No. 01-434 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 164 

IN THE MATTER OF THE ESTATE OF 

LEO E. McDERMOTT, SR., 

Deceased, 

and 

IN THE MATTER OF THE ESTATE 

AND GUARDIANSHIP OF 

ALAN J. McDERMOTT, an incompetent 

person. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Anaconda-Deer Lodge, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Alan F. Blakley, Blakley & Velk, Missoula, Montana 

For Respondents: 

D. Patrick McKittrick, McKittrick Law Firm, Great Falls, Montana 

 Submitted on Briefs: December 13, 2001 

 Decided: July 25, 2002 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Patricia O. Cotter delivered the Opinion of the Court. 

¶1 Appellant Leo E. McDermott Jr. appeals from an order issued by 

the Third Judicial District Court, Anaconda-Deer Lodge County, 

which consolidated two causes of action, ordered proceedings from 

the sale of real estate be deposited into a guardianship account, 

and awarded attorney fees and costs to Respondents Patricia Raunig 

and Helen Ricci. We affirm. 

¶2 We address the following restated issues on appeal: 

¶3 1. Did the District Court err when it consolidated the 

probate and guardianship proceedings? 

¶4 2. Did the District Court err when it ruled that the 1973 

transaction concerning Leo E. McDermott Sr.’s residence created a 

constructive trust for the benefit of Alan McDermott? 

¶5 3. Did the District Court err when it awarded attorney fees 

to Respondents Patricia Raunig and Helen Ricci? 

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Decedent Leo E. McDermott Sr. (“Senior”) fathered six 

children, four of which are involved in this action: Alan McDermott 

(“Alan”); Appellant Leo E. McDermott Jr. (“Junior”); and 

Respondents Patricia Raunig and Helen Ricci. In 1972, Alan 

sustained a serious brain injury as a result of a motorcycle 

accident. Following the accident, Junior was appointed as Alan’s 

legal guardian in December of 1972. In December of 1973, Junior 

filed an annual accounting which valued Alan’s estate at 

approximately $62,000. However, Junior neglected to file another 

accounting until 1999. 
3 

¶7 From 1972 until 1998, Alan lived with his father at Senior’s 

residence in Sunnyside Addition near Anaconda, Montana. In July of 

1973, Senior executed a deed which conveyed 

the Sunnyside residence to Junior. Junior recorded this deed on 

February 25, 1975. In 1986, Junior purportedly executed a deed 

which conveyed the Sunnyside residence back to Senior. However, 

Junior vehemently disputes the validity of the alleged reconveyance and contends that someone forged his signature on the 

1986 deed. 

¶8 In 1991, Senior executed a will which devised the Sunnyside 

residence, together with its contents and personal belongings, to 

Alan, Junior, Patricia, and Helen. Then, on September 23, 1992, 

Senior executed a deed to the Sunnyside residence which purportedly 

retained a life estate for himself and conveyed a future interest 

in the residence to Junior, Patricia, and Helen as joint tenants 

with right of survivorship. 

¶9 On December 21, 1998, Senior died and Alan moved in with 

Patricia. On January 29, 1999, Patricia, appointed as personal 

representative of Senior’s estate, filed a petition for informal 

probate of Senior’s will in Cause Number DP-99-4. Shortly 

thereafter, Patricia and Helen learned that Junior had not filed an 

accounting on Alan’s behalf since 1973. Therefore, in an action 

separate from DP-99-4, on February 24, 1999, Patricia and Helen 

requested that the District Court substitute them as Alan’s coguardians in the place of Junior. Patricia and Helen also 

requested that the District Court order Junior to file a 
4 

contemporaneous accounting of Alan’s estate. On May 12, 1999, the 

District Court granted both of the requests in the guardianship 

action, Cause Number 5838. 

¶10 On July 1, 1999, in the probate proceeding (DP-99-4), Patricia 

informed the District Court that the Sunnyside residence had been 

sold and moved the District Court to deposit the proceeds in an 

account monitored by the Court, pending resolution of Junior’s 

obligations in the guardianship action. On July 6, 1999, the Court 

granted Patricia’s motion, subject to Junior’s obligations in Cause 

Number 5838. On September 23, 1999, Junior filed what the District 

Court described as a “woefully inadequate” accounting of Alan’s 

estate in Cause Number 5838. 

