                                         No. 01-274

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 98


RICHARD S. SHEPHERD, d/b/a WEBER CO.,

              Plaintiff/Appellant/Cross-Respondent,

         v.

CARBON COUNTY BOARD OF COMMISSIONERS
and DOES A-Z,

              Defendant/Respondent/Cross-Appellant.



APPEAL FROM:         District Court of the Twenty-Second Judicial District,
                     In and for the County of Carbon,
                     The Honorable Blair Jones, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Jacqueline T. Lenmark, Keller, Reynolds, Drake, Johnson & Gillespie, P.C.,
                     Helena, Montana

              For Respondent:

                    Steven R. Milch, Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
              Montana


                                          Submitted on Briefs: November 2, 2001

                                                                        Decided: May 9, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1    The Appellant, Richard S. Shepherd, brought an action in the

District Court for the Twenty Second Judicial District in Carbon

County in which he alleged that the Respondents, the Carbon County

Board of Commissioners and Does A-Z, violated his civil rights and

were negligent when the County Treasurer redeemed real property for

which Weber Co. held an assignment of the tax sale certificate

without     collecting          the   full       sum     statutorily      required   for

redemption.       The District Court dismissed the civil rights claim,

denied Respondents' motion for attorney fees and costs, and granted

summary     judgment       to   Respondents       on     the   issue     of   negligence.

Shepherd appeals the order of the District Court which dismissed

his civil rights claim and from the District Court order which

granted summary judgment to Respondents.                       The Respondents cross-

appeal the District Court's order which denied their motion for

attorney fees.        We affirm in part, reverse in part, and remand to

the District Court for further proceedings.

¶2    The following issues are presented on appeal:
¶3    1.      Did    the    District     Court         err   when   it   concluded   that

Shepherd's § 1983 claim failed to state a claim upon which relief

can be granted?

¶4    2.      Did the District Court err when it granted summary

judgment to Carbon County on the issue of negligence?

¶5    3.    Did the District Court err when it denied Carbon County's

motion for attorney fees and costs of suit?

                                 FACTUAL BACKGROUND

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¶6      On November 17, 1998, the Carbon County Treasurer issued an

assignment of tax sale certificate for the Roman Theater in Red

Lodge,       Montana,   to    the   Appellant,    Richard   S.    Shepherd.       The

redemption period for the property was to expire on February 13,

1999.    However, on February 8, 1999, the record owner, Tom Averill,

redeemed the property by paying $4,407.28.                      The Carbon County

Treasurer unintentionally overlooked an additional $56.30 for the

interest which had accrued between the December 15, 1998, date of

Notice That a Tax Deed May Be Issued and the date of redemption.
¶7      On    October   28,    1999,   Shepherd    filed    a   complaint    in   the

District Court for the Twenty Second Judicial District in Carbon

County in which he alleged that the County's failure to collect the

statutorily required amount for redemption deprived him of a

property interest without due process of law.                   Shepherd requested

general damages in an amount later determined to be $250,000.00,

punitive damages, and attorney fees and costs pursuant to 42 U.S.C.

§ 1983.       On November 22, 1999, $56.30 plus interest was tendered by

the County to Shepherd, but that amount was rejected.                       Shepherd

added a negligence claim in an Amended Complaint filed on March 21,

2000.

¶8      On August 4, 2000, following a hearing, the District Court

dismissed the § 1983 claim but denied the County's motion for

attorney fees as the prevailing party.               On January 17, 2001, the

District Court awarded summary judgment to the County on the

negligence claim, subject to payment of the $60.73 of accumulated

interest then owed to Shepherd.               Shepherd now appeals from the


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District Court's order which dismissed his § 1983 claim and from

the order which granted summary judgment to the County on the issue

of negligence.     The County cross-appeals that portion of the

District Court's order which denied its motion for attorney fees as

the prevailing party to a § 1983 suit.    We affirm in part, reverse

in part, and remand to the District Court for further proceedings

consistent with this opinion.

                             DISCUSSION

                                ISSUE 1
¶9    Did the District Court err when it concluded that Shepherd's §

1983 claim failed to state a claim upon which relief can be

granted?

