author: JUSTICE WEBER JUSTICE NELSON

text:
    In the Matter of the Estate of DON C. WEST, Appellant.
    No. 94-252.
    Submitted on Briefs October 28, 1994.
    Decided December 20, 1994.
    51 St.Rep. 1409.
    269 Mont. 83.
    887 P.2d 222.

      For Appellant: Terry L. Seiffert, Billings.
    For Respondent: R. Bruce Harper, Harper & Stusek, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth Judicial District, Yellowstone County, of an order establishing a limited guardianship and terminating the general guardianship of Don C. West. The order also continued a conservatorship with Norwest Capital Management and denied a joint petition from the protected person, his guardian and the conservator to substitute the conservatorship with a trust. We affirm.

The questions for review are:

I. Did the District Court err in establishing a limited guardianship?

II. Did the District Court err in denying the joint petition to terminate the conservatorship?

Don C. West (Don) is a “protected person” whose personal and financial interests have been managed by his mother, Mary Lou West, as guardian, and Norwest Capital Management Co.-Montana, formerly Northwestern Union Trust Co., as conservator, since 1978. In October of 1976, Don sustained severe injuries in a motor vehicle accident in New Mexico, when a vehicle in which he was a passenger collided with an oil tanker. As a result of this accident, Don suffered extensive physical injuries, including bums, blindness and head and leg injuries. He suffers from motor difficulties in his legs and has some deformity in his legs and ankles which requires him to wear braces. His head injuries caused some mental impairment and he has also lost physical sensitivity in his fingers because of bums.

Following the accident, Don remained in a coma for over three months. In November of 1976, a New Mexico state court declared Don an incompetent person “until such time he is able, unassisted to properly manage and take care of himself and his property.” The New Mexico court also appointed his mother, Mary Lou West, as guardian ad litem. In her capacity as guardian ad litem, Mary Lou West initiated a personal injury suit in New Mexico on Don’s behalf. The lawsuit resulted in a negotiated settlement in the spring of 1978.

In May of 1978, following the settlement, the Montana district court appointed Northwest Union Trust Co., now operating as Nor-west Capital Management & Trust Co.-Montana (Norwest Capital), as conservator of Don’s financial affairs. The conservatorship was initially funded with $463,319. By the end of 1978, after payment of medical expenses and other bills on Don’s behalf, the value of the conservatorship was reduced to $374,323. Social Security Disability Payments have been deposited into the conservatorship during the years of Norwest Capital’s management of Don’s estate. During the years since 1978, the conservatorship has increased in value under Norwest Capital’s management, with the result that at the time of the hearing on this matter, the conservatorship held assets in the amount of $1,084,239. In recent years, the annual income of the conservatorship has consistently exceeded the amount necessary to meet Don’s needs.

In June of 1978, the Montana district court also appointed Mary Lou West as general guardian. Mary Lou West has made several personal care arrangements for her son in the years since 1978. In the last few years, however, she has been increasingly less involved in making such arrangements.

After being released from the hospital in January 1977, Don completed a rehabilitation program at St. Vincent’s Hospital in Billings, Montana. His guardian then placed him in a rehabilitation program for the blind in Topeka, Kansas; followed by the Lighthouse Program for the Blind in Seattle, Washington; and then in High Hopes Brain Trauma Learning Center in Costa Mesa, California. After the High Hopes program, Don had live-in assistance in two separate living arrangements in Orange County, California. After being notified by California authorities that the second of those arrangements was unsatisfactory and had to be terminated within two days, Mary Lou West arranged for Don to fly to Billings, where he resided with her for a short time before being enrolled by her in The Villa in Greeley, Colorado.

Don was unhappy with the arrangements made by his mother in Greeley and, after a short time, he enrolled himself in the Colorado Rehabilitation Center, in Denver, Colorado. This program taught mobility, daily living skills, Braille typing and other skills to enable him to live on his own. With the assistance of these rehabilitation programs and physical therapy, Don has gradually recovered and achieved a great deal of self-reliance in many aspects of his life. At the time of the hearing in this matter, he had lived on his own for over a year.

Although Don is now 43 years old, currently lives alone and has learned to be quite self-sufficient, he continues to require some assistance. At the time of the hearing, he employed a personal care manager, who assisted him with safety issues, personal hygiene, social activities and money management. Don hired his care manager after approval from Mary Lou West. The care manager communicates regularly with Mary Lou West concerning Don’s personal affairs. Don has also hired other people — and sometimes fired them when they did not work out satisfactorily — to get his mail, pay his bills, clean his apartment and cook for him. He can cook some meals on his own using a microwave oven, but sensory loss in his fingers causes problems with cooking on an electric range.

Don uses the aid of customer assistance at stores when he purchases his food, clothing and other personal items. He arranges for his own transportation using taxis and can complete sales transactions on his own. However adept he has become, he recognizes that he must rely on the assistance of helpers and recognizes his limitations when it comes to managing his money and making investments. He testified that he knows that he needs assistance in financial matters and appreciates the manner in which Norwest Capital has handled his finances.

All the interested parties in this action agree that Don no longer needs the extensive assistance from others to manage his affairs that he needed at the time the guardianship and conservatorship were established in 1978. Indeed, the District Court emphasized and it is clearly evident in the record that Don has made a phenomenal recovery since that time, culminating in his present ability to live independently and to arrange for necessary assistance from third persons without his guardian’s help.

Evidence was presented at the hearing from several physicians to establish that Don no longer needs extensive assistance and to establish that he is capable of managing many of his personal affairs. However, the evidence also established that he has some “mental status abnormalities” consistent with the head injury he suffered in the 1976 accident and that some aspects of his personality are impaired due to the head injury as well. The physician preparing the report for purposes of this proceeding stated that Don suffers extremely gross deficits in information gathering (primarily due to the blindness), markedly impaired concentration, slightly impaired memory and markedly impaired mathematical skills. Despite these deficits, Don has recovered remarkably well and is able to live a relatively normal life. He brought this action to terminate the guardianship as he believes he no longer needs assistance in his daily living arrangements and feels he can handle such matters on his own.

Mary Lou West testified that she agrees that Don should have more latitude in decisionmaking, but she thinks he needs guidance in critical areas such as medical arrangements and education and training arrangements. Pam Ness, Vice President and Trust Officer for Personal Trusts for respondent Norwest Capital in Billings, manages the Don C. West Conservatorship. She testified that Nor-west Capital objects to the complete removal of the guardianship in this matter and would be opposed to a trust arrangement rather than a conservatorship if a third person is not involved in decisionmaking for Don. However, Mary Lou West and Norwest Capital agreed that a trust arrangement would more fully and adequately meet Don’s current needs because it would allow Don to make some financial decisions with guidance from a third person. To the extent of his capacity to understand the nature of the proposed trust, Don agreed with that approach as well.

The primary motivation for this arrangement, as testified to by the witnesses, was to allow Don more latitude in gift-giving and to allow him to have some involvement in his personal financial affairs. According to the testimony, a trust could be tailored to meet Don’s individual needs, such as tax and estate planning. Under the present conservatorship arrangement, financial transactions are subject to continuing court supervision and approval. Don has expressed an interest in giving money to his nephews and nieces for their college expenses. He also wanted to give his mother a new car as a surprise Christmas gift, but was unable to do so because the conservatorship limits gifts to approximately $12,000 per year, subject to court approval.

