IN RE: THE ESTATE OF: KEVIN THIELMANN (2024)

Justice Jim Rice delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Ashton Hofstad, Personal Representative of the Estate and daughter of the Deceased, Kevin Thielmann, appeals the order of the Ninth Judicial District Court, Pondera County, granting Appellee Scott Thielmann's motion to quash Hofstad's motion for substitution of the District Court judge, and thereby denying substitution. The District Court ruled the motion was untimely filed. Scott Thielmann is a brother to the Deceased.

¶3 Hofstad and Thielmann are engaged in litigation related to the Estate. The subject proceeding began in October 2022 upon Thielmann's application for appointment of a special administrator, which was assigned to Judge Robert Olson, who granted the appointment. That appointment was subsequently terminated by Judge Olson upon Hofstad's application for appointment as personal representative in informal proceedings. This appointment in informal proceedings was made by an order issued by the Clerk of Court on November 15, 2022.

¶4 Judge Olson retired, and on April 20, 2023, Gregory Bonilla was appointed as the presiding judge in the Ninth Judicial District. Thereafter, Judge Bonilla was listed in the Case Register of this proceeding as the presiding judge for each filing, beginning with the Interim Inventory and Appraisement filed on April 27, 2023.

¶5 On May 10, 2023, a deposition was conducted in a companion case to this probate proceeding, involving the same parties and filed in the same judicial district, titled Ashton Hofstad, as Personal Representative of the Estate of Kevin Thielmann v. Scott Thielman, Cause No. DV-22-53. That case involves a claim of conversion. During the deposition, Hofstad's counsel, Patrick Flaherty, broke from his questioning of the witness to engage in the following dialogue with Thielmann's counsel, Gary Bjelland, as recorded in the transcript:

Q: (BY MR. P. FLAHERTY) So if we go to court and you're put on the witness stand -- and we have a new judge.

MR. BJELLAND: Yes.

MR. P. FLAHERTY: I think Greg Bonilla is our new judge, isn't he?

MR. BJELLAND: Yes.

MR. P. FLAHERTY: Has Olson had his retirement party yet? I wanted to go to that, if we do.

MR. BJELLAND: I don't think so. I don't know. I'm not sure.

MR. P. FLAHERTY: But, anyway, thank you.

Q: (BY MR. P. FLAHERTY) But when we go to trial, and you're put on the stand, and I ask you in front of Judge Bonilla is it your opinion that ․

¶6 Then, on June 5, 2023, also in the companion case, the District Court issued an Amended Scheduling Order that was personally signed by Judge Bonilla, which was served upon Hofstad's counsel.

¶7 On July 25, 2023, Hofstad filed her motion to substitute judge. Thielmann moved to quash the motion, which the District Court granted. The court noted that § 3-1-804, MCA, grants a thirty-day window for motions to substitute a judge who assumes jurisdiction and, referring to the deposition and the signed scheduling order entered in the companion case, reasoned that “[Hofstad's] time for substitution started to run, at the latest, on June 5, 2023. Ms. Hofstad filed her motion for substitution on July 25, 2023, approximately fifty days after she had notice of the new Judge.” The court concluded the motion was therefore untimely. Hofstad appeals.

¶8 “A district court's determination whether to substitute a judge is a question of law that we review for correctness.” Labair v. Carey, 2017 MT 286, ¶ 11, 389 Mont. 366, 405 P.3d 1284. Further, appellants must establish that their substantial rights were prejudiced in the event of an error. Labair, ¶ 19; M. R. Civ. P. 61.

¶9 Section 3-1-804, MCA, provides, in pertinent part:

(1) Each adverse party is entitled to one substitution of a district judge.

(a) In a civil action other than those noted in subsection (1)(c), a motion for substitution by the party filing the action must be filed within 30 calendar days after the first summons is served or an adverse party has appeared. A motion for substitution by the party served must be filed within 30 calendar days after service has been completed in compliance with M. R. Civ. P. 4.

․

(7) When a new district judge has accepted jurisdiction, the clerk of court shall provide a copy of the assumption of jurisdiction to the first district judge to whom the case was assigned and to each attorney or party of record. A certificate of service must be attached to the assumption of jurisdiction form in the court file.

(8) If the presiding judge in any action recuses himself or herself or if a new district judge assumes jurisdiction in any action, the right to move for substitution of a district judge is reinstated, except as to parties who have previously obtained a substitution. The time periods run anew from the date of service of notice or other document identifying the new district judge.

(Emphasis added.)

