No. 80-239 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INTHE MATTER OF THE ESTATE OF FRANCIS A. GORDON, a/k/a FRANCIS GORDON, a protected person.

Appeal from: DistrictCourt of the FifthJudicialDistrict, In and forthe County of Beaverhead, The Honorable Frank Blair, Judge presiding.

Counsel of Record: For Appellant: Hooks and Budewitz, Townsend, Montana

For Respondent: Richard J. Llewellyn, Helena, Montana W. G. Gilbert, 111, Dillon, Montana

Submitted on Briefs: March 25, 1981 Decided:

## Jubl 41981

Filed:

# dy# 4

## 198;

### Mr. Justice Gene B. Dalydelivered the Opinion of the Court. This case involves appealsby allparties involved in these proceedings. Albert and Emily Gordon, parents of Francis Gordon and one time conservators of his estate, appeal from a finding and order of contempt entered by the Beaverhead County District Court (Gordon appeal). An attorney, W. G. 

### Gilbert 111, acting in behalf of Francis Gordon, appeals the court's order of a new trial to redetermine the amount of attorney fees due from his representation of Francis Gordon (Gilbertappeal). A 

### third appeal has been filed by Richard Llewellyn, the current conservator of Francis Gordon's estate. This appeal is explained in the conservator's brief as being brought in opposition to the order for a new trial regarding Gilbert's attorney feesand in support of the court's contempt order. In 1976 Albert and Emily Gordonwere appointed by the District Court to act as conservators of the estate of their son, Francis Gordon. In March 1978 Francis Gordon petitioned the District Court and demanded that Albert and Emily, as conservators, file a sworn accounting showing all receipts and disbursements of the conservatorship. Albert and Emily failed to appear at the hearing on the petition whereupon the court ordered the accounting be filed within ten days and that the conservators appear before the court and show cause why they should not be removed from their position. A show cause hearing was held on July 25, 

### 1978. Subsequently, the District Court, on September 26, 

### 1978, entered findings of fact, conclusions of law and an order removing Albert and Emily as conservators. The courtfurther ordered the Gordons to file a full, complete and accurate accounting of all monies received during their conservatorship; to pay the clerk of the court (interim conservator) within ten days certain sums of money improperly withheld from or charged to Francis Gordon; and to pay attorney fees to W. G. Gilbert 111, attorney for Francis Gordon. The amount of attorney fees were to be determined ata laterhearing. On December 18, 1978, Gilbert filed two claims against the estate of Francis Gordon for legal services rendered and expenses incurred in the representation of FrancisGordon. These claims totaled $4,721.17. Failingto have the claimssatisfiedwithin sixtydays, Gilbertfileda. motion on June 18, 1979, to compel payment by the newly appointed temporary conservator, Irene Newlon. Hearing on the motion was scheduled for July 10, 1979, and the court directed that notice of the hearing be given toAlbert and Emily Gordon. A copy of the motion to compel and order directing notice to be given were duly served on June 19, 1979. Atthe scheduled hearing, Gilbertappeared personally and IreneNewlon's attorneyappeared on her behalf. Neither the Gordons nor their attorney made an appearance. The parties present atthe hearing did not question or contest the claim for attorney fees. As a. result, the District Court entered an order on July 17, 1979, approvingGilbert's claimand directing theconservator toobtain themonies for payment from Albert and Emily Gordon in accordance with its order of September 26, 1978. A notice of entryof judgment

was prepared, signed and filed by Gilbert. On July 25,1979, the clerk of the court served by mail thenotice and a copy of the order on all parties, including Albert and Emily Gordon. Richard Llewellyn was appointed special conservator of the estateof Francis Gordon inSeptember 1979. In early January 1980, he fileda petition requesting thatAlbert and Emily Gordon be held in contempt of court for their alleged failure to comply with the District Court's order of September 26, 1978. An order to show cause was duly issued to the Gordons and their current attorney of record. In response to the petition, theGordons, on January 31, 1980, filed a notion to quash the order to show cause. At the

same time, they filed a motion for a new trialwith respect tothe DistrictCourt's order of July 17, 1979, wherein the courtupheld Gilbert's claim for $4,721.17 inattorney fees. A hearing on the motions was held on February 26, 1980. On March 13, 1980, the District Court granted the Gordons' motion for a new trialand entered an order setting aside the award of attorney fees to Gilbert. The court stated the award was tobe vacated because thejudgment was rendered under a "mistake of fact, inadvertence and excusable neglect inthe absenceof said former conservators [Albert and Emily Gordon] 