Dr. David B. Carlson of Deaconess Medical in Billings prepared the report for the District Court in this matter at the request of Don’s counsel. He opined that Don does not need a full-time general guardianship and that a less restrictive method of providing for Don’s needs would be appropriate for Don’s best interests.

The District Court relied on Dr. Carlson’s opinion and continued the guardianship, limiting the guardian’s powers as follows: to care and maintain Don, when and if he should become incapable of doing so himself; to assert and protect Don’s rights, should he be unable to do so for himself; to provide timely and informed consent to necessary medical procedures, in the event that Don is unable to do so for himself; and to assist Don in obtaining the necessary training and education. The District Court also continued the conservatorship in its present form.

Issue I: Guardianship

Did the District Court err in establishing a limited guardianship?

Norwest Capital and Mary Lou West agree with the District Court’s termination of the general guardianship and appointment of Mary Lou West as limited guardian. They oppose the complete removal of a guardian. Don opposes any sort of guardianship.

Mary Lou West has handled many of Don’s personal arrangements since his accident in 1976. The record establishes that this arrangement is not presently necessary. Don resides in Colorado and Mary Lou West resides in Montana. She acknowledges his remarkable recovery and testified that she now believes that Don is capable of making most decisions about his property and his life. She further recognizes that the constant supervision and protection once required for Don is no longer necessary and that he needs some independence.

Pam Ness testified that Norwest Capital is opposed to dealing directly with Don if a trust were to be established and that it preferred to deal with a third person because of Don’s physical disabilities, particularly his blindness, and his inability to comprehend mathematical and investment transactions well.

Don contends that the District Court’s decision to retain a limited guardian is incorrect for two reasons. First, he contends that he no longer meets the definition of “incapacitated person” set forth in § 72-5-101(1), MCA:

“Incapacitated person” means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or which cause has so impaired the person’s judgment that he is incapable of realizing and making a rational decision with respect to his need for treatment.

Don relies on In the Matter of the Guardianship and Conservatorship of Swandal (1984), 210 Mont. 167, 171, 681 P.2d 701, 703, as support for his argument that a guardianship is improper where a person has physical disabilities but is not mentally infirm. Don contends that the only disabilities that have continued are physical and, as such, they are insufficient to constitute a guardianship according to Swandal. This was not the finding of the District Court. Dr. Carlson testified that Don was not likely to improve beyond his present capabilities and that he has some mental impairment, as noted below in more detail. The District Court concluded that both Don’s mental and physical impairments supported a continuance of the guardianship, with limits on the powers of the guardian.

Second, Don claims the court erred because the Conclusions of Law and Order do not comply with the requirements of § 72-5-316, MCA, because the statute does not permit the court to establish a limited guardianship when the protected person can meet the essential requirements for his physical health and safety. Section 72-5-316, MCA, provides in pertinent part:

(1) If the court is satisfied that the person for whom a guardianship is sought is incapacitated and that judicial intervention in his personal freedom of action and decision is necessary to meet essential requirements for his physical health or safety, it may appoint a ... limited guardian having the powers described in the order. If the court is satisfied that the allegedly incapacitated person could handle the essential requirements for physical health or safety if his financial resources were managed by another, it shall order that the petition be treated as a petition for a protective order under part 4 of this chapter and proceed accordingly. Alternatively, the court may dismiss the proceeding or enter any other appropriate order that is not inconsistent with the specific provisions of this part. ...

Don further argues that the conditional powers given to Mary Lou West here are for potential future needs, not for current needs, and that the statute provides no basis for this sort of guardianship when there is no current need for it.

The respondents, Mary Lou West and Norwest Capital, argue that the guardianship statute contemplates this sort of arrangement by requiring a guardianship to be tailored to those areas where it is foreseeable that the protected person may require assistance in the future; here, to prevent some person or persons from taking advantage of Don, for making medical decisions for Don, and to provide for the need to act on Don’s behalf to obtain training and education programs for him. Finally, the respondents contend that someone must continue to act in the capacity of a limited guardian in order that Don’s best interests are served.

Section 72-5-306, MCA, describes the purpose and basis for appointing a guardian, whether it be a full or a limited guardianship:

Guardianship for an incapacitated person may be used only as is necessary to promote and protect the well-being of the person. The guardianship must be designed to encourage the development of maximum self-reliance and independence in the person and may be ordered only to the extent that the person’s actual mental and physical limitations require it. An incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those that have been expressly limited by court order or have been specifically granted to the guardian by the court. (Emphasis supplied.)

The limited guardianship in this case does not permit Mary Lou West to intervene in most of Don’s personal affairs. The guardianship is now very limited and enumerates only certain decisions that Mary Lou West may make for Don, and she can only make these decisions in the event Don is unable to do so. Clearly, this complies with the statutory mandate emphasized above to encourage the development of maximum self-reliance and independence.

The evidence submitted to the court relative to Don’s mental and physical condition consisted of a series of letters from physicians who had either provided medical services to or had examined him for the purpose of the proceeding, persons who had provided rehabilitative services and training to him and from the court-appointed visitor. Some were authored in 1991 and did not express opinions as to Don’s condition at the time of the hearing. The court-appointed visitor, who is also the person employed as his care manager, opined that Don had the capacity of coordinating the services he needs in managing his daily life, but felt that the continuation of the guardianship was appropriate, with the guardian’s powers being limited to providing guidance in managing Don’s financial concerns regarding the gifting of money and overseeing his financial portfolio.

Dr. Carlson also expressed the opinion that Don did not need a full-time guardian, although he needs help in managing his financial affairs. Dr. Carlson further stated that because of the nature of Don’s injuries, any clinical improvement beyond his present condition was unlikely. As previously stated, Dr. Carlson found that Don has deficits in information gathering, concentration, memory and in mathematical reasoning and calculating. Based on the foregoing, the court found that Don’s disabilities continue to exist and that he remains physically and mentally incapacitated, although to a much lesser extent than when the full guardianship was established. With that in mind, the court designed an extremely limited guardianship arrangement. The limited guardianship allows Don to have broad powers over his daily living arrangements while he is able to live independently.

Don is presently able to provide for his own care. He testified that he also would be able to provide for substitute help, should the need arise, by contacting appropriate Colorado authorities. However, his disability is of such nature and character as to prevent him from fully and completely protecting himself and his property interests from those who might take advantage of him. The powers of the limited guardianship contemplate that he may not be able to arrange for adequate care providers, that he may not be able to make timely and informed medical decisions, that he may need assistance in asserting and protecting his rights and that he will likely need some form of assistance in obtaining training and education. The mere fact that he is currently providing for his personal needs does not support a conclusion that he can do so in the future.

