                                                                                          February 24 2015


                                           DA 14-0099
                                                                                          Case Number: DA 14-0099

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 65N


ZINVEST, LLC,

              Plaintiff and Appellant,

         v.

JOHN J. VOTH, JR.; COLLECTION
BUREAU SERVICES, INC; CACH, LLC;
CMB COLLECTIONS, INC.;
NATHAN C. EDGHILL,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DV 12-515
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        W. Scott Green, Patten, Peterman, Bekkedahl & Green, PLLC; Billings,
                        Montana

                For Appellee John J. Voth, Jr.:

                        William J. Nelson, Nelson Law Office, PLLC; Hamilton, Montana

                For Appellee CBM Collections:

                        Andrew C. Clegg, CBM Collections, Inc.; Missoula, Montana


                                                    Submitted on Briefs: January 14, 2015
                                                               Decided: February 24, 2015

Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1       Pursuant to Section I, Paragraph 3(d), 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       Zinvest, LLC, appeals the order and judgment of the Twenty-First Judicial District

Court, Ravalli County, which held that Zinvest’s tax deed to Voth’s Property1 was void due

to the Ravalli County Treasurer’s failure to file an affidavit of publication with the County

Clerk and Recorder pursuant to § 15-17-123, MCA. We reverse and remand.

¶3       Voth failed to pay property taxes for tax years 2008, 2009, 2010, and 2011 on the

Property located in Ravalli County, Montana. Although the County Treasurer published a

notice of sale of delinquent tax lien on the Property in the Bitterroot Star Newspaper in 2010,

2011, and 2012 for the delinquent tax years of 2008 to 2011, an affidavit of publication was

filed with the Clerk and Recorder for only two of the four delinquent tax years: 2010 and

2011. Ravalli County acquired the Property after no one purchased it in the first three tax

sales.

¶4       In June 2012, Zinvest paid the delinquent taxes on the Property. The County

Treasurer issued Zinvest an assignment of tax sale certificate for the Property. On

September 27, 2012, the County Treasurer issued Zinvest a tax deed to the Property. On



1
 The legal description of Voth’s property at issue is as follows: “A TRACT OF LAND IN THE NW
1/4 SE 1/4 OF SECTION 11, TOWNSHIP 8 NORTH, RANGE 20 WEST, P.M.M., RAVALLI
COUNTY, MONTANA, AND BEING MORE PARTICULARLY DESCRIBED AS TRACT 48,
CERTIFICATE OF SURVEY NO. 173.” We refer to the land at issue as the “Property.”
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November 9, 2012, Zinvest filed a quiet title action to the Property. On November 29, 2013,

Voth filed a motion for summary judgment. Zinvest answered and filed a cross motion for

summary judgment. On January 22, 2014, the District Court entered an order declaring the

tax deed issued to Zinvest by the County Treasurer void due to the County Treasurer’s

failure to file an affidavit of publication as required by § 15-17-123, MCA. The District

Court entered its final judgment on February 5, 2014. Zinvest appealed to this Court.

¶5     We review a district court’s grant of summary judgment de novo. If there are no

genuine issues of material fact, we determine whether the district court correctly concluded

that the moving party is entitled to judgment as a matter of law. We review this legal

conclusion for correctness. A statutory interpretation is a conclusion of law, which we

review to determine whether the district court’s interpretation of the law is correct. Zinvest,

LLC v. Hudgins, (Hudgins), 2014 MT 201, ¶ 11, 376 Mont. 72, 330 P.3d 1135 (citing Tacke

v. Mont. Lakeshore Props., LLC, 2011 MT 197, ¶ 9, 361 Mont. 390, 260 P.3d 128).

¶6     “Both Montana’s Constitution and the Constitution of the United States provide that

no person shall be deprived of property without due process of law.” Isern v. Summerfield,

1998 MT 45, ¶ 9, 287 Mont. 461, 956 P.2d 28 (citing U.S. Const. amend. XIV, § 1; Mont.

Const. art. II, § 17). Due process requires that “one deprived of his property must be given

notice and an opportunity to defend.” Ball v. Gee, 243 Mont. 406, 413, 795 P.2d 82, 86

(1990).

