                                                                                       April 5 2011


                                    DA 10-0256

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2011 MT 62



IN THE MATTER OF THE CONSERVATORSHIP OF

         J.R.,

         A Protected Person.



APPEAL FROM:      District Court of the First Judicial District,
                  In and For the County of Lewis and Clark, Cause No. BDG 2006-18
                  Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Janet Hetherwick Pumphrey, Attorney at Law, Lenox, Massachusetts

                  Joey Jayne, Joey Jayne Law Office, Arlee, Montana

           For Appellee:

                  Jacqueline T. Lenmark, Thomas Q. Johnson, Keller, Reynolds, Drake,
                  Johnson & Gillespie, P.C., Helena, Montana



                                              Submitted on Briefs: January 20, 2011

                                                         Decided: April 5, 2011


Filed:

                  __________________________________________
                                    Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1      J.R. appeals an order of the District Court for the First Judicial District, Lewis and

Clark County, dismissing his claims against his conservator for negligence and for breach

of fiduciary duty. We affirm.

¶2      J.R. raises four issues which we have restated as follows:

¶3      1. Whether the District Court erred in dismissing J.R.’s claims of breach of

fiduciary duty and negligence because J.R. did not offer expert testimony.

¶4      2. Whether the District Court’s ultimate finding that the conservator appropriately

managed J.R.’s assets and estate was erroneous.

¶5      3.   Whether the District Court erred in discharging the conservator without

liability.

¶6      4. Whether the District Court abused its discretion in ordering payment of the

conservator’s attorney’s fees from the conservatorship’s assets.

                           Factual and Procedural Background

¶7      In May 2006, at the time the conservatorship proceedings in this case began, J.R.

was 78 years old. He has five children and three step-children. His wife passed away in

2003. J.R.’s daughter Marsha initiated this action when she petitioned the District Court

for appointment of a conservator for J.R. She stated in her petition that a conservator was

necessary for J.R.’s protection because he suffers from severe short-term memory loss

and has been diagnosed as suffering from early Alzheimer’s disease. She further stated

that J.R. is no longer capable of understanding his bank or financial statements; that




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significant funds owned by him have disappeared; and that he is extremely vulnerable to

the demands and influences of others.

¶8     The District Court scheduled a hearing on Marsha’s petition for September 26,

2006. However, shortly before the hearing date, J.R.’s daughter Robin, who opposed the

conservatorship action, removed J.R. from Helena and took him to live with her in

Massachusetts. Neither J.R. nor Robin notified J.R.’s counsel of J.R.’s move.

¶9     The parties eventually stipulated to a limited conservatorship, and the District

Court appointed the first conservator, Cindy Nickol of Capital City Case Management, on

November 24, 2006. In March 2007, Nickol filed an Inventory of Conservator showing

that the value of J.R.’s assets at that time was more than $290,000. These assets included

the condominium in Helena where J.R. had lived for many years, an investment account

with D.A. Davidson & Co., and a checking account at Mountain West Bank. Not

included in this valuation were any of J.R.’s personal belongings such as the antiques and

art work that he and his wife had collected over the years.

¶10    In June 2007, Nickol requested that the court terminate her appointment as

conservator because of persistent family interference with the performance of her duties

and efforts by various family members to undermine the conservatorship. A hearing on a

petition to amend the conservatorship was held on August 17, 2007. Thereafter, the court

issued an order allowing Nickol to withdraw as conservator. In her place, the court

appointed Joseph Shevlin, a Helena CPA, to act as successor conservator for J.R.

¶11    In its October 3, 2007 Order appointing Shevlin, the court stated: “Shevlin shall

have all powers granted under law to act as conservator, specifically, but not limited to,


                                         3
those powers set forth in [§§] 72-5-427 and -428, MCA.” The court also authorized

Shevlin to sell J.R.’s Helena condo and to expend whatever monies were necessary for

J.R.’s direct care. The court prohibited Shevlin from providing any money to J.R.’s

family members “unless it is for reimbursement for the direct care of [J.R.].”

