                                                                                                March 1 2016


                                           DA 15-0328
                                                                                              Case Number: DA 15-0328

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 47


BARBARA BROWN BERGUM, RICHARD BROWN,
JEANNETTE STUDER, CAROLINE Y. HOUSTON,
KATHY F. ARNOUX, ETHEL GENTRY,

              Plaintiffs and Appellants,

         v.

MUSSELSHELL COUNTY, a quasi-municipal corporation;
and the assignees, and creditors of the above named
entity; and all other UNKNOWN persons claiming, or
who might claim any right, title estate or interest in,
or lien or encumbrance upon, the real property described
in the complaint, or any thereof, adverse to plaintiffs’
ownership, or any cloud upon plaintiffs’ title thereto,
whether such claim or possible claim be present or
contingent, including any claim or possible claim of
dower, inchoate or accrued,

              Defendants, Appellees and Cross-Appellants.


APPEAL FROM:            District Court of the Fourteenth Judicial District,
                        In and For the County of Musselshell, Cause No. DV 07-28
                        Honorable Randal I. Spaulding, Presiding Judge

COUNSEL OF RECORD:

                For Appellants:

                        Jacquelyn M. Hughes, Hughes Law PLLC, Billings, Montana

                For Appellees and Cross-Appellants:

                        R. Allan Payne, Marc G. Buyske, LL.M., Doney Crowley P.C., Helena,
                        Montana


                                                      Submitted on Briefs: January 20, 2016
                                                                 Decided: March 1, 2016

Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Barbara Brown Bergum, Richard Brown, Jeannette Studer, Caroline Y. Houston,

Kathy F. Arnoux, and Ethel Gentry (collectively Bergum) filed this action to quiet title in

the Fourteenth Judicial District Court, Musselshell County, against Musselshell County.

Both parties moved for summary judgment. The District Court granted judgment in favor

of Musselshell County. Bergum appeals. Musselshell County cross-appeals from an

order regarding attorney fees and costs. We affirm.

¶2     Bergum and Musselshell County raise several issues on appeal. We conclude the

following issues are determinative:

       1.     Did the District court err in concluding that the statute of limitations
              in § 2214, RCM (1935), barred Bergum’s quiet title action?

       2.     Did the District Court err in denying Musselshell County its attorney
              fees under § 25-7-105, MCA?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     The controversy in this case centers on the disputed ownership of subsurface

mineral rights to coal-rich land located in Musselshell County (Subject Real Property).1

The Subject Real Property has a lengthy and intricate history of ownership. Beginning in

1873, the United States Congress approved appropriations of vacant coal lands of up to

160 acres, provided the applicant was at least twenty one years old, a United States

citizen, and paid $10 per acre.2 In 1908, both Lincoln Wescott and Annie Wescott


1
  The legal description of the Subject Real Property is NW 1/4 W 1/2 SW 1/4, SE 1/4, SW 1/4,
SW 1/4 SE 1/4 of Section 2, Township 6 North, Range 27 East P.M.M.
2
  See 30 U.S.C.S. § 71 (LexisNexis, Lexis Advance through Pub. L. No. 114-15, approved
December 28, 2015 (derived from Act of March 3, 1873, 17 Stat. 607 (1873)).


                                             2
received patents for adjacent parcels of 160 and 160.58 acres, for which they paid $1,600

and $1,605.80 respectively. Also in 1908, Lincoln Wescott conveyed his patented 160

acres to Annie Wescott.     This combined 320.58 acres comprises the Subject Real

Property.

¶4    In 1935, Annie Wescott, now Annie Owen, conveyed the Subject Real Property to

Charles Wilson. In 1936, county-assessed taxes on the Subject Real Property were not

paid and the County Assessor listed the taxes as delinquent.        The taxes remained

delinquent until 1941 when Charles Wilson payed a portion of the taxes owed and

redeemed the property. Critically, the Certificate of Redemption of Property Sold for

Taxes, dated March 5, 1941, describes the Subject Real Property Charles Wilson

redeemed and states “surface rights only.” From this point, the Subject Real Property’s

subsurface rights (Subsurface Rights) and surface rights (Surface Rights) are severed. On

the same day Charles Wilson redeemed the “surface rights only,” he conveyed his interest

in the Subject Real Property and other property to E.K. Woodley and E.C. Woodley.

