                                                                                March 1 2016


                                       DA 14-0478
                                                                              Case Number: DA 14-0478

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2016 MT 46



DOUGLAS W. JOHNSON,

            Plaintiff and Appellee,

      v.

WAYNE S. HANSEN TRUST; THE STATE OF MONTANA;
THE DEPARTMENT OF REVENUE of the State of Montana;
POWELL COUNTY, a body politic and corporate and
political subdivision of the State of Montana; LISA D. SMITH,
as Treasurer of Powell County, the unknown heirs, unknown
devisees and unknown creditors of each of the above described
individual Defendants who may now be deceased; 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 adverse to Plaintiff’s title thereto, whether such claim
or possible claim be present or contingent,

            Defendants,

WAYNE S. HANSEN TRUST,

            Defendant and Appellant.


APPEAL FROM:        District Court of the Third Judicial District,
                    In and For the County of Powell, Cause No. DV-13-41
                    Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

             For Appellant:

                    Jeffrey W. Dahood, Knight and Dahood, Anaconda, Montana

             For Appellee:

                    Daniel Sweeney, Sweeney Law Firm, Butte, Montana
                                 Submitted on Briefs: February 3, 2016

                                            Decided: March 1, 2016


Filed:

         __________________________________________
                           Clerk




                             2
Justice Jim Rice delivered the Opinion of the Court.

¶1     The Wayne S. Hansen Trust (Trust) appeals from two orders issued by the Third

Judicial District Court, Powell County. The Trust acquired tax deeds to three tracts of

real property located in Powell County, previously owned by Douglas W. Johnson

(Johnson).   The District Court’s first order granted summary judgment to Johnson,

declaring the tax deeds void, and the second order addressed the calculation of the final

redemption amount to be paid to the Trust. We affirm and address the following issues:1

       1. Did the District Court err by granting summary judgment to Johnson and
       declaring the tax deeds void?

       2. Did the District Court err in determining the final redemption amount due to
       the Trust as purchaser of the tax deed?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     Johnson owned three parcels of real property located in Powell County that were

valued collectively for tax purposes at $260,478. After Johnson failed to pay the property

taxes over several years, the Trust acquired tax deeds to the properties in December of

2012. The Trust filed three quiet title actions for the respective properties in March 2013,

and Johnson responded by filing his own quiet title actions on the properties. Johnson

alleged that the tax deeds issued to the Trust violated statutory procedural requirements

and asked that the District Court set them aside and declare his ownership interest.

¶3     In April 2013, upon the Trust’s motion, Johnson deposited $20,000 into the Clerk

of Court’s trust account as a bond pursuant to § 15-18-411, MCA. Later, the District

1
 The Trust raises 19 issues on appeal. We refer counsel to M. R. App. P. 12(1)(b), providing:
“Parties are encouraged to limit the number of issues to 4 or fewer.”
                                                3
Court consolidated the six quiet title actions and dismissed Powell County and Powell

County Treasurer Lisa Smith (Smith) as defendants, with the understanding that they

would produce documents and other evidence as requested by the parties. In response to

Johnson’s requests, Powell County and Smith produced several hundred pages of records

pertaining to the tax liens and deeds on the subject properties. Following a motion from

the Trust, the District Court issued an order in October 2013, directing Johnson to deposit

an additional $17,497.48 into the Clerk of Court’s trust account, raising his deposit to

$37,497.48.2

¶4     Johnson moved for summary judgment in December 2013, citing evidence

obtained from the County to argue that both the County and the Trust had failed to

comply with several statutes, and that the tax deeds were therefore void. The District

Court granted summary judgment to Johnson in May 2014, finding multiple instances of

statutory noncompliance in the tax deed process, and declared the tax deeds void. In the

same order, the District Court denied another request from the Trust to order Johnson to

deposit additional bond funds. On June 30, 2014, the District Court entered judgment,

ordering that Johnson’s deposit be remitted to the Trust, and that a Certificate of

Redemption for each of the properties be issued to Johnson.