¶12    During his conservatorship, Shevlin arranged for the sale of J.R.’s condo and

oversaw the packing and shipping of much of J.R.’s personal property to J.R. in

Massachusetts. However, many of the problems that had plagued Nickol throughout her

term as conservator persisted throughout Shevlin’s conservatorship. Other relevant facts

regarding these and other problems with the conservatorship will be set out more fully

where necessary in our discussion of the issues presented.

¶13    On June 16, 2009, several of J.R.’s family members, including daughters Robin

and Cheryl, J.R.’s brother William and his sister Betty, filed as “Interested Persons” a

Petition for Orders Subsequent to Appointment. The petitioners asked the court to

transfer the conservatorship to Massachusetts, to implement a trust and long-term-care

plan recommended by J.R.’s Massachusetts legal counsel, and to order that Shevlin’s

conservatorship fees and attorney’s fees be returned to J.R. because of Shevlin’s failure

to properly perform his fiduciary duties. In his response to the petition, Shevlin requested

that the court enjoin petitioners from interfering with the performance of his duties.

Shevlin also sought clarification from the court regarding portions of its prior order

naming him as conservator. The petitioners subsequently amended their petition adding

claims of negligence and breach of fiduciary duty against Shevlin.




                                         4
¶14    On October 19, 2009, J.R. filed a Motion for the Removal of Conservator and

Termination of the Conservatorship alleging deficiencies in Shevlin’s performance as

conservator. In addition, J.R. pointed out that his assets are dwindling rapidly because of

the multiple parties involved in maintaining a long-distance conservatorship.

¶15    These matters were heard by the District Court over three days, February 16, 2010,

March 9, 2010, and March 10, 2010. On April 27, 2010, the court entered its Findings of

Fact, Conclusions of Law and Order wherein the court removed Shevlin as conservator;

appointed J.R.’s brother William as successor conservator; approved Shevlin’s

accountings; approved the sale of J.R.’s condo; dismissed with prejudice the claims of

breach of fiduciary duty and negligence brought by the petitioners against Shevlin; and

ordered payment from the conservatorship’s assets of Shevlin’s attorney’s fees incurred

in defending this action. The order further provided that the successor conservator could

petition the court for transfer of the conservatorship to Massachusetts.

¶16    J.R. now appeals the District Court’s decision.

                                   Standard of Review

¶17    We review a district court’s findings of fact to determine whether those findings

are clearly erroneous. In re Estate of Berthot, 2002 MT 277, ¶ 21, 312 Mont. 366, 59

P.3d 1080 (citing In re Eggebrecht, 2000 MT 189, ¶ 18, 300 Mont. 409, 4 P.3d 1207; In

re Estate of Bolinger, 1998 MT 303, ¶ 29, 292 Mont. 97, 971 P.2d 767). We review a

district court’s conclusions of law to determine whether that court’s interpretation of the

law is correct. Berthot, ¶ 21.

                                          Issue 1.


                                          5
¶18    Whether the District Court erred in dismissing J.R.’s claims of breach of fiduciary
       duty and negligence because J.R. did not offer expert testimony.

¶19    The District Court dismissed J.R.’s claims of breach of fiduciary duty and

negligence against Shevlin because J.R. did not provide expert testimony to establish the

standard of care, whether that standard was breached, and whether any such breach

caused the injury and damages about which J.R. complained. J.R. argues on appeal that

this was error because expert testimony is not required to prove breach of a fiduciary

duty; it is only required to prove professional negligence such as in cases of medical

malpractice.

¶20    Shevlin argues on the other hand that it was necessary for J.R. to present expert

testimony because Shevlin, as a CPA, is held to a higher standard of care than an ordinary

person and expert testimony is necessary to establish that standard and any breach of that

standard. Shevlin further argues that the standard of care may not be inferred, it must be

established by expert testimony.

