Opinion
DA 24-0133
10-08-2024
In the Matter of the Estate of, WALTER M. GREY, Deceased.
ORDER
March 14, 2023, Zane Grey filed an Application for Informal Appointment of Personal Representative Intestacy and was issued Letters of Appointment the same day. On March 22, 2023, Tamara A. Schmitt filed a petition to remove Grey as personal representative of the Estate. On June 22, 2023, the District Court denied Schmitt's petition to remove Grey as Personal Representative. On April 18, 2023, Schmitt filed a Petition to Convert Informal Probate to Formal Probate and Brief in Support. 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 found the will was valid, Grey was removed as Personal Representative, and Schmitt was appointed executor. Grey appealed several issues in the case to us and we remanded to the District Court for further proceedings. See In re Estate of Grey, No. DA 24-0133, 2024 MT 218N, ¶ 2, 2024 Mont. LEXIS 1041.
Schmitt, via counsel, has moved this Court for an Order declaring Grey a vexatious litigant. She argues that Grey has a history of frivolous litigation in Montana and Federal courts. She points to a complaint filed in the United States District Court for the District of Montana in April of 2022 in an unrelated matter and several of Grey's filings in this case both before and after he dismissed his counsel on January 31, 2024.
We apply a five-factor test in assessing whether a litigant is vexatious:
(1) the litigant's history of litigation and, in particular, whether it has entailed vexatious, harassing, or duplicative lawsuits;
(2) the litigant's motive in pursuing the litigation; e.g., whether the litigant has an objective good faith expectation of prevailing;
(3) whether the litigant is represented by counsel;
(4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts and other parties.Motta v. Granite Cnty. Comm'rs, 2013 MT 172, ¶ 20, 370 Mont. 469, 304 P.3d 720.
The record before us does not support declaring Grey a vexatious litigant at this juncture. See Grigg v. Beaverhead EMS, 2022 MT 206, ¶ 10, 410 Mont. 355, 521 P.3d25; Wallace v. Law Offices of Bruce M. Spencer, PLLC, LPH, INC., 2021 MT 253, ¶ 5, 405 Mont. 473, 495 P.3d 1047. Although Grey has filed other lawsuits in other courts, and involving other parties, in this case Grey has filed only one action and only one appeal regarding the estate and has filed no parallel or duplicative litigation involving either the estate or Schmitt. We cannot conclude that he pursued the action in bad faith in this case, since he initially prevailed in his opposition to Schmitt's motion to remove him as personal representative and we have ruled in his favor on one issue on appeal. While Grey is no longer represented by counsel, several of the motions to which Schmitt points as frivolous were filed before Grey terminated his representation. Grey timely pursued his appeal and did not extend the litigation beyond what is generally considered appropriate. We, therefore, do not find a basis to declare Grey a vexatious litigant based on the record before us.
Accordingly, IT IS ORDERED that Tamara A. Schmitt's motion to declare Zane Grey a vexatious litigant is DENIED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Zane Grey personally.