¶11 On November 15, 1999, Junior moved the District Court to 

release the proceeds of the residence’s sale to him as he “held the 

real property in fee simple” pursuant to the terms of the 1973 

conveyance. As the false signature on the 1986 deed “could not 

pass title even to a bona fide purchaser,” Junior argued that 

Senior had no interest in the property to convey on September 23, 

1992. Conversely, Patricia and Helen argued, in part, that “[w]hen 

[Senior] transferred the subject property to [Junior] in 1973, he 

did so for purposes of effectuating the Guardianship of Alan and to 

insure Alan had a home.” While Patricia and Helen maintained that 

the subsequent conveyances were valid, they also argued that Senior 

conveyed the property to Junior for the benefit of Alan, thereby 

creating a constructive trust. Consequently, Patricia and Helen 
5 

argued that Junior would “be unjustly enriched if he were allowed 

to retain the property or receive the sale proceeds.” 

¶12 In the ensuing months, the parties filed several documents in 

both actions, including a motion for fees and costs in the 

guardianship action, and motions for sanctions in the probate 

action. Finally, on November 28, 2000, the District Court issued 

its findings of fact, conclusions of law, and order in which it 

consolidated the two actions. The District Court found that the 

1973 transaction established a constructive trust for the benefit 

of Alan. Therefore, the District Court ordered that all proceeds 

from the sale of the Sunnyside residence be deposited in the 

guardianship account for Alan. Further, the District Court ordered 

Junior to pay eighty percent of Respondents’ attorney fees and 

costs, and Junior’s attorney to pay the remaining twenty percent of 

their fees and costs. Junior appeals that portion of the District 

Court’s order which consolidated the two actions, found that the 

1973 transaction established a constructive trust, and awarded 

attorney fees. 

DISCUSSION

ISSUE 1 

¶13 Did the District Court err when it consolidated the probate 

and guardianship proceedings?

¶14 Consolidation rests in the discretion of the court and will 

not be overturned absent a clear abuse of discretion. Tribby v. 

Northwestern Bank of Great Falls (1985), 217 Mont. 196, 208, 704 

P.2d 409, 417. To determine whether a district court abused its 
6 

discretion, we review the case to ascertain whether the court acted 

arbitrarily without employment of conscientious judgment or 

exceeded the bounds of reason resulting in substantial injustice. 

In re Marriage of Moss, 1999 MT 62, ¶ 15, 293 Mont. 500, ¶ 15, 977 

P.2d 322, ¶ 15. 

¶15 The record provides little indication as to the specific date 

whereon the District Court consolidated the probate and 

guardianship matters. As Junior points out, on January 26, 2000, 

in an order utilizing a consolidated caption, the District Court 

ordered that “the outstanding issues in the above-captioned case 

shall be submitted to Mediation . . . .” Then, on February 9, 

2000, the District Court granted Respondents’ motion to file 

discovery responses under an order which referred solely to the 

probate matter. Finally, on February 23, 2000, the District Court 

directed the parties to submit proposed findings of fact, 

conclusions of law, and supporting briefs in an order reverting 

back to the consolidated caption. While this inconsistent practice 

does create some confusion as to the initial status of the matters, 

the District Court, on November 28, 2000, found that “[t]he above 

two Causes are interrelated and therefore the Court will address 

both Causes within these Findings and Conclusions.” 

¶16 Junior argues that the two actions involve “clearly different 

parties” and contemplate entirely different legal and factual 

issues. Therefore, Junior urges us to remand the two causes for 

separate consideration as “[c]onsolidation of the two cases was 

clearly inappropriate.” We disagree. 
7 

¶17 Rule 42(a), M.R.Civ.P., provides: 

Consolidation. When actions involving a common 

question of law or fact are pending before the court, it 

may order a joint hearing or trial of any or all the 

matters in issue in the actions; it may order all the 

actions consolidated; and it may make such orders 

concerning proceedings therein as may tend to avoid 

unnecessary costs or delay. 