¶21    Section 72-5-423, MCA, provides that in the exercise of the conservator’s powers,

the conservator is to act as a fiduciary and observe the standards of care applicable to

trustees as specified in Title 72, chapter 34, part 1. More specifically, under § 72-34-114,

MCA, a trustee is charged with the duty of administering the trust “with the care, skill,

prudence, and diligence under the circumstances then prevailing that a prudent person

would use to accomplish the purposes of the trust as determined from the trust

instrument.” In addition, if a trustee has special skills, then the trustee “is held to the

standard of the skills represented.” Section 72-34-115, MCA; Redies v. Cosner, 2002



                                         6
MT 86, ¶ 37, 309 Mont. 315, 48 P.3d 697. Thus, based on §§ 72-5-423 and 72-34-115,

MCA, a conservator with special skills also must be held to the standard of the skills

represented. See In re Guardianship of Saylor, 2005 MT 236, ¶ 14, 328 Mont. 415, 121

P.3d 532 (“Conservators are thus under the same duties as trustees.”).

¶22    In addition, this Court noted the following regarding “special skills”:

              “Professional persons in general, and those who undertake any work
       calling for special skill, are required not only to exercise reasonable care in
       what they do, but also to possess a standard minimum of special knowledge
       and ability. Most of the decided cases have dealt with surgeons and other
       doctors, but the same is undoubtedly true of dentists, pharmacists,
       psychiatrists, veterinarians, lawyers, architects and engineers, accountants,
       abstractors of title, and many other professions and skilled trades.”
       [Emphasis added.]

Carlson v. Morton, 229 Mont. 234, 239, 745 P.2d 1133, 1137 (1987) (quoting W. Page

Keeton et al., Prosser and Keeton on the Law of Torts § 32 (W. Page Keeton ed., 5th ed.,

West 1984)); see also Romans v. Lusin, 2000 MT 84, ¶ 17, 299 Mont. 182, 997 P.2d 114

(“The Restatement (Second) of Torts § 229A (1965), provides that ‘one who undertakes

to render services in the practice of a profession or trade is required to exercise the skill

and knowledge normally possessed by members of that profession or trade . . . .’ ”).

¶23    In its October 3, 2007 Order wherein the District Court appointed Shevlin as

conservator, the court pointed out that it was familiar with Shevlin and noted that not

only was Shevlin a CPA, he possessed expertise in the area of estate planning. And later,

in its April 27, 2010 Findings of Fact, Conclusions of Law and Order, the District Court

pointed out that

              Shevlin is a Certified Public Accountant practicing in Helena with
       the firm of Junkermier, Clark, Campanella, Stevens, P.C. (JCCS). Shevlin


                                          7
       is a shareholder and member of the JCCS Board of Directors. Shevlin has
       spen[t] over 35 years working in public accounting. He has extensive
       experience with tax preparation and supervision. Shevlin also devotes a
       portion of his practice to estate planning and business consulting. Shevlin
       spends approximately 41 percent of his chargeable time engaged in
       professional advisory services, including estate planning and long-term
       financial care plans for the elderly.

Clearly the court believed that Shevlin had special skills that the court expected him to

use in his fiduciary capacity as conservator of J.R.’s estate.

¶24    This Court stated in Carlson that “ ‘[s]ince juries composed of laymen are

normally incompetent to pass judgment on questions [regarding what standard to apply

when special skills are employed], . . . it has been held in the great majority of

malpractice cases that there can be no finding of negligence in the absence of expert

testimony to support it . . . .’ ” Carlson, 229 Mont. at 239, 745 P.2d at 1137 (quoting

Keeton, Prosser and Keeton on the Law of Torts at § 32)).

¶25    Reading § 72-5-423, MCA, together with §§ 72-34-114 and -115, MCA, we

conclude that if, as here, a conservator is appointed in reliance on his or her special

skills,1 then an alleged breach of fiduciary duty involving those special skills requires

expert testimony to establish the standard of care for the exercise of those skills, whether

that standard was breached, and whether any such breach caused the injury and damages

about which the protected person complains.




1
   While § 72-34-115(2), MCA, is framed in terms of a “trustor” appointment, we
conclude that a court effectively stands in the shoes of the trustor in appointing a
conservator for a protected person—that is, in selecting the conservator, the trial court is
relying on the special skills of the person to be appointed.

                                           8
¶26    However, even if the conservator possesses special skills, but the alleged breach of

fiduciary duty does not involve those skills, but rather, involves only the “care, skill,

prudence, and diligence” that any prudent person would possess, then expert testimony is

not required to establish that standard of care inasmuch as the “prudent person” standard

is set forth in § 72-34-114, MCA.

