                                            No. 03-122

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2004 MT 176N


GARY MYERS,

               Plaintiff and Respondent,

         v.

GEORGE F. VINCENT, W. STEPHEN DEE,
VICTORIA R. DEE, AND ALL OTHER
PERSONS UNKNOWN, 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 the Plaintiff’s ownership,

               Defendants and Appellants.



APPEAL FROM:          District Court of the First Judicial District,
                      In and for the County of Lewis and Clark, Cause No. ADV 2000-293
                      The Honorable Dorothy McCarter, Judge presiding.



COUNSEL OF RECORD:

               For Appellants:

                      Carl A. Hatch, Doubek & Pyfer, Helena, Montana

               For Respondent:

                      John M. Shontz, Squires & Shontz, Helena, Montana



                                                         Submitted on Briefs: September 4, 2003

                                                                     Decided: July 6, 2004
Filed:


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

¶1     Pursuant to Section 1, 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     Gary Myers (Myers) brought an action to partition in the First Judicial District, Lewis

and Clark County. Myers owned a one-third interest in a 160 acre tract of land and W.

Steven and Victoria Dee (the Dees) owned the other two-thirds interest. The parties agreed

to have a referee address all issues in contention. The referee awarded Myers the southern

one-third portion of the tract and granted Myers exclusive access to his portion across a

separate adjoining 160 acre tract also owned by the Dees.

¶3     The Dees requested a hearing and Myers moved to adopt the referee’s

recommendations. The District Court denied the Dees’ request and approved and adopted

the referee’s recommendations. The Dees moved for a new trial and the District Court

denied the motion. The Dees appeal and we reverse.

¶4     We restate the issues on appeal as follows:

¶5     1. Did the District Court err when it adopted the referee’s findings of fact and

conclusions of law?

¶6     2. Did the District Court violate § 76-3-201(2), MCA?

                 FACTUAL AND PROCEDURAL BACKGROUND

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¶7     We first note that because there was no trial, and hence, no trial transcripts, the facts

are set forth according to the referee’s findings of fact and conclusions of law, the documents

in the District Court record, and the parties briefs.

¶8     Ruth Kruth (Kruth), Ruby Bastian (Bastian), and Doris Vincent (Doris), inherited 160

acres, as tenants in common, from their mother. After inheriting the property, Kruth listed

the property for sale with a local realtor and included Bastian’s and Doris’ names. Ruby and

Doris did not sign the listing agreement or any other document giving Kruth authority to act

for them. Myers offered to buy the property, made a down payment, and signed a buy/sell

agreement with Kruth. Bastian and Doris refused to sign the agreement and Myers filed an

action for specific performance against all three sisters. Kruth then sold Myers her one-third

interest in the property.

¶9     Following this, George Vincent (George), brother to the three sisters, purchased the

remaining two-thirds interest from Bastian and Doris. Myers attempted to deal with all the

parties but then filed a complaint in partition. At the same time, George, who owned an

adjoining 160-acre parcel, sold that parcel, and the two-thirds interest recently purchased

from his sisters, to the Dees.1 Myers then amended his complaint in partition to include the

Dees as additional defendants and the Dees and Myers agreed to have a referee address all

issues in contention.




       1
         The Dees were aware of Myers’ interest in the property when they purchased the
two-thirds interest from George.

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¶10    The referee decided that Myers should be awarded the southern one-third section and

the Dees were to retain the northern two-thirds portion of the parcel. Myers was also granted

exclusive access to his parcel at the extreme southeast corner of the parcel. This access was

from the county road across sixty-two feet of the Dees’ adjoining 160 acre tract.

¶11    The Dees objected to the referee’s findings and requested oral argument on the issues

raised by the pleadings and the referee’s report. Myers moved to accept the referee’s

findings and the Dees again objected and requested a hearing. The District Court denied the

Dees’ request for a hearing and approved and adopted the referee’s recommendations. The

District Court concluded that it saw “no basis for rejecting the referee’s recommendations”

because “[t]he referee’s findings [were] supported by the evidence in the record.” The Dees

moved for a new trial and the District Court denied the motion. The Dees appeal.

