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D.A. Davidson & Co. v. Mills

Supreme Court of Montana

March 28, 2017

D.A. DAVIDSON & CO., Plaintiff and Appellee,
v.
DAVID M. MILLS, Defendant and Appellant, HOWARD W. MILLS, and JOHN B. MILLS, Defendants.

          ORDER

         On March 3, 2017, self-represented Appellant and Defendant David M. Mills (David) filed a notice of appeal of a February 10, 2017 Madison County District Court Amended Order along with simultaneously filing a request for stay, or alternatively a writ of certiorari, of his underlying proceedings.

         Through counsel, Appellee and Plaintiff D.A. Davidson & Co. (Davidson) moves for dismissal because this appeal is not from a final order. Davidson explains that it holds a Transfer on Death (TOD) account from the estate of Howard H. Mills, and that the decedent's three sons-David, Howard W., and John-claim entitlement to the account. Davidson filed a Complaint for Interpleader which initiated a separate proceeding and a subsequent substitution of judge.[1] Following the transfer by Davidson of the TOD account into an account managed by an individual appointed by the District Court, the District Court entered an order on January 27, 2017, dismissing Davidson with prejudice and awarding Davidson attorney fees and costs to be paid from the TOD account. Davidson states that the February 10, 2017 Amended Order only amended the original January 27, 2017 Order by providing service to all parties, and extending the deadlines for the filing of the affidavit for attorney fees and costs and any related objections. Despite Davidson's timely filing of its affidavit of attorney fees and costs, Davidson states that the court has not held a reasonableness hearing and that Davidson still holds this TOD account. Since the court has taken no further action since February 10, 2017, Davidson maintains that David does not appeal a final judgment because the fees and costs are still undetermined. M. R. App. P. 6(1) and 6(5)(a). Davidson adds that because David does not appeal a final order then there is no matter to stay at the District Court.

         The other party-defendant Howard W. Mills is represented by counsel, and joins in Davidson's motion. Howard also points out that this appeal is not properly before this Court. M. R. App. P. 4(1)(a). Howard states that David's appeal is also untimely. Howard explains that because the January 27, 2017 Order dealt with substantive issues and the rights of parties, then David's March 3, 2017 filing of the notice of appeal is untimely and past the thirty-day deadline. M. R. App. P. 4(5)(a). Both Howard and Davidson request attorney fees and costs be imposed upon David because of the intentional delay he has caused in these proceedings.

         David responds in opposition to Davidson's motion to dismiss. He does not, however, provide any substance to refute this motion. He claims that his filing is proper because he checked the appropriate box on the notice of appeal form. David argues many aspects of the underlying proceedings, and how the court's decision places him in "certain imminent danger that allows substantial irreversible injury to Appellant (David Mills).. . ." He claims that a stay under M. R. App. P. 22 is proper.

         Upon review, we conclude that this appeal is not from a final judgment. M. R. App. P. 4(1)(a). We also conclude that David's request for stay or writ of review is not appropriate because he has not complied with the rules for seeking a stay. M. R. App. P. 22(1) and 22(2). "Except under extraordinary circumstance supported by affidavit, a motion under this rule that has not been filed in accordance with the rule's provisions, will be denied summarily." M. R. App. P. 22(4).

         This Court is familiar with David's filings. In 2015, David appealed the court's Orders which admitted his father's will to probate and denied David's motion to set aside default judgment entered against him. We reversed and remanded the matter. In Re Estate of Mills, No. DA 15-0094, 2015 MT 245, 380 Mont. 426, 354 P.3d 1271. In 2016, we denied David's petition for out-of-time appeal because the orders were not immediately appealable under M. R. App. P. 6(4). In Re Estate of Mills, No. DA 16-0550, Or. (Mont. Sept. 27, 2016). We note that David has attempted to appeal another District Court Order, which is untimely and also not from a final judgment. In Re the Estate of Howard H. Mills, DA 17-0130, Or. dismissing appeal (Mont. Mar. 28, 2017).

         Turning to the request for sanctions, this Court may award sanctions to a prevailing party in an appeal which is "determined to be frivolous, vexatious, filed for purposes of harassment or delay, or taken without substantial or reasonable grounds." M. R. App. P. 19(5). This appeal has prevented the transfer of the TOD account, a hearing on the determination of costs and fees, and further action in closing this matter in the District Court. M. R. Civ. P. 22(3). Based upon the motions to dismiss and David's relentless pursuit of appeals which are for purposes of harassment or delay, and taken without substantial or reasonable grounds, we conclude that sanctions are warranted. Accordingly, IT IS ORDERED that:

1. Davidson's and Howard's motions to dismiss are GRANTED, and this appeal is DISMISSED WITHOUT PREJUDICE;
2. David's request for stay or alternatively, a writ of certiorari is DENIED; and
3. this matter is REMANDED to the Fifth Judicial District Court, Madison County, to determine the amount of attorney fees and costs counsel for D.A. Davidson, Inc. and for Howard W. Mills, have incurred in this appeal.

         The Clerk is directed to provide a copy of this Order to Karen J. Miller, Clerk of District Court, Madison County; to all counsel of record; and to David M. Mills personally.

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Notes:

[1] The Madison County District Court has overseen the probate proceeding since 2014 (Cause No. DP-14-19), and this interpleader action since 2016 ...


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