¶7     Section 15-17-123, MCA, provides:

       (1) Immediately following publication or posting of the notice required in
       15-17-122, the county treasurer shall file a copy of the notice with the county

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       clerk. The copy must be accompanied by an affidavit signed by the county
       treasurer stating:
       (a) the name of the newspaper and its address of publication; and
       (b) the dates the notice was published.
       (2) If no newspaper is published in the county, the affidavit must list the
       locations and date of the posting required by 15-17-122.
       (3) The affidavit filed under subsection (1) or (2) is prima facie evidence of
       all the facts stated therein.

¶8     On July 29, 2014, we decided Zinvest, LLC v. Hudgins, in which we reversed the

District Court and held that the County Treasurer’s failure to provide an affidavit of

publication to the Clerk and Recorder pursuant to § 15-17-123, MCA, did not render

Zinvest’s tax deed void. Hudgins, ¶ 19. Zinvest argues that the facts of this case are

identical to Hudgins. Zinvest asserts that, like the defendants in Hudgins, the defendants in

this case were afforded adequate due process before the deprivation of their property as

required by both the United States and the Montana Constitutions. U.S. Const. amend. XIV,

§ 1; Mont. Const. art. II, § 17. We agree.

¶9     In order for our holding in Hudgins to not control the outcome of this particular case,

it must be in some way distinguishable. Voth attempts to distinguish his case from Hudgins

by asserting that, unlike the defendants in Hudgins, the District Court did not specifically

find that he had actual notice of the tax sale of his property. Voth asserts that tax sale

proceedings “demand punctilious compliance with all statutory and procedural

requirements” to protect a property owners’ due process rights, quoting Isern, ¶ 10. Voth

argues that his due process rights were violated by the County Treasurer’s failure to comply

with § 15-17-123, MCA, and therefore the tax deed issued to Zinvest is void. Voth’s

argument is without merit.

                                              4
¶10    Voth raises the issue of his actual and constructive notice of the tax sale for the first

time in this appeal. In the District Court, Voth did not argue that he had no notice of the tax

sale of his property. To the contrary, Voth compared his case to Hudgins in his motion for

summary judgment by stating, “The only differences in the two cases include the names of

the Defendants and the amounts paid to acquire the Tax Deeds.” (Emphasis added.)

Furthermore, Zinvest stated in its cross motion for summary judgment that “[i]t is undisputed

that Voth received both actual and constructive notice [of the tax sale],” and Voth did not

dispute this assertion. We generally decline to address arguments raised for the first time on

appeal. State v. Reim, 2014 MT 108, ¶ 28, 374 Mont. 487, 323 P.3d 880 (citations omitted).

Voth cannot argue to the District Court that his case is in all material respects identical to

Hudgins and now reverse course and argue for the first time on appeal that they are

distinguishable when it suits his purpose.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for memorandum opinions. The issues in this case

are legal and are controlled by settled Montana law, which the District Court incorrectly

interpreted. As was the case in Hudgins, the County Treasurer’s failure to comply with

§ 15-17-123, MCA, for tax years 2008 and 2009 did not render Zinvest’s tax deed to the

Property void.

¶12    Reversed and remanded.



                                                   /S/ JAMES JEREMIAH SHEA

We Concur:
                                               5
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JIM RICE


Justice Laurie McKinnon, dissenting.

¶13   For the reasons stated in my dissent in Zinvest, LLC v. Hudgins, 2014 MT 201,

¶¶ 22-24, 376 Mont. 72, 330 P.3d 1135 (McKinnon, J., dissenting), I believe that strict

compliance to the statutory provisions of § 15-17-123, MCA, is required in order to ensure

continuity of notice and due process. These procedures set forth by the legislature provide

for due process, both procedurally and substantively, and do not allow for judicial

manipulation of their provisions.

                                                /S/ LAURIE McKINNON




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