Matter of H.D.K.

OPICANAL 11/09/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0011
DA 21-0011
FILED
NOV 0 9 2021
Bowen Greenwood
IN THE MATTER OF THE Clerk of Supreme
Court
State of Montana
CONSERVATORSHIP OF:
ORDER
H.D.K.,
A Protected Person.
Appellant T.K. filed a petition for rehearing of this Court's October 5, 2021, Opinion
affirming the Fourth Judicial District Court's Findings of Fact and Conclusions of Law.
In the Matter ofH.D.K., 2021 MT 254. Appellees H.D.K. and S.K.H. object to the petition.
Under M. R. App. P. 20, this Court seldom grants petitions for rehearing. The Rule
makes clear that this Court will entertain a petition for rehearing on very limited grounds.
This Court will consider a petition for rehearing only if the opinion "overlooked some fact
material to the decision," if the opinion overlooked a question that would have decided the
case, or if the "decision conflicts with a statute or controlling decision not addressed" by the
Court. M. R. App. P. 20.
T.K. raises three primary issues in his petition. He argues first that this Court erred by
failing to consider his present interest in certain properties affected by the District Court's
Order. The District Court's Order reflects the parties' understanding, including T.K.'s
testimony, that H.D.K.'s estate planning would require some property transfers and affect
T.K.'s and S.K.H.'s present interests. Moreover, T.K. raised this issue for the first time in
his reply brief. We have long held that issues not raised before the district court will not be
considered on appeal. See, e.g., Martz v. Beneficial Mont., Inc., 2006 MT 94, ¶ 25,
332 Mont. 93, 135 P.3 d 790.
Second, T.K. argues this Court misconstrued or ignored several facts. First, T.K.
argues we overlooked or conflated evidence concerning Dirk Williams's credibility. It is the
District Court's province, not ours, to judge the credibility of witnesses. See Owen v.
Skramovsky, 2013 MT 348, ¶ 22, 372 Mont. 531, 313 P.3d 426. Second, T.K. urges the
Court to reassess his procedural and substantive due process claims considering his newly
available proposed Findings of Fact and Conclusions of Law. We note first that T.K.'s
substantive due process claim arises for the first time in his petition for rehearing. Because
M. R. App. P. 20(1)(a) requires petitioners to identify or establish, among other things, that
this Court "overlooked some question presented by counsel that would have proven decisive
to the case[,]" it is manifest that new arguments cannot be raised in a petition for rehearing.
Moreover, as we stated in our Opinion, "H.D.K.'s best interests, not [T.K.'s], were the focus
of the proceeding." Opinion, ¶ 21. T.K.'s newly discovered Findings of Fact and
Conclusions of Law do not change this fundamental conclusion.
Finally, T.K. takes issue with the Court's characterization of certain facts and argues
we overlooked additional material facts. First, the characterization of T.K.'s son's
interaction with H.D.K. had no bearing on the Court's analysis and accordingly cannot be
considered "material." Second, T.K. points to conflicting evidence of H.D.K.'s intent to
argue the Court factually erred in concluding H.D.K.'s testamentary intent remained
consistent. We considered the evidence and, as we stated in the Opinion, we decline to
substitute our judgment for the District Court's where conflicting evidence exists.
Opinion, ¶ 43. T.K. may disagree with our conclusion, but he has presented no material facts
we overlooked.
Having fully considered T.K.'s petition and the Appellees' response, the Court
concludes that rehearing is not warranted under Rule 20. The Court did not overlook
material facts or issues raised by the parties or fail to address a controlling statute or decision
that conflicts with the Opinion.
IT IS THEREFORE ORDERED that the petition for rehearing is DENIED.
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The Clerk is directed to provide copies of this Order to all parties and counsel of
record.
Dated this day of November, 2021.
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Chief Justice
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Justices
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