97-199




                                                                         No. 97-199

                                      IN THE SUPREME COURT OF THE STATE OF MONTANA


                                                                        1998 MT 83N



                                                                                DENNIS RAY WOLDSTAD,

                                                           Plaintiff and Appellant,

                                                                                                             v.

                                                    JAMES DUPONT a/k/a JIM DUPONT,
                                                      FLATHEAD COUNTY SHERIFF, as
                                                         provided in § 7-32-2131, MCA, and
                                                                DOES 1 though 10 inclusive,

                                                        Defendants and Respondents.



                 APPEAL FROM:                  District Court of the Eleventh Judicial District,
                                                      In and for the County of Flathead,
                                              The Honorable Katherine R. Curtis, Judge presiding.


                                                                 COUNSEL OF RECORD:

                                                                     For Appellant:

                                             Richard L. Musick, Kalispell, Montana

                                                                    For Respondent:

                           Stephen C. Berg, Warden, Christiansen, Johnson & Berg,
                                             Kalispell, Montana




                                              Submitted on Briefs: August 14, 1997

                                                            Decided: April 14, 1998
                                                                     Filed:




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                                            _________________________________________
                                                             Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
Internal Operating Rules, the following decision shall not be cited as precedent
but shall be filed as a public document with the Clerk of the Supreme Court
and shall be reported by case title, Supreme Court cause number and result to
the State Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.

¶2   Dennis Ray Woldstad (Woldstad) brought this action in the District
Court for the Eleventh Judicial District, Flathead County, to recover damages
from the Flathead County Sheriff, James Dupont (Dupont), for failing to levy
on a Writ of Execution. Woldstad and Dupont filed cross motions for
summary judgment. The court granted portions of each party's summary
judgment motion and awarded Woldstad judgment in the amount of $200.
Woldstad appeals the District Court's order. We remand for further
proceedings consistent with this opinion.

¶3        Woldstad raises the following issues on appeal:

¶4   1. Whether the District Court erred in failing to grant Woldstad's
motion for summary judgment for the value of personal property other than the
contract for deed.

¶5   2. Whether the District Court erred in ruling that the July 22, 1994
injunction was still in effect as to the contract for deed after the court's April
27, 1995 order.

                     Factual and Procedural Background

¶6   Woldstad was the respondent in a marital dissolution case filed in June
1993, by Martha Doyle Woldstad (Martha). Martha failed to appear at a
hearing in the matter, and, in the May 17, 1994 dissolution decree, Woldstad
was awarded $30,000 of the equity in the family home; personal property, or
its replacement value, as set forth in a list attached to the decree; $900 per
month maintenance for 24 months; and Woldstad's attorney's fees amounting
to $4,000. Woldstad was ordered to pay $1000 of the balance on a note for
equipment.

¶7   Martha attempted to have the judgment set aside claiming to have been
suffering from mental illness at the time of the hearing which prevented her
from appearing. Then District Judge Michael Keedy failed to rule on Martha's
motion to set aside the judgment, thus, by operation of law, the motion was
deemed denied after 60 days. Martha appealed to this Court on January 18,
1995, and we dismissed the appeal as untimely.

¶8        Martha held a vendor's interest in a contract for deed.                                                   On July 21,

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1994, she filed a motion for a temporary injunction seeking to enjoin the
sheriff from selling her interest in the contract to satisfy the judgment. Judge
Keedy granted Martha's motion and ordered that all monies paid on the
contract be held in escrow pending further order of the court. On January 30,
1995, Woldstad requested and was issued a Writ of Execution representing
that Martha owed him more than $135,000. Woldstad attempted to execute
against the escrow account, but on February 8, 1995, District Judge Katherine
Curtis stayed execution of the writ against the funds held in the escrow
account.

¶9   On April 5, 1995, Martha filed a parallel civil action against Woldstad
contending fraud. District Judge Ted Lympus issued a temporary restraining
order (TRO) in the fraud action on April 21, 1995, enjoining any attempt to
levy against personal property owned by Martha. Woldstad filed a challenge
for cause of Judge Lympus in the fraud action pursuant to § 3-1-805, MCA.
The challenge for cause was later denied following a hearing.

