Opinion
DA 21-0343
03-01-2022
IN THE MATTER OF THE ESTATE OF ADA E. ELLIOT, Deceased.
ORDER
The appeal in this matter was filed on July 12, 2021. by Appellant Ian Elliot (Ian), who challenged rulings made by the District Court in the above-referenced proceeding for the Estate of Ada E. Elliot. Ian. representing himself, filed his Opening brief on October 25, 2021. Appellee Joseph Womack, special administrator of the Estate, filed his answer brief on December 21, 2021, noting in his brief he had learned that Ian unfortunately passed away on December 19. As to be expected, no reply brief was filed when due. and the case was transferred from the Clerk's office to the Court in the usual course on January 12, 2022. On January 24. 2022. a notice was filed by Ann Sargent and Jenny Jing also advising that Ian had passed away, that they were the designated personal co-representatives in Ian's Last Will and are in the process of filing documents to the Yellowstone County Court" for appointment as personal representatives, and that they thereafter intended to move for substitution of party and file Ian's reply brief. On February 22, 2022, Sargent and Jing filed a status report indicating this process had been delayed by circumstances related to the initiation an estate proceeding, and that they had not yet been appointed as co-personal representatives of Ian's estate. They expressed their view that any dismissal of the appeal "would be against Ian's expressed wishes." No other notices or requests related to Ian's death have been filed.
M. R. App. P. 25(1) provides:
Death of a party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the supreme court in a civil case, the personal representative of the deceased party may be substituted as a party on the motion filed by any party with the clerk of the supreme court. ... If the deceased party has no representative, proceedings may then be had as the supreme court may direct. [(Bold in original.)]
Pursuant to this rule, a motion to substitute Ian's personal representative(s) would be appropriate. In this regard, we would note that, while Ian could properly represent himself "pro se" in the appeal, his estate must be represented by legal counsel, and cannot be represented by individuals acting "pro se," as indicated on the notices filed by Sargent and Jing. See Glick v. Reverse Mortgage Solutions, Inc. et al, No. DA 17-0113, Order (Mont. May 2, 2017). We understand Sargent and Jing have not yet been appointed personal representatives of Ian's estate, but when they, or whoever else, is/are appointed, that personal representative(s) must be represented by counsel before the Court.
We further note that a reply brief is not a mandatory filing for an appellant, but only optional. M. R. App. P. 12(3). Consequently, while we are willing to grant some time for a personal representative to be appointed and to move for substitution for purposes of filing a reply brief, we cannot postpone the appeal indefinitely. The administration of the subject estate must be finalized, and the appeal has already been adequately briefed for decision under the Rules of Appellate Procedure. Therefore, IT IS ORDERED that the Court will postpone consideration of this matter for 60 (sixty) days to provide opportunity for a personal representative to be duly appointed for Appellant Ian Elliot, now deceased, and be substituted and represented by counsel for purposes of filing of a reply brief in this Court. Failing such, the Court will thereafter properly decide the appeal based upon the current briefing.
The Clerk is directed to provide copies of this Order to all counsel of record, and to Ann Sargent and Jenny Jing.