author: Justice Ingrid Gustafson delivered the Opinion of the Court. Justice Jim Rice, dissenting.

text:
    SOUP CREEK LLC, Dewey and Rosana Skelton, Plaintiffs and Appellees, v. Patricia GIBSON, Richie Gibson, and Don Gibson, Defendants and Appellants.
    DA 18-0182
    Supreme Court of Montana.
    Submitted on Briefs: December 5, 2018 Decided: March 12, 2019
    For Appellants: James E. Brown, The James Brown Law Office, PLLC, Helena, Montana
    For Appellees: Burt N. Hurwitz, Church, Harris, Johnson & Williams, P.C., Great Falls, Montana, Hanna Warhank, Attorney at Law, Great Falls, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendants Patricia Gibson, Richie Gibson, and Don Gibson (Gibsons) appeal from the Findings of Fact, Conclusions of Law and Order dated March 15, 2018, in the First Judicial District Court, Lewis and Clark County, which concluded Soup Creek Road was an extinguished prescriptive easement across the parcel of land owned by Plaintiffs Soup Creek, LLC, Dewey Skelton, and Rosana Skelton (Skeltons). We reverse and remand for entry of judgment consistent with this Opinion.

¶2 The issue on appeal is:

Whether the District Court erred in concluding Soup Creek Road is not a public highway.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Soup Creek Road begins at Nelson Road, a county road in Lewis and Clark County, and traverses approximately three miles across Bureau of Land Management (BLM) property administered by the U.S. Forest Service and other private lands before crossing into and through Skeltons' Lot 7 to the Gibson parcel. Soup Creek Road ends at the Gibson parcel, and is the only road access to it. The Skelton and Gibson parcels have not been owned in common since patent from the United States.

¶4 Soup Creek Road has been used as a public travel way for more than 150 years. The earliest record of Soup Creek Road is a U.S. Township Survey from 1868 depicting the road in approximately the same location as the road is situated today. By 1869 the road was used for accessing ferries that carried members of the public across the Missouri River, for mining sapphires and gold, and for accessing homestead and landowner property. Since then, Soup Creek Road has continued to be depicted and referenced in various surveys and public records and to be used by the public and others-in recent decades, primarily by persons accessing the Gibson parcel.

¶5 There was evidence and documentation from the 1880s of a reservoir and ditch over Soup Creek going to the Eldorado Bar. In 1891, an article was published about sapphire hunting outside of Helena, in which a wagon drawn by two "sleepy-looking broncos" took the author via Soup Creek Road out to Eldorado Bar, "one of the most famous bars in Montana," describing the trip as follows:

The down grade was through Soup Creek Canyon, with its succession of magnificent views of wooded cliffs and denuded strata that tell, in fantastic undulations, the story of earth's changes. Sections of the ill-fated flume still cling to the precipitous sides, and far down the canyon timbers belonging to the shattered trestle and which are rotting gradually away are passed. The canyon opens on the Missouri River as clear and as blue as the sky itself. The road turns to the right, and great rows of wild-rose bushes stand like guards along its sides. In June the pedestrian must walk through a veritable arbor of pink and perfume, for the lofty tops brush the wagon seats as it passes.... A ride of a few more miles has its ending at the Eldorado Bar, where a hut or two tell of their occupants in the sixties.... It would evidently not be an enormous task to reconstruct the flume of the sixties and work out this great bar of 1,600 acres with its rich deposits of gold and gems.

Conde Hamlin, Sapphire Hunting in Montana , Current Literature, A Magazine of Record and Review, May-Aug. 1891, at 120, 123-24.

¶6 In 1894 the Meagher County Commissioners were petitioned to make Soup Creek Road a county road. The petition was rejected in 1895 when the commissioners adopted a different route. Shortly thereafter, the portion of Meagher County that had included Soup Creek Canyon became part of Lewis and Clark County; the entirety of Soup Creek Road is now situated in Lewis and Clark County.

¶7 Soup Creek Road is continually referenced in Lewis and Clark County records but is not included as a county road on its index of county roads. Soup Creek Road is mentioned in a 1907 petition to the Lewis and Clark County Commission which sought approval to extend the then-existing road around Soup Creek Bay to the Trout Creek bridge. The Commission declined to approve the proposed extension.