¶10 On April 27, 1995, Judge Curtis ordered the funds held in the escrow
account pursuant to Judge Keedy's July 22, 1994 order released to Woldstad.
On May 3, 1995, Woldstad obtained a Writ of Execution from a deputy clerk
of the Eleventh Judicial District Court. The praecipe attached to the Writ of
Execution contained an extensive list of property available for execution,
including the contract for deed. Woldstad wanted Martha's interest in this
contract for deed sold at a sheriff's sale, however, Dupont refused to execute
on any of the property. Instead, his clerk telephoned Woldstad's counsel on
May 16, 1995, stating that Dupont believed the TRO issued by Judge Lympus
in the fraud action was still in effect. Dupont did not mark his return on the
writ nor return it to the clerk of court for filing.

¶11 On June 9, 1995, Woldstad filed a motion to remove the TRO and on
June 12, 1995, Martha filed an application for a preliminary injunction. Judge
Lympus recused himself from the fraud action on June 14, 1995, and on
August 11, 1995, District Judge Michael Prezeau accepted jurisdiction of the
case. On September 29, 1995, Judge Prezeau issued a TRO enjoining
Woldstad from seeking to levy upon Martha's personal property and on
October 18, 1995, Judge Prezeau issued a preliminary injunction enjoining
Woldstad from levying upon the escrow account containing the proceeds of
the sale of the contract for deed.

¶12 Woldstad filed a complaint on September 29, 1995, seeking damages
from Dupont for Dupont's failure to levy upon the writ. He also claimed that
Dupont failed to properly return the writ and he sought as damages the value
of all personal property not executed upon. Dupont filed his Answer on
December 8, 1995, generally setting forth affirmative defenses justifying his
failure to honor the writ.

¶13 Woldstad and Dupont filed cross motions for summary judgment.
Woldstad argued that during the period between May 2, 1995, and September
29, 1995, there was no injunction or restraining order relieving Dupont of his
duty to execute on Martha's property. Woldstad contended that Judge Keedy's


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July 22, 1994 order had been revoked by the April 27, 1995 order of Judge
Curtis. Woldstad also contended that the TRO issued by Judge Lympus on
April 21, 1995, expired on May 1, 1995, ten days after it was issued, thus, the
TRO was not enforceable on May 3, 1995, when the writ was issued. Dupont
argued that there were orders still in effect prohibiting execution on the writ,
that an action for damages pursuant to § 7-32-2131, MCA, is not the proper
remedy, and that the writ was returned by way of the telephone call to
Woldstad's counsel.

¶14 On January 21, 1997, Judge Curtis issued her Order on Motions for
Summary Judgment and Rationale concluding that mandamus does not lie in
this case and granting portions of each party's summary judgment motion.
Judge Curtis determined that there was a valid court order in effect at the time
the writ was issued enjoining a sheriff's sale of the contract for deed, thus it
was not property "liable to be levied upon or sold" as required by § 7-32-2131,
MCA.

¶15 Judge Curtis ruled that although the April 21, 1995 TRO of Judge
Lympus did expire after ten days, the July 22, 1994 order of Judge Keedy was
still in effect when the May 3, 1995 writ was issued. She characterized the
Keedy order as having two components, one component dealing with the
contract for deed itself and one component dealing with the funds held in
escrow from payments on the contract for deed. Judge Curtis stated that her
order of April 27, 1995, only dealt with the funds held in escrow, not with the
contract for deed itself. She therefore concluded that since an order
prohibiting execution on the contract for deed was still in effect, Dupont was
not liable to Woldstad for damages. However, Judge Curtis did determine that
Dupont had not made a proper return on the writ and that Woldstad was
entitled to judgment in the amount of $200 pursuant to § 7-32-2131(1), MCA.
Woldstad appeals.
                   Standard of Review

¶16 Our standard of review in appeals from summary judgment rulings is
de novo. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239,
242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872
P.2d 782, 785. When we review a district court's grant of summary judgment,
we apply the same evaluation as the district court based on Rule 56,
M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900
P.2d 901, 903. We set forth our inquiry in Bruner as follows:
     The movant must demonstrate that no genuine issues of material
     fact exist. Once this has been accomplished, the burden then
     shifts to the non-moving party to prove, by more than mere
     denial and speculation, that a genuine issue does exist. Having
     determined that genuine issues of fact do not exist, the court
     must then determine whether the moving party is entitled to
     judgment as a matter of law. We review the legal
     determinations made by a district court as to whether the court
     erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).


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                                              Discussion

¶17 Before engaging in a discussion of the issues raised in this case, we
address Dupont's contention that Woldstad's proper remedy was to seek a writ
of mandate pursuant to § 27-26-101, MCA, to compel Dupont to levy upon
the property listed in the Writ of Execution. Dupont argues that Woldstad has
no claim for damages until he has tested the return through a writ of mandate.