¶5    The Subsurface Rights were not redeemed in 1941.                Subsequently, the

unredeemed portion of the original tax delinquency, which began in 1936, remained

delinquent until 1945 and was listed under Charles Wilson’s name. In 1945, Musselshell

County applied for a tax deed. Affidavits of service, filed with both the Musselshell

County Clerk and Recorder and the Treasurer’s office, verify that the County provided

notice of an impending tax sale by publication and registered mail. In 1946, Musselshell

County held a tax sale where it purchased the Subsurface Rights for $251.32. The




                                           3
Treasurer of Musselshell County issued a tax deed to Musselshell County on February 5,

1946, for the Subject Real Property “less surface which has been redeemed.”

¶6     Regarding the Surface Rights after 1941, another tax delinquency occurred in

1945 and was listed under E.K. Woodley’s name. Also in 1945, E.K. Woodley and E.C.

Woodley conveyed their interest in the Subject Real Property and other property to

Francis Brown, Murry Brown, and Jim Brown. Still in 1945, Jim Brown and Murry

Brown conveyed their interests to Francis Brown. In 1950, Francis Brown conveyed his

interest in the Subject Real Property to Roy Gentry and Ethel Gentry.               In this

conveyance, Francis Brown attempted to retain a fifty percent mineral interest in the

Subject Real Property (Mineral Right of Entry).

¶7     In 1955, Roy Gentry and Ethel Gentry filed an action to quiet title to the Subject

Real Property. The title was quieted in their favor by decree recorded on January 6,

1956, but an exception was listed for Musselshell County’s interest in the Subsurface

Rights. The decree stated Roy Gentry and Ethel Gentry “are entitled to a decree of this

Court quieting title as to said real estate” except for “the interest of Musselshell County,

Montana, in and to the minerals, including coal, pertaining to the [Subject Real Property],

together with a right of entry on said lands.” Francis Brown, who claimed to have

maintained a Mineral Right of Entry in the Subject Real Property, was not named as a

party in this quiet title proceeding.

¶8     Finally, in 2007, Bergum initiated an action against Musselshell County to quiet

title to the Subject Real Property as successor in interest to the Mineral Right of Entry

Francis Brown purportedly retained when he transferred the Subject Real Property in


                                             4
1950. Musselshell County and Bergum filed competing motions for summary judgment

in 2012. On October, 3, 2012, the District Court held a hearing on the parties’ respective

motions for summary judgment.        Over two years later, on December 19, 2014, the

District Court granted Musselshell County’s motion for summary judgment. On April

13, 2015, the District Court entered an order awarding costs, but not attorney fees. On

April 28, 2015, the District Court entered its judgment in favor of Musselshell County

from which Bergum appeals. Musselshell County cross-appeals from the District Court’s

order regarding attorney fees and costs.

                               STANDARD OF REVIEW

¶9     A district court’s grant of summary judgment is reviewed de novo. Omimex Can.,

Ltd. v. State, 2015 MT 102, ¶ 11, 378 Mont. 490, 346 P.3d 1125 (citation omitted).

Summary judgment is appropriate where there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). “We

review a district court’s conclusions of law for correctness.” Kiser v. Kiser, 2015 MT

315, ¶ 7, 381 Mont. 368, 360 P.3d 1139 (citation omitted).

¶10    If legal authority exists for a district court to award attorney fees, then a district

court’s grant or denial of attorney fees is a discretionary ruling which we review for

abuse of discretion. Swapinski v. Lincoln Cnty., 2015 MT 275, ¶ 8, 381 Mont. 138, 357

P.3d 329 (citation omitted).




                                             5
                                     DISCUSSION

¶11 1. Did the District court err in concluding that the statute of limitations in § 2214,
RCM (1935), barred Bergum’s quiet title action?

¶12    At the District Court level, Bergum challenged the sufficiency of the tax deed

procedure used by Musselshell County to purchase the Subject Real Property’s

Subsurface Rights in 1946. The District Court, in its order granting Musselshell County

summary judgment, concluded that “[e]ven if a problem existed with respect to

Musselshell County’s tax deed procedure, the statute of limitations set forth in R.C.M.

(1935) Section 2214 bars any claim by [Bergum] based on such problem(s).”

¶13    Bergum argues the District Court erred in applying § 2214, RCM (1935), to

conclude her quiet title action was barred. Bergum claims that § 2214, RCM (1935), by

its own language, does not apply for two alternative reasons; either because 1) “no taxes

were delinquent on said lands” or 2) “redemption had been made from said tax sale.”

