No 

No. 98-726

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 154

295 Mont. 89

983 P.2d 339

IN THE MATTER OF THE ESTATE 

OF SHIRLEY L. BAYERS, 

A Protected Person. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

Honorable Russell C. Fagg, Judge Presiding.

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COUNSEL OF RECORD:

For Appellant:

Philip P. McGimpsey, Philip P. McGimpsey, Inc., Billings, Montana

For Respondents:

John T. Jones and Nancy Bennett, Moulton, Bellingham, Longo & 

Mather, P.C., Billings, Montana 

William J. Mattix, Crowley Law Firm, Billings, Montana

Damon L. Gannett, Gannett Law Firm, Billings, Montana

Submitted on Briefs: April 29, 1999

Decided: July 1, 1999

Filed:

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__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶1. This is an appeal from the order of the Thirteenth Judicial District Court, 

Yellowstone County, granting the conservator's motion for payment of attorney's 

fees incurred by the permanent guardian. We affirm. 

¶2. The sole issue presented in this case is whether the District Court erred in 

allowing the conservator of Shirley Bayers' estate to pay the attorney's fees incurred 

by Shirley's permanent legal guardian in seeking the appointment of a guardian for 

Shirley. 

BACKGROUND

¶3. In April 1995, Shirley executed a durable power of attorney appointing her 

daughter, Diane Vickman, as her attorney-in-fact. Shirley's granddaughter, Tracy 

Crabtree, was appointed as Shirley's alternate attorney-in-fact in the event that 

Diane became unable to perform her duties under the power of attorney. In June 

1995, Shirley was diagnosed with Alzheimer's Disease. In July 1995, Shirley inherited 

a sizeable estate from her half-sister, Melba Meyers. Diane died in September 1995, 

and Tracy became Shirley's attorney-in-fact under the terms of the durable power of 

attorney. 

¶4. In October 1995, Tracy retained the Crowley law firm to initiate proceedings for 

the appointment of a legal guardian and conservator for Shirley. In addition to the 

appointment of a legal guardian and conservator, the petition also sought 

appointment of Dr. Patricia Coon, M.D., as Shirley's physician, attorney Damon L. 

Gannett as Shirley's guardian ad litem, and social worker Wayne L. Smithberg as 

Shirley's visitor pursuant to the provisions of § 72-5-315(3), MCA. The petition 

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initially named Tracy as the candidate for guardian and conservator but was later 

amended to nominate Shirley's only living daughter, Judy Trenka, as the guardian 

candidate, and Judy and First Interstate Bank as the co-conservators of Shirley's 

estate. 

¶5. The District Court ordered the appointment of a physician, a guardian ad litem,

and a visitor for Shirley, then scheduled a hearing on the appointment of a guardian 

and conservator. Prior to the hearing, the District Court appointed Judy as Shirley's 

temporary full guardian due to Shirley's Alzheimer's diagnosis and the need for her 

immediate care and protection. 

¶6. On November 17, 1997, Shirley married James Bennett. On November 21, 1997, 

Shirley and James retained attorney Philip McGimpsey to act as Shirley's personal 

counsel and represent her in the guardianship proceedings. 

¶7. After the hearing on the appointment of a guardian, in an order dated December 

14, 1995, the District Court appointed the Department of Public Health and Human 

Services (DPHHS) as Shirley's interim guardian and First Interstate Bank as 

conservator of Shirley's estate. Under the District Court's order, the interim 

guardianship was originally dated to expire on March 14, 1996; however, this date 

was later extended through March 1997.

¶8. In March 1997, just before the interim guardianship expired, Judy renewed the 

petition seeking her appointment as Shirley's sole permanent guardian. Shirley's 

husband, James, filed a competing petition seeking his appointment as Shirley's 

permanent guardian. In April 1997, the District Court held a hearing on the 

competing petitions. Appearing at the hearing were the Crowley law firm on behalf 

of Judy as the guardian candidate; attorney Roy Johnson on behalf of James as the 

guardian candidate; and attorney John Jones on behalf of the conservator, First 

Interstate Bank. Also appearing at the hearing were Damon Gannett as Shirley's 

court-appointed guardian ad litem and Philip McGimpsey as Shirley's personally 

retained attorney. 

