Showell v. Schmart

October 18 2011
DA 11-0316
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 261N
JEFFREY SHOWELL,
Plaintiff and Appellant,
v.
SCHMART, LLC,
Defendant and Appellee.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Toole, Cause No. DV-08-046
Honorable Laurie McKinnon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeffrey Showell (Self-Represented), Bowling Green, Ohio
For Appellee:
Nathan J. Hoines, Eric Biehl, Hoines Law Office, P.C.,
Great Falls, Montana
Submitted on Briefs: September 28, 2011
Decided: October 18, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 In 2006, four tax lien sales occurred in Toole County on properties owned by
Schmart, LLC. These four properties were assigned to Olympian Hiawatha, LLC
(Hiawatha), in December 2007. Hiawatha was a business licensed in Montana to acquire
tax deeds. It was owned by Jeffrey Showell but Showell has since voluntarily dissolved
Hiawatha.
¶3 On July 14, 2008, the Toole County Treasurer issued the four tax deeds to
Hiawatha. Hiawatha filed the deeds and then transferred them to Showell. Showell filed
a quiet title action on July 24, 2008. Schmart defended against the action and the parties
ultimately moved for summary judgment. The District Court determined that Hiawatha’s
notices to Schmart were defective, and therefore the deeds were void. Showell appealed
the District Court’s order on summary judgment and we reversed and remanded, holding
that the District Court applied the incorrect statutes in its analysis.
¶4 Upon remand, the District Court scheduled the matter for a bench trial on March
25, 2011. At the close of trial, the District Court requested proposed findings of fact and
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conclusions of law and order from the parties. The District Court record includes
Schmart’s proposed findings and conclusions but does not include any such document
from Showell. The District Court ruled in favor of Schmart on May 3, 2011, holding that
the Toole County Treasurer issued the tax deeds prematurely and they were therefore
void. The court concluded Schmart, LLC, remained the proper owner of the properties.
The court’s order does not include any reference to reimbursement of funds or
§§ 15-18-112 or -412, MCA.
¶5 Citing §§ 15-18-112 and -412, MCA, Showell appeals—not the District Court’s
holding that Schmart owns the four properties—but the District Court’s failure to order
Schmart to reimburse him for the taxes, penalties, interest and costs Hiawatha paid when
it purchased the four property tax liens.
¶6 Showell argues on appeal the court’s failure to address this was error and we
should remand to the District Court with instructions that the District Court order
Schmart to “completely redeem the 4 tax liens with costs and interest to date as per MCA
15-18-112(2) . . . .” Schmart counters that Showell did not raise this issue during the trial
nor did he provide any evidence upon which the District Court could have rendered such
a decision. Additionally, Schmart asserts, neither statute cited by Showell in his appeal
brief require the District Court to raise the issue sua sponte. In his reply brief, Showell
does not refute Schmart’s argument.
¶7 We note that in April 2009, Showell requested an order from the District Court
instructing Schmart “to deposit with the [c]ourt the amount of all taxes, interest,
penalties, and costs paid by [Showell],” in accordance with § 15-18-411, MCA. Showell,
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however, provided no evidence as to the amount he was requesting. The District Court
denied the request on multiple grounds. Showell re-filed a Request for Order, attaching
the tax deeds and indicating the Toole County Treasurer had calculated the amount, as of
June 24, 2009, to be $7,366.29. Schmart challenged Showell’s Request for Order and a
hearing was set. While awaiting the hearing date, both parties filed motions for summary
judgment. Showell then withdrew his request for an order stating that because the matter
was moving toward resolution, his request for the order was moot.
¶8 The record before us on appeal contains no documents reflecting that the issue
presently on appeal was raised in the District Court following remand. Moreover, as
Showell has not filed a transcript of the bench trial, we have no way of ascertaining if he
presented evidence during the bench trial to support an order of reimbursement of the
taxes, penalties, interest and costs incurred in the purchase of the tax liens. Under
M. R. App. P. 8(2), it is incumbent upon the appellant to provide this Court with a record
sufficient to enable us to rule upon the issues raised. Showell has not done so.
¶9 Lastly, presuming Showell failed to raise the issue with the District Court
following remand and during trial, he is attempting to raise this issue for the first time on
appeal. It is well-established that we will not address an issue raised for the first time on
appeal. Weaver v. Advanced Refrigeration, 2011 MT 174, ¶ 18, 361 Mont. 233, 257 P.3d
378 (citation omitted).
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
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District Court’s findings of fact are supported by substantial evidence and the legal issues
are controlled by settled Montana law, which the District Court correctly interpreted.
¶11 We affirm.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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