Section 2214, RCM (1935). Essentially, Bergum argues the taxes assessed on the Subject

Real Property were unconstitutional and, because they were never legally assessed, could

never have become delinquent. Alternatively, Bergum argues that allowing a taxpayer to

redeem only a portion of tax-delinquent property is unconstitutional and, therefore,

asserts that Charles Wilson’s redemption of the property in 1941 effectively redeemed the

entire Subject Real Property, not just the “surface rights only.” Under either alternative,

Bergum maintains that § 2214, RCM (1935), does not apply or bar her quiet title action.

¶14    In response, Musselshell County argues § 2214, RCM (1935), applies and bars

Bergum’s action because the taxes assessed on the Subject Real Property were



                                            6
constitutional at the time they were assessed under Article 12, Section 3, of the 1889

Montana Constitution, which required mining claims be taxed. Further, Musselshell

County points to § 2211, RCM (1935), entitled “Redemption from tax sales—piecemeal

redemption” as support for its proposition that piecemeal redemption was constitutional

and statutorily authorized.   The District Court agreed with Musselshell County and

concluded § 2214, RCM (1935), barred Bergum’s current quiet title action. We agree

with the District Court and Musselshell County.

¶15    The law applicable at the time the taxes were assessed and the sale occurred must

be used to determine the validity of the taxes and the procedure used. See Fariss v.

Anaconda Copper Mining Co., 31 F. Supp. 571, 576 (D. Mont. 1940); King v. Rosebud

Cnty., 193 Mont. 268, 275, 631 P.2d 711, 715 (1981) (The court looked to statutes in

force in 1939 to determine the validity of tax sale proceedings which occurred in 1939).

Here, this Court will look to the constitution and statutes in force at the time the

challenged assessments and tax sale occurred.

¶16    Section 2214, RCM (1935), entitled “Of what deed is evidence—actions

concerning,” provides that a duly acknowledged or proved deed is conclusive evidence of

all other proceedings from the tax assessment up to the execution of the deed. Further it

reads, in pertinent part:

       [N]o action can be maintained to set aside or annul a tax deed or to assert a
       title hostile to a tax deed upon any ground whatever, whether on the ground
       that said deed, or any prior proceeding, was irregular or void, other than
       that the deed was void because no taxes were delinquent on said lands, or
       because redemption had been made from said tax sale, unless the action is
       commenced within one year from and after the date of the issuance of said
       tax deed.


                                            7
Section 2214, RCM (1935). Section 2214, RCM (1935), sets out a one-year statute of

limitations and outlines two exceptions to its application. The one-year limitations does

not bar an action if the “deed was void because no taxes were delinquent on said lands,”

or “because redemption had been made from said tax sale.” Section 2214, RCM (1935).

¶17    In its order granting Musselshell County summary judgment, the District Court

concluded that the 1946 deed was not void because the taxes assessed on the property and

partial redemption of the “surface rights only” were proper. It follows that if the two

exceptions to the statute of limitations do not apply, § 2214, RCM (1935), applies, and

bars Bergum’s claim. If the District Court’s conclusion that the exceptions do not apply

is correct, Bergum’s predecessors in interest had until February 5, 1947, or one year from

the issuance of the tax deed to Musselshell County, to initiate an action to quiet title to

the Subject Real Property’s Subsurface Rights. Instead, Bergum initiated this action by

filing a complaint to quiet title on April 4, 2007, or over 60 years after the deadline

imposed by § 2214, RCM (1935). We review the District Court’s conclusions that the

exceptions of § 2214, RCM (1935), do not apply for correctness. We address their

application in turn:

       a. Exception 1: “deed was void because no taxes were delinquent on said lands”

¶18    Bergum relies on Northern Pacific Railway v. Musselshell County, 54 Mont. 96,

169 P. 53 (1917), to support her contention that the taxes Musselshell County assessed on

the Subsurface Rights after the Surface Rights were redeemed, from 1941 to 1945, were

unconstitutional and, therefore, void.     Bergum contends Northern Pacific Railway

supports her proposition that “taxation of an undeveloped mineral estate was


                                            8
unconstitutional.” We disagree. Article 12, Section 3, of the 1889 Montana Constitution

states:

          All mines and mining claims, both placer and rock in place, containing or
          bearing gold, silver, copper, lead, coal or other valuable mineral deposits,
          after purchase thereof from the United States, shall be taxed at the price
          paid the United States therefor, unless the surface ground, or some part
          thereof, of such mine or claim, is used for other than mining purposes, and
          has a separate and independent value for such other purposes, in which case
          said surface ground, or any part thereof, so used for other than mining
          purposes, shall be taxed at its value for such other purposes.