¶9. In June 1997, the District Court issued an order appointing Judy as Shirley's full 

permanent guardian. In March 1998, the Crowley firm submitted a request to the 

conservator of Shirley's estate for payment of approximately $30,000 in legal fees 

incurred by Judy in seeking appointment as guardian. McGimpsey objected to the 

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Crowley firm's request for payment of fees out of the conservatorship estate, and 

First Interstate Bank filed a motion before the District Court seeking authorization 

to pay the fees. The District Court held a hearing on the conservator's motion on 

June 23, 1998, and granted the motion to allow payment. McGimpsey filed this 

appeal on Shirley's behalf appealing the payment of the Crowley firm's fees out of 

funds in the conservatorship estate. 

DISCUSSION

¶10. Did the District Court err in allowing the conservator of Shirley Bayers' estate 

to pay the attorney's fees incurred by Shirley's permanent legal guardian in seeking 

the appointment of a guardian for Shirley?

¶11. We review a district court's findings of fact to determine whether those findings 

are clearly erroneous. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 

323, 820 P.2d 1285, 1287. We review a district court's conclusions of law to determine 

whether those conclusions are correct. DeSaye, 250 Mont. at 323, 820 P.2d at 1287.

¶12. The appointment of a guardian for an incapacitated person is a matter largely 

within the discretion of the appointing court, and this Court will not interfere with 

the actions of that court absent an abuse of discretion. In the Matter of the 

Guardianship of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316, 318. Moreover, the 

appointing court's discretionary power encompasses approval of attorney's fees 

incurred by a guardian within the scope of the guardianship. In re Allard 

Guardianship (1914), 49 Mont. 219, 229, 141 P. 661, 665. 

¶13. Appellant advances several arguments as to why the legal fees requested by the 

Crowley law firm should not be paid by the conservator. In particular, appellant 

argues that the award of a guardian's attorney's fees is contrary to the general rule 

that attorney's fees are not awarded to the prevailing party in an adversarial 

proceeding; that it was Tracy and Judy, not Shirley, who contracted for the legal 

services of the Crowley law firm, and that therefore Tracy and Judy, not the 

conservatorship estate, should be primarily responsible for the fees for those 

services; that neither of the petitions for guardianship prepared and filed by the 

Crowley firm contained a request for attorney's fees; that the power of attorney 

authorizing Tracy to act as Shirley's attorney-in-fact was not subject to due process; 

and finally, that the attorney's fees awarded in this case were not reasonable. We 

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address each of these arguments in turn. 

¶14. Appellant cites several cases propounding the general rule that attorney's fees 

are not awarded to the prevailing party in an adversarial proceeding, absent special 

contractual or statutory provisions to the contrary. Appellant's reliance upon these cases, 

however, is misplaced, because a petition to appoint a guardian is not an adversarial proceeding, but 

rather a proceeding to promote the best interests of the person for whom guardianship is sought. See § 72-

5-306, MCA ("Guardianship for an incapacitated person may be used only as is necessary to promote and 

protect the well-being of the person"). 

¶15. Courts from sister jurisdictions have reached similar conclusions based upon 

comparable statutes. See Gay v. McCaughan (Fla. 1958), 105 So.2d 771, 774 ("the 

court having jurisdiction of a guardianship matter is said to be the superior 

guardian, while the guardian himself is deemed to be an officer of the court"); In re 

McLarty's Estate (Fla. App. 1982), 421 So.2d 811, 812 (holding that an action to 

remove the personal representative of an estate is not an adversary proceeding to 

which the Rules of Civil Procedure are generally applicable); In re Guardianship of 

Reynolds (Ohio App. 1957), 155 N.E.2d 686, 687-88 ("Proceedings for the 

appointment of guardians, [sic] are not inter partes, or adversary in character. They 

are properly proceedings in rem and are ordinarily instituted by application made on 

behalf of the ward, and for his benefit."); McKinley v. Salter, 136 S.W.2d 615, 624 

(Tex. Civ. App. 1939) ("Proceedings for the appointment of a guardian are not 

adversary in their nature. A jurisdiction when exercised is exercised to preserve and 

protect the estate of the ward.").

