                                                                                            May 6 2009




                                     DA 08-0470


          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   2009 MT 155N



IN THE MATTER OF THE ESTATE OF

ROBERT LEE RYAN, SR.,


         Deceased.


APPEAL FROM:     District Court of the First Judicial District,
                 In and For the County of Lewis and Clark, Cause No. BDP 07-135
                 Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Cheryl (Cherie) Ann Ryan, (self-represented litigant); Prescott, Arizona

          For Appellee:

                 Dale E. Reagor, Candace Payne; Luxan & Murfitt, PLLP;
                 Helena, Montana



                                               Submitted on Briefs: April 8, 2009

                                                          Decided: May 5, 2009


Filed:

                 __________________________________________
                                   Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Cheryl Ryan appeals the District Court’s dismissal of her request for supervised

administration of her father’s estate and its determination that her father had testamentary

capacity. Robert Lee Ryan (Testator) executed a will on February 18, 2005, and died on

November 15, 2007. The District Court conducted a hearing on the capacity issue

wherein the attesting witnesses and others testified that the Testator had testamentary

capacity at the time he executed the will. In addition to relying on this testimony, the

District Court reasoned that the will itself evidenced testamentary capacity because the

Testator created his will without the aid of an attorney, yet the will states his testamentary

intent, names his children and grandchildren, and describes his assets in detail.

¶3     On appeal, Cheryl Ryan raises a number of arguments which are, unfortunately,

difficult to follow and generally without appropriate supporting authority. The issues

raised appear to stem from a lack of understanding of the law and legal process. A

review of the record reveals that the District Court exercised patience and afforded




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Cheryl Ryan great latitude as a pro se party. Cheryl Ryan has failed to establish error by

the District Court and thus her appeal is without merit.

¶4     In her reply brief, Cheryl Ryan asserts that the District Court procedurally erred by

failing to enter a scheduling order within 120 days of the filing of the complaint, as

required by M. R. Civ. P. 16(b). We need not reach the merits of this question, as an

appellant is prohibited from raising new issues in a reply brief. City of Billings v. Mouat,

2008 MT 66, ¶ 15, 342 Mont. 79, 180 P.3d 1121. Additionally, we note that Cheryl Ryan

has not demonstrated that any prejudice was caused by the alleged delay.

¶5     It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section I.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law, which the

District Court correctly interpreted, and there was clearly no abuse of discretion by the

District Court.

¶6     We affirm the judgment of the District Court.


                                                  /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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