¶18 There are two requirements that must be met by a party seeking a writ
of mandate. First, the party must demonstrate an entitlement to the
performance of a clear legal duty, and, second, the party must demonstrate the
absence of a speedy and adequate remedy in the ordinary course of law.
Section 27-26-102, MCA; Larson v. State, Dept. of Justice (1996), 275 Mont.
314, 317, 912 P.2d 783, 785. See also Franchi v. County of Jefferson (1995),
274 Mont. 272, 275, 908 P.2d 210, 212; State v. Dept. of Social & Rehab.
Serv. (1995), 274 Mont. 157, 161, 906 P.2d 204, 206; Becky v. Butte-Silver
Bow Sch. Dist. 1 (1995), 274 Mont. 131, 135, 906 P.2d 193, 195).

¶19 "A negative answer to the first question bars the issuance of the writ,
and, irrespective of the answer to that question, an affirmative answer to the
second, divests the court of authority to issue it." Larson, 275 Mont. at 317,
912 P.2d at 785 (citing State ex rel. Chisholm v. District Court (1986), 224
Mont. 441, 443, 731 P.2d 324, 325; State ex rel. Musselshell County v.
District Court (1931), 89 Mont. 531, 534, 300 P. 235, 236).

¶20 In the case before us, Woldstad meets the first requirement for a writ
of mandate because, by statute, he is entitled to the performance of a clear
legal duty:
          If the sheriff to whom a writ of execution or attachment
     is delivered neglects or refuses, after being required by the
     creditor or his attorney, to levy upon or sell any property of the
     party charged in the writ which is liable to be levied upon or
     sold, he is liable to the creditor for the value of such property.

Section 7-32-2131(2), MCA. This subsection of the statute has been in effect
in this identical form for more than 75 years. In an early case analyzing this
statute, this Court stated that it "not only furnishes a remedy, but is itself a
legislative declaration that the remedy so provided is prima facie plain, speedy
and adequate." State ex rel. Duggan v. District Court (1922), 65 Mont. 197,
201, 210 P. 1062, 1063.

¶21 In Duggan, this Court went on to hold that where a judgment is for
money, an action for damages furnishes a plain, speedy and adequate remedy.
Duggan, 65 Mont. at 200, 210 P. at 1063. On the other hand, if the applicant
for the writ is entitled to the possession of specific property, an action for
damages is not an adequate remedy. Duggan, 65 Mont. at 201, 210 P. at 1063.

¶22 Dupont contends that the Writ of Execution in the instant case was for
specific personal property rather than for money, thus, a writ of mandate rather
than an action for damages is the proper remedy. We disagree. The Writ of

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Execution indicates a specific monetary balance due on the judgment. Granted
that attached to the writ are several lists of personal property, however, all of
this property was to be sold to satisfy the monetary judgment. One list
enumerates various items belonging to Martha and it specifically directs that
the "earliest execution and sale on the above items will be most appreciated."
This list also states that the "Land Contract previously attached by the
Flathead County Sheriff in this cause [is] to be set for Sheriff's Sale at the next
available opportunity." In addition, this list references the personal property
that the dissolution decree directed was to be returned to Woldstad and states
that this property is also subject to sale to satisfy the monetary judgment.

¶23 Just because the Writ of Execution in this case includes lists of personal
property does not mean that the writ was intended to be solely for the return
of that property. As already noted, most of this property was expressly
directed to be sold to satisfy the monetary judgment. Therefore, we conclude
that the writ was for monetary damages and under Duggan, where a judgment
is for money, an action for damages does provide a speedy and adequate
remedy. Duggan, 65 Mont. at 200, 210 P. at 1063.

¶24        Furthermore, under § 7-32-2131(1), MCA:
               If the sheriff does not return a notice or process in his
          possession with the necessary endorsement thereon without
          delay, he is liable to the party aggrieved for $200 and for all
          damages sustained by him. [Emphasis added.]

Thus, if Dupont failed to do what was required of him and he is liable to
Woldstad for damages, then it was appropriate for Woldstad to file an action
for damages.

¶25 Issuance of a writ of mandate in this case would have been precluded
because Woldstad did have a speedy and adequate remedy, namely, filing an
action for damages. As we noted previously, where there is an adequate legal
remedy, the district court has no authority to issue a writ of mandate. Larson,
275 Mont. at 317, 912 P.2d at 785.
                        Issue 1.