¶8 In June 1910, M.S. Gunn, Gibsons' predecessor-in-interest, petitioned the Lewis and Clark County Commissioners to abandon only that portion of Soup Creek Road that crosses over what is now the Gibson parcel. The petition was granted.

¶9 The 1913 BLM survey includes Soup Creek Road. Another survey, accepted by the Surveyor General in 1914, which had been conducted in 1906 for the Government Land Office (GLO) (now the Department of Interior which includes the BLM) shows Soup Creek Road running from York Road to the Missouri River over what is now Skeltons' Lot 7 and the Gibson parcel. In Homestead Entry Surveys 177 and 489, completed in 1914 and 1915 respectively, the U.S. Forest Service platted Soup Creek Road, calling it a "road right of way" and a "right of way."

¶10 In 1917, Mayo, a predecessor-in-interest to Skeltons, was issued a government patent for Lot 7, now owned by Skeltons. The patent was issued with reference to GLO Survey No. 489. Survey 489 depicts Tracts A and B with a remainder strip running down the middle between these two tracts to Lot 7. In 1918, Worley, also a predecessor-in-interest to Skeltons, was granted a patent for Tracts A and B, which are also now owned by Skeltons. The patent for Tracts A and B refers to Homestead Entry Survey 177, which platted Soup Creek Road as a "right of way."

¶11 Soup Creek Road continued to be used through the 1920s, serving adjacent landowners, including homesteads on Lot 7. In 1931, the GLO revised survey depicts the road extending through Lot 7. In 1933, Skeltons' predecessor-in-interest received title to Lot 7 depicting Soup Creek Road in the deed. Landowners continued to use Soup Creek Road in the 1940s, '50s, and '60s when Skeltons purchased Lot 7.

¶12 Rosana Skelton testified she moved onto the property in 1964, soon after a flood washed out Soup Creek Road, after which she continued to use the road to help her move cattle on the property.

¶13 Richie Gibson, and Gibsons' friends and relatives, also testified that although the road was rough and crossing the creek was difficult in places, Soup Creek Road was passable to the Gibson property throughout the 1970s and 1980s. Witnesses testified to using the road during that time to pursue recreational activities such as swimming, hunting, fishing, and camping. Witnesses also testified they traveled the road to Gibsons' parcel to bring in equipment to spray weeds, to clear and burn debris, to haul supplies to fix the dock, and to haul a camper to the property.

¶14 In 1993, Dewey Skelton made improvements to Soup Creek Road, putting in two culverts at the creek crossings and shale at other crossings. Dewey testified work was mostly done on the creek crossings but some repair was also undertaken on other parts of the road. Near the time Dewey repaired the road, Skeltons built a cabin on Lot 7. Following completion of the cabin, they installed gates and took other measures to try to preclude public use of Soup Creek Road. These actions strained relationships between Skeltons and Gibsons. In 1996, Gibsons had an incident with Rosana Skelton when they inadvertently placed some debris on the edge of Lot 7. This resulted in a complete deterioration of their already-strained relationship. Thereafter, Gibsons and their invitees took whatever action was necessary-including cutting locks, disabling gates, and removing obstructions placed by Skeltons-to access their parcel via Soup Creek Road.

¶15 In 2009 Skeltons asked the District Court to declare the portion of Soup Creek Road which traverses their land to be a private road over which Gibsons have no easement, prescriptive or otherwise, to reach their parcel. Gibsons counterclaimed, among other things, that the road is a public highway established prior to 1895 through prescriptive use.

¶16 In September 2017, after a bench trial, the District Court found Soup Creek Road had been used as described above, but the court found no right-of-way or easement across Lot 7. The court further concluded, "Any public prescriptive easement on Soup Creek Road was extinguished by reverse adverse possession by Rosana Skelton and the acts of road users inconsistent with a claim of prescriptive right by their acquiescing to only permissive use for more than the full statutory period." Gibsons appeal.

