Funke v. City of Polson

December 1 2009
DA 09-0350
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 411RYAN FUNKE,
Plaintiff and Appellee,
v.
THE ESTATE OF BERT SHULTZ, d/b/a
BAYVIEW CENTER,
Defendant,
and
CITY OF POLSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DV 04-176
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William L. Crowley; Boone Karlberg P.C., Missoula, Montana
For Appellee:
John M. Fitzpatrick; Buxbaum, Daue & Fitzpatrick, PPL, Missoula,
Montana
Submitted on Briefs: October 28, 2009
Decided: December 1, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 The Twentieth Judicial District Court, Lake County, denied the City of Polson’s
post-judgment motion to eliminate the assessment of interest from the judgment entered
against it in this matter. The City appeals. We reverse.
¶2 The issue is whether the District Court erred in denying the City’s motion to
remove the assessment of post-judgment interest from the judgment against the City.
BACKGROUND
¶3 Funke brought this action to recover damages for injuries he suffered when a deck
on which he was standing at the Diamond Horseshoe lounge and casino collapsed in
2004. A jury trial was held, and the jury found for Funke, apportioning liability 95
percent to the Estate of Bert Shultz and 5 percent to the City of Polson. The District
Court entered judgment accordingly, ordering that the $618,491.46 judgment shall bear
interest at the legal rate of 10 percent from the date of original judgment. On February
24, 2009, we affirmed the District Court’s judgment against the defendants. Funke v.
City of Polson, 2009 MT 49N.
¶4 On April 17, 2009, the City moved the District Court to amend the judgment,
pursuant to M. R. Civ. P. 60(a), “to correct a clerical mistake.” The City pointed out the
court had failed to apply § 2-9-317, MCA. That statute provides:
Except as provided in 18-1-404(1)(b), if a governmental entity pays a
judgment within 2 years after the day on which the judgment is entered, no
penalty or interest may be assessed against the governmental entity.
The City argued that, because it paid the principal amount of the judgment against it
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within 2 years after the judgment was entered, it could not be required to pay interest on
the judgment.
¶5 Funke opposed the motion on two grounds: that the issue raised did not fit the
definition of a “clerical mistake,” and that the City had waived its argument by failing to
move to amend the judgment within 10 days after it was entered, under M. R. Civ. P.
59(g), or for relief from the judgment within 60 days under M. R. Civ. P. 60(b), and by
failing to raise the issue on appeal to this Court. The District Court denied the City’s
motion to amend the judgment in a brief order, without setting forth its rationale. The
City appeals.
STANDARDS OF REVIEW
¶6 We review rulings on Rule 60(a) motions for abuse of discretion. Muri v. Frank,
2001 MT 29, ¶ 7, 304 Mont. 171, 18 P.3d 1022. Our standard of review of the
interpretation and application of a statute to particular circumstances is whether the
district court was correct as a matter of law. Yellowstone Fed. Credit Union v. Daniels,
2008 MT 111, ¶ 11, 342 Mont. 451, 181 P.3d 595.
DISCUSSION
¶7 Did the District Court err in denying the City’s motion to remove the assessment
of post-judgment interest from the judgment against the City?
¶8 The City’s motion to correct the assessment of judgment interest was premised on
the idea that inclusion of interest against the City was a clerical error. The District Court
rejected that claim.
¶9 We previously discussed the meaning of “clerical mistake” as used in M. R. Civ.
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P. 60(a), in In re Marriage of Schoenthal, 2005 MT 24, ¶ 19, 326 Mont. 15, 106 P.3d
1162. In that case, the appellant attempted to categorize the trial court’s adoption of
findings not supported by the record and omission of certain necessary findings as
clerical error. We said:
Clerical mistakes and errors are those errors which misrepresent the court’s
original intention. It is not the purpose of Rule 60(a) to set aside a
judgment actually rendered nor change what was originally intended. . . .
“In case of an omission or error in the record, the power exists in the court
to amend such record so that it shall conform to the actual facts and truth of
the case; but a court cannot amend its record to correct a judicial error or to
remedy the effect of judicial non-action. . . . The authority of a court to
amend its record by a nunc pro tunc order is to make it speak the truth, but
not to make it speak what it did not speak but ought to have spoken. . . .
Errors into which the court itself falls can be corrected only by motion for a
new trial or by appeal.
. . . [O]rders made by a court through mistake, inadvertence, want of
sufficient consideration, oversight or otherwise, where they affect the
substantial rights of litigants are judicial errors and cannot be corrected or
removed by summary action of the court which made them[.]”
Marriage of Schoenthal, ¶ 19 (citations omitted). We rejected the appellant’s Rule 60(a)
argument as to several matters on which the district court had made its decision based on
the record and that decision was reflected in the decree. See Marriage of Schoenthal, ¶¶
22-26. However, as to several matters on which the district court did not make findings,
and as to a figure in the judgment supposedly representing the amount of debt on a parcel
of real property—for which figure there was no support in the record—we ruled the
district court had abused its discretion by not considering possible errors, and remanded
to allow the court to consider whether clerical error existed. See Marriage of Schoenthal,
¶¶ 27, 28.
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¶10 Here, the attempt to shoehorn consideration of § 2-9-317, MCA, into the “clerical
error” category fails. There simply is no indication in the record that the District Court
intended to apply the statute at the time it entered judgment. Assuming that the City of
Polson had not yet paid the judgment at the time judgment was entered—as seems
logical—application of § 2-9-317, MCA, would have been premature at the time the
judgment was entered. We conclude the City’s motion to eliminate from the judgment
the assessment of interest was not cognizable as a Rule 60(a) motion. To that extent, the
District Court was correct.
¶11 However, the District Court’s failure to apply § 2-9-317, MCA, in this case was an
error of law. It is uncontested that the City paid the principal amount of the judgment
against it within 2 years after the judgment was entered. Further, the City did not waive
argument based on § 2-9-317, MCA—it raised the statute in the pretrial order. When the
City paid the judgment within 2 years after its entry, the portion of the judgment
requiring the City to pay interest was rendered invalid, pursuant to § 2-9-317, MCA.
¶12 We have held on numerous occasions that the substance of a document controls,
not its caption. Mallak v. State, 2002 MT 35, ¶ 15, 308 Mont. 314, 42 P.3d 794. So it is
with the City’s motion. To affirm the District Court’s denial of the City’s motion as
within the court’s discretion under M. R. Civ. P. 60(a) would be incorrect, as a matter of
law, because the court failed to apply § 2-9-317, MCA. Similarly, Funke’s argument that
the City’s motion was subject to, and did not meet, M. R. Civ. P. 59 time requirements
must fail. The 2-year timeframe granted under § 2-9-317, MCA, extends long beyond the
10 days allowed for motions to amend the judgment under Rule 59. Requiring
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applications of § 2-9-317, MCA, to meet Rule 59 time requirements would gut the 2-year
provision of the statute.
¶13 We previously have upheld a district court’s elimination of an assessment of
judgment interest against the State of Montana which was based on a motion for a nunc
pro tunc order applying § 2-9-317, MCA. See Weber v. State, 258 Mont. 62, 65-66, 852
P.2d 117, 119-20 (1993). Alternatively, a motion to apply § 2-9-317, MCA, could be
entitled as precisely that.
¶14 We conclude the District Court erred in failing to apply § 2-9-317, MCA, and
strike the assessment of post-judgment interest from the judgment against the City.
Reversed and remanded for further proceedings consistent with this Opinion.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
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