                             NO.     95-103
          IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                   1995




APPEAL FROM:   District  Court of the Eighth Judicial  District,
               In and for the County of Cascade,
               The Honorable Robert S. Keller,   Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
               Keith   Tokerud, Jon S. McCarty;       Scott      & Tokerud,
               Great   Falls,  Montana

          For Respondent:
               Ward E. Taleff;    Alexander,     Baucus,      Taleff     & Paul,
               Great Falls,    Montana
               J. Daniel Hoven; Browning,       Kaleczyc,      Berry     & Haven,
               Helena, Montana



                                    Submitted   on Briefs:        July    6, 1995
                                                  Decided:         fiovember   2, 1995
Filed:


                                     I
                                   Clerk
Justice       W. William                Leaphart         delivered              the Opinion              of the Court.

          Appellant              Mazie        Ross appeals                   from       an order              of    the       Eight
Judicial          District             Court,      Cascade County,                      denying          Ross'       requested
relief      regarding             the conservatorship                        of Mazie Richardson,                    deceased,
and denying           Ross'            request         for     attorney's              fees.           We affirm.
Backqround
          In October             1981, respondent                     Gene B. Daly was, by court                            order,
appointed         conservator                 of Mazie Richardson's                          estate.          Richardson        was
an incapacitated                   and protected                 person.              Ross is           her     daughter        and
only      surviving          child.            Pursuant          to § 72-S-424,                   MCA, and the court-
ordered       conservatorship                    appointment,                 Daly was required                     to file      an
inventory            of          the      estate              and          annual            accounting            of       estate
administration.                        From      its         beginning,               this      conservatorship                 was
subject       to disputes                between Daly and Ross and her sons.
          After      a November 1984 hearing,                                 the District               Court       appointed
respondent           Jack          P.    Stevens,             P.C.,          C.P.A.,           as co-conservator                 to
serve      with      equal         and independent                        authority           with      Daly.        The court
further       ordered             that        Stevens          file         an estate            inventory           within       90

days,       account          for        the     period          between          October             1981 and November
1984,      and account              annually           for      the estate‘s                  administration.                 Mazie
Richardson           died        in September                 1991 and Ross was appointed                               personal
representative               of her estate.
          In December 1991, Ross petitioned                                      the court              to order          the co-
conservators              to file         an estate            inventory              and accounting.                   The court
ordered       that        Daly file             an inventory                within           two weeks and that                both
conservators              file         an account             of estate          administration                    within      five
                                                                      2
weeks.        These        tasks           were not             completed.                     Ross alleges                  that      Daly        was
unwilling,          while            Daly         alleges             that        health             problems           prohibited                 him

from      complying.

         As     a result               of         Daly's             alleged             inaction,               Ross          requested                 a

conference          with          the        District                 Court.              In     June        1992,           Ross          and     her

counsel         held        the         conference                    with          Judge            Joel        Roth;             Judge         Roth

subsequently             held         Daly         in        contempt            and awarded                 Ross her               attorney's

fees      and costs             in     an amount                 to        be determined                    at    a later              hearing.

Daly     was not        notified              of        this         conference.                     In July        1992,           Daly        filed

an accounting              of        the     conservatorship                        estate,             prepared              by a private

accounting          firm,            with          the        District             Court.              Ross       objected                 to    this

accounting          and requested                        a hearing               to clarify              Daly's         accounting                 and

to     determine         her         attorney's                 fees           and costs              from       the     June          contempt

proceeding.                Daly             did         not      appear             at         the      hearing              scheduled                  to

determine          these        issues,             held         in December                   1992.         Only       Ross presented

testimony          and the            court             took         the     matter            under         advisement.

          In January            1993,             Daly        requested             the        court        reopen           the     matter             as

well      as continue                 the         hearing            on Ross'             objections                and        request             for

attorney's             fees          and      costs.                 On the          April            1993       date         set       for        the

rehearing,          Judge            Roth         recused            himself.              The matter                  was     transferred

to      Judge      Robert              S.         Keller.                   In      November                1994,            Judge          Keller

conducted          a re-hearing                         on     all         issues          and         on December                   31,        1994,

issued        an    order             denying                 Ross'          requested                 relief.                This          appeal

followed.

