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In re Estate of Boland

Supreme Court of Montana

September 18, 2019

IN RE THE ESTATE OF EDWARD M. BOLAND, Deceased,
v.
CHRIS BOLAND and BARRY BOLAND, Appellees. JACQUIE BOLAND, as Rightful Owner of Home of Concern, JACQUIE BOLAND, PAUL EDWARD BOLAND and MARY GETTEL, as Heirs of the Estate of Dixie L. Boland, Appellants,

          ORDER

         Before this Court is a Motion to Dismiss Appeal and For Attorneys' Fees and Costs filed by counsel for the co-personal representatives, Christopher Boland ("Chris") and Barry Boland ("Barry"), in the estate proceedings of their deceased father, Ed Boland ("Ed"). Counsel points out that this Court should be familiar with the various disputes between Paul Boland (Paul), Mary Gettel (Mary), and Jacquie Boland (Jacquie) and Ed's Estate.[1]

         We observe that Chris's and Barry's motion was not initially sent to this Court after the time for a response had run pursuant to M. R. App. P. 16(2). After Chris and Barry filed a Notice to Court of Failure to Respond on August 29,2019, Paul, Jacquie, and Mary filed a response to the instant motion on September 3, 2019, or more than a week after it was due. This Court declines to consider or address the response.

         By way of background, Chris and Barry explain that this instant appeal concerns a Settlement Agreement that resolved Chris Boland, Personal Representative of the Estate of Edward M. Boland v. BTS, Inc., et al, Cascade County Cause No. DV-14-852. Paul refused to sign and later objected to the Settlement Agreement being brought before the Eighth Judicial District Court, Cascade County, where the Estate is pending.[2] Chris and Barry clarify that the Cascade County District Court approved this Settlement Agreement over Paul's objections on February 16, 2018. Paul appealed the approval of the Settlement Agreement and this Court dismissed the appeal with prejudice in DA 18-0237. Thereafter, Jacquie continued to occupy the property at issue in the Settlement Agreement and refused to vacate the home as set forth in the Settlement Agreement. Chris and Barry were forced to seek enforcement of the Settlement Agreement and, as a result,. Jacquie was ordered to vacate the home no later than August 18, 2019, at 5:00 p.m.

         Therefore, and importantly, the case currently being appealed is Cause No. DV-14-0852, which was: (1) finally resolved through an order adopting the Settlement Agreement; (2) appealed to this Court by Paul in DA 18-0237; (3) dismissed by this Court with prejudice; and (4) again before the District Court to enforce the Settlement Agreement and require Jacquie to vacate the home. We also note that the caption provided in the instant Notice of Appeal is not correct and reflects a non-existent case. However, attached to the Notice of Appeal is a minute entry reflecting Cause No. DV-14-0852. In addition to moving for dismissal of this appeal, Chris and Barry request reasonable costs and attorney fees in the instant appeal because "the only purpose of the appeal appears to be to delay the ultimate completion of the Settlement Agreement."

         Upon review, we conclude this matter is dismissed and that the egregious actions and false captioning of this appeal justify the imposition of sanctions upon Paul, Jacquie, and Mary. Sanctions will be imposed in lieu of attorney fees, in order to avoid further proceedings and delay in the District Court. Paul, Jacquie, and Mary appeal a case that this Court dismissed with prejudice last year. Paul Boland and Chris Boland, Co-Personal Representatives of the Estate of Edward Boland, v. BTS, Inc., d/b/a Classic Homes, Inc., Mark Dawson and John Does 1-10, Cause No. DA 18-0237, Order Dismissing Appeal (Mont. Oct. 2,2018). This Court rarely imposes a sanction besides dismissal of an appeal. However, the actions of Paul, Jacquie, and Mary cannot be ignored. Pursuant to M. R. App. P. 19(5), the Court determines that a monetary sanction of $1,500.00, is appropriate because this appeal was either "filed for purposes of harassment or delay, or taken without substantial or reasonable grounds."

         Accordingly, IT IS ORDERED that Chris's and Barry's Motion to Dismiss Appeal is GRANTED, and this appeal is again DISMISSED WITH PREJUDICE;

         IT IS FURTHER ORDERED that Chris's and Barry's Motion for Costs is GRANTED; and

         IT IS FURTHER ORDERED that Paul, Jacquie, and Mary are ORDERED to pay $1,500.00 to Chris and Barry as a sanction for their conduct and filing this appeal. If the sanction is not paid within sixty days of the date of this Order, Chris and Barry may seek entry of judgment against Paul, Jacquie, and Mary in this amount from the Yellowstone County District Court.

         The Clerk is directed to provide a copy of this Order to the Honorable Michael Moses, Thirteenth Judicial District Court; to Terry Halpin, Clerk of District Court, Yellowstone County; to all counsel of record; and to Jacquie Boland, Paul Edward Boland, and Mary Gettel personally.

---------

Notes:

[1] See Paul Boland and Chris Boland, Co-Personal Representatives of the Estate of Edward Boland, v. BTS, Inc., d/b/a Classic Homes, Inc., Mark Dawson and John Does 1-10, No. DA 18-0237, Order Dismissing Appeal (Mont. Oct. 2, 2018); Gerald W. Boland v. Paul Edward Boland, No. DA 18-0403, 2018 MT 288N, 2018 Mont. LEXIS 404; Paul Boland and Mary Gettel v. Chris Boland, Barry Boland, Ed Boland Construction, Inc., and North Park Investments LLC, No. DA 18-0370, and In re the Estate of Edward M. Boland, Deceased, No. DA 18-0607, Order Consolidating Cases under Cause No. DA 18-0370 (Mont. Nov. 20, 2018).

[2] The main cases concerning Ed's Estate are from Cascade County District Court, and the two consolidated appeals are before this Court. Paul Boland and Mary Gettel v. Chris Boland, Barry Boland, Ed Boland Construction, Inc., and North Park Investments LLC, No. DA 18-0370, and In re the Estate of Edward M. Boland, Deceased, No. DA 18-0607, Order Classifying Case (Mont. June 5, 2019). The Estate of Ed's wife, Dixie, arises from the Yellowstone County District Court and is before this Court on appeal. In re the Estate of Dixie L. Boland, ...


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