Catherine E.W. Hansen Trust v. Ward
| Decision Date | 19 May 2015 |
| Docket Number | No. DA 14–0505.,DA 14–0505. |
| Citation | 349 P.3d 500,2015 MT 131,379 Mont. 161 |
| Parties | CATHERINE E.W. HANSEN TRUST, Plaintiff and Appellant, v. Michael WARD; Theodora Tarbet, Timshel Tarbet, Tarbet Schrier LLC, Dale Tarbet, Estate of Dale Tarbet and all persons known or unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the complaint adverse to plaintiff's title thereto, whether such claim or possible claim be present or contingent, Defendants and Appellees. |
| Court | Montana Supreme Court |
For Appellant: Jeffrey Wade Dahood, Knight & Dahood, Anaconda, Montana.
For Appellees: Theodora Tarbet, Timshel Tarbet and Tarbet Schrier, LLC: Kevin S. Jones, Joseph D. Houston, Christian, Samson & Jones, PLLC, Missoula, Montana.
For Appellee Michael Ward: William M. Kebe, Jr., Marie Kagie–Shutey, Corette, Black, Carlson & Mickelson, Butte, Montana.
¶ 1 Catherine E.W. Hansen Trust appeals from the judgment of the Third Judicial District, Anaconda–Deer Lodge County, granting summary judgment in favor of Theodora Tarbet, Timshel Tarbet, and Tarbet Schrier, LLC. Hansen Trust also appeals from the District Court's order directing payment of the tax lien and entry of final judgment, as well as the order denying Hansen Trust's post-judgment motions.
¶ 2 We affirm.
¶ 3 Issue One: Whether the District Court erred when it entered summary judgment and declared the tax deed void.
¶ 4 Issue Two: Whether the District Court erred when it directed payment of Hansen Trust's tax lien.
¶ 5 Issue Three: Whether the District Court erred when it denied Hansen Trust's post-judgment motions.
¶ 6 In March 2007, Dale Tarbet sold two lots located in Anaconda, Montana, to Michael Ward. Ward executed a promissory note in favor of Dale Tarbet and secured the transaction using a Montana Trust Indenture. Under the Trust Indenture, Ward was the designated owner and taxpayer, Tarbet was the beneficiary, and Montana Abstract and Title Company served as the trustee of the property. The Trust Indenture was recorded on April 17, 2007. An addendum to the Trust Indenture substituted Tarbet Schrier, LLC, for Dale Tarbet as beneficiary in the Trust Indenture. Appellees Theodora Tarbet and Timshel Tarbet are members of Tarbet Schrier, LLC (collectively “Tarbets”).
¶ 7 Michael Ward failed to pay property taxes in 2008, 2009, and 2010. Anaconda–Deer Lodge County placed a tax lien on the property for the delinquent taxes. On September 14, 2011, the Anaconda–Deer Lodge County Treasurer assigned the tax lien to the Catherine E.W. Hansen Trust (“Hansen Trust”). Over a year later, on November 30, 2012, the County Treasurer issued a tax deed to Hansen Trust on the property, which was recorded the same day.
¶ 8 In February 2013, Hansen Trust filed a complaint to quiet title to the tax deed. Tarbets answered and asserted that the Trust had failed to provide the notice required under Montana law.
¶ 9 In June 2013, Tarbets filed a motion for summary judgment. They argued that the tax deed was void due to Hansen Trust's failure to provide written notice of the issuance of the tax deed to the trustee, Montana Abstract and Title Company. The District Court denied the motion, concluding that there was uncertainty regarding a material fact of whether a title guarantee existed for the property and whether it listed Montana Title and Abstract Company.
¶ 10 On August 21, 2013, Hansen Trust filed a motion requesting that Tarbets deposit money with the District Court pursuant to § 15–18–411, MCA. Hansen Trust sought a deposit of $20,859.24 to cover taxes, interest, and penalties, as well as the cost of publication, the court filing fee, property insurance, trust administrative expenses, and attorney fees. The District Court partially granted the motion, holding that Hansen Trust was entitled to the money necessary to cover taxes, interest, penalties, and costs, but not filing fees, publication, property insurance, trust administrative expenses, or attorney fees. The District Court ordered Tarbets to deposit $6,783.91 with the court and set a show cause hearing. Tarbets agreed to deposit the amount and moved to vacate the show cause hearing. Hansen did not oppose the motion to vacate.