2
  Although the District Court ordered Johnson to deposit additional bond funds, the amount
Johnson was required to deposit was significantly less than what the Trust requested. In its
motion, the Trust requested a deposit in the amount of $79,421.39. Included in that sum were
accrued taxes for the years 2008, 2009, 2010, 2011, and 2012, penalties, interest, property
insurance premiums, publication costs, court filing fees, trust administrative expenses, and legal
fees. In ordering Johnson to deposit $37,497.48, the District Court specifically did not include
trust administrative expenses or attorney fees.
                                                4
¶5     On July 15, 2014, the Trust filed objections and a request for relief from the

judgment pursuant to M. R. Civ. P. 54(c) and 58(e). On July 28, the Trust also filed a

Motion to Alter or Amend the Findings and Judgment or for a New Trial. In both of

these motions, the Trust argued that the District Court erred in granting summary

judgment by ignoring genuine issues of material fact, and by failing to properly calculate

the final redemption amount owed to the Trust. The Trust contended that the District

Court erred by denying the Trust’s request for an additional bonding deposit, arguing that

the $37,497.48 deposited by Johnson, which had been calculated as of July 19, 2013,

failed to account for additional taxes, interests, and costs paid by the Trust. In November

2014, the District Court issued an order partially granting and partially denying the

Trusts’ motions. Specifically, the District Court denied the request to alter or amend the

grant of summary judgment, but acknowledged that the judgment failed to “address the

issue of taxes accrued or paid by either party during the pendency of the proceedings.”

Accordingly, the District Court ordered the parties to submit additional memorandum

with supporting evidence “to address any discrepancy between the bond deposit returned

to Defendant Hansen Trust and any final redemption amount that is still alleged owed.”

¶6     After receiving additional briefing from the parties, the District Court issued an

Order Regarding Final Redemption Amount in February 2015. The District Court noted

that the Trust, in its additional briefing, had submitted the affidavit of the Trustee

Christian Hansen that “references unsubstantiated amounts for an additional bond

deposit, accrued interest, and other disbursements, including property taxes for 2014,

                                            5
property insurance renewal costs, and court filing fees.” However, the court further noted

that “Defendant Hansen Trust does not provide any supporting documentation to show

how it calculates the interest nor does it provide the Court with evidence of proof of

payments . . . .” The District Court ruled that “based on the evidence presented to the

Court, no additional redemption amount is due or owing to Defendant Hansen Trust.”3

The Trust appeals from the District Court’s orders granting summary judgment and

determining the final redemption amount.

                                 STANDARD OF REVIEW

¶7     The Court reviews a grant of summary judgment de novo, performing the same

analysis as does a district court. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 36, 345

Mont. 12, 192 P.3d 186 (citation omitted). “The judgment sought should be rendered if

the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” M. R. Civ. P. 56(c)(3). “In determining whether genuine



3
  The Trust filed a third post-judgment motion for relief pursuant to M. R. Civ. P. 60(b)(1) and
(5) on March 2, 2015, requesting that the District Court consider the “excluding of those receipts
from its Memorandum as being an inadvertent mistake.” The Trust included an affidavit and
receipts that had been omitted from the previous briefing. This documentation contained the
property insurance premium information, as well as receipts for the 2013 and 2014 tax year
payments.      The District Court denied this motion, finding the Trust’s supplemental
documentation was untimely. On May 11, 2015, Johnson filed a motion that requested the
District Court to order the Powell County Treasurer to mail the tax bills for the properties to him,
and not to the Trust. In its answer, the Trust argued that the District Court should use its
authority sua sponte to resolve the discrepancy between the bond deposit and the redemption
amount, and that the matter of the tax bills should be held in abeyance. By then, the appeal had
been filed to this Court, and the District Court concluded that it was “divested of jurisdiction to
address this matter further.”
                                                 6
issues of material fact exist, we must view all evidence in the light most favorable to the

non-moving party.” Lorang, ¶ 38.

       If the moving party meets its burden of demonstrating a complete absence
       of genuine issues of material fact, the burden then shifts to the non-moving
       party to set forth specific facts, not merely denials, speculation, or
       conclusory statements, in order to establish that a genuine issue of material
       fact does indeed exist. Finally, if no genuine issues of material fact exist, it
       must then be determined whether the facts actually entitle the moving party
       to judgment as a matter of law.