STANDARD OF REVIEW

¶17 We review a district court's findings of fact to determine whether they are clearly erroneous. M. R. Civ. P. 52(a). We adopted the following three-part inquiry: First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial court misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still determine 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. McCauley v. Thompson-Nistler , 2000 MT 215, ¶ 18, 301 Mont. 81, 10 P.3d 794 (citation omitted).

¶18 We review a district court's conclusions of law de novo to determine whether they are correct. This Court is not bound by the trial court's conclusions and remains free to reach its own based on the record before it. McCauley , ¶ 18 (citations omitted).

DISCUSSION

¶19 Whether the District Court erred in concluding Soup Creek Road is not a public highway.

¶20 Gibsons argue Soup Creek Road is a public highway that has never been abandoned, and alternately, if it is not a public highway, Gibsons have a prescriptive easement. Skeltons counter that Meagher County abandoned Soup Creek Road in 1895, when it refused to designate it a "county road," and that a prescriptive easement was never established.

¶21 First, we address whether Soup Creek Road was a public highway created under Montana statute. Prior to July 1, 1895, a public highway was established in one of four ways: 1) the act of the proper authorities as provided by the statute; 2) by prescriptive use by the public for the period of the statute of limitations (which was 5 years); 3) by the opening and dedication of a road by an individual owner of the land; or 4) on a partition of real property. McCauley, ¶ 21 ; State ex rel. Dansie v. Nolan , 58 Mont. 167, 173, 191 P. 150, 152 (1920) (citing four ways to establish a public highway); Violet v. Martin , 62 Mont. 335, 342, 205 P. 221, 223 (1922) (noting statutory period) (overruled on other grounds). To demonstrate that a way over the lands of another is a public road, the evidence must be convincing that the public have pursued a definite, fixed course, continuously and uninterruptedly, and coupled it with an assumption of control and right of use adversely under claim or color of right, and not merely by the owner's permission, over it for the statutory period. Violet , 62 Mont. at 342, 205 P. at 223.

¶22 In 1895, the legislature passed § 2600, The Codes and Statutes of Montana (1895) which provided, "All highways, roads, streets, alleys, courts, places, and bridges, laid out or erected by the public, or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways."

¶23 In determining whether public use of Soup Creek Road for more than five years prior to July 1, 1895, established Soup Creek Road as a public highway pursuant to § 2600 we look to McCauley , where we addressed interpretation of § 2600. McCauley , ¶¶ 22-25. In McCauley , the lower court found Tucker Gulch Road to have been used as a travel way by the public for decades prior to the enactment of § 2600. McCauley , ¶ 25. In affirming the lower court's determination that Tucker Gulch Road was a highway pursuant to § 2600, we concluded the intention of § 2600 "was to declare those only to be public highways which had been established by the public authorities, or were recognized by them and used generally by the public, or which had become such by prescription or adverse use at the time the provision was enacted ." McCauley , ¶ 23 (emphasis added). Here, as in McCauley , Soup Creek Road existed, was continuously used, and had been depicted on various surveys between 1868 and 1894-far more than the five years required by the statute of limitations before 1895.

¶24 In this case, the District Court appropriately found as such. However, the District Court then erred by conflating establishment of a county road with establishment of a public highway. Although the court correctly found Soup Creek Road existed and was continuously used for more than five years prior to 1895, it erroneously concluded no public right-of-way exists because the commissioners had declined to grant the 1894 petition to make Soup Creek Road a county road, and had also declined to extend Soup Creek Road in 1907. Pursuant to § 2600, one of the methods for establishing a public highway was by public use of the road for the period required by statute-in this case five years prior to July 1, 1895. Section 2600, The Codes and Statutes of Montana (1895); Violet , 62 Mont. at 342, 205 P. at 223. This requirement was clearly met. Although the District Court found Soup Creek Road to be clearly defined and in use by the public for decades prior to 1895, it concluded that the weight of evidence showed that Soup Creek Road had been abandoned.