The District Court in this case narrowly formed the limited guardianship to provide for Don’s unique needs, in accord with the testimony and other evidence presented at the hearing. Subject to restrictions under the guardianship statutes, such decisions are committed largely to the discretion of the court. This Court will not interfere with the exercise of the appointing court’s discretion unless the court has abused its discretion. In the Matter of the Guardianship of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316, 318. Section 72-5-316, MCA, gives the court discretion in determining whether a guardianship should be a full or a limited guardianship and, if limited, to determine the responsibilities which are to be handled by the limited guardian.

The powers conferred on a guardian should be as clearly defined as circumstances permit. We conclude the limited guardianship arrangement formulated by the District Court will allow Don to have almost total autonomy, except in the area of his financial affairs, while still providing the guardian with powers in the event the guardian becomes aware that Don is unable to handle certain of his personal affairs. We conclude that the District Court did not abuse its discretion in determining that a limited guardianship was appropriate in light of the facts in this case and the stated objective in § 72-5-306, MCA, to encourage maximum self-reliance and independence and to promote and protect the well-being of the person.

We hold the District Court properly exercised its discretion in establishing the limited guardianship in this case.

Issue II: Conservatorship

Did the District Court err in denying the joint petition to terminate the conservatorship?

Don filed a petition to terminate the conservatorship and the guardian and conservator filed cross-petitions to terminate the conservatorship. Mary Lou West and Norwest Capital desired to establish a trust rather than a conservatorship in order that there might be more flexibility in managing Don’s finances. To the extent of his capacity to understand the nature of a trust allowing him to have more control over his money, Don also wants such an arrangement. Don’s desire for a trust instead of a conservatorship is motivated by his wish to make gifts and to help others. The court denied both petitions, stating that “[t]he agreed facts do not demonstrate that it is in the best interest of the protected person to terminate the conservatorship.”

Don testified that he desired to end the conservatorship so that he might be permitted to make gifts to relatives and others, particularly other victims of closed head injuries. Don wanted to buy a car for his mother for Christmas and was disappointed in not being able to do so because of the statutory limitation of 20% of conservatorship income, which would have prevented a gift in excess of $12,000. Don also wants to help his nieces and nephews with their college education expenses. He maintains that he is totally competent to make decisions about his finances, although he agrees that his money needs some protection.

Mary Lou West and Pam Ness, a Trust Officer for Norwest Capital, discussed the advantages of a trust arrangement as an alternative to the conservatorship, particularly for estate tax purposes, to address Don’s needs and desires and to remove the authority of the District Court to oversee Don’s estate by annual review of financial statements. Respondents contend that it is unnecessarily time-consuming and costly to burden the district courts with issues of this type whenever a protected person wants to make a substantial gift and to limit the amount of gifts each year to 20 percent of the income of the estate. Respondents argue that, as trustee instead of conservator, Norwest Capital would be better able to handle this sort of transaction, taking into account the provisions of the trust agreement, which could be structured in order to protect Don’s interests. Norwest Capital would have the same fiduciary duty under either arrangement. The respondents further argue that questions of whether gifts are appropriate are best made in private by the trustee and not in a courtroom setting.

In considering these arguments, we notice the complete absence of any estimation of Don’s future needs and a balancing of those needs with the desires of the parties.

In their petition to terminate the conservatorship and establish a trust, the respondents also expressed the desire to be able to consider the interests of and to benefit remainder beneficiaries of Don’s estate by gifting and tax planning. The respondents claim that conversion of the Don West Conservatorship to a trust would serve Don’s best interests, needs and desires. Don’s “best interests,” according to respondents, include the right to consider and select the potential beneficiaries of his estate and to formulate a plan to maximize gifts and minimize tax impacts. Pam Ness testified that a trust would better serve Don’s interests for tax purposes although she testified that she could not explain or specify any of the alleged tax advantages because she was not a tax expert. Again, there has been no consideration of the balancing of the potential benefit of a program of gifting and the resultant tax impact with Don’s future needs.

The conservator has handled Don’s assets since 1978, investing and reinvesting the funds, and has paid out funds to Don and to others for Don’s benefit. By September 17,1993, the value of the assets was $1,084,239 and the income from the assets is approximately $60,000 per year, and consistently exceeds the amount expended for Don’s living expenses. The final pretrial Order submitted to the District Court stated, as an agreed fact, that the projected Montana inheritance and federal estate tax burden, in the event of Don’s death, amounted to approximately $230,000; and that Don desired to make gifts to his mother, his brother, his sister, and his nieces and nephews, but is not permitted to do so under Montana conservatorship law. These agreed facts were the basis of the petition by the guardian and the conservator to terminate the conservatorship and to create a trust.

The District Court determined that these agreed facts do not demonstrate that it is in the best interest of the protected person to terminate the conservatorship. In denying the requests to dissolve the conservatorship, the District Court stated:

It would seem to be in the protected person’s best interest to maintain what assets he has to protect him against the uncertainties of the future. The only ones to stand to benefit from a program of gifting would be those who receive the gifts and possibly, those persons who are the devisees of his estate upon his death.

Clearly, the District Court considered the uncertainties of the future and the possibility that Don’s monetary needs, although not great at this time, may escalate in the years to come. We stress again the absence of any testimony from any of the parties as to the amount that will be needed to provide for Don’s future needs. Without such evidence, the District Court had no basis for changing the present conservatorship. The money initially deposited into the conservatorship account, which under the management of Norwest Capital has nearly tripled since the end of 1978, was the result of a personal injury settlement intended to provide for Don’s needs for the remainder of his life. The Social Security Disability payments are also intended for his benefit. At age 43 and in good health, his present needs are likely less than his needs will be toward the end of his life. Medical and other care expenses can quickly exhaust the resources of critically ill persons and there is no way to accurately forecast the amount that may be required in the modern day world where the reality is that medical costs have escalated at a much more rapid rate than most other costs. We therefore strongly agree with the conclusions reached by the District Court with regard to the uncertainties of the future.

Further, if the purposes of the estate included making provisions for the best interests of heirs or devisees, then certainly tax planning — including a program of gifting — would be appropriate. However, we are not concerned with maximizing the estate for such future heirs and devisees and that would not be a stated purpose in establishing a trust for Don. These aspects demonstrate the absence of apparent concern for Don’s future needs. With the present limited guardianship, whereby Don has very broad powers to maximize his autonomy, creation of a trust as suggested here is not appropriate. The guardian has no powers over financial transactions; these would be vested with the trustee, who is not in a position to know what will be needed for Don’s care in the future. Norwest Capital did not want to deal directly with Don in the event that a trust was established. Therefore, in order to maximize Don’s independence, it is necessary to continue the conservatorship.

Moreover, the sort of arrangement in place here — limited guardianship and conservatorship — does not prevent Don from making a will to dispose of his property upon his death. Under a conservator-ship, the court has certain enumerated powers which may be exercised directly or through a conservator. These powers include “all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will.” Section 72-5-421(3), MCA. One of these powers is the power to make gifts. However, there are limits on the power to make gifts, because of the importance of that power. See § 72-5-428(2), MCA.

