Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Allen L. Wisdom, An Individual v. Terry Michaelson

March 22, 2011


The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge


Following an adverse judgment in state court, Allen Wisdom ("Wisdom"), proceeding pro se, instituted the present action alleging various constitutional violations associated with the state court proceedings and raising several claims that were previously raised, and ruled upon, in the state court. The state court proceedings revolved around the validity of Wisdom's mother's will and the probate of her estate. Wisdom filed an objection to the admission of his mother's will to probate and a tort action against William Yost III (the attorney that drafted Wisdom's mother's will), Janet Mallo (Wisdom's cousin and personal representative of the estate under Wisdom's mother's will), and Karen McMurtrie (also Wisdom's cousin, and alternative representative of the estate under the will).*fn1 Ultimately, Wisdom's claims in state court were unsuccessful--Wisdom's mother's will was admitted to probate; Janet Mallo was appointed representative of the estate; and judgment was entered in favor of the defendants on all but one of Wisdom's tort claims, which was dismissed without prejudice for lack of standing.

Wisdom filed this suit on the heals of the state court's final judgment, naming the same individual defendants involved in the state court proceedings and adding the attorney and law firm that represented the defendants in state court, Terry Michaelson and Hamilton, Michaelson & Hilty, LLP. Defendants have moved the Court for summary judgment, (Dkt. Nos. 13 and 14), and those motions are pending before the Court and ripe for adjudication.

Having fully reviewed the record,*fn2 and for the reasons set forth in more detail below, the Court finds: (1) subject matter jurisdiction does not exist to entertain Wisdom's due process and equal protection claims under 42 U.S.C. § 1983, which directly attack the earlier state court proceedings and, if successful, would have the effect of undermining the state court judgment; and (2) Defendants are entitled to judgment as a matter of law on Wisdom's remaining federal claims. Having disposed of the federal claims giving rise to this Court's original jurisdiction, pursuant to 28 U.S.C. § 1367(c)(a)(3), the Court will decline to exercise supplemental jurisdiction over the remaining state law claims. Accordingly, Wisdom's constitutional claims associated with the state proceedings will be dismissed for lack of subject matter jurisdiction; summary judgment will issue in favor of Defendants on Wisdom's claims under 42 U.S.C. §§ 1981, 1985, and 1986; and, the remaining state law claims will be dismissed without prejudice.


Wisdom's mother Lessie Steil died on July 17, 2008. The day after his mother's death, Wisdom spoke with his cousin Karen McMurtrie concerning the location of his mother's personal property. (Allen L. Wisdom Affidavit at ¶ 6, Dkt. 30-3.) During the conversation, Wisdom learned that his mother had executed two powers of attorney in favor of his cousins, Karen McMurtrie and Janet Mallo, and that Wisdom's mother's personal property had been disposed of pursuant to those powers of attorney. Id. at ¶¶ 6-7. Wisdom later received copies of these powers of attorney: a general power of attorney executed by Ms. Steil in favor of Janet Mallo on September 14, 2004; and a durable power of attorney for health care executed on January 4, 2005. Id. at ¶ 51. This conversation between Wisdom and his cousin set in motion a series of emotionally charged events, including litigation in the magistrate and trial divisions of the Third Judicial District of the State of Idaho, in and for the County of Canyon, the Idaho Court of Appeals, and the Idaho Supreme Court. The events ultimately culminated in the present action, in which Wisdom challenges the professional conduct of multiple attorneys and alleges that a far reaching conspiracy existed between the defendants in this action and the Idaho state court system.

Prior to her death, Ms. Steil executed three wills. All the wills were drafted and notarized by her attorney, William Yost III ("Yost"). The most recent will, executed on September 20, 2005, revoked all previous wills and codicils; listed Allen Wisdom as her only living child; nominated Janet Mallo ("Mallo") Personal Representative of the will and Karen McMurtrie ("McMurtrie") as alternative personal representative; and granted the Personal Representative "full power to manage and settle [the] estate . . . including the power to sell . . . any and all property of [the] estate. . . ." (Wisdom Aff., Ex. B, Dkt. 30-4 at 7.) The will also made specific bequests, including $5,000.00 to Ms. Steil's son, Wisdom, thirty percent of the estate to her niece Karen McMurtrie, and forty-five percent of the estate to her niece Janet Mallo. The will was witnessed by two individuals and notarized by Yost. The total net value of the estate has been calculated at $330,078.40. (Dkt. 30-14.)