¶16. We likewise reject appellant's argument that payment of the guardian's 

attorney's fees from Shirley's estate was erroneous for the reason that Shirley never 

personally contracted with the Crowley firm for the filing of a petition for 

guardianship. As an initial matter, we note that at the time Tracy contracted for the 

legal services of the Crowley firm, she was acting as Shirley's attorney-in-fact under 

a durable power of attorney, and that § 72-5-501(1), MCA, provides that "[a]ll acts 

done by the attorney-in-fact pursuant to a durable power of attorney during any 

period of incapacity of the principal have the same effect and inure to the benefit of 

and bind the principal and his successors in interest as if the principal were alive, 

competent, and not disabled." 

¶17. However, even if Tracy had not been possessed of the powers of an attorney-infact when she retained the services of the Crowley firm, § 72-5-428(1), MCA, 

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expressly authorizes the conservator of the estate of an incapacitated person to 

distribute funds necessary for the support, education, care, or benefit of the 

protected person. The cost of initiating a good faith petition for the appointment of a 

guardian where such appointment is determined to be in the best interests of the 

ward constitutes a necessary expenditure on behalf of the ward and is therefore 

compensable out of the guardianship estate. See In re Dunn (N.C. 1954), 79 S.E.2d 

921, 927; Chavis v. Patton (Ind. App. 1997), 683 N.E.2d 253, 259-60; Carney v. Aiklen

(Tex. Civ. App. 1979), 587 S.W.2d 507, 511. 

We cannot agree with the objectors that the Probate Court lacked power to authorize the 

Conservator to Collect to charge the costs of the incompetency proceeding and attorney's 

fees against the alleged incompetent's estate. Clearly a petition brought in good faith to 

establish incompetence is an act in the interest and for the benefit of the alleged 

incompetent. [Citations omitted.] While we find no Illinois cases on the point, we are 

persuaded by the rule adopted in other states that costs and attorney's fees, incurred in the 

prosecution and defense of incompetency proceedings, constitute necessaries of the 

incompetent for the payment of which his estate may be assessed by the court. [Citations 

omitted.] 

In re Sherwood's Estate (Ill. App. 1965), 206 N.E.2d 304, 306-07.

¶18. Appellant also argues that the fees in this case should be disallowed on the 

grounds that "the Guardian's March 1998 request to the Conservator for the 

payment of attorneys' fees was factually, procedurally and statutorily time barred." 

This argument is based on the fact that the request for fees was not pled in either of 

the petitions for appointment of a guardian, that Judy testified at the time of her 

appointment that she would not seek compensation from the conservatorship estate, 

and that the order appointing Judy permanent guardian did not provide for an 

award of attorney's fees to Judy. 

¶19. We note that appellant's brief is devoid of reference to any legal authority in 

support of his position that a request for attorney's fees in a petition for guardianship 

is a prerequisite to payment of those fees out of the estate of the incapacitated person 

or that the failure of the appointing court to provide for such fees in its order 

appointing a guardian precludes a request for payment of those fees at a later date. 

Neither does appellant cite to any legal authority supporting his theory that payment 

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of the guardian's attorney's fees constitutes a form of "compensation" for the 

services of the guardian. Under Rule 23, M.R.App.P., it is not this Court's obligation 

to conduct legal research on appellant's behalf, to guess as to his precise position, or 

to develop legal analysis that may lend support to his position. Johansen v. State, 

Dept. of Natural Resources, 1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24. 

¶20. We nevertheless address appellant's argument to the limited extent of pointing 

out that Rule 54(c), M.R.Civ.P., specifically authorizes a district court to grant relief 

to which a party is entitled, notwithstanding the failure of that party to demand such 

relief in its pleadings. As discussed above, payment of a guardian's attorney's fees by 

the conservator of the ward's estate is relief to which the guardian would otherwise 

be entitled if, as in this case, the court determines that the petition was brought in 

good faith and the appointment of a guardian was in the best interest of the protected 

person. 