¶10   Whether a complaint fails to state a claim upon which relief

can be granted is a conclusion of law subject to this Court's

determination of whether a district court's interpretation of the

law is correct.   Boreen v. Christensen (1994), 267 Mont. 405, 408,

884 P.2d 761, 762.

¶11   Shepherd argues that he has properly stated a claim pursuant

to 42 U.S.C. § 1983 because a tax lien is a substantive property

right that may not be taken without due process and compensation.

He cites our holding in James Talcott Const., Inc. v. P&D Land

Enter. (1993), 261 Mont. 260, 862 P.2d 395, for the notion that a

tax lien is a constitutionally protected property right and, based

on that premise, contends that the County's failure to collect the

full amount required for redemption violated his civil rights and

entitled him to damages and attorney fees pursuant to § 1983.


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¶12   The County contends that before § 1983 can be implicated,

Shepherd has to demonstrate that he lost a property right and that,

in this case, he had none to lose.           The County asserts that as a

matter of law the assignee of a tax sale certificate has a mere

inchoate right which can ripen into title under circumstances that

did not occur in this case because the property was redeemed.

¶13   Without discussing whether Shepherd had a property right, we

conclude that his claim fails as a matter of law for other obvious

reasons.      To prevail on a § 1983 claim, "the plaintiff must

establish:      (1) a violation of rights protected by the United

States Constitution or created by federal statute, (2) proximately

caused (3) by conduct of a "person" (4) acting under color of state

law."      Orozco v. Day (1997), 281 Mont. 341, 347, 934 P.2d 1009,

1012.
¶14   The right Shepherd alleges was violated was his right to due

process guaranteed by the Fourteenth Amendment to the United States

Constitution.        However, the process he was due is set forth at §§

15-18-111 to -114, MCA, pertaining to redemption of tax liens and,

except for the inadvertent miscalculation of the interest due, that

process was followed.

¶15   The miscalculation was, at most, a ministerial error.                    It

resulted in an underpayment of $56.30 which was later tendered with

interest but rejected by Shepherd.           To equate this miscalculation

with a denial of due process would trivialize the Constitution and

the important remedial purpose that § 1983 serves.                 Because there

was   no    denial    of   due   process,   there   was   no   §    1983   claim.


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Therefore, we hold that the District Court did not err when it

concluded that Shepherd's § 1983 claim should be dismissed pursuant

to Rule 12(b)(6), M.R.Civ.P.       Accordingly, that portion of the

District Court's August 4, 2000, order is affirmed.

                                 ISSUE 2

¶16   Did the District Court err when it granted summary judgment to

Carbon County on the issue of negligence?

¶17   The District Court granted summary judgment to the County

based on its conclusion that § 15-18-114, MCA, provides that when a

tax lien is redeemed, a prospective tax deed purchaser is owed the

money paid plus interest.      Therefore, the District Court reasoned

that § 15-18-114, MCA, provides the remedy for the lienholder and

limits the amount of recovery.          The District Court noted that

$56.30 of interest was owed, and that that amount, plus interest,

was offered prior to litigation.
¶18   Shepherd contends that the District Court erred when it

dismissed   the   negligence   claim    by   summary   judgment.   First,

Shepherd contends that the procedure for redeeming tax liens is set

forth at §§ 15-18-112, -113, MCA, and that because the County did

not comply with that procedure, the Treasurer was negligent for

which he is entitled to compensatory damages.            Second, Shepherd

contends that § 15-18-114, MCA, merely outlines the redemption

procedure when the property is properly redeemed.            According to

Shepherd, it does not apply to a situation such as this where a

negligence action is brought for improperly extinguishing a lien.

Shepherd contends that the applicable statute is § 27-1-317, MCA,


                                    6
which provides that for breach of an obligation not arising from a

contract, the measure of damages is the amount which compensates

for all detriment caused.

¶19   Regardless of the statute relied on, Shepherd was tendered all

the damage caused by the Treasurer's omission when he was offered

$56.30 plus interest on November 22, 1999.     Had the Treasurer not

been mistaken, that is the full additional amount he would have

received.   Once tendered, it was no longer owed.   Without damages,

there is no claim for negligence.         Accordingly, the District

Court's order which granted summary judgment to the County on the

issue of negligence is affirmed.
                              ISSUE 3

¶20    Did the District Court err when it denied Carbon County's

motion for attorney fees and costs of suit?