¶18 We agree that the probate and guardianship proceedings did not 

contemplate similar issues at their inception. The guardianship 

action simply sought a substitution of Alan’s legal guardian and an 

accounting of Alan’s estate. On the other hand, the probate action 

sought to informally probate Senior’s will. At this point, the 

only similarity enjoyed by the separate actions was the parties 

involved, i.e., each cause pitted Respondents against Junior and 

concerned Alan in some fashion or another. 

¶19 However, as the arguments developed in the probate action, it 

became apparent that a common bond conjoined the two proceedings. 

That common bond was the ownership interest in the proceeds from 

the sale of the Sunnyside residence. In the probate action, the 

parties proffered evidence surrounding four alleged conveyances of 

the Sunnyside residence. Each respective conveyance contemplated a 

unique composition of grantees. At least two of the ownership 

theories implicated Alan’s potential interest in the property. 

Therefore, the accounting and value of Alan’s estate had a direct 

correlation to the District Court’s determination regarding the 

Sunnyside residence. As such, the two actions shared common 

questions of both law and fact. 
8 

¶20 Like most discretionary matters, one could probably fashion an 

argument supporting either perspective. However, the District 

Court determined that the collective interests would be better 

served by consolidating the matters. Despite this conclusion, 

Junior was given every opportunity to participate, and did in fact 

participate, in every proceeding irrespective of its origin. 

Consequently, Junior suffered no injustice at the hands of judicial 

economy. We hold that the District Court did not act arbitrarily 

or exceed the bounds of reason when it consolidated the two 

matters. 

ISSUE 2 

¶21 Did the District Court err when it ruled that the 1973 

transaction concerning Leo E. McDermott Sr.’s residence created a 

constructive trust for the benefit of Alan McDermott?

¶22 The standard of review governing proceedings in equity is 

codified at § 3-2-204(5), MCA, which directs the appellate court to 

review and determine questions of fact as well as questions of law. 

Gitto v. Gitto (1989), 239 Mont. 47, 50, 778 P.2d 906, 908. We 

review a district court’s findings of fact to ascertain whether 

they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 

320, 324, 888 P.2d 904, 906. A finding is clearly erroneous if it 

is not supported by substantial evidence, if the trial court 

misapprehended the effect of the evidence, or if our review of the 

record convinces us that the district court made a mistake. 

Kovarik v. Kovarik, 1998 MT 33, ¶ 20, 287 Mont. 350, ¶ 20, 954 P.2d 

1147, ¶ 20. Further, we review a district court’s conclusions of 
9 

law to determine whether they are correct. Carbon County v. Union 

Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. 

¶23 Junior argues that to impose a constructive trust, Respondents 

had to prove by clear and convincing evidence that Junior committed 

fraud or exerted undue influence over Senior in regard to the 1973 

conveyance. While allegations of fraud have been raised regarding 

Junior’s conduct in the ensuing years, Junior maintains that 

Respondents presented no evidence of the same in 1973. 

Consequently, Junior contends that Respondents failed to carry 

their burden of proof, and insists that the District Court erred in 

imposing a constructive trust over the proceeds from the sale of 

the Sunnyside residence. 

¶24 Montana law recognizes two general categories of trusts, 

voluntary and involuntary. Involuntary trusts arise independently 

of any express contract and may be proven by parol evidence. 

Gitto, 239 Mont. at 50, 778 P.2d at 909. Within the category of 

involuntary trusts, two subclasses exist: resulting trusts and 

constructive trusts. Under § 72-20-111, MCA (repealed 1989), 

constructive trusts could arise upon a showing of fraud, accident, 

mistake, undue influence, the violation of a trust, or other 

wrongful acts. 

