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No. 99-237
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 103
299 Mont. 283
999 P. 2d 342
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.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
Charles F. Angel, Bozeman, Montana
For Respondents:
Marty Lambert, Bozeman, Montana
For Intervenor, Respondent:
Phillip F. Walsh, Bozeman, Montana
Submitted on Briefs: October 28, 1999
Decided: April 25, 2000
Filed:
__________________________________________
Clerk
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
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now owned by Appellant and Ronald as either joint tenancy property or as tenancy in
common property in Montana?
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.
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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
America (1997), 284 Mont. 372, 376, 945 P.2d 32, 34).
a.The movant must demonstrate that no genuine issues of material fact exist. Once this has
been accomplished, the burden then shifts to the non-moving party to prove, by more than
mere denial and speculation, that a genuine issue does exist. Having determined that
genuine issues of material fact do not exist, the court must then determine whether the
moving party is entitled to judgment as a matter of law. We review the legal
determinations made by a district court as to whether the court erred.
Balyeat Law, P.C. v. Hatch (1997), 284 Mont. 1, 3, 942 P.2d 716, 717 (quoting Bruner v.
Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903).
¶9.Summary judgment is proper when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Ross v. City of Great Falls, 1998
MT 276, ¶ 9, 291 Mont. 377, ¶ 9, 967 P.2d 1103, ¶ 9 (citing Ash Grove Cement Co. v.
Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 88); see also Rule 56(c), M.R.
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Civ.P. We review a district court's grant of summary judgment de novo, applying the same
Rule 56(c), M.R.Civ.P., criteria as the district court. Ash Grove Cement Co., 283 Mont. at
491, 943 P.2d at 88.
¶10.In the usual summary judgment case, we first determine whether "the moving party
met its burden of establishing both the absence of genuine issues of material fact and
entitlement to judgment as a matter of law." Ash Grove Cement Co., 283 Mont. at 491,
943 P.2d at 88. In the present case, the parties agree on the material facts. The question
before us is whether property held by Appellant and Ronald as tenancy by the entirety in
Missouri, was still held in that manner after moving to Montana. We review a district
court's conclusions of law to determine whether the interpretation of the law is correct.
Ash Grove Cement Co., 283 Mont. at 491-92, 943 P.2d at 89.
¶11.aWhether the District Court erred in concluding that personal property owned by
Appellant and her husband Ronald as tenancy by the entirety in Missouri is now owned by
them as either joint tenancy property or as tenancy in common property in Montana?
¶12.Appellant contends that the District Court committed error by determining that the
personal property jointly owned by her and Ronald as tenancy by the entirety in Missouri,
was no longer tenancy by the entirety property after she brought that property with her and
established her domicile in Montana. She argues that as tenancy by the entirety property, it
was not subject to execution to satisfy a judgment against Ronald only, and therefore,
Respondents wrongfully converted her property by seizing it on November 23, 1994.
¶13.Blackwell and Respondents contend the District Court properly ruled that Montana
law governs Appellant's and Ronald's property, which is therefore subject to disposition to
satisfy Blackwell's judgment against Ronald. Blackwell contends that § 70-1-109, MCA,
clearly shows Montana law should properly apply to the instant action to resolve
Appellant's ownership interest in the personal property. Section 70-1-109, MCA provides:
"[i]f there is no law to the contrary in the place where personal property is situated, it is
deemed to follow the person of its owner and is governed by the law of his domicile."
Section 70-1-109, MCA. We conclude that the District Court was correct in determining
that the law governing personal property is decided by the situs of the property and the
domicile of the owner.
¶14.Blackwell further asserts that our decision in Clark is controlling, and the District
Court correctly determined that tenancy by the entirety is not a permissible mode of
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ownership in Montana. In Clark, we analyzed jurisdictions which recognize and those
refusing to recognize estates by the entirety, concluding:
a.[w]e are of the opinion that the most persuasive reasoning is to be found in those
decisions refusing to recognize the existence of the estate by the entireties on the ground
that modern statutes have eliminated the basis for the creation of such an estate.
b.[W]hen these incidents spring from a legal fiction which is not even recognized today,
we find that they have no place in the law of Montana.
c.Accordingly, we hold that the estate by the entireties is not a permissible mode of
ownership of property in Montana.
Clark, 143 Mont. at 191-92, 387 P.2d 911-12.