Establishment or, as in the present case, continuance, of the conservatorship has no effect on the capacity of the protected person. Section 75-2-421(5), MCA; and Montana Conference of the Seventh-Day Adventist Church v. Estate of Miller (1981), 192 Mont. 468, 476, 628 P.2d 1100, 1105. As noted above, a limited guardianship may be established because of limited mental or physical incapacity in one particular area of functioning, but the person may be entirely competent in other respects. Miller, 628 P.2d at 1105. Thus, the mere fact that a conservator has been appointed does not mean that the protected person lacks the capacity to make a will. The power to make a will for directing the disposition of one’s property upon death is expressly not given to the court along with other statutorily granted powers in § 72-5-421, MCA. The District Court addressed this point, stating:

The mere fact that a Conservator has been appointed does not mean that the protected person lacks the capacity to make a will. If the protected person, in this case, should want to leave his property, in the event of his death, to certain of his relatives, and it can be determined that he possesses the necessary testamentary capacity, such a will would be valid, notwithstanding the fact that he has a Conservator.

We agree with this analysis of Don’s capacity and rights concerning the testamentary disposition of his property.

The District Court also concluded that the purpose of a conservatorship is to conserve the assets for the benefit of the protected person and that the mere fact that at this time, Don’s living expenses are less than the income from his estate, does not mean it would be in his best interests to give away his estate. During the hearing, the following exchange occurred:

THE COURT: Tell me, all I hear is magical words, tax planning, what tax planning is appropriate for someone who’s 42 years old?
[Ms. Ness]: (No oral response.)
THE COURT: Do you have a crystal ball to tell anyone how much it’s going to take him to live out the rest of his life?
THE WITNESS: No, we don’t.
THE COURT: All right. Well, now, is there any tax planning that you’re aware? Are you an expert in the field?
THE WITNESS: I do not profess to be an expert at all.

This was the extent of the testimony concerning tax planning and no evidence was presented to estimate future needs. At 43 years of age and in good health, there is no way to determine what Don’s needs may be in the future.

The purpose of the Don C. West Conservatorship estate is to provide for Don’s best interests and his present and future care.

Don is unable to manage his property and financial affairs not only because of his physical disability (blindness), but also because he is impaired in his ability to comprehend mathematics and, thus, his ability to understand his financial affairs. He admits that he needs this sort of help and also that his money needs protection. He also needs proper management to preserve his estate to provide for his support, care and welfare in the present and in the future.

It is unfortunate that Don does not have the ability to make detailed mathematical judgments to determine his future needs. His major expenses in the past have been totally handled by either his guardian or conservator. Under the present limited guardianship, the District Court has structured an arrangement that will give Don broad control over his personal care needs in order to maximize his self-determination and independence while maintaining control of his finances to assure his future needs are provided for as fully as possible. In today’s world, anyone and particularly a severely handicapped person can use up a million dollars in a relatively short period of time if physical and mental health decline. Again, there was no evidence presented addressing this possibility, although one of the physicians noted that a person who has previously sustained the sort of head trauma experienced by Don may be a victim of premature senility, with an onset as early as age 55 years. The sort of trust desired by the parties does not consider such possibilities and there was a noted absence of consideration by the parties on this topic.

In fact, the nature of the evidence presented in this case emphasizes the desires of the parties without the appointment of a guardian ad litem to specifically address these future needs in relation to Don’s best interests. Don’s counsel represented Don and addressed Don’s wishes. However, the limited evidence presented indicates that Don does not have the capacity to compare his own needs to those of others. In other cases of this nature, where the guardian has interests possibly adverse to the best interests of the ward, it may be appropriate for the court to appoint a guardian ad litem to specifically address the protected person’s future needs for purposes of the proceeding.

We also conclude that tax planning for purposes of the estate tax burden upon the incident of Don’s death is simply not a consideration which is in the best interests ofprovidingforhis care while he is alive. Gifting for the purpose of reducing the amount of estate tax is, in and of itself, insufficient to justify the gifting of the estate and does not preserve the estate for the purpose of providing for Don’s needs.

Under the present guardianship, the guardian has very limited powers. If the conservatorship were to be converted to a trust, it would be necessary to appoint a guardian with very broad powers and the capacity to make well-reasoned financial decisions as Don does not have an adequate capacity to compare his own needs to those of others. It is apparent that the District Court carefully considered Don’s best interests, both present and future, by structuring a limited guardianship with few powers and continuing the conservatorship to ensure that Don’s future needs are met. Don’s desire to establish a trust to replace the conservatorship is motivated by his wish to make gifts and to help others. Don also testified that he was interested in counseling other victims of head injuries. During the hearing, he testified extensively and it is apparent to this Court that he has substantial mental capacity despite his particular impairments, that he is an empathetic individual who cares deeply about other persons, and that he was able to respond appropriately to lengthy questioning directed toward his ability to care for his personal needs. He has made a remarkable recovery from his situation in 1978, referred to by the court-appointed visitor from the Montana Department of Social and Rehabilitative Services as “unable to manage for himself in society.”

The District Court determined that the only persons to be benefited by a program of gifting and other estate tax planning, according to the evidence presented at the hearing, are the persons to receive the gifts and the devisees of his estate upon his death. This Court will uphold the decision of the District Court unless the District Court has abused its discretion. In exercising its discretion, the District Court must be guided by the best interests of the protected person. Clearly, the court considered Don’s best interests in deciding to continue the conservatorship. We conclude that the record supports the finding that Don’s future needs are best served by a continuance of the present conservatorship and that the reasons proposed by the parties do not constitute sufficient justification for dissolving the conservatorship and establishing a trust.

We hold the District Court properly exercised its discretion in continuing the conservatorship in this case.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, HUNT and GRAY concur.

JUSTICE NELSON

specially concurs:

I concur in the result of our opinion and, for the most part, with our legal analysis. Aside from that, I do not concur in certain statements that are made in the opinion.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. ALAN WAYNE WILLIAMS, Defendant.
    NO. ADC 91-190
    DECISION
    Done in open Court this 14th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On June 10,1994, the sentence entered on May 20,1992, sentencing the defendant to ten (10) years, with five (5) years suspended is revoked. The defendant is hereby sentenced to Montana State Penitentiary for a period of ten (10) years, with three (3) years suspended with the same conditions as originally imposed. It is further ordered that the defendant shall enroll in an inpatient chemical dependency program and follow all recommendations made. It is further ordered that the defendant be given credit for all time served. This sentence is to run consecutive with the sentence imposed in Billings, Montana.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that this sentence is remanded back to District Court for clarification of the sentence imposed by the sentencing judge.

The reason for this decision is to clarify and determine whether the sentencing judge intended for the sentences imposed in both cases in Cascade County and Yellowstone County to run consecutive or concurrent with each other.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Alan Williams for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. ALAN WAYNE WILLIAMS, Defendant.
    NO. CDC 92-089
    DECISION
    Done in open Court this 14th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On August 4, 1992, the defendant was sentenced to serve ten (10) years in the Montana State Prison. He was given credit for 15 days. The execution of the last five (5) years of said sentence was suspended. This sentence was to run concurrently with the sentence imposed by Judge McKittrick in Cause ADC 91-190. On June 10, 1994, the defendant’s five (5) year suspended sentence was revoked. The defendant was sentenced to serve two (2) years in the Montana State Prison. The execution of the remaining three (3) years is suspended under the same conditions that applied to the original sentence dated August 4,1992. It is further ordered that the sentence herein, run concurrently with the sentence imposed in Yellowstone County in Case #DC 93-573, dated April 12,1994.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that this sentence is remanded back to District Court for clarification of the sentence imposed by the sentencing judge.