¶27    Here, the District Court erred in dismissing J.R.’s claims of breach of fiduciary

duty and negligence on the ground that J.R. did not offer expert standard-of-care

testimony. J.R.’s allegations did not involve Shevlin’s special skills as a CPA (which

would require expert standard-of-care testimony), but rather, were simply that Shevlin

failed to exercise the care, skill, prudence, and diligence that any prudent person would

possess (a standard of care which does not require expert testimony). On the record

before us, however, we conclude that the court’s error was harmless because, as

discussed infra, J.R. failed to provide sufficient evidence to prove that Shevlin breached

even this lesser, prudent person standard of care.

¶28    Accordingly, we affirm the District Court’s decision to dismiss J.R.’s claims of

breach of fiduciary duty and negligence against Shevlin

                                          Issue 2.

¶29    Whether the District Court’s ultimate finding that the conservator appropriately
       managed J.R.’s assets and estate was erroneous.

¶30    J.R. claims that the District Court erred in finding that Shevlin’s management of

J.R.’s estate was “appropriate” because: (1) the court removed Shevlin as conservator;

(2) the court used the wrong standard; (3) Shevlin failed to adequately provide for J.R.;



                                          9
(4) Shevlin failed to file an inventory; (5) Shevlin filed late and inadequate accountings;

(6) Shevlin sold some of J.R.’s property to himself, and (7) Shevlin charged exorbitant

fees. We address each of J.R.’s assertions in turn.

                          1. Removal of Shevlin as conservator

¶31    J.R. contends that the fact that the court removed Shevlin as conservator is “strong

evidence that Shevlin did breach his fiduciary duty.” Contrary to J.R.’s contentions, the

District Court determined that because of the continued bickering of J.R.’s children and

step-children, and the continuing pattern of interference with the conservatorship by

Robin, the court believed it to be in the best interests of all parties to appoint J.R.’s

brother William as conservator. Thus, Shevlin’s removal as conservator is evidence of

nothing more than the lack of cooperation Shevlin received from J.R.’s family.

                        2. The court’s use of the wrong standard

¶32    The District Court determined that Shevlin’s management of the conservatorship

was “appropriate” because he did what was ordered by the court in its October 2007

Order. J.R. claims that rather than a standard that Shevlin acted “appropriately,” the

correct standard is whether Shevlin failed to use the care, skill and diligence of a prudent

person. J.R. also points out that under § 72-5-423, MCA, and §§ 72-34-114 and -115,

MCA, a conservator has the same duty to use any special skills he or she possesses as

does a trustee.

¶33    This is the same argument that Shevlin made in Issue 1 with which we expressed

our agreement. And, as we indicated in Issue 1, not only did J.R. fail to provide the

expert testimony needed to establish that Shevlin breached the standard of care for his


                                         10
special skills as a CPA, J.R. failed to provide sufficient evidence that Shevlin breached

the prudent person standard of care.      Thus, the District Court’s determination that

Shevlin’s management of the conservatorship was “appropriate” was not error.

                              3. Failure to provide for J.R.

                            a. Reimbursement for J.R.’s care

¶34    J.R. complains that Shevlin failed to provide funds for J.R.’s care, noting that

Shevlin only directly provided $2000 to J.R. J.R. cites to § 72-5-428, MCA, which

provides for reimbursement to any person for expenditures for services rendered to a

protected person, or when reasonable to expect they will be performed.

¶35    In its October 3, 2007 Order in this matter, the District Court expressed concern

with the amount of money Robin wanted to charge for caring for J.R. in her home. Thus

the court stipulated that no money was to be provided to any of J.R.’s family members

unless the expenditure was shown to be for J.R.’s direct care.

¶36    Consequently, Shevlin requested that Robin send him copies of various household

bills from before J.R. moved in with her so that Shevlin could determine a baseline usage

of utilities and other expenses to set an appropriate amount for reimbursement. While

Robin provided a few current bills, she refused to provide any past bills. Shevlin would

have provided reimbursement to Robin had Robin shown that the expenditures were

solely for J.R.’s direct care. But, because of the earlier complaints by other family

members, and the District Court’s Order, it was not reasonable for Shevlin to just assume

that all money sent to Robin would be used for J.R.’s direct care. And, because Robin

moved J.R. to Massachusetts, Shevlin had no other way to verify that the funds he sent


                                        11
would be used for J.R.’s direct care other than through bills and receipts received from

Robin or J.R.