This constitutional provision was interpreted by the Court in Northern Pacific Railway

and Hinz v. Musselshell County, 82 Mont. 502, 267 P. 1113 (1928). It was interpreted

again in Superior Coal Co. v. Musselshell County, 98 Mont. 501, 41 P.2d 14 (1935),

which, after discussing both Northern Pacific Railway and Hinz, held that “one who has

purchased a mining claim from the United States is estopped from denying that it is a

mining claim.” Superior Coal Co., 98 Mont. at 514, 41 P.2d at 20. Further, “[f]or the

purpose of taxation, coal mining claims, lode mining claims and placer mining claims

alike are governed by the provisions of the Constitution.” Superior Coal Co., 98 Mont. at

514, 41 P.2d at 20. The Court held that the taxable value of property is appropriately set

by the constitution at the price paid for the property. Superior Coal Co., 98 Mont. at 515,

41 P.2d at 20. The risk that the property is not as valuable as the patentee paid, or

worthless, is immaterial to the constitutionality of this scheme of taxation. Superior Coal

Co., 98 Mont. at 515, 41 P.2d at 20. Finally, the Court concluded that the “surface

ground by itself is not taxed at any value; it is part of the mine; it is presumed that it has

no value except for use in working the mine. When the surface ground of a mining



                                               9
claim, or some part thereof is used for some purpose other than mining, and the owner of

the mining claim sells that surface . . . he is still the owner of the mining claim; all he has

sold is the newly created estate ‘which in the eye of the law, is regarded as independent

of the original estate.’” Superior Coal Co., 98 Mont. at 521, 41 P.2d at 23.

¶19    Here, Bergum does not dispute that Lincoln Wescott and Annie Wescott applied

for and received coal patents for lands that now constitute the Subject Real Property.

Applying Superior Coal Co. to the case at bar, Bergum is estopped from denying the

Subject Real Property is a mining claim and can be taxed as such. Lincoln Wescott and

Annie Wescott paid the United States a combined $3,205.80 for the Subject Real

Property and the County Assessor gave it a taxable value of $3,207. Superior Coal Co.

held that the taxable value should be set by what was paid for the mining claim and is

constitutionally assessed on the minerals, even if undeveloped.           Additionally if the

surface of a mining claim is sold, it is legally separate, and may also be taxed. The taxes

assessed on the Subsurface Rights from 1941 to 1945 were constitutional and valid. The

validity of the taxes assessed disproves Bergum’s argument that no taxes were

delinquent. Instead, the taxes were validly assessed and delinquent because they were

unpaid. The first exception to § 2214, RCM (1935), does not apply.

       b. Exception 2: “redemption had been made from said tax sale.”

¶20    Bergum argues that Musselshell County’s practice, which allowed Charles Wilson

to redeem only a portion of the Subject Real Property in 1941, was illegal. Bergum

contends that Charles Wilson’s redemption in 1941 was for the entire Subject Real

Property, not just for the “surface rights only,” as the redemption document states.


                                              10
Bergum claims that the Subject Real Property was fully redeemed in 1941 and, as a

result, the tax deed issued to Musselshell County in 1946 for the Subsurface Rights was

invalid. A coal patent “carries with it the title to the surface included within the lines of

the mining location, as well as to the land beneath the surface.” Hansard Mining, Inc. v.

Mclean, 2014 MT 199, ¶ 20, 376 Mont. 48, 335 P.3d 711; citing Deffeback v. Hawke,

115 U.S. 392, 406, 6 S. Ct. 95, 101 (1885). At the time Charles Wilson partially

redeemed the Subject Real Property in 1941, § 2211 RCM (1935), entitled “Redemption

from tax sale—piecemeal redemption,” explicitly authorized property owners to

partially redeem their property from a tax sale. If the redeemer pays a portion of the tax

owed, “the county treasurer shall apportion the tax for the portion sought to be

redeemed.”    Section 2211, RCM (1935).           Also, Superior Coal Co., addressed and

clarified that it is possible to divide mining claims and subsequently create two

independent legal estates—one for the surface and one for the subsurface. Superior Coal

Co., 98 Mont. at 521, 41 P.2d at 23. Charles Wilson’s redemption in 1941 stated that it

was partial, for the “surface rights only.”        Piecemeal redemption was specifically

authorized. The second exception to § 2214, RCM (1935), does not apply.

