ALPINE BUFFALO, ELK & LLAMA RANCH, INC. v. Andersen

• Decision Date: 28 December 2001
• Docket Number: No. 00-319.,00-319.
• Citation: ALPINE BUFFALO, ELK & LLAMA RANCH, INC. v. Andersen, 38 P.3d 815, 2001 MT 307, 307 Mont. 509 (Mont. 2001)
• Parties: ALPINE BUFFALO, ELK AND LLAMA RANCH, INC., a/k/a Alpine Buffalo and Llama Ranch, Inc., Plaintiff and Respondent, v. Lisa ANDERSEN, Defendant and Appellant.
• Court: Montana Supreme Court

38 P.3d 815

2001 MT 307

307 Mont. 509

ALPINE BUFFALO, ELK AND LLAMA RANCH, INC., a/k/a Alpine Buffalo and Llama Ranch, Inc., Plaintiff and Respondent, v.Lisa ANDERSEN, Defendant and Appellant.

No. 00-319.

Supreme Court of Montana.

Submitted on Briefs October 26, 2000.

Decided December 28, 2001.

For Appellant: Francis X. Clinch; Jardine, Stephenson, Blewett & Weaver, Great Falls, MT.

For Respondent: John M. Kauffman; Kastings, Combs & Kauffman, Bozeman, MT.

Chief Justice KARLA M. GRAYdelivered the Opinion of the Court.

¶ 1Lisa Andersen(Andersen) appeals from postjudgment orders entered by the Sixth Judicial District Court, Park County, assigning proceeds from other litigation to Alpine Buffalo, Elk and Llama Ranch, Inc.(Alpine) and declining to consider her Rule 60(b), M.R.Civ.P., motion pending appeal of the assignment order.We affirm.

¶ 2 The issues on appeal are:

¶ 3 1.Did the District Court err in ordering Andersen, a judgment debtor, to assign future proceeds from another cause of action to her judgment creditor?

¶ 4 2.Did the District Court err in concluding that this appeal divested it of jurisdiction to address Andersen'sRule 60(b), M.R.Civ.P., motion?

BACKGROUND

¶ 5 In 1995, Andersen and Dick Andersen, her husband, executed a promissory note in favor of Alpine for $155,000 and secured it with real property.Alpine began proceedings to enforce the terms of the note and foreclose on the real property in late December of 1997, after the Andersens failed to make any payments on the promissory note.The District Court entered a judgment and decree of foreclosure in Alpine's favor in April of 1998, and also ordered the Andersens to pay delinquent property taxes.The next day, the court awarded Alpine a deficiency judgment against the Andersens personally "if there is a balance owed to [Alpine] after the proceeds of the foreclosure sale are applied to [the Andersens'] indebtedness to [Alpine]."

¶ 6 The Andersens' real property was sold at a sheriff's sale in July of 1999.Alpine made the sole bid in the amount of $5,000, leaving a deficiency of $218,458.51, including interest.In February of 2000, the District Court granted Alpine's motion for a deficiency judgment in this amount against Andersen only, Dick Andersen having filed for bankruptcy.Andersen neither appealed the deficiency judgment nor made any payment on it.

¶ 7 Alpine learned that Andersen had a pending malpractice claim against her former legal counsel and sought an assignment of the prospective proceeds from that action and a Debtor's Examination.In two April 13, 2000 orders, the District Court granted both requests.

¶ 8 Andersen filed a notice of appeal from the assignment order on April 18, 2000.On the same day, she also moved to set aside the deficiency judgment pursuant to Rule 60(b), M.R.Civ.P., claiming the judgment was improperly based on the value of the property from the sheriff's sale rather than the fair market value of the property.At the Debtor's Examination on April 19, 2000, Andersen refused to execute an assignment of her interest in the proceeds of the malpractice litigation as ordered by the District Court because she had appealed the assignment.She acknowledged to the hearing referee, however, that she had assigned the same proceeds to at least three other parties.Andersen subsequently failed to file a brief in support of her refusal to execute the assignment as suggested by the hearing referee.

¶ 9 Thereafter, Alpine moved the District Court to hold Andersen in contempt for her failure to comply with its order to assign the proceeds of her litigation.The court determined it did not have jurisdiction to address either Alpine's contempt motion or Andersen's Rule 60(b) motion because both were filed after Andersen appealed the assignment order.Andersen then filed a notice of appeal from the District Court's order declining to consider her Rule 60(b) motion pending her first appeal.

DISCUSSION

¶ 10 1.Did the District Court err in ordering Andersen, a judgment debtor, to assign future proceeds from a separate cause of action to her judgment creditor?

¶ 11 Andersen claims the only authority cited by Alpine for the District Court's assignment order was Rule 70, M.R.Civ.P., and that Rule 70 applies only to a contemptuous party.We described Rule 70 as a "civil contempt statute" in Searight v. Cimino(1988), 230 Mont. 96, 102, 748 P.2d 948, 952, and Alpine effectively concedes the inapplicability of Rule 70 on appeal.