¶37    Shevlin did pay J.R.’s monthly credit card bill even though Robin stopped sending

receipts for the expenses on the credit card statements. At the hearing in this matter,

Robin admitted that she or J.R. had been reimbursed for all of J.R.’s expenses except for

$100 for a lamp repair.

¶38    J.R. also complained that he was constantly embarrassed by not having ready cash.

Shevlin agreed to send $200 per month if J.R. or Robin would send him the

corresponding receipts. This system worked for only a few months before Robin insisted

it was too much trouble to keep track of the receipts.

                                 b. Condo rental and sale

¶39    The District Court’s order authorized Shevlin to sell J.R.’s condo. Based on the

advice of two Helena real estate agents, Shevlin initially listed the condo at $234,000.

Prior to that listing, Shevlin had received a cash offer for the condo at $170,000. Shevlin

rejected that offer as being below the fair market value of the property. Nevertheless,

Shevlin negotiated with the real estate agents to exclude prior potential buyers from the

listing agreements.

¶40    One of the real estate agents testified at the hearing that he had difficulties

marketing the property due to significant structural problems with the property, problems

with the common area around the property, and the slump in the nationwide housing

market that began in 2007. The asking price was eventually reduced and the condo sold

in December 2009, netting J.R. only $137,000.


                                         12
¶41    The District Court noted in its order that “[i]n retrospect, it certainly would have

solved a lot of problems if the [initial cash offer] had been accepted. However, that

conclusion comes from the application of hindsight some three years after the fact.” See

§ 72-34-114(3), MCA (compliance with the prudent investor rule is not to be determined

by hindsight).

¶42    J.R. also complains that Shevlin should have rented the condo during the

legislative session as J.R. had done in years past. J.R. blames the failure to rent the condo

on the fact that Shevlin sold some of J.R.’s furnishings to himself. However, Shevlin

pointed out that the legislative session was from January to April, 2009, and neither

Robin nor J.R. mentioned renting the condo until the end of 2008, long after a moving

van full of J.R’s furniture and personal property was sent to J.R. in Massachusetts.

¶43    Furthermore, as Shevlin pointed out, the objective was to sell the condo, and when

the condo was put on the market in September 2008, the real estate agents advised

Shevlin that it would not show well if it was occupied by renters.

                                         c. The trust

¶44    J.R.’s Massachusetts legal counsel, Paula Almgren, recommended that an

“intentionally defective grantor trust” be set up for J.R. that would deplete J.R.’s assets

and make him eligible for veteran’s benefits of up to $2000 per month and Massachusetts

healthcare benefits which would pay up to 60 hours of home health care for J.R. J.R.

faults Shevlin for not placing J.R.’s assets into this irrevocable trust.

¶45    Almgren discussed the trust with Shevlin and provided him with a copy of the

trust she proposed. Shevlin rejected the trust because it violated specific terms of the


                                           13
court’s Order. The trust named Almgren and Robin as co-trustees and gave them “sole

and unfettered discretion” to distribute the entire principal of the trust to Robin and

Cheryl during J.R.’s lifetime. Thus, Shevlin had no assurance that the funds in the trust

would be used for J.R.’s direct care.

                                            d. VA benefits

¶46    J.R. is a veteran of the United States Navy and is potentially eligible for veteran’s

pension benefits. J.R. complains that Shevlin did not seek VA benefits on his behalf.

J.R. also faults Shevlin for refusing to fund the trust with J.R.’s assets claiming that it

delayed J.R.’s eligibility for receiving VA benefits.

¶47    Shevlin tried to apply for VA benefits for J.R., but the VA does not recognize

conservator status without the protected person’s signed consent. Because neither J.R.

nor Robin would give Shevlin the necessary authority to communicate with the VA,

Shevlin could not proceed.

¶48    J.R. could access his VA benefits once his assets were reduced to $80,000 or less.