Issues

         We restate              Ross'             issues            as follows:

                                                                           3
1.         Did the District   Court err by ruling that Daly and Stevens are
           not liable   for misfeasance or for the alleged insufficiencies
           in the accounting    of the estate administration?
2.         Did the District     Court err by allowing     the co-conservators
           their  fees?
3.         Did the District   Court err by disallowing     Ross her attorney's
           fees?
Standard            of Review
           We use a three-step                  test         to determine              whether            the findings               are
clearly       erroneous.             First,           if     a court's          findings                 are not supported
by     substantial             credible            evidence,                 they      are         clearly            erroneous.
Second,        if     a court        has misapprehended                        the effect                 of the evidence,
its     findings         are       clearly         erroneous.                  Third,             if      a review            of     the
record        leaves         the     reviewing                court          with       the            definite            and      firm
conviction            that     a mistake                has been committed,                             the     lower        court's
findings        are clearly           erroneous.                  Interstate            Production                  Credit       Ass'n
v. DeSaye (1991),                  250 Mont.               320,       323,     820 P.2d 1285,                     1287.          We do
not      reweigh         the       evidence                before       the         district              court,           evaluate
witness        credibility,               or     substitute              our        judgment              for       that      of     the
district        court.         See Detienne                 Associates              Ltd.       v. Montana Rail                   Link,
Inc.       (1994) I 264 Mont.                    16,        22,       869 P.2d             258,         262.          "We review
conclusions             of     law     to        determine              whether             the          district            court's
interpretation               of the law was correct."                                In re Marriage                   of Barnard

(1994),        264 Mont.           103,        106,        870 P.2d 91, 93.
1.    Did the District  Court err by ruling that Daly and Stevens                                                                    are
not liable   for misfeasance  or for the alleged insufficiencies                                                                      in
the accounting   of the estate administration?
                                               Claims         aaainst          Daly
           The District            Court        described             this     situation                 as a family               feud,
a characterization                  that       we cannot              challenge.               At the heart                of Ross'

                                                                  4
arguments             is Daly's             alleged      misfeasance                and deficient                 accounting.
Because          of     health         problems,              Daly         was unable         to        assist         with         the
District          Court's           December 1994 hearing.                              The District              Court          found
that    the maximum disputed                        amount is $38,000,                     which includes                 $22,000
of     conservator                  fees      paid           to     Daly         ($10,000          is      identified                as
conservatorship                     fees       and      $12,000             is     identified              as         "possible"
conservatorship                    fees).
           The District              Court       found            that:
        any amounts of money not directly         traceable   to the care
        of Mazie Richardson are more than offset            by convincing
        evidence illustrating        that Mr. Daly and his wife Ruth
        utilized     their    personal   funds to set up an income-
        producing     account with Waddell and Reed [an investment
        firm].    The only credible     evidence submitted to the Court
        establishes      that Mr. Daly and his wife set up an income
        producing      account by utilizing      $24,000 of their       own
        personal    funds.
This       account       provided             Richardson              with       $150-200       per month from the
time       of     its        inception           in      1986 until                her      death         in      1991.            The

District          Court        heard          evidence              that     the        redemption             value        of      the
Waddell          and Reed account                      was $27,315                 and it          paid         dividends            of
$13,094          over        the     life      of     the         account.          The District                 Court           found
that       "a total          of over         $40,000          of principal               and dividends                 generated
from the personal                     funds      of Mr. Daly                 and his        wife        went directly                to
the care          of Mazie Richardson                         and upon her death                    to her estate."
           The court           concluded              that        the 1992 inventory                    was as complete
and accurate              as possible.                  It        appears        that     Daly did not                 cooperate
with       all    court            orders      and that               Ross and her              sons did              not        fully
cooperate             with     Daly.           The District                 Court        concluded             that     Daly        was
not able          to prepare                an inventory                  of the estate's                assets         but       Daly