¶21    We conclude that the District Court correctly determined that neither exception to

§ 2214, RCM (1935), applied to Bergum’s current quiet title action. Therefore, the

District Court also correctly determined that the one-year statute of limitations of § 2214,

RCM (1935), applied and barred Bergum’s claim.




                                             11
¶22    2. Did the District Court err in denying Musselshell County its attorney fees
under § 25-7-105, MCA?

¶23    On December 7, 2011, Bergum offered five dollars in exchange for Musselshell

County’s consent to quiet title in her favor. On December 21, 2011, Musselshell County

counter offered “a one-pound lump of coal, suitable for placement in a Christmas

stocking” and to forgo recovery of its attorney fees and costs incurred during litigation in

exchange for Bergum dismissing her action to quiet title. On appeal, Musselshell County

contends that, under § 25-7-105, MCA, it was entitled to attorney fees, totaling $82,374,

because of this counter offer. That statute reads, in pertinent parts:

        1) At any time more than 60 days after service of the complaint and more
           than 30 days before the trial begins, any party may serve upon the
           adverse party a written offer to settle a claim for the money or property
           or to the effect specified in the offer. . . . If the final judgment is less
           favorable to the offeree than the offer, the offeree shall pay the costs
           incurred by the offeror after the offer was made. . . .

                                            .        .   .

        3) For the purposes of this section, costs include reasonable attorney fees.
        4) This section applies only to an action or claim for which the amount
           contained in a pleading is $50,000 or less, exclusive of costs, interest,
           and service charges, and the action or claim:
          a) arises from contract or breach of contract, other than a contract of
             insurance, bond, surety, or warranty; or
          b) involves real property.

Section 25-7-105, MCA (emphasis added).

¶24    As an initial matter, the parties dispute whether Musselshell County’s counter

offer was a valid offer or whether it was more favorable to Bergum than the final

judgment. Bergum argues that Musselshell County’s letter did not constitute a legitimate

offer. Bergum also argues that a one-pound lump of coal, shared between Barbara Brown


                                                12
Bergum, Richard Brown, Jeannette Studer, Caroline Y. Houston, Kathy F. Arnoux, and

Ethel Gentry is not a “more favorable” result than the final judgment, which quieted title

in Musselshell County’s favor. In her briefing to this Court, Bergum claims that a

one-pound lump of coal is worth $0.0058, and that she and the five other appellants

would receive $0.000967 each. Bergum argues that offering six people half of a penny to

share is not more favorable than the final judgment and should not be the basis for an

award of attorney fees.

¶25    We decline to address whether Musselshell County’s offer was legitimate, as the

District Court’s decision did not rest upon these grounds. We nevertheless observe that

the portion of Musselshell County’s offer, relating to a one-pound lump of coal, strikes us

as unprofessional and inconsistent with what we would expect from a public entity.

Regardless of whether Musselshell County’s offer was valid or a more favorable result to

Bergum than the final judgment, § 25-7-105(4), MCA, only allows attorney fees if the

amount contained in the pleading is $50,000 or less. Without considering the legitimacy

of Musselshell County’s offer, the District Court concluded that Musselshell County had

“failed to establish that the value of the subject property is less than $50,000 as required

by Mont. Codes [sic] Ann. § 25-7-105 (3) and (4).” As proof of the amount contained in

Bergum’s complaint to quiet title to the Mineral Right of Entry in the Subject Real

Property, Musselshell County offered a copy of a coal lease which had been executed on

a parcel of land adjacent to the Subject Real Property. The District Court held that this

evidence “is, without more, insufficient to establish that the value of the entire subsurface

estate is worth less than $50,000.”