Lorang, ¶ 39.

¶8     “Our standard of review relating to conclusions of law is whether the trial judge’s

interpretation of the law is correct.” Moran v. Robbin, 261 Mont. 478, 482, 863 P.2d

395, 398 (1993) (citing Steer, Inc. v. Dep’t of Revenue, 245 Mont. 470, 474, 803 P.2d

601, 603 (1990)).

                                      DISCUSSION

¶9     1. Did the District Court err by granting summary judgment to Johnson and
declaring the tax deeds void?

¶10    The Trust contends that the District Court improperly granted summary judgment

and declared the tax deeds void. Generally, the Trust argues that summary judgment was

improper because the record was incomplete and disputed issues remained.

¶11    Tax deed proceedings require strict compliance with the governing statutes:

       Tax deed proceedings implicate a property owner’s fundamental interests.
       The purpose behind the tax lien sales statutes is to protect property owners
       and their rights to due process. Due to the important interests at stake,
       every essential and material step required by the tax deed statutes must be
       strictly followed. Such exacting compliance with the statutes is necessary
       because the owner risks losing his or her real property for the failure to pay
       the property taxes. Often, very valuable property is lost for a mere pittance.
                                              7
Hansen Trust v. Ward, 2015 MT 131, ¶ 26, 379 Mont. 161, 349 P.3d 500 (internal

citations and quotation marks omitted). We have also held that “[i]n determining the

sufficiency of the tax deed proceedings, the record alone is to be considered . . . .”

Moran, 261 Mont. at 483, 863 P.2d at 398.

¶12    In his motion for summary judgment, Johnson asserted, among other claims of

statutory violations, that Treasurer Smith had failed to provide the County Clerk and

Recorder with a report of all persons and property owing taxes, in violation of

§ 15-16-301, MCA. The statute requires the county treasurer to “make a report to the

county clerk and recorder in detail, showing the amount of taxes collected and a complete

list of all persons and property then owing taxes.” Section 15-16-301(1), MCA. As

evidence of this failure, Johnson included a copy of a memo sent from Smith to the

Powell County Clerk and Recorder on March 31, 2011, in which she acknowledged:

       Per [§] 15-16-301, MCA, on the third Monday of June of each year, I am
       required to provide you with a report of the amount of taxes collected, a list
       of all persons and property then owing taxes and a separate report showing
       the amount of taxes suspended or canceled. I don’t know that this has ever
       been done. I know I haven’t prepared these reports for you since I started
       . . . . The attachments provide these reports to you for fiscal years 2007,
       2008, 2009[,] and 2010. Although the statutory date requirement has not
       been met, this will provide a starting point for future compliance with this
       statute.

In another memorandum, also dated March 31, 2011, Smith acknowledged that other

reports required under § 15-17-214(2)(a), MCA, had likewise not been submitted to the

County Clerk and Recorder. Johnson also provided records of the deeds and notices

employed in this case, and detailed how they failed to satisfy statutory requirements.
                                             8
¶13    In Isern v. Summerfield, 1998 MT 45, 287 Mont. 461, 956 P.2d 28, the appellant

taxpayer claimed that the district court had erred by granting summary judgment to the

tax deed purchasers, and by concluding that multiple errors in the process did not void the

tax deed. We agreed with the appellant taxpayer and reversed following a discussion of

the statutory infractions, concluding, “[g]iven the requirement of strict compliance with

statutory procedures for issuing a tax deed, . . . we hold that the errors and omissions

discussed above void the subject tax deed . . . .” Isern, ¶ 21. The appellant taxpayer

noted several statutory errors, including a failure to comply with § 15-16-301, MCA.

Isern, ¶ 11. Similarly, here, Johnson demonstrated a violation of this same statute, as

well as many other violations, from the records provided by the County. The District

Court reviewed the records and correctly granted summary judgment to Johnson,

identifying a total of thirteen errors in the tax deed process.