                                                                     5
did know what he had received                             and spent           and he therefore                could           have
made an annual                  accounting.                 The District                   Court          balanced            this
deficiency             against      the        fact       that       Daly         provided         for     Richardson's
best       interests        and Daly           substantially                 augmented the assets                       of the
conservatorship.
        We now apply               the      three-part               test     from De&ye.                  The District
Court's        findings          are supported               by substantial                  evidence.             Further,
the District              Court did not misapprehend                          the evidence                in the record.
Finally,        after       a review           of the District                     Court's         order,         we have a
firm       conviction            that      a mistake             was not             committed.              The record
supports           that     the         District           Court's            findings          were        not        clearly
erroneous.              We will          not       substitute           our        judgment         for     that        of     the
District        Court.
         Finally,          we affirm            the District                  Court's        conclusion                that      in
light       of Daly's           present         health       concerns              no useful         purpose            can be
served        in examining              questions          of contempt               or sanctions.
                                          Claims          aqainst           Stevens
         The District             Court        found that            Stevens did not receive                       any fees
for     his    conservatorship                  duties           and no evidence                   was presented                 to
contradict          the finding             that      the only              money paid          to Stevens             was for
out-of-pocket              expenses.               The District              Court       also      found      that           Ross'
conduct        and prior           pleadings              support           the    finding         that     Stevens            was
not jointly            liable       for     the acts         of Daly.                The record           supports            that
Stevens        properly           collected            and accounted                  to     the     estate            for     all
funds       and assets           collected            by him or in his                   possession.               Finally,
the     District           Court        held       that     Stevens            did     not      consent           to    Daly's

                                                                 6
failure           to file       an inventory,             nor did Stevens              negligently          allow        or
enable Daly to commit a wrongful                               act.       Our application              of DeSaye         is
the      same      for     Stevens       as it       was for      Daly.        The record         supports             that
the District               Court's        findings        were not clearly              erroneous.              We will
not substitute                our judgment              for    that     of the District                Court.
2.    Did the               District           Court     err     by allowing           the     co-conservators
their   fees?
           The District              Court        considered          that    Daly    has no memory of the
proceedings               and no personal              assets.         The District           Court applied             the
doctrine           of in pari           delict0        to conclude           that     the parties          should        be
left       the     way they            were found.             The District            Court     noted          that     to
disallow           Daly his          fees would require                 him to pay Ross $8,000.                         The
District           Court,      as a court           of equity,          concluded       that     such a payment
would       be "fundamentally                     wrong."        Particularly            in    light      of Daly's
care       for     Richardson,            we agree.
          As we held in issue                     one, the District             Court     did not err             in its
findings            regarding            the      co-conservators'               conduct        and      liability.
Further,           the      District           Court     correctly           found     that     Richardson              was
well       taken         care of and her estate                  was augmented by Daly's                    conduct.
It     would be unequitable                       and manifestly             unjust     to disallow             the co-
conservators'                  fees       when         these      facts        are      combined           with         the

contentious               conduct        of Ross and her sons and the apparent                                  ongoing
family           dispute       regarding           the conservatorship.
3.         Did the District                Court       err by disallowing               Ross her attorney's
           fees?
           The District                Court      properly       considered           that     attorney's              fees
are      awarded           where       authorized           by statute          or contract.              This         case
does    not    fit     into    either         of    those      categories          and there       is      no
equitable      basis     for   awarding        fees in this         case.       The District       Court
properly       interpreted         the        law    regarding          Ross'      attorney's      fees.
Ross'      arguments     to the contrary             are not supported              by the record          or
law.
        Affirmed.
        Pursuant       to Section        I,    Paragraph        3(c),     Montana Supreme Court
1988 Internal          Operating    Rules,          this    decision       shall     not be cited          as
precedent      and shall       be published           by its     filing     as a public         document
with    the Clerk       of the Supreme Court                and by a report            of its     result
to Montana Law Week, State                    Reporter,        and West Publishing              Company.




We concur:




               Justices




                                                      8
Justice             Terry                 N.         Trieweiler                specially                   concurring                         in      part           and
dissenting                 in        part.

           I concur                  with         those         parts         of the              majority                 opinion            which          affirm

the    District                     Court's             judgment             in         favor          of Jack              G. Stevens                    and deny

attorney            fees             to        the     personal              representative                           of        Mazie         Richardson's

estate.

           I dissent                      from        that      part         of        the       majority              opinion                which          allows

the    respondent,                         Gene B. Daly,                      to           recover         fees            for         his         services           as

conservator                 of            Mazie            Richardson's                     estate.