¶25 We agree that under the established facts, Soup Creek Road was established as a public highway prior to 1895. In light of the District Court's findings, however, we must further determine whether Soup Creek Road, a public highway, was ever abandoned. "Section 2601, The Codes and Statutes of Montana (1895), required: 'All public highways, once established, must continue to be public highways until abandoned by order of the Board of Commissioners of the county in which they are situated, or by operation of law, or judgment of a court of competent jurisdiction.' " McCauley , ¶ 28. In construing § 2601, this Court has concluded that no public highway established by public use prior to 1895 should be vacated except by the public authorities. McCauley , ¶ 29 ; Barnard Realty Co. v. Butte , 48 Mont. 102, 110, 136 P. 1064, 1067 (1913). As there is no court judgment abandoning Soup Creek Road in the record, and no argument for abandonment by operation of law, we address possible abandonment by public authorities:

One of the elements necessary to prove abandonment of public property by governmental entities is a showing of a clear intent to abandon. The conduct claimed to demonstrate this intent must be of character so decisive and conclusive as to indicate a clear intent to abandon. The conduct must be some affirmative official act, and not mere implication. Mere nonuse, even for extended periods of time, is generally insufficient, by itself, to indicate an intent to abandon.

McCauley , ¶ 30 (internal citations omitted). Further, the party claiming abandonment has the burden of proving that acts claimed to constitute abandonment demonstrate a decisive and conclusive intent to abandon the road. State v. Fisher , 2003 MT 207, ¶ 9, 317 Mont. 49, 75 P.3d 338 (finding no abandonment by government entity).

¶26 Section 2631 of The Codes and Statutes of Montana (1895) required the commissioners to maintain a road book for county roads and separately to "cause to be recorded as highways such roads as have become such by usage or abandonment to the public." While the commissioners did not designate Soup Creek Road a county road in 1895, thereby excluding it from the road book, they continued to "record it as a highway" elsewhere in county records.

¶27 Abandonment means a voluntary act involving a concurrence of act and intent. The act is the relinquishment of possession and the intent is a manifestation not to resume beneficial use of it. Neither of these elements alone is sufficient. Harland v. Anderson Ranch Co. , 2004 MT 132, ¶ 40, 321 Mont. 338, 92 P.3d 1160 (finding no abandonment by private party); Leisz v. Avista Corp. , 2010 MT 105, ¶ 8, 356 Mont. 259, 232 P.3d 419 (finding intent to abandon a road was not established where the road had been allowed to become overgrown and impassable so that a bulldozer would be required to reopen it, even though it was not in use and another access road had been created to replace the road at issue).

¶28 Skeltons concede a public highway cannot be abandoned through reverse adverse possession. They instead argue Soup Creek Road was abandoned when the county commissioners declined to make it a county road in 1895. Refusal to adopt a public highway as a county road does not equate to abandoning that public highway; in light of the other evidence, it establishes no more than an "implication" of abandonment. McCauley , ¶ 30. If Soup Creek Road had been abandoned by the 1895 declination by the commissioners, it made no sense for the commissioners to consider the petition in 1907 requesting the extension of Soup Creek Road as a county road or to continue to include it as a public highway in county records.

¶29 While Gibsons' predecessor-in-interest petitioned for that portion of Soup Creek Road extending into Gibsons' parcel to be abandoned in 1910, that petition did not request the portion of Soup Creek Road running through Lot 7 to be abandoned. No petition was ever filed to abandon any other part of Soup Creek Road, and the record is devoid of evidence any part of Soup Creek Road was officially abandoned other than that part traversing the Gibson parcel. Contrary to the District Court's finding that Soup Creek Road became a road to nowhere upon the abandonment of the portion crossing what is now Gibsons' parcel, it continued to be a road to Gibsons' parcel, available through use by the parties, their family and friends, and others.

¶30 If Soup Creek Road had been abandoned by the commissioners' 1895 decision not to make it a county road, then Gunn's 1910 request for abandonment of the road through his parcel was superfluous, as was the commissioners' grant of abandonment. It has long been the law in Montana that an "interpretation which gives effect is preferred to one which makes void," § 1-3-232, MCA, and the "law neither does nor requires idle acts." Section 1-3-223, MCA. Gunn's request for and the commissioners' grant of abandonment of that part of Soup Creek Road on his parcel in 1910 can only be "given effect" if the commissioners' 1895 decision not to make Soup Creek Road a county road did not abandon the road. Gunn's request and the commissioners' grant were not "idle acts" only if the 1895 declination did not abandon the road.

