Engellant v. Crowley Fleck

09/15/2026 DA 24-0485 Case Number: DA 24-0485 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 218 DAREN ENGELLANT, individually and acting as Personal Representative of the ESTATE OF GREGORY ENGELLANT, Plaintiff, Appellant, and Cross-Appellee, v. CROWLEY FLECK, PLLP, a Montana Professional Limited Liability Partnership, and DANIEL N. MCLEAN, an individual, Defendants, Appellees, and Cross-Appellants, _______________________________________________ CROWLEY FLECK, PLLP, and DANIEL N. MCLEAN, Third-Party Plaintiffs and Cross-Appellees, v. KENNETH ENGELLANT, Third-Party Defendant and Cross-Appellant, and SHANA DIEKHANS, Third-Party Defendant and Cross-Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV-2020-922 Honorable Christopher D. Abbott, Presiding Judge COUNSEL OF RECORD: For Appellant Daren Engellant as Personal Representative of the Estate of Gregory Engellant: Ashley C. McCormack, McCormack Law Firm, P.C., Kalispell, Montana For Intervenor and Appellant Kevin Engellant: Kevin Engellant, Self-Represented, Dillon, Montana For Appellees Crowley Fleck, PLLP and Daniel N. McLean: Mikel Moore, Moore Resolutions, PLLC, Kalispell, Montana Eric Brooks, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana For Cross-Appellant Shana Diekhans: William J. Levine, Marra, Evenson & Levine, P.C., Great Falls, Montana For Cross-Appellant Mavis Engellant as Personal Representative of the Estate of Kenneth Engellant: Mavis Engellant, Self-Represented, Fort Benton, Montana Submitted on Briefs: April 29, 2026 Decided: September 15, 2026 Filed: __________________________________________ Clerk 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Daren Engellant appeals the First Judicial District Court’s judgment in favor of Crowley Fleck, PLLP, and Daniel McLean (collectively “Crowley Fleck”). Daren, in his capacity as the personal representative of Gregory Engellant’s Estate, sued Crowley Fleck for malpractice arising from its representation of Greg in planning his Estate. Daren claimed that Crowley Fleck breached the standard of care when it facilitated Greg’s gifting Engellant Ranch Corporation shares to his niece, Shana Diekhans, without adequately investigating Greg’s circumstances. In defense, Crowley Fleck argued that it did not cause Greg’s Estate damages because Greg’s 2012 will nonetheless devised the entirety of his stock to Shana. A Lewis and Clark County jury found that Greg’s 2012 will was his last valid will and testament, and the court entered judgment in Crowley Fleck’s favor. ¶2 Following entry of judgment, Daren’s brother Kevin moved to intervene in the action. The District Court denied the motion as untimely. Kevin appeals that ruling. Daren claims that he is entitled to a new trial. We consider the following restated issues on appeal: 1. Did the District Court abuse its discretion by ruling that evidence addressing the validity of Greg’s 2012 will was relevant to disprove the causation and damages elements of Daren’s claim? 2. Did the District Court err by permitting the jury to determine that Greg’s 2012 will was his last will and testament when Greg’s 1978 will was admitted to probate? 3. Did the District Court commit instructional error by omitting a stipulated fact and providing the incorrect legal standard for a protected person’s capacity to make a gift? 4. Did the District Court abuse its discretion when it excluded evidence of Crowley Fleck’s settlement agreement with the third-party defendants under M. R. Evid. 403? 3  5. Did the District Court abuse its discretion when it denied Kevin’s motion to intervene as untimely? Crowley Fleck cross-appeals the District Court’s denial of its motion for summary judgment, claiming that the court erred by equitably tolling the statute of limitations for Daren’s claims brought on behalf of the Estate. Because we affirm the District Court’s judgment on Daren’s direct appeal, we do not reach the cross-appeal. FACTUAL AND PROCEDURAL BACKGROUND ¶3 The Engellant Ranch is located in Chouteau County, Montana. Arnold and Madaline Engellant created a closely held corporation for the ranch in the late 1970s, and each held a fifty percent ownership interest. Arnold and Madaline had two sons—Gregory and Kenneth. After Arnold and Madeline died, Greg inherited fifty percent of the corporation’s shares, Ken inherited twenty-five percent, and the remaining twenty-five percent were placed in trust for Ken’s three children—Daren, Kevin, and Shana. ¶4 Greg executed a holographic will in 1978, devising the entirety of