Britton v. Brown

• Decision Date: 12 February 2013
• Docket Number: No. DA 12–0192.,DA 12–0192.
• Parties: Helen L. BRITTON and John R. Britton, or their successors, as Trustees of the Britton Joint Trust, Plaintiffs, Counter–Claim Defendants and Appellees, v. Elise C. BROWN, Defendant, Counter–Claimant and Appellant.
• Court: Montana Supreme Court

368 Mont. 379

300 P.3d 667

Helen L. BRITTON and John R. Britton, or their successors, as Trustees of the Britton Joint Trust, Plaintiffs, Counter–Claim Defendants and Appellees,

v.Elise C. BROWN, Defendant, Counter–Claimant and Appellant.

No. DA 12–0192.

Supreme Court of Montana.

Submitted on Briefs Nov. 21, 2012.

Decided Feb. 12, 2013.

For Appellant: Maxon R. Davis; Davis, Hatley, Haffeman & Tighe, P.C.; Great Falls, Montana, Jack R. Tuholske; Attorney at Law; Missoula, Montana, Gregory J. Miner; Batemen Seidel, P.C.; Portland, Oregon.

For Appellees: William T. Wagner; Garlington, Lohn & Robinson, PLLP; Missoula, Montana, Kathleen Unrein; Attorney at Law; San Anselmo, California.

Justice BETH BAKER delivered the Opinion of the Court.

[368 Mont. 380]¶ 1 Elise C. Brown (Brown) appeals the Final Partition Judgment of the Twentieth Judicial District Court, Lake County, which confirmed almost all of a report that partitioned 10.88 acres of property on and around Flathead Lake that Brown jointly owned with her sister, Helen L. Britton (Britton), as tenants in common. We reverse and remand for further proceedings.

¶ 2 The dispositive issue on appeal is whether the District Court erred by denying Brown's request for an evidentiary hearing after Brown had presented offers of proof challenging the referees' final partition report.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 Because there was no trial or evidentiary hearing, we draw the facts from the referees'findings of fact and conclusions of law and the documents in the District Court record.

¶ 4 Since 1992, Britton and Brown have jointly owned 10.88 acres of real property on Flathead Lake as tenants in common.¹ The property—which the parties refer to as “the homestead”—contains approximately 1,270 feet of lakefront property as well as a cabin built in 1910 and other improvements. It has three distinct topographical lakefront features: (1) a rocky point overlooking Flathead Lake at the northern end of the property; (2) a narrow, 70–foot–wide “neck” of land that connects the rocky point with the southern portion of the property; and (3) a gravel beach to the south of the rocky point that runs along the lake for 287 feet. The cabin and other improvements are located behind the gravel beach. The parties' grandparents purchased the homestead in the 1940s and ever since it has been used by the family.

¶ 5 Britton filed a partition action in October 2007, seeking equitable partition of the homestead or, if the court determined that partition was not possible, a forced sale of the property and equal division of the net sale proceeds. Brown answered Britton's partition action by acknowledging that she co-owned the property as a joint tenant and by admitting that the homestead could be partitioned equitably by the district court. Brown also filed a counter-claim alleging that Britton had failed to pay her share of the expenses used to maintain the homestead. Britton has denied those allegations and the counterclaim is not at issue in this appeal.²

¶ 6 In June 2009, the District Court entered an initial case scheduling order, which set the case up as an ordinary civil matter. It set deadlines for the submission of expert witness names, the names of proposed referees, discovery, and proposed exhibits. It also set a date for a hearing to be held on any motions that might be submitted and further set a date for a partition hearing to be held if requested by the partition referees.

¶ 7 The District Court then appointed three partition referees as agreed upon by the parties and as contemplated by § 70–29–202, MCA. Britton and Brown each were allowed to appoint one referee, and in May 2010 those referees selected the third referee. The District Court directed the partition referees “to consult with each other and counsel in this case for purposes of arranging an appropriate inspection and investigation of the property and taking such action as is appropriate for the preparation of the required partition referees' report to the Court[.]”

¶ 8 The referees then fashioned a plan on how to proceed. They asked Britton and Brown to submit their proposals for partitioning the property and counsel for both parties submitted their respective suggestions. The referees together went to the premises twice for an inspection of the property, they met in person several times to discuss the matter and they solicited information from various sources regarding the potential costs of developing the property. Once the referees obtained all of the information they believed to be relevant, they issued to the parties a preliminary report along with a request that Britton and Brown provide feedback on the proposal.

