Dkt. 7 at 4.] She supported this acknowledernent by referencing a
6
transcript of a hearing in DP 17-36 where Ian testified Jenny assisted him with legal
7
research. [Dkt. 7 at 4 (citing Ex. D).] Ian said Jenny "helps me do research on when I'm
8
being falsely accused." [Ex. D to Dkt. 7.] Upon further questioning, Ian acknowledged
9
Jenny had helped him and referenced "legal advice." [Ex. D to Dkt. 7.]
10 55. Jenny finally answered the Court's question of what she wanted by stating she wanted
II Womack investigated. However, Judge Knisely in DP 17-36 refused lan's repeated

12 attempts to rernove Womack. [See Exs. E-1, E-2, DP 1 7-36, Dkt. 175.] The Montana

13 Supreme Court affirmed Judge Knisely's denial of rernoval and described Ian's position

14 as "not the reality of the situation." In re Estate of Elliot, 2022 MT 91N at WI 18,
23.

15 See, also, 11 19 ("Ian forced Womack to fight for virtually eveiy decision, even those

that the District Court expressly placed within his discretion, most notably obtaining
16 a
full accounting of StarFire. Womack nonetheless acted professionally as special
17
administrator and liquidating partner.")
18
56. Womack is not only the Special Administrator of Ada's Estate but also StarFire's
19
liquidating partner. The major asset of Ada's Estate is land still owned by StarFire.
20
Thus, whether it is a special administrator or a personal representative handling lan's
21
estate, that person must work with Womack. Jenny is incapable of doing so.

57. Moreover, if the Court appointed Jenny as co-personal representative, she would have a
23 conflict of interest due to financial records indicating Ian lent Jenny and her entity (Win

24
13

"Exhibit A"
 1 Win Star) a substantial amount of money. The conflict arises because Jenny disclaims

the full amount of the debt. During testimony, Jenny acknowledged Ian probably put

3 between $20,000 and $30,000 into her horne. However, when questioned about Ian

4 transferring_ $21,000 to Jenny during the last year of his life, Jenny denied the scope of

the transfers. She stated transfers probably totaled $2,000. Ian's financial records
5
admitted as evidence demonstrate Jenny vastly underestiinated the total amount of these
6
transfers—hence a conflict of interest arises.
7
58. Ex. V are bank statements covering activities in Ian's account from December 2020 to
8
December 2021, the time period in question regarding the financial transfers. These
9
bank statements show Ian transferred to Jenny or Jenny's entity, Win Win Star, a total
10 of $21,900. Jenny's debt to the Estate, the extent of which she denies incentivizes
11 Jenny to delay Estate administration.

12 59. Moreover, Ian asked Adrian for $25,000 in October 2021. This request took place after

13 Ian received $25,000 from Ada's Estate. Adrian was concerned about the amount of

14 money Ian needed. Also, Ian mortgaged his home (with a co-signor who is now

15 concerned about repayment) after StarFire previously paid off Ian's mortgage. Ian's

need for money, the independent financial evidence of substantial transfers of money to
16
Jenny or her entity, and Jenny's minimization of money she received from Ian further
17
reveal Jenny's conflict of interest.
18
60. Heightening the Court's concern is the plain language requirement in Ian's will (as
19
recounted supra and infra) that Ann and Jenny serve together as personal
20
representatives and "must act unanimously."
21
61. Ann was not a part of Ian's pro se litigation. Ann also was able to formulate relevant,
22 coherent questions and make her points during the hearing. However, Ann signed every
23 filing made in this case, and these filings are similar in tone to Ian's filings recounted

24
14

"Exhibit A"
 supra. The Court especially notcs the Memorandum of Law (signed by Ann and Jenny)

2 that states Ian's pro se litigation "should be able to survive and be carried out by [his]

3 estate." [Dkt. 35.01 at 9, 14.]

62. Even if Ann disagreed with Jenny's commitment to continue Ian's pro se litigation
4
tactics, as recounted supra, Ian's will nominates Ann and Jenny as co-personal
5
representatives. Moreover, Ian's will states "[m]y [p]ersonal [c]o-representatives must
6
act unanimously." [Ex. B at 3 to Dkt. 7.] The plain laiiguage of lan's will does not
7
empower the Court to appoint Ann as sole personal representative of Ian's estate.
8
63. Adrian supports special administration of Ian's estate. Adrian is an heir to Ian's estate.
9
As an heir, Adrian is concerned the absence of special adrninistration will lead to
10 continuing litigation, and the Estate incurring additional attorney's fees. Adrian opined
11 Ian's objection to everything and aggressive litigation strategy would continue if the

12 Court were to appoint Jenny and Ann as co-personal representatives of lan's estate.

13 64. Adrian expressed dismay at the time and rnoney lan wasted and that Ian passed away

14 before he could enjoy a single dollar of his inheritance. The Court shares Adrian's

15 incredulity at the result of Ian's pro se litigation strategy. Instead of enjoying inheriting

a substantial estate, Ian needed to borrow $8,000 from Womack in the 15 rnonths before
16
Ian died to repair liis home and his car and to pay for a doctor's visit, a tiine when Ian
17
also faced possible foreclosure on his horne and "serious credit card problems." [Exs. L
18
and M.]
19
65. Lastly, Jenny and Ann observed that even if the Court rnade them co-personal
20
representatives, they would still need to hire a Montana attorney to represent the Estate
21
in court. This does not obviate the need for a special administrator. A special
22
administrator rnust act in the best interest of the estate. See In re Estate of Elliot, 2022
23 MT 91N at 1124. As discussed extensively supra, the Court finds Jenny and Ann would

24
15

"Exhibit A"
 1 frustrate administration of the Estate. Jenny and Ann having to hire
an attorney would
2 not impact their intent, motivation, or intransigence toward Womack.

3 CONCLUSIONS OF LAW
1. To the extent any preceding Finding of Fact is better suited
4 as a Conclusion of Law or a
Conclusion of Law is better suited as a Finding of Fact, they are
5 hereby stated as such.
2. The Court has jurisdiction to determine whether to grant Woma
6 ck's Petition for
Supervised Administration that Cindy joined.
7
3. Under M.R, Evid. 202(b)(6) lrjecords of any court of this
state or of any court of
8
record of the United States" are proper subjects of judicial notice
. Court orders in DV
9
14-829 (Montana's Eighteenth Judicial District) and court orders
in DG 14-132, DV 18-
10
536, DP 17-36, DV 20-244, and DV 21-811 (all of Monta
na's Thirteenth Judicial
11 District) constitute "records of any court of this state." See,
also, Stale v. Homer, 2014
12 MT 57, ¶ 8, 374 Mont. 157, 321 P.3d 77 (internal citation omitte
d) (M.R.Evid.
13 202(b)(6) encompasses "prior proceedings in other cases.
. .and...in the same case.")
14 The Montana Supreme Cotes opinions at 2016 MT 315N,
2018 MT 171N, and 2022

15 MT 91N, its order denying Ian's writ petition in OP 21-473
, and its order denying as
void Ian's request to recuse Judge Knisely in PR 21-0001 are also
16 records of a Montana
court. The court file in the federal court case between Cindy
17 and Ian constitutes a
"Necord...of any court of record of the United States." Thus,
18 the Court can take
judicial notice of the court files in these cases.
19
4. Judicial notice is proper because what Judge Brown, Judge
Knisely, the federal court,
20
and the Montana Suprerne Court said about and how they ruled
on Ian's pro se
21
litigation "is not subject to reasonable dispute." See In re Marriage
of Carter-Scanlon,
22 2014 MT 97, 22-23, 374 Mont. 434, 322 P.3d 1033. A court order or opinio
n speaks
23 for itself. See Gray v. Beverly Enterprises-Mississippi, Inc., 390 F.3d
400, 407, fn. 7
24
16

"Exhibit A"
 1 (5th Cir. 2004) ("[T]he fact that a judicial action was taken is indisputable and is

2 therefore amenable to judicial notice.") During the March 7, 2022 hearing neither Jenny

3 nor Ann objected to the request for judicial notice. Moreover, the Court indicated it

would take judicial notice during the April 1, 2022 hearing in response to Jenny's
4
questions about Ian's federal case.
5
5. M.R.Evid. 202(d)(2) states "[a] court shall take judicial notice [of records of Montana
6
courts and federal courts of record] when requested by a party and supplied with the
7
necessaty information." Wornack, as petitioner for supervised adrninistration, has
8
requested judicial notice and supplied the Court with the necessary information to take
9
such notice. [Dkt. 23.] During the March 7, 2022 hearing Cindy, as an interested
10 person, also asked the Court to take judicial notice, and offered as exhibits the
11 documents needed to take such notice. Thus, the Court must take judicial notice of Ian's

12 pro se litigation analyzed supra.

13 6. "A special administrator may be appointed. . ..in a formal proceeding by order of the

14 court on the petition of any interested person and finding, after notice and hearing, that

15 appointrnent is necessaty to preserve the estate or to secure its proper administration,

including its administration in circurnstances where a general personal representative
16
cannot or should not act." Mont. Code Ann. § 72-3-701(2).
17
7. Appointing a special administrator "is necessary to preserve [Ian's] estate or to secure
18
its proper adrninistration." As explained more fully supra, Ian's pro se litigation in
19
multiple fora has revealed his willingness to make arguments unsupported by law or
20
fact and his unwillingness to accept adverse court rulings or comply with Court orders.
21
Judge Brown warned Ian he could face sanctions frorn filing legally unfounded motions
22 and referred him to M.R.Civ.P. 11. Judge Knisely has described Ian's arguments as
23 "frivolous," "nonsensical," and "inei•itless" and his allegations as "baseless." The

24
17

"Exhibit A"
 Montana Supreme Court denied Ian's request to disqualify Judge Knisely as void. Judge

Knisely had to hold Ian in contempt and threaten him with incarceration to obtain his

compliance with court orders.

4 8. Jenny was inextricably intertwined with Ian in his pro se litigation. As recounted rnore

fully supra, Adrian observed Jenny multiple times on a computer working on court
5
documents. Ian and Jenny openly conversed with Adrian about the legal research and
6
writing she regularly did for Ian. Jenny has appeared at every hearing with Ian and at
7
every meeting Ian and Womack had. jenny's confrontational and accusatory attitude
8
towards Ian's litigation is longstanding. In 2013, Jenny exploding at Adrian's proposed
9
settlement led Ian to reject the proposal. Adrian described Jenny's interest in Ian's
10
litigation as shocking. Jenny's pro se filings in this case are similar to Ian's pro se
11 filings in formatting, style. and confrontational and aggressive tone.

12 9. During the March 7 and April I, 2022 hearings, Jenny demonstrated the same

13 "struggle[s] to stay within the scope of questioning and limit...arguments to the present

14 issues during hearings" that the Montana Suprerne Court observed of Ian. See In re

15 Estate ofElliot, 2022 MT 91N at 1128. Jenny has argued about and asked questions of

witnesses to support the validity of Ian's will even after Womack and Cindy said in
16
open court they were not challenging Ian's will. Jenny has opposed supervised
17
administration by attacking Womack and Cindy even after she was told repeatedly a
18
special administrator would make decisions independent of Womack and Cindy. Jenny
19
repeatedly testified while asking questions. Jenny repeatedly asked irrelevant questions.
20
Jenny asked the sarne questions over and over after answers were given. The Court
21
sustained countless objections to her questions.
22 10. The Court acknowledges Ann's ability to concisely question and succinctly make her
23 points during the hearing as well as Ann having no part in Ian'spro se litigation.
24
18

"Exhibit A"
 Nevertheless, Ann has joined each ofJenny's accusatory and confrontational pro se

fi lings in this case.

3 11. Moreover, as recounted supra, Ian's will specifically narnes Jenny and Ann as co-

personal representatives and requires their unanimity to act. The Court must respect
4
Ian's intent that Jenny and Ann both be personal representatives and not appoint Ann as
5
a single personal representative.
6
12. Ann's and Jenny's chief argument against appointing a special adrninistrator is Ian's
7
will appointed thern co-personal representatives of his estate. [Dkt. 35.01.] However,
8
Mont. Code Ann. § 72-3-701(2) does not state a special administrator can be appointed
9
only in the absence of a will nominating a personal representative. The Court cannot
10 edit a Montana statute. Mont. Code Ann. § 1-2-101. Moreover, testator intent does not
11 overrule the statute's plain language. In re Estate of &utter, 189 Mont. 244, 615 P.2d

12 875 (Mont. 1980). In Sauter, the Montana Supreme Court observed testator intent was

13 for Mr. Werner to serve as personal representative. Sauter, 189 Mont. at 245-46, 249,

14 615 P.2d at 876, 878. Nevertheless, the Montana Supreme Court applied the plain

15 language of Mont. Code Ann. § 72-3-701 to reverse the district court and to order

appointment of a special adrninistrator regarding the fate of an alleged estate claim that
16
Mr. Werner's law partner had been defending. 189 Mont. at 248, 250-51, 615 P.2d at
17
877-79. See, alsoin re Estate of Franchs, 722 P.2d 422, 424 (Colo. Ct. App. 1986)
18
(When the record supports the necessity of appointing a special administrator "to
19
preserve the estate and to secure its proper administration," "the probate court did not
20
abuse its discretion in appointing a...special administrator, despite spouse's statutory
21
priority for appointment as personal representative,"); "[A] common thread in all of the
22 foregoing provisions is that appointment of a special administrator is appropriate only
23 where action or inaction by the personal representative designated by the decedent may

24
19

"Exhibit A"
 be adverse to the interests of the decedent's estate." Relf v. Shatayeva, 998 N.E.2d 18,

2 32, 7 51 (III. 2013).