his Estate to Daren, Kevin, and Shana in equal shares. In 1982, Greg sustained a traumatic brain injury from a farming accident that limited his ability to manage his affairs. A court appointed Ken to serve as Greg’s guardian and conservator in 1985. ¶5 In 2012, Greg retained Dan McLean—an attorney at Crowley Fleck, PLLP—to plan his Estate.1 Greg and Ken met with McLean on May 29, 2012. Greg expressed that he 1 Daren claims Greg never lawfully retained McLean and that the court excluded this evidence at trial. We could not identify any ruling in the record where the court excluded such evidence, and Daren does not identify where he made this argument below. We therefore do not address it. See State v. Norman, 2010 MT 253, ¶ 16, 358 Mont. 252, 244 P.3d 737. 4 wished to give Shana the entirety of his Engellant Ranch Corporation stock because Shana had been living on and operating the ranch since 1999. Though Greg intended to give Shana the stock during his lifetime, he said that he also wanted to update his 1978 will to reflect this change. McLean prepared a new will with the following provision: Specific Bequest of Ranch Stock. I intend to give my interest in Engellant Ranch Co., a Montana closely held S-Corporation, to my niece, Shana, during my lifetime. If I still own any stock in the ranch corporation when I die, I give all of my stock outright to Shana. Greg also devised Shana 320 acres of property that he owned adjacent to the ranch. He devised the remainder of his Estate to Shana, Kevin, and Daren in equal shares. In September 2012, Greg assigned his 3,923 shares in the Engellant Ranch Corporation to Shana, granting her a fifty percent ownership interest in the entity. The shares were worth approximately $1.7 million. McLean represented Greg in the stock transfer. ¶6 Daren claims that in 2015, Greg shared with him that he no longer wanted his 2012 will to control the disposition of his Estate. Daren prepared a document with the following language: I am aware that I signed a will in June, 2012 and I declare it to be immediately and forever revoked and it should be noted that I was unaware of some of its contents when I signed it . . . . It is still my will that [the 1978 will] be carried out. The document also contained a clause distributing Greg’s Estate “equally amongst my nephews Kevin and Daren Engellan[t] and my niece Shana Diekhans.” Daren then prepared three alternative versions of the document, altering only the disposition clause. The second version distributed 100% to Daren and Kevin, the third gave 100% to Shana, and, lastly, 100% “to Mickey Mouse and his fellow mouseketeers.” Daren placed the 5 documents in front of Greg one at a time, and Greg signed each different version without noticing the changes. ¶7 In separate guardianship and conservatorship proceedings, Daren and Kevin sought to remove Ken as guardian and conservator, claiming that he allegedly mismanaged Greg’s assets, failed to file accountings for Greg’s Estate, and influenced Greg to gift Shana his shares in the corporation. Though McLean initially opposed the petition on Greg’s behalf, he later changed his position and supported Ken’s removal. Ken resigned as guardian and conservator in 2018. Greg died in 2019 before the action concluded. ¶8 After Greg’s death, Daren petitioned the Cascade County District Court to admit Greg’s 1978 will to probate and to appoint Daren as the personal representative of Greg’s Estate. Ken and Shana signed a document acknowledging that Greg’s 1978 will was his last will and testament and consenting to Daren’s appointment. Though Daren represented that Greg revoked his 2012 will in 2015, Daren did not disclose to the probate court, Ken, or Shana that Greg signed three alternative versions of the 2015 revocation document. ¶9 Daren, in his capacity as the personal representative of Greg’s Estate,2 commenced the present malpractice action against Crowley Fleck in 2020. Daren claimed that Crowley Fleck breached the standard of care by facilitating the stock transfer without adequately investigating Greg’s capacity, his finances, and Ken’s alleged misconduct.3 Daren 2 The District Court granted Crowley Fleck’s motion for summary judgment with respect to Daren’s individual claims, finding that they were time-barred. Daren does not appeal this ruling, and his individual claims are therefore not a part of this appeal. 3 Daren also alleged other theories of liability, but the District Court entered judgment as a matter of law in Crowley Fleck’s favor on all theories except his negligence claim concerning the stock gift. Daren does not appeal this ruling. 