¶25 However, in 1989, the Legislature repealed § 72-20-111, MCA, 

and enacted the Trust Code, codified at Title 72, Chapters 33-36 of 

the Montana Code Annotated. Constructive trusts are now imposed 

pursuant to § 72-33-219, MCA, which provides: 
10 

Constructive Trust. A constructive trust arises 

when a person holding title to property is subject to an 

equitable duty to convey it to another on the ground that 

the person holding title would be unjustly enriched if he 

were permitted to retain it. 

Thus, Montana law no longer requires a showing of fraud or other 

wrongful acts as a prerequisite to imposing a constructive trust 

pursuant to § 72-33-219, MCA. 

¶26 Although a constructive trust may be imposed because the title 

holder obtained title by fraud, accident, mistake, undue influence, 

the violation of a trust, or other wrongful act, a constructive 

trust may also be imposed pursuant to § 72-33-219, MCA, in cases 

where a title holder innocently obtained title to property but 

would be unjustly enriched if he were allowed to retain the title. 

Moss, ¶ 29. While the 1973 transaction in question clearly arose 

prior to the new statute’s enactment, § 72-33-102(1), MCA, provides 

that “[a]fter September 30, 1989, chapters 33 through 36 apply to 

all trusts regardless of when they were created” unless the court 

believed such application would interfere with the rights of the 

parties and other interested persons. 

¶27 As to the 1973 conveyance and subsequent ownership of the 

residence, the District Court entered the following findings: 

4. [Senior] executed a deed for the family home to 

[Junior] in July 1973 with the intended result to be that 

Alan would have a place to live as is evidenced by: 

a) [Junior’s] comments in Exhibit 6 of the David 

McLean deposition which reflects, “I have arranged with 

Dad to keep our family home in Sunnyside for a home for 

Alan.” 

b) David McLean’s deposition on page 63. [McLean 

testified that Senior stated, “Fine. I’m going to deed 

to you the house. Then, when I go you got a place to 

take care of Alan.”] 
11 

c) the two affidavits of Norma Fitzgerald. 

[Stating: “The reason Leo McDermott Jr. was first deeded 

the property was to help take care of Alan McDermott as 

Leo Jr. was then guardian.”] 

. . . . 

30. The record reflects that [Junior] has also 

communicated several inconsistencies and has communicated 

in a fraudulent manner regarding his purported ownership 

of the Sunnyside property, as is identified below: 

. . . . 

c). In the mid 1990's [sic] [Junior] filed 

bankruptcy. He did not list the Sunnyside home as one of 

his assets. 

d). In 1991 [Junior] was divorced. He did not 

identify the Sunnyside 

home as one of his assets. 

e). On deposition Exhibit 3, a loan application for 

a boat, [Junior] indicates that the Sunnyside home is 

owned by [Senior]. 

f). On page 14 lines 18 through 20 of his 

deposition [Junior] declares that he has never 

fraudulently made any legal documents. 

31. In this case [Junior] argues that the Sunnyside home 

is his, yet in his divorce proceedings and in his 

bankruptcy proceedings he did not declare the Sunnyside 

home as being his. [Junior] is either attempting to 

commit a fraud upon this Court in this case or has 

committed fraud during the course of his bankruptcy 

proceedings and his divorce proceedings. Based upon the 

record herein, the Court believes that [Junior] is 

attempting to fraudulently acquire exclusive ownership of 

the Sunnyside property. 

. . . . 

33. [Junior] states that [Senior] gave him the house by 

the 1973 deed yet [Junior] has never paid any gift tax 

nor had [Junior] ever paid any property taxes on the 

house prior to [Senior’s] death. 

Based on the foregoing, the District Court concluded: 

24. The history surrounding the Sunnyside property 

including the transfer of the Sunnyside property to 

[Junior] in 1973 supports the creation of a constructive 

trust. There was never a transfer of ownership of the 

Sunnyside property from [Senior] to [Junior]. Ownership 
12 

of the Sunnyside property remained with [Senior] until 

the time of his death. The constructive trust was 

created for the benefit of Alan. No ownership interest 

transferred to [Junior]. 

