No. 86-139
I N THE SUPREME COURT OF THE STATE O MONTANA
F
1986
THE FEDERAL LAND BANK O SPOKANE, a
F
corporation,
P l a i n t i f f and Respondent,
AGNES HEIDEMA, J I M M Y RAY HEIDEMA,
a s Personal Representative of t h e
E s t a t e o f L o u i s Heidema, Deceased;
et al.,
D e f e n d a n t s and A p p e l l . a n t s .
APPEAL F O :
R M D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County of Y e l l o w s t o n e ,
The Honorable William J . S p e a r e , Judge p r e s i d i n g .
COUNSEL O RECORD:
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For Appellant:
J i m R. Heidema, p r o s e , S h e p h e r d , Montana
For Respondent:
Crowley, Haughey, Hanson, T o o l e & D i e t r i c h ; Malcolm
H . Good.rich, B i l . l i n g s , Montana
Submitted on B r i e f s : Sept. 11, 1986
Decided: November 1 3 , 1986
l'* : -. 'jq.'$;
"'1,
Filed:
-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The Heidemas appeal the order and writ of assistance
issued by the District Court, Thirteenth Judicial District,
Yellowstone County, to deliver possession of real property
deeded to Federal Land Rank (FLR) pursuant to a sheriff's
foreclosure sale. We affirm the District Court's order and
writ of assistance.
This action is Heidemas' third appeal in this matter,
and their fifth appeal to this Court since 1984. At all
times, the Heidemas have appeared without counsel. The
present action stems from a foreclosure sale held pursuant to
a judgment and decree of foreclosure entered by the District
Court on September 19, 1984. The Heidemas appealed that
judgment on October 19, 1984. On December 18, 1985, this
Court dismissed the appeal on the basis that Heidemas had
fail-ed to prosecute the appeal. We found Heidemas lacked
good cause for failing to file an undertaking of costs, and
for failing either to transmit the record of the trial court
or to designate the portion of the proceedings required for
appeal.
A brief summary of the facts is in order. In November,
1975, Louis Heidema, Jr. and Agnes Heidema, husband and wife,
borrowed $221,000 from FLR. In exchange for the loan, they
co-signed a promissory note which required them to repay the
loan in 35 yearly installments of $29,194.53 per year.
Heidemas pledged their property in Yellowstone County as
collateral. In 1983, Heidemas failed to pay the annual
installment on the loan. In December, 1983, FLB filed a
foreclosure action against Agnes and Jimmy Fay Heidema (Jimmy
Ray is the personal representative of Louis Heidema's
estate). On September 19, 1984, the District Court ordered a
sheriff's foreclosure sale of the Heidema property.
The mortgaged property was sold to FLB at a sheriff's
sale October 25, 1986 for $278,480.44. The sheriff's
certificate of sale was issued to FLR October 29, 1984,
subject to a one year redemption period. Heidemas never
redeemed the property within the one year, nor did they
prosecute their appeal of the foreclosure decree, as
previously mentioned. FLB was granted a sheriff's deed under
the foreclosure sale November 15, 1985.
After receiving the deed, FLB sent a letter to the
Heidemas requesting they remove themselves from the property
by December 5, 1985. Heidemas did not do so. By letter
dated January 9, 1986, FLB again requested Heidemas remove
themselves from the property, or FLR would seek a writ of
assistance to evict them. In response to this letter,
Heidemas filed a motion for an order staying the action of
FLB in seeking the writ of assistance. On February 11, 1986,
the District Court denied Heidemas' motion and granted FLB a
writ of assistance. Heidemas filed notice of appeal from the
order for the writ on March 7, 1986.
Heidemas raise four issues on appeal:
I. Whether the sheriff' s mortgage foreclosure sale wa.s
valid because of a defect in the published notice of the
sale?
2. Whether the sheriff's mortgage foreclosure sale was
valid where improper notice was given of Yellowstone County's
liens for property taxes?
3. Whether the sheriff's mortgage foreclosure sale was
valid where the sheriff failed to sell the property by parcel
in accordance with 5 25-13-704, MCA?
4. Whether the District Court is required to confirm a
sheriff's mortgage foreclosure sale prior to issuj-ng a writ
of assistance.
The first three issues relate directly to the validity
of the September 19, 1.984 sheriff's foreclosure sale; the
fourth issue challenges the validity of the issuance of the
writ of assistance.
We hold that the first three issues relating to the
validity of the foreclosure sale are res judicata. An action
is barred by the doctrine of res judicata when the fol1.owing
criteria are met:
I) The parties or their privities are the same;
2) The subject matter of the action is the same;
3) The issues relating to the subject matter are fhe
same; and,
4) The capacities of the persons in reference to the
subject matter and the issues are the same.
Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 206, 645 P.2d
929, 931.
All four criteria have been met in this case--in both
this appeal and the appeal of October 19, 1984: 1) Heidemas
and FLB were the named parties; 2) the mortgaged property
was the subject matt-er of the appeal; 3) the validity of the
foreclosure sale was at issue; 4) Heidemas were and continue
to be the mortgagor in possession, FLR was and continues to
be holder of the sheriff's deed of foreclosure. Heidemas'
first appeal on these issues was dismissed.. Under Rule 12,
M.R.App.Civ.P., a dismissal of an appeal acts as an
affirmance of a district court's judgment, unless the
dismissal was made without prejudice. Our dismissal of
Heidemas' first appeal affirmed the District Court's judgment
of foreclosure, and Heidemas are now barred from raising
challenges to the validity of the foreclosure sale a second
time .
As to whether the District Court properly issued the
writ of assistance, we hold that the issuance of the writ of
assistance is not dependent upon judicial confirmation of a
foreclosure sale. This point of law has been well settled in
Montana since Thomas v. Thomas (1911), 44 Mont. 102, 119 P.
283. The proceedings for foreclosure of a mortgage are
exclusively provided for in § 71-1-222, MCA. Thomas, at 110,
119 P.2d at 284. The court, by its judgment in a mortgage
foreclosure action, directs the sheriff to make the sale.
Id.
- There is no need for the court to confirm that which it
has already ordered. Here, once the sale was conducted
according to the judgment and FLB received its sheriff's
deed, the District Court properly held FLB was entitled to
possession of the property, and properly issued the writ of
assistance.
FLB requests damages be assessed against Heidemas
pursuant to Rule 32, M.R.App.Civ.P. Under Rule 32, damages
may be assessed where this Court finds an appeal is taken
without substantial or reasonable grounds, and is taken for
purposes of delay only. As we have previously stated to the
Heidemas, in the context of discovery, this Court will not
tolerate dilatory tactics designed to clog the wheels of the
judicial process. First Bank (N.A.)-Billings v. Heid-ema
(Mont. 1986), 711 P.2d 1384, 1386, 43 St.Rep. 22, 24-25.
While pro se litigants may be gi~ren a certain amount of
latitude in their proceedings, they may not proceed in such a
fashion as to abuse the judicial process, prejudicing the
opposing party's interests as well as other litigants1 access
to the judicial system.
We therefore remand this cause to the District Court for
a determination of damages, costs and attorney fees against
t.he Heidemas, pursuant to Rule 32, M.R.App.Civ.P
The order and writ of assistance of the District Court
are affirmed, and the case remanded for determina-tion of
damaqes, costs and attorney fees.
Justice
i
We Concur: