06/21/2016
DA 15-0488
Case Number: DA 15-0488
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 155N
HELEN L. BRITTON and JOHN R. BRITTON,
or their Successors, as TRUSTEES OF
THE BRITTON JOINT TRUST,
Plaintiffs, Counterclaim
Defendants and Appellees,
v.
ELISE C. BROWN,
Defendant, Counterclaim
Plaintiff and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DV 07-299
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Randy J. Cox, Boone, Karlberg P.C., Missoula, Montana
Jack R. Tuholske, Tuholske Law Office PC, Missoula, Montana
For Appellee:
Kyle A. Gray, Michelle M. Sullivan, Holland & Hart LLP, Billings,
Montana
William T. Wagner, Garlington, Lohn & Robinson, PLLP, Missoula,
Montana
Jane E. Cowley, Worden Thane P.C., Missoula, Montana
Submitted on Briefs: April 13, 2016
Decided: June 21, 2016
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Elise C. Brown appeals the judgment of the Twentieth Judicial District Court,
Lake County. Specifically, Brown contests the portion of the judgment that granted the
Brittons a septic easement burdening Brown’s portion of the partitioned property, which
was later reiterated by oral order on the Brittons’ motion to enforce judgment. We
affirm.
¶3 The parties are owners as tenants in common of property located on Flathead
Lake, which they inherited from Helen Britton’s and Brown’s parents. In 2007, the
Brittons sued Brown seeking partition of the property. After much litigation, in 2014, the
District Court conducted a three-day bench trial resulting in a judgment that ordered the
partition in kind of the property into two parcels of equal value. The court based its order
in part on a professional appraisal prepared for the purposes of the litigation by appraiser
James Kelley, on behalf of Brown. The court awarded Brown “hypothetical parcel one,”
and the Brittons “hypothetical parcel two,” each “as set forth in the Kelley Appraisal.”
Brown’s parcel included a cabin with a private septic system, and a boat dock. The
Brittons’ parcel included no improvements. Under the descriptions of both parcels the
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appraisal outlined the proposal for a septic easement burdening parcel one. The appraisal
further reflected the value of the easement in the valuation of parcel one.
¶4 In April 2015, the Brittons filed a motion for enforcement of judgment seeking to
enforce the provisions of the judgment that apply to surveying the partition line and the
septic easement. In response and on appeal, Brown maintains a septic easement
burdening her portion of the property was not created by the judgment. In July 2015, the
court held a hearing on the Brittons’ motion. At the conclusion of the hearing the court
determined the septic easement was not at issue, and to the extent the judgment was
unclear regarding the easement’s existence the court determined the Kelley Appraisal
accounted for the easement in the valuation of the parcels, which the court both intended
to and did incorporate into the judgment.
¶5 A court has the “inherent power to enforce its judgments and decrees, and to make
such orders and issue such process as may be necessary to render [judgments and
decrees] effective.” Smith v. Foss, 177 Mont. 443, 446,
582 P.2d 329, 332 (1978)
(citation omitted). Furthermore, a court has the power to amend a judgment to express
what the court actually decided and grant the relief it originally intended. In re Marriage
of Cannon,
215 Mont. 272, 274,
697 P.2d 901, 902 (1985). A court may correct any
clerical error found in a judgment at any time. M. R. Civ. P. 60(a). A clerical error is
one that misrepresents the court’s original intention,1 the correction of which is reviewed
for an abuse of discretion. Funke v. Estate of Shultz,
2009 MT 411, ¶¶ 6, 9,
353 Mont.
492,
223 P.3d 839.
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As opposed to a judicial error, the correction of which reflects a change to the court’s original
intent.
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¶6 The original judgment clearly intended to partition the property into two equally
valued parcels. In order to achieve this goal the court relied on the expert testimony
offered by the parties, including the Kelley Appraisal. The Kelley Appraisal specifically
described the easement in its assessment of the parcels, and included the value of an
easement burdening “hypothetical parcel one” in the valuation of both parcels. To ignore
the easement in its entirety would frustrate the purpose of creating two equally valued
parcels, giving one party a greater valued parcel.
¶7 It is clear that post-judgment the parties disputed, whether based on the language
of the judgment, the easement exists. To clarify confusion related to the easement’s
inclusion in the original judgment the court issued an oral order, which is allowed at any
time under Montana law. We hold the court did not abuse its discretion in orally
clarifying the original judgment to reflect its original intent to create two equally valued
parcels, including the creation of a septic easement for the benefit of “hypothetical parcel
two.”
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶9 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
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/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
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