1. State Court Proceedings

On August 15, 2008, Mallo, in her capacity as personal representative of Lessie Steil's estate, filed a Petition for Formal Probate of Will and Formal Appointment of Personal Representative. (Terry Michaelson Affidavit, Ex. A, Dkt. 13-2 at 7.) At the time the petition was filed, Mallo was represented by Yost. Wisdom, proceeding pro se, filed an objection to the petition for probate, challenging the validity of the will and requesting the appointment of a disinterested personal representative. (Michaelson Aff., Ex. B, Dkt. 13-2 at 12.) In his objection, Wisdom alleged that Mallo and her sister, McMurtrie, exerted undue influence to secure control of his mother's assets and that his mother was incompetent at the time she executed the will. Id. Wisdom's objection also stated that he intended to file a tort action against Mallo, McMurtrie, and Yost for tortious interference "in the obtaining, preparation and submission of the fraudulent Will . . . and their efforts to essentially disinherit [Wisdom] from his Mother's estate." (Dkt. 13-2 at 14.) Finally, the objection sought the appointment of an independent personal representative "to take control of all Estate assets . . . [and] to locate and retrieve the disappeared assets for the benefit of the Estate." (Id., Dkt. 13-2 at 15.)

Due to the allegations contained in Wisdom's objection, Yost withdrew as counsel for the estate and stipulated with attorney Terry Michaelson ("Michaelson") for Michaelson to take over representation of Mallo in the probate proceedings. (Michaelson Aff., Ex. C, Dkt. 13-2 at 19.)

While the probate case was pending in the magistrate division in state district court, Wisdom filed a separate tort action in the state district court naming Mallo, McMurtrie, Yost, and Allied Mutual Insurance Company as defendants. Wisdom v. Mallo, Case No. CV-08-11900 (Idaho Dist. Ct. 2008). Wisdom alleged that the defendants were liable for civil conspiracy, breach of fiduciary duty, tortious interference with economic expectancy, undue influence, and fraud. Id. Wisdom also alleged that Yost had committed legal malpractice and asserted an additional claim against Yost and his surety, Allied Mutual Insurance Company, for breach of the Idaho Notary Public Act. Id.

In the meantime, the probate case moved forward in the magistrate division of the district court. On September 30, 2008, Wisdom received an Amended Notice of Hearing, setting a bench trial in the probate proceeding for December 2, 2008. (Dkt. 30-5.) The notice also set a pretrial conference on October 28, 2008. The magistrate judge issued an Order Fixing Time and Place of Hearing in accordance with the notice. Wisdom appeared at the pretrial conference on October 28, 2008, and informed the court that he would not be prepared to proceed with trial on December 2. Notwithstanding his receipt of the Amended Notice of Hearing, Wisdom claimed (and continues to claim) that the order setting the above dates was issued upon ex parte contact between the magistrate judge and either Michaelson or members of his law firm. The court refused Wisdom's request to change the trial date.

On October 6, 2008, Michaelson (on behalf of Mallo) served discovery requests on Wisdom relating to the probate action. Under Rule 33(a)(2) of the Idaho Rules of Civil Procedure, Wisdom had thirty days to respond to the interrogatories. Wisdom did not respond to the discovery requests but, on November 10, 2008, he served a motion for a protective order on Michaelson. The motion itself was filed with the court on November 13, 2008. Following Wisdom's failure to respond to the discovery requests, on November 12, 2008, Michaelson filed on behalf of his clients a motion to compel and, given the impending trial date in December, Michaelson also filed a motion to shorten time. An order shortening time was issued the next day and a hearing on the motion to compel was set for November 20, 2008. Wisdom asserts that the order shortening time was issued upon improper ex parte contact between the court and either Michaelson or other persons from Michaelson's law firm.*fn3

Wisdom failed to appear at the hearing on the motion to compel. He did, however, file a notice of non appearance. Notwithstanding Wisdom's notice of non appearance, the magistrate judge granted the motion to compel. The court acknowledged that Wisdom had given notice that he would not appear, but found that Wisdom had failed to pay the required filing fee and failed to provide any reasons for the non appearance. The order required Wisdom to "respond fully and completely to the Petitioner's discovery requests," and provided that a failure to do so by 5:00 p.m. on November 26, 2008, would result in the imposition of sanctions. (Michaelson Aff., Ex. E, Dkt. 13-2 at 38.) The order specifically indicated that the possible sanctions for failing to comply with the order included "the entry of an order striking the Objection to Petition for Formal Probate of Will and Appointment of Personal Representative . . . and the granting of all relief sought in the petition . . . including admission of the decedent's Last Will and Testament to probate and appointment of Petitioner Janet Mallo as personal representative of the estate of the decedent." Id.

Wisdom filed a motion for reconsideration of the order compelling discovery, again asserting that the order was issued upon improper ex parte contact. (Wisdom Aff., Ex. K, Dkt. 30-6 at 10.) A hearing was held on December 2, 2008, during which, Wisdom states, "the magistrate judge refused to address any issue other than whether I had responded to the discovery." (Wisdom Aff., ¶ 24, Dkt. 30-3.) Wisdom had not responded to discovery. As a result of Wisdom's failure to comply with the court's order compelling discovery, on December 3, 2008, the magistrate judge struck Wisdom's objection to the probate of his mother's estate and entered an Order Admitting Will to Probate and Appointing Personal Representative. (Michaelson Aff., Ex. F, Dkt. 13-2 at 42.)