6 contended that the Estate was damaged because it did not have ownership of the stock. Crowley Fleck joined Ken and Shana as defendants and filed a third-party complaint against them for contribution.4 ¶10 While the District Court proceedings were ongoing, Shana learned that Daren did not disclose the three different versions of the 2015 revocation documents. Shana petitioned the probate court to vacate its prior order admitting Greg’s 1978 will to probate, to admit the 2012 will to probate, and to remove Daren as the personal representative. Shana alleged that Daren fraudulently obtained her and Ken’s consent to probate the 1978 will by concealing the other documents. Crowley Fleck requested that the District Court stay the proceedings until the probate court ruled on the motion. Daren opposed the stay. The District Court denied Crowley Fleck’s motion. ¶11 Crowley Fleck raised several contentions in the pretrial order concerning the validity of the 2012 will, Greg’s alleged revocation of the 2012 will in 2015, and the ongoing probate proceedings. Crowley Fleck claimed that the 2012 will was Greg’s last valid will and testament and that the 2015 documents were fraudulently obtained and an invalid revocation of Greg’s 2012 will. Daren moved to strike these contentions from the jury’s consideration, claiming that they were irrelevant and constituted untimely affirmative defenses. The District Court denied his motion. The court concluded that 4 Though Ken and Shana filed briefs in this appeal, Ken died during its pendency and we granted his counsel leave to withdraw. On August 11, 2026, Shana notified this Court that Ken’s surviving spouse has been appointed personal representative of his estate. 7 Daren could not prove causation or damages if the 2012 will was valid and that the 2015 documents could become relevant to attack Daren’s credibility. ¶12 The case went before a Lewis and Clark County jury in June 2024. Both sides submitted extensive evidence over eight days of trial. Several Engellant family members testified, along with McLean, other attorneys who had worked with Greg, and expert witnesses. The jury found that Greg’s 2012 will was his last valid will and testament, and therefore his Estate suffered no damages from Crowley Fleck’s alleged negligence. The court entered judgment in Crowley Fleck’s favor on July 16, 2024, and thereafter denied Kevin’s motion to intervene. STANDARDS OF REVIEW ¶13 We review a district court’s conclusions of law for correctness. In re Estate of Hannum, 2012 MT 171, ¶ 19, 366 Mont. 1, 285 P.3d 463. We review a district court’s evidentiary rulings and its ruling on a motion to intervene for abuse of discretion. Beehler v. E. Radiological Assocs., P.C., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131; Aspen Trails Ranch, LLC v. Simmons, 2010 MT 79, ¶ 29, 356 Mont. 41, 230 P.3d 808. “An abuse of discretion occurs when a court acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice.” Camen v. Glacier Eye Clinic, P.C., 2023 MT 174, ¶ 16, 413 Mont. 277, 539 P.3d 1062 (citations omitted). ¶14 We also “apply an abuse of discretion standard when reviewing whether the district court correctly instructed the jury.” Estate of Mabee v. Wheatland Cnty., 2025 MT 252, ¶ 9, 424 Mont. 467, 579 P.3d 522 (citation omitted). Though the court has broad discretion 8 to formulate jury instructions, it must “fully and fairly instruct the jury regarding the applicable law.” Spotted Horse v. BNSF Ry. Co., 2015 MT 148, ¶ 16, 379 Mont. 314, 350 P.3d 52 (citations omitted). We consider the instructions in their entirety, together with the evidence introduced at trial, when determining whether a court properly instructed the jury. Estate of Mabee, ¶ 9. The court’s refusal to give a particular instruction constitutes reversible error only if it “affects the substantial rights of the party proposing the instruction, thereby prejudicing [them].” Camen, ¶ 21 (citation omitted). DISCUSSION ¶15 1. Did the District Court abuse its discretion by ruling that evidence addressing the validity of Greg’s 2012 will was relevant to disprove the causation and damages elements of Daren’s claim? ¶16 In May 2024, after the deadline for motions in limine passed, Daren moved to strike from the pretrial order several of Crowley Fleck’s contentions that Greg’s 2012 will was valid and still in effect. Daren argued that these contentions were irrelevant and inadmissible, and that they constituted unpleaded affirmative