The reason for this decision is to clarify and determine whether the sentencing judge intended for the sentences imposed in both cases in Cascade County and Yellowstone County to run consecutive or concurrent with each other.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Alan Williams for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. MARSHA LYNN WHTTEWOLF, Defendant.
    NO. DC 90-081
    DECISION
   On March 23,1994, the previous deferred imposition of sentence dated the 4th day of September, 1990, was duly revoked and the defendant was resentenced for the crime of Theft (Felony). Wherefore, it is ordered, adjudged and decreed that the said defendant be committed to the Director of the Department of Corrections and Human Services to be placed in an appropriate community based program, facility or a State correctional Institution, for custody care and treatment for the term of five (5) years to run concurrently with the sentence received in criminal cause number DC 93-449. The defendant must pay $120.00 a year prorated at $10.00 a month for the number of months that she is under supervision.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Richard J. Carstensen, attorney from Billings. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court. The Sentence Review Board finds that the Department of Corrections can best determine the appropriate placement of the defendant.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Richard J. Carstensen, attorney from Billings for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. MARSHA LYNN WHITEWOLF, Defendant.
    NO. DC 93-449
    DECISION
   On March 23,1994, the defendant was committed to the Director of the Department of Corrections and Human Services for the offense of Burglary (Felony) to be placed in an appropriate community based program, facility or a State Correctional Institution for the term of five (5) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility in the amount of 60 days. Defendant shall also receive all credit for time served in Cause #DC 93-321 for the crime of Aggravated Assault (Felony). The defendant is further notified that the law imposes upon her the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that she is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, MCA. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Richard J. Carstensen, attorney from Billings. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court. The Sentence Review Board finds that the Department of Corrections can best determine the appropriate placement of the defendant.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Richard J. Carstensen, attorney from Billings for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. VERNON E. TSOSIE, Defendant.
    NO. DC 93-517
    DECISION
   On July 8,1994 the defendant was committed to the Director of the Department of Corrections and Human Services to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of ten (10) years for the offense of Sexual Assault, a Felony. The defendant shall receive credit for time spent in the Yellowstone County Detention Facility in the amount of 24 days. It is further ordered that the said defendant shall register as a Sex Offender as required by 46-18-254 and 255 and 46-23-501, M.C.A. The Act requires convicted Sex Offenders to be informed in writing at the time of sentencing of their duty to register as an Offender with the Chief of Police or Sheriff of their community of residence. It is further ordered that the defendant abide by the conditions listed in the July 8,1994judgment. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($ 10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for the conviction pursuant to statute 46-18-236, M.C.A. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County.

Done in open Court this 14th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 14, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. 6. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Vernon Tbosie for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. ARLEE GAIL SMITH, Defendant.
    NO. 94-9
    DECISION
   On June 2,1994 the defendant was sentenced to a term of twelve (12) years on each of said two counts of Sexual Assault, both felonies, at hard labor to be served concurrently or at the same time, and not consecutively, at Montana State Prison. Credit shall be given for 163 days already served through his date of sentencing. The defendant has been determined to be a nondangerous offender, but that because of his sexual abuse of the child victims herein, his parole conditions shall specifically include that he cannot at any time or place be alone with children under the age of eighteen (18) years, that he shall not use, consume or possess any alcoholic beverages or unlawful drugs, and shall not have or possess any pornography. The defendant shall not be eligible for parole until he either successfully completes phases 1 and 2 of the sex offender program at Montana State Prison, or has served three (3) years (less 163 days) of his sentence, whichever be sooner. If he has not completed such program before parole, he shall continue counseling on his own for at least the first year of parole at his own expense. That defendant must register with the police department or sheriff’s office wherever he lives after parole, and must fully comply with the Montana Sex Offenders Registration Act and related provisions of the law (46-23-501 et. seq., 46-18-254 and 46-18-255, MCA 1993), for a period of ten (10) years after his parole, and is hereby specifically advised his failure to do so can result in new additional criminal charges against him. That defendant shall be permitted to enroll and participate in the drug/alcohol education and counseling program at Montana State Prison, provided he complies with all rules and regulations thereof. That defendant shall also pay a surcharge of $40. ($20.00 on each count) immediately, plus up to $300. each for counseling of the two minor victims herein if their parents deem it necessary, plus $400. restitution for Fred Lemon’s evaluation, plus $500. for court-appointed attorney fees, plus $600. fine, making a total of $2,100. Said payments shall be made to the clerk of this court at the rate of at least $100. a month, commencing within sixty (60) days after defendant’s parole, and his failure to pay them shall be a parole violation.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Arlee Smith for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. TRAVIS LAYNE ROBERTS, Defendant.
    NO. DC-91-179(b)
    DECISION
   On August 9,1994, the Defendant was sentenced to a term of twenty (20) years at the Montana State Prison for the offense of violation of probation for the offense of Burglary, a Felony. Should the defendant be granted parole he must, as a condition of his release from custody, pay $983.10 in restitution to his victims in this matter ($250.00 to Hungry Horse Market, and $733.10 to Safeco Insurance, Claim No. 26A91233974). The defendant must also pay the $1,000.00 fine and $100.00 surcharge ordered by this Court on December 20, 1991. Payments shall be made through the Flathead County Attorney’s Office, P.O. Box 1516, Kalispell, Montana 59901. Of this period of incarceration, eight (8) years are suspended, subject, to the same conditions of this Court’s December 20, 1991, Judgment. The defendant is to be given credit for 22 days served in the Flathead County Detention Center pending final disposition in this matter.

Done this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13, 1994 the Defendant’s application for review of that sentence was reviewed by the Sentence Review Division of the Montana Supreme Court.

The Defendant was not present and was not represented by counsel. The state was not represented.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the review of sentence shall be stayed pending completion of the program at Swan River and resolution of modification of sentence by sentencing court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL STACY PEDERSON, Defendant.
    NO. 10950
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On June 24,1994 the defendant was committed to the Department of Corrections for a term of ten (10) years each on Count I and II: Forgery, a Felony and for a term of five (5) years on Count III: Bail Jumping, a Felony, for suitable placement. Said sentences on Count I and II shall run concurrently with each other but the sentence on Count III shall run consecutively with the sentences imposed in Count I and II. However, defendant’s sentence on Count III is hereby suspended with conditions and restitution as listed in the June 24,1994judgment. Defendant shall receive credit for time served in the amount of seventy-five (75) days.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Michael Pederson for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. SHANE DOUGLAS MODERIE, Defendant.
    NO. 10756
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On March 23,1994, the defendant was sentenced to a term of twenty (20) years on Count II: Sexual Intercourse without consent, a felony, in Montana State Prison and to a term of six (6) months on Count III: Domestic Abuse, a misdemeanor, in the Missoula County Jail. Said sentences shall run concurrently with each other. Ten (10) years of defendant’s sentence on Count II is hereby suspended with conditions as listed in the March 23,1994 judgment. It is the recommendation of the Court that prior to becoming eligible for parole the defendant shall complete the sexual offender, anger management and chemical dependency evaluation and/or treatment at the Montana State Prison. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to continue the hearing. The motion to continue was denied and the defendant proceeded with the hearing.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed. However, the Sentence Review judges agree that the sentence should be increased but under the current rules of the Sentence Review Division, under no circumstances will a defendant receive an increase in sentence without receiving the assistance of counsel if he or she wishes to be represented by such.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Shane Moderie for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. BILLY RAY MCKINNEY, JR. Defendant.
    NO. DC 93.107(B)
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On July 5, 1994, the Defendant was sentenced to twenty (20) years at Montana State Prison with six (6) years suspended subject to conditions as listed in the July 5, 1994 judgment for the offense of Sexual Assault, a Felony, subject to conditions. This period of incarceration is to be served consecutive to that imposed in Cause No. DC 91-159(B). Credit is given for seventy-eight (78) days. The defendant is to be considered ineligible for parole until he successfully completes all phases of the sex offender treatment program available at Montana State Prison and follows all resulting recommendations to the satisfaction of his treatment providers. The defendant is considered a dangerous offender for purposes of parole eligibility.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Neil Leitch, attorney from Missoula. The state was not represented.