¶31 Continual use by the parties, their predecessors-in-interest, and the public also undermines Skeltons' argument for abandonment. These facts clearly indicate Soup Creek Road was abandoned on Gibsons' parcel only, and the remainder of Soup Creek Road, including the portion across Skeltons' parcel, has never been abandoned. Having come to this conclusion, we need not address the parties' easement arguments.

¶32 The District Court's finding that Soup Creek Road was not a "public road" because Meagher County rejected a petition to designate it a county road in 1895 and Lewis and Clark County declined to act on the 1907 petition to extend the road is clearly erroneous. Rejection of a petition to declare Soup Creek Road a county road is not the same as a formal act of abandoning a public highway and is insufficient to demonstrate a decisive and conclusive intent to abandon the road. As we set forth in McCauley , to abandon a public highway there must be a showing of a clear intent to abandon-"The conduct claimed to demonstrate this intent must be of character so decisive and conclusive as to indicate a clear intent to abandon. The conduct must be some affirmative official act, and not mere implication." McCauley , ¶ 30 (internal citation omitted). The language from McCauley which appeared to confuse the District Court-"Mere nonuse, even for extended periods of time, is generally insufficient, by itself, to indicate an intent to abandon"-indicates there may be times when an exception applies to the general rule that non-use is insufficient to abandon a public highway. The phrase, "is generally insufficient, by itself" as used in McCauley is inconsistent with the requirement enunciated therein that there must be some "affirmative official act of the Board ... indicating an intent to abandon the road." McCauley , ¶ 34. As such, we clarify our holding in McCauley . The requirement is clear, existing both in statute and the McCauley decision, that a public highway cannot be abandoned by anything short of an order by the commissioners, operation of law, or court order. Non-use is not sufficient to prove intent to abandon.

¶33 Abandonment of Soup Creek Road as a public highway required affirmative action by authorized government officials. McCauley , ¶ 30. Soup Creek Road was created prior to 1868 and, because it was in general use for more than five years prior to the passage of § 2600, The Codes and Statutes of Montana (1895), it became a public highway by operation of statute. The only portion of Soup Creek Road which was ever abandoned was that part passing through Gibsons' parcel. The remainder of Soup Creek Road, including the portion crossing Skeltons' Lot 7, continues to be a public highway.

CONCLUSION

¶34 Soup Creek Road has been a public highway since the mid-1800s and only that part which passes through Gibsons' parcel was abandoned.

¶35 Reversed and remanded for entry of judgment consistent with this Opinion.

We concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

LAURIE McKINNON, J.

DIRK M. SANDEFUR, J.

Justice Jim Rice, dissenting.

¶36 In my view, the evidence credited by the District Court satisfied the legal standards, under which this case was tried, for abandonment of Soup Creek Road by the County. The Court today alters these standards, and the precedent that applied them. Further, in reaching a determination to reverse, the Court credits different evidence than credited by the District Court.

¶37 In reaching its determination that Soup Creek Road had been abandoned, the District Court correctly noted the governing principles that abandonment is a concurrence of act and intent, and that the intent necessary to abandon public property by a government authority "must be of character so decisive and conclusive as to indicate a clear intent to abandon," as well as our oft-cited explanation of that standard, that "[m]ere nonuse, even for extended periods of time, is generally insufficient, by itself, to indicate an intent to abandon." McCauley , ¶ 30. The clear implication of this precedent is that there can be exceptional cases where the facts of nonuse are extreme enough to demonstrate the requisite intent to abandon a road. Otherwise, we would have instead held over the many years that mere nonuse is "never sufficient" to indicate an intent to abandon. But, we have not done so. By declaring otherwise today, the Court impliedly overturns years of precedent.

¶38 Here, setting aside the official actions of the County for the moment, the facts found by the District Court related to nonuse of the Soup Creek Road are extreme. In contrast to the Court's contrary finding on appeal that the Road was continually available to the public, Opinion, ¶ 29, the District Court found that the Road was washed out between 1964 and 1993 such that the Road was impassible to vehicles. It found the Road was reduced to nothing more than a "cow trail" accessible only by horse or on foot, and, further, was often locked off by a gate. Skeltons started making improvements to the road in 1993, and had to relocate the road in places. Even then, gates prevented access to the road with the permission of the Forest Service. In short, the District Court found there had been virtually no "public use" for decades. And, beyond mere nonuse, the District Court found the road had become unusable, and was in that condition for many years.