3 13. As recounted rnore fiilly infra, Ann and Jenny have cited caselaw from other

jurisdictions on rernoving a personal representative. The Court agrees caselaw
4
analyzing removal of personal representative sheds light on whether to grant special
5
administration. Under Montana law, - a person interested in the estate may petition for
6
rernoval of a personal representative for cause at any tirnc." Mont. Code Ann. § 72-3-
7
526(1)."Cause for removal [of a personal representative] exists...when removal would
8
be in the best interests of the estate." Mont. Code Ann. § 72-3-526(2)(a). Montana law
9
authorizing a court to ren-tove a personal representative for cause further supports
10 testator intcnt does not defeat a petition for special administrator.
11 14. The Montana Suprerne "Court has given broad authority to district courts to remove

12 personal representatives so long as the grounds for such rernoval are 'valid and

13 supported by the record.'" In re Estate of Boland, 2019 MT 236, ¶ 55, 397 Mont. 319,

14 450 P.3d 849. See, also, In re Estate of Anderson-Feeley, 2007 MT 354, 7 9, 340 Mont.

15 352, 174 P.3d 512 ("[W]e will not overturn a removal unless there is clear abuse of

discretion."); In re Estate of Elliot, 2022 MT 91N at ¶ 21. In Boland, the testatoes will
16
nominated two of his children as co-personal representatives of his estate. 2019 MT 236
17
at 7 2. The will's explicit nomination did not prevent the Montana Supreme Court from
18
affirming removal of a co-personal representative based inter alia on § 72-3-526. See
19
Boland, 2019 MT 236 at 77 55-58. "The pleadings, testirnony, and extensive litigation
20
and harassment show[s the co-personal representative's] pattern of hostility towards
21
opposing counsel." 2019 MT 236 at 57. Ian objecting to virtually everything Wornack

sought to do--necessitating a response and a hearing--constitutes a pattern of hostility.
23

24
20

"Exhibit A"
 1 As recounted supra, Jenny's conduct during the March 7, 2022 and April 1, 2022

2 hearing shows she despises Womack and will not work with him.

3 15. In affirming removal of the co-personal representative, Boland additionally observed

the co-personal representative's "out-of-bounds conduct has produced a multitude of
4
cases, repetitive motions, unnecessary delay and costs, factual contentions lacking in
5
evidcntiaiy support, and legal rnaneuvers unwarranted by existing law." 2019 MT 236
6
at 1157. Unfortunately, as explained supra, Ian's pro se litigation strategy and tactics
7
(with which Jenny played an integral role) have also featured out-of-bounds conduct
8
resulting in each of the effects listed in I3oland. The Court has already enumerated Ian's
9
repetitive motions, factual arguments without evidence, and legal arguments totally
10 unsupported by precedent. Ian's strategy of opposing alrnost everything Womack has
11 done resulted in delaying the closing of Ada's Estate, arguably for years, and

12 exponentially increasing fees. Ian created a multitude of cases staggering in scope. He

13 sued everyone involved in Ada's conservatorship in a case pending before Judge

14 Harada. He sued Womack personally in a case that Judge Knisely dismissed, and his

motion to disqualify her from Ada's probate case confirms that rather than properly
15
appeal dismissal, he refiled the same case before another Yellowstone County District
16
Judge. Ada's probate case spans nine files and has reached a staggering 194 docket
17
entries. Utile Court were to appoint Ann and Jenny as co-personal representatives, this
18
number would only increase further as Jenny will carry out Ian's decision to oppose the
19
accounting, a decision he niade before the accounting was complete. The Court notes
")0
the finished accounting is very favorable to Ian.
21
16. The Montana Supreme Court has also affirmed removal of a personal representative
22 under § 72-3-526 upon a district court's specific finding "that significant hostility and
23 alienation existed between Robert and the Sisters and that Robert's removal would

24
71

"Exhibit A"
 1 enable an expeditious settlement and closure of the estate." In re Estate of Greenhec
k,
2 2001 MT 1 14, Tif 19-20, 305 Mont. 308, 27 P.3d 42. As recounted supra, hostility and

3 alienation characterized Ian's interaction with Womack, and everything the Court

4 observed from Jenny during March 7 and April 1, 2022 hearing confirms she
has the
sarne hostile attitude towards Wornack that Ian did. Ann has also indicated her lack
5 of
trust in Wornack by insisting in their veiy first meeting that all communications
6
between them be in writing. The presence in this case—of reasons the Montana
7
Suprerne Court has previously utilized to affirm removing a personal representative—
8
further support granting special administration.
9
17. "The existence of a potential claim against Feeley is sufficient to create
a conflict of
10
interest, and such conflict of interest is sufficient for reinoval of Feeley
as personal
11 representative ofJan's estate." Estate ofAnderson-Feeley, 2007 MT 354 at II
13. As
12 recounted supra, the Estate has a claim against Jenny for the money Ian lent
her. Under
13 Feeley, this is sufficient for a conflict to interest to exist that warrants removing
a
14 personal representative. This case has the additional features of Jenny significantly

15 minimizing the arnount of money Ian lent her despite documentary evidence to
the
contrary, Ian taking out a mortgage on his horne (with the co-signor now worried about
16
repayment) even though StarFire had previously paid off his mortgage, and Adrian
17
expressing concern about the amount of rnoney Ian claimed to need in the months
18
before Ian's death.
19
18. Ann and Jenny argue Wornack lacks standing to seek special administration because
he
20
is not a creditor. [Dkt. 35.01 at 2.J Judge Knisely issued an order approving an
21
"[a]greement for StarFire...to Make Loans to Limited Partners and Heirs." [Ex. Z.J
22 Moreover, in correspondence with Womack, Ian called the transaction a "loan." [Ex. L.]
23 Therefore, Womack is a creditor.

24

"Exhibit A"
 1 19. Ann and Jenny assert challenging appointment of personal representative circumvents

2 their demanded jury trial. [Dkt. 35.01 at 3.] As recounted supra, district courts have

3 "broad authority...to remove personal representatives." See, also, In re Estate ofElliot,

2022 MT 91N at II 26 (rejecting Ian's claimed right to a jury trial).
4
20. Ann and Jenny quote In re Estate ofKuralt, 2000 MT 359, ¶ 14, 303 Mont. 335, 15
5
P.3d 931. [Dkt. 35.01 at 7.] Kuralt does not analyze Mont. Code Arm. §§ 72-3-701 or
6
72-3-526.
7
21. "In 1974, Montana adopted a version of the Uniform Probate Code." Northland Royalty
8
Corp. v. Engel, 2014 MT 295, ¶ 9, 377 Mont. 11, 339 P.3d 599. Ann and Jenny discuss
9
case law from the Montana Supreme Court that predates Montana's adoption of the
10 Uniform Probate Code. [Dkt. 35.01 at 3, 5-7, 9.] These cases cannot alter the plain
11 language of Mont. Code Ann. §§ 72-3-701 or 72-3-526. The Court nonetheless observes

12 Ann and Jenny quote Justice Milburn's concurring opinion in State ex rel. Eakins v.

13 District Court, 34 Mont. 226, 85 P. 1022 (Mont. 1906). [Dkt. 35.01 at 4.] Justice

14 Milburn's concurrence instructs the probate court "to save as much as possible of the

15 assets for those to whom they belong." 34 Mont. at 232, 85 P. at 1024. See, also,

Gonzales v. Yaunick (In re Estate of Gonzales), 977 P.2d 1284, 1287 (Wyo. 1999)
16
("[T]he aim of probate procedure is the speedy settlement and adjudication of rights in
17
the property of a decedent to the end that those entitled to share may have the fullest
18
benefit of the right which the law gives them at the earliest moment consonant with due
19
process and orderly procedure.") This langUage strongly supports granting special
20
administration. As recounted supra, the largest asset of Ada's estate is land presently
21
held by StarFii•e. Judge Knisely denied Ian's repeated requests to remove Womack, and
22 the Montana Supreme Court unanimously affirmed her denials. Thus, a special
23 adrninistrator or personal representative of Ian's estate must work with Wornack.

24
23

"Exhibit A"
 1 Jenny's conduct reveals animosity toward Womack and incapability of working with

2 him. Meanwhile, Ian's will requires Jenny and Ann act unanimously as co-personal

3 representatives. Therefore, saving as rnuch of Ian's estate as possible for Ian's heirs
is

4 incornpatible with appointing Jenny and Ann as co-personal representatives.

22. Ann and Jenny quote /n re Esiale of- Willman, 2001 MT 109, 305 Mont. 290, 27
5 P.3d
35. [Dkt. 35.01 at 10.] Wiltinan states lin]ere suspicion that undue influence may
6 have
or could have been brought to bear is not sufficient." 2001 MT 109 at 1121 .
As shown
7
supra, regardless of the level of.lenny's influence, much more than mere suspicion
8
supports the Court's finding that appointing Ann and Jenny as co-personal
9
representatives will perpetuate Ian's pro se litigation strategy of argumen
ts lacking
10
evidentiary or precedential support and Ian's unwillingness to accept adverse
court
11 rulings or to comply with court orders.
12 23. Moreover, Ann and Jenny argue "a decedent's pending actions should
be able to survive
13 and be carried out by the decedent's estate" and cite Mont. Code Ann.
§ 27-1-501 . [Dkt.
14 35.01 at 9.] Mont. Code Ann. § 27-1-501 states - the action or defense survives
and may

15 be maintained by the party's representatives or successors in interest.
" (emphasis
added). "[M]ay' is permissive." Gaustad v City of Colwnbus an re Investiga
16 tive
Records of the 00) of Colwnbus Police Dep'0, 272 Mont. 486, 488, 901 P.2d
17 565, 567
(Mont. 1995). Thus, contrary to Ann's and Jenny's position, a personal represen
18 tative
has discretion to continue litigating Ian's cases. The Montana Supreme
Court said
19
"[w]hen the law created a rnechanism whereby one person as a represen
tative of a group
20
could conduct litigation, the purpose was the efficient, speedy, and orderly
21
determination of rights which were held in common." State ex rel. Palmer District
v.
22 Court, 190 Mont. 185, 189, 619 P.2d 1201, 1203 (Mont. 1980). Neither efficient,
23 speedy, nor orderly can describe Ian's scorched earth legal campaign that accompl
ished
24

"Exhibit A"
 1 little but wasted time and money while ensuring Ian could not enjoy when alive the

benefits of a substantial inheritance.

3 24. Ann and Jenny quote decisions of other state and federal courts to support their

argument that the Court must defer to Ian selecting them as co-personal personal
4
representatives. [Dkt. 35.01 at 11-13.] However, granting special administration would
5
not be the outlier this list makes it seern. First, of the listed states, Arizona and
6
Wisconsin have similar statutes. See Arizona Rev. Stat. § 14-3614 (Allowing
7
appointment of special administrator upon necessity "to preserve the estate or to secure
8
its proper administration,Th Wis. Stat. § 867.07(7) ("Other circumstances exist which in
9
the discretion of the court require the appointment of a special administrator.")
10 25. Second, Jenny and Ann quote Estate ofBuchman, 267 P.2d 73 (2d Dist., Cal. Ct. App.
11 1954). [Dkt. 35.01 at 11.] Buchman quotes the maxim Jenny and Ann reference, i.e.

12 "whorn the testator will trust so will the law." Compare 267 P.3d at 81 with [Dkt. 35.01

13 at 6 (emphasis oniitted).] Significantly, Buchman also states "[a] testator's selection of

14 an executor should not be annulled except on a clear showing that the best interests of

15 the estate require it." 267 P.3d at 80. As shown supra, the best interests of this estate

require special administration.
16
26. Third, Jenny and Ann quote In re Estate ofkhnnma, 41 A.3d 41 (Pa. Super. 2012).
17
[Dkt. 35.01 at 12.] Mumma states "rernoval of a personally chosen individual is thus
18
considered to be a 'drastic remedy' that requires clear and convincing evidence of a
19
substantial reason for removal." 41 A.3d at 50. However, 20 Pa.C.S. § 3182(5)
20
authorizes "[t]he Court...to remove a personal representative.. .when, for any other
21
reason, the interests of the estate are likely to be jeopardized by his continuance in
22 office." Analyzing its precedents, Pennsylvania's high court has instructed when ill-
23

24
15

"Exhibit A"
 1 feeling runs so deep as to harm the estate's best interest, it warrants removal even if the

testator chose the executor. Ill re Estate of Lux, 389 A.2d 1053, 1060 (Pa. 1978).

3 27. Fourth, Ann and Jenny quote West Virginia law. [Dkt. 35.01 at 13-14.] West Virginia's

4 high court has stated "[o]ne may be considered unsuitable for the appointment...who is

otherwise so advcrsely interested to heirs, creditors, or other kindred, as to prejudice the
5
due settlement of the estate, if it be placed under his charge." Smith v. Harmer, 64
6
S.E.2d 481, 486 (W.V. 1951).
7
28. Fifth, Ann and Jenny reference Florida law. [Dkt. 35.01 at 11.] Florida's Fourth District
8
Court of Appeal affirmed denying appointment of a will's nominee as personai
9
representative upon the finding "it is apparent that if [the nominee] were to be appointed
10
as a personal representative, this Estate would be locked in endless and unnecessary
11 litigation that would irnpede the adrninistration of this Estate." Boyles v. Jimenez, 330
12 So. 3d 953, 959-60 (Fla. 4th Dist. Ct. App. 2021). See, also, Hernandez v. Hernandez,

13 946 So. 2d 124, 127 (Fla. 5th Dist. Ct. App. 2007 ("Where a dispute will cause

14 unnecessary litigation and impede the estate's administration, and either the person lacks

15 the character, ability, and experience to serve or exceptional circumstances exist, the

totality of circumstances rnay permit the court to refuse to appoint the personal
16
representative named in the will.")
17
29. Other persuasive precedents exist warranting granting special administration. "Where,
18
however, the designatcd person is in a position or has acted in a manner antagonistic
19
toward the interests of the estate or the heirs in a way indicating that his administration
20
of the estate would probably result in prolonged and unnecessary difficulty or expense,
'71
then such a person should not be appointed as executor." In re Estate of Petty, 608 P.2d
22 987, 995 (Kan. 1980) (emphasis added). A finding of unsuitability for appointment as
23 executor "may also be based upon. ..a mental attitude...towards some person interested

24
26

"Exhibit A"
 1 in the estate that creates reasonable doubt whether the executor or administrator will act

honorably, intelligently, efficiently, promptly, fairly and dispassionately in his trust."