J.R. faults Shevlin for failing to pay a bill from one of J.R.’s legal counsel, Stefan Wall,

in 2007 that would have brought J.R.’s assets below the $80,000 figure. J.R. claims that

failing to pay the bill delayed J.R.’s receipt of VA benefits by one year. Contrary to

J.R.’s claim, Wall did not submit his bill to Shevlin until June 2008. Along with the bill,

Wall sent his apology for failing to deliver it sooner citing the press of business. Shevlin

paid the bill shortly after receiving it.

¶49    The court noted that Robin proceeded to establish eligibility for VA benefits for

J.R. and obtained at least one monthly pension payment on J.R.’s behalf in the amount of


                                              14
$1,359. However, Robin placed the check in a special account and refused to provide

Shevlin or the court with an accounting of the use of those funds.

                            4. Inventory and personal property

¶50    Section 72-5-424, MCA, provides that within 90 days of appointment, a

conservator is to file with the court a complete inventory of the estate of the protected

person. The purpose of the 90-day requirement is to “furnish a means by which the

conservator’s management may be checked and the accounts verified.” Redies, ¶ 20.

However, the conservator has “discretion in deciding what to include and how to value

the items in the estate. A conservator [need not] write down every half bar of soap sitting

on a sink.” Redies, ¶ 22.

¶51    J.R. complains that an inventory of his personal property was not done by either

conservator. Shevlin admits that he did not file an inventory of J.R.’s personal property.

And, while Nickol filed an Inventory of Conservator in March 2007, it did not include

J.R.’s personal property.

¶52    Nevertheless, Shevlin points out that J.R.’s personal property was well known to

Robin and that she compiled extensive lists of the items she wanted sent to J.R. in

Massachusetts. In fact, Robin testified: “I just knew the house very well; I knew

everything in each room, and I have photographs.” Shevlin further points out that J.R.’s

daughter Cheryl was supposed to help sort and pack J.R.’s personal property, but she

contacted him shortly before the movers arrived to inform him that she would not be

there. Consequently, Shevlin had to undertake the sorting and packing of J.R.’s personal

property on his own.


                                        15
¶53   At Robin’s direction, Shevlin shipped most of J.R.’s personal belongings to him in

July 2008. He sent the remaining property requested by J.R. and Robin in January 2010.

The remainder of the property was to be donated to charity or discarded. The donated

property was receipted for tax purposes.

¶54   We do not condone Shevlin’s failure to file a complete inventory as required by

§ 72-5-424, MCA. Here the only property not inventoried was J.R.’s personal property.

While Shevlin should have timely performed and filed that inventory, we agree with the

trial court that his failure to do so under the facts of this case was not grounds for his

removal.

                          5. Late and inadequate accountings

¶55   J.R. complains that the accountings filed by Shevlin were late and that they were

inadequate or incomplete. Although the District Court had ordered Shevlin to file annual

accountings, he waited until May 14, 2009, more than 19 months after his appointment as

conservator, before filing the first accounting. This accounting covered the period from

November 5, 2007, through January 5, 2009.         The second accounting provided by

Shevlin covered the period from January 5, 2009, through January 5, 2010, and was filed

on February 8, 2010. The District Court expressed its disappointment that Shevlin did

not file an accounting within one year of his appointment as conservator, but the court

pointed out that there was no adverse impact to J.R.

¶56   As to the completeness of the accountings, Shevlin explained that various bank

statements and tax returns were not provided to Shevlin by Robin or J.R. so they could

not be included. Shevlin did submit independent documentation with the accountings


                                           16
including his work papers supporting each accounting; however, J.R. objected to these

documents and they were withdrawn. Nevertheless, the court noted that each of the

accountings filed by Shevlin was “supplemented by detailed itemization of receipts and

disbursements.”

¶57     Again, we cannot find fault with the District Court’s determinations based on the

facts here.

                               6. Sale of property to Shevlin

¶58     J.R. complains that Shevlin bought some of J.R.’s personal property to use in

rental properties owned by Shevlin. Shevlin admits that he purchased a few items for fair

market value, but that these items were ones that Robin and J.R. told him to discard or to

try to sell.