¶ 9 Brown responded by submitting comments questioning the recommendations in the preliminary report; her response also included several exhibits purporting to show that some of the conclusions the referees relied upon in their preliminary report were erroneous. Brown alleged that the referees' proposed partition was inequitable-she disagreed with the referees' stated belief that lakefront property values differed depending on the terrain of the property and attached an appraisal report that argued each foot of lakefront property was equal in value. She also noted that the preliminary report bisected existing structures and utilities and submitted engineering reports that called into question the referees' determination that it would cost $350,000 to develop the rocky point. Finally, Brown argued that her proposal should be adopted because Britton had not objected to it.

¶ 10 The referees submitted their final report to the District Court on April 25, 2011. The report recommended that the property be divided into two parcels. Parcel A included a total of 1,023 feet of lakefront—663 feet of the rocky point, 318 feet in the narrow “neck” and 42 feet on the gravel beach—valued by the referees at $1,236,000.00. Parcel B included 245 feet of lakefront on the gravel beach valued at $1,235,000.00. The property line between the two parcels bisected the cabin, but the referees noted that “any of the structures could be relocated.” The final report did not address access to the proposed parcels.

¶ 11 The referees also specifically explained why they disagreed with Brown's appraisal report that argued each foot of lakefront property should be valued the same. The referees noted their objection to the appraiser's characterization of the rocky point and stated that the point would “present significant obstacles for anyone wishing to build on it,” in stark contrast to the value and marketability of the gravel beach. Because of the unique shape and characteristics of the property, the referees “strongly encourage[d] the Court to view the property in person.”

¶ 12 In response, Brown filed notice of her objections to the referees' final report and requested that “the Court convene a scheduling conference to set a trial date in this matter.” Brown later filed a list of objections to the referees' final report and requested that she be allowed to depose the referees. Britton responded by agreeing with the two-parcel division proposed by the referees and asked that Brown be prohibited from deposing the referees.

¶ 13 On June 9, 2011, the District Court held a scheduling conference to set a date and time to view the property. The court decided that it would view the property on July 20, 2011, with the referees present. The court also stated that while counsel for Britton and Brown could be present, the court would not speak with the attorneys. The District Court held in abeyance Brown's motions regarding the deposition of the referees until further notice. During the site visit, Brown's attorney approached the court and advocated on behalf of his client despite an order prohibiting such conduct. After realizing who the attorney was and that its order had been violated, the court also allowed Britton's counsel to advocate for his client's position.

¶ 14 After the District Court viewed the property, it issued another order of abeyance. The order declared that “[a]ll outstanding motions, requests for hearing[s], or scheduling conferences currently pending in this cause are hereby held in abeyance until August 25, 2011.” The order also stated that, although the parties could ask the referees to consider investigating certain claims, the referees were not required “to evaluate other experts hired by the parties” and the referees could “follow up on or ignore the requests.” The court also noted that it was “inclined to confirm the referees [ sic ] report.”

¶ 15 On August 24, 2011—one month after the District Court entered its order of abeyance—Brown filed a motion for a trial on the partition action and her underlying counterclaim. Brown also filed affidavits from eleven individuals, some of whom Brown contends were well-qualified experts. Those affidavits attacked a number of the conclusions relied upon by the referees in their final report. Brown explained in her appeal that the affidavits were filed as “an offer of proof showing the testimony and evidence [Brown] intended to present and the reason a trial was necessary to allow her the opportunity to create a record of admissible evidence as due process requires.” The District Court did not respond to the motion.

¶ 16 On October 14, 2011, the District Court entered an order confirming the partition proposed by the referees. The court's order explained that it originally had intended to approve the referees' proposal and that “the viewing of the property merely settled the Court's intention of confirming the Referees' report pursuant to § 70–29–211, MCA.” The District Court then ordered Britton to “prepare a final judgment based on the two parcel division recommendation of the Referees.”

¶ 17 Britton drafted a proposed final partition judgment based on the referees' final report and suggested that Brown be allowed to choose the parcel she wanted. Brown...