Lurie v. Sheriff of Gallatin County, No. 99-237.

Docket NºNo. 99-237.
Citation999 P.2d 342, 2000 MT 103
Case DateApril 25, 2000
CourtUnited States State Supreme Court of Montana

999 P.2d 342
2000 MT 103

Nancy LURIE, Plaintiff and Appellant,
v.
SHERIFF OF GALLATIN COUNTY, William Slaughter, and Gallatin County Deputy Sheriff, Robert Chesnut, Defendants and Respondents and Cross-Appellants,
Robert J. Blackwell, Intervenor and Respondent and Cross-Appellant

No. 99-237.

Supreme Court of Montana.

Submitted on Briefs October 28, 1999.

Decided April 25, 2000.


999 P.2d 343
Charles F. Angel, Bozeman, Montana, For Appellant

Marty Lambert, Bozeman, Montana, For Respondents.

Phillip F. Walsh, Bozeman, Montana, For Intervenor, Respondent.

Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court.

¶ 1 Nancy Lurie (Appellant) appeals from the February 4, 1999 Order of the Eighteenth Judicial District Court, Gallatin County, granting partial Summary Judgment on Count I, (claim and delivery) and full Summary Judgment on Count II, (conversion), in favor of Gallatin County Sheriff, William Slaughter, and Gallatin County Deputy Sheriff, Robert Chesnut (Respondents). We affirm in part and reverse in part.

¶ 2 We restate the issues Appellant raises on appeal as follows:

1. Did the District Court err in concluding that personal property owned by Appellant and her husband, Ronald Lurie (Ronald) as tenancy by the entirety in another jurisdiction is now owned by Appellant and Ronald as either joint tenancy property or as tenancy in common property in Montana?
999 P.2d 344
2. Is Appellant entitled to pursue a claim and delivery action against Respondents to recover property claimed to be owned by her sons?

STATEMENT OF FACTS

¶ 3 We have previously set out the background to this case in detail in Lurie v. Sheriff of Gallatin County (1997), 284 Mont. 207, 949 P.2d 1163, in which we reversed and remanded the case for further proceedings. In October of 1994, Robert J. Blackwell, a bankruptcy liquidating trustee in the state of Missouri (Blackwell), obtained a judgment against Ronald for the amount of $1,121,743 in United States Bankruptcy Court, Eastern District of Missouri. This judgment was registered as a foreign judgment in the Gallatin County District Court in November of 1994. A writ of execution was then issued and execution was levied on personal property owned by Appellant and Ronald in Gallatin County. On November 23, 1994, Respondents seized the personal property from Ronald's and Appellant's residence in Bozeman, Montana. Ronald filed a petition in Montana bankruptcy court on November 28, 1994, staying all proceedings for levy or sale of Appellant's and his personal property. The bankruptcy case was dismissed in April, 1996.

¶ 4 On May 20, 1996, Appellant filed a complaint and affidavit against Respondents for claim and delivery (Count I) and conversion (Count II) requesting the return of personal property alleged as either: a) held as tenancy by the entirety under Missouri law; b) acquired by her with her own separate funds in Montana, or; c) gifted to her sons and therefore not subject to execution. Together with the complaint, Appellant filed a "Notice and Affidavit" addressed to Respondents requesting the return of the same personal property. There was no certificate of service or other indication the notice was actually served on or delivered to Respondents. On August 21, 1996, Blackwell was allowed to intervene in this action as a party defendant on the claim and delivery cause of action.

¶ 5 On appeal, this Court reversed and remanded to the district court, and all parties filed separate motions for summary judgment. Appellant argued that since the property in question was owned by her and Ronald in Missouri as tenancy by the entirety, Missouri law followed the personal property and should now be applied in this state. Respondents assert it is undisputed that Appellant failed to follow the notice procedure for third persons claiming seized personal property as required by §§ 27-17-309 and 27-18-602, MCA. Blackwell argued that the personal property, now located in Montana, is now subject to Montana law which does not recognize tenancy by the entirety, and is therefore subject to execution on a validly issued writ.

