                                                                                               06/21/2016

                                           DA 15-0488
                                                                                           Case Number: DA 15-0488
                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 155N



HELEN L. BRITTON and JOHN R. BRITTON,
or their Successors, as TRUSTEES OF
THE BRITTON JOINT TRUST,

              Plaintiffs, Counterclaim
              Defendants and Appellees,

         v.

ELISE C. BROWN,

              Defendant, Counterclaim
              Plaintiff and Appellant.


APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Lake, Cause No. DV 07-299
                       Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Randy J. Cox, Boone, Karlberg P.C., Missoula, Montana

                       Jack R. Tuholske, Tuholske Law Office PC, Missoula, Montana

                For Appellee:

                       Kyle A. Gray, Michelle M. Sullivan, Holland & Hart LLP, Billings,
                       Montana

                       William T. Wagner, Garlington, Lohn & Robinson, PLLP, Missoula,
                       Montana

                       Jane E. Cowley, Worden Thane P.C., Missoula, Montana


                                                   Submitted on Briefs: April 13, 2016
                                                              Decided: June 21, 2016
Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c), 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        Elise C. Brown appeals the judgment of the Twentieth Judicial District Court,

Lake County. Specifically, Brown contests the portion of the judgment that granted the

Brittons a septic easement burdening Brown’s portion of the partitioned property, which

was later reiterated by oral order on the Brittons’ motion to enforce judgment. We

affirm.

¶3        The parties are owners as tenants in common of property located on Flathead

Lake, which they inherited from Helen Britton’s and Brown’s parents. In 2007, the

Brittons sued Brown seeking partition of the property. After much litigation, in 2014, the

District Court conducted a three-day bench trial resulting in a judgment that ordered the

partition in kind of the property into two parcels of equal value. The court based its order

in part on a professional appraisal prepared for the purposes of the litigation by appraiser

James Kelley, on behalf of Brown. The court awarded Brown “hypothetical parcel one,”

and the Brittons “hypothetical parcel two,” each “as set forth in the Kelley Appraisal.”

Brown’s parcel included a cabin with a private septic system, and a boat dock. The

Brittons’ parcel included no improvements. Under the descriptions of both parcels the




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appraisal outlined the proposal for a septic easement burdening parcel one. The appraisal

further reflected the value of the easement in the valuation of parcel one.

¶4     In April 2015, the Brittons filed a motion for enforcement of judgment seeking to

enforce the provisions of the judgment that apply to surveying the partition line and the

septic easement.      In response and on appeal, Brown maintains a septic easement

burdening her portion of the property was not created by the judgment. In July 2015, the

court held a hearing on the Brittons’ motion. At the conclusion of the hearing the court

determined the septic easement was not at issue, and to the extent the judgment was

unclear regarding the easement’s existence the court determined the Kelley Appraisal

accounted for the easement in the valuation of the parcels, which the court both intended

to and did incorporate into the judgment.

¶5     A court has the “inherent power to enforce its judgments and decrees, and to make

such orders and issue such process as may be necessary to render [judgments and

decrees] effective.” Smith v. Foss, 177 Mont. 443, 446, 582 P.2d 329, 332 (1978)

(citation omitted). Furthermore, a court has the power to amend a judgment to express

what the court actually decided and grant the relief it originally intended. In re Marriage

of Cannon, 215 Mont. 272, 274, 697 P.2d 901, 902 (1985). A court may correct any

clerical error found in a judgment at any time. M. R. Civ. P. 60(a). A clerical error is

one that misrepresents the court’s original intention,1 the correction of which is reviewed

for an abuse of discretion. Funke v. Estate of Shultz, 2009 MT 411, ¶¶ 6, 9, 353 Mont.

492, 223 P.3d 839.

1
  As opposed to a judicial error, the correction of which reflects a change to the court’s original
intent.

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¶6      The original judgment clearly intended to partition the property into two equally

valued parcels. In order to achieve this goal the court relied on the expert testimony

offered by the parties, including the Kelley Appraisal. The Kelley Appraisal specifically

described the easement in its assessment of the parcels, and included the value of an

easement burdening “hypothetical parcel one” in the valuation of both parcels. To ignore

the easement in its entirety would frustrate the purpose of creating two equally valued

parcels, giving one party a greater valued parcel.

¶7      It is clear that post-judgment the parties disputed, whether based on the language

of the judgment, the easement exists. To clarify confusion related to the easement’s

inclusion in the original judgment the court issued an oral order, which is allowed at any

time under Montana law.       We hold the court did not abuse its discretion in orally

clarifying the original judgment to reflect its original intent to create two equally valued

parcels, including the creation of a septic easement for the benefit of “hypothetical parcel

two.”

¶8      We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶9      Affirmed.

                                                 /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON

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/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA




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