           It     is        not             necessary                 to      conclude                   that          any            of     the          District

Court's          findings                   of       fact       are        clearly               erroneous                 in     order            to conclude

that         Daly          was              not            entitled               to         a     fee          for             his        services.                   A

conservator                 who flagrantly                            violates                   his     obligations                         to     the      estate

that      he manages                       is        not      entitled                 to    a fee.              The            following                 findings

of     the        District                       Court          clearly                    establish              that                Daly          flagrantly

violated            his             duties:
                  3.     [Gene   B.]    Daly,     of   Helena,     Montana,    was
          appointed      as Conservator       of the Estate      on October    20,
          1981.      Pursuant  to § 72-S-424,        M.C.A.,   and Court Order,
          Daly was required          to file    an inventory      of the Estate
          within     90 days.      In addition,      pursuant    to § 72-5-438,
          M.C.A.,     and Order      of the Court,       Daly was required      to
          account     annually   for his administration         of the Estate.

                       .              .     .

                     5.                   Jack Stevens was appointed   as Co-conservator                                                                   of
           the      Estate                 of Mazie Richardson    on November 14, 1984.

                       .        .     .     .

                11.   Following  the auction    of the personal property,
          the sale of the residence       and recovery   of the stock     for
          the Estate,    Stevens  completed   each item on the detailed
          memorandum he had advised      the parties   he would undertake

                                                                                       9
as Co-conservator.       The only exception was the completion
of the final      inventory,    a task he could not complete
without      the assistance   of Daly.     Stevens did prepare
reconciliation     of the Estate's   bank account and a summary
of the Estate       in 1984, but thereafter       was unable to
obtain      the cooperation     of Mr. Daly or information
necessary for Stevens himself to complete an inventory         or
accounting.
      .    .   .   .

       13.    Between approximately        1985 and 1991, Stevens
attempted     numerous times to obtain          from Daly a final
accounting      and inventory.       Stevens prepared one income
tax return     for the Estate,     but Daly indicated     he would be
responsible      for filing    all others.     Stevens' efforts     to
obtain     the inventory        and accounting      information     or
documentation       and to prevail      on Daly to complete his
duties included letters        to Daly and telephone or personal
conversations       with Joseph Marra, counsel for the Estate
and a long-time        friend of Daly.     In each instance,    Marra
prevailed     on Stevens not to resign or take other steps,
indicating      that he would be able to convince Daly to
provide an accounting.         . . .
      .    .   .   .

      16.    Shortly after Mazie Richardson passed away Mr.
Marra finally    determined that he would not be successful
in obtaining    a final inventory      from Daly.   He withdrew as
counsel.    Upon Mazie Richardson's        death Mazie R. Ross was
appointed    personal    representative      of her estate.      Mr.
Stevens was in the process of retaining            counsel to seek
his    release      as   Co-conservator        when the     present
proceedings    were initiated.
       17.   On December 16, 1991 [more than ten years after
Daly was first      appointed      conservator],      Mazie R. Ross
filed   a Petition   in this matter seeking an order against
the Co-conservators      directing     them to file     an inventory
and account for their       administration       of the estate.    She
also sought the discharge           of the Co-conservators         and
turn-over    of the residue of the estate to her as personal
representative.
       .       .   .

      25. During the time period of 1984, following      Mr.
Stevens'  appointment,   through 1991, Mr. Daly failed    to
file  an annual accounting.     However, on July 24, 1992,
Mr. Daly, in response to orders of the Court,      filed    a

                                  10
       final   accounting,     prepared by Anderson Zurmuehlen Co.
       The final   accounting     is representative    of the activities
       undertaken by Mr. Daly on behalf of Mazie Richardson                for
       the    preceding     ten     years.       The final      accounting
       demonstrates     that the maioritv     of the disbursements       from
       the conservatorship      account can be directly      attributable
       to the care of Mazie Richardson.
               26. The final      accounting       shows that        there      is
       approximately       $38,000      which      cannot     be       directly
       attributable     to the care of Mazie Richardson.                Of that
       amount, $10,000 is identified          as conservatorship            fees,
       and another        $12,000    is    identified       as      "possible"
       conservatorship     fees.   Unfortunately,      Mr. Daly is unable
       to assist     the Court in any further         delineation         of the
       $38,000 and whether it was attributable             directly       to the
       care of Mazie Richardson because of his present physical
       and mental condition,       which this Court recognizes.
                .   .      .