¶ 6 The District Court found that the law governing personal property is decided by the situs of the property and the domicile of the owner and, therefore, Montana law applied to the property. Since under the holding of Clark v. Clark (1963), 143 Mont. 183, 387 P.2d 907, tenancy by the entirety is not a permissible mode of ownership of property in Montana, the District Court held that "as a matter of law, the personal property at issue in this case is owned by [Appellant] and [Ronald] as joint tenancy property or as tenancy in common property, but not as tenancy by the entirety property . . . and is properly subject to execution."

¶ 7 The District Court then granted partial summary judgment in favor of Respondents on Appellant's Count I and dismissed Appellant's Count II.

STANDARD OF REVIEW

¶ 8 On appeal from a summary judgment, this Court reviews a case de novo based on the same criteria applied by the district court. Schmasow v. Native American Center, 1999 MT 49, ¶ 12, 293 Mont. 382, ¶ 12, 978 P.2d 304, ¶ 12 (citing Stutzman v. Safeco Ins. Co. of...

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3 practice notes
  • In re Popkin & Stern, No. 02-6073 EM.
    • United States
    • Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Eighth Circuit
    • May 20, 2003
    ...33. See Id. 34. Id. 35. Appellee's Brief, p. 26-27 (citations omitted). 36. Brief of Appellee, p. 16-17. 37. 299 Mont. 283, 999 P.2d 342 (Mont.2000). 38. 299 Mont. at 288, 999 P.2d at 346. 39. 299 Mont. at 286, 999 P.2d at 343. 40. Id. 41. Id. (citing Clark v. Clark, 143 Mont. 183, 387 P.2d......
  • Lurie v. Blackwell, No. 01-212.
    • United States
    • United States State Supreme Court of Wyoming
    • July 18, 2002
    ...deemed to follow the person of its owner and is governed by the law of his domicile.'" Lurie v. Sheriff of Gallatin County, 299 Mont. 283, 2000 MT 103, ¶ 13, 999 P.2d 342, 345 (2000) (quoting § 70-1-109, MCA). In Lurie, a case involving these same parties, the Montana Supreme Court held tha......
  • 1ST BANK v. Winderl, No. 01-841.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 20, 2002
    ...in himself at the time the action is brought, and that the defendant is wrongfully in possession." Lurie v. Sheriff of Gallatin County, 2000 MT 103, ¶ 21, 299 Mont. 283, ¶ 21, 999 P.2d 342, ¶ 21 (quoting O'Connell v. Haggerty (1953), 126 Mont. 442, 446, 253 P.2d 578, 580) (second emphasis a......
3 cases
  • In re Popkin & Stern, No. 02-6073 EM.
    • United States
    • Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Eighth Circuit
    • May 20, 2003
    ...33. See Id. 34. Id. 35. Appellee's Brief, p. 26-27 (citations omitted). 36. Brief of Appellee, p. 16-17. 37. 299 Mont. 283, 999 P.2d 342 (Mont.2000). 38. 299 Mont. at 288, 999 P.2d at 346. 39. 299 Mont. at 286, 999 P.2d at 343. 40. Id. 41. Id. (citing Clark v. Clark, 143 Mont. 183, 387 P.2d......
  • Lurie v. Blackwell, No. 01-212.
    • United States
    • United States State Supreme Court of Wyoming
    • July 18, 2002
    ...deemed to follow the person of its owner and is governed by the law of his domicile.'" Lurie v. Sheriff of Gallatin County, 299 Mont. 283, 2000 MT 103, ¶ 13, 999 P.2d 342, 345 (2000) (quoting § 70-1-109, MCA). In Lurie, a case involving these same parties, the Montana Supreme Court held tha......
  • 1ST BANK v. Winderl, No. 01-841.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 20, 2002
    ...in himself at the time the action is brought, and that the defendant is wrongfully in possession." Lurie v. Sheriff of Gallatin County, 2000 MT 103, ¶ 21, 299 Mont. 283, ¶ 21, 999 P.2d 342, ¶ 21 (quoting O'Connell v. Haggerty (1953), 126 Mont. 442, 446, 253 P.2d 578, 580) (second emphasis a......

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