The Honorable Ted O. Lympus abstained from hearing this case as he was the County Attorney the time the original charge was initiated.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careftd consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, and Hon. John Warner, Member.

The Sentence Review Board wishes to thank Neil Leitch, attorney from Missoula, for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. BILLY RAY MCKINNEY, JR. Defendant.
    NO. DC 91-159(B)
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 21st day of November, 1994.
   On July 5, 1994, the Defendant was sentenced to ten (10) years at Montana State Prison for the crime of theft after a previous sentence for this offense was revoked because defendant violated the conditions of his probation by committing the offense of Sexual Assault, a Felony, as charged in Cause No. DC 93-107(B). Credit is given for eight (8) days served in Flathead Co. Detention Center. The defendant is considered ineligible for parole until he successfully completes all phases of the sex offender treatment program available at Montana State Prison and follows all resulting recommendations to the satisfaction of his probation officer. The defendant is to be considered a dangerous offender for purposes of parole eligibility. Should the defendant be granted parole he must continue paying restitution to his victims in this matter as a condition of his being released from custody.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Neil Leitch, attorney from Missoula. The state was not represented.

The Honorable Ted O. Lympus abstained from hearing this case as he was the County Attorney at the time the original charge was initiated.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence, to affirm it, or to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will be amended to remove the dangerous designation on the sentence for theft. All other conditions shall remain the same as originally imposed.

The reason for the decision is the crime for theft is a property crime not involving violence, per se. Therefore the dangerous designation is not appropriate.

Hon. G. Todd Baugh, Chairman, and Hon. John Warner, Member.

The Sentence Review Board wishes to thank Neil Leitch, attorney from Missoula, for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. RONALD G. LOOMAN, Defendant.
    NO. DC 93-154
    DECISION
   On February 25, 1994, the defendant was sentenced to Montana State Prison for the term of twenty (20) years for the offense of Arson (Felony). Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings for a total of 172 days. It is recommended that defendant be evaluated for transfer to the secured unit at the Montana State Hospital, Warm Springs, Montana, for treatment devised to aid defendant to overcome problems defendant has had much of his entire life. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Ronald Looman for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. RONALD G. LOOMAN, Defendant.
    NO. DC 94-007
    DECISION
   On February 25, 1994, the defendant was sentenced to Montana State Prison for the term of ten (10) years for the offense of Bail Jumping (Felony) to run consecutively with the sentence received in criminal cause number DC 93-154. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings for a total of 68 days. It is recommended that defendant be evaluated for transfer to the secured unit at the Montana State Hospital, Warm Springs, Montana, for treatment devised to aid defendant to overcome problems defendant has had much of his entire life. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, M.C. A. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. The execution of the last five (5) years of said prison sentence this day imposed on said defendant, as hereinabove set forth, be, and the same hereby is suspended, and said defendant is hereby placed on probation for the last five (5) years of said period of ten (10) years to run consecutively with the sentence recieved in criminal cause number dc 93-154, and the court retains jurisdiction of said defendant in the above-entitled cause during the entire term of said imprisonment above-mentioned, and the last five (5) years of said prison sentence is suspended upon condtions as listed in the Feb. 25,1994 order suspending sentence.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Ronald Looman for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM LAWRENCE, Defendant.
    NO. DC 91-381
    DECISION
   On March 3, 1994, the Defendant was sentenced to a term of three (3) years at Montana State Prison for the offense of Count I: Domestic Abuse, a felony. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility for a total of 11 days. Defendant must pay supervisory fee of $120.00 a year prorated at $10.00 per month for the number of months that he is under supervision.

Done in open Court this 14th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 14,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence, imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank William Lawrence for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. LAUREL R. HOLCOMB, Defendant.
    NO. DC 93-200B
    DECISION
   On August 31, 1994, the defendant was sentenced to twenty (20) years at the Montana State Prison for the offense of Sexual Assault, a felony. The defendant shall be given credit for 8 days served in the county detention for pre-sentence incarceration as of August 31,1994. The defendant shall be designated as a dangerous offender for purposes of parole eligibility and shall abide by the conditions stated in the August 31, 1994judgment.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Laurel Holcomb for representing himself in this matter to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. JOHN RUSSELL HENNING, Defendant.
    NO. DC 94-065(B)
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On July 5, 1994, the Defendant was sentenced to twenty (20) years at Montana State Prison with ten (10) years suspended for the offense of Burglary, a Felony. Credit is given for 56 days served in pre-sentence incarceration. The suspended portion is based upon conditions as listed in the July 5,1994 judgment.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank John Russell Henning for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. TERRY W. EVANS, Defendant.
    NO. 8131
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On September 14,1992, the defendant’s prior suspended sentence was revoked and the defendant was sentenced to a term of five (5) years in the Montana State Prison for the offense of Assault, a Felony. Said sentence shall run consecutive to the sentence imposed in Cause No. 9426. The defendant shall receive credit in the amount of four hundred thirteen (413) days jail time which he has previously served.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Tterry W. Evans for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. DAN DENNY, Defendant.
    NO. DC 92-2435
    NO. DC 92-2470
    DECISION
   On May 12, 1994 the Defendant was sentenced to a term of ten (10) years in Montana State Prison with five (5) years of said sentence suspended for the offense of Sexual Intercourse Without Consent, Count I of Cause Number DC 92-2435. As to Count I of Cause Number DC 92-2470, Sexual Intercourse Without Consent, a Felony, the defendant shall be incarcerated in the Montana State Prison for a term of ten (10) years with five (5) years of said sentence suspended. That said sentence imposed in Beaverhead County Cause Number DC 92-2435 and Beaverhead County Cause Number DC 92-2470 shall run concurrently. The defendant shall be given credit for 124 days for the time previously served in the Beaverhead County Jail. The defendant is certified as non-dangerous for purposes of parole. That while the defendant is incarcerated in the Montana State Prison said defendant shall enroll in, attend and complete alcohol and/or drug counseling. That the Court strongly recommends that the defendant, Danny Denny, enroll in, attend and complete Phase I of the sexual offender program that is offered at the Montana State Prison during his incarceration therein. That upon release from the Montana State Prison, the defendant, Dan Denny, shall reimburse Beaverhead County for the costs and expenses of Court appointed counsel in the amount of $1,000.00. Said reimbursement shall be paid in monthly installments to the Clerk of the District Court in the form of cash, certified check or money order. The time period in which the defendant is required to make the reimbursement shall be worked out with the defendant’s supervising probation/parole officer upon his release from the Montana State Prison. That the defendant, Dan Denny shall reimburse the Crime Victims Fund and/or the victims in these matters for any counseling expenses and/or hospital bills incurred due to the crimes committed against them. Said restitution shall be set up and paid in monthly installments to the Clerk of the District Court in the form of cash, certified check or money order. Said monthly installment amount shall be worked out with the defendant’s supervising probation/parole officer upon his release from the Montana State Prison. That the defendant, Dan Denny, is hereby required to pay the statutory surcharge of $40.00. Said payment shall be made in full to the Clerk of the District Court in the form of cash, certified check or money order within six (6) months from his release from the Montana State Prison.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Sam Cox, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed, however, the Sentence Review Board recommends that it shall be left to the discretion of the Parole Board that the defendant be allowed to receive alcohol and/or drug treatment inside or outside of the prison.