¶39 The Court correctly notes that abandonment has also required "some affirmative official act, and not mere implication," Opinion, ¶ 25 (citing McCauley , ¶ 30 ), and today makes that principle absolute. See Opinion, ¶ 32. However, official actions were taken here. Petitions to adopt the Road as a county road and extend it were officially rejected in 1895 and 1907 (Meagher and Lewis and Clark Counties). Then, in 1910, Gibsons' predecessors sought abandonment of the Road across their property, which the County approved, officially abandoning the portion of the road that provided the road's main purpose-public access to the water. Thus, the Road as it existed in 1910 dead-ended at the border of Gibsons' property, preventing access to and from Hauser Lake.

¶40 Now, Gibsons seek designation of the road leading to the border of their property as public, but no further, desiring the benefits but not the obligations of public access. Thus, designation of the Road as public will not fulfill the Road's original purpose of providing public access to and from Hauser Reservoir. In my view, the evidence credited by the District Court satisfied what might be called the exception to the general rule of nonuse being generally insufficient to constitute abandonment, because related official actions were taken, consistent with the long use and condition of the Road, including partial abandonment, all of which weighed against a declaration of the road as public

¶41 I do not believe the District Court was "confuse[d]," Opinion, ¶ 32, about the standards, but rather made findings from the evidence that satisfied the exception to the general rule. This was the law under which this case was tried, and as the Skeltons no doubt understood it. Today, the Court changes the rules, and rejects the evidence credited by the finder of fact.

¶42 I would affirm.

Justice Beth Baker joins in the dissenting Opinion of Justice Rice.

      At one point there was a U.S. Forest Service spur servicing Gibsons' parcel by a steep mountain pass. Gibsons' predecessor-in-interest died attempting to traverse this road, at which point the Forest Service closed it. Rosana Skelton noted this at trial and explained it was "a very dangerous route."

      Violet , 62 Mont. at 342, 205 P. at 223, states the statutory period changed in 1893 to 10 years, but we could not find a change in this statute of limitation in the 1893 codes and believe it was a scrivener's error that should read 1895. Ultimately, it is immaterial if the statute was for 5 or 10 years from 1893-1895 because the road had been in use for at least 25 years by 1893.

      Section 2601 is nearly identical to § 7-14-2615(1), MCA, the present abandonment statute.

      Other than the portion crossing the Gibson parcel in 1910.


source: Caselaw Access Project

author: Justice Beth Baker delivered the Opinion of the Court. Justice Laurie McKinnon, dissenting.

license: Public Domain

text:
    Charlene HUTZENBILER, Plaintiff and Appellant, v. RJC INVESTMENT, INC., Defendant and Appellee.
    DA 18-0421
    Supreme Court of Montana.
    Submitted on Briefs: February 6, 2019 Decided: April 9, 2019
    For Appellant: D. Michael Eakin, Eakin, Berry & Grygiel, PLLC, Billings, Montana
    For Appellee: Christopher T. Sweeney, Peter M. Damrow, Moulton Bellingham PC, Billings, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 Charlene Hutzenbiler appeals an order of the Thirteenth Judicial District Court, Yellowstone County, granting RJC Investment, Inc. ("RJC") summary judgment on Hutzenbiler's claim to an accounting and recovery of surplus proceeds on the resale of her mobile home after she returned it to RJC. We restate the dispositive issues as follows:

1. Did the Release between Hutzenbiler and RJC terminate application of the Uniform Commercial Code's requirement for an accounting and surplus after RJC sold the collateral?
2. Did the District Court err in determining that the Release constituted an acceptance of the collateral in full satisfaction of Hutzenbiler's secured obligation?
3. Is RJC entitled to summary judgment on other statutory or equitable grounds?