¶28 There is ample evidence in the record to support the 

District Court’s findings. Undoubtedly, Junior would be enriched, 

to the extent of $80,000, if he were to receive the proceeds from 

the sale of the Sunnyside residence. Further, for the reasons 

articulated above by the District Court, we conclude that this 

enrichment would have been unjust. Therefore, we hold that the 

District Court did not err when it imposed a constructive trust 

upon the proceeds of the Sunnyside residence. 

¶29 Junior challenges the District Court’s findings and 

conclusions regarding the validity of the post-1973 conveyances. 

However, the District Court premised its ultimate ruling on the 

finding and imposition of a constructive trust which resulted from 

the 1973 transaction. As we have held that the District Court 

correctly imposed a constructive trust in regard to the 1973 

transaction, we need not examine Junior’s arguments as they pertain 

to the subsequent conveyances. 

ISSUE 3 

¶30 Did the District Court err when it awarded attorney fees to 

Respondents Patricia Raunig and Helen Ricci?

¶31 A district court’s grant or denial of a motion for attorney 

fees is a discretionary ruling which we review to determine whether 

the court abused its discretion. Braach v. Graybeal, 1999 MT 234, 

¶ 6, 296 Mont. 138, ¶ 6, 988 P.2d 761, ¶ 6. 
13 

¶32 Although somewhat difficult to ascertain, it appears that 

Junior raises two issues with regard to the award of attorney fees. 

 First, Junior argues that “the trial court had no basis to award 

attorney fees . . . and this Court should reverse that order in its 

entirety.” Second, assuming that we affirm the award of attorney 

fees, Junior contends that the District Court erroneously failed to 

hold a hearing to determine the appropriate extent of the award. 

Therefore, we will address each argument in turn. 

¶33 In response to Respondents’ motion for attorney fees and costs 

and Junior’s respective opposition, the District Court, on November 

28, 2000, found the following: 

22. Attorney fees and costs were incurred by the 

sisters in part due to [Junior’s] deception, 

contradiction, and fraud. [Junior’s] deceptive and 

fraudulent behavior, as well as his contradictory 

statements are identified throughout the text of these 

Findings and Conclusions. As a result of [Junior’s] 

deception, contradiction and fraudulent behavior 

considerable time, effort and expense have been spent in 

an attempt to arrive at a reasonable understanding of the 

condition of the guardianship estate and of the true 

ownership of the Sunnyside property. 

23. The record reflects that [Junior] and his 

counsel have taken every opportunity to obstruct and 

avoid a resolution of the issues in this case by filing 

at best questionable motions to dismiss and for sanctions 

as well as taking positions that are not supported by law 

or facts and failing to mediate the issues in good faith. 

 By doing so, [Junior] and his counsel have needlessly 

protracted this litigation at considerable expense to the 

sisters. 

Based on the above findings, the District Court ordered Junior to 

pay eighty percent of Respondents’ attorney fees and costs and 

Junior’s attorney to pay the remaining twenty percent. 
14 

¶34 In In re Support of K.F. (1988), 232 Mont. 326, 331, 756 

P.2d 460, 463, we reaffirmed the proposition that a district court 

has the equitable power to order attorney fees when justice so 

requires. Further, § 37-61-421, MCA, authorizes a district court 

to award attorney fees, costs, and expenses against “[a]n attorney 

or party . . . who . . . multiplies the proceedings in any case 

unreasonably and vexatiously . . . .” See also In re Marriage of 

Rager (1994), 263 Mont. 361, 366, 868 P.2d 625, 628. As there is 

substantial evidence in the record to support the above findings, 

we conclude that the District Court did not abuse its discretion in 

awarding attorney fees and costs to Respondents. Therefore, we 

must next determine whether the actual monetary award was 

reasonable. 

¶35 In its November 28, 2000 ruling, the District Court ordered 

counsel for Respondents to “submit his bill for attorney fees and 

costs to the Court with a supporting affidavit for review and 

approval by the Court.” Consequently, on February 27, 2001, 

Respondents’ counsel submitted the requested bill and corresponding 

affidavit. On March 20, 2001, the District Court approved 

Respondents’ alleged fees and costs. In the months that followed, 

Junior’s attorney remitted his twenty percent share of the fees and 

costs in full satisfaction of his obligation. 