defenses. Crowley Fleck responded that Daren’s motion was an untimely motion in limine or for summary judgment. The court agreed with Crowley Fleck that “[t]he primary dispute . . . is the relevance to this case of events that took place after decedent Gregory Engellant executed a 2012 will,” and that this issue should have been raised as a motion in limine. The court ruled on Daren’s motion despite its untimeliness, however, to address these evidentiary issues before trial. It concluded: [E]vidence bearing on the circumstances surrounding the formation of the 2012 will is relevant to the elements of Daren’s causes of action because it affects the element of damages and causation. The parties appear to agree 9  that damages are based on the diminution of the Estate’s value caused by any breach of duty owed to Greg by Crowley Fleck. A significant portion of Daren’s claimed damages [is] the stock gift to Shana. Shana, however, is also the devisee of the stock under the 2012 will. Whether the 2012 will was valid bears on the extent to which the Estate can be harmed by a stock gift that went precisely where it would have gone upon Gregory’s death under that same will. The court reached a different conclusion with respect to circumstances surrounding the 2015 revocation documents and the subsequent probate proceedings. It concluded that the evidence would become relevant and admissible only (1) if Daren opened the door by arguing that, even if the 2012 will was valid, Greg revoked it in 2015 and (2) to attack Daren’s credibility on cross-examination. The court rejected Daren’s argument that Crowley Fleck’s factual contentions were affirmative defenses that must be pleaded. ¶17 We first address whether the District Court abused its discretion when it allowed evidence of the 2012 will’s validity to disprove the elements of Daren’s malpractice claim. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.” M. R. Evid. 401. District courts have broad discretion to determine the relevance and admissibility of evidence. State v. Hudon, 2019 MT 31, ¶ 32, 394 Mont. 226, 434 P.3d 273. ¶18 A legal malpractice claim is a type of professional negligence. Labair v. Carey, 2016 MT 272, ¶ 16, 385 Mont. 233, 383 P.3d 226 (Labair II). The plaintiff must prove four essential elements to succeed: “(1) a duty owed by the attorney to the client, (2) a breach of that duty, (3) causation, and (4) damages to the client.” Labair II, ¶ 16 (citation 10 omitted). Causation is satisfied when the plaintiff proves that their injury would not have occurred “but for” the attorney’s conduct. Labair v. Carey, 2012 MT 312, ¶ 24, 367 Mont. 453, 291 P.3d 1160 (Labair I). To show damages, the plaintiff must prove by a preponderance of the evidence that they were injured by the alleged malpractice. Labair II, ¶ 17. Damages must be based sufficiently in fact and not speculation. Labair II, ¶ 17. ¶19 In this case, in addition to proving that Crowley Fleck owed a duty and breached that duty, Daren had to prove that but for Crowley Fleck’s negligence, Greg’s Estate would have received the Engellant Ranch Corporation stock, and the absence of the stock diminished the Estate’s net worth, thereby causing injury. Crowley Fleck’s defense theory was that, even if he could establish duty and breach, Daren could not prove the essential elements of causation and damages. Under Greg’s 2012 will, Shana would receive the entirety of the stock. If the jury determined that the 2012 will was valid, the Estate suffered no injury. Shana would receive the stock regardless of whether Greg gifted it to her during his lifetime or devised it to her via the 2012 will. The Estate never would have owned the Engellant Ranch Corporation stock. ¶20 The District Court did not purport to determine which will should be controlling in the probate; the validity of the 2012 will for purposes of this litigation simply was to determine whether McLean’s alleged negligence in handling the stock transfer caused damages to the Estate. Because evidence about the 2012 will tended to “make more probable or less probable” a fact of consequence—whether Crowley Fleck’s conduct caused the Estate to suffer damage—the District Court did not abuse its discretion when it determined that such evidence was relevant. 