3 Tiffany v. Tiffany (In re Estate of Ragan), 541 N.W.2d 859, 861 (Iowa 1995). The

Indiana Court of Appeals affirmed removing a personal representative upon evidence
4
supporting "animosity and ill-feeling, and the effect that it had upon the orderly
5
administration of the estate." Estate of Jaworski v. Jaworski, 479 N.E.2d 89, 92 (Ind.
6
Ct. App. 1985). "[W]here ill wili exists which would result in more litigation the court
7
may appoint any suitable person even if that person is outside of the family." In re
8
Estate ofJones, 93 P.RI 147, 156 (Wash. 2004).
9
30. The Court does not lightly appoint a special administrator. See In re Estate of Hannwn,
10
2012 MT 171, IN 28, 33, 366 Mont. 1, 285 P.3d 463 (Disfavoring removal of a personal
11 representative, and instructing "removal is harsh and severe, and irregularities that are

12 not directly harmful will be overlooked, and if the court can remedy the matter readily,

13 no removal will be ordered."); See, also, In re Estate of Elliot, 2022 MT 91N at 1 7-
14 18. As recounted supra, Jenny was heavily involved with and will continue Ian's pro se

15 litigation tactics. Jenny will not work with Womack despite multiple courts refusing to

remove him. Further, Womack is the liquidating partner of StarFire, the holder of the
16
biggest asset of Ada's estate, which will be the biggest asset in Ian's estate, Jenny's
17
strategy is directly harmful to Ian's estate because it will only delay closure of Ian's
18
Estate (and Ada's Estate which has been pending for almost 5 years) and will greatly
19
increase expenses, i.e. Womack's fees (already significantly increased due to Ian's
20
tactics). Unfortunately, the only ready remedy is to grant special administration. This
21
finding is compounded by Ian's will nominating Jenny and Ann as co-personal
22 representatives and requiring them to act unanimously. These are extrcrne and special

23

24
27

"Exhibit A"
 1 equitable circurnstances warranting appointing a special administrator. See ln re Estate

2 of Long, 225 Mont. 429, 437, 732 P.2d 1347, 1352 (Mont. 1987).

3 31. The Court provided a substantial amount of tirne to the parties to present their case.

Over two days, the Court received approximately 12 hours of testimony. However,
4
Jenny provided virtually no pertinent evidence to oppose Womack's Petition for Special
5
Administration that Cindy joined.
6
32. "The District Court has broad discretion in deterrnining issues relating to trial
7
adrninistration." Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431; 291 P.3d 1140.
8
"One matter of 'trial administration' is the establishment by the court of 'a reasonable
9
tirne limit on the time allowed to present evidence." 2012 MT 304 at 11 18. In Fink, the
10
Montana Supreme Court observed the parties had ample notice of the reasonable
time
11 they had to present their case. Fink, 2012 MT 304 at11 18.

12 33. During the Court's March 7, 2022 hearing, Cindy was provided approximately six
hours
13 to present her case. [Dkt. 25.] Cindy's case ended at 4:14 p.m. [Dkt. 25.] Womack,

14 Adrian, and Ann did not have any witnesses. [Dkt. 25.] The Court then asked Jenny
if

15 she had witnesses. Jenny said yes but observed they were not in the Courtroo
m. Jenny
did not subpoena her witnesses in advance despite having six weeks advance notice
16 of
the time set for hearing. [See Dkt. 3.]
17
34. Upon learning Jenny had not subpoenaed witnesses despite the extensive notice, the
18
parties objected to Jenny having further opportunity to call witnesses. Nevertheless, the
19
Court said it would schedule a second day of trial to facilitate Jenny's case. Jenny
then
20
began her case and recalled Adrian as a witness. Before the March 7, 2022 hearing
21
ended, the Court reiterated its oral ruling by referencing a second day for Jenny to
22 "finish presenting her testimony and calling any witnesses she intends to call."
23

24
28

"Exhibit A"
 1 35. The second day was scheduled for April 1, 2022. At this hearing, the Court provided

Jenny with approximately six additional hours, resulting in more time than Cindy had to

3 present her case. Although the Court provided a greater amount of time to Jenny, the

4
Court commented after hours of testirnony on April 1, 2022 that it had received

"virtually no relevant information" on the issue of appointing specia] administrator.
5
Before the Court broke for the lunch recess, the Court informed Jenny "this is ending
6
today, so you better get to it." At around 2 p.m. on April 1, 2022, the Court told
Jenny
7
her tirne to present evidence would end at 4 p.m. that day. The Court additionally
8
repeatedly reminded Jenny of the 4 p.rn. deadline as it drew closer. Thus, this case
is
9
similar to Fink where the Montana Suprerne Court observed the trial court divided
the
10
two days set for trial "almost equally between the parties." 2012 MT 304 at ¶ 19. Jenny
11 had sufficient opportunity to present her case. She neither presented compelling
12 evidence to oppose special administration nor to support her nomination as co-perso
nal
13 representative.

14 Therefore, IT IS HEREBY ORDERED that Womack's Petition for Supervised

15 Administration that Cindy joins is GRANTED. The Court HERE13Y APPOINTS Andrew

Billstein, Esq. as Special Administrator of Ian's Estate.
16
IT IS SO ORDERED.
17
DATED: this e?...) ed day of , 2022.
18

19

20
Hon. Rod Souza, 'ourt Judge
21
cc: Ann Taylor Sargent (via email) ann2022ian@ramail.com

Jenny Jing (via email) jennvianmt(@,ernail.corn
23
Joseph Womack, Esq. (via email) iwomackejvwlaw.com
24
29

"Exhibit A"
 1
Cindy Elliot, via Jeffrey A. Humes, Esq. (via email) jhunnesafeltmartinlaw.com
2
Cindy Elliot via Joseph Soueidi, Esq. (via email) jsoueidi Rc feltmartinlaw.com
3
Adrian Olson (via ernail) aceleastronaravahoo.com
4
W. Scott Green, Esq. (via email) sereeneopbalaw.com
5

6 Holly Marie Dudley (via ernail) MotherHollyeamail.com

7 Emily Sapp (via email) emilvesappagmail.com

8 Mike Bolenbaugh (via email) m.bolenbaugh@ernail.com

9
Alice Carpenter (via email) tio2u2doOarnail.com
10
Shelley Paterson (via ernail) pattersonss@yahoo.corn
1
Ray Ecton & Ian Elliot Trust, via email to Jenny and Ann at their emails supra
12
Andrew Billstein, Esq. (via email) andrew@bmslaw.com
13

14
CERTIFICATE OF SERVICE
15 This is to certify that the foregoing was duly served by email/mail or hand
delivery upon the pat ies or their attorneys of record at their last known
16 addresses this .e9Z.lay of -.4LAn .
17 BY
Judici ssistant to Hon. iza
18

19

20

21

22

23

24
30

"Exhibit A"
 CLERK OF THE
Joseph V. Womack EICTRICT CO
WOMACK & ASSOCIATES, LLC
1001 S. 24th St. W., Ste. 318
Billings, MT 59102 NZ? JUL I A cl: 45
Phone: (406) 252-7200 HLED
Email: jwornack@ivw1aw.com

Special Administrator for the D:.,-U
Estate of Ada E. Elliot and Liquidating
Partner of Starfire, SP
Interested Parties to this Proceeding

MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY

IN THE MATTER OF THE Case No.: DP-22-0034
ESTATE OF
Hon. Rod Souza
IAN RAY ELLIOT,

Deceased.

NOTICE OF ENTRY OF FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER GRANTING PETITION FOR SUPERVISED ADMINISTRATION THAT
INTERESTED PERSON JOINED AND APPOINTING SPECIAL ADMINISTRATOR

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

Pursuant to Rule 77(d), M.R.C.P., you will please take notice that on May 23, 2022,

Findings of Fact, Conclusions of Law and Order Granting the Petition of Joseph Womack for the

Supervised Administration of the Estate of Ian Elliot that Interested Person Cindy Elliot joined

were entered in the foregoing cause and the Court appointed Andrew Billstein, Esq. as Special

Administrator of the Estate of Ian Ray Elliot.

A true copy of the Findings of Fact, Conclusion of Law and Order Granting Petition for

Supervised Administration that Interested Person Joined and Appointing Special Administrator is

"Exhibit B"
 1 Supervised Administration that Interested Person Joined and Appointing Special Administrator i

attached hereto as "Exhibit A" and is being served upon you at this time.
3
'77
RESPECTFULLY SUBMITTED this day of July, 2021.
4

5 WOMACK & ASSOCIATES, LLC

6
By:
7 /JoseA V. Womack, Attorney and)
8 Special. Administrator for the
Estate of Ada E. Elliot and Liquidating
9 Partner of Starfire, LP

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

"Exhibit B"
 CERTIFICATE OF SERVICE
1, the undersigned, do hereby certify that on the 7'6. day of , 2022, I rnailed
and emailed a true and correct copy of the foregoing by the method shown elow or addressed to
the following interested parties:

Jeffery A. Hunnes Ann Sargent
Felt Martin, P.C. 210 W. Grant Street, Apt. 202
2825 3rd Ave. N., Ste. 100 Minneapolis, MN 55403-2243
Billings, MT 59101 Email only to: ann2022ian@gmail.corn
Attorneysfor Cindy Elliot
Email only to:jsoueidi(iffeltmartinlaw.corn

Adrian Elliot Olson Jenny Q. Jing
9 Grant Street, Apt. A 10 Alpine Pl.
Redlands, CA 92373 Kearny, NJ 07032-1608
Email only to: acelegstrong ahoo.com Email only to: jennviamtaginail.corn

Holly Marie Dudley Ray Ecton & Ian Elliot Trust
1226 Hallinan Circle Jenny Jing and Ann Sargent
Lake Oswego, OR 97034 6540 Amsterdam Rd.
Email only to: MotherHolly@grnail.com Manhattan, MT 59741
Email only to: ientwianrnagmail.com
Ray Ecton & Ian Elliot Trust Alice Carpenter
Jenny Jing & Ann Sargent 407 S. 341h Street
2512 Golden Blvd. Billings, MT 59101
Billings, MT 59102-1212 Email only to: up2u2do@grnail.com
Email only to: jennyianmt@tzmail.com
Emily Sapp Mike Bolenbaugh
426 NE 92nd Ave. 2460 Village Lane, Apt. 209-B
Portland, OR 97220 Billings, MT 59102
Email only to: ernilyesapp@gmail.com Email only to: m.bolenbaugh@gmail.com

W. Scott Green
Patten, Peterman, Bekkedahl & Green, PLLC
2817 2nd Ave. N., Ste. 300
Billings, MT 59101
Emai1 only to:ggpigt
r wbglaw.corn
- i —I/ ,in &
By:

1

"Exhibit B"
 CLERK OF THE
Jenny Jing DISTRICT COURT
10 Alpine PL. TERRY HALPIN
Kearny, NJ 07032 1011 OCT 20 p
jennyianmt@gmail.com 3: 48
Alice Carpenter
P.O. Box 22702 BY
Billings, MT 59104 DEP
up2u2do@gmail.com
Mike Bolenbaugh
2351 Solomon Ave, Apt. 334
Billings, MT 59102
m.bolenbaugh@gmail.com
Pro Se

MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY
)
IN THE MATTER OF ) DP 22-0034
THE ESTATE OF IAN R. ELLIOT, ) Hon. Judge Rod Souza
Deceased. )
) MOTION TO
) 1. VACATE 5/23/2022 ORDER
) 2. ALLOW AN INDIPENDENT
) ACTION TO INVESTIGATE
) FRAUD ON THE COURT
) 3. CONSOLIDATE THE CASES
) AND MEMORANDUM OF LAW
) IN SUPPORT THE MOTION
)

1. Pursuant to Montana Rule of Civil Procedure Rule (MRCP) Rule 60(b) and (d),

Rule 42(a) (1), (2) and (3), Alice Carpenter (Alice), Jenny Jing (Jenny), Mike

Bolenbaugh (Mike), respectfully submit this motion and memorandum of law in

support the motion. The opposing parties would object to our motion.

INTRODUCTION

2. Ian and Womack's conflicts in Ada Elliot estate matters involved Ian's

Page 1 of 15

"Exhibit C"
allegations against Womack's misrepresentations and actions in

a.Shielding Ada and Starfire's former fiduciary Cindy's fraud and breaches;

b. Purposely creating more than $1 million "administration expenses" for a

solvent company with a simple operation of paying 6-8 bills of approximate

$26,000 from its annual rental income of approximate $60,000.

3. After Ian's death, Cindy and Womack opposed to appoint Ian designated

personal representatives Ann Sargent and Jenny, because Jenny participated in

Ian's actions against Cindy and Womack, and Jenny stated that she would continue

Ian's surviving actions according to Ian's wishes.

4. This Court's 5/23/2022 order ruled in Womack's favor and denied Ann and

Jenny's appointment.

5. We request a Rule 60 (b) and (d) relief to vacate this Court's 5/23/2022 order

based on the facts indicating attorneys' fraud on the court, which results in gross

injustice and weakens the public trust of our judicial system.

BACKGROUND FACTS

A. Ian's Actions Protected Ada And Ada's Properfies

6. When Ada's two children Ian and Cindy's conflicts involved their parents' care,

Ian always stood firm and took actions to protect their parents.

