McCormick v. Brevig

DA 06-0483
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 196JOAN K. McCORMICK, f/k/a JOAN K. BREVIG,
Plaintiff, Appellant and Cross-Respondent,
v.
CLARK A. BREVIG,
Defendant, Respondent and Cross-Appellant,
and
BREVIG LAND LIVE AND LUMBER, a Montana
General Partnership consisting of Joan K. Brevig
and Clark A. Brevig,
Defendant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DV 95-086
Honorable Wm. Nels Swandal, Presiding Judge
COUNSEL OF RECORD:
For Appellant and Cross-Respondent:
Michael J. Lilly; Berg, Lilly & Tollefsen, P.C., Bozeman, Montana
For Respondent and Cross-Appellant:
David A. Veeder, Jolane D. Veeder; Veeder Law Firm, Billings, Montana
Submitted on Briefs: March 28, 2007
Decided: August 14, 2007
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 This appeal marks the fourth appearance before this Court of the dispute between
siblings Joan K. McCormick (Joan) and Clark A. Brevig (Clark) concerning their
respective interests in the family partnership, Brevig Land, Live and Lumber (the
Partnership). Due to our opinion in McCormick v. Brevig, 2007 MT 195, Sup. Ct. No.
05-697, handed down this day, along with subsequent proceedings in the District Court,
this appeal is dismissed as moot.
¶2 For the factual and procedural background of this case, see McCormick v. Brevig,
1999 MT 86, 294 Mont. 144, 980 P.2d 603 (McCormick I), McCormick v. Brevig, 2004
MT 179, 322 Mont. 112, 96 P.3d 697 (McCormick II), and McCormick v. Brevig, 2007
MT 195, ___ Mont. ___, ___ P.3d ___ (McCormick III).
¶3 While McCormick III was pending, the District Court proceeded with the sale of
the Partnership assets, in accordance with our ruling in McCormick II. The sale was held
October 31, 2006. This fourth appeal concerns orders of the District Court that directed
how the sale was to be conducted.
¶4 The District Court issued its original Order for Sale of the Partnership assets on
September 20, 2005. This order, which has now been affirmed by our decision in
McCormick III, provided that the “net sale proceeds” of the sale received by the sheriff be
deposited with the clerk of the District Court pending any appeal. Joan and Clark,
however, disputed the definition of “net sale proceeds.” Clark sought a stay of execution
on this order, both in the District Court and this Court. However, no stay was granted.
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¶5 Joan presented the District Court’s order to the Fergus County sheriff and
demanded a sale of the Partnership assets. The sheriff refused. Joan then sought a writ
of mandamus from this Court ordering the sheriff to conduct the sale. The writ was
denied.
¶6 Following our denial of Joan’s petition for a writ of mandamus, the District Court
considered the sheriff’s concerns. On June 20, 2006, the District Court issued its “Order
Regarding the Court’s Order for Sale of Partnership Assets and Payment of Special
Master’s Fee,” which stated, “This Order is entered to clarify and amplify the Court’s
Order for Sale . . . entered on September 20, 2005.” This second order allowed Joan and
Clark to submit credit bids at the sale. That is, because each of them already owned part
of the property being sold, the amount of their bids would be credited with their
respective interests in the Partnership. Because the District Court had previously found
Joan had not paid for her full 50% ownership in the Partnership, Clark’s bid would be
credited with 50% of its amount, plus $1,322,761. Conversely, Joan’s bid would be
credited with 50% of its amount, minus $1,322,761.
¶7 The District Court’s clarifying order also allowed bidders to submit letters of
credit as proof of ability to pay the amount bid.
¶8 Joan appeals and Clark cross-appeals the District Court’s June 20, 2006, order.
¶9 Joan appeals that portion of the District Court’s clarifying order allowing Clark to
submit a credit bid. She argues the credit bid could result in insufficient cash to pay her
what she is owed. However, the record reveals that the sale has been completed, and
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Clark purchased the remaining Partnership assets for enough money to pay Joan what she
is owed.
¶10 Clark appeals that portion of the District Court’s clarifying order allowing letters
of credit to be submitted by bidders. However, he purchased the remaining Partnership
assets at the sale and, thus, now has no complaint about payment.
¶11 Because of the results of the sale which has taken place, the issues raised in this
appeal have been decided between these parties. Where a court’s judgment will not
effectively operate to grant relief, the matter is moot. Walker v. State, 2003 MT 134, ¶
40, 316 Mont. 103, ¶ 40, 68 P.3d 872, ¶ 40.
¶12 As a decision of this Court would not effectively operate to grant relief to Joan or
Clark on the issues raised, this appeal is dismissed.
/S/ JOHN WARNER
We concur:
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE
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