Blackmore v. Dunster

• Decision Date: 03 April 2012
• Docket Number: No. DA 11–0438.,DA 11–0438.
• Citation: 2012 MT 73,364 Mont. 384,274 P.3d 748
• Parties: Tana BLACKMORE, Plaintiff and Appellant, v. Marvin DUNSTER, Defendant and Appellee.
• Court: Montana Supreme Court

2012 MT 73

274 P.3d 748

364 Mont. 384

Tana BLACKMORE, Plaintiff and Appellant,

v.Marvin DUNSTER, Defendant and Appellee.

No. DA 11–0438.

Supreme Court of Montana.

Submitted on Briefs Feb. 29, 2012.Decided April 3, 2012.

For Appellant: William J. O'Connor, II; O'Connor & O'Connor, P.C.; Billings, Montana.

For Appellee: Elizabeth J. Honaker; Honaker Law Firm; Billings, Montana.

Justice BETH BAKERdelivered the Opinion of the Court.

[364 Mont. 384]¶ 1AppellantTana Blackmore appeals an order from the Thirteenth Judicial District Court setting aside the levying sale, and her purchase, of AppelleeMarvin Dunster's pending personal injury cause of action.We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 Blackmore filed a complaint against Dunster in Yellowstone County CauseNo. DV 07–1158, alleging damages arising from an assault and unlawful restraint in May 2006.At the conclusion of trial, the jury returned a verdict awarding Blackmore $3,500.On December 7, 2009, the District Court, the Honorable Susan P. Watters presiding, entered a judgment against Dunster in the amount of $3,117.81, deducting from the jury's award restitution Dunster already had paid and costs assessed against Blackmore due to an earlier offer of judgment.After Blackmore tried unsuccessfully to collect on the judgment, the District Court granted Blackmore's motion to conduct a Debtor's Examination.According to Blackmore, Dunster testified he had transferred all of his property and money to either his children or girlfriend.Blackmore was unable to recover any proceeds from Dunster toward satisfaction of the judgment.

¶ 3 On August 31, 2010, Dunster filed an unrelated action against the Yellowstone County Sheriff's Office, the Billings Police Department, and three persons individually, for false arrest and imprisonment, punitive damages and attorney's fees.That case is currently before the Honorable Gregory R. Todd in the Thirteenth Judicial District Court as CauseNo. DV 10–1504.

¶ 4 On November 15, 2010, the Clerk of the District Court issued a Writ of Execution in CauseNo. 07–1158 in favor of Blackmore in the amount of $3,545.14, the additional amount reflecting post-judgment interest and costs.The writ directed a sheriff or levying officer to satisfy the balance due out of “the PERSONAL PROPERTY of the debtor NOT EXEMPT FROM EXECUTION.”The writ specifically instructed the sheriff to seize and sell Dunster's cause of action against Yellowstone County.On December 10, 2010, Blackmore's attorney, William O'Connor, sent a letter to Dunster's attorney, Elizabeth Honaker, advising her of the anticipated sale.The levying officer issued a certificate the day of the sale, December 17, 2010, stating Blackmore had purchased Dunster's cause of action for fifty dollars.O'Connor later filed a motion in CauseNo. 10–1504 seeking to be substituted as counsel, and to have Blackmore substituted as plaintiff, in Dunster's cause of action.Judge Todd denied his motion on the ground that the levying sale was void under Montana law.

[364 Mont. 386]¶ 5 On February 17, 2010, Honaker filed a motion in CauseNo. 07–1158 to set aside the sale of Dunster's cause of action.After briefing and oral argument on the issue, the court granted Dunster's motion.In a memorandum accompanying the order, Judge Watters initially questioned whether hers was the proper court to decide the matter as the sale was for Dunster's separate cause of action pending before Judge Todd.Nonetheless, she proceeded to the merits of the matter and set the sale aside on the ground that a pending personal injury action is not subject to levy before judgment is entered.Judge Watters expressly adopted Judge Todd's analysis in concluding the sale was void.As additional grounds for her decision, she stated the sale was invalid because the levying officer failed to follow proper statutory procedures.Blackmore appeals Judge Watters' order.

