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In re Estate of Greene

Supreme Court of Montana

July 2, 2013

IN THE MATTER OF THE ESTATE OF LILLIANE M. GREENE, Petitioner and Appellant.

Submitted on Briefs: May 15, 2013

District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DP 12-108 Honorable Karen Townsend, Presiding Judge

For Appellant: Don C. St. Peter, St. Peter Law Offices, P.C.

For Appellee: Reid J. Perkins, Shane A. Vannatta, Patrick D. Dougherty, Worden Thane P.C.

OPINION

Mike McGrath Chief Justice

¶1 William H. Greene appeals from the District Court's Order filed December 5, 2012, denying as untimely his motion for substitution of judge. We affirm.

¶2 The sole issue on appeal is whether the District Court properly denied the motion for substitution.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Lilliane Greene died testate on June 22, 2012. Her will named her daughter Dawn Bare as Personal Representative of the Estate. On June 28, 2012, Dawn filed an application for informal probate and for appointment of personal representative. The Clerk of Court accepted the application for informal probate and appointed Dawn the personal representative. Also on June 28 Dawn issued by mail a Notice and Information to Heirs and Devisees pursuant to § 72-3-603, MCA. The Notice specified that the Estate was "being administered by the Personal Representative under the Uniform Probate Code without supervision of the Court." Appellant William is the decedent's son and a devisee under her will.

¶4 On November 19, 2012, William's attorney filed a notice of appearance in the informal probate, and also filed a Motion for Substitution of Judge pursuant to § 3-1-804(1)(a), MCA. Subsequently, on November 28, 2012, William's attorney filed several other pleadings in the probate, including a Petition for Supervised Administration pursuant to § 72-3-402, MCA. On December 4, 2012, the District Court denied the motion for substitution as untimely, finding that William had 30 days from the date of the Notice and Information to Heirs and Devisees in which to file the motion.

STANDARD OF REVIEW

¶5 A district court's decision on whether a motion for substitution of judge is timely is a conclusion of law that this Court reviews to determine whether it is correct. In Re Marriage of Archibald, 1999 MT 258, ¶ 4, 297 Mont. 20, 993 P.2d 653.

DISCUSSION

¶6 William sought to substitute the District Court judge under § 3-1-804, MCA, which provides that "[e]ach adverse party is entitled to one substitution of a district judge." The right of substitution applies to all "judges presiding in district courts, " with the narrow exceptions of a judge sitting as a Water Court judge, the Workers' Compensation Court judge, or a judge supervising the distribution of water under § 85-2-406, ...


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