11 ¶21 Daren maintains that the District Court nonetheless erroneously concluded that Crowley Fleck’s defense theory was not an affirmative defense. An affirmative defense is “an assertion or argument that, if true, would defeat the plaintiff’s claim even if the allegations in the complaint are true.” Deschamps v. Treasure State Trailer Court, Ltd., 2011 MT 115, ¶ 17, 360 Mont. 437, 254 P.3d 556 (citing Affirmative Defense, Black’s Law Dictionary, (8th ed. 2004)); see also Weaver v. State, 2013 MT 247, ¶ 34, 371 Mont. 476, 310 P.3d 495 (explaining that M. R. Civ. P. 8(c) “is concerned with . . . the pleading of matter that is not within the claimant’s prima facie case.” (internal quotations omitted; citations omitted)). M. R. Civ. P. 8(c) requires defendants to “affirmatively state” any affirmative defenses in their responsive pleading; otherwise, those defenses are waived. Nitzel v. Wickman, 283 Mont. 304, 312, 940 P.2d 451, 456 (1997). Negative defenses, on the other hand, “controvert the adversary’s claim.” Weaver, ¶ 34. Negative defenses are governed by M. R. Civ. P. 8(b), which does not require affirmative pleading. Weaver, ¶ 34. ¶22 Crowley Fleck’s theory involving Greg’s 2012 will controverted the causation and damages elements required for Daren to establish his malpractice claim. It therefore was a negative defense governed by Rule 8(b). Crowley Fleck raised this defense in its answer, pleading that its “alleged actions or omissions did not cause [Daren’s] claimed injuries or damages” and that Daren “did not suffer the damages he claims in this action and cannot recover those damages against Defendants.” The District Court did not err when it concluded that Crowley Fleck properly raised this negative defense and declined to strike the relevant contentions from the pretrial order. 12 ¶23 2. Did the District Court err by permitting the jury to determine that Greg’s 2012 will was his last will and testament when Greg’s 1978 will was admitted to probate? ¶24 Daren claims that the District Court erred by allowing the jury to determine whether Greg’s 2012 will was his last valid will and testament when the probate court already had admitted Greg’s 1978 will to final probate. Daren raises this argument multiple times throughout his briefing, claiming that the District Court lacked “issue jurisdiction” to consider this issue and erred by “put[ting] the probated will aside,” creating a “collateral will contest inside a legal malpractice claim,” and misrepresenting the status of the probate order. Crowley Fleck responds that Daren is in substance arguing collateral estoppel and that he failed to preserve his arguments for appeal. ¶25 Crowley Fleck is correct that though Daren stylizes his argument as whether the court had “issue jurisdiction,” he in substance argues collateral estoppel. Ballas v. Missoula City Bd. of Adjustment, 2007 MT 299, ¶ 17, 340 Mont. 56, 172 P.3d 1232 (“[W]e will not allow a party’s characterization of an issue to eclipse its substance . . . .”). “Collateral estoppel, or issue preclusion, bars the reopening of an issue that has been litigated and determined in a prior suit.” Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281, 130 P.3d 1267 (citation omitted). Application of collateral estoppel requires that in a prior proceeding (1) a court decided the identical issue; (2) there was a final judgment on the merits; (3) the parties were the same or in privity; and (4) the non-moving party had a full and fair opportunity to litigate the issue. Baltrusch, ¶ 18. ¶26 Daren did not raise collateral estoppel in the District Court or address this issue in his appellate briefing. See Norman, ¶ 16 (explaining that to preserve an issue for appellate 13 review, the party seeking review must timely raise the issue in the district court); State v. Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, 133 P.3d 206 (“[I]t is not this Court’s obligation to conduct legal research on appellant’s behalf, to guess as to his precise position, or to develop legal analysis that may lend support to his position.” (internal quotations omitted; citation omitted)). Daren did submit a proposed Instruction 40, stating that the probate court’s order admitting Greg’s 1978 will to probate was “conclusive upon the validity of the will and Greg’s condition.” The District Court, however, rejected this instruction, and Daren has not challenged that ruling on appeal. ¶27 Even broadly construing Daren’s arguments, however, collateral estoppel does not apply. Daren cannot satisfy any of the above elements. First, the probate court did not decide an identical issue. Greg’s heirs signed an acknowledgment stating that Greg’s 1978 will was his last valid will and testament and agreeing to probate that will. The probate court thus was not tasked with resolving whether Greg intended