7. In 2005, 2 years after Cindy moved Ada and Archie to live in an isolated life at

the ranch's modular home, Ian noticed Archie's serious depression of not willing

Page 2 of 15

"Exhibit C"
to get out of bed daily. Ian insisted to Cindy that "Dad is going to die" and

brought his parents Ada and Archie Elliot back to live in Billings.

8. In August 2010, Archie died. Cindy placed Ada to live in a caregiver's

basement and paid the caregiver with Ada's $2,000 monthly social security and

teacher's retirement fund for the reason that the family could not afford other

options for Ada's care.

9. Ian expressed his concerns to Cindy that this caregiver did not treat Ada well.

At the time, Jenny only offered to help Ian take care of Ada when she was visiting

Ian in Montana, but declined to help taking care of Ada year around.

10. Without any other options, Ian arranged two part-time caregivers to visit Ada

for 2 hours every other weekdays. Ian himself took Ada out to stay with him a few

hours the rest of the weekdays and every weekend. Ian did not ask to be paid.

11. In 4 months, Ada experienced 2 emergency room treatments for injuries in this

caregiver's home. One of the treatments was from a fall resulting in a 2 inch

stitches on Ada's scalp. Cindy defended her arrangement and the caregiver.

12. Ian called Jenny for help. Jenny came to Montana and helped Ian to move Ada

out of this caregivers home and to lived in Ian's home.

13. During the rest 6 years of Ada's life, Ian and Jenny took care of Ada 24/7, and

received support and comfort from Ian's friends. Alice and Mike are among them.

14. Cindy then went to the Senior Center and talked to attorneys with all kinds of

Page 3 of 15

"Exhibit C"
disinformation about Ian.

15. At first, Ian and Jenny thought that Cindy did this because Cindy did not want

to appear that she did not want to take care of her own mother so she did not want

Ian to take care of Ada either.

16. In 2012, after Cindy claimed the $242,000 net dry land sale proceeds she

received half a year ago were used out to pay for Ada and Archie's previous care

expenses, Ian and Jenny started to have doubt. After rnore than one year paying all

of Ada's expenses, they realized that Ada's care was not as expensive as

Cindy previously claimed when she sold more than $2 million Ada's properties.

17. Ian asked Cindy to provide him with Ada's bank and credit card statements.

Cindy promised to provide but asked Ian for patience stating health issues and the

pressure dealing with her divorce.

18. Cindy's son and Ian's nephew Adrian Olsen, while living outside of Montana

and seldom visited Ada for years, all stated in the same tone that Ian should go out

to find a job making his own money instead of taking care of Ada for Ada's

retirement money and had conflict with Cindy.

B. Cindv And Attornevs' Efforts To Manipulate The Aecountin2

19. For 8 years of the courts' proceedings as of today, no accounting were

conducted to examine Ada's personal bank and credit card accounts.

20. Ada's conservator Joyce Wurtz, took her counsels advise to withheld the

Page 4 of 15

"Exhibit C"
accounting/audit and signed a resolution with Cindy to sell Starfire's remaining

properties.

21. Ada estate's special administrator Womack, also had Cindy's assistance to be

appointed as Starfire's liquidating partner to sell Starfire's remaining properties.

22. Both of them took Cindy's suggestion to conduct a Starfire accounting so as

to avoid examining the additional more than $1 million transactions in Ada's

personal bank and credit card accounts which Cindy had sole access to.

23. This irregularity of Ada/Ada estate's trustees avoiding to conduct the

accounting regarding Ada's personal finances is unusual, especially when it

happened under the court supervisions.

24. It is the result of attorneys' manipulations and misrepresentations to the

courts for the purpose to shield Cindy when they needed Cindy's assistance to cash

in more than $1 million Ada's properties because the properties are under

Starfire's name.

25. This motion focuses on Attorney Womack's misrepresentations, which was

instrumental in this Court's 5/23/2022 ruled in Womack's favor.

26. We have filed an intervention in Ian's surviving actions, Case DV 21-811. In

order to prevent duplicated actions, we submit Exhibit A, and ask this Court to

consolidate the cases or hold a joint hearing, in deciding whether we stated our

claims with clear facts and evidence for some of Womack's misrepresentations to

Page 5 of 15

"Exhibit C"
the courts which induced the courts' mlings in Womack's favor.

LEGAL ARGUMENT

I. This Motion Is In Accordance With MRCP Rule 60(b) And (d)

27. Rule 60 (b) permits a district court to reopen and relief a court order or

judgement for the reason of mistake, "fraud (whether previously called intrinsic

or extrinsic), misrepresentation, or misconduct by an opposing party".

28. Rule 60 (d)(1) allows the relief for an independent action to relieve a party

from a judgment, order, or proceeding. Rule 60 (d)(3) allows the relief for

setting aside a judgment for fraud on the court.

29. Our motion satisfies Rule 60 (b) and (d) relief to set aside this Court's

5/23/2022 Order because the Order was based on the mistakes from both the

Court's side and Jenny's side, and on attorneys' misrepresentations which

constitutes a fraud on the Court that affect this Court's ultimate conclusions.

A. The Mistakes, Inadvertence, Or Excusable Neglect

30. a) Jenny made several mistakes in the court hearings. One of them was that she

answered Cindy counsel's tricky question when she was not served with Ian's

bank statements. Cindy counsel asked how much money Jenny thought she

received from Ian in 2021? Jenny answered she thought was about $2,000.

The correct calculation is $8,900 after Jeimy was able to review Ian's bank

statements. This mistake made the Court believed that Jenny was trying to

Page 6 of 15

"Exhibit C"
 minimize the amount. Ian sent his money from his bank account in Montana

to Jenny's bank account in New Jersey to support their living expenses there

when they lived together as domestic partners and Jenny lost her rental

income due to the pandemic.

31. Although Jenny had repeatedly and explicitly stated, and Ian's loan co-signer

also stated that Jenny promised to pay Ian's loan before and after Ian's death,

the opposing parties kept pushing their legally unfounded suggestion to gave

this Court an impression that Jenny did something wrong.

32. b) This Court then mistakenly believed the amount was $21,000 because the

opposing counsel's pushing the $21,000 multiple times with their

miscalculation of adding the fund Jenny transferred into Ian's account as the

fund Jenny received. The approximate $21,000 mortgage loaned to Jenny was

guaranteed by Jenny's house sale proceeds during 2018-2019 instead of

during 2020 and 2021. So, Jenny's mistaken difference was $6,900, not trying

to minimize from $21,000 to $2,000.

33. c) There are other mistakes Jenny made such as her zoom connection

sometimes froze and she was too embarrassed to keep asking the court or the

witness to repeat what she did not hear well, and she did not know she could

object to judicial notice, etc., but this motion is rather focused on Rule 60(d),

attorney's fraud on the court.

Page 7 of 15

"Exhibit C"
 B. Fraud On The Court

34. The Montana Supreme Court stated that

"M. R. Civ. P. 60 is modeled on F. R. Civ. P. 60, so we look to interpretation
of the Federal Rules for guidance." Marriage of Rernitz, Note 2.

35. The 9th Circuit Court held that,

"Since attorneys are officers of the court, their conduct, if dishonest, would
constitute fraud on the court." Alexander v. Robertson, (882 F. 2d 421, (9th
Cir. 1989)), citing H.K. Porter Co. Inc. v. Goodyear Tire & Rubber Co., 536
F.2d 1115, 1119 (6th Cir.1976)

a) Womack's Misrepresentations And Telling Half Truth In This Court

36. We incorporate some of Womack's misrepresentations to the courts

submitted in Exhibit A in this motion. Despite these misrepresentations not

happened in this Court, they resulted in the previous court rulings in Womack's

favor, which in turn affected this court's 5/23/2022 order also in Womack's favor.

37. In this Court's hearings, Jenny had showed several incidence how Womack

was untruthful and evasive under oath, and how Womack sworn to tell the whole

truth but told the Court only the half truth to mislead the Court. For example:

38. Womack told the court that he conducted Ada estate's accounting. Yet he

contradicted himself in his inability to tell the court where in his accounting

report was Ada estate's accounting. Cindy counsel's objections helped Womack

to evade his further contradicting his testimony.

39. Womack also testified that Jenny talked Ann to refused converse with him

Page 8 of 15

"Exhibit C"
 while what Ann actually said was she would like to talk via email;

40. Womack filed this litigation stating Jenny claimed "a purported Ian's will but

refused to provide" so to gave the court an impression that Jenny was planning

something sinister. Womack omitted the fact that Ann and Jenny informed him in

writing just 4 days ago, that they would provide Ian's notarized Last Will with

affidavits under penalty of perjury after they received Ian's death certificate.

Womack and Cindy could have provided to Ann and Jenny with Ian's death

certificate that Cindy already possessed, instead of initiating their litigation.

41. In Selway v. Burns, (429 P. 2d 640 Mont. 1967), the Montana Supreme

Court stated that the "concealment of facts by a person who was under a legal

duty to make a full disclosure to the court" and "affirmatively misrepresenting

facts" constitute fraud on the court "that goes to the very integrity of the judicial

system because the court is mislead and made one of the victims of the fraud."

42. Womack also misrepresented to the Montana Supreme Court. One of the

misrepresentations was Ian obstructed his administration. This misrepresentation

was rebutted in this Court's 4/1/2022 hearing when Jenny used opposing parties'

exhibits of courts' dockets as the evidence and showed that Ian did not obstruct

or stall the cases. However, Ian's estate did not have the chance to submit a

Reply Brief to show this to the Montana Supreme Court.

43. In this Court's hearings, Womack frequently advised this court not to allow

Page 9 of 15

"Exhibit C"
 Ann and Jenny to be a temporary placeholder to retain an attorney in submitting

Ian estate's Reply Brief, which could give Ian's estate a chance to rebut the

misrepresentations in Womack's Answer Brief thus "presenting its case fiilly" to

the Montana Supreme Court.

"The fraud that will move a court of equity to exercise its inherent power to
vacate judgments has been described as that which prevents the unsuccessful
party from having a trial or presenting its case fully." Id. ref Clark v. Clark,
64 Mont. 386, 210 P. 93

44. The Montana Supreme Court gave Ian's estate a chance of a 60 day

extension, despite stated that the reply brief was not mandatory thus not

necessary. The reply brief is in the Montana Appeal Procedure for a reason.

Although it is optional, Ian's estate did not opt-out this option. Womack's actions

blocked it. Womack's advice to this Court to prevent Ian's estate to be fully

heard in the Montana Supreme Court constitutes a fraud on the court.

45. In Synanon Found., Inc., v. Bernstein, 503 A.2d 1254 (D.C.1986), Synanon

counsels told the district court that intenogatories would be unduly burdensome

to listen 10,000 audio tapes, and indices of the tapes did not exist. The DC

Appeal Court held that the attorneys had perpetrated a fraud on the court with

misrepresentations, which influenced the course of the district court's discovery

rulings in Synanon's favor, and attorneys' "destroying materials they thought

subject to discovery" was also to "corrupt the administration of justice." Id.

Page 10 of 15

"Exhibit C"
46. Womack's misrepresentations and his withheld/destroy the audio record

(Exhibit A, p13-14 ) which is subject to the discovery are parallel to Synanon

counsels' acts.

b) Opposing Counsels Knowingly Presented A Witness With Fabricated Facts

47. 1) Opposing counsels knew that after Ada died, Ian never agreed to sell

properties except let Womack sell the 2 building sites. In order to prove Jenny

was with some kind of bad quality or character, they prepared their witness

Adrian to testify with fabricated facts that Adrian saw Jenny was angry and

"screamed at Ian" when Ian signed the contract to sell properties in 2017.

48. 2) Opposing counsels also knew that in 2014, after Ian refused to sell

Starfire's remaining properties, Cindy sued Ian for "causing liabilities to

Starfire" by signing property listing "in bad faith". Ian then submitted the

evidence of Cindy's misrepresentations to the Court. When Adrian was with

Cindy visiting Ian in 2013, Ian refused to sign the listing and Jenny was on

the same side with Ian and confronted Cindy who withheld Ian's health

insurance payment as a coercion. After they left, Cindy sent a letter to Ian

fraudulently told Ian that listing Starfire's property was a condition required

by Starfire's bank loan, or Starfire's properties would face bank foreclosure.

(Exhibit B). Ian then signed the listing and told the Realtor how much he

cherished the land that his Grandma and Uncle Ray left. (Exhibit C) Ian later

Page 11of 15

"Exhibit C"
 contacted the bank loan officer who stated that the bank never had such loan

condition to Starfire. (Exhibit D)

49. Therefore, Cindy's counsels knew that either before or after Ada's death,

there was no such possibility at all for Adrian to witness Ian signing a

property sale contract which caused "Jenny was angry and screamed at" Ian

or Cindy.

50. 3) Please see Adrian's own email to Ian stating why he did not want to

contact Ian for 15 years after Ian's emails asking Adrian to keep contact.

(Exhibit E) and Ian's efforts to connect with Adrian. (Exhibit F)

51. Yet the opposing counsels prepared Adrian to fabricate the facts that Adrian

was close to Ian because Ian was Adrian's guardian so Adrian had been visiting

Ian every year and acted as the "peacemaker" so as to mislead the Court.

52. Attomey's involvement in presenting a witness' perjured testimony is a fraud

on the court. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238

(1944); Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 986

(4th Cir.1987)

53. The 9th Circuit Court held that,

"the inquiry as to whether a judgment should be set aside for fraud upon the
court under Rule 60(b) focuses not so much in terms of whether the alleged
fraud prejudiced the opposing party but more in terms of whether the alleged
fraud harms the integrity of the judicial process." In Pumphrey v. K. W.
Thompson Tool Co., 62 F.3d 1128, 1132-33 (9th Cir. 1995)

Page 12 of 15

"Exhibit C"
54. In Dixon v. Comni'r of Internal Revenue, 316 F.3d 1041, 1046 (9th Cir. 2003),

the 9th Circuit further held that,

"Furthermore, the perpetrator of the fraud should not be allowed to dispute
the effectiveness of the fraud after the fact."

