Dorwart v. Caraway

Decision Date31 October 2002
Docket NumberNo. 01-199.,01-199.
Citation312 Mont. 1,58 P.3d 128,2002 MT 240
PartiesRussell Edward DORWART and Harry Dorwart, Plaintiffs, Appellants and Cross-Respondents, v. Paul CARAWAY, individually, and as a deputy in the Stillwater County Sheriff's Office; Danny Ames, individually, and as a deputy in the Stillwater County Sheriff's Office; Cliff Brophy, individually, and as Sheriff of Stillwater County, Montana; and County of Stillwater, State of Montana, Defendants, Respondents and Cross-Appellants.
CourtMontana Supreme Court

Gary R. Thomas, Thomas Law Office, P.C., Red Lodge, Montana, For Appellants.

Steven R. Milch, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana, For Respondents.

Lawrence A. Anderson, Attorney at Law, Great Falls, Montana, For Amicus Montana Trial Lawyers Association.

Stanley T. Kaleczyc, Mary K. Giddings, Browning, Kaleczyc, Berry & Hoven, Helena, Montana, For Amicus Montana Defense Trial Lawyers Association.

Wade Dahood, Attorney at Law, Anaconda, Montana, For Amicus Bill of Rights Committee.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 This matter was previously before the Court in Dorwart v. Caraway, 1998 MT 191, 290 Mont. 196, 966 P.2d 1121 (Dorwart I). There, we held that the Plaintiffs' state constitutional rights to due process, privacy and the right to be free from unreasonable searches and seizures were violated. We remanded to the District Court for the Twenty Second Judicial District in Stillwater County for further consideration of the Plaintiffs' claims for damages and attorney's fees caused by the violation of those rights. Both parties filed motions for summary judgment. The District Court held that a private right of action is available for the violation of the state constitutional rights to privacy and to be free from unreasonable searches and seizures and that damages are recoverable. However, the Court also held that the Defendants were entitled to immunity pursuant to § 2-9-103(1), MCA, for having reasonably relied on the previous law of Montana. Therefore, the District Court granted summary judgment to the Defendants, dismissed the Plaintiffs' claims for damages and denied Plaintiffs' claims for attorney's fees. Plaintiffs appeal the District Court's order dismissing their complaint by summary judgment. Defendants cross-appeal the District Court's conclusion that there exists in Montana a cause of action and claim for damages for violation of state constitutional rights. We affirm in part and reverse in part the order and judgment of the District Court.

¶ 2 The issues on appeal are:

¶ 3 1. Does violation of rights guaranteed by the Montana Constitution give rise to a cause of action for damages?

¶ 4 2. If the answer to the previous question is in the affirmative, did the Defendants have statutory immunity based on the facts in this case pursuant to § 2-9-103(1), MCA?

¶ 5 3. If there is a cause of action for damages caused by violation of those rights guaranteed by the state constitution, and if Defendants in this case were not immune pursuant to § 2-9-103(1), MCA, should this Court create qualified immunity analogous to federal qualified immunity as applied in claims pursuant to 42 U.S.C. § 1983, and, if so, were Defendants in this case entitled to summary judgment on that basis?

¶ 6 4. Did the District Court err when it denied Plaintiffs' claim for an award of attorney's fees?


¶ 7 The following facts are taken, in part, from our prior decision in Dorwart I and are, in part, based on further discovery completed following remand by this Court to the District Court.

¶ 8 The Plaintiff, Russell Dorwart, was named as a defendant in two separate Stillwater County Justice Court actions. Default judgments were entered against him in both actions and writs of execution were issued to enforce those judgments on March 12 and April 9, 1991, respectively.

¶ 9 On the evening of April 11, 1991, while operating his motor vehicle, Russell Dorwart was stopped by the Defendant, Deputy Sheriff Danny Ames, and served with the two writs of execution. Ames also arrested Dorwart for driving under the influence of alcohol, seized the pickup truck and transported Dorwart to the Stillwater County Jail. After Dorwart was incarcerated in the jail, either Ames or the Defendant, Deputy Sheriff Paul Caraway, advised Dorwart that the two of them were going to his home to seize property pursuant to the writs of execution. They were advised by Dorwart that the only unlocked door was the back door but that they should be careful not to let his cat out when they entered his home. Dorwart also advised the deputies that his wallet and driver's license were on the dashboard of his mother's car, which was parked in his driveway. Although the deputies claim to have interpreted Dorwart's remarks as permission to enter his home, they did not directly ask his permission nor did he grant it. Caraway and Ames worked for the Defendant, Stillwater County Sheriff Cliff Brophy.