¶10 Hofstad contends she did not receive proper notice of Judge Bonilla's assumption of jurisdiction within this probate proceeding and, therefore, the time for filing a motion for substitution had not begun to run when she filed her motion.¹ She also argues her due process right was violated. Hofstad forthrightly acknowledges the existence of what she describes as “contrary authority,” that being the Labair holding, and seeks to distinguish that case. Thielmann responds by pointing out the other notice Hofstad received about Judge Bonilla's assumption of jurisdiction, including the June 5, 2023, scheduling order in the companion case, signed by Judge Bonilla, and the acknowledgment of the same by Hofstad's counsel in the deposition taken in the companion case on May 10, 2023, as proof that Hofstad had actual notice of Judge Bonilla's assumption. Thielmann argues Labair is controlling.

¶11 In Labair, following an order from this Court remanding the case to the District Court where a formerly retired judge was set to resume jurisdiction of the case, the Labairs filed a motion for substitution of the judge, fifty-seven days after remand. Labair, ¶¶ 6-10. The District Court denied the motion as untimely, and the Labairs appealed, arguing they had not received proper notice of the retired judge's resumption of jurisdiction. Labair,

¶ 10. Though the Clerk of Court had not served the parties with notice of the judge's return to the case, the parties had been sent a printed transcript of a status conference that had noted the judge's return. Citing that transcript and the judge's earlier involvement in the case, we rejected the Labairs’ statutory and due process arguments, reasoning:

The Labairs could not reasonably have concluded, based on these facts, that anyone other than Judge McLean presided over their case. The court record at all relevant times clearly identified Judge McLean as the presiding judge, and no other judge participated in any hearing or entered any rulings. The purpose of the notice rule in § 3-1-804(7), MCA, is to ensure that parties are informed when a new judge assumes jurisdiction. Here, the District Court's failure to comply with § 3-1-804(7), MCA, did not prejudice the Labairs, because the Labairs had actual notice when Judge McLean assumed jurisdiction in the case. Absent prejudice, we will not disturb the District Court's denial of the Labairs’ motion for substitution.

․

The court's failure to serve official notice on them under § 3-1-804(7), MCA, did not “adversely affect their legally protected interests” where they had actual knowledge of the judge presiding in their case. Steab [v. Luna, 2010 MT 125, ¶ 22, 356 Mont. 372, 233 P.3d 251]. Their claim of a due process violation fails.

Labair, ¶¶ 19-20.

¶12 Clearly, providing a notice or other document notifying parties of the change in the presiding judge in accordance with § 3-1-804(8), MCA, should be followed, and a failure to do so could well result in the time window for substitution remaining open indefinitely. Here, however, as in Labair, Hofstad “could not reasonably have concluded, based on these facts, that anyone other than Judge [Bonilla] presided over [her] case.” Labair, ¶ 19. She received actual notice of the judge's assumption and acknowledged the same, including the June 5, 2023 scheduling order signed by Judge Bonilla in the closely-related case involving the same parties and filed in the same district, and the May 10, 2023 deposition in that companion case wherein Hofstad's counsel acknowledged Judge Bonilla's assumption of jurisdiction. Accordingly, we conclude the failure to provide formal notice here did not adversely affect her legally protected interests or cause prejudice.

¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.

¶14 Affirmed.

FOOTNOTES

1.   Hofstad argues that the record “contains no service or other document identifying that the Honorable Greg Bonilla was the new District Court Judge in this [probate proceeding] until August 30, 2023, when the Judge signed an order to grant the motion to Quash.” While, on the contrary, there were other prior record identifications, they are not determinative here. As noted, the Case Register identified Judge Bonilla as the presiding judge for all individual filings in the probate proceeding starting April 27, 2023. Then, on June 27, 2023, Thielmann petitioned for formal probate of will and determination of testacy and heirs. On June 28, Judge Bonilla issued and personally signed an order setting a hearing on Thielmann's petition for formal probate. That order was served upon counsel for Hofstad. On June 30, counsel for Thielmann filed a motion to reschedule the formal probate hearing date to permit sufficient time to publish notice of the hearing as required by § 72-1-301, MCA. On the same day, the District Court issued an order resetting the hearing, which was personally signed by Judge Bonilla, and served upon Hofstad's counsel. Hofstad's motion for substitution was filed on July 25, 2023, within 30 days of these orders.

JIM RICE

We concur: MIKE McGRATH LAURIE McKINNON JAMES JEREMIAH SHEA INGRID GUSTAFSON