¶15.The District Court found that "[a]lthough the property at issue in Clark was real estate
rather than personal property, there appears to be no compelling reason to differentiate the
two types of property, and the reasoning in Clark applies with equal force to personal
property." We conclude that the District Court's interpretation of the law is correct;
personal property owned by Appellant and her husband Ronald as tenancy by the entirety
in Missouri may not be held in that manner in Montana. The property is now owned either
as joint tenancy property or as tenancy in common property, but no longer as tenancy by
the entirety, and is therefore subject to execution on a validly issued writ.
¶16.Appellant also appears to claim that Dorwart v. Caraway, 1998 MT 191, 290 Mont.
196, 966 P.2d 1121, somehow applies to the property in question. However, she presents
no analysis of any facts that would indicate why this is the case. In response to a similar
claim by Appellant the District Court stated:
a.[a]lthough [Appellant] has invoked the Dorwart decision, she has neither plead nor
proved any lack of notice concerning the seizure of property or her rights as a
claimant. . . . Furthermore, the Dorwart court found the execution statutes unconstitutional
as applied to the facts in that case, and [Appellant] has made no similar showing of lack of
notice or due process. . . . The court holds that the Dorwart decision concerning the
constitutionality of the execution statutes is inapplicable to the facts of this case.
¶17.We agree. We conclude that as framed by Appellant, Dorwart has no application to
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this matter.
¶18.a Is Appellant entitled to pursue a claim and delivery action against Respondents to
recover possession of property claimed to be owned by her sons?
¶19.Appellant claims Respondents seized property that was in her possession but which is
owned by her sons. Citing O'Connell v. Haggerty (1953), 126 Mont. 442, 253 P.2d 578,
Appellant argues that she may maintain an action for claim and delivery by asserting a
right to possession of the property and therefore the District Court erred by dismissing the
action concerning that property.
¶20.In its order, the District Court found "[i]t is undisputed that [Appellant] made no
demand for possession of the personal property on the Sheriff prior to the filing of this
lawsuit." Citing O'Connell, the court stated,
a.[a]s to items claimed to have been given by her to her sons, the sons have never been
named as parties to this action. To state a cause of action for claim and delivery, a plaintiff
must establish her immediate right to possession at the time the action is brought and that
defendant's possession is wrongful. The court finds there is no disputed question of fact
that [Appellant] has not established her ownership of these items, and therefore she has
not stated a claim for relief for return of these items.
¶21.We stated in O'Connell, that the "very essence" of an action for claim and delivery is
to try the issue of the right to possession of personal property. "In such an action it is
incumbent on plaintiff to establish by the preponderance of the evidence the right to the
immediate possession in himself at the time the action is brought, and that the defendant is
wrongfully in possession." O'Connell, 126 Mont. at 446, 253 P.2d at 580 (emphasis
added).
¶22.Respondents argue that in order to file a third-party action under Montana claim and
delivery law, and § 27-17-309, MCA, the third-party claimant must file an affidavit with
the sheriff who holds the property.
If the property taken be claimed by any other person than the defendant or his agent and
such person make affidavit of his title thereto or right of the possession thereof, stating the
grounds of such right or title, and serve the same upon the sheriff, the sheriff shall not be
bound to keep the property or deliver it to the plaintiff. . . .
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Section 27-17-309, MCA, see also Jackson v. McDonald (1943), 115 Mont. 269, 276-77,
143 P.2d 898, 902 (no valid claim against sheriff for claim and delivery without demand
on sheriff for possession of personal property in conformity with § 9234, RCM (recodified
as § 27-17-309, MCA)).
¶23. Respondents assert that because the District Court found in its order that Appellant
failed to properly serve the Sheriff with such an affidavit, summary judgment should have
been granted in favor of Respondents on Count I (claim and delivery). We agree. The
District Court found that Appellant failed to file an affidavit and serve Respondents as
required by § 27-17-309, MCA. As established in Jackson, this failure to follow the
requirements of § 27-17-309, MCA, bars Appellant from recovery. Therefore, the District
Court should have granted Respondents full summary judgment on the issue of claim and
delivery.
¶24. We reverse the District Court in part, and grant Respondents full summary judgment
on Count I, claim and delivery. We affirm the District Court's dismissal of Count II,
conversion.
¶25. Affirmed in part, reversed in part.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
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