                               STANDARD OF REVIEW

¶12    In reviewing a district court’s findings of fact in a partition action the applicable

standard of review is whether the findings are clearly erroneous. A finding is clearly

erroneous when, although there is evidence to support it, a review of the record leaves the

court with the definite and firm conviction that a mistake has been committed. Tillett v.

Lippert (1995), 275 Mont. 1, 5, 909 P.2d 1158, 1160.

                                      DISCUSSION

                                       ISSUE ONE

¶13 Did the District Court err in adopting the referee’s findings of fact and conclusions
of law?


                                             4
¶14    The Dees argue that the District Court erred because the referee met with Myers

without the Dees. They maintain that both parties had agreed to meet with the referee on

May 29, 2002, and that on that day the Dees and their counsel waited for instructions

concerning the arranged meeting. The Dees’ counsel eventually called Myers’ counsel to

inquire about the meeting and Myers’ counsel informed Dees’ counsel that he, Myers, and

the referee had gone to the parcel the day before and that there would be no meeting on May

29.

¶15    Myers counters that the District Court gave the referee the power to interview the

parties and that Myers had strongly encouraged the Dees to schedule a meeting with the

referee either at the property or off the property without Myers’ presence. Further, Myers

argues that the Dees failed to take advantage of the opportunity to meet with the referee

between the time the referee was appointed, November 28, 2001, and the time the referee’s

report was issued, August 5, 2002.

¶16    Canon 17 of the Canons of Judicial Ethics establishes that “[a] judge should not

permit private interviews, arguments or communications designed to influence his judicial

action . . . .” While a referee is not a judge, a referee does act in a quasi-judicial capacity.

Here, the District Court’s order charged the referee with considering the contentions of each

party and providing the District Court with findings of fact and conclusions of law. While

this is a case of first impression here in Montana, case law does address the impropriety of

ex parte communications in other similar situations.



                                               5
¶17    In Cascade County Consumers Ass’n v. Public Serv. Comm’n (1964), 144 Mont. 169,

188, 394 P.2d 856, 866, we held that just as it was improper for a judge to engage in ex parte

communications, it was “equally improper” for the Montana Public Service Commission to

engage in an ex parte relationship. We noted that “[i]f one is empowered to act as a judge

he should conduct himself as one.” Cascade County, 144 Mont. at 188, 394 P.2d at 866.

¶18    We conclude that it was inappropriate for the referee to meet with only one of the

parties after a meeting had been scheduled with both parties. Myers’ argument that he gave

permission for the Vincents to meet with the referee anytime the Vincents wanted does not

make the meeting between himself and the referee appropriate.

¶19    In addition, the Dees also raise issue with the exclusive access that Myers was

granted. We decline to address this issue at this time given our aforementioned conclusion.

Accordingly, we hold that the District Court erred in adopting the referee’s findings of fact

and conclusions of law and we reverse.

                                       ISSUE TWO

¶20    Did the District Court violate § 76-3-201, MCA?

¶21    The Dees contend that dividing the 160 acre parcel subjects it to the requirements

regarding subdivisions embodied in Title 76, Chapter 3, Montana Code Annotated. They

assert that the District Court erred because it failed to notify the governing body of the

pending division to allow the governing body to present written comment as required by

§ 76-3-201(2), MCA. Myers maintains that the failure to do this was harmless.



                                              6
¶22    The Dees are correct, Title 76, Chapter 3, Montana Code Annotated, does apply in

this instance. “A subdivision comprises only those parcels containing less than 160 acres .

. . .” Section 76-3-104, MCA. This chapter does not apply though “to any division of land

that: (a) is created by order of any court of record in this state . . . .” Section 76-3-201(1)(a),

MCA. However, “the court shall notify the governing body of the pending division and

allow the governing body to present written comment on the division.” Section 76-3-201(2),

MCA. As the Dees point out, the governing body was not notified.

¶23    Myers’ argument that this error was harmless is not persuasive. The statute’s

language is clear and mandatory. “[T]he court shall notify the governing body . . . .”

Section 76-3-201(2), MCA (emphasis added). Because this case is being reversed as to the

first issue, the statute will have to be complied with in any further proceedings.

¶24    We reverse and remand for further proceedings consistent with this Opinion.


                                                     /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART




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