55. Similarly, the 4th Circuits held that,

"once fraud enters the case in any manner, the judgment must be vitiated
without further inquiry as to the materiality or effect of the fraud on the
judgment". Great Coastal Express, Inc. v. Int'l Brotherhood of Teamsters,
etc., 675 F.2d 1349, 1353-54 (4th Cir. 1982)

56. The 5th Circuits also held that,

"once the determination is made that officers of the court have corruptly
abused the judicial process, the court is not required to examine the effect
that such conduct might have had on the ultimate judgrnent, but rather the
court may rely on such conduct alone to set aside the judgment." Browning
v. Navarro, 826 F.2d 335, 344 (5th Cir. 1987)

57. Therefore, we request this Court to vacate its 5/23/2022 order based on

opposing attorneys, especially Attorney Womack's fraud on the court conduct.

IL This Motion Is In Accordance With MRCP Rule 42(a) (1), (2), (3)

58. Rule 42(a) allows consolidation or join for a hearing or trial, if actions before

the court involve a common question of law or fact.

59. At present, the cases before 3 different courts (DP 17-0036, DV 21-811, and

DP 22-0024 ) in this jurisdiction involve the common questions of law and facts,

the same or similar issues, and depend largely upon the same evidence:

1. Whether Womack misrepresented facts and laws to the Courts and whether

Page 13 of 15

"Exhibit C"
 his misrepresentations constitute fraud on the court.

2. Whether the settlement signed by Ian estate's special administrator Andrew

Billstein justifies Ian estate beneficiaries' intervention against Cindy and

Womack because the beneficiaries' interests were not adequately represented.

60. This Court's 5/23/2022 order relied on Womack and Adrian's testimonies,

and also greatly relied on judicial notice in its criticizing Ian's surviving actions.

61. However, the previous orders ruled in Womack's favor relied on Womack's

court testimonies and statements, which are the subject of courts' fact-findings

whether Womack made misrepresentations and perpetrated fraud on the court.

62. Consolidating the cases or a joint hearing will help the courts better

understand and examine the related issues and facts.

63. In addition, consolidation or a joined hearing save court economy and avoid

duplicated hearings, delays or unnecessary cost for the parties.

CONCLUSION

64. The attorney's misrepresentations to the courts to circumvent the laws and

manipulate court procedures and deprive the adversary parties' right to seek

redress constitute fraud on the court. It is an attack to the integrity of the judicial

system. The Court has a duty to treat this issue seriously to protect the public trust.

For the above reasons, we respectfully request this Court to grant our motion to

vacate its 5/23/2022 order and to consolidate the cases (or to hold a joint hearing).

Page 14 of 15

"Exhibit C"
 DECLARATION

I declare under penalty of perjury that the information I set forth in this

document is true and correct to the best of my knowledge.

Respectfully submitt 0/20/2022

'2A4411 /1
Jenny Jing er Mike Bolenbaugh
Interested Parties in Ian liot's Estate, Pro Se

CERTIFICATION OF SERVICE

I certify that on the 20th day of October, 2022, I served a true copy of this

document, via emails to:

Andrew T. Billstein via andrew@bmslawmt.com
Joseph Womack, via jwomack@ivwlaw.com
Cindy Elliot, via jsoueidi@feltmartinlaw.com
Adrian Olson, via acelegstrong@yahoo.com
Holly Marie Dudley, via MotherHolly@gmail.com
Emily Sapp, via emilyesapp@gmail.com
Mike Bolenbaugh, via m.bolenbaugh@gmail.com
Alice Carpenter, via 2u2do mail.com
Shelley Paterson, via attersonss alioo.com
W. Scott Green via s

d QAT"- Ina'
Jenny Jing

Page 15 of 15

"Exhibit C"
 CLERK OF TH
Jenny Jing DISTRICT CO T
10 Alpine PL. TERRY H IN
Kearny, NJ 07032
jennyianrnt@gmail.com 1071 SEP P 12: 5 !
Alice Carpenter FILED
P.O. Box 22702
DY
Billings, MT 59104 D EPUTY
up2u2do@gmail.com
Mike Bolenbaugh
2351 Solomon Ave, Apt. 334
Billings, MT 59102
m.bolenbaugh@jgrnail.corn
Pro Se

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

IAN ELLIOT, And Case No. DV 21-811
Derivatively on Behalf of Starfire L.P., Hon. Judge Ashley Harada
Plaintiff,
v.
JOSEPH WOMACK, an lndividual, MOTION TO INTERVENE
Defendant, AND BRIEF IN SUPPORT
OF INTERVENTION

1. Pursuant to Montana Rule of Civil Procedure Rule (MRCP) 24 (a) and (b)(1),

Alice Carpenter (Alice), Jenny Jing (Jenny), Mike Bolenbaugh (Mike),

(collectively Plaintiffs-interventors) respectfully submit our motion to intervene

and brief in support of intervention on the side of plaintiffs Ian Elliot (Ian). The

opposing party's counsel has stated they would object to this rnotion.

2. We request a hcaring. We also request this Court and interested parties to

Exhhibit A Page 1 of 14

"Exhibit C"
 serve the documents to our email addresses to prevent mail delays.

BACKGROUND FACTS

3. Please refer to the attached complaint.

ARGUMENT

I. WE ARE ENTITLED TO INTERVENE AS OF RIGHT

4. We became interested parties after Ian passed away during this proceeding.

With a combined 53.3% interest in Ian's estate, we have significant claims at

stake in this litigation (see Exhibit A, Ian's Last Will).

5. We satisfy the requirement for intervention as of right under MRCP Rule

24(a).

" Intervention under M. R. Civ. P. 24(a) requires satisfaction of four
elements: (1) timeliness; (2) an interest in the subject matter of the action;
(3) that the protection of the interest may be impaired by the disposition of
the action; and (4) that the interest is not adequately represented by an
existing party. (citations omitted) Three Blind Mice v. Price, 2020 MT
292N

6. Our motion meets each of the four required elements.

A. Our Motion Is Timely

7. Our motion is timely. We filed this motion after we know that Ian estate's

special administrator Andrew Billstein has not filed motion to substitute party in

this litigation.

B. We Have The Same Interest In The Subject Matter

8. The alleged Womack's fraud (misrepresentations to Ian and to the courts)

Page 2 of 14

"Exhibit C"
 and breaches interfered and harmed Ian's inheritance from Ada's estate. This in

turn interfered and harmed our share of inheritance from Ian's estate.

C. Our Ability To Protect Our Interest Will Be Impaired Or Impeded
If Ian's Actions Are Disposed Without Our Intervention

1. We Have Standing And We Satisfy Rule 24(a) Requirements

9. Although in general, only estate's personal representative has the standing to

sue a 3rd person, Womack is not any 3rd person, he is the trustee of Ada's estate

and Starfire. The Montana statute allows "a trustee or beneficiary" to petition the

court for "compelling redress of a breach of the trust by any available remedy".

MCA 72-38-213(2)(1).

10. We copy Ian's argument regarding this statute as follows: although Montana

does not have a case interpreting whether this statute limits a beneficiary's

redress only to the current trustee, the California's 2nd and 4'h Appellate Courts

have given their answers to a California's equivalent statute,

"Section 17200 does not, by its terms, limit the beneficiary's right to compel
redress of a breach of trust to a petition against a current trustee. Nor is there
any decisional authority to that effect." Estate of Bowles, 169 Cal. App. 4th 684
- Cal: 2nd App. Dist., 5th Div. 2008), at 698 (emphasis original)

11. Please note that the Section 17200 clause mentioned in Bowles, the Section

17200 (b)(12) reads almost exactly as Montana's MCA 72-38-213 (2)(1).

12. In King v. Johnston, 178 Cal. App. 4th 1488 (2009), the 4th Appellate Court

of California agreed with Bowles, and held that a beneficiary had standing to sue

Page 3 of 14

"Exhibit C"
 a former trustee and a third-party participant in a breach of the former trustee's

fiduciary duties, or the third-party participant alone. The King court explained:

"because 'primarily it is the beneficiaries who are wronged and who are
entitled to sue....'[Citation.] The liability of the third party is to the
beneficiaries, rather than to the trustee...", (Citing Scott on Trusts, 4th ed., §
282, §294; and City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith,
Inc. 68 Ca1.App.4th 445, 467 [80 Ca1.Rptr.2d 329] (1998)) Id., at 1500

13. These rulings reasoned that the beneficiaries' personal stake entitled their

legal right to sue, especially when the suit is against a trustee.

14. In Trbovich v. United Mine Workers ofAm., (404 U.S. 528, 538, 92 S.Ct.

630, 30 L.Ed.2d 686 (1972)), a union member was represented by the Secretary

of Labor in the litigation. The lower courts agreed with the Secretary and denied

his intervention as of right from Rule 24(a), for the reason that the Secretary

already represented his interest. The U.S. Supreme Court reversed the decisions

and explained in its note that,

`The requirement of the Rule is satisfied if the applicant shows that
representation of his interest "may be" inadequate; and the burden of making
that showing should be treated as minimal.' Id., Note 10.

15. Accordingly, the 9th Circuit has consistently ruled that,

`We stress that intervention of right does not require an absolute certainty that
a party's interests will be impaired or that existing parties will not adequately
represent its interests. Rule 24(a) is invoked when the disposition of the
action "may" practically impair a party's ability to protect their interest in the
subject matter of the litigation, "unless existing parties adequately represent
that interest."Citizensfor Balanced Use v. Montana Wilderness, 647 F. 3d
893 (9th Cir. 2011), see also County of Fresno v. Andrus, 622 F.2d 436 (9th
Cir.1980)

Page 4 of 14

"Exhibit C"
16. Our intervention satisfy the above requirements and circumstances.

2. Our Interest Cannot Be Protected Without This Court's Fact-finding Of
A Scheme By Womack To Mislead The Courts

17. Our intervention requests this Court examine Womack's dishonest conducts

aimed at the courts. In Alexander v. Robertson, (882 F. 2d 421, (9th Cir. 1989)),

the 9th Circuit held that,

"Since attorneys are officers of the court, their conduct, if dishonest, would
constitute fraud on the court." citing H.K Porter Co. Inc. v. Goodyear Tire &
Rubber Co., 536 F.2d 1115, 1119 (6th Cir.1976)

18. Montana law allows the beneficiaries to sue under special circumstances of

"a showing of fraud, collusion, conflict of interest, inability to act or other
special equitable circumstances". Matter of Estate of Long, 225 Mont. 732 P.
2d 1347 (1987)

19. In our complaint, we showed that Womack, together with Ada and Starfire's

former fiduciary Cindy Elliot, deliberately planned and carefully executed a

scheme to shield Cindy and also create unnecessary and lucrative service

compensations to Womack.

20. First, Womack stated to every court that he did not know whether Cindy

had wrongdoings without his accounting. This contradicts the fact what Womack

did know and should have known.

21. Then, with a promise to the Federal Court that he would bring action against

Cindy if he find wrongdoing, Womack dismissed Ada Estate's claims after

delaying his accounting for 8 months.

Page 5 of 14

"Exhibit C"
22. In Ada and Ian's probate courts, Womack then testified under oath that Ian's

litigation against Cindy was without merits, or he did not have money to retain an

attorney to bring actions against Cindy.

23. Among the different courts, Womack made different misrepresentations. He

made a false promise to the Federal Court that he did not have any intention to

keep, since his accounting does implicate Cindy's wrongdoings. Also, the

Federal Court records indicates that Attorney Duke was already in the process of

preparing the trial against Cindy. Womack "caged" Duke yet misrepresented to

the state courts that he did not have money to retain an attorney.

24. As of today, Womack has conducted no accounting for Ada's Estate. Under

Womack's direction to his accountant, the transactions in Ada's personal bank

and credit card accounts which Cindy had sole access to were allocated as

Starfire or Ada's expenses without being further examined.

25. In Ian estate court hearing, Womack testified under oath that he conducted

Ada estate's accounting. When Jenny asked Womack to show where Womack's

accounting report indicated Ada estate's accounting, Womack evaded the

question after the objection from Cindy's counsel, who also acted as Womack's

counsel in the hearing.

26. Our intervention supplement Ian's complaint, with additional facts and legal

principles, showing Womack's misrepresentations were aimed at the courts in

Page 6 of 14

"Exhibit C"
 obtaining court rulings in his favor.

27. Without the intervention, the protection of our interest may be impaired by

the disposition of Ian's actions, since Womack has been trying to dismiss this

case with prejudice, thus to prevent the issue of his dishonest acts to the courts

from being brought up forever.

3. Our Interests Will Be Affected If This Case Is Dismissed

28. Our interest is impaired when Womack is not hold responsible for more than

$500,000 unnecessary service charges including an abusive document dumping

of 34 boxes of duplicated and unrelated documents to his accountant. This

increased Womack's accounting expenses to an estimated $160,000-$200,000 or

more for a company's operation that only involved less than a dozen bills to pay

annually. Under Womack's direction to his accountants, the accounting report

avoided examining the transactions in Ada's personal bank and credit card

accounts, thus significantly minimized Cindy's liabilities.

29. Even if the court allows Womack's accounting to be substantially

recalculated after our contest, the recalculation will cause another hundreds of

thousands of accounting and legal expense burdens for Ada's estate and Ian's

estate because of Womack's document dump of thousands and thousands

irrelevant documents to bury the relevant ones. We will be injured once again, if

we cannot intervene to hold Womack accountable.

Page 7 of 14

"Exhibit C"
 D. Our Interests May Not Be Adequately Represented

30. To determine adequacy of representation, the 9th Circuit considers the

following:

"whether the interest of a present party is such that it will undoubtedly make
all the intervenor's arguments; whether the present party is capable and
willing to make such arguments; and whether the intervenor would offer any
necessary elements to the proceedings that other parties would neglect."
Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1498-99 (9th
Cir. 1995).