Wisdom timely appealed the magistrate judge's order in the probate case to the district court. Pursuant to Rule 83 of the Idaho Rules of Civil Procedure, the district court ordered that the appeal from the magistrate's division be heard as a trial de novo.*fn4 (Wisdom Aff., Ex. M, Dkt. 30-7 at 20.) The district court also ordered, on January 22, 2009, that the probate case and the tort case be consolidated, finding that the "actions involve common questions of law and fact and that all are pending before this Court." (Michaelson Aff., Ex. H, Dkt. 13-2 at 49.)

As indicated above, Wisdom filed the tort action on November 13, 2008. Prior to consolidation of the two cases, Wisdom moved for default against the defendants in the tort case for failing to timely file responsive pleadings.*fn5 On December 15, 2008, Mallo, McMurtrie, and Yost filed motions to dismiss or, alternatively, motions for summary judgment. Oral argument was heard on the motions on January 15, 2009. During arguments, the district court informed the parties that it intended to conduct the probate appeal as a trial de novo and to consolidate the tort and probate cases.

On February 3, 2009, the district court issued a Memorandum Decision Upon Motion for Summary Judgment filed by Defendants Mallo, McMurtrie & Yost.*fn6 (Michaelson Aff., Ex. I, Dkt. 13-2 at 52.) In its decision, the district court granted summary judgment in favor of the defendants on Wisdom's tort claims for undue influence and fraud, determining that these claims were duplicative of Wisdom's claims in the probate case. Id. The court also granted summary judgment on Wisdom's civil conspiracy and tortious interference with economic expectation claims, holding that no such causes of action existed under Idaho law. Id. Yost was granted summary judgment on Wisdom's legal malpractice and breach of fiduciary duty claims on the ground that Yost did not owe Wisdom a fiduciary duty. The court also dismissed Wisdom's claim under the Idaho Notary Public Act for failing to plead fraud with particularity.

Concerning Wisdom's breach of fiduciary duty claim against Mallo and McMurtrie, the court held that, to the extent Wisdom's claim dealt with transactions that took place after the appointment of the personal representative, the claim would be heard in connection with the probate action. Id. The court therefore granted summary judgment in favor of defendants on Wisdom's tort claim against Mallo and McMurtrie relating to transactions that occurred post-appointment. The court concluded, however, that, to the extent Wisdom was making claims regarding sales of Wisdom's mother's property or other transactions Mallo and McMurtrie had conducted under a power of attorney while the decedent was still living, Wisdom would be allowed to raise his allegations under § 15-12-116 of the Idaho Code. This statute allows a person to petition a court to review an agent's conduct under a power of attorney.

In sum, the state district court dismissed all tort claims alleged by Wisdom against Yost and Allied Mutual Insurance Company and granted summary judgment dismissal of all claims asserted by Wisdom against Mallo and McMurtrie except for the breach of fiduciary duty claim related to actions taken prior to Ms. Steil's death. At the end of its decision, the district court summarized the status of the case, noting that during the contested testacy proceedings, the proponents of the will, Mallo and McMurtrie, would have the burden of establishing prima facie proof of due execution of the will and that Wisdom would bear the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Id. The court also noted that Wisdom's breach of fiduciary duty claim relating to Mallo and McMurtrie's conduct in exercising their power of attorney for Wisdom's mother while she was still living remained to be litigated at trial. Id.

Following the above orders, Wisdom filed six motions in the state district court, including: (1) an objection to alleged ex parte contact; (2) a motion for reconsideration of the order referring the case to mediation; (3) a motion for reconsideration of the decision granting summary judgment; (4) a motion for reconsideration of the order granting dismissal in favor of Allied Mutual; (5) an application for entry of default; and (6) a petition for appointment of special administrator.

In an interim order, the district court denied oral argument on the motions, indicated that written decisions on the motions would be forthcoming, and set a status hearing for March 19, 2009. (Wisdom Aff., Ex. T, Dkt. 30-14 at 11.) At the status hearing, the court set a trial for May 19, 2009, and ordered the parties to respond to all previously served discovery requests within thirty days. Following the status hearing, the court issued a scheduling order setting the consolidated cases for a three day trial beginning May 19, 2009, and noting that the issue of whether the trial would be before the court or before a jury would be decided following the submission of further briefing by the parties. (Michaelson Aff., Ex. L, Dkt. 13-2 at 67.) Wisdom was ordered to provide the court with legal analysis supporting his request for a jury trial by April 2, 2009. Id.

The scheduling order also required the standard trial submissions, including: witness lists and exhibits; a concise written statement of each party's theory of the case and supporting legal authorities; and proposed jury instructions and verdict forms, if applicable. Wisdom did not file any of the documents required by the scheduling order. He did, however, file an objection to Yost's request for fees and costs, and filed motions to vacate the scheduling order, continue the trial, and compel discovery. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.