Blakley v. Rehurek ( 2010 )

May 18 2010
DA 09-0440, DA 09-0569
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 112N
IN RE: COTTONWOOD CAMP, LLP
ALVIN BLAKLEY and RHODA BLAKLEY,
Petitioners and Appellants,
v.
ROGER REHUREK,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Big Horn, Cause No. DV 08-70
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Penelope S. Strong; Attorney at Law, Billings, Montana
For Appellee:
Brad L. Arndorfer; Attorney at Law, Billings, Montana
Submitted on Briefs: April 21, 2010
Decided: May 18, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 2006, 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 Blakleys appeal pursuant to M. R. App. P. 6(3)(g) from the District Court’s orders
appointing a receiver and removing them from the business premises. We affirm.
¶3 Cottonwood Camp is a business partnership among the Blakleys and Roger
Rehurek. They operated a resort providing lodging and recreational fishing on the Big
Horn River near Ft. Smith, Montana. The business provided a steady stream of income
for a number of years until a rift developed between Blakleys and Rehurek some time
before May, 2008. At that time Blakleys filed an action against Rehurek seeking to
dissolve the partnership. The parties traded allegations of wrongdoing, including theft of
assets and assault. The District Court issued a no-contact order prohibiting the parties
from harassing, assaulting or stalking one another, from having any verbal, physical or
phone contact, and from being within 100 feet of the other’s residence. The order also
required that, except for scheduling fishing trips, the parties could communicate only
through counsel. The District Court ordered the parties to submit nominees for a receiver
and held an evidentiary hearing on the matter. The evidence included testimony about
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incomplete or missing financial records, unaccounted cash receipts, missing money and
the use of partnership assets for personal expenses. There was also testimony about the
disrepair of the resort buildings and erratic behavior by Mr. Blakley.
¶4 The District Court appointed a receiver. It is clear that under the facts the
appointment was justified and proper. The relationship among the principals in the
business had deteriorated to the point that they made mutual allegations of criminal
conduct and had agreed to the broad no-contact order entered by the District Court. The
business records were in disarray and money was not being properly accounted. Both
sides alleged that money had been improperly taken. After hearing, the District Court
found that Blakleys’ accounting and bookkeeping were insufficient and lacked safeguards
against financial abuse of the partnership profits. This, together with the “extreme
animosity” among the partners caused the District Court to conclude that the resort
property “is in danger of being lost, removed, or materially injured.” The District Court
properly acted to rescue and stabilize the business. Crowley v. Valley West Water Co.,
267 Mont. 144, 150-51, 822 P.2d 1022, 1025-26 (1994).
¶5 Blakleys also argue that the District Court improperly issued an order, at the
request of the receiver, that they vacate the various buildings that they had occupied at
the resort. The receiver petitioned the District Court that Blakleys were interfering with
his management of the resort and with his efforts to operate the business and hire
essential employees. The District Court’s prior order appointing the receiver had
empowered him to “forthwith take physical possession” of the partnership property and
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to “inventory, manage and operate” it. The order required that all the partnership
property be immediately delivered to the receiver.
¶6 It is clear from the District Court’s order appointing the receiver that the receiver
had the power and duty to possess and control all partnership property and operate and
manage the business. Blakleys’ refusal to cooperate with the receiver’s efforts to
stabilize and operate the business was contrary to that order and the District Court
properly exercised discretion to order that the property be relinquished to the receiver.
¶7 We decline to address Blakleys’ contention that the District Court improperly
granted judicial immunity to the receiver. It is not clear that the District Court expressly
did so and there is no showing that this issue was raised before the District Court.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. The issues are clearly controlled by settled Montana law. There
clearly is sufficient evidence to support the District Court’s findings of fact and
conclusions of law.
¶9 Affirmed.
/S/ MIKE McGRATH
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We concur:
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
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