¶21. Appellant also argues that the guardian's attorney's fees should not be paid out 

of Shirley's estate because "[t]he April 21, 1995, Durable Power of Attorney upon 

which the District Court issued the September 30, 1998 Order was not subjected to 

even the basic elements of due process." More particularly, appellant argues that the 

document assigning Shirley's power of attorney to Tracy was never admitted into 

evidence before the District Court; the District Court received no testimony as to 

whether Shirley did in fact execute or have capacity to execute that document at the 

time of its signing; the District Court received no testimony regarding whether Tracy 

properly and legally succeeded to the duties of attorney-in-fact upon the death of 

Diane Vickman; and the District Court received no evidence showing that Tracy was 

legally empowered to retain the Crowley law firm for the purpose of initiating 

guardianship proceedings. 

¶22. For purposes of clarity, we note that the arguments advanced by appellant are 

not properly characterized as issues involving due process of law. "Due process is 

defined as the constitutional guaranty that no one shall be arbitrarily deprived of her 

life, liberty or property. The essence of substantive due process is that the State 

cannot use its police power to take unreasonable, arbitrary or capricious action 

against an individual." Matter of C.H. (1984), 210 Mont. 184, 193, 683 P.2d 931, 936. 

Appellant has not asserted any involvement whatsoever on the part of the State with 

regard to either the execution of the April 20, 1995 power of attorney or the exercise 

of the rights and duties arising thereunder which would implicate the operation of 

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the due process clauses. 

¶23. What appellant essentially argues in the remainder of his contentions regarding 

the power of attorney is that in ordering that the guardian's legal fees be paid out of 

Shirley's conservatorship estate, the District Court erroneously relied upon the legal 

effect of a document not properly in evidence and for which no proper foundation 

had been laid establishing its authenticity or validity. With regard to whether the 

power of attorney was properly submitted for consideration by the District Court, 

Rule 10(c), M.R.Civ.P., expressly states: "A copy of a written instrument which is an 

exhibit to a pleading is a part thereof for all purposes." Additionally, Rule 7(b)(2), M.

R.Civ.P., states that: "The rules applicable to captions and other matters of form of 

pleadings apply to all motions and other papers provided for by these rules." 

¶24. The record reveals that a copy of Shirley's April 20, 1995 power of attorney was 

filed with the District Court as an attachment to Judy's post-hearing memorandum 

in support of payment of the Crowley firm's fees. Moreover, the submission of this 

document as an exhibit to Judy's memorandum to the court was not objected to by 

any of the parties to the hearing. 

¶25. Although appellant asserted in his post-hearing brief to the District Court that 

"[t]here is simply no judicially established fact, specific statute or principles of 

common law that supports an application of the April 1995 Durable Power of 

Attorney to this situation," this objection addressed only the substantive operation of 

the instrument, and not the evidentiary question of whether there was sufficient 

foundation for the introduction of the document, as appellant now asserts on appeal. 

¶26. In order to preserve an objection to the admission of evidence for purposes of 

appeal, the objecting party must make a timely objection and state specific grounds 

for the objection. Rule 103(a)(1), M.R.Evid. An objection to the introduction of 

evidence is sufficiently specific if it is accompanied by a reasonably definite statement 

of the grounds for the objection. Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 207, 

824 P.2d 229, 223. Because the issue of the lack of foundation for the introduction of 

the April 20, 1995 power of attorney into evidence was not properly preserved for 

appeal through the assertion of a timely and specific objection before the District 

Court, we decline to the address the issue further. 

¶27. Appellant's final argument on appeal is that the record does not support the 

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finding that the fees paid to the Crowley firm were reasonable. We disagree. 

¶28. The record reveals that counsel for the conservator testified at the hearing that 

he had reviewed the fees requested and, after deducting certain amounts for 

duplicative work, believed the fees to be reasonable. Based on this testimony and its 

own assessment of the billing statement generated by the Crowley firm, the District 

Court found the amounts requested both reasonable and necessary for the benefit of 

the protected person. Under these circumstances, appellant's argument that the 

allowance of the attorney's fees was not based on competent evidence is without 

merit. 

¶29. Affirmed. 

/S/ J. A. TURNAGE

We concur:

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

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