31. We meet each factor.

32. Although we are the beneficiaries who have majority interests in Ian's estate,

(53.33%) and want to pursue this litigation, we understand that Ian estate's

representative Andrew Billstein has a duty to represent all of Ian estate

beneficiaries' interests. This includes the beneficiaries who have minority

interests (16.67%-21.67%) and expressed that they did not want to spend estate's

money to pursue Ian's surviving actions. Therefore, Mr. Billstein's willingness

and ability to protect our interests is limited, at least at this point.

33. When several beneficiaries including us insisted to be distributed with the

real properties that Ian's estate was entitled to according to the law, Mr. Billstein,

under the joint pressure from both Womack and Cindy, was only able to save one

tract of 38 acres land for us, which consists only 15% of the total land, or 18% of

the total appraised value.

34. Womack could have easily re-divided the properties and let Ian's estate to

Page 8 of 14

"Exhibit C"
 distribute the cash and properties according to beneficiaries' preferences. This is

because the remaining 4 tracts of properties' rearrangement does not need

govemment's approval. (MCA 76-3-207(1)(d))

35. We understand that Mr. Billstein, who is not a litigator and not practices in

other law areas involved in this case (such as the area of legal professional

liabilities), may not be willing to argue for us regarding another attorney's

unethical behaviour or dishonest actions.

36. When Ian was alive, Womack took away Ian's counsel David Duke, then

withheld Ian's distribution for almost a year to prevent and delay Ian's having

sufficient fund to retain another attomey. We have the reason to believe that Mr.

Billstein may also be at Womack's mercy in obtaining the fund to pay an

attorney for the actions against Womack.

37. In addition, what is more unusual is that Womack has broader connections in

Montana's legal community. When Ian and Jenny searched for attorney

representation, as long as the issue involves Womack, the responses were either

the case were too complicated, or there was conflict of interest. Ian and Jenny

were told that Womack is a trustee in Montana Bankruptcy Court, the law firms

have conflict of interest because they had or have work relationships with

Womack. It is a reality that Montana has a small legal community where most

lawyers know each other and not want to be involved, we ask the court to

Page 9 of 14

"Exhibit C"
 consider that this is a truly difficult circumstance for Ian then and now for us.

38. Therefore, our intervention is necessary since it does not incur legal

expenses for Ian's estate, because the parties are suppose to pay their own legal

expenses according to the American Rule. We are committed to pay our own

legal expenses in pursuing this action.

39. This circumstance like ours is supported with precedent cases, such as In re

Estate of Bleeker, (168 P. 3d 774 - Okla, 2007, at 781). In Bleeker, an estate's

executor elects not to press a claim, reasoning the remote probability of

recovering estate assets was not sufficient to warrant the expenditure to pursue

the claim. The Oklahoma Supreme Court ruled that the beneficiary had standing

in the circumstance to sue, since the beneficiary had asked to bear the expenses.

40. In explaining its ruling, the Oklahoma Supreme Court cited more than a

dozen cases from different states' appeal courts and supreme courts, including

the Supreme Court of Montana (State ex reL Palmer v. District Court of the

Ninth Judicial Dist., 190 Mont. 185, 619 P.2d 1201 (1980)), and held that

"The dispositive first-impression question on certiorari is whether the
American common law settled in the last century and half, which in
circumscribed circumstances allows persons other than the estate's fiduciary
to bring litigation for recovery of estate assets, should be adopted in
Oklahoma. We answer in the affirmative and reverse the contrary trial court's
ruling." Bleeker, at 776

41. Our intervention satisfies the same circumscribed circumstances.

II. ALTERNATIVELY, PERMISSIVE INTERVENTION IS APPROPRIATE

Page 10 of 14

"Exhibit C"
42. In the alternative, we respectfully request the Court grant permissive

intervention pursuant to Rule 24(b).

43. In Spangler v. Pasadena City Bd. of Ed., (552 F.2d 1326, 1329 (9th Cir.

1977)), the 9th Circuit, citing cases from several circuits, held that in granting the

permission, the court needed to examine several relevant factors such as:

1) "the nature and extent of the intervenors' interest, their standing to raise
relevant legal issues, the legal position they seek to advance, and its probable
relation to the merits of the case. ";
2) "whether changes have occurred in the litigation so that intervention that was
once denied should be reexamined";
3) "whether the intervenors' interests are adequately represented by other
parties";
4) "whether intervention will prolong or unduly delay the litigation";
5) "whether parties seeking intervention will significantly contribute to full
development of the underlying factual issues in the suit and to the just and
equitable adjudication of the legal questions presented."

44. We have stated in the previous sections that we satisfy the factors of

intervention as of right for the factors mentioned in Spangler 1) , 2) and 3).

45. We also satisfy the factor 4) "whether intervention will prolong or unduly

delay the litigation" Id.

46. Ian filed this litigation in July 2021. This court has not made any ruling.

After Ian's death, it was Womack, who initiated Ian estate's litigation and

delayed Ian estate's personal representative's appointment proceeding for at least

4 months, specifically for the purpose to prevent Ian estate's beneficiary, Ian

designated personal representatives Ann Sargent and Jenny from retaining an

Page 11 of 14

"Exhibit C"
 attorney to represent Ian's estate to pursue this action. Therefore, Womack is the

one to prolong and unduly delay this litigation, not our intervention.

47. To satisfy factor 5), we offer specialized familiarity with the factual and

legal issues.

48. We will be able to offer our experience to counter Womack's

misrepresentations to the court that Ian's action against him and Cindy were

vexatious and "inflammatory". During the last decade, when Cindy spread

disinformation attacking Ian for taking care of their mother Ada whom Cindy

herself did not want to take care of, and placed Ada to live in a caregiver's

basement and Ada suffered physical injuries, Ian's partner Jenny witnessed how

Cindy treated Ada and Ian. Jenny also participated with Ian in Ada's 24/7 care.

When Ada and Ian needed the help, we were Ada and Ian's only family. We

supported Ian and gave Ada and Ian comfort.

49. We also witnessed Ian's painful efforts to save his family's historical ranch

from being sold to pay the unreasonable service fees for Cindy, then for Womack.

Ian's partner Jenny also helped Ian to examine Ada and Starfire's bank

transactions. With a MBA in finance, Jenny was able to discover Cindy and

Womack's fraudulent bookkeeping practices in their financial reports.

50. The 9th Circuit has consistently ruled that,

"a liberal policy in favor of intervention serves both efficient resolution of
issues and broadened access to the courts." Wilderness Soc y. v. U.S. Forest

Page 12 of 14

"Exhibit C"
 Serv., 630 F.3d 1173, 1179 (9th Cir.2011), quoting United States v. City of
Los Angeles, 288 F.3d 391, 397-98 (9th Cir. 2002)

51. Depriving opposing parties' access to the courts is against our judicial

system's fimdamental principles. Womack's misrepresentations to the courts

especially his manipulation of court procedures to deprive opponents' access to

the courts, present a significant attack on the integrity of our judicial system.

52. What happened to a disabled elderly person Ada, Ada's estate, Ian's estate,

and Starfire's matters is extraordinary. Even under the courts' proceedings of

more than 8 years as of today, there has been no accounting conducted by

neither Ada's conservator nor by Womack regarding where the funds from Ada's

personal bank and credit card accounts went to.

53. Both Ada herself and Ada estate's beneficiary Ian suffered from their

fiduciaries' unethical, unlawful, and predatory practices and cover-ups. At the

same time, these fiduciaries manipulated to create hundreds of thousands dollars

of unnecessary and lucrative service fees to benefit themselves. Our intervention

not only is to protect our interests, but also to raise the court's attention to

prevent the same tragedy from happening again to other Montana families.

54. This court has the duty to prevent gross injustice caused by a court-

appointed attorney's dishonest acts and manipulations, and to preserve the public

trust and the integrity of our judicial system.

CONCLUSION

Page 13 of 14

"Exhibit C"
55. For the foregoing reasons, we respectfully request that this Court grant our

Motion to Intervene, pursuant to MRCP 24(a) or 24(b).

DECLARATION

I declare under penalty of perjury that the information I set forth in this

document is true and correct to the best of my knowledge.

Respectfully submitted: 9/14/2022

Jenny Jing A tc ter Mike Bolenbaugh
Interested Parties in Ian Elliot's Estate, Pro Se

CERTIFICATION OF SERVICE

I certify that on the l4th day of September. 2022, I served a true copy of this

document, via emails to:

Thomas C. Bancroft
tbancroft@nelsonlawmontana.com

Andrew T. Billstein
andrew@bmslawmt.com

Jamy ply
Jenny Jing nter Mike Bolenbaugh

l'age 14 of

"Exhibit C"
 August 15, 2013

Dear ian,

l'm writing to you as general partner to
general partner abouta critical business taskwe
must take care of for StarFire.
Our bank loan ("ag/real estate"loan catego
ry) requires us to maintain current real
property. To stay compliant with the terms estate listings for the collateral
of our bank financing, the partnership
renew the listings. needs to take immediate action and

A listing does not require us to actually accept
any offers. The only exception is the unlikel
the exact listing price, or higher. The listings ihood of an offer coming in for
simply keep us in compliance and our fundin
number of different financial options for StarFir g in place, while we seek any
e ancl the family.
The listings that have requiredrenewaf since
June are for one 20 acre build site in the dry
Village Project.As of today we have a 6 week land, and for the Amsterdam
gap in compliance.
Our loan comes due for refinancing in five
months. When the bank reviews it, we must be
continuous good faith effort since last Februa able to show we have made a
ry to sell property in order to pay off the princip
expected source of repayment. The keyinformati al. This is the bank's
onthey need to see on our refinance applica
maintained current listings. tion is that we have

lf we can't prove this, the bank will be entitled:1)
to refuse to extend our loan, and 2)to initiate foreclo
property. That will mean taking over 40 prime sure on the lien
acres in the center of the Amsterdam Village Projec
acre build sites in Section21.They will have the t land, and the 20
right to liquidate all of it for any price they
$150,000 principal due on the loan. wish, so long as it covers the
For example, the combined properties could be
worth several times that amount of money, but
allowed to sell all of it (perhaps even to a buyer the bank would be
of their own)for as low as $150,000 just to move
it quickly.
Unfortunately, according to Glen, First Interstate
does have a history of doing exactly this, foreclo
farms and ranches in the area in similar situatio sing on many family
ns to ours. This is not just a theoretical risk.
I hope you agree that, all anger and disagre
ements aside, this would be an utterly unwanted and
For you, for me, for the ranch, for our family. unnecessary scenario.

our family has been in unified agreement about
selling the Amsterdam Village project since May
The renewals are for listings that you have signed 2006.
previously,severaI times.

Renewing our listings is not asking you to give up
anything, your concerns, your questions, yoursense
rights to fully understand the partnership's past finance of fairness or your
s. lt's simply asking you to continue exercising
fiduciary responsibility to StarFire as a general partne yourcurrent
r.
lf you are In agreement on just this one task, please
call or send an email to our agent, Mary Ackerman,lett
knowyou will sign the two listing renewals: 406-58 ing her
7-2950 ormarvPmarvackerman.com. Please ask her any questio
that will help with your decision. ns
p snoa
She will look to hearing from you. It's important to
respond to her by Tuesday, August 20. This will enable
reinstate the listings on the MLS before September. her to

Meanwhile, please know l respect your requests for
StarFire's financial history. l have been working over
to find and research the records so l can provide report the summer
s that will help answer your questions and concerns.
information you've asked for is extensive, and l apprec The
iate your patience with the great amount of time this
is requiring.
Thanks lan.

My Best,

"Exhibit C"
 Listing Approved
lan Elliot
Fri 8/16/2013 7 59 PM
To: Cindy Elliot
Greetings!
thanks for your letter requesting the listing documents which l
I reviewed and have pow signed and Faxed to Mary this afternoon. The
' documents were sent with the following cover letter:

8/16/13
TO: Mary E, Ackermann — ecoREsource
Bozeman, MT
FROM: lan R. Elliot —Starfire LP
Billings, MT

Thanks Mary for your patience and understanding regarding
our Starfire LP property issues. l signed and initialed the
documents you sent me and am returning them via FAX. I
remain committed to maximizing benefits from the eventual
sale and/or development of Mother's inherited ranch
property that she and her Ecton family have loved and
nurtured for decades. l spent my summers as a teenager
working as a ranch hand under the supervision of my Uncle
" Ray, and stayed in close touch with him over the years
following that service. It is a treasured piece of real estate ,
that continues to provide financial security for my Mom and
immediate family members, and l wish to see this gift
__handled in &good and thoughtful way.

Sincere Thanks,
lan Exhibit C

"Exhibit C"
In return for my timely cooperation, Cindy, I would greatly appreciate
your restoration of August rental income from Mother's modular home
for Mom's care use. I paid the advance on my health insurance and
van lease in order to assure my self of a financial cushion (far less in
the amount which you have enjoyed for more than two years with
special accounts such as the $12,000 set aside for Mother's care with
your name only listed on the account). Partnership breakdowns and
serious misunderstandings have occurred because our family business
related information has been withheld. It appears you set up
numerous accounts in order to prevent both Gary and me from
learning about your ranch related financial resources? Whatever the
reason, I trust you will now be prepared to lay all cards on the table
regarding Starfire LP instead of my having to force the issue. Keep in
mind that my financial activities (cards) related to family resources
remain open for your review anytime you need to see transaction
documents. For now, please consider my request and restore the
modular home rent to help me supplement Mother's care for which it
was intended.

Onward and Upward,
lan

"Exhibit C"
 First Interstate Bank
401 N. 31st St.
P.O. Box 30918
First Billings, MT 59116-0918
406-255-5000
lidera te www.firstinterstatebank.com
Bank

October 19, 2015

Ian Elliot
2512 Golden Blvd.
Billings, MT 59102

RE: October 13, 2015 Correspondence on StarFire, LP

Dear Ian:

I am sending this letter in response to your correspondence that was delivered to my
office on October 13, 2015, and also emailed to me on the same day. I am also infonning
you that I am copying Cindy Elliot on this letter as the other General Partner of Starfire,
LP.

