DA 08-0094

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 167N

IN THE MATTER OF THE ESTATE OF

ERNESTINE STUKEY,

Deceased.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. ADP 01-068

Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Steven T. Potts, Thompson, Potts & Donovan, Great Falls, Montana

For Appellee Charlene Howard:

Ward E. Taleff, Taleff Law Office, Great Falls, Montana

Submitted on Briefs: December 10, 2008

Decided: May 13, 2009

Filed:

__________________________________________

Clerk

May 13 2009
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Justice John Warner delivered the Opinion of the Court.

¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

OperatingRules, as amended in 2003, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe 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, CurtisClark, 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 ofthe final account

of Ernestine’s estate. At that time, Howard moved for $31,614 in attorney fees and costs

related to prior estate litigation, to be paid from the Stukey heirs’ portion of the estate. The

Stukey heirs objected to Howard’s motion and, in conjunction with the objection, requested

discovery. Howard objected to the discovery requests as irrelevant or privileged. The
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Stukey heirs moved to compel.

¶5 The record reflects that the District Court held a hearing on the remaining issues in

this estate on June 27, 2007. The transcript of the hearing shows counsel for Howard had

filed an affidavit and brief concerning the amount he claimed as attorney fees. Counsel for

the Stukey heirs stated that the District Court could resolve “all of it based on briefs” and

that a response would be filed. On October 24, 2007, the District Court denied the Stukey

heirs’ motion to compel discovery and ordered the Stukey heirs’ distribution reduced by the

amount of Howard’s attorney fees and costs.

¶6 A District Court’s ruling on discovery is reviewed for abuse of discretion. In re

Estate of Bolinger, 1998 MT 303, ¶ 24, 292 Mont. 97, 971 P.2d 767. We review a District

Court’s award of attorney fees for abuse of discretion. In re Estate of McMurchie, 2004 MT

98, ¶ 8, 321 Mont. 21, 89 P.3d 18.

¶7 Parties “may obtain discovery regarding any matter, not privileged, which isrelevant

to the subject matter involved in the pending action.” M. R. Civ. P. 26(b)(1). The Stukey

heirs waived further discovery at the June 27, 2007, hearing by stating that the matter could

be decided based on briefs and by not requesting a further hearing, which the District Court

had offered to hold upon request. The District Court did not abuse its discretion by not

ordering discovery.

¶8 The Stukey heirs contest only the decision to award attorney fees. They have not

objected on appeal to the amount of the fees awarded.
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¶9 Several statutory basesfor 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, ofthe UniformProbate 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.

/S/ JOHN WARNER

We Concur:

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ PATRICIA COTTER

/S/ JAMES C. NELSON