The reason for the decision is because a letter was received from Judge Davis recommending that the defendant be eligible for parole. The Sentence Review Board finds that the sentence imposed was lenient based upon the record, but the Sentence Review Board did not increase the sentence because of Judge Davis’ letter.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Sam Cox, Legal Intern from the Montana Defender Project, for his assistance to the defendant and to this court.


author: JUSTICE TRIEWEILER

text:
    MARK C. EATINGER, individually and as Personal Representative of the Estate of Ruth Eatinger, deceased, BETH ANN HENDERSON, and JULIE SILVAN, Plaintiffs and Respondents, v. ROBERT L. JOHNSON, Defendant and Appellant.
    No. 94-249.
    Submitted on Briefs December 8, 1994.
    Rehearing Denied January 26, 1995.
    Decided December 22, 1994.
    51 St.Rep. 1484.
    269 Mont. 99.
    887 P.2d 231.

      For Appellant: Robert L. Johnson (Pro Se) and Monte Boettger, Attorneys at Law, Lewistown.
    For Respondents: Torger S. Oaas, Attorney at Law, Lewistown.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiffs Mark C. Eatinger, Beth Ann Henderson, and Julie Silvan filed a complaint in the District Court for the Tenth Judicial District in Fergus County in which Robert L. Johnson is named as the defendant. The plaintiffs alleged that they sustained damages as a result of Johnson’s conversion of settlement proceeds which belonged to them. Ajury returned a verdict in the plaintiffs favor and awarded $17,702.96 as damages. Johnson appeals from the judgment entered pursuant to the jury’s verdict. We affirm the judgment of the District Court.

The issues on appeal are:

1. Did the District Court err when it denied Johnson’s motion for summary judgment?

2. Did the District Court abuse its discretion when it refused to delay trial of the conversion claim until the Probate Court decided the amount of Johnson’s fee?

3. Did the District Court err when it did not instruct the jury that an attorney has a right to retain possession of a client’s money until he or she is paid for services rendered?

4. Did the District Court abuse its discretion when it refused to grant Johnson’s motion for a directed verdict?

FACTUAL BACKGROUND

In May of 1989, Ruth Eatinger died after she was hit by a pickup truck while crossing the street in Lewistown, Montana. She was survived by plaintiffs Mark C. Eatinger, Beth Ann Henderson, and Julie Silvan. Mark Eatinger was named the personal representative of the estate.

The plaintiffs hired attorney Robert L. Johnson to probate Ruth’s estate and to pursue wrongful death and survival claims against the driver of the vehicle that struck Ruth. There was no written fee agreement entered into by the parties.

The parties presented contradictory evidence of their agreement. The plaintiffs claim that they agreed to pay Johnson the statutorily determined fee for his probate services, but that he was not to be paid an additional amount for settling the tort claims. Johnson agrees that he was to receive the statutory fee for his probate work, but contends that Mrs. Eatinger’s survivors agreed to pay him a percentage of the tort recovery.

Beth and Julie testified that they became dissatisfied with Johnson and sought advice from a different attorney whom they hired to pursue the tort claims. Testimony and evidence indicated that Mark phoned Johnson on January 17,1990, to terminate his services. Johnson denied he was terminated at that time, but his letter to Mark, dated January 23, 1990, confirms a conversation on January 17, 1990, during which Mark informed him that the plaintiffs were retaining another attorney. Evidence indicated that by January 18, 1990, Johnson was offered $95,000 to settle the tort claims, and that he later received a draft for that amount which was made payable to the Estate of Ruth Eatinger, and to Johnson, as the attorney for the estate.

The plaintiffs were surprised when they discovered that Johnson received the settlement draft because they had hired another attorney to pursue the claims. Following this discovery, Beth hand-delivered a letter to Johnson instructing him not to cash the settlement draft, even though Mark had already endorsed it, because the plaintiffs’ position was that he was no longer their attorney. By letter, dated January 31,1990, Johnson responded that if he received the draft he would endorse it, cash it, and place the proceeds in a trust account.

Mark also called Johnson and requested that he not negotiate the settlement draft. Johnson again responded by letter dated February 1, 1990, and acknowledged Mark’s preference that Johnson do nothing with the insurance money, but stated that he had put the money in a trust account.

On that same date, Johnson cashed the check, placed the proceeds in a trust account, and withdrew $2500 from the account and placed it in his general account. There was evidence that this money was used to pay his office expenses. Johnson testified that he withdrew this money to protect the Eatinger estate by paying its creditors. However, there was a separate estate account to pay creditors.

Bank records also indicate that on March 6 and 7, 1990, Johnson withdrew an additional $7000 to, at least in part, cover two checks he wrote to himself from his general office account. Without these withdrawals, bank records show that there would have been insufficient funds in Johnson’s account to cover checks he had written. Later records establish that Johnson withdrew $2,851.53 earned as interest on the amount remaining in the trust account.

The plaintiffs did not consent to Johnson’s disposition of the settlement proceeds. In February 1990, they hired Tim O’Hare to represent them in the probate proceeding. O’Hare testified that he called Johnson and demanded the settlement money in February, but that Johnson refused to tender it. Johnson denied these conversations. O’Hare eventually received the funds, but Johnson asserted a lien on $10,000 to secure payment of his probate fee, and did not turn over the interest. Later, the Probate Court decided Johnson was entitled to $5000 as fees for probate services.

After plaintiffs hired yet another attorney to file suit against Johnson for conversion, Johnson petitioned the Probate Court to determine the remainder of his fee. The Probate Court deferred to the District Court as the proper forum for resolution of the conversion claim and the related attorney fee issue. The case was tried twice; both times a mistrial resulted. Before the third trial, Johnson moved for summary judgment and his motion was denied.

