D.A. DAVIDSON & CO., Plaintiff and Appellee,
DAVID M. MILLS, Defendant and Appellant, HOWARD W. MILLS, and JOHN B. MILLS, Defendants.
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.
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. 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.
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.
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.
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).
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).
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.
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.
 The Madison County District Court has
overseen the probate proceeding since 2014 (Cause No.
DP-14-19), and this interpleader action since 2016 ...