¶ 12 In fact, however, Andersen is incorrect in claiming that Rule 70 was the sole basis for Alpine's motion for assignment of proceeds.Alpine also requested the assignment order "based on the broad equity powers of this Court[.]"In this regard, we held in Smith v. Foss(1978), 177 Mont. 443, 446, 582 P.2d 329, 331-32(citation omitted), that a district court possesses jurisdiction to enter any necessary orders to enforce its judgments.

¶ 13Smith also belies Andersen's secondary argument that the only method by which the judgment against her could be enforced is by writ of execution.Nor does Montana's execution statute support her argument.Section 25-13-201, MCA, provides "[w]hen the judgment is for money or the possession of real or personal property, the same may be enforced by a writ of execution[.]"The statutory language does not state that a writ of execution is the only means by which such a judgment can be enforced.Indeed, use of the word "may" expressly recognizes that other means of enforcement are available.

¶ 14 Andersen also argues, briefly, that the District Court's assignment order is contrary to Montana law holding that tort actions are not assignable.She relies on Coty v. Cogswell(1935), 100 Mont. 496, 501, 50 P.2d 249, 250-51, andYoungblood v. American States Ins. Co.(1993), 262 Mont. 391, 396, 866 P.2d 203, 206, but neither case establishes error by the District Court in ordering the assignment of litigation proceeds here.

¶ 15 The facts in Coty were somewhat complicated.In essence, they involved a writ of attachment of a personal injury cause of action of Maude Adams, while that action remained pending, by Mae Coty in her later-filed action against Adams on a promissory note.Coty obtained the writ of attachment immediately upon the filing of her action against Adams and prior to resolution of that action.Coty,100 Mont. at 499, 50 P.2d at 249.The writ of attachment was obtained pursuant to a 1921 Montana statute permitting such an attachment from persons having in their possession credits or personal property belonging to the other party or owing any debts to the other person.Thus, if a cause of action for personal injuries was a credit or personal property of, or debt owed to the other party, the attachment was proper.Coty,100 Mont. at 500-01, 50 P.2d at 250.We ultimately held, under those facts, that Adams' pending personal injury action did not fall within the statutory definitions and was not subject to levy by means of attachment before judgment was rendered.Coty,100 Mont. at 504, 50 P.2d at 251.Coty has no application here.

¶ 16 First, the assignment order at issue was not entered pursuant to the 1921statutes at issue in Coty or, indeed, any other statute.As discussed above, it was premised on the District Court's equitable power to enter orders necessary to enforce its judgments.

¶ 17 Second, the assignment order does not even purport to assign or attach Andersen's cause of action against her former legal counsel.The order of assignment provides, in pertinent part, "it is hereby ordered that [Andersen] assign to [Alpine] her interest in the proceeds of the litigation filed in the Fourth Judicial District ... per the terms of the Assignment attached hereto[.]"The attached assignment form provides, again in pertinent part,

I hereby assign any and all interest I have in the Monetary Award and/or any funds I may receive from any of the defendants in the Malpractice Action or their insurance carriers to Alpine.This Assignment is limited to those funds necessary to satisfy, in full, the [deficiency] Judgment Amount.

Thus, in this case, unlike in Coty,the District Court ordered the assignment of the proceeds of Andersen's tort action to the extent necessary to satisfy Alpine's deficiency judgment; it did not attach or assign the malpractice cause of action itself.

¶ 18 Andersen's reliance on Youngblood also is misplaced.That case involved an interpretation of a subrogation clause in an automobile liability insurance policy.Youngblood,262 Mont. at 394, 866 P.2d at 204.We ultimately held that subrogation of medical payment benefits under a motor vehicle insurance policy is void in Montana as against public policy, applying public policy considerations relating specifically to medical payment provisions in insurance policies.Youngblood,262 Mont. at 400, 866 P.2d at 208(citation omitted).Clearly, neither the facts nor the law in Youngblood are applicable here.

¶ 19Youngblood does include a discussion of the distinction between subrogation and assignment of a claim, and Andersen's reliance on that case merely quotes the sentence stating that "Montana law has long held that a property damage claim is assignable, while a cause of action growing out of a personal right, such as a tort, is not assignable."Youngblood,262 Mont. at 396, 866 P.2d at 206(citation omitted).Andersen ignores the preceding portion of the discussion, however, which clarifies that an assignment of a claim transfers all legal rights and title to the claim to the assignee.Youngblood,262 Mont. at 396, 866 P.2d at 205-06.As discussed above, the District Court's assignment order here did not assign Andersen's legal malpractice cause of action to Alpine.Alpine did not receive all legal rights and title to that cause of action.The assignment order merely required Andersen to assign future proceeds from her other litigation to Alpine, limited to the...