¶14    The Trust argues that the record was incomplete and that genuine issues of

material fact remained, but fails to articulate exactly what those issues of fact are. The

records cited by Johnson were clearly sufficient to establish several violations of the

statutory tax deed process. After producing records regarding these tax deed transactions,

Treasurer Smith submitted an affidavit wherein she stated that “additional documentation

may exist that was not located during the week-long search” (emphasis added). The

Trust emphasizes this statement in arguing that the District Court prematurely granted

summary judgment without giving the Trust the opportunity to conduct “original

discovery.”    However, the Trust fails to show how the discovery of additional

                                               9
documentation could have changed the outcome—multiple statutory violations, sufficient

to void the tax deeds, were already established by the uncontested evidence presented.4

¶15    We affirm the District Court’s order granting summary judgment. Montana law

clearly requires “exacting compliance with the statutes” governing the tax deed process,

and the host of errors in the statutory procedure in this case required voiding of the deeds.

Hansen Trust, ¶ 26.

¶16 2. Did the District Court err in determining the final redemption amount due to
the Trust as purchaser of the tax deed?

¶17    The Trust argues that the District Court failed to determine a proper equation or

formula for calculation of the redemption amount owed to it, that the District Court

incorrectly ordered the bond deposit paid in lieu of redemption when the liens on the

properties had not been properly extinguished, and that the final amount remitted by

Johnson failed to include the proper interest, subsequent taxes, and costs.

¶18    A tax deed conveys to its purchaser “absolute title to the property described in the

deed . . . .” See § 15-18-413(1), MCA. In addition, this “conveyance” from the county

gives to the tax deed purchaser “the right, if the tax deed . . . [is] attacked and held

irregular or void, to recover the unpaid taxes, interest, penalties, and costs that would

accrue if the tax proceedings had been regular and it was desired to redeem the property.”



4
  The Trust also argues that summary judgment was improperly entered because “revelations of
the county’s alleged nonfeasance, misfeasance, and knowledgeable contributions to the
problems” in the tax deed process “constituted a genuinely disputed material issue.” However,
this was a quiet title proceeding in which the County claimed no interest in the property, and in
which no claims against the County were filed, if any could have been. The District Court’s
dismissal of the county defendants was proper.
                                                10
Section 15-18-413(2)(b), MCA.5 A defaulting taxpayer, commonly referred to as the true

owner, may seek to have the tax deed declared void via a quiet title action, as happened

in this case. In such an action, the true owner may be ordered to deposit with the court:

       the amount of all taxes, interest, penalties, and costs that would have
       accrued if the property had been regularly and legally assessed and taxed as
       the property of the true owner and was about to be redeemed by the true
       owner; and the amount of all sums reasonably paid by the purchaser
       following the order and after 3 years from the date of the tax lien sale to
       preserve the property or to make improvements . . . .

Section 15-18-411(1)(c)(i)(A)-(B), MCA. Then, if “the true owner is successful in the

action and the tax proceedings are declared void, the amount deposited with the court

must be paid to the purchaser” of the tax deed. Section 15-18-412(3), MCA. This

deposit “encourages prompt return of the property to the tax rolls” and “prevents unjust

enrichment of the owner at the expense of the tax purchaser should the owner win.” Ball

v. Gee, 243 Mont. 406, 412, 795 P.2d 82, 86 (1990). “The deposit also lessens the

burden on the courts and the purchasers by precluding frivolous defenses.” Ball, 243

Mont. at 412, 795 P.2d at 86.