We reverse the District Court's summary judgment order and remand for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Hutzenbiler entered into an Installment Sale Contract and Security Agreement (the "Contract") with Cherry Creek Development, Inc. ("Cherry Creek") to purchase a mobile home in March 2010. The purchase price of the mobile home was $ 47,500. Cherry Creek retained a security interest in the mobile home to secure Hutzenbiler's payment obligations. Hutzenbiler paid $ 3,800 down and agreed to pay $ 483 per month for fifteen years to pay off the remaining $ 43,700 balance, with payments due on the 19th of each month. The Contract provided that a late fee would be charged for any payment that was five days past the due date. Cherry Creek assigned the Contract to its parent company, RJC.

¶3 Hutzenbiler acknowledges that she made some of her payments late but disputes that she "missed" payments or was in default. On December 10, 2015, Hutzenbiler vacated the mobile home and allowed RJC to take possession of it. Hutzenbiler signed a Full Release of Contract (the "Release"), under which she relinquished all rights to the mobile home. The Release reads in its entirety as follows:

I/We Charlene L. Hutzenbiler herby [sic] release all rights to the manufactured home located at 8 Lapin St. N, Billings, MT 59105 described by serial number HY12485 am [sic] releasing myself and removing my name off of the contract currently in place with RJC Investment, Inc. and Cherry Creek Development, Inc. I am fully aware that by signing this I am completely removing my rights to all aspects of the home and I will not be entitled to any rights of this home or refund of all money applied to the home including but not limited to the down payment, and all payments made on the home and the lot up to this day.

(Emphasis in original). The Release was executed by Hutzenbiler and by Roy Clause, as President of Cherry Creek and RJC. When the Release was executed, Hutzenbiler owed $ 34,499.01 under the Contract.

¶4 RJC resold the mobile home in February 2016, without notice to Hutzenbiler, for $ 45,500. Hutzenbiler's counsel requested an accounting of the sale from RJC, but RJC failed to provide one. RJC did not refund any surplus to Hutzenbiler and claims none was owed. Hutzenbiler sued RJC for failing to provide for an accounting of the results of the resale of the mobile home pursuant to § 30-9A-616(2)(a)(ii), MCA ; for failing to pay her the surplus proceeds of the mobile home's resale pursuant to § 30-9A-615(4)(a), MCA ; and alleging that the trial court should apply all her payments to the principal, providing for a larger surplus, because RJC failed to comply with the Retail Installment Sales Act (RISA), Title 31, chapter 1, part 2, MCA.

¶5 RJC moved for summary judgment, asserting that the Release terminated the underlying Contract and any further application of Uniform Commercial Code ("U.C.C.") Article 9. RJC argued that even if Article 9 still applied, the parties' execution of the Release constituted an acceptance of the mobile home in full satisfaction of Hutzenbiler's obligations. RJC argued in the alternative that, because RJC was unaware that Hutzenbiler remained a debtor, it could not remain liable under the U.C.C. RJC alternatively argued that Hutzenbiler was equitably estopped from pursuing her claims because she made false representations that she would not pursue her rights under the U.C.C. when she signed the Release.

¶6 The District Court granted RJC's motion for summary judgment, holding that Hutzenbiler did not state a claim upon which relief could be granted under any reading of Montana law. The court reasoned that "[t]his identical issue was previously heard ... in Kapor v. RJC Investment, Inc. ," Thirteenth Judicial District Cause No. DV 17-0311, and concurred with the district court's opinion and order in that case. The District Court did not address RJC's other alternative arguments.

STANDARD OF REVIEW

¶7 We review de novo a district court's grant or denial of summary judgment, applying the criteria of M. R. Civ. P. 56. Yorlum Props., Ltd. v. Lincoln County , 2013 MT 298, ¶ 12, 372 Mont. 159, 311 P.3d 748. Summary judgment "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). We view the evidence in the light most favorable to the party opposing summary judgment, and we draw reasonable inferences in favor of the party opposing summary judgment. Maier v. Wilson , 2017 MT 316, ¶ 15, 390 Mont. 43, 409 P.3d 878. Where the material facts are undisputed, we "identify the applicable law, apply it to the uncontroverted facts, and determine who prevails." Yorlum Props., Ltd. , ¶ 12. The determination whether a party is entitled to judgment on the facts is a conclusion of law, which we review for correctness. Yorlum Props., Ltd. , ¶ 12.