¶59     We agree with J.R. that a conservator has a duty to avoid a conflict of interest, see

§ 72-34-105, MCA, and that obtaining this property for Shevlin’s personal use was

entirely improper. Nevertheless, as the court stated, J.R. did not introduce any evidence

that Shevlin sold the property to himself at less than market value.

¶60     J.R. also complains that at the time of the hearing, Shevlin was holding some of

J.R.’s personal property in Shevlin’s garage. Shevlin points out that these items had to be

removed from J.R.’s condo at the time of the condo’s sale and that it was necessary to

store the items until he received further instructions from J.R. and Robin on what to do

with the items.

                                     7. Exorbitant fees




                                          17
¶61    J.R. claims that Shevlin paid himself exorbitant fees as conservator for attending

to minor details and that he never received any billing statements detailing Shevlin’s fees.

¶62    Shevlin billed the conservatorship his regular hourly rate which is determined by

JCCS and which ranged from $155 per hour when Shevlin was first appointed

conservator to $180 per hour when Shevlin was removed as conservator. Shevlin points

out that J.R. was a client of JCCS for many years prior to the conservatorship, thus J.R.

would have been familiar with JCCS’s billing practices. In addition, the court pointed

out that J.R. and Robin hired various counsel throughout the conservatorship proceedings

at hourly rates ranging from $165 to $225 per hour.

¶63    Contrary to J.R.’s assertion that he never received any billing statements, in their

Petition for Orders Subsequent to Appointment filed June 16, 2009, the petitioners, which

included Robin, point out various items from Shevlin’s billing statements with which

they disagreed. Consequently, it is evident that the billing statements were received.

Moreover, many of the fees that J.R. now takes issue with were the fees Shevlin charged

for sorting and packing J.R.’s personal belongings. Shevlin testified that although he did

bill the conservatorship his normal hourly rate, his billing statements reflect that he did

not bill for all of the time spent packing up J.R.’s condo.

¶64    Furthermore, J.R. complains on one hand that Shevlin did not do enough to

inventory and ship J.R.’s personal property, yet on the other hand he complains that

Shevlin charged exorbitant fees for doing so. We also note that it would not have been

necessary for Shevlin to spend time packing J.R.’s personal belongings if J.R.’s family




                                          18
members had participated in the packing and shipping of J.R.’s personal property as

promised.

                                       Conclusion

¶65    Because we have determined that the trial court is in the best position to observe

and judge the credibility of witnesses, we do not “second guess the district court’s

determination regarding the strength and weight of conflicting testimony.” Brimstone

Mining, Inc. v. Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 77 P.3d 175 (quoting Double

AA Corp. v. Newland & Co., 273 Mont. 486, 494, 905 P.2d 138, 142 (1995)).

¶66    With the exception of Shevlin’s failure to compile an inventory of J.R.’s personal

property and the sale of some of J.R.’s personal property to himself, we agree with the

District Court that Shevlin substantially complied with the District Court’s Order

regarding the conservatorship.

¶67    Accordingly, we hold that the District Court’s ultimate finding that Shevlin

appropriately managed J.R.’s assets and estate was not clearly erroneous.

                                         Issue 3.

¶68    Whether the District Court erred in discharging the conservator without liability.

¶69    Although the District Court found fault with some of the things Shevlin did as

conservator, the court determined that they were “minor errors” or “insubstantial” and

that Shevlin corrected or compensated for all of them. The court further found that

ultimately Shevlin performed his duties as conservator in the manner the court anticipated

in its appointment and that the conservatorship had not been damaged through Shevlin’s

actions.


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¶70    J.R. contends on appeal that this was error by the District Court because the very

fact that the court removed Shevlin as conservator “implicitly suggests” that there was

“good cause” for Shevlin’s removal and, according to J.R., is strong evidence that

Shevlin breached his fiduciary duty. Thus J.R. argues that the court should have ordered

Shevlin to reimburse J.R. for the fees which Shevlin paid to himself. In support of this

proposition, J.R. cites In re Allard, 49 Mont. 219, 225, 141 P. 661, 664 (1914) (the

conservatorship statute “contemplates a faithful stewardship. While a mere technical

breach of duty which does not result in injury to the ward’s estate will not ordinarily

justify a court in withholding compensation altogether, a flagrant violation of the duties

of the trust will do so.”).

