Opinion
DA 24-0133
09-24-2024
IN THE MATTER OF THE ESTATE OF WALTER M. GREY, Deceased.
For Appellant: Zane Grey, Self-Represented, Noxon, Montana For Appellee: John M. Wagner, Wagner Law Firm, PC, Whitefish, Montana
Submitted on Briefs: August 14, 2024
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DP 23-080(C) Honorable Heidi J. Ulbricht, Presiding Judge
For Appellant: Zane Grey, Self-Represented, Noxon, Montana
For Appellee: John M. Wagner, Wagner Law Firm, PC, Whitefish, Montana
JAMES JEREMIAH SHEA JUDGE
¶l Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, shall not be cited and does not serve as precedent. Its case title, 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 Zane Grey ("Zane") appeals the Eleventh Judicial District Court, Flathead County's January 19, 2024, Findings of Fact, Conclusions of Law, and Order Regarding Validity of Walter M. Grey's January 31, 2023, Last Will and Testament, and its Orders Denying [his] Motion to Alter or Amend the Judgment and Denying [his] Motion for Stay of Execution of Judgment, both issued on February 22, 2024. We affirm in part and reverse in part and remand for further proceedings consistent with this Opinion.
¶3 This dispute concerns the proper distribution of the estate of Walter M. Grey ("Walter") (the "Estate") between his son, Zane, and Walter's long-time partner and cohabitant Tamara Schmitt ("Tamara"). Walter died on March 10, 2023. On March 14, 2023, Zane filed an Application for Informal Appointment of Personal Representative Intestacy. The Clerk of Court issued him Letters of Appointment the same day.
¶4 On March 22, 2023, Tamara filed a petition to remove Zane as personal representative of the Estate. She attached to the petition two documents she alleged were Walter's wills. One of the wills ("the Will") was dated January 31, 2023. The Will appointed Tamara as the executor of Walter's estate and granted her all his property except for his firearms, ammunition, and reloading supplies, which he granted to Zane. The Will was not signed by any witnesses but was notarized by Derek John Chappel ("Chappel").
¶5 On April 18, 2023, Tamara filed a Petition to Convert Informal Probate to Formal Probate and Brief in Support. Tamara requested that the probate of Walter's Estate be converted to a formal probate and that the District Court conduct a contested hearing to determine the validity of the January 31, 2023 Will.
¶6 On June 22, 2023, the District Court denied Tamara's petition to remove Zane as Personal Representative and denied Zane's request for expenses incurred defending against the petition but did not rule on the validity of the Will.
¶7 On December 19, 2023, the District Court held a bench trial to determine the validity of the Will. Zane, Tamara, Chappel, and Walter's landlord Gary Treweek ("Treweek") testified at trial.
¶8 Zane testified that Walter had told him he did not want a will and that Zane and his sister should "work it out" between themselves after Walter died. Zane offered into evidence medical records he claimed to have received as part of his duties as representative of the Estate. Zane contended the medical records proved that Walter was mentally unfit prior to executing the Will. Tamara objected on the grounds that Zane had not laid sufficient foundation to enter the records into evidence. The District Court sustained the objection.
¶9 Tamara testified that on January 31, 2023, after Walter had signed the Will, Zane visited Walter at his home and she heard Walter tell Zane that he could take Walter's firearms and tools from his autobody shop. As Tamara was testifying about Walter's conversation with Zane, Zane objected to the testimony as hearsay. The District Court overruled the objection, citing the exception for hearsay when a declarant is unavailable under M. R. Evid. 804.
¶10 Chappel testified that on January 31, 2023, he notarized Walter's signature on both of the motorcycle titles and the Will. He testified that on February 16, 2023, he notarized Walter's signature on a power of attorney. Chappel testified that Walter signed Chappel's notary logs for each document on both occasions.
¶ 11 Treweek testified that he had been Walter's landlord for 10 to 15 years. He testified that Walter and Tamara's relationship had been a close one where he often bought her things like a motorcycle. He testified that Zane was rarely at the property and the last time he had seen Zane visit his father was at least ten years ago.
¶12 On January 19, 2024, the District Court issued its Findings of Fact, Conclusions of Law, and Order Regarding Validity of Walter M. Grey's January 31, 2023 Last Will and Testament. The District Court held that the Will was valid; that pursuant to the Will, Zane was removed as Personal Representative and Tamara was appointed executor; it ordered the distribution of Walter's Estate in accordance with the terns of the Will; and it ordered Zane to personally pay Tamara's attorney fees and costs incurred in defending the validity of the will pursuant to § 72-12-206, MCA.