¶ 10 Ames and Caraway proceeded to Dorwart's residence, entered the house and the garage, and seized various items of personal property pursuant to the writs of execution. They also took Dorwart's wallet from the dashboard of the car.

¶ 11 In depositions taken, subsequent to remand, Caraway testified that he believed he had authority to enter Dorwart's house based on his conversation with Dorwart, his conversation with Justice of the Peace, Marilyn Kober, and the writ of execution that Kober issued. However, he conceded that Kober's only order was the writ of execution she issued and all he was otherwise told by her was that he should go to Dorwart's house to seize his property. He conceded that his conversation with Dorwart occurred while Dorwart was in jail and that after he or Ames told Dorwart they were going to his house to seize property, he was simply told to use the back door because the other doors were locked and to be careful that the cat did not get out. Caraway realized that his oral conversation with Kober was not by itself sufficient to authorize entry into a home, he had no warrant to enter Dorwart's home, and he agreed that the writ of execution did not specifically authorize him to enter Dorwart's residence and search it.

¶ 12 Ames testified that he believed he was authorized to enter Dorwart's home pursuant to the writs of execution and based on his conversation with Dorwart. However, he also acknowledged that the writs did not specifically provide that he could enter the house and that the only thing he was told by Dorwart was to use the back door and not let the cat out after Dorwart had been advised that the deputies were going to his house to seize property. Both Caraway and Ames testified that upon entry into Dorwart's home, neither made any effort to distinguish between exempt and nonexempt property.

¶ 13 Dorwart's pickup truck, its contents and his wallet were returned to him several days later. On April 18, 1991, Dorwart filed in Justice Court a Motion for Release of Property and to Quash the Writs of Execution, supported by an Affidavit of Exemption and other affidavits, asserting that the personal property which Ames and Caraway had seized from his house and garage was either exempt from execution or did not belong to him. On September 30, 1991, the Justice Court ordered that all of the property seized from Dorwart's house and garage be returned to its rightful owners. Dorwart subsequently retrieved the property from the jail.


¶ 14 On April 5, 1993, the Plaintiffs, Russell Dorwart and Harry Dorwart, filed a complaint in which Caraway, Ames, Brophy and the County of Stillwater were named as defendants. The Plaintiff Harry Dorwart owned the home in which Russell resided.

¶ 15 Plaintiffs alleged that Caraway and Ames unlawfully entered Russell's residence where they conducted an unlawful and unreasonable search and seizure of his property, trespassed, invaded his privacy, wrongfully converted his property, and violated his right to due process of law. It alleged that Brophy and Stillwater County were vicariously liable for the deputies' conduct and for grossly negligent supervision of the deputies.

¶ 16 The Plaintiffs' complaint set forth claims for damages based on the Defendants' alleged violations of Article II, Sections 10 (right to privacy), 11 (right to be free from unreasonable searches and seizures), and 17 (right to due process) of the Montana Constitution. They also claimed damages pursuant to 42 U.S.C. § 1983 for violation of their rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and alleged a right to damages for common law trespass and conversion. Plaintiffs claim they were entitled to the recovery of attorney's fees as part of both their federal and state causes of action. Dorwarts' complaint was subsequently amended to state claims for declaratory judgment that Montana's post-execution statutes were in violation of state and federal rights to due process of law.

¶ 17 On August 7, 1995, the District Court entered its first order granting summary judgment. That order was the subject of our decision in Dorwart I. It concluded that Montana's postjudgment execution statutes did violate Russell Dorwart's right to due process of law but that the deputies had committed neither trespass nor conversion, nor had they violated Dorwart's constitutional rights to privacy or to be free from unreasonable searches and seizures. Finally, the District Court held that although Dorwart's right to due process of law had been violated, the deputies were entitled to qualified immunity pursuant to Harlow v. Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, and neither Brophy nor Stillwater County were liable pursuant to 42 U.S.C. § 1983. Dorwart's claims for attorney's fees were also denied.

¶ 18 In Dorwart I, we held that because...

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