IN THE MATTER OF VALENTINE E. WEISZ LIVING TRUST,
D.A. DAVIDSON TRUST COMPANY, a subsidiary of D.A. DAVIDSON COMPANIES, a Montana Corporation, Trustee.
Submitted on Briefs: September 26, 2018
District Court of the Fourth Judicial District, In and For
the County of Missoula, Cause No. DP 16-194 Honorable John W.
Larson, Presiding Judge
Appellant: Ashley C. Danno, Rebecca Henning-Rutz, Lee
Henning, Henning, Keedy & Lee, P.L.L.C., Kalispell,
Appellees: Daniel J. Auerbach, Laura E. Walker, Browning,
Kaleczyc, Berry & Hoven, PC, Missoula, Montana (for D.A.
Davidson Trust Company)
R. Sirrs, Boone Karlberg, PC, Missoula, Montana (Attorney for
David and Lori Weisz)
Valentine E. Weisz (Valentine) appeals from orders of the
Fourth Judicial District Court, Missoula County, granting
summary judgment in favor of D.A. Davidson Trust Company
(Davidson), denying Valentine's motion for partial
summary judgment, and ordering sanctions, including
attorneys' fees, against Valentine's legal counsel
Henning, Keedy & Lee. We affirm the orders granting
summary judgment in favor of Davidson and denying
Valentine's motion for partial summary judgment, and
reverse the sanctions order.
We restate the issues on appeal as follows:
1. Did the District Court err when it determined Davidson
properly assumed the role of Successor Trustee and granted
summary judgment in its favor?
2. Did the District Court err when it denied
Valentine's motion for partial summary judgment?
3. Did the District Court abuse its discretion when it
ordered sanctions against Henning, Keedy & Lee?
AND PROCEDURAL BACKGROUND
On September 22, 2006, Valentine created the Valentine E.
Weisz Living Trust (Trust) and named herself as Trustee. On
June 9, 2010, she amended the Trust (First Amended Trust) and
named Davidson as Successor Trustee.
In late 2011, Valentine and her husband moved in with their
grandson, David Weisz (David), and his wife, Lori A. Weisz
(Lori), in Missoula County. After Valentine's husband
died in October 2012, she continued to reside with David and
On December 11, 2012, Valentine's daughter Janice Burd
(Janice) faxed letters to the law firm that Valentine had
used for estate planning. Janice asked the firm to give the
letters to Valentine in private and specifically requested
the letters not be shared with Lori. In the letters, Janice
expressed dissatisfaction with the division of
Valentine's husband's estate. She complained that
David's inheritance far exceeded her own, and pleaded,
"I hope that you use your Trust to make the inheritance
to the family more equal." She asked Valentine to
include certain family members as Trust beneficiaries,
including Janice's son Don Fairchild (Don), who had
inherited significantly less from his grandfather's
estate than grandson David had.
On January 23, 2013, having had the opportunity to read and
consider Janice's letters, Valentine executed a Durable
Power of Attorney that appointed Lori as her
attorney-in-fact. That same day, Valentine amended the Trust
(Second Amended Trust), and again named Davidson as Successor
Trustee in the event of Valentine's resignation as
Trustee, incapacity, or death. The Second Amended Trust
provided for distributions upon Valentine's death to
include: 24% of the residuary estate to Janice, 25% of the
residuary estate to David, 25% of the residuary estate to
Lori, and 2% of the residuary estate to Don.
The Second Amended Trust contains a provision that sets forth
criteria for determining Valentine's capacity:
I shall be considered incapacitated if I am unable to manage
my property and affairs effectively for reasons such as
mental illness, mental deficiency, physical illness or
disability, or other causes. The determination of incapacity
shall be made by a court of competent jurisdiction or by the
Trustee, if the determination is confirmed in writing by a
physician licensed to practice in the state of my domicile
who has examined me 30 days before or after the
determination. After the determination, or the confirmation,
if later, my directions and any attempt by me to exercise any
reserved right shall be ineffective until in like manner it
is determined that I am no longer incapacitated.
On April 7, 2015, Valentine amended the Second Amended Trust
(First Amendment). The First Amendment only modified
testamentary distributions. These distributions included real
property in Arizona to Janice plus 24% of the residuary
estate minus $103, 000 to account for the value of the
Arizona property, 25% of the residuary estate to David, 25%
of the residuary estate to Lori, and 2% of the residuary
estate to Don. The same attorney, Kelly O'Brien, drafted
the First Amended Trust, Second Amended Trust, and the First
On December 29, 2015, Valentine saw her treating physician,
Jeffrey C. Knight, M.D. Dr. Knight noted this examination was
a "followup [sic] of family concerns regarding memory,
confusion. [H]er recall of family events is good. [S]he
drifts off or forgets what she is saying." After
examination, Dr. Knight found Valentine's
"[f]unctional status has changed." Although he
found her "oriented to situation," he assessed her
as having an altered mental status with decreased attention.
In February 2016, Janice visited Valentine in Montana.
Valentine then returned to California with Janice. Soon
afterward, Lori contacted Davidson and advised it she
believed Valentine was unable to make her own financial
On March 9, 2016, Dr. Knight issued a "Doctor
Certification" in which he opined that, as of his last
examination of Valentine, she "lack[ed] the requisite
competence to manage her own financial affairs." Dr.
Knight then wrote a letter to Davidson, in which he opined
Valentine was not able to independently manage her financial
affairs. After receiving Dr. Knight's letter, ...