¶13 On February 12, 2024, Zane filed a pro se "Motion for Settlement of Fees by the Court for Personal Representative and Request for Hearing in Accord with MCA 72-3-634." Zane sought compensation and reimbursement relative to his entire tenure as Personal Representative from March 14, 2023, to January 19, 2024. Zane requested a hearing "to determine the reasonableness of the compensation [he] requested." Tamara filed a brief in opposition to Zane's motion on February 15, 2024. The District Court did not rule on Zane's motion before he filed his appeal.
¶14 Zane filed motions to alter or amend the judgment and for stay of execution of judgment which the District Court denied in a pair of orders issued on February 22, 2024.
¶15 Zane filed his Notice of Appeal on March 6, 2024.
¶16 This Court reviews findings of fact in a bench trial in a civil action to determine whether they are supported by substantial credible evidence. DeNiro v. Gasvoda, 1999 MT 129, ¶ 9, 294 Mont. 478, 982 P.2d 1002. This evidence is viewed in the light most favorable to the prevailing party. DeNiro, ¶ 9. The credibility of witnesses and weight assigned to their testimony is left to the determination of the district court and will not be disturbed on appeal. Barrus v. Mont. First Judicial Dist. Court, 2020 MT 14, ¶ 13, 398 Mont. 353, 456 P.3d 577. We review a district court's conclusions of law to determine whether they are correct. DeNiro, ¶ 9. Mixed questions of law and fact, including the district court's application of controlling legal principles to its factual findings, are reviewed de novo. Barrus, ¶ 15.
¶17 "The review of fees paid or taken by a personal representative is left to the sound discretion of the District Court," and is reviewed only for abuse of discretion. In re Estate of Stone, 236 Mont. 1, 4, 768 P.2d 334, 336 (1989).
¶18 We restate the issues on appeal as follows: (1) whether the District Court erred by overruling Zane's hearsay objection to Tamara's testimony; (2) whether the District Court improperly assessed the credibility of Tamara's witnesses; (3) whether the District Court erred by excluding medical records Zane sought to introduce into evidence; (4) whether the District Court erred by denying Zane's motion for necessary expenses and disbursements incurred in defending against Tamara's petition to have him removed as Personal Representative; and (5) Whether the District Court erred by not addressing Zane's request for a hearing on his "Motion for Settlement of Fees by the Court for Personal Representative and Request for Hearing in Accord with MCA 72-3-634."
1. Whether the District Court erred by overruling Zane's hearsay objection to Tamara's testimony.
¶19 All parties agree that the Will does not comply with § 72-2-522(1)(c), MCA's requirement that it be signed by two witnesses. However, a district court may find such a will valid pursuant to § 72-2-523(1), MCA, where the proponent establishes by clear and convincing evidence that the decedent intended the document to constitute the decedent's will. The District Court found the Will valid.
¶20 Assuming, for the sake of argument, that Zane is correct that the District Court erred by permitting Tamara to testify about what Walter wanted Zane to take as stipulated in the Will, the District Court, nevertheless, had substantial evidence to support its finding by clear and convincing evidence that Walter intended the Will at issue to be his will. Treweek testified to the close relationship between Tamara and Walter and the infrequency of Walter's contact with Zane. Chappel, who notarized the Will, testified that he witnessed Walter signing the Will and that Walter seemed to understand its contents. Tamara testified without objection to Walter's reasons for wanting a will. The testimony to which Zane objected was merely duplicative of the contents of the Will itself. As such, even if the testimony was inadmissible hearsay, it was harmless error.
Zane did not object to any other testimony as hearsay and did not raise his initial objection as a standing objection, so the only argument he has properly preserved for review by this Court is his objection to Tamara's testimony about Walter's intent to give Zane his firearms and tools.
2. Whether the District Court improperly assessed the credibility of Tamara's witnesses.
¶21 Zane's argument that the District Court improperly assessed the credibility of certain witnesses which undermines its finding that the Will was valid is without merit. The credibility of witnesses and the weight to be given to their testimony is determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. This Court will not reweigh the evidence or the credibility of witnesses. Barrus, ¶ 13 (citation omitted). The District Court did not improperly assess the credibility of Tamara's witnesses.