Please find the following responses in order of the above mentioned correspondence from
you.

1. You are correct that First Interstate Bank did not require StarFire, LP to ever list ,
any property for sale as a condition to any loan agreement.
2. Aspart of the original loan apPlication, Starfire LP did present documentation of
a Real Estate Purchase Contract and Option Agreement it had already entered in
with The Village at Amsterdam, LLC (C/o CTA Architects Engineers). StarFire,
LP was requesting interim financing for the Elliot family to allow CTA Architects
Engineers time to raise the funds to execute this agreement. This agreement was
signed on June 2, 2006 by Cindy Elliot and Ian Elliot, General Partners of
StarFire, LP.
3. I have not enclosed any loan agreements related to StarFire, LP as no requirement
was ever made by the bank as outlined above in paragraph 1.

Exhibit D

"Exhibit C"
I hope that you find this is the information that you have requested. Please feel free I
contact me if you have any questions.

Sincerely,

) 4crir
Jared M. Maloney
Vice President
Commercial Loan Officer
(406) 255-5262

Cc: Cindy Elliot, General Partner StarFire, LP

"Exhibit C"
Date: Wed, 4 Jul 2012 03:41:28 -0700
Frani: acelegstrOng@yahoo co
§-ubjg4: Re: LOVE AND HEARTFELT APPRECIATION!
To: elliotianAhotmail.corn

You guys are all pretty much idiots for all Pm concemed, keep wasting the estate, and die in
debt, find the tax collectors, andAll thc bullshitypp refine face, eppe rnpm earblyp was
dead, You can find a new family!! yeah I found my self, and a new family that would never
ever leave me the, wayyou suckers left me, 15 a felon and no where to.go, fuck you Elliots, '
_finally how I haye felt for thc last 15 years, poor Ada, she and Archie deserved so much
better, artistic, retarded, great grades rnake you insane, what do you have now, all my moms
art, all the originals, the ones I have had, my Dad gave to me, huddle around that art and wait
for a storm, and lose half of it and pry to yppr self, possessive, and j cant still get one piece,
one fucking original, why do you think I don't respond, good luck, you think I'm not really
[14s-elfYou abandoned- yeS -this is What you wanted; go back when my mom was on her death
bed, I was 15 years old.; now I'm a man and would never bring a woman -home close to you,
after last time, give me -aft; or-Y-Ofir death, make me feel-enabledlike I edieleal ly,soitie
morbid life I live before I die, just some art on the wall of my moms, really? can you do that
for me, the hand drawn picture of my profile when I was six, just give it to me, you selfish
fucks, really think about the square box you live in, with out rny moms art for me, find me
after we all die, Thanks Adrian, see you then maybe, hell to pay, I was just a little
kid you have no idea, think about it, lost soles?

Exhibit E

"Exhibit C"
 FW: greetings

lan Elliot
Mon 5/13/2013 8 12 PM
To: ADRIAN OLSON
Mom and I are still hoping to hear frorn you, Adrian. Meanwhile, I
received this email today and think your computer's address list might
have been compromised?, Please remember how much you mean to
r both YOur Grandma Ada and I, and consider a call, email or even a visit
ii while Mom is still alive and doling the best she can under the
circumstances. We miss you, Adrian.

Love & Spring Blessings,
lan and Grandma Ada

Date: Mon, 13 May 2013 11:47:34 -0700
From: acelegstrong@yahoo.com
Subject: greetings
To: cmaiberger7@gmail.com; g8keeper@pacbell.net;
elliotian@hotmail.com; jennifer_heyden@yahoo.com

http://villadiamond.or/likeit.pho?vhozsx822hh

Exhibit F

"Exhibit C"
 Dkt 80
Filed
12/09/22

1

2

3

4 MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY
Cause No.: DP 22-34
5 IN THE MATTER OF THE ESTATE OF:
Judge Rod Souza
6 IAN RAY ELLIOT,
ORDER GRANTING MOTION FOR
7 Deceased.
LEA VE TO FILE CORRECT EXHIBIT,
DENYING MOTION TO VACATE MAY 23,
8 2022 ORDER, DENYING MOTION TO
ALLOW INDEPENDENT ACTION, AND
9 ________________, DENYING MOTION TO CONSOLIDATE
10
This matter comes before the Court on the Motion to Vacate the Court's May 23, 2022
11
Order, Allow an Independent Action for Fraud on the Court, and to Consolidate Cases of
12
Interested Parties Je1my Jing, Alice Carpenter, and Mike Bolenbaugh (hereafter "Jenny, Alice,
13
and Mike.") [Dkt. 59.] Preliminarily, IT IS HEREBY ORDERED that Jenny's, Alice's, and
14
Mike's Motion for Leave to File the Correct Exhibit is GRANTED. [See Dkt. 69 at l .] Jenny,
15
Alice, and Mike state they intended "to submit [as Ex. A to their motion, their] proposed
16
complaint against Womack [that] accompanied [their] motion to intervene [in] DV 21-811."
17
[Dkt. 68 at 1-2.] This Order therefore considers that proposed complaint [Dkt. 21 in DV 21-
18
811] as Ex. A to the Motion to Vacate.
19
The Com1's May 23, 2022 order granted Petitioner Joseph Womack's Petition (that
20
Interested Person Cindy Elliot (hereafter "Cindy") joined) for Supervised Administration of
21
Ian's Elliot's Estate. [Dkt. 45.] The Order also appointed Andrew Billstein, Esq. as Special
22
Administrator oflan's Estate. [Dkt. 45.] In granting the Petition, the Court made extensive
23
23

24
24
1

"Exhibit D"
 I Findings of Fact and Conclusions of Law. [Dkt. 45.] Special Administrator Billstein and Cindy

2 oppose Jenny's, Alice's, and Mike's Motion. [Dkts. 65, 66.]

3 Citing M.R.Civ.P. 60(6), Jenny, Alice, and Mike asse1i Jenny made a mistake worthy of

4 vacating the order when she testified she "thought she received [about $2,000] from Ian in

5 2021" when, after review of bank statements she avers owing $8,900. [Dkt. 59 at 6-7.]

6 However, Jenny's change is a distinction without a difference. After review of!an's bank

7 statements [Ex. VJ Finding of Fact 59 found Jenny's debt was $21,000. Jenny now

8 acknowledging to owe Ian's Estate $8,900 still constitutes her disputing owing $21,000. See,

9 also, In the Estate of Gober, 350 S.W.3d 597,600 (Tex. Ct. App.-Texarkana 2011) ("The

10 distinction [regarding when a conflict of interest renders an executor unsuitable] lies in whether

11 there is a dispute about the estate's assets ....") Moreover, Conclusion ofLaw 17 quoted Estate

12 ofAnderson-Feeley, 2007 MT 354 at ,i 13, which stated "[t]he existence ofa potential claim

13 against Feeley is sufficient to create a conflict of interest, and such conflict of interest is

14 sufficient for removal of Feeley as personal representative ofJan's estate." See, also, In re

15 Estate ofPeterson, 265 Mont. 104, 109,874 P.2d 1230, 1233 (Mont. 1994) (quoting In re

16 Rinio 's Estate, 93 Mont. 428, 435, 19 P.2d 322, 325 (Mont. 1933) ("The law does not look with

17 favor upon the administration of estates by a person where conflicts in the performance of his

18 duty are likely to arise."))

19
19 Jenny, Alice, and Mike cite In re Estate ofJochems, 252 Mont. 24, 826 P.2d 534

20 (Mont. 1992) (partially overruled on other grounds). [Dkt. 68 at 11.] Jochems is inapplicable. It

21 addresses whether a testator was competent to transfer ce1iificates ofdeposit. See 252 Mont. at

22 29-30, 826 P.2d at 537. Jenny, Alice, and Mike reference In re Estate of Graf, 150 Mont. 577,

23 437 P.2d 371 (Mont. 1968). [Dkt. 68 at 11-12.] Grafis distinguishable. It instructs a Montana

24
2

"Exhibit D"
 1 probate court cannot set aside a testator's choice of executor based on possibilities. 150 Mont.

2 at 579-80, 437 P.2d at 372-73. Jenny's conflict ofinterest is more than possible. In the face of

3 claims and documentary evidence that she owes Ian's Estate $21,000, Jenny claims she owes

4 $8,900, a substantially lesser amount. Furthermore, as Finding of Fact 58 states "Jenny's debt

5 to the Estate, the extent of which she denies incentivizes Jenny to delay Estate administration."

6 Jenny, Alice,and Mike asse11 Jenny made another mistake wo11hy of Rule 60(b) relief

7 in that "she did not know she could object to judicial notice." [Dkt. 59 at 7.] "[T]here is no

8 ground for a Rule 60(b) motion where the mistake is purely a mistake oflaw, as ignorance of

9 the law is no excuse." Donovan v. Graff, 248 Mont. 21, 25, 808 P.2d 491, 494 (Mont. 1991).

10 Moreover, the Com1 can give Jenny latitude as a pro se litigant, it cannot prejudice the other

11 pa11ies in doing so. See Greenup v. Russell, 2000 MT 154, � 15,300 Mont. 136, 3 P.3d 124.

12 Giving Jenny legal advice would have significantly prejudiced Womack and Cindy. See, also,

13 Duffy v. State, 2005 MT 228, � 17, 328 Mont. 369, 120 P.3d 398 (Court officers cannot provide

14 legal advice). Regarding mistake, Jenny, Alice, and Mike finally assert Jenny "was too

15 embil!1'assed to keep asking the [C]ourt or the witness to repeat what she did not hear well."

16 [Dkt. 59 at 7.] This is not a basis for Rule 60(b) relief.

17 Citing M.R.Civ.P. 60(d), Jenny, Alice, and Mike asse11 Womack committed fraud on

18 the court by stating "he conducted Ada['s] estate's accounting"; "Jenny talked Ann [in]to

19 refus[ing to] converse with him;" and Jenny "refused to provide'' Ian's will. [Dkt. 59 at 8-9.]

20 During the March 7, 2022 hearing Womack testified "I have completed the accounting, I just

21 got the accounting back from Wipfli,it's a forensic accounting, that was done." This testimony

22 was accurate. Womack hired Wipfli to perform an accounting of Ada's Estate, and Wipfli

23 completed their accounting. Jenny, Alice,and Mike quote Dixon v. Comm 'r ofInternal

24
3

"Exhibit D"
 1 Revenue, 316 F.3d 1041, 1046 (9th Cir. 2003). [Dkt. 59 at 13.] "Fraud on the court occurs when

2 the misconduct harms the integrity of the judicial process." 316 F.3d at 1046. Accurate

3 testimony is not misconduct, and accurate testimony cannot harm the judicial process's

4 integrity.

5 Regarding Jenny convincing Ann to refuse to talk to him except in writing, Womack

6 testified "I did draw the inference from ... Jenny ...sa[y]ing...things to [Ann] about me[.] I drew

7 that inference because Ian at some point in my relationship with him and Jenny ... refused to

8 talk to me any [m]ore[a]nd would only communicate through emails or letters. So my

9 assumption was... they told [Ann] that's how [she] should act." Womack's testimony on April

10 1, 2022 additionally explained the drawbacks to requiring written communication. That

11 requirement precludes "hav[ing] some discussion and... an exchange of ideas." Womack

12 additionally testified only communicating in writing makes it "very difficult to get anything

13 accomplished, [is] time-consuming," and impractical.

14 Drawing inferences is not fraud. Moreover, Jenny, Alice, and Mike have asserted fraud

15 on the Cou11. [Dkt. 59 at 8-1 0.] They quote Pumphrey v. K. W. Thompson Tool Co., 62 F.3d

16 1128, 1132-1133 (9th Cir. 1995). [Dkt. 59 at 12.] Pumphrey instructs fraud on the court "must

17 involve an unconscionable plan or scheme which is designed to improperly influence the com1

18 in its decision." 62 F.3d at 1131. Drawing inferences is neither unconscionable nor designed to

19 improperly influence.

20 During the March 7, 2022 hearing, Womack explained what he meant by refusal to

21 provide the will. "I requested a copy of the Will, and you [i.e. Jenny] did not send it to me, and

22 then you said that you were going to wait and you weren't going to [do] anything for a period of

23 time, you were obtuse, all you had to do was say, yes, Joe, here is a copy of the Will. And you

24
4

"Exhibit D"
 I didn't do that. So I took that as a refusal." Womack further explained "even after [Jenny]

2 attempted to file the petition,[Jenny] didn't send me a copy of that with a copy of the Will

3 either." Womack did not need to provide Jenny's reasoning for his basis to use the word refusal

4 to be accurate.