his 1978 or 2012 will to dispose of his Estate. Then, in March 2024, after discovering the different versions of the 2015 revocation documents, Shana petitioned the probate court to vacate its order admitting Greg’s 1978 will and to admit his 2012 will instead. The District Court denied Crowley Fleck’s request to stay trial until the probate court resolved this dispute. But Daren points to no record evidence that the probate court resolved Shana’s petition prior to trial in this case. Instruction 33 provided that “[t]he probate court has not reached any final resolution regarding whether Gregory Engellant’s 2012 will or Gregory Engellant’s 1978 will was Gregory’s last valid will and testament at the time he died.” Though Daren objected to this instruction, Instruction 33’s directive that the probate court 14 had yet to reach a final judgment is accurate and consistent with the record. Daren did not contend otherwise below or on appeal. Because the probate court proceedings were ongoing at the time of trial in this case, Daren has not established that the probate court either considered or finally adjudicated an identical issue. Finally, Crowley Fleck was not a party to the probate proceeding or in privity with any of the parties. And, as a nonparty, Crowley Fleck did not have an opportunity to litigate this issue before the probate court. ¶28 Daren’s argument that the probate proceedings in Cascade County have preclusive effect on Daren’s malpractice claim is therefore incorrect. The probate case is entirely separate from the present action. The probate court has limited and exclusive jurisdiction to administer Greg’s Estate. See § 72-1-202, MCA (“[T]he court has jurisdiction over all subject matter relating to: estates of decedents, including construction of wills and determination of heirs and successors of decedents, and estates of protected persons . . . .”); In re Estate of Cooney, 2019 MT 293, ¶ 6, 398 Mont. 166, 454 P.3d 1190 (“A district court sitting in probate has limited, not general, jurisdiction . . . .”). This Court has recognized, however, that plaintiffs in legal malpractice claims often must prosecute a “suit within a suit” to prove that the alleged malpractice caused actual harm. Labair II, ¶ 17. This is precisely what the present case required. The District Court instructed the jury that if Daren contended that Greg’s 2012 will was invalid, Daren had to prove that Greg lacked “mental competence at the time he executed the 2012 will or that Greg executed the 2012 will under undue influence.” The jury resolved these factual disputes solely to determine whether Crowley Fleck harmed Greg’s Estate, thereby demonstrating the “suit within a suit” nature of this legal malpractice case. Labair II, ¶ 17. 15 ¶29 The jury’s findings in this case, however, have no bearing on the probate court’s orders and do not determine which version of Greg’s will has been or will be probated in the future. The District Court explained this distinction on the first day of trial: I do want to say this is not a probate case. We’re not deciding what all the terms of Greg’s estate plan are. You have a case in Cascade County to do that. Here we’re deciding a question of negligence . . . . We do have to talk about what Greg wanted in terms of his estate plan. As discussed above, the jury’s finding that Greg’s 2012 will was valid was relevant to determine only whether Daren established the essential causation and damages elements of his malpractice claim. The verdict has no effect on the administration of Greg’s Estate, which is within the exclusive authority of the probate court. See § 72-1-202, MCA; In re Estate of Cooney, ¶ 6. ¶30 Notably, Daren did not object at trial to the Special Verdict Form that encompassed this issue. “The failure to object to a verdict form and/or jury instructions at trial results in a waiver of the right to challenge them on appeal.” Turk v. Turk, 2008 MT 45, ¶ 16, 341 Mont. 386, 177 P.3d 1013 (citing Greytak v. RegO Co., 257 Mont. 147, 152, 848 P.2d 483, 486 (1993)). “Objections to jury instructions or special verdict forms must be specific, and must state with particularity the grounds upon which they are made.” Turk, ¶ 16 (citing Greytak, 257 Mont. at 152, 848 P.2d at 486; M. R. Civ. P. 51). See also Horn v. Bull River Country Store Props., 2012 MT 245, ¶ 25, 366 Mont. 491, 288 P.3d 218 (refusing to consider appellant’s arguments “when the verdict form [proposed by the appellant] does not explain the jury’s thought processes.”) 