                             NO.    90-059
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1990


GAR L. AMUNDSON,
     Plaintiff and Respondent,
     -v-
RICHARD A. WORTMAN,
     Defendant and Appellant.



APPEAL FROM:    District Court of the Eighteenth Judicial District,
                In and for the County of Gallatin,
                The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Richard A. Wortman; Bozeman, Montana
           For Respondent:
               Richard Nellen; Drysdale, McLean, Nellen      &   Nellen;
               Bozeman, Montana


                                   Submitted on Briefs:   May 30, 1990
                                               Decided: July 30, 1990
Filed:
Justice ~ i a n e Barz delivered the Opinion of the Court.
                 G.


     Richard A. Wortman, defendant, appeals the decision of the
District Court         the Eighteenth Judicial District,
County, finding that the homestead exemption filed by Wortman on
September 6, 1989 was invalid as a result of the District Court's
October 11, 1988 order.    We affirm.
     On April 7, 1987, Gar L. Arnundson and Richard A. Wortman
entered into an agreement whereby Wortman agreed to purchase from
Amundson a business known as "Direct School Marketing Program."
The agreement specifically provided that:
          1.    The selling price shall be eighteen
          thousand dollars ($18,000) to be paid as
          follows: two thousand dollars ($2,000) down
          payment on this date receipt of which is
          hereby acknowledged; and eight thousand
          dollars ($8,000) to be paid on the 15th day of
          September, 1987, and eight thousand dollars
          ($8,000) together with simple interest thereon
          at a rate of six percent (6%) on the 15th day
          of September, 1988.
Wortman paid the two thousand dollars down payment on April 7,
1987, but failed to pay the eight thousand dollars due on September
15, 1987 despite Amundson's written demand for the money.        On
October 21, 1987, Amundson filed a complaint, requesting that
Wortman pay all monies owed under the April 7, 1987 agreement and
also requesting reasonable attorney fees and costs as provided
under the agreement.
     After a bench trial, the District Court entered judgment for
Amundson on August 17, 1988, finding that Wortman breached his part
of the agreement.   The District Court also found that under the
agreement, Amundson should receive reasonable attorney fees and
costs. Wortman then filed a Notice of Appeal. On August 31, 1988,
Amundson filed a petition requiring Wortman to file a bond or
provide other security to insure payment of costs on appeal
pursuant to Rule 6 (b), M.R.App.P.   On September 7, 1988, Wortman
filed a motion to stay execution and approve security other than
a supersedeas bond.   The District Court stayed the execution and
accepted the following real estate owned by Wortman as security:
          Lot 1 in Block 7 of Figgins Addition (Fourth
          Phase) to Bozeman, Montana, according to the
          official plat thereof on file and of record in
          the office of the County Clerk and Recorder in
          and for Gallatin County, Montana.
In his motion to stay execution, Wortman stated that   [tlhis motion
is made on the grounds and for the reason that said real estate as
hereinabove described is valued at in excess of the sum of
$85,000.00, and is free of all liens and encumbrances   ...   II


     In its October 11, 1988 order approving the real estate as
security, the court stated:
               IT IS FURTHER HEREBY ORDERED that
          [Wortman] upon acceptance of said real estate
          as security other than supersedeas bond will
          not permit any liens and/or incumbrances to be
          placed as against said real estate, pending
          appeal to the Montana Supreme Court.
               IT IS FURTHER HEREBY ORDERED that
          [Wortman] will not file as against said real
          estate as hereinabove specifically described
          any "homestead exemptionl1 or other similar
          type exemption which will in any way diminish
          the value of said real estate as security on
          appeal.
     On July 18, 1989, the Montana Supreme Court affirmed the
District Court's judgment but remanded for further proceedings as
to attorney fees.   See Arnundson v. Wortman (Mont. 1989), 777 P.2d
315, 46 St.Rep.     1207.   Wortman then filed a Declaration of
Homestead in the office of the Clerk and Recorder of Gallatin
County on September 6, 1989.     On November 16, 1989, a Writ of
Execution was issued by the Clerk of the District Court of the
Eighteenth Judicial District.     The writ ordered the sheriff's
department to satisfy the judgment from the real property that
Wortman had requested to be used as security and upon which Wortman
had then filed a homestead exemption.
     On November 30, 1989, Amundson filed a petition to invalidate
Wortman's homestead exemption. After a hearing, the District Court
determined that the homestead exemption was invalid as far as the
August 17, 1988 judgment was concerned and ordered the sheriff 's
sale to go forward.    On December 28, 1989, the property on which
the homestead exemption was filed was sold at a sheriff Is sale
after the proper notice and procedures were followed.     Wortman,
appearing pro se, then filed a Notice of Appeal to this Court.
     We determine that the essential issue raised on appeal is
whether Wortman could file a homestead exemption after the District
Court   specifically ordered Wortman not to     file a homestead
exemption or other similar type exemption which would in any way
diminish the value of the real property on appeal because of
Wortman's request to use the property in question as security for
the appeal pursuant to Rule 7(b), M.R.App.P.
     Wortman argues that under the 1972 Montana Constitution he
has a constitutional right to a homestead exemption and therefore
the District Court erred when it ordered that Wortman could not
avail himself of the homestead exemption in the October 11, 1988
order   and    then   subsequently         found    Wortmanls declaration of
homestead invalid.         The 1972 Montana Constitution provides that
I1[t]he Legislature shall enact liberal homestead exemption laws.I1
Mont. Const., Art. XIII,       $j   5.   The establishment of the homestead
and their exemptions, executions and abandonment are addressed in
5 5 70-32-101 through -303, MCA.
     In the present case, Wortman filed a motion with the District
Court requesting the court to allow him to post security, as
required by Rule 7(b), M.R.App.P., other than a supersedeas bond.
In particular, Wortman specifically requested that he use his real
estate property.           At the October 3, 1988 hearing, Wortman's
attorney stated that ItMr. Wortman would abide by whatever order
this Court issues with respect to keeping the property free and
clear of all liens and encumbrances pending the appeal in this
matter."    The court therefore granted his motion and allowed him
to   post     his   real    estate       property    as   security, with   the
corresponding order that Wortman would not permit any liens or
incumbrances to be placed on the property nor would he file a
homestead exemption on the property.                Wortman was represented by
counsel throughout these proceedings.               Wortman nonetheless filed
a homestead exemption on the real property in question on September
6, 1989.

     In the present case, Amundson petitioned the District Court
to invalidate Wortmanls homestead              exemption in light of the
previous October 11, 1988 order. Although none of the provisions
enumerated in   §   70-32-202, MCA, are applicable to the present set
of facts, Wortman nonetheless specifically waived any right he had
to a homestead exemption.
     We hold that the District Court properly invalidated Wortman's
homestead exemption as it applied to the August 17, 1988 judgment
lien.   Furthermore, Arnundson requests that this Court remand this
case to the District Court for the determination of attorney fees
and costs as a result of this appeal.           The underlying contract
states that "[i]n the event either party is required to bring suit
for any reason under this Agreement, the prevailing party in such
litigation shall be entitled to full recovery of all attorney's
fees, costs and expenses incurred as a consequence of such suit.I1
In light of the underlying agreement, we remand the case to the
District Court for a determination of the attorney fees and costs
that were incurred by Amundson as a result of this appeal.
    Affirmed and remanded.                  /




We Concur:




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