# . . . and because of a frail notice to them scarcely advising them of anything to be heard except 'payment of bills.'" On April 8, 1980, thetrialjudge held theGordons in contempt of court for failing to comply with its September 26, 1978, order. The court further directed the Gordons to pay $6,858.90 to the clerk of the court in accordance with the September 1978 order. From these orders, Gilbert,Llewellyn and theGordons appeal. Concerning the "Gilbert" appeal, the sole issue raised 

### is whether the District Court erred in granting the motion for a new trial. In this regard, Gilbert contends the court was in error because theGordons, inbringing the motion for new trial, failed to comply with the following requirements of Rule 59(b),M.R.Civ.P.: "Time formotion. A motion for a new trial shallbe served not later than 10 days after service of notice of the entry of the judgment

# ." Here, the notice of entry of judgment, although prepared and signedby Gilbert, was served on theGordons by the clerk of the court on July 25, 1979. The motion for a

new trial, however, was not filed or served on opposing counsel until January 1980, some six months later. Certainly, this period 

### is far in excess of the rule limitationof tendays. The Gordons contend their motion was timely filed. In supportof thiscontention, they argue that sinceGilbert prepared, signed and gave thenoticeof entryof judgment to the clerk for service, the notice is deficient and cannot

serve to startthe limitation period contained in Rule 59, M.R.Civ.P. Wemust disagree. There isno requirement intheMontana Rules of Civil Procedure that the notice of entryof judgment be signed by the clerk of the court or that the notice be prepared and given to the clerk by the "prevailing party" asassertedby the Gordons in their brief. The only requirement is that upon entryof the order orjudgment by the court, the clerk shall serve by mail notice of the entry upon each party to the proceeding and shall make note in the docket of themailing. See Rule 77(d)

### , M.R.Civ.P. This requirement was satisfied, and 

### we find no deficiencies in the notice received by theGordons. ThisCourt has strictlyenforced thetime limitations setforthinRule 59, M.R.Civ.P. SeePiercePacking Company



### v. District Court of the Thirteenth Judicial District 

## -SQ-l1 Se9

## 1 (1978), 177 Mont. 50, 579 P.2d 760; Kelly v. Ehe3+ & he4A Paint Contractors (1978), 175 Mont. 440, 574 P.2d 1002; Armstrong 

### v. High Crest Oil, Inc. (1974), 164Mont. 187, 520 P.2d 1081. We will not disregard those requirements and must now find that theDistrictCourt erred ingranting the Gordonsl motion and orderinga new trial. In regard to the Gordon appeal, we note that it is solely the result of the April 1980 judgment finding the Gordons in contempt for failing to abide by the directives of a court order entered on September 26, 1978. Indefense of the contempt charge, Albert and Emily Gordon contend that certain findings and conclusions of the District Court made in conjunction with theprior court order arenot supported by substantial credible evidence. The Gordons further assertthatduringthehearing on thecontemptpetition, the District Court failed to consider various agreements which purported torelease allrights, claimsand causesof action FrancisGordon had against them. The Gordons then conclude that the contempt order should not have issued and this Court should now modify that order and the September 26, 1978, order so as to be in accordance with the submitted record.We acknowledge the Gordons' contentionsbut conclude thattheyhave been improperly presented on appeal. Section3-1-523, MCA, is pertinent in this regard and specifically provides: "Judgment and ordersincontempt 

### cases final. Thejudgment and ordersof the courtorjudqe - - made in cases of contempt are final and conclusive. There 

### is no appeal, but the actions of a district court or judge can be reviewed on a writ of certiorari by the supreme court or a judge thereof and the action of a justice of the peace or other courtof limitedjurisdiction by thedistrict court or judge of the county in which such justice or judge of such court of limited jurisdiction resides." If the Gordons wish this Court to consider the propriety of the District Court's action regarding the contempt proceedings and toreview anyunderlying supportive findings, conclusions or orders, it will be necessary to filean appropriatewritof review. For the reasons stated herein the Gordon appeal, challenging the District Court's order of contempt, 

### is dismissed. Furthermore, the order granting the Gordons a

new trial 

### is vacated, and the judgment entered on July 17, 1979, approving Gilbert's claim fgr attorney fees is // affirmed.

Weconcur: J