             28. After         her        appointment        as    personal
       representative,       Mazie Ross petitioned           the Court     on
       December 16, 1991, to order the co-conservators              to file
       an inventory    and accounting.        The Court issued its Order
       on January      16, 1992, giving          conservator    Daly until
       January 31,      1992,    to    file    an inventory       and both
       conservators    until   February 21, 1992, to file an account
       of the administration        of the Estate.
              29.   Stevens   filed  a partial    accounting       which
       covered    only the disposition     of the ward's       personal
       property    and sale of her home in 1986.    It did not list
       the Estate's     income and expenses.   Nor did it list       the
       Estate's   assets on hand and available  for distribution       to
       the ward's probate Estate.
                  30.   Daly did not comply with the Court's               Order to
           file   an inventory  and accounting  by the dates              set forth
           therein.
(Emphasis       added.)
       As conservator             of Mazie Richardson's     estate,    Gene B. Daly was
required       to file         an inventory   of her assets,     and file        it   with   the
District       Court     within     90 days from the date of his appointment.                 He
was also       obligated          to keep records    of   his   administration          of   her


                                               11
estate         and provide           it    to any interested                        person          upon that           person's
request.          Section           72-S-424,         MCA.             Additionally,                     Daly      was required

bY       law      to       account           to       the         court              annually                regarding            his
administration               of     the Richardson                   estate.                Section          72-S-430,         MCA.
For over         ten years           while        he served             as conservator                      of Richardson's
estate,        he did neither.                    Even after             being         ordered             repeatedly         to do
so by the             District        Court,         he did            neither.               Finally,             after      being
held      in    contempt           of court,         he filed                an inventory                   of assets         which
the District              Court      liberally             found         accounted                 for      a "majority"           of
Richardson's              assets,          but     which         disclosed                  that         $10,000       had been
spent      on conservatorship                     fees,     and that                $28,000          of expenses           cannot
be accounted              for.
          While       the District            Court        found             that     Daly's             administration            of
the      Richardson              conservatorship                was impeded                   by interference                  from
Mazie       Ross and her                  sons,     the         fact         is     that       the         last      documented
interference               by      Mazie          Ross      and          her         sons          occurred           prior        to
February         18, 1983.           On that         date,        the District                 Court granted               Daly's
request         for     an injunction              and ordered                    Ross and her                sons to vacate
Richardson's             house,       pay rent            for     the        time      that        one of the sons had
resided         there,       and return            to the estate                    items      of personal              property
which had been removed.                           Whatever         Richardson                 and her sons did                 from
1981 until             1983,      does not account                     for        Daly's       repeated             dereliction
of      responsibility              and frustration                     of Stevens's                     efforts      from     1983
until       1992.
          The District              Court         excused         Daly's             inability               to    account        for
approximately              $28,000         of conservatorship                          funds         and the payment               to

                                                                12
himself           of     $10,000        as a conservator               fee based         on the       assumption
that       the     sum of            $24,000       which      was placed        in     a Waddell        and Reed
account          and used for               Richardson's           benefit      came from       Daly     and his
wife.        However,               the source       of those        funds    was anything            but clear.
Furthermore,                 the fact       that     Daly and his wife              may have at some time
or other           made a gift              to Mrs.         Daly's     mother        does not     justify          the
award of           a conservatorship                   fee    to a conservator             who has totally
neglected              his     responsibilities              under     the law.
           This         Court         previously             considered         the       propriety           of       a
conservator                  fee under       similar         circumstances           in In re AllardGuardianship

(1914))          49 Mont.           219, 141 P. 661.               In that    case,     the district           court
also       interpreted              the propriety            of fees     to a conservator             who, for         a
period        of thirteen              years,       had failed         to account         for    the    estate's
assets        or provide              an inventory            of those       assets.        The law at that
time       provided           for    reasonable        compensation          to a conservator,              just    as
§ 72-5-432,              MCA, provides              now.      However,       this      Court    held    that       the
district           court        correctly          denied     attorney       fees     in that     case for         the
following              reasons:
           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.
                   During the entire       term of this  guardianship        the
           statute     in force required every guardian to return to the
           court an inventory      of the estate of his ward within three
           months after       his appointment,    and annually    thereafter
            (Code Civ. Proc., sec. 2985; Rev. Codes, sec. 7774), and,
           upon the expiration         of a year from the time of his
           appointment,      to render an account to the court (Code Civ.
           Proc.,    sec. 2986; Rev. Codes, sec. 7775).        Not only did
           the guardian absolutely        ignore these provisions     of law,

