In the Matter of the Estate of Stukey

2009 MT 167N

IN THE MATTER OF THE ESTATE OF ERNESTINE STUKEY, Deceased.

No. DA 08-0094.

Supreme Court of Montana.

Submitted on Briefs: December 10, 2008 Decided: May 13, 2009.

For Appellants: Steven T. Potts, Thompson, Potts & Donovan, Great Falls, Montana.

For Appellee Charlene Howard: Ward E. Taleff, Taleff Law Office, Great Falls, Montana.

Justice JOHN WARNER, delivered the Opinion of the Court.

¶ 1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not becited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 Evon Leistiko, Tessa Leistiko, Laura Leistiko, Tyson Leistiko, Curtis Clark, Melody Klisch, and Cherie Smith (Stukey heirs) appeal from an order of the District Court of the Eighth Judicial District, Cascade County, denying the Stukey heirs' motion to compel discovery and granting attorney fees and costs to Charlene Howard.

¶ 3 Ernestine Stukey died on March 8, 2001. Evon Leistiko is Ernestine's daughter and the other Stukey heirs are Ernestine's grandchildren. Charlene Howard is Ernestine's niece. The extensive history of this case can be found in In re Estate of Stukey, 2004 MT 279, 323 Mont. 241, 100 P.3d 114 (Stukey I), and In re Estate of Stukey, 2005 MT 349, 330 Mont. 401, 126 P.3d 507 (Stukey II).

¶ 4 In April 2007, the personal representative petitioned for approval of the final account of Ernestine's estate. At that time, Howard moved for $31,614 in attorney fees and costs related to prior estate litigation, to be paid from the Stukey heirs' portion of the estate. The Stukey heirs objected to Howard's motion and, in conjunction with the objection, requested discovery. Howard objected to the discovery requests as irrelevant or privileged. The Stukey heirs moved to compel.

¶ 5 The record reflects that the District Court held a hearing on the remaining issues in this estate on June 27, 2007. The transcript of the hearing shows counsel for Howard had filed an affidavit and brief concerning the amount he claimed as attorney fees. Counsel for the Stukey heirs stated that the District Court could resolve "all of it based on briefs" and that a response would be filed. On October 24, 2007, the District Court denied the Stukey heirs' motion to compel discovery and ordered the Stukey heirs' distribution reduced by the amount of Howard's attorney fees and costs.

¶ 6 A District Court's ruling on discovery is reviewed for abuse of discretion. In re Estate of Bolinger, 1998 MT 303, ¶ 24, 292 Mont. 97, 971 P.2d 767. We review a District Court's award of attorney fees for abuse of discretion. In re Estate of McMurchie, 2004 MT 98, ¶ 8, 321 Mont. 21, 89 P.3d 18.

¶ 7 Parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." M. R. Civ. P. 26(b)(1). The Stukey heirs waived further discovery at the June 27, 2007, hearing by stating that the matter could be decided based on briefs and by not requesting a further hearing, which the District Court had offered to hold upon request. The District Court did not abuse its discretion by not ordering discovery.

¶ 8 The Stukey heirs contest only the decision to award attorney fees. They have not objected on appeal to the amount of the fees awarded.

¶ 9 Several statutory bases for an award of fees exist in this case, including: § 37-61-421, MCA, (assessing excess costs for multiplying the proceedings unreasonably and vexatiously); § 72-1-111, MCA, of the Uniform Probate Code (providing restitution against the perpetrator of fraud); and M. R. Civ. P. 11 (providing for sanctions including costs and reasonable attorney fees when an attorney submits a document for an improperpurpose, such as to delay proceedings).

¶ 10 On the face of the briefs and the record on appeal, it is manifest that the appeal is without merit as the issues are clearly controlled by settled Montana law, which the District Court correctly interpreted, and because there is clearly sufficient evidence to support the District Court's order awarding fees to Howard to be paid from the Stukey heirs' share ofthe estate.

¶ 11 Howard has petitioned for an award of costs and attorney fees on appeal. We conclude such should be granted.

¶ 12 Affirmed. Remanded to the District Court to assess costs and determine the reasonable amount of attorney fees to be awarded to Howard.

JUSTICE W. WILLIAM LEAPHART, BRIAN MORRIS, PATRICIA COTTER and JAMES C. NELSON concur.