¶ 11 In November 2013, Hansen Trust filed a motion for summary judgment. Tarbets filed a cross-motion for summary judgment, requesting that the District Court declare the tax deed void. At this point in the case, discovery established that Hansen Trust had not obtained a property title guarantee for the two lots. It was also undisputed that Hansen Trust did not notify Montana Abstract and Title Company of the tax lien. After a hearing on the motions, the District Court granted Tarbets' cross-motion for summary judgment. The District Court concluded that the purchaser of a tax lien must obtain a property title guarantee and provide notice to all parties, except utilities, listed in the title guarantee. The Court found that Hansen Trust had not obtained the required property title guarantee and declared the tax deed void as a matter of law.
¶ 12 After the District Court granted Tarbets' summary judgment, the only remaining issue was the redemption amount of Hansen Trust's tax lien. On April 21, 2014, Tarbets filed a motion for an order directing payment of the tax lien and entry of final judgment. In their motion, Tarbets requested that Hansen Trust receive the $6,783.91 deposited with the court along with the accrued interest on the deposit, plus any additional taxes paid by Hansen Trust since the deposit. The District Court granted the motion and Tarbets mailed Hansen Trust a check for $1,942.63, representing $465.43 in accrued interest on the deposit and $1,477.20 in additional taxes. The accrued interest was calculated from the date of the deposit, October 21, 2013. In total, Hansen Trust received $8,726.54. On June 27, 2014, the District Court entered a final judgment declaring Hansen Trust's tax deed void, establishing the amount for redemption of the tax lien, and directing that a certificate of redemption be recorded upon Hansen Trust's receipt of the redemption amount.
¶ 13 After the District Court entered a final judgment, Hansen Trust filed three post-judgment motions.1 In a September 2014 order, the District Court denied the first two motions, concluding the motions constituted “efforts to submit information, theories, or arguments that were not, but could have been, offered during the pendency of the motion on which the District Court had previously ruled.”
¶ 14 After the District Court denied those motions, Hansen Trust filed a notice of appeal. Hansen Trust thereafter submitted the third post-judgment motion, arguing that the District Court could resume jurisdiction pursuant to M.R. Civ. P. 62.1(a)(3) for the purpose of considering Hansen Trust's constitutional challenge to § 15–18–212, MCA. The District Court again denied the motion and “declined to substantively address Plaintiff's constitutional arguments raised for the first time post judgment.”
¶ 15 We review a grant of summary judgment de novo. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 36, 345 Mont. 12, 192 P.3d 186 (citations omitted). “Where there is a cross-motion for summary judgment, we review a district court's decision to determine whether its conclusions were correct.” Baxter v. State, 2009 MT 449, ¶ 8, 354 Mont. 234, 224 P.3d 1211 (citations omitted). Summary judgment is proper when the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lorang, ¶ 37; M.R. Civ. P. 56(c).
¶ 16 The moving party must first establish the “complete absence of genuine issues of material fact.” Lorang, ¶ 37 (citations omitted). When making this assessment, we view the evidence in the light most favorable to the non-moving party. Lorang,¶ 38 (citations omitted). If the moving party satisfies its burden, the non-moving party must “set forth specific facts, not merely denials, speculation, or conclusory statements, in order to establish that a genuine issue of material facts does indeed exist.” Lorang, ¶ 39; M.R. Civ. P. 56(e). Ultimately, if no issue of material fact exists, the Court must decide whether the facts entitle the moving party to judgment as a matter of law. Lorang, ¶ 39; M.R. Civ. P. 56(c).
¶ 17 This Court reviews a district court's legal conclusion for correctness. Certain v. Tonn, 2009 MT 330, ¶ 9, 353 Mont. 21, 220 P.3d 384.
¶ 18 At the outset, we must address Hansen Trust's attempt to argue issues raised for the first time after entry of judgment. Hansen Trust argues on appeal, and in its post-judgment motions before the District Court, that the 2009 amendment to § 15–18–212, MCA, is unconstitutional. This issue was raised for the first time in a post-judgment motion.
¶ 19 Generally, this Court will not address an issue raised for the first time on appeal. Day v. Payne, 280 Mont. 273, 276, 929 P.2d 864, 866 (1996) (citations omitted). This rule “applies to both substantive and procedural matters, as well as to a change in a party's theory of the case.” Day, 280 Mont. at 276, 929 P.2d at 866 (citations omitted). The Court has consistently held that it is unfair to fault the trial court for an error when it was never given the opportunity to consider the issue, nor is it fair to permit a party to “remain silent in the trial court ... and subsequently assert error on appeal if the outcome in the trial court is unfavorable.” Day, 280 Mont. at 277, 929 P.2d at 866 (citations omitted); Dayberry v. City of E. Helena, 2003 MT 321, ¶ 24, 318 Mont. 301, 80 P.3d 1218 (citations omitted). An exception to this general rule exists where “an alleged error affects the substantial rights of a litigant.” Day, 280 Mont. at 277, 929 P.2d at 866 (citations omitted). However, “the Co...
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