Luloff v. Raisler ( 2004 )

No. 04-062
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 209N
LARRY LULOFF,
Plaintiff and Appellant,
v.
JOHN N. RAISLER and LORI J. RAISLER,
Defendants and Respondents.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DV02-39
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Larry Luloff, Pro Se, Roberts, Montana
For Respondents:
Stephen C. Mackey, James G. Gabriels; Towe, Ball, Enright,
Mackey & Sommerfeld, Billings, Montana
Submitted on Briefs: June 15, 2004
Decided: August 10, 2004
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section 1, 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 Larry Luloff and the Stormitt Butte Property Owners Association brought an action
to enforce covenant restrictions against John and Lori Raisler. The Respondents opposed
the action by filing a motion pursuant to Rule 17(a), M.R.Civ.P., claiming that neither Luloff
nor the Stormitt Butte Property Owners Association was the real party in interest.
Importantly, the terms of the covenant stated that: “Enforcement of these Restrictions,
Covenants and conditions shall be by the Property Owners Association as set out in Article
XVI above, and not by any individual lot owner . . . .” The Stormitt Butte Property Owners
Association, however, had assigned its right to enforce the covenant to Luloff. According
to the Respondents, the Property Owners Association had given up its right to enforce the
covenant, yet, by the very terms of the covenants, Luloff, as an individual lot owner, could
not enforce the covenant terms. Thus, neither Luloff nor the Property Owners Association
had an enforceable legal right and neither party was the real party in interest.
¶3 At a hearing on the motion, both parties stipulated to an agreement that the
controversy about the real party in interest would be cured if Luloff would assign his rights
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back to the Property Owners Association. Based on the stipulated agreement, the District
Court ordered Luloff to assign his rights back to the Property Owners Association. Yet,
three months later, Luloff had not yet assigned the rights back. The Respondents then moved
to dismiss the cause of action, and the District Court dismissed without prejudice.
¶4 Luloff now appeals, claiming that the District Court discriminated against his attorney
at the first hearing and failed to recognize that Luloff was the real party in interest.
However, Luloff cites no relevant authority for his argument. Rule 23(a)(4), M.R.App.P.,
requires parties to cite to the authority on which their arguments rely. The Court will not
consider unsupported arguments or issues. Estate of Spencer, 2002 MT 304, ¶ 20, 313 Mont.
40, ¶ 20, 59 P.3d 1160, ¶ 20. Furthermore, parties are bound by stipulations made by them
or their counsel in open court. In re Marriage of Killpack, 2004 MT 55, ¶ 13, 320 Mont. 186,
¶ 13, 87 P.3d 393, ¶ 13. We have previously stated that we will not address an issue on
appeal concerning a question of law or fact which a party raises after stipulating to that law
or fact. Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 81, 293 Mont. 97, ¶ 81, 973 P.2d
818, ¶ 81.
¶5 Therefore, we affirm the order of the District Court.
/S/ W. WILLIAM LEAPHART
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We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JIM RICE
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