¶36 On appeal, Junior insinuates that the bill of fees and costs 

contained expenses for which he should not be held responsible. 

Junior argues that the District Court should have held a hearing 

following submission of the bill instead of “simply rubber-
15 

stamp[ing] the affidavit of counsel for respondents . . . .” In 

support of his position, Junior cites Lindey’s, Inc. v. Goodover

(1994), 264 Mont. 489, 872 P.2d 767, for the proposition that due 

process requires notice and a hearing before attorney fees may be 

awarded. 

¶37 Junior’s reliance on Lindey’s is misplaced. In Lindey’s, we 

held that a hearing is necessary to provide a party a sufficient 

opportunity to defend against the imposition of Rule 11, 

M.R.Civ.P., sanctions. Lindey’s, 264 Mont. at 497, 872 P.2d at 

772. Here the District Court did not rely on Rule 11, M.R.Civ.P., 

for its award of attorney fees and costs. Moreover, Junior was on 

notice that fees would be awarded, and had an opportunity to 

challenge the amount. 

¶38 Junior filed a brief in opposition to Respondents’ request for 

an award of fees. Thus, he was heard by the Court with respect to 

the propriety of a fee award. Subsequently, Respondents submitted 

a bill of expenses together with supporting affidavit. At this 

point, Junior had the opportunity to be heard with respect to the 

amount of the requested fees and expenses. However, in the three 

weeks following the submission of the affidavit and bill of 

expenses, Junior filed no objections to the bill of expenses. The 

District Court was therefore justified in entering an order 

approving the bill of expenses as submitted. 

¶39 Not only did Junior fail to object to the bill of expenses, 

his attorney appeared to acquiesce in the order when he remitted 

his twenty percent of the award in due course. Now, on appeal, 
16 

Junior asks us to overturn the District Court’s award. It is well 

settled that we will not address an issue on appeal that a party 

did not properly raise in the district court. Nason v. Leistiko, 

1998 MT 217, ¶ 11, 290 Mont. 460, ¶ 11, 963 P.2d 1279, ¶ 11. As 

stated above, Junior did not raise an objection to the alleged fees 

and costs following Respondents’ submission of the same. Instead 

Junior challenges the fees and costs for the first time on appeal. 

 Therefore, we decline to address the reasonableness of the award. 

¶40 Affirmed. 

/S/ PATRICIA COTTER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ JIM RICE 
17 

Justice Terry N. Trieweiler dissenting. 

¶41 I dissent from the majority Opinion. The findings, 

conclusions and order of the District Court are so riddled with 

procedural irregularity and substantive inconsistency that I 

reluctantly conclude that the order must be reversed. 

¶42 First, there was no procedural basis for the District Court's 

sua sponte consolidation of the proceeding for an accounting in 

Alan J. McDermott's guardianship and a contest to the distribution 

of property in Leo E. McDermott, Sr.'s, estate. As noted in the 

majority Opinion, Rule 42(a), M.R.Civ.P., permits consolidation of 

actions involving a common question of law or fact. There were 

neither legal nor factual issues common to these two cases. 

¶43 In the guardianship action, Alan's sisters sought an 

accounting from Leo McDermott, Jr., of how he handled assets which 

had been entrusted to him as Alan's conservator. Those assets were 

clearly limited to the principal and interest remaining in Alan's 

estate following deposit in that estate of his personal injury 

settlement and the expenditures that were made on Alan's behalf 

from that principal and interest. 

¶44 The probate proceedings involved Leo McDermott, Jr.'s, 

challenge to the distribution of the proceeds from the sale of the 

Sunnyside residence. Leo, Jr., contended that he owned the 

residence following the transfer to him by Leo, Sr., in 1973. His 

sister, the personal representative of the estate, contended that 

it was transferred from Leo, Jr., back to Leo, Sr., in 1986 and 

then transferred by a third conveyance from Leo, Sr., to himself 
18 

and three of his children and then finally devised to three of his 

children, including Leo, Jr., by his last will and testament. None 

of the issues in the probate proceeding are factually or legally 

related to what Leo, Jr., did with the personal injury proceeds 

entrusted to him as Alan's conservator. 