5 Jenny, Alice, and Mike quote Alexander v. Robertson, 882 F.2d 421 (9th Cir. 1989).

6 [Dkt. 59 at 8.] Alexander strongly suppmis denying their motion. When it involves fraud by

7 officers of the court, fraud on the court prevents "the judicial machinery [from] perform[ing] in

8 the usual manner its impartial task of adjudging cases that are presented for adjudication." 882

9 F.2d at 424. See, also, In re Estate a/Swanberg, 2020 MT 153,113,400 Mont. 247,465 P.3d

10 I 165 ("Submitting a will that may be subject to a will contest is not fraud on the court.")

11 Jenny's, Alice's and Mike's claims do not satisfy Alexander's high standard.

12 Jenny, Alice, and Mike assert Womack "misrepresented to the Montana Supreme Comi

13 [that] Ian obstructed his administration" and cite Jenny's use of Cindy's and Womack's court

14 exhibits to "sho[w] Ian did not obstruct... the cases." [Dkt. 59 at 9.] First, the evidence received

15 strongly supported the extensive Findings of Fact (12, 24-47, Dkt. 45) the Comi made

16 otherwise. To succinctly illustrate, Finding of Fact 25 states "Judge Brown moreover 'direct[ed

17 Ian] to Rule 11, M.R.Civ.P.,specifically including Rule 1 l(b), relating to the representations

18 made to the Comi by a party upon the filing of any pleading,motion, or other paper, and the

19 availability of sanctions for a violation of Rule 11 by a party." (citing DV14-829, Dkt. 67 at

20 4.)] Finding of Fact 29, referencing the high threshold in Montana to dismiss claims,states

21 "[d]espite this high threshold, Judge Harada dismissed all of Ian's claims that she was

22 specifically asked to dismiss." (citing DV 18-536, Dkt. 28.) Finding of Fact 33 states "Judge

23 Knisely dismissed [Ian's lawsuit suing Womack personally] at the pleading stage." (citing DV

24

"Exhibit D"
 1 20-244, Dkt. 16). Lastly, in Finding of Fact 38, this Court opined "[i]t is remarkable Judge

2 Knisely had to threaten incarceration to achieve compliance with a comi order." (citing Ex. E-3

3 at 2).

4 Second and equally impotiant, the Montana Supreme Comi has strongly rejected the

5 argument Ian was not obstructionist. In re Estate of Elliot, 2022 MT 91N. "The record

6 demonstrates that, however sincere he may have been, Ian obstructed Womack's administration

7 with constant litigation and unfounded accusations. He filed numerous, lengthy motions

8 objecting to almost eve1y action by Womack, and even sued him twice personally. Ian forced

9 Womack to fight for virtually eve1y decision, even tl10se that the District Comi expressly

10 placed within his discretion, most notably obtaining a full accounting of StarFire." 2022 MT

11 91N at� 19. According to the Montana Supreme Court, Ian's position was "not the reality of

12 the situation." 2022 MT 91N at� 23. "Ian similarly struggled to stay within the scope of

13
13 questioning and limit his arguments to the present issues during hearings." Id at� 28.

14 Jenny, Alice, and Mike assert it was fraud on the Comi for Womack not to allow Jenny

15 and Ann to file a reply brief for Ian's claims regarding Ada's Estate on appeal to the Montana

16 Supreme Comi. [Dkt. 59 at 9-10.] "Only 'the most egregious conduct' [such as "bribery,

17 evidence fabrication, and improper attempts to influence the court by counsel"] will rise to the

18 level of fraud upon the court." Falcon v. Faulkner, 273 Mont. 327,332,903 P.2d 197,200

19
19 (Mont. I 995). Womack not allowing Jenny and Ann file a reply brief because the issue of

20 special administration was pending before the Court is not similar to these examples. Jenny,

2I Alice, and Mike quote Selway v. Burns, 429 P.2d 640 (Mont. 1967). [Dkt. 59 at 9-1 O.] Selway

22 does not suppmi their position. Fraud on the comi "may be achieved either by affirmatively

23 misrepresenting facts ...or by concealment of facts by a person who was under a legal duty to

24
G

"Exhibit D"
 I make a full disclosure to the court." 150 Mont. at 9,429 P.2d at 644 (internal citation omitted).

2 Womack exercising his legal right to oppose Jenny's and Ann's request to file a reply brief is

3 not affirmative misrepresentation or knowing concealment.

4 Jenny, Alice, and Mike reference Ex. A, which is now 0kt. 21 in DV 21-811. [0kt. 59

5 at 8.] Ex. A references inter alia Mont. Code Ann. § 72-3-902 and in-kind distributions,

6 condemns Womack's decision to have Wipfli perform an accounting, and accuses Womack of

7 artificially inflating expenses for his own personal gain. The Montana Supreme Court has

8 already rejected these arguments. "[T]he statute gives preference to in-kind distribution only to

9 the extent possible. As the personal representative, Womack 'ha[d] the power to sell estate

10 property if necessa1y for the estate's administration."' Estate of Elliot, 2022 MT 91N at� 22.

11 "[T]he accounting was essential to ending the seven years oflitigation over StarFire and the

12 almost five years of litigation over the Estate." Elliot, 2022 MT 91N at� 22. "Despite his oft-

13 stated purpose to save money for the Estate, Ian's interference objectively and significantly

14 increased costs and delays, further necessitating the second sale. Womack spent a considerable

15 amount of time responding to Ian's various motions and lawsuits, time which was necessarily

16 charged to the Estate." 2022 MT 91 N at� 23.

17 Lastly, Jenny, Alice, and Mike assert Womack and Cindy's attorney knowingly

18 presented the false testimony of Adrian Olson, Ian's nephew. [0kt. 59 at 11-12.] The Court

19 notes they do not challenge [see dkt. 59] Adrian's testimony that is the basis of the Comi's

20 Fomieenth Finding of Fact that states "Adrian provided compelling testimony regarding the

21 role of Jenny ... in Ian's ongoing litigation strategy." The Court's Finding of Fact 15 states that

22 "Adrian and Ian were very close ....Adrian would visit Ian in Montana yearly." Finding of Fact

23 16 calls Adrian a peacemaker for proposing a settlement to end Ian's and Cindy's longstanding

24
7

"Exhibit D"
 I litigation. Finding of Fact 17 observes "Cindy and Ian agreed[,] Jenny ... became upset with

2 Ian[, a] heated argument ensued, [and] Jenny's disagreement led Ian to reject Adrian's

3 proposal." Jenny, Alice, and Mike argue these findings are based on Adrian's false testimony

4 and cite the Court to Exs. B-F to their motion. [Dkt. 59 at 11-12.]

5 Ex.Eis an ang1y email dated July 4, 2012 from Adrian's email address to Ian. One

6 angry email does not show it was false for Adrian to testify he and Ian were ve1y close.

7 Moreover, Ex. F is an email from Ian to Adrian dated May 13, 2013 stating Ian and Ada "are

8 still hoping to hear from ... Adrian." Ian's email shows he did not want to cut all ties with

9 Adrian and did not believe Adrian's ang1y email meant they would no longer speak.

10 Ex. B is an August 15, 2013 letter from Cindy to Ian. Ex. C are conununications (two of

11 which occurred on August 16, 2013) from Ian stating he signed listing documents and asking

12 the August rental income be used for Ada's care. Ex.Dis a letter from a First Interstate Bank

13 Vice President dated October 19, 2015 responding to Ian's inquiries received on October 13,

14 2015.Exs. B, C, andDare wholly i!1'elevant to Adrian proposing and presenting a settlement to

15 Ian and Cindy in 2013. Contra1y to Jenny's, Alice's, and Mike's motion [dkt. 59 at 11-12],

16 Adrian's testimony did not reference a listing agreement or a property sale contract. Adrian

17 referenced "a very generic solution" that had not yet decided whether to use a real estate agent

18 or attorney. Further, when Jenny directly referenced a listing agreement when asking Adrian of

19 his proposal, Adrian answered "[i]t wasn't a conversation about listing the property, it was just

20 a family conversation."

21 Jenny, Alice, and Mike characterize the duty of the administrator oflan's estate is to

22 "act zealously in defending and protecting Ian's estate [from] adversaries Cindy and Womack."

23 [Dkt. 68 at 6.] As the Court stated in Finding of Fact 56 "Womack is not only the Special

24
8

"Exhibit D"
 1 Administrator of Ada's Estate but also Starfire's liquidating prutner. The major asset of Ada's

2 Estate is land still owned by StarFire. Thus, whether it is a special administrator or a personal

3 representative handling Ian's estate, that person must work with Womack."

4 Unsuitability authorizing removal as personal representative "may ...be based upon ... a

5 mental attitude toward his duty ...that creates reasonable doubt whether the executor or

6 administrator will act honorably, intelligently, efficiently, promptly, fairly and dispassionately

7 in his trust." District Attorney for the No1folk Dist. v. Magraw, 628 N.E.2d 24, 27 (Mass.

8 1994). Such unsuitability can also arise "upon any other ground for believing that his

9 continuance in office will be likely to render the execution of the will or the administration of

IO the estate difficult, inefficient or unduly protracted." Ashley v. Ashley, 405 S.W.3d 419, 426

11 (Ark. Ct. App. 2012). See, also, Long v. Willis, 113 So. 3d 80, 83-84 (2d Dist., Fla. Ct. App.

12 2013) ("Unsuitableness to administer may well consist in an adverse interest of some kind, or

13 hostility to those immediately interested in the estate, whether as creditors or distributees, or

14 even ofan interest adverse to the estate itself.") The Comt in detailed findings, concluded

15 Jenny would not work with Womack. [Dkt. 45.]

16 Lastly, Jenny, Alice, and Mike again ru·gue "Womack is not a creditor oflan's estate."

17 [Dkt. 68 at 6.] As the Comt stated in Conclusion of Law 18 of Dkt. 45:

18 "Judge Knisely issued an order approving an "[a]greement for StarFire ...to Make Loans
to Limited Partners and Heirs." [Ex. Z.] Moreover, in correspondence with Womack,
19 Ian called the transaction a "loan." [Ex. L.] Therefore, Womack is a creditor."

20 To sU111marize, like the Rule 59 motion Ian filed before Judge Knisely in the probate of

21 Ada's Estate, Jenny's, Alice's, and Mike's motion does "not remotely rise to the level required

22 for" the relief sought. [See DP 17-36, Dkt. 161 at 4.] Assuming arguendo Je1my, Alice, ru1d

23 Mike had shown falsity, the Montana Supreme "Comt has repeatedly held that fraud between

24
9

"Exhibit D"
1 the parties, such as perjured testimony at trial, does not rise to the level of fraud upon the

2 court." See In re Marriage of Hopper, 1999 MT 310, ,r 24, 297 Mont. 225, 991 P.2d 960. See,

3 also, Traders State Bank v. Mann, 258 Mont. 226, 237, 852 P.2d 604, 610-11 (Mont. 1993)

4 (partially overruled on other grounds) ("[F]orceful argument' and 'aitful pleading' do not rise

5 to the egregious conduct contemplated by this rule, but more closely relate to the Lawyer

6 Defendants' exercise of their duty to zealously represent their client.")

7 IT IS HEREBY ORDERED that Jenny's, Alice's and Mike's Motion to Vacate the

8 Comt's May 23, 2022 Order and to Allow an Independent Action for Fraud on the Comt IS

9 DENIED.

10 Jenny, Alice, and Mike lastly request the Court consolidate this case with DP 17-36, In

11 re Estate ofAda Elliot, and DV 21-811, Jan Elliot, individually and derivatively on behalf of

12
12 StarFire, L.P., v. Womack. [Dkt. 59 at 13-14.] Since the Comt is a probate cou1t, it has limited

13
13 jurisdiction. See In re Estate of Cooney, 2019 MT 293, ,r 13, 398 Mont. 166, 454 P.3d 1190

14 ("The probate comt's limited jurisdiction does not extend to adjudicating a breach of contract

15 claim."). Accordingly, the Comt cannot consolidate the cases.

16 IT IS HEREBY ORDERED that Jenny's, Alice's, and Mike's Motion to Consolidate

17 is DENIED.

18 DATED: this o/
l-
day of at"A� 2022.

19
19

20
Hon. Rod Souza, D ourt Judge
21

22 cc: Ann Taylor Sargent (via email) ann2022ian@gmail.com
23
23 Jenny Jing (via emaiJ) jennyianmt@gmail.com
24
IO

"Exhibit D"
 1 Joseph Womack, Esq. (via email) jwomack@jvwlaw.com

2 Cindy Elliot, via Jeffrey A. Hunnes, Esq. (via email) jhunneslw.feltmartinlaw.com

3 Cindy Elliot via Joseph Soueidi, Esq. (via email) jsoueidi@feltmartinlaw.com

4 Adrian Olson (via email) acelegstrong@yahoo.com
5
W. Scott Green, Esq. (via email) sgreen@ppbglaw.com
6
Holly Marie Dudley (via email) MotherHolly@gmail.com
7
Emily Sapp (via email) emilyesapp@gmail.com
8
Mike Bolenbaugh (via email) m.bolenbaugh@gmail.com
9
Alice Carpenter (via email) up2u2do@gmail.com
10

11 Shelley Paterson (via email) pattersonss@yahoo.com

12 Ray Ecton & Ian Elliot Trust, via email to Jenny and Ann at their emails supra

13 Andrew Billstein, Esq. (via email) andrew@bmslaw.com

14 Adrianna Potts, Esq. (via email) apotts@pottlawpllc.com

15
CERTIFICATE OF SERVICE
16 This is to certify that the foregoing was duly served by email/mail or hand
delivery upon the pat'lie r attorneys of record at their last known
�
17 addresses this � day� t?'IDQ2./\-,d0d-d-- .

18 BY �Mi'6 Q�
JudiciA:sistant to Hon. R So\(a
19

20

21

22

23

24
11

"Exhibit D"
 CERTIFICATE OF SERVICE

I, Michael Manning, hereby certify that I have served true and accurate copies of the foregoing
Motion - Opposed to the following on 01-23-2023:

Jeffery A. Hunnes (Attorney)
2825 3rd Avenue North
Suite 100
Billings MT 59101
Representing: Cindy Elliot
Service Method: eService

Jenny Jing (Appellant)
10 Alpine Place
Kearny NJ 07032
Service Method: E-mail Delivery

Alice Carpenter (Appellant)
P.O. Box 22702
Billings MT 59104
Service Method: E-mail Delivery

Mike Bolenbaugh (Appellant)
2351 Solomon Avenue, Apt. 334
Billings MT 59102
Service Method: E-mail Delivery

Joseph V. Womack (Appellee)
1001 S. 24th Street West, Suite 318
Billings MT 59102
Service Method: E-mail Delivery

Electronically signed by Amy Martin on behalf of Michael Manning
Dated: 01-23-2023