16 ¶31 The Special Verdict Form’s first question asked, “Was Gregory Engellant’s June 8, 2012, Last Will and Testament his valid Last Will and Testament at the time he died?” If the jury answered yes, it was instructed not to answer the remaining questions. Crowley Fleck proposed the Special Verdict form. Daren withdrew his own proposed verdict form and stated that he had no objection to using Crowley Fleck’s verdict form. Because Daren did not object to the Special Verdict Form during the settlement of instructions, he has waived his right to argue on appeal that the court should not have placed this determination in front of the jury. Turk, ¶ 16; Horn, ¶ 25. ¶32 As discussed above, the court did not err when it ruled that evidence addressing the 2012 will’s validity was relevant to refute the elements of Daren’s malpractice claim. The jury weighed the evidence, agreed with Crowley Fleck’s theory, and ultimately found that Greg’s Estate was not injured. The court did not err by permitting the jury to consider this issue, and the jury’s verdict has no effect on the separate probate action. We therefore affirm the court’s judgment on this basis. ¶33 3. Did the District Court commit instructional error by omitting a stipulated fact and providing the incorrect legal standard for a protected person’s capacity to make a gift? ¶34 When determining how to instruct the jury, courts must consider the parties’ theories of the case as well as the evidence presented at trial. Camen, ¶ 21. To warrant reversal, the appellant must establish that an instructional error prejudiced its substantial rights. Camen, ¶ 21. A party has the right to instructions applicable to its theory of the case if supported by credible evidence. Camen, ¶ 21. Daren argues that the District Court erred when it (1) omitted a judicially noticed, stipulated fact from Instruction 10 and (2) provided 17 the incorrect standard in Instruction 35 for the capacity of protected persons to make a gift. We discuss each challenged instruction in turn. Instruction 10 ¶35 Instruction 10 stated that “[a] court may take ‘judicial notice’ of some facts and if it does, no evidence is required to prove them,” followed by a list of the court’s judicially noticed facts. These facts generally concerned background information about Greg’s injury, his assets, and the procedural background of related proceedings. Daren proposed that the list include the following fact: “On October 25, 2019, the probate court granted Daren’s Petition for Formal Probate of Will, Determination of Testacy and Heirs. In its order granting the Petition, the probate court admitted Greg’s January 6, 1978, will to formal probate.” The parties agreed to this fact in the final pretrial order. ¶36 Crowley Fleck objected to the inclusion of this fact at the settlement of instructions, recognizing that though it was an accurate statement, “our understanding of the [c]ourt’s order [is] that . . . there is not a collateral estoppel effect or anything like that . . . .” The court agreed and remarked that the fact was unnecessary. Daren argues on appeal that this omission prejudiced his position. Crowley Fleck responds that the court did not err but, even if it did, this omission did not prejudice Daren because the parties presented evidence that the 1978 will was admitted to probate. ¶37 In his opening statement, Daren stated that “in 1978 Greg wrote what’s called a holographic will . . . . That’s the will that’s been probated in this case.” Daren repeatedly testified that he was probating the 1978 will. For example, on cross-examination, Crowley Fleck’s counsel asked, “The will, Daren, that you’re trying to probate right now is Greg 18 Engellant’s 1978 handwritten will, true?” Daren responded, “I’m not trying to, I am.” On redirect, Daren said that he submitted the 1978 will to probate because he believed it to be Greg’s last valid will. Though Crowley Fleck argued that Daren fraudulently obtained Shana’s and Ken’s consent to probate the 1978 will, no one disputed that the probate court accepted Greg’s 1978 will to final probate. Because the jury heard undisputed evidence that Greg’s 1978 will was admitted to probate, inclusion of this fact in the instruction was unnecessary. Daren suffered no prejudice from its omission. The District Court therefore did not commit reversible error when it excluded from Instruction 10 the fact that Daren was probating the 1978 will. Camen, ¶ 21. Instruction 35 ¶38 Instruction 35 defined a protected person’s capacity to make a gift and will. The court refused the parties’ proposed