                                             13
¶26    Musselshell County argues the District Court erred by failing to hold an

evidentiary hearing to determine whether the value contained in Bergum’s complaint is

worth less than $50,000. Bergum counters that Musselshell County never requested the

District Court hold a hearing. Musselshell County relies on several pages of its pleading

entitled Response in Opposition to Motion to Have Memorandum of Costs Taxed and

Reply in Support of Memorandum of Costs as evidence of its contention that “[t]he

necessity of a hearing was made known to the District Court.”         Upon review, that

pleading notified the District Court that if attorney fees were awarded, a hearing would

be required to determine whether the attorney fees were “reasonable.” However, the

District Court did not award attorney fees, thus, under Musselshell County’s own

reasoning, a hearing was not required. We conclude that the District Court’s failure to

hold an evidentiary hearing on the amount in the complaint was not in error because

Musselshell County did not request such a hearing. Instead, the District Court relied on

evidence Musselshell County provided to conclude that it had failed to prove the amount

contained in Bergum’s complaint was less than $50,000.

¶27    Musselshell County introduced insufficient evidence to establish that the

requirements of § 25-7-105(4), MCA, were met. We conclude that the District Court did

not abuse its discretion in denying Musselshell County its attorney fees under § 25-7-105,

MCA.




                                           14
                                     CONCLUSION

¶28    Affirmed.

                                                 /S/ LAURIE McKINNON


We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA


Justice Beth Baker, concurring.

¶29    I agree that the District Court should be affirmed on both issues, but for different

reasons.

¶30    First, I agree that the one-year limitation period prescribed in § 2214, R.C.M.

(1935) bars the action because neither exception applies. I do not believe that it is

necessary, however, to analyze the constitutionality of Musselshell County’s actions in

the 1940s in order to determine whether Bergum’s claim is barred. As the Court notes,

§ 2214 provided in pertinent part that

       no action can be maintained to set aside or annul a tax deed . . . upon any
       ground whatever, whether on the ground that said deed, or any prior
       proceeding, was irregular or void, other than that the deed was void because
       no taxes were delinquent on said lands, or because redemption had been
       made from said tax sale, unless the action is commenced within one year
       from and after the date of the issuance of said tax deed[.]

¶31    Bergum claims advantage of the first exception on the ground that “no taxes were

delinquent” on the property. But her allegation that the tax deed was void is premised on

the County’s allegedly unconstitutional action in retaining the mineral rights to the



                                            15
property when it was reclaimed in 1941. Bergum argues that the 1941 certificate of

redemption could not legally convey to Wilson the “surface rights only.” Bergum’s

challenge is to the procedure by which the surface rights and mineral rights were severed

and to the County’s authority to tax the two interests separately.

¶32    The statute’s reference to taxes not being delinquent on the property clearly

allowed a property owner to challenge the taxing authority’s determination that the

property owner failed to pay assessments levied against the property. The property

owner’s challenge to the legality of the assessments in the first place is not the same thing

as a claim that the owner paid the taxes assessed. When interpreting the language of the

statute, the Court “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. Further, we recognize that “courts should avoid addressing

constitutional issues whenever possible.” Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007

MT 183, ¶ 62, 338 Mont. 259, 165 P.3d 1079. I would conclude that a taxpayer’s

challenge to the constitutionality of a county’s tax assessment is not within the first

exception to § 2214, R.C.M. (1935). For the same reason, the second exception does not

save Bergum’s claims, which are premised on the alleged illegality of the County’s action

in allowing Wilson to redeem only the surface rights.

¶33    I would therefore conclude that Bergum’s claim is barred by the one-year

limitation period without reaching the merits of Bergum’s constitutional arguments about

separate taxation of surface and mineral interests or redemption of surface rights only.

“We may affirm a district court decision that is correct regardless of the district court’s


                                             16
reasoning in reaching its decision.” PacifiCorp v. State, 2011 MT 93, ¶ 54, 360 Mont.

259, 253 P.3d 847.

¶34   With respect to Issue Two, I agree that the denial of attorney’s fees to the County

was correct. In my view, the County’s argument that it made a valid settlement offer for

purposes of § 25-7-105, MCA, is disingenuous. Though the County casts its offer as a

benefit to the Plaintiffs that simply was made with “poetic wrapping and literary

allusion,” no reasonable mind could conclude that the offer of a lump of coal made days

before Christmas was a good faith settlement offer. I would conclude that in order to

obtain the attorney’s fee benefit afforded by the statute, a party must make a legitimate,

good faith offer of settlement. The County’s “offer” in this case does not by any measure

meet that standard, and was especially in poor taste when coming from a public entity.



                                                /S/ BETH BAKER




                                           17