STANDARD OF REVIEW

¶ 6We review a district court's interpretation and application of a statute to determine whether the court's interpretation is correct.LHC, Inc. v. Alvarez,2007 MT 123, ¶ 13, 337 Mont. 294, 160 P.3d 502.We also apply de novo review to a court's legal conclusions and mixed questions of law and fact.City of Billings v. Staebler,2011 MT 254, ¶ 8, 362 Mont. 231, 262 P.3d 1101.

DISCUSSION

¶ 7 As a preliminary matter, Blackmore suggests the District Court did not have jurisdiction to decide the issue before it; therefore, the court's order setting aside the levying sale was invalid.Blackmore relies on a statement in the court's order, which did not mention jurisdiction: “this [c]ourt does not believe the motion is properly before it.”Blackmore cites no authority for her argument the court lacked jurisdiction.“It is not our obligation to conduct legal research or develop legal analysis supporting a party's position.”In re Estate of Harmon,2011 MT 84, ¶ 28, 360 Mont. 150, 253 P.3d 821(citing M.R.App. P. 12(1)(f)).Assuming Blackmore's contention is that the court lacked subject matter jurisdiction, an issue this Court may address sua sponte,(M.R.Civ. P. 12(h)(3)), we find no merit in this argument.In re Alexander,2011 MT 1, ¶ 24, 359 Mont. 89, 246 P.3d 712(“The district court has ‘jurisdiction to enter any necessary orders to enforce its judgments.’ ”(quotingAlpine Buffalo, Elk & Llama Ranch, Inc. v. Andersen,2001 MT 307, ¶ 12, 307 Mont. 509, 38 P.3d 815)).

¶ 8 Blackmore contends the District Court's ruling was in error because Montana law authorized the sale.Dunster argues the sale was void based both on procedural deficiencies and substantively under this Court's precedent.We agree with Dunster's substantive claim and resolve the appeal on that basis.

¶ 9We have previously addressed whether a pending personal injury cause of action may be subject to execution in satisfaction of a judgment.In Coty v. Cogswell,100 Mont. 496, 503, 50 P.2d 249, 251(1935), this Court stated:

We are not cited to, nor have we been able to find, a single case holding that a bare cause of action for personal injuries may be levied on by way of attachment or execution.On the contrary, the authorities universally seem to hold that an unliquidated claim for damages in tort, such as an action for personal injuries, is not subject to attachment.

Blackmore asserts that, although we have never expressly overruled our decision in Coty, that case is effectively no longer good law as it was based upon Montana statutes in effect in 1935 that have since been modified.Blackmore states we should decline to follow the rule articulated in Coty because the old code sections have “significantly changed.”We disagree with this characterization.Blackmore cites several statutes in support of her argument, including §§ 1–1–205and25–13–501, MCA.However, a review of these laws demonstrates they remain nearly identical to the language discussed in Coty except for minor grammatical changes.See§§ 16, 9424, RCM(1921).Blackmore offers no discussion or analysis of how the laws substantively have changed, nor is any significant alteration evident from our review.

¶ 10 Moreover, subsequent cases have reaffirmed the continued vitality of Coty's central holding.Baker v. Tullock,106 Mont. 375, 378–79, 77 P.2d 1035, 1036(1938)(“This court has held that a cause of action is subject to execution, excepting those based upon tort.”(citation omitted));Allstate Ins. Co. v. Reitler,192 Mont. 351, 356, 628 P.2d 667, 670(1981)(invalidating medical payments subrogation clause, on the authority of Coty, because it effectively assigned the insured's right to recover against a third-party tortfeasor);Youngblood v. American States Ins., Co.,262 Mont. 391, 396, 866 P.2d 203, 206(1993)(“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.”)Later, in Alpine,we distinguished Coty but nevertheless acknowledged the proposition for which it stood: “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.”Alpine,¶ 17.Despite Blackmore's assertions, we find no language in Alpine indicating any erosion of the principle articulated in Coty.

¶ 11 Blackmore also cites Brockie v. Omo Constr., Inc.,268 Mont. 519, 887 P.2d 167(1994), andRunstrom v. Allen,2008 MT 281, 345 Mont. 314, 191 P.3d 410, to support her argument that personal injury claims may be transferred.However, these cases pertain to Montana's survivorship statute, § 27–1–501, MCA, which preserves the ability of a decedent's personal representative to pursue the decedent's right to recovery in a civil action.Blackmore is not in a position akin to a “survivor,” and the survivorship statute does not independently confer a right to compel transfer of a personal injury action.Therefore, these cases do not guide our...