¶71    Contrary to J.R.’s assertions, the District Court did not remove Shevlin as

conservator because he committed a “flagrant violation” of his duties or even that he

committed any violation of his duties.       Instead, the court pointed to the continued

bickering of J.R.’s children and step-children, and the continuing pattern of Robin

interfering with the conservator’s efforts devoted to J.R.’s conservatorship, both before

and after Shevlin’s appointment, as the reason for Shevlin’s removal. The court stated:

“It seems that some of [J.R.’s] children even refuse to acknowledge the existence of the

conservatorship and have failed to cooperate with it. In short, Shevlin was placed in a

very difficult situation and did not receive the full cooperation that he should have been

entitled to from [J.R.’s] children.” In Shevlin’s place, the court appointed J.R.’s brother

William as successor conservator in the hope that he would be better able to work with

the parties involved.


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¶72    As to Shevlin’s fees, § 72-5-432, MCA, provides:

              Compensation and expenses. If not otherwise compensated for
       services rendered, any visitor, lawyer, physician, conservator, or special
       conservator appointed in a protective proceeding is entitled to reasonable
       compensation from the estate.

In this case, the District Court determined, and we agree, that Shevlin’s fees were

reasonable as Shevlin’s management of J.R.’s assets and estate was appropriate to

provide for J.R.’s care.

¶73    Accordingly, we hold that the District Court did not err in discharging Shevlin

without liability.

                                         Issue 4.

¶74    Whether the District Court abused its discretion in ordering payment of the
       conservator’s attorney’s fees from the conservatorship’s assets.

¶75    J.R. argues that this litigation was brought “because of the inexcusable conduct on

the part of the conservator . . . .” Thus, J.R. maintains that because this litigation is

completely irrelevant to the proper administration of the conservatorship, he should be

reimbursed for the fees paid to Shevlin’s attorneys to defend Shevlin in this case.

¶76    Shevlin argues on the other hand that because he continued to receive

communications from Robin and from J.R.’s Massachusetts counsel that Shevlin

interpreted as threatening, it was necessary for Shevlin to employ counsel to advise him

regarding the District Court’s Order appointing him as conservator and to seek instruction

from the court.

¶77    We review a District Court’s grant or denial of attorney’s fees for an abuse of

discretion. Prescott v. Innovative Resource Group, LLC, 2010 MT 35, ¶ 16, 355 Mont.


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220, 225 P.3d 1253. This Court has repeatedly held that absent a contractual agreement

or statutory provision, the prevailing party in a civil action is not entitled to recover

attorney’s fees. In re Estate of Berthot, 2002 MT 277, ¶ 55, 312 Mont. 366, 59 P.3d 1080

(citing In re Estate of Dern Family Trust, 279 Mont. 138, 154, 928 P.2d 123, 133 (1996);

Thompkins v. Fuller, 205 Mont. 168, 186, 667 P.2d 944, 954 (1983)). However, this case

is one in which statutory provisions governing the awarding of attorney’s fees and costs

do exist.

              (3) A conservator, acting reasonably in efforts to accomplish the
       purpose for which the conservator was appointed, may act without court
       authorization or confirmation to:
                                             .    .    .
              (w) employ persons, including attorneys, . . . even though they are
       associated with the conservator, to advise or assist the conservator in the
       performance of administrative duties . . . ; [and]
              (x) prosecute or defend actions, claims, or proceedings in any
       jurisdiction for the protection of estate assets and of the conservator in the
       performance of the conservator’s duties . . . .

Section 72-5-427, MCA.

¶78    In this case, the District Court found that a large number of Shevlin’s fees and

those of his counsel were attributable to the failure of some of J.R.’s children to

cooperate with or even recognize the existence of the conservatorship. Thus, contrary to

J.R.’s contention that the attorney’s fees were used to defend Shevlin, the attorney’s fees

were expended to protect the conservatorship. Accordingly, we hold that, on that basis,

the District Court did not abuse its discretion in ordering that Shevlin’s attorney’s fees be

paid from the conservatorship assets.

¶79    Affirmed.



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                           /S/ JAMES C. NELSON



We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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