Alpine Buffalo, Elk & Llama Ranch, Inc. v. Andersen

2001 MT 307, 38 P.3d 815, 307 Mont. 509, 2001 Mont. LEXIS 570
CourtMontana Supreme Court
DecidedDecember 28, 2001
Docket00-319
StatusPublished
Cited by6 cases

This text of 2001 MT 307 (Alpine Buffalo, Elk & Llama Ranch, Inc. v. Andersen) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alpine Buffalo, Elk & Llama Ranch, Inc. v. Andersen, 2001 MT 307, 38 P.3d 815, 307 Mont. 509, 2001 Mont. LEXIS 570 (Mo. 2001).

Opinions

CHIEF JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Lisa Andersen (Andersen) appeals from postjudgment orders entered by the Sixth Judicial District Court, Park County, assigning proceeds from other litigation to Alpine Buffalo, Elk and Llama Ranch, Inc. (Alpine) and declining to consider her Rule 60(b), M.R.Civ.P., motion pending appeal of the assignment order. We affirm.

¶2 The issues on appeal are:

¶3 1. Did the District Court err in ordering Andersen, a judgment debtor, to assign future proceeds from another cause of action to her judgment creditor?

¶4 2. Did the District Court err in concluding that this appeal divested it of jurisdiction to address Andersen’s Rule 60(b), M.R.Civ.P., motion?

BACKGROUND

¶5 In 1995, Andersen and Dick Andersen, her husband, executed a promissory note in favor of Alpine for $155,000 and secured it with real property. Alpine began proceedings to enforce the terms of the note and foreclose on the real property in late December of 1997, after the Andersens failed to make any payments on the promissory note. The District Court entered a judgment and decree of foreclosure in Alpine’s favor in April of 1998, and also ordered the Andersens to pay delinquent property taxes. The next day, the court awarded Alpine a deficiency judgment against the Andersens personally “if there is a balance owed to [Alpine] after the proceeds of the foreclosure sale are [511]*511applied to [the Andersens’] indebtedness to [Alpine].”

¶6 The Andersens’ real property was sold at a sheriffs sale in July of 1999. Alpine made the sole bid in the amount of $5,000, leaving a deficiency of $218,458.51, including interest. In February of2000, the District Court granted Alpine’s motion for a deficiency judgment in this amount against Andersen only, Dick Andersen having filed for bankruptcy. Andersen neither appealed the deficiency judgment nor made any payment on it.

¶7 Alpine learned that Andersen had a pending malpractice claim against her former legal counsel and sought an assignment of the prospective proceeds from that action and a Debtor’s Examination. In two April 13, 2000 orders, the District Court granted both requests.

¶8 Andersen filed a notice of appeal from the assignment order on April 18, 2000. On the same day, she also moved to set aside the deficiency judgment pursuant to Rule 60(b), M.R.Civ.P., claiming the judgment was improperly based on the value of the property from the sheriffs sale rather than the fair market value of the property. At the Debtor’s Examination on April 19, 2000, Andersen refused to execute an assignment of her interest in the proceeds of the malpractice litigation as ordered by the District Court because she had appealed the assignment. She acknowledged to the hearing referee, however, that she had assigned the same proceeds to at least three other parties. Andersen subsequently failed to file a brief in support of her refusal to execute the assignment as suggested by the hearing referee.

¶9 Thereafter, Alpine moved the District Court to hold Andersen in contempt for her failure to comply with its order to assign the proceeds of her litigation. The court determined it did not have jurisdiction to address either Alpine’s contempt motion or Andersen’s Rule 60(b) motion because both were filed after Andersen appealed the assignment order. Andersen then filed a notice of appeal from the District Court’s order declining to consider her Rule 60(b) motion pending her first appeal.

DISCUSSION

¶10 1. Did the District Court err in ordering Andersen, a judgment debtor, to assign future proceeds from a separate cause of action to her judgment creditor?

¶11 Andersen claims the only authority cited by Alpine for the District Court’s assignment order was Rule 70, M.R.Civ.P., and that Rule 70 applies only to a contemptuous party. We described Rule 70 as a “civil contempt statute” in Searight v. Cimino (1988), 230 Mont. 96, 102, 748 [512]*512P.2d 948, 952, and Alpine effectively concedes the inapplicability of Rule 70 on appeal.

¶12 In fact, however, Andersen is incorrect in claiming that Rule 70 was the sole basis for Alpine’s motion for assignment of proceeds. Alpine also requested the assignment order “based on the broad equity powers of this Court!.]” In this regard, we held in Smith v. Foss (1978), 177 Mont. 443, 446, 582 P.2d 329, 331-32 (citation omitted), that a district court possesses jurisdiction to enter any necessary orders to enforce its judgments.

¶13 Smith also belies Andersen’s secondary argument that the only method by which the judgment against her could be enforced is by writ of execution. Nor does Montana’s execution statute support her argument. Section 25-13-201, MCA, provides “[w]hen the judgment is for money or the possession of real or personal property, the same may be enforced by a writ of execution!.]” The statutory language does not state that a writ of execution is the only means by which such a judgment can be enforced. Indeed, use of the word “may” expressly recognizes that other means of enforcement are available.

¶14 Andersen also argues, briefly, that the District Court’s assignment order is contrary to Montana law holding that tort actions are not assignable. She relies on Coty v. Cogswell (1935), 100 Mont. 496, 501, 50 P.2d 249, 250-51, and Youngblood v. American States Ins. Co. (1993), 262 Mont. 391, 396, 866 P.2d 203, 206, but neither case establishes error by the District Court in ordering the assignment of litigation proceeds here.

¶15 The facts in Coty were somewhat complicated. In essence, they involved a writ of attachment of a personal injury cause of action of Maude Adams, while that action remained pending, by Mae Coty in her later-filed action against Adams on a promissory note. Coty obtained the writ of attachment immediately upon the filing of her action against Adams and prior to resolution of that action. Coty, 100 Mont. at 499, 50 P.2d at 249. The writ of attachment was obtained pursuant to a 1921 Montana statute permitting such an attachment from persons having in their possession credits or personal property belonging to the other party or owing any debts to the other person. Thus, if a cause of action for personal injuries was a credit or personal property of, or debt owed to the other party, the attachment was proper. Coty, 100 Mont. at 500-01, 50 P.2d at 250. We ultimately held, under those facts, that Adams’ pending personal injury action did not fall within the statutory definitions and was not subject to levy by means of attachment before judgment was rendered. Coty, 100 Mont. [513]*513at 504, 50 P.2d at 251. Coty has no application here.

¶16 First, the assignment order at issue was not entered pursuant to the 1921 statutes at issue in Coty or, indeed, any other statute. As discussed above, it was premised on the District Court’s equitable power to enter orders necessary to enforce its judgments.

¶17 Second, the assignment order does not even purport to assign or attach Andersen’s cause of action against her former legal counsel.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Blackmore v. Dunster
2012 MT 74 (Montana Supreme Court, 2012)
In Re the Marriage of Alexander
2011 MT 1 (Montana Supreme Court, 2011)
Kruckenberg v. City of Kalispell
2004 MT 185 (Montana Supreme Court, 2004)
Lewistown Propane Co. v. Moncur
2003 MT 368 (Montana Supreme Court, 2003)
Alpine Buffalo, Elk & Llama Ranch, Inc. v. Andersen
2001 MT 307 (Montana Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
2001 MT 307, 38 P.3d 815, 307 Mont. 509, 2001 Mont. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alpine-buffalo-elk-llama-ranch-inc-v-andersen-mont-2001.