No. 02-475
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 83N
MARY HILLABRAND,
Plaintiff and Respondent,
v.
McDOUGAL BOTANICAL TRUST,
M. MARGARET NIGRELLE, Trustee,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake Cause No. DV 99-94,
Honorable C. B. McNeil, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Edward A. Murphy, Datsopoulos, MacDonald & Lind, P.C.,
Missoula, Montana
For Respondent:
Matthew H. O’Neill and John A. Mercer, Turnage, O’Neill & Mercer,
PLLP, Polson, Montana
Submitted on Briefs: March 6, 2003
Decided: April 6, 2004
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Mary Hillabrand (Hillabrand) brought an action in the Twentieth Judicial District
Court, Lake County, seeking specific performance of a buy-sell agreement she entered into
with the McDougal Botanical Trust (the Trust) regarding a small ranch located in Lake
County. On April 21, 2000, the District Court awarded summary judgment in favor of
Hillabrand, finding that the buy-sell agreement was a valid, enforceable contract, which had
been breached by the Trust, and ordered specific performance of the agreement. The District
Court further ordered the Trust, within 30 days of the entry of the judgment, to deliver to the
title company the balance of the purchase price under the contract, together with the closing
costs, less the earnest money already deposited, and Hillabrand to deliver to the title
company a warranty deed transferring merchantable title for the property to the Trust. The
court awarded Hillabrand her reasonable costs and attorney fees.
¶3 The Trust subsequently appealed from the District Court’s order granting summary
judgment. We affirmed the court’s order in Hillabrand v. McDougal Botanical Trust, 2001
MT 125N. Following remittitur, the Trust failed to comply with the order of specific
performance, causing Hillabrand to seek entry of a money judgment. On October 10, 2001,
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the District Court granted Hillabrand’s motion to convert the order into a money judgment
against the Trust and ordered the property to be sold at a sheriff’s sale.
¶4 Prior to the date set for auction, however, Hillabrand located a buyer who was willing
to purchase the property for the full judgment amount, approximately $1.2 million. With the
consent of the Trust and the District Court, the sheriff’s sale was cancelled and a buy-sell
agreement with the new purchaser was authorized. Despite the willingness of all the parties
to consummate the transaction, the sale fell through when the purchaser was unable to secure
conventional financing. Although Hillabrand and the purchaser thereafter negotiated a new
sale of the property for $995,000, with Hillabrand financing the transaction on a contract for
deed, the Trust opposed the arrangement and the buyer eventually became unwilling to
proceed with the sale.
¶5 In order to determine whether the Trust had sufficient assets to satisfy a deficiency
judgment following a sheriff’s sale, Hillabrand attempted, without success, to schedule an
examination of the debtor. On March 1, 2002, the District Court ordered Margaret Nigrelle
(Nigrelle), Trustee, to appear and answer questions regarding the property and assets of the
Trust. However, Nigrelle failed to appear for examination, and Hillabrand brought a motion
to hold Nigrelle in contempt of court. In its response to Hillabrand’s motion for contempt,
the Trust advised that “the proper procedure at this point . . . is to sell the property either
privately or through a sheriff’s sale, establish the deficiency if there is one and then perfect
the judgment in Texas where the trust is located and exercise its collection remedies.”
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¶6 Acting on this representation, Hillabrand sold the property at a private sale for
$995,000, and brought a motion in District Court for a determination of the deficiency. On
May 15, 2002, the District Court awarded Hillabrand a deficiency judgment against the Trust
in the amount of $197,177.52, with interest accruing at the rate of 10 percent per annum until
satisfied. From this judgment, the Trust appeals. We affirm.
¶7 The only issue on appeal is as follows:
¶8 Did the District Court err in awarding a deficiency judgment against the Trust?
¶9 The Trust maintains that a deficiency judgment is proper only when following a
sheriff’s sale. By selling the property at a private sale, the Trust argues that Hillabrand
effected a forfeiture, and thereby relinquished her right to obtain a deficiency judgment. In
support of its assertion, the Trust relies upon Aveco Properties, Inc. v. Nicholson (1987), 229
Mont. 417, 747 P.2d 1358, and cases cited therein. In response, Hillabrand challenges the
Trust’s characterization of this case as a forfeiture matter, and argues that the issue is one of
damages.
¶10 We agree that the Trust misapprehends this case as a forfeiture matter. The Trust has
not demonstrated that it held any equitable interest in the property at issue at the time of the
sale. Nor is this a situation in which Hillabrand elected her remedies pursuant to contract.
Rather, Hillabrand merely acted upon the suggestion of the Trust to sell the property in
question, and establish the deficiency.
¶11 We also conclude that the Trust’s reliance upon Aveco for the proposition that a
deficiency judgment may be entered only when following a sheriff’s sale is misplaced.
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Aveco involved foreclosure of the debtor’s interest in real property following default under
a contract for deed. Relying upon our holding in SAS Partnership, Etc. v. Schafer (1982),
200 Mont. 478, 653 P.2d 834, we concluded that the district court did not err in ordering the
property to be sold upon the defendant’s failure to pay the remaining balance. Aveco, 229
Mont. at 424, 747 P.2d at 1362. We further concluded that Aveco was entitled to receive a
deficiency judgment in the event the sale of the property yielded an insufficient amount to
satisfy the judgment. Aveco, 229 Mont. at 425, 747 P.2d at 1363. In so concluding, we
turned to our holding in Glacier Campground v. Wild Rivers, Inc. (1979), 182 Mont. 389,
597 P.2d 689, wherein we held that there is nothing inequitable about awarding a deficiency
judgment on any unsatisfied amount after the sale of the land in controversy. Aveco, 229
Mont. at 425, 747 P.2d at 1362-63. We did not hold, as the Trust contends, that a deficiency
judgment was proper only when following a sheriff’s sale. Rather, we simply recognized
that a deficiency judgment cannot be computed until after the property has been sold. Aveco,
229 Mont. at 423, 747 P.2d at 1361.
¶12 In this case, the property sold at a private sale for $995,000, which the District Court
concluded was commercially reasonable. Ordinarily, we review a district court’s
conclusions of law to determine whether those conclusions are correct. Yellowstone II Dev.
Gr. v. First Amer. Title Co., 2001 MT 41, ¶ 34, 304 Mont. 223, ¶ 34, 20 P.3d 755, ¶ 34.
However, in this case, the Trust does not take issue with the court’s conclusion that $995,000
was a commercially reasonable sale price, nor does it provide any other authority in support
of its contention that a sheriff’s sale must precede a deficiency judgment. Given our
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holdings in Aveco and Glacier Campground, wherein we held that it is not inequitable to
grant a deficiency judgment when the property at issue sells for less than the obligation
owed, we cannot conclude that the District Court erred in awarding a deficiency judgment
under these circumstances.
¶13 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
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Hillabrand v. McDougal Trust
Combined Opinion