March 18 2008
DA 07-0176
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 92N
PONDEROSA PINES RANCH PROPERTY
OWNERS ASSOCIATION,
Plaintiff and Appellee,
v.
RONALD DEAN CLAPPER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-2000-131
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ronald Dean Clapper (Pro Se), Three Forks, Montana
For Appellee:
Mark A. Bryan, P.C., Alanah Noel Griffith, Bozeman, Montana
Submitted on Briefs: December 6, 2007
Decided: March 18, 2008
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 The Eighteenth Judicial District Court, Gallatin County, entered an order that
denied Appellant Ronald Dean Clapper’s (Clapper) motion to set aside judgment and
ordered Clapper to abate the violations of the Ponderosa Pines Ranch Property Owners
Association (PPRPOA) subdivision covenants within 60 days. We affirm.
¶3 Findings of fact and conclusions of law were filed on October 24, 2003, in this
cause. The District Court conducted a hearing and determined the share of attorney fees
and costs attributable to each of the defendants and entered an order allocating $8,512.42
of fees and costs to Clapper. A final judgment was entered February 24, 2004, from
which only defendant Fred D. Rohde appealed. We affirmed in part and reversed in part
in Lewis v. Ponderosa Pines Property Owners Association, 2005 MT 325N, 330 Mont.
401, 126 P.3d 507.
¶4 When Clapper made no effort to pay the attorney’s fees and costs, the PPRPOA
attempted execution and collection proceedings. The PPRPOA scheduled a court-
administered debtor’s hearing to determine whether Clapper owns any personal property
of value, and to verify the ownership of offending personal property remaining on
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Clapper’s premises. In the debtor’s exam, Clapper insisted he had recently cleaned up
the site and acknowledged he had discontinued his salvage business. Clapper also
advised the court for the first time that he did not comply with the covenants because he
did not believe they are valid based on evidence that he recently discovered. Clapper
explained he has a United States land patent on his parcel of real property which is a
superior title that precludes the PPRPOA’s covenants.
¶5 After the hearing, the PPRPOA filed a statement that documented covenant
violations and included photographs of Clapper’s premises. Clapper filed a motion to set
aside judgment and a response to the PPRPOA’s statement of violations in which he
contends the PPRPOA failed to acknowledge in its pleadings that his property is
protected by a United States land patent and that PPRPOA perpetrated a fraud upon him
by concealing the fact he had a federal land patent.
¶6 The District Court concluded Clapper’s motion for relief from judgment was
untimely under M. R. Civ. P. 59 and 60, and that it was Clapper’s responsibility to plead
the existence and significance of the federal land patent as an affirmative defense under
M. R. Civ. P. 8(c). The court also determined Clapper failed to meet the standard
required by M. R. Civ. P. 59 and 60 for a new trial, or to alter or amend judgment and
denied Clapper’s motion. The court concluded the land patent had no force or effect on
the authority of Ponderosa Pines to place restrictive covenants on the subdivision which
are specifically provided for under §§70-17-201 -206, MCA.
¶7 The court also acknowledged the October 24, 2003 order determined that the
Ponderosa Property Owners Association was a valid homeowner’s association and the
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defendants, including Clapper, took their parcels subject to the covenants. The court
concluded it was, therefore, barred by res judicata from reconsidering the issue. The
court ordered Clapper to clean up his premises to comply with the covenants within 60
days, and in the event Clapper failed to satisfactorily clean up the premises, and the court
offered to provide a writ of assistance to the PPRPOA to enter Clapper’s premises and
remove the offending items. Clapper appeals from this order.
¶8 Clapper raised eight issues on appeal; however we have determined that none of
them have merit. For purposes of discussion, we combine the first six issues because the
doctrines of law of the case and res judicata preclude those claims.
¶9 The District Court correctly determined Clapper’s land patent constitutes an
affirmative defense required by M. R. Civ. P. 8(c) to be specifically raised in the
pleadings. Estabrook v. Baden, 284 Mont. 419, 422, 943 P.2d 1334, 1336-37 (1997).
Further, the existence of a federal land patent does not constitute new evidence, and the
burden was on Clapper to plead the defense in a timely manner. The defense is therefore
waived.
¶10 The determination that Clapper’s parcel lies within the Ponderosa Pines
subdivision was previously determined and subject to appeal when the notice of entry of
judgment was served in March of 2004. Clapper’s rights were adjudicated and he did not
appeal. These claims are barred by the doctrines of res judicata and law of the case.
State v. Ditton, 2006 MT 235, ¶ 38, 333 Mont. 483, ¶ 38, 144 P.3d 783, ¶ 38; McCormick
v. Brevig, 2007 MT 195, ¶ 38, 338 Mont. 370, ¶ 38, 169 P.3d 352, ¶ 38. Thus, the
District Court did not err.
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¶11 A motion under M. R. Civ. P. 59(b) (motion for a new trial) or 60 (to alter or
amend judgment) must be filed within ten days of service of notice of entry of judgment.
Clapper failed to file a timely motion for relief by March 12, 2004—ten days after the
entry of judgment was served in this case. Clapper is precluded from further review by
the doctrine of res judicata. Glickman v. Whitefish Credit Union Association, 1998 MT
8, ¶ 20, 287 Mont. 161, ¶ 20, 951 P.2d 1388, ¶ 20.
¶12 Clapper indicates that Judge Brown erroneously reviewed the October 24, 2003,
findings of fact, conclusions of law and order when Clapper referred to an order by Judge
Olson in his debtor’s examination. Clapper is correct that the District Court consulted the
wrong order; however, the previous determinations in this case established the law of the
case, and Clapper is barred from relitigating the matter. See McCormick, ¶ 38.
¶13 Clapper contends that purchasing the property did not constitute his consent to
membership in the PPRPOA, and the District Court erred in its when it failed to
determine the Montana Non-Profit Corporation Act precludes h i s involuntary
membership in PPRPOA. This issue is raised for the first time on appeal. We
consistently refuse to address issues raised for the first time on appeal on the rationale
that it is inappropriate to fault the district court for failing to rule on an issue it was never
given the opportunity to consider. Bekkdahl v. McKittrick, 2002 MT 250, ¶¶ 31-32, 312
Mont. 156 ¶¶ 31-32, 58 P.3d 175, ¶¶ 31-32; Day v. Payne, 280 Mont. 273, 276, 929 P.2d
864, 866 (1996). We decline to address this issue for the first time on appeal.
¶14 PPRPOA requests Clapper be sanctioned by requiring him to pay PPRPOA’s
attorney’s fees and costs. While Clapper’s arguments are unconvincing, there is no
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evidence he pursued this appeal in bad faith, or solely for the purposes of delay or
harassment. Therefore, we deny PPRPOA’s request for sanctions. See Morris v. Big Sky
Thoroughbred Farms, 1998 MT 229, ¶ 22, 291 Mont. 32, ¶ 22, 965 P.2d 890, ¶ 22;
Sorenson v. Massey-Ferguson, Inc., 279 Mont. 527, 531, 927 P.2d 1030, 1032-33,
(1996).
¶15 We review a district court’s findings of fact to determine if they are clearly
erroneous. The standard we apply in reviewing the conclusions of law is whether the
conclusions of law are correct. Brumit v. Lewis, 2002 MT 346, ¶ 12, 313 Mont. 332,
¶ 12, 61 P.3d 138, ¶ 12.
¶16 We have determined to decide this case pursuant to Section I, Paragraphs 3(d), of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record this appeal
is without merit. These issues are controlled by settled Montana law that the District
Court correctly interpreted.
¶17 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE
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