¶21   On cross-appeal, the County contends that the District Court

erred when it declined to award the County attorney fees as the

prevailing party on a § 1983 claim.     The District Court found that

Shepherd's action was not unreasonable or vexatious, and on that

basis declined to award attorney fees to the County.     We review a

district court's findings of fact to determine whether they are

clearly erroneous.   Daines v. Knight (1995), 269 Mont. 320, 324,

888 P.2d 904.

¶22   A district court may award attorney fees to a prevailing

defendant upon finding that the plaintiff's action was frivolous,

unreasonable, or without foundation.      Hughes v. Rowe (1980), 449

U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163.      Furthermore, an


                                   7
award of attorney fees to the prevailing defendant in a § 1983 case

is warranted if a plaintiff continued to litigate after it became

apparent that his action lacked factual or legal substance.    See,

e.g., Hughes, 449 U.S. at 15, 101 S.Ct. at 178.

¶23   Despite Shepherd's contentions at the hearing that the amount

the Treasurer failed to charge for redemption is irrelevant, we

conclude that bringing a civil rights claim resulting from a

clerical error that amounted to $56.30 of damages is unnecessary,

vexatious, and without basis in Montana law.   It is disingenuous at

best to contend that by virtue of a ministerial mistake, Shepherd

has suffered denial of due process for which he is entitled to

damages over and above the amount to which he would have recovered

pursuant to § 15-18-114, MCA, had no clerical error ever occurred.


¶24   Therefore, we conclude that Shepherd's § 1983 claim was

groundless, meritless, and vexatious and that the District Court's

contrary finding was clearly erroneous.    We note that even after

Shepherd was tendered the full amount he was owed, he proceeded

cavalierly to engage in litigation which required the County to

defend his meritless claim.   Given these circumstances, the County

is entitled to its attorney fees and costs associated with its

motion to dismiss the § 1983 claim.   Accordingly, we remand to the

District Court for a determination of that amount.

¶25   For these reasons, we affirm in part, reverse in part, and

remand to the District Court for further proceedings consistent

with this opinion.


                                 8
                          /S/ TERRY N. TRIEWEILER


We Concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM REGNIER




                      9
Chief Justice Karla M. Gray, concurring in part and dissenting in
part.


¶26    I join in the Court's opinion on issues one and two.                                  I

respectfully dissent from that opinion on issue three, however, wherein

the Court reverses the District Court's denial of the County's motion for attorney fees.

¶27    The Court correctly cites to Hughes for the test to be applied

by a trial court in determining whether to award attorney fees to a

defendant prevailing on an asserted §1983 claim.                        Rephrased only

slightly from the Court's opinion, the test is that, upon a finding

that the plaintiff's action was frivolous, unreasonable or without

foundation,       a   district      court     may    award     attorney      fees     to    a

prevailing defendant.             In other words, first there must be an

affirmative finding and, thereafter, the matter is within the

court's discretion.
¶28    In the present case, the District Court did not make the

predicate "frivolous, unreasonable or without foundation" finding.

  Indeed,      the     District      Court        determined     "[a]fter      carefully

considering the arguments at hearing on this matter that, while
Shepherd's view . . .            [was] erroneous, it was advanced in a good

faith argument."         Absent the predicate finding,             the District Court

could not exercise its discretion in favor of the County on the

matter of attorney fees.

¶29    This    Court      concludes       that      Shepherd's      §1983     claim        was

groundless, meritless and vexatious, and that the District Court's

finding to the contrary was clearly erroneous.                        It does not say


                                             10
which prong of the clearly erroneous test it applies in reaching

that conclusion.

¶30   In my view, this Court has merely substituted its judgment for

that of the District Court, the court most intimately acquainted

with the particulars of the case.     It has done so even in the face

of the District Court's statement that it carefully considered the

arguments before it.

¶31   It is not this Court's job to decide whether we would have

made a different finding than the District Court.    It is our job to

accord the finding actually made the deference it is due--and

accept it--unless the finding meets one of the oft-stated and well

established prongs of our clearly erroneous test for findings

entered by Montana's district courts.
¶32   Here, it is my view that the District Court's finding does not

meet any prong of the clearly erroneous test and, therefore, the

finding is not clearly erroneous.       I would affirm the District

Court's denial of the County's motion for attorney fees, and I

dissent from the Court's failure to do so.


                                           /S/ KARLA M. GRAY




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