¶45 The two separate and independent proceedings were simply 

consolidated by the District Court to facilitate the District 

Court's arbitrary satisfaction of the claim that Leo, Jr., breached 

his fiduciary duty to his brother Alan. However, there was neither 

statutory nor common law authority for doing so. Nor is any cited 

in the majority Opinion. 

¶46 Closer examination of the District Court's decision on the 

merits also reveals highly irregular findings and conclusions 

unsupported by any legal theory of which I am aware. First, the 

District Court sets forth extensive evidence which seems to lead to 

the inevitable finding that Leo, Jr., did in fact transfer title to 

the Sunnyside property back to Leo, Sr., in 1986. The District 

Court ultimately states in its findings that, "[b]ased upon the 

record herein, the Court believes that Jr. is attempting to 

fraudulently acquire exclusive ownership of the Sunnyside 

property." I would, therefore, infer from the District Court's 

findings that Leo, Jr., transferred the Sunnyside property back to 

Leo, Sr., in 1986. If that is the case, then Leo, Sr., owned the 

Sunnyside property when, in 1991, he executed a will which devised 

it to four of his children including Leo, Jr. He also owned the 

property when, in 1992, he executed the deed which retained a life 

estate for himself and conveyed a future interest to three of his 
19 

children, including Leo, Jr. If those are the facts, then what 

authority did the District Court have to transfer the entire 

proceeds from the sale of the Sunnyside property to Alan's 

conservatorship estate as a sanction for Leo, Jr.'s, breach of his 

fiduciary duty to manage that estate for Alan's best interest? At 

most, Leo, Jr., had a 33_% interest and the proceeds from the sale 

of the home. 

¶47 Furthermore, the District Court did not simply find that the 

1973 transaction established a constructive trust for the benefit 

of Alan and then order that the proceeds from the Sunnyside 

residence be deposited in Alan's guardianship account, as suggested 

in the majority Opinion. Instead, the District Court inexplicably 

concluded that because a constructive trust had been created: 

There was never a transfer of ownership of the Sunnyside 

property from Sr. to Jr. Ownership of the Sunnyside 

property remained with Leo Sr. until the time of his 

death. The constructive trust was created for the 

benefit of Alan. No ownership interest transferred to 

Leo Jr. 

¶48 The District Court's analysis of legal ownership following the 

1973 transaction is a legal impossibility. If the property was 

transferred in trust for Alan, title was still transferred to Leo, 

Jr., as the trustee. If Leo, Sr., retained the title as the 

District Court concluded, then there was no trust for Alan, Leo, 

Sr., did not transfer any title, and the property passed by 

conveyance in the 1992 transaction. Either way, there was simply 

not $80,000 of proceeds from the sale of the Sunnyside residence to 

arbitrarily transfer to Alan's conservatorship account. 
20 

¶49 Finally, there was no authority for the District Court to 

confiscate any of Leo, Jr.'s, property and arbitrarily transfer it 

to Alan. The remedy for breach of a fiduciary duty is a suit for 

the damage resulting from that breach and entry of a judgment for 

the amount of damage proven. Here, there was no separate suit for 

breach of fiduciary duty. There was an accounting action in which 

Leo, Jr.'s, sisters also sought their substitution as conservator 

of Alan's estate and there was a probate proceeding in which title 

to certain property was disputed. To simply combine these two 

independent and separate proceedings and then fashion an 

"equitable" remedy by grabbing some property here and moving it 

there is the height of arbitrariness and disregard for rules of 

procedure and substantive law. However, all concern for law seems 

to have been lost in the District Court’s and the majority's 

revulsion at what they assume was Leo, Jr.'s, irresponsible 

administration of Alan's money. If what happened in this case is 

acceptable, then this Court has removed any restrictions on the 

motion of an "equitable remedy." 

¶50 For these reasons, I dissent from the majority Opinion. 

/S/ TERRY N. TRIEWEILER