3. Whether the District Court erred by excluding medical records Zane sought to introduce into evidence.
¶22 Zane's argument that the District Court improperly prevented him from entering Walter's alleged medical records into evidence fails because Zane failed to call a witness to properly lay foundation for the documents. Medical records prepared prior to trial and offered at trial to prove the truth of their contents are hearsay and may not be entered into evidence pursuant to M. R. Evid. 802 unless they fall under a valid exception. State v. Baze, 2011 MT 52, ¶ 13, 359 Mont. 411, 251 P.3d 122. Zane does not identify which exception the records he offered should fall under, but his reference to "certifications" points to the business records exception under M. R. Evid. 803(6). That rule requires that the business record be authenticated as such by "the testimony of the custodian [of the record] or other qualified witness" to fall under the exception. M. R. Evid. 803(6); see also Baze, ¶ 18 ("[T]he rules do not permit business records to be authenticated via a certificate of compliance."). Zane did not call a records custodian or other qualified witness to establish the authenticity of the medical records. The District Court did not err by denying their admission.
4. Whether the District Court erred by denying Zane's motion for necessary expenses and disbursements incurred in defending against Tamara's petition to have him removed as Personal Representative.
¶23 The District Court abused its discretion by denying Zane's motion for necessary expenses and disbursement related to his successful defense against Tamara's petition to remove him as Personal Representative. In relevant part, § 72-3-632, MCA, provides: "If a personal representative . . . defends or prosecutes a proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate the personal representative's necessary expenses and disbursements, including reasonable attorney fees incurred." We have interpreted "proceeding," as used in § 72-3-632, MCA, to include a petition to remove the personal representative. See In re Estate of Sauter, 189 Mont. 244, 250-51, 615 P.2d 875, 878-79 (1980) (affirming the denial of a petition to remove a personal representative and holding the personal representative was entitled to necessary expenses and disbursements under § 72-3-632, MCA, if the District Court determined that he was proceeding in good faith).
¶24 In its Findings of Fact, Conclusions of Law, and Order Denying Removal of Personal Representative, the District Court found that "Zane has been acting in the best interest of the estate since he has been appointed as the Personal Representative." The District Court concluded that "Tamara did not provide sufficient evidence that warrants the removal of Zane as Personal Representative." Yet despite finding that Zane had been acting in the best interest of the estate as Personal Representative and concluding that Tamara did not provide sufficient evidence to warrant his removal, the District Court denied without explanation his request for necessary expenses and disbursements incurred in opposing Tamara's Petition for his removal as Personal Representative.
¶25 The record on appeal is insufficient for us to reconcile the District Court's Findings and Conclusions in its Order with the necessary determination that Zane was not acting in good faith in opposing Tamara's Petition. We reverse the District Court's June 22, 2023 Order on this point and remand to the District Court for a determination as to whether or not Zane was acting in good faith in opposing Tamara's Petition to have him removed as Personal Representative. Contingent upon the District Court's determination on that issue, the District Court can then determine what if any expenses and disbursements to which Zane may be entitled.
5. Whether the District Court erred by not addressing Zane's request for a hearing on his "Motion for Settlement of Fees by the Court for Personal Representative and Request for Hearing in Accord with MCA 72-3-634."
¶26 Pursuant to §§ 72-3-632 and -634, MCA, Zane filed a motion for compensation and reimbursement for his entire tenure as Personal Representative. The District Court did not rule on the motion before Zane filed his Notice of Appeal. Zane presents the issue on appeal as "Did the District Court err in not addressing Appellant's Motion for a hearing to determine the reasonableness of the fees claimed by Zane Grey as Personal Representative?" But since Zane's Motion is still pending before the District Court, we cannot address this issue on appeal because there is no ruling by the District Court for us to consider on appeal. This issue is remanded to the District Court for a ruling on Zane's motion.
¶27 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. The District Court committed no reversible error in its evidentiary rulings or in its assessment of the credibility of witnesses who testified at trial. The District Court's Findings of Fact, Conclusions of Law, and Order Regarding Validity of Walter M. Grey's January 31, 2023, Last Will and Testament, its Order Denying Zane Grey's Motion to Alter or Amend the Judgment, and its Order Denying Zane Grey's Motion for Stay of Execution of Judgment are affirmed. Issues 4 and 5 are remanded to the District Court for further proceedings consistent with this Opinion.
We Concur MIKE McGRATH INGRID GUSTAFSON BETH BAKER JIM RICE