instructions on this matter and instructed the jury: A person does not lack capacity to make a gift during their lifetime or through a will merely because they are a protected person under a guardianship or conservatorship or because they have previously been adjudicated to be incapacitated. When a person is adjudicated incapacitated and subjected to a full guardianship, then the guardian has the same power and duties that a parent would have for an unemancipated minor child. A person subject to a full guardianship may nevertheless make wills and gifts if they have the capacity to do so. The condition rendering the person incapacitated for purposes of a guardianship may, however, be considered among all other relevant circumstances in determining whether the person had sufficient capacity to make a gift or will. Daren argues that Instruction 35 misstated the law regarding a protected person’s capacity to make a gift. He claims that the instruction “invited the jury to presume” that Greg made 19 a valid stock gift to Shana “without informing the jury of the stringent legal restrictions” that accompanied Greg’s status as a protected person. ¶39 We need not analyze whether Instruction 35 was correct as a matter of law. We will not reverse a court’s judgment if the alleged error is harmless. “[A]n error must cause substantial prejudice to warrant reversal.” Tipp v. Skjelset, 1998 MT 263, ¶ 16, 291 Mont. 288, 967 P.2d 787 (internal quotations omitted; citation omitted). Whether Greg had the capacity to make a gift was relevant only to determining whether Crowley Fleck breached its duty of care. It had no relevance to the jury’s finding on the element of causation—that Greg’s 2012 will was valid. Per the Special Verdict Form’s directive, this was the only issue that the jury considered to reach its verdict. Daren does not argue that Instruction 35 incorrectly states the capacity of a protected person to execute a will. See Hicks, ¶ 22. Because Greg’s gifting capacity was irrelevant to the jury’s verdict, any alleged error in Instruction No. 35 was harmless and does not warrant reversal. Tipp, ¶ 16. ¶40 4. Did the District Court abuse its discretion when it excluded evidence of Crowley Fleck’s settlement agreement with the third-party defendants under M. R. Evid. 403? ¶41 “The public policy of this State is to encourage settlement and avoid unnecessary litigation.” Kruzich v. Old Republic Ins. Co., 2008 MT 205, ¶ 47, 344 Mont. 126, 188 P.3d 983. M. R. Evid. 408 bars parties from using evidence of settlements or settlement offers to prove liability. Tripp v. Jeld-Wen, Inc., 2005 MT 121, ¶ 20, 327 Mont. 146, 112 P.3d 1018. Settlement evidence may be admissible, however, when it is offered for a different purpose, “such as proving bias or prejudice of a witness.” M. R. Evid. 408. Even if offered for a permissible purpose under Rule 408, the court may exclude settlement evidence if “its 20 probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M. R. Evid. 403. Rule 403 favors admission. State v. Peterson, 2024 MT 5, ¶ 21, 415 Mont. 34, 541 P.3d 776. ¶42 Crowley Fleck entered a confidential settlement agreement with Shana and Ken during the pendency of the proceedings below. At trial, Crowley Fleck requested the District Court to prohibit Daren from cross-examining Shana about the settlement agreement. Daren argued that evidence of the settlement agreement was relevant and admissible to show Shana’s bias. Crowley Fleck responded that even if the evidence was relevant and admissible under Rule 408, the court should exclude it under Rule 403. Reasoning that it needed to understand the material terms of the agreement to assess its probative strength for showing Shana’s motive or bias, the court held an ex parte hearing with only the settling parties present. After hearing from counsel, the court excluded any inquiry into the settlement or its terms under Rule 403. It explained, Having heard the terms of the settlement that are material that were disclosed, none of them in my mind materially would alter the bias or motive to testify in a manner favorable to the [E]state’s position or Daren’s position in a way that can’t already be addressed through cross-examination about the really obvious thin[g] is that she’s got, you know, $1.7 million riding on this stock, maybe even more ten years later. The court noted that its ruling also considered the “strong public policy” in favor of settlements and that it did not want to disturb the parties’ expectation that the agreement would remain confidential. 21 ¶43 Dar