Blackmore v. Dunster, DA 11–0438.

Citation2012 MT 73,364 Mont. 384,274 P.3d 748
Decision Date03 April 2012
Docket NumberNo. DA 11–0438.,DA 11–0438.
PartiesTana BLACKMORE, Plaintiff and Appellant, v. Marvin DUNSTER, Defendant and Appellee.
CourtUnited States State Supreme Court of Montana

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.


[274 P.3d 749]

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 BAKER delivered the Opinion of the Court.

[364 Mont. 384] ¶ 1 Appellant Tana Blackmore appeals an order from the Thirteenth [364 Mont. 385] Judicial District Court setting aside the levying sale, and her purchase, of Appellee Marvin Dunster's pending personal injury cause of action. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 Blackmore filed a complaint against Dunster in Yellowstone County Cause No. 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

[274 P.3d 750]

currently before the Honorable Gregory R. Todd in the Thirteenth Judicial District Court as Cause No. DV 10–1504.

¶ 4 On November 15, 2010, the Clerk of the District Court issued a Writ of Execution in Cause No. 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 Cause No. 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 Cause No. 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

¶ 6 We 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...

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5 cases
  • Payne v. Berry's Auto, Inc.
    • United States
    • Montana Supreme Court
    • 11 Junio 2013
    ...¶ 25, 334 Mont. 489, 148 P.3d 643 (citation omitted). We conduct a de novo review of a court's mixed questions of law and fact. Blackmore v. Dunster, 2012 MT 73, ¶ 6, 364 Mont. 384, 274 P.3d 748;BNSF Ry. v. Cringle, 2012 MT 143, ¶ 16, 365 Mont. 304, 281 P.3d 203. ¶ 12 “We will not reverse a......
  • State v. Whalen
    • United States
    • Montana Supreme Court
    • 5 Febrero 2013
    ...to that position.” Johansen v. Dept. of Nat. Resources & Conserv., 1998 MT 51, ¶ 24, 288 Mont. 39, 955 P.2d 653;see also, Blackmore v. Dunster, 2012 MT 73, ¶ 7, 364 Mont. 384, 274 P.3d 748 (quoting Estate of Harmon, 2011 MT 84, ¶ 28, 360 Mont. 150, 253 P.3d 821 (citing M.R.App. P. 12(1)(f))......
  • Beehler v. E. Radiological Assocs., P.C.
    • United States
    • Montana Supreme Court
    • 13 Noviembre 2012
    ...¶ 39, 362 Mont. 53, 261 P.3d 984. A district court's application of a statute is reviewed to determine whether it was correct. Blackmore v. Dunster, 2012 MT 73, ¶ 6, 364 Mont. 384, 274 P.3d 748. We review summary judgment rulings de novo. Estate of Willson v. Addison, 2011 MT 179, ¶ 11, 361......
  • Rosendale v. Victory Ins. Co.
    • United States
    • Montana Supreme Court
    • 31 Marzo 2020
    ...a district court’s interpretation and application of a statute to determine whether the court’s interpretation is correct. Blackmore v. Dunster , 2012 MT 74, ¶ 6, 364 Mont. 384, 274 P.3d 748. We also apply de novo review to a district court’s legal conclusion. Blackmore , ¶ 6.¶10 "The purpo......
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