¶19    Here, the two parties and the District Court all used different equations to calculate

the final amount due to the Trust after the tax deeds were declared void, and we hope to

clarify the statutory equation herein. First, as used in Hansen Trust, ¶ 44, the term

“redemption amount” means the “amount reflecting the taxes, interest, penalties, and
5
  We take this opportunity to clarify our discussion of this statute in Hansen Trust, ¶ 42. In
describing the rights of the purchaser after a tax deed has been declared void, as provided by
§ 15-18-413(2), MCA, we stated that the term “conveyance” in the statute refers to a “new
deed,” presumably transferring the property back to the true owner. Hansen Trust, ¶ 42, n.4.
However, as used here, the term “conveyance” actually describes the original conveyance from
the county to the purchaser by way of the tax deed.
                                                11
costs” that were paid by the tax deed purchaser to the county in order to acquire the tax

deed. The true owner must reimburse the tax deed purchaser for this amount, which, as

stated, includes any interest and penalties that had been assessed by the county by reason

of the delinquent taxes, and paid to the county by the tax deed purchaser.                 See

§ 15-16-102(2), MCA; § 15-16-401, MCA; § 15-18-211(1), MCA.

¶20    The next amount required by statute to be repaid by the true owner is any property

taxes on the property paid by the tax deed purchaser subsequent to issuance of the tax

deed. Section 15-18-412(6), MCA, provides that the court “shall also determine the

rights resulting from any additional taxes on the property accruing or being paid by either

party during the pendency of the suit.” If the tax deed purchaser has paid property taxes

on the property subsequent to issuance of the tax deed, the true owner must reimburse

this cost. See also Hansen Trust, ¶ 44.

¶21    The next item in the equation is costs. By statute, the true owner must deposit “the

amount of all sums reasonably paid by the [tax deed] purchaser,” after the court’s deposit

order and at least 3 years after the date of the tax lien sale, “to preserve the property or to

make improvements on the property while in the purchaser’s possession . . . .” See

§ 15-18-411(1)(c)(i)(B), MCA.       Further, “costs” are also defined as those that are

incurred by the tax deed purchaser and are “required by law.” Section 15-17-121(2)(b),

MCA; Hansen Trust, ¶ 42. We have held that, even if costs such as property insurance,

administrative expenses, and attorney fees could be considered reasonable, they are not

“required by law” and are not reimbursable. See Hansen Trust, ¶ 43.

                                              12
¶22    Finally, there is the issue of additional interest. As discussed above, interest and

penalties assessed by the county on delinquent taxes are necessarily included in the

redemption amount because the tax deed purchaser would have paid these to acquire the

tax deed. In Hansen Trust, we also affirmed the District Court’s award of interest to the

tax deed purchaser that had accumulated on the true owner’s deposit during the

litigation.6 Hansen Trust, ¶ 41. However, the decision to award any such interest lies

within the discretion of the presiding court, and a tax deed purchaser is not automatically

entitled to such an award. See § 15-18-412(7), MCA.

¶23    Here, the District Court ordered Johnson to deposit $37,497.48, which included

property taxes for tax years 2008, 2009, 2010, 2011, and 2012, accumulated interest on

that sum assessed by Hansen Trust, insurance premiums, court filing costs, and

publication costs. As explained herein, there is no provision in the statutes entitling a tax

deed purchaser to collect interest on redemption amounts owed to it or other costs not

expressly required by law. See § 15-17-121(2), MCA; § 15-18-411(1)(c)(i)(B), MCA.

On the other hand, the Trust points out that the $37,497.48 amount was calculated only as

of July 19, 2013, and did not include the subsequent taxes it paid for tax years 2013 and

2014. However, the Trust failed to submit the necessary documentation when ordered by

the District Court, leading the court to conclude that the Trust had waived further

6
  The Court cited to § 15-18-412(3), MCA, as authority for awarding interest that had accrued on
the deposit during the litigation. See Hansen Trust, ¶¶ 41, 47. However, interest is not
referenced in that provision, and authority for this award is more properly derived from
§ 15-18-412(7), MCA, which provides that, “[i]n the quiet title action, the court has complete
jurisdiction to fix the amount of taxes that should have been paid, including penalties, interest,
and costs, and to determine all questions necessary in granting full relief . . . .”
                                                13
reimbursement.    While further proceedings, in light of this opinion, may well have

resulted in both positive and negative adjustments in the amount properly payable to the

Trust, its waiver of further reimbursement, and Johnson’s lack of a challenge to the

$37,497.48 ordered by the District Court, leads us to the conclusion that affirming the

judgment as entered is appropriate.

¶24   Affirmed.


                                               /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA




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