¶26 Whether the District Court erred in failing to grant Woldstad's
motion for summary judgment for the value of personal property other
than the contract for deed.

¶27 The May 3, 1995 Writ of Execution included a list of Martha's personal
property to be seized and sold to satisfy the money judgment. Included within
this list, along with the contract for deed, were a computer, a laser printer, a
slide projector, a photocopier, binoculars, several revolvers, a rifle,
televisions, and furniture. Dupont failed to seize any of this property as
commanded by the writ claiming that there was an order in effect prohibiting
his execution on that property. Woldstad moved for summary judgment
contending that during the period between May 2, 1995, and September 29,
1995, there was no injunction or restraining order relieving Dupont of his duty
to seize Martha's property. Woldstad also contended that he was entitled to


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judgment under § 7-32-2131(1), MCA, for Dupont's failure to make a proper
return on the writ.

¶28 The District Court, in its January 21, 1997 Order on Motions for
Summary Judgment and Rationale, ruled on the contract for deed and the
funds generated therefrom, but made no mention of Martha's other personal
property. The District Court did, however, rule that Dupont had not made a
proper return on the writ and awarded Woldstad $200 pursuant to § 7-32-2131(1),
MCA. Woldstad contends on appeal that the District Court erred in
failing to rule on that portion of his motion for summary judgment wherein he
sought damages from Dupont for failing to seize Martha's property as
commanded in the writ. Dupont contends that he is not liable to Woldstad for
damages for failing to seize the property and that the District Court erred in
concluding that he was liable to Woldstad for $200 for failing to make a
proper return on the writ.

¶29 On May 16, 1995, Dupont's clerk notified Woldstad's attorney by
telephone that the writ would not be executed upon because Dupont believed
an order was still in effect preventing execution. Dupont contends that this
method of return was sufficient.

¶30       Return of execution is provided for in § 25-13-404, MCA:
               (1) Except as provided in subsections (2) and (3),
          execution may be made returnable to the clerk of the court in
          which the judgment was rendered, at any time not less than 10
          or more than 60 days after receipt of the recovery by the sheriff
          or levying officer following imposition of levy, as provided in
          25-13-402.
               (2) The writ of execution issued by the county treasurer
          under 15-16-401 may be made returnable, at any time not less
          than 10 or more than 90 days after its receipt by the sheriff or
          levying officer, to the county treasurer of the county in which
          the writ was issued.
               (3) In compliance with the provisions of subsection (1)
          and in lieu of returning the writ of execution to the clerk of the
          court, the sheriff may enclose his return of the writ in an
          envelope to the officer, agent, or attorney who sent it and
          deposit it in the post office, prepaying the postage.

This statute contemplates either filing the return with the clerk of court or
mailing it to opposing counsel. Either way, the statute contemplates an actual
physical return of the writ. Thus, to be a proper return in the instant case,
Dupont had to either return the writ to the clerk of the court as provided in
subsection (1), or mail it to the officer, agent, or attorney who sent it as
provided in subsection (3). Dupont did neither.

¶31 Therefore, under § 7-32-2131(1), MCA, since Dupont did not "return
[the] notice or process in his possession with the necessary endorsement
thereon," he is liable to Woldstad for $200 "and for all damages sustained by"
Woldstad. However, absent any findings by the District Court on the issue of


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whether Dupont was liable to seize Martha's other personal property and,
having failed to do so, whether he should be liable for damages, we remand to
the District Court for findings and conclusions on that issue.
                        Issue 2.

¶32 Whether the District Court erred in ruling that the July 22, 1994
injunction was still in effect as to the contract for deed after the court's
April 27, 1995 order.

¶33 In its January 21, 1997 Order on Motions for Summary Judgment and
Rationale, the
District Court determined that the July 22, 1994 Order of Judge Keedy
regarding the contract for deed was still in force and effect at the time the May
5, 1995 Writ of Execution was issued, therefore, Dupont was justified in not
executing on the writ. Woldstad contends that this was error on the part of the
District Court because the court's April 27, 1995 Order released all restraints
on his executing against the contract for deed.

¶34 There are four orders relating to the matters raised in this appeal: (1)
Judge Keedy's July 22, 1994 Order Granting Motion for Injunction; (2) the
February 8, 1995 Order of Judge Curtis; (3) the April 21, 1995 Temporary
Restraining Order of Judge Lympus; and (4) the April 27, 1995 Order and
Rationale of Judge Curtis. We will analyze each of these orders in turn to
determine which, if any, of these orders may have been in force and effect at
the time the May 5, 1995 Writ of Execution was issued.