                                                              13
          but the district              court    was equally         remiss,      for    no
          inventory      was ever made, and from the date of appointment
          in March, 1899, to December, 1912--a period of more than
          thirteen      years--no      report was ever required by the court
          or rendered by the guardian.                 It is not any answer to say
          that      the guardian         managed the estate            prudently       and
          accounted for every cent belonging to it.                     The purpose of
          these statutory          provisions     is to furnish      a means by which
          the guardian's         management may be checked and his accounts
          verified.        In the present          instance     the trial     court was
          practically       limited     to the guardian's         own testimony      as to
          what property        of this ward came into his possession,                  and
          what disposition            he made of it,         without     any means of
          determining        the truth      of the testimony.          These statutes
          were enacted           to be obeyed,           and the conduct          of the
          guardian in ignoring            them altogether        is inexcusable,       and
          all the more so because he had the advice and assistance
          of able counsel.           In disallowing       the guardian's       claim for
          compensation,           the trial      court      doubtless      reached     the
          conclusion       that,     by reason of his mismanagement of the
          estate,      he had forfeited        all claim       to compensation.
InreAllard,         141 P. at 664 (citations                             omitted).

          Likewise,          in    this        case,         whether           Daly    actually          managed Mazie
Richardson's           estate          in her best                  interest         is not the point.               No one
will      ever       know.        There          is         no record           of    what     was done with               her
assets        for     a period            of     over         ten        years.         By the          time     Daly      was
finally       forced      to account                  for    her assets,              he was no longer             capable
of     recalling         what          he had               done with           them.          For      all     practical
purposes,            no one knows                the         full        extent        of    the       assets      that      he
managed or what was done with                                  all       of her property.                 The statutes
regarding           an inventory               and an annual                   accounting          were designed             to
prevent        the     kind       of    uncertainty                  that      now exists.              Daly      not     only
ignored          those        statutes,                he      ignored            repeated         efforts         by       his
co-conservator               to gather            the necessary                  information            to comply with
them;       he ignored            previous              requests            by the          estate's          attorney       to
comply        with     them;       and         most         seriously,            he ignored           repeated          court

                                                                    14
orders           that             he        comply            with           them.             When he              finally              did       make       an

effort       to         comply               with         them,             he was unable                    to     completely                 do so due

to the       passage                   of    time,            his      failed              memory,          and the               impossibility               of

reconstructing                          what            had      happened                  during           the     previous                 ten     years.

According               to        our        prior            decision                in     InreAllard,            a flagrant                 violation

of     a conservator's                             duties             is         a sufficient                basis             for      denying            that

conservator                      a fee           for     his         services.                    Under      the     undisputed                    facts      in

this       case,         I conclude                       that         Daly           flagrantly              violated                 his     duties         as

conservator                      and that               the      District                  Court      abused            its        discretion              when

it       allowed                 him        to         retain           fees           for         acting          as         a      conservator              on

"equitable"                      grounds.

           As a practical                               matter,              I     realize           that         Mazie            Ross        may be no

better       off         had the                   District                 Court          ordered           Daly        to        return          the     fees

that       he      had             received.                         However,                as     a matter                  of      precedent             and

principle,                   I     also           believe              it        is        inappropriate                  for         the      courts         to

sanction           Daly's                   conduct             in     this           case.

           For     these                reasons,                I dissent                   from     the      majority                 opinion.




                                                                                      15
Justice       James C. Nelson               specially          concurring.

          I   concur      in      our       opinion       to     affirm       the         District        Court's
judgment       in favor        of Jack G. Stevens and against                         Mazie Richardson's
estate.
          I also agree in substance                   with     Justice       Trieweiler's             dissent       as
regards       our opinion             in favor        of Gene B. Daly               to recover           fees     for
his   services         as conservator.                  Notwithstanding,                  I have signed           the
majority       opinion         because I am convinced                 that,      given        Daly's      present
circumstances--he                is     apparently           under    a conservatorship                    and      is
penniless--there               is little,        aside        from moral       victory,           that    will      be
accomplished            in       sending         this        case     back          for       still       further
litigation.            That which           starts      out badly         usually         ends worse.            This
case proves        the rule.




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