Johnson testified that he believed he was entitled to a fee from the settlement proceeds. He claimed that he also had a right to assert control over additional money because he had an attorney’s lien against the settlement to pay for his probate services. Johnson claims that the plaintiffs disputed the appropriate use of the settlement money and, perceiving a conflict, he decided to put the money in a trust account. He claims that he then withdrew from the probate proceeding because he was also a creditor of the estate. The jury did not accept Johnson’s defenses and rendered a verdict in favor of the plaintiffs. The jury also awarded plaintiffs compensatory damages, punitive damages, and costs.

ISSUE 1

Did the District Court err when it denied Johnson’s motion for summary judgment?

Our standard of review of a district court’s summary judgment ruling is identical to the trial court’s. Cooper v. Sisters of Charity (1994), 265 Mont. 205, 206, 875 P.2d 352, 353. We, therefore, review a summary judgment decision de novo and summary judgment is only proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P; Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32.

We have recognized that a claim for conversion must satisfy the following elements: ownership of property, a right of possession, unauthorized dominion over that property by another, and damages that result. Lane v. Dunkle (1988), 231 Mont. 365, 368, 753 P.2d 321, 323.

Johnson argues that the pleadings and supporting documents establish that he had a right to the money he retained, based on the parties’ agreement and the fact that he settled the case pursuant to their request. He also contends that the plaintiffs could not establish the elements of ownership and damage essential to a claim for conversion. We conclude that his arguments are without merit.

Ownership of proceeds from settlement of wrongful death or survival claims belongs to the heirs or the estate respectively. Swanson v. Champion Intl. Corp. (1982), 197 Mont. 509, 515-18, 646 P.2d 1166, 1169-71. The $95,000 settlement draft in this case was paid to settle claims against the insured driver in exchange for his release from claims for wrongful death and personal injury. The draft was made payable to the Eatinger estate, and to Robert Johnson as the attorney. However, plaintiffs offered evidence that there was no agreement to pay Johnson any fee from these proceeds. The plaintiffs claim that the money, therefore, belonged to them or the estate, not Robert Johnson. Likewise, the plaintiffs claim that they, not Johnson, are entitled to the interest that accrued on the settlement proceeds. See 45 Am. Jur. 2d Interest and Usury § 39 (1969). The plaintiffs introduced sufficient evidence in support of their claims to create a factual issue regarding ownership. Therefore, summary judgment for Johnson was correctly denied.

Second, Johnson argues that the Eatinger estate suffered no damage because it ultimately received the amount to which, in retrospect, it was entitled. The plaintiffs contend that the fact that Johnson withdrew funds without consent is sufficient to establish damages. We agree with the plaintiffs.

Johnson withdrew $9500 in February and March 1990, and interest in the amount of $2853.51 in October 1990.

Sections 27-1-201 and -202, MCA, provide that detriment is a loss suffered in person or property and that everyone who suffers detriment from another’s wrongful acts is entitled to damages. Further, § 27-1-320, MCA, provides, in relevant part, that detriment caused by the wrongful conversion of personal property is presumed to be the value of the property at the time of conversion, plus interest from that time and a fair compensation for the time and money expended to pursue recovery of the property. Therefore, in conversion claims, damages are presumed once the other elements are established.

Johnson also claims that plaintiffs had no right to the settlement proceeds because they had not yet signed release agreements. However, this argument ignores the facts in this case. The check was made payable to Ruth Eatinger’s estate. The heirs of the estate and its personal representative told Johnson not to cash the check. Nonetheless, Johnson cashed the check and deposited the proceeds in a trust account. He then withdrew money from that account. If an executed release was a prerequisite to use of the settlement proceeds, certainly Johnson was no more entitled to its use than the heirs. Furthermore, we have previously recognized that signing a release is not necessary where parties indicate an intent to settle a claim and the check endorsed states that it is for a full and final settlement. See Boyer v. Ettelman (1989), 235 Mont. 323, 327-28, 767 P.2d 324, 327.

The plaintiffs’ intent was to settle their claims for 95 percent of the policy limits, which they understood was $95,000. That purpose was accomplished when the settlement draft was tendered and Mark Eatinger endorsed it. The draft stated that it was for a full and final settlement. The fact that a release was not signed until later is irrelevant to the facts of this case.

For these reasons, Johnson was not entitled to judgment as a matter of law, and the District Court did not err when it denied his motion for summary judgment.

ISSUE 2

Did the District Court abuse its discretion when it refused to delay trial of the conversion claim until the Probate Court decided the amount of Johnson’s fee?

Our standard of review of a district court order related to trial administration is whether the district court abused its discretion. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. Johnson requested that the District Court stay proceedings in the conversion claim pending a final determination by the Probate Court regarding attorney fees.

The Probate Court had jurisdiction over and decided the amount of Johnson’s fees for probate of the Eatinger estate. The Probate Court Judge testified at trial that that court did not have jurisdiction to decide the attorney fee related to the tort claim. In an order entered November 30,1994, which we judicially notice, the Probate Court noted that Johnson himself previously argued that the Probate Court lacked jurisdiction over the tort claim fee dispute. That court also decided that Johnson was estopped from asserting a contrary position in the probate proceedings. We conclude that the District Court did not abuse its discretion when it refused to stay proceedings in this case.

ISSUE 3

Did the District Court err when it did not instruct the jury that an attorney has a right to retain possession of a client’s money until he or she is paid for services rendered?

On appeal, we review jury instructions as a whole and in light of the evidence presented at trial. Pipe Indus. Ins. Fund v. Consolidated Pipe Trades Trust (1988), 233 Mont. 162, 168, 760 P.2d 711, 715.

Johnson argues that the focal point of his defense was that he had asserted an attorney’s retaining lien, and that even though the only instruction he offered related to an attorney’s charging lien authorized by § 37-61-420, MCA, the District Court erred by giving the charging hen instruction instead of a retaining lien instruction.

Rule 51, M.R.Civ.P., states, in relevant part, that “[n]o party may assign as error the failure to instruct on any point of law unless that party offers an instruction thereon.” We have held that a party is barred from challenging on appeal a court’s refusal to give an instruction if the party fails to object to the instruction when it is given. See State v. Smith (1986), 220 Mont. 364, 381-82, 715 P.2d 1301, 1311. This rule is particularly appropriate under these circumstances where the party challenging the instruction is the party who offered it.

When Johnson proposed the charging lien instruction, his counsel stated that he thought the language was broad enough to cover Johnson’s defense. We will not allow Johnson to benefit from an alleged error he created. We conclude that the District Court did not abuse its discretion when it did not instruct the jury regarding an attorney’s retaining lien.

ISSUE 4

Did the District Court abuse its discretion when it refused to grant Johnson’s motion for a directed verdict?

A motion for a directed verdict should be granted only if no evidence warrants submission to the jury, and all factual inferences are viewed in a light most favorable to the party opposing the motion. Moralli v. Lake County (1992), 255 Mont. 23, 27, 839 P.2d 1287, 1289. We affirm the District Court’s denial of Johnson’s motion for a directed verdict for the same reason we affirmed denial of his motion for summary judgment.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and WEBER concur.