¶35       The July 22, 1994 order of Judge Keedy provided:
               That the Sheriff's sale scheduled for the 25th of July,
          1994, in which Dennis Ray Woldstad attempts to sell the
          interest of Martha Doyle Woldstad in a certain Contract For
          Deed dated July 13, 1993 between John C. Doyle and Martha
          Doyle as Sellers and Steve Fairbanks and Jill Fairbanks as
          Buyers is hereby enjoined to further order of this Court
               That the escrow agent, Escrow Services, Inc., is hereby
          Ordered to turn over all funds received under the terms of the
          above described contract to the Clerk of Court of Flathead
          County, Peg. L. Bitney, to be held by her in an interest bearing
          account pending further Order of this Court.

This order has two components, the first enjoining execution on the contract
for deed, and the second directing that the funds received by the escrow agent
under the contract for deed be held by the clerk of court until further order of
the court.

¶36 The February 8, 1995 Order stayed an earlier writ of execution. It
commanded that any funds removed from the escrow account established by
the July 22, 1994 order be returned to that account and retained by the bank
until such time as the court issued a further order. Hence, this order is merely
to reinforce the earlier order enjoining execution on the escrow account.



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¶37 The April 21, 1995 order of Judge Lympus temporarily enjoined
Woldstad and his attorney from levying upon the escrow account or any other
personal property owned by Martha. Woldstad contends that, pursuant to §
27-19-316, MCA, this order expired before the Writ of Execution was issued.
Section 27-19-316, MCA, provides, in pertinent part;
          Contents and filing of restraining order granted
     without notice. Each temporary restraining order granted
     without notice must:
          . . .
          (4) except as provided in 40-4-121 or Title 40, chapter
     15, expire by its terms within the time after entry, not to exceed
     10 days, as the court or judge fixes.

There are no cases construing this statute. Nonetheless, the plain language of
the statute requires that a TRO granted without notice must expire within ten
days. "In the construction of a statute, the office of the judge is simply to
ascertain and declare what is in terms or in substance contained therein, not to
insert what has been omitted or to omit what has been inserted." Section

1-2-101, MCA. Therefore, we hold that the April 21, 1995 order expired ten days
after it was entered.

¶38 This April 21, 1995 order was the only one of the four orders to enjoin
levying upon any personal property owned by Martha other than the contract
for deed or the escrow account. Since this order expired, by operation of law,
on May 1, 1995, Martha's personal property, other than the contract for deed
and the escrow account, was available for execution under the May 5, 1995
writ.

¶39 The April 27, 1995 order of Judge Curtis released to Woldstad "the
funds on deposit in this matter pursuant to this Court's Order of July 22,
1994." However, Judge Curtis did not release the contract for deed itself.
Therefore, the July 22, 1994 order enjoining execution on the contract for deed
was still in force and effect at the time the May 5, 1995 Writ of Execution was
issued.

¶40 We note that when a writ of execution is facially valid, it should not be
left up to the sheriff to decide what orders are in effect or not in effect and
what property should be seized or not seized. The sheriff should simply be
required to execute on a facially valid writ of execution, seize the property in
accordance with the law, and, if the other party disagrees with the writ of
execution, that party should be required to go to court to obtain an order to
quash the writ.

¶41 Under § 7-32-2131(2), MCA, the damages for failure of a sheriff to
levy as requested only apply to property "which is liable to be levied upon or
sold." In the case before us, while the July 22, 1994 order enjoining execution
on the contract for deed was still in force and effect, there was no injunction
or TRO preventing Dupont from levying upon Martha's personal property as
listed in the May 5, 1995 Writ of Execution or on the funds in the escrow


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account. Hence, Dupont may be liable to Woldstad for damages for failing to
execute on the writ. The amount of those damages is in question, however.

¶42 Dupont contends that Woldstad expanded by fiat the $33,000 money
judgment he obtained against Martha in the dissolution decree on May 17,
1994, into a $141,000 judgment on June 22, 1994, all without an order of the
court as required by paragraph 10 of the dissolution decree. Accordingly, we
remand to the District Court for an evidentiary hearing on the issue of
damages.

¶43 Remanded to the District Court for further proceedings consistent with
this opinion.


                                                             /S/       JAMES C. NELSON



We Concur:

/S/       WILLIAM E. HUNT, SR.
/S/       JIM REGNIER
/S/       TERRY N. TRIEWEILER
/S/       W. WILLIAM LEAPHART




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