DISCUSSION

¶8 1. Did the Release between Hutzenbiler and RJC terminate application of the Uniform Commercial Code's requirement for an accounting and surplus after RJC sold the collateral?

¶9 The District Court held that Article 9 did not apply after the Release was executed because it severed all security interests created under the original contract. Because the U.C.C. no longer applied, the District Court determined that Hutzenbiler had no right to any surplus from the repossession sale. Hutzenbiler argues that Article 9 imposed duties on RJC that survive the discharge of the security interest, including the duty to account for the proceeds and expenses of the sale and the duty to pay her the alleged surplus. The parties disputed facts concerning Hutzenbiler's payments on the contract. Because it addressed the issues the parties presented and concluded that Article 9 no longer applied after the Release was executed, the District Court did not determine whether Hutzenbiler was in default or analyze her claims further.

¶10 Kapor involved similar facts and a virtually identical release to the one Hutzenbiler signed. In Kapor , the trial court granted RJC's motion for summary judgment after it determined that Article 9 no longer applied once Kapor executed the release, and even if Article 9 applied, the release constituted an acceptance of the collateral in full satisfaction of the secured obligation. We held, "Except as allowed under other U.C.C. provisions, [a party's] discharge or release [of obligations under a secured transaction for the sale of a mobile home] cannot [ ] waive or vary [the creditor's] duty to account for or [the debtor's] right to receive any surplus proceeds from the resale of the mobile home." Kapor , ¶ 13. Sections 30-9A-608(1)(d) and -615(4)(a), MCA, provide that a "secured party shall account to and pay a debtor for any surplus" from proceeds of the sale of collateral. Section 30-9A-602(5), MCA, expressly forbids a debtor from waiving protections the U.C.C. provides for payment of surplus proceeds of collateral.

¶11 Pursuant to § 30-9A-616(2), MCA, when the debtor is entitled to a surplus or a consumer is liable for a deficiency, a creditor must provide a debtor with an explanation of how the proceeds obtained from the sale of collateral were applied to the debtor's account. In every consumer-goods transaction, the debtor is entitled to know the amount of a surplus or deficiency and the basis upon which it was calculated. Section 60-9A-616, MCA, cmt. 2. Section 30-9A-210(2)(a), MCA, also provides that a secured party is required to provide an accounting explanation within 14 days of receipt of request. Section 30-9A-602(2) and -602(9), MCA, expressly forbid either party from waiving the protections the U.C.C. provides for the accounting explanation.

¶12 We held in Kapor that "[t]he Release did not, by its express terms, lift the parties' relationship from that of debtor and creditor under U.C.C. Article 9 or render obsolete the protections afforded a debtor under §§ 30-9A-608(1)(d) and -615(4)(a), MCA." Kapor , ¶ 14. "Article 9 may still require the creditor to account for a surplus realized from the collection of an account or from the disposition of the collateral." Kapor , ¶ 14 (internal citation and quotations omitted).

¶13 The Release that Hutzenbiler executed is substantively identical to the release that Kapor executed. The Release cannot waive or vary Hutzenbiler's right to an accounting or to receive surplus proceeds, if any, from resale of the mobile home. The Release also did not terminate the application of the U.C.C. altogether. The parties were free to discharge their obligations to one another, but that discharge could not waive the protections provided in the U.C.C. Kapor , ¶ 13. Kapor is controlling.

¶14 The statutory requirements are triggered when the debtor defaults. See § 30-9A-601, MCA (explaining that "this part" governs the secured party's rights after default). That question remains to be decided here. Despite the Dissent's invitation, we decline to conduct an independent review of the summary judgment record to decide sua sponte whether Hutzenbiler was in default. That issue was not litigated by the parties, developed in the record, decided by the District Court, or briefed on appeal. See Pilgeram v. GreenPoint Mortg. Funding, Inc. , 2013 MT 354, ¶¶ 20-21, 373 Mont. 1, 313 P.3d 839 (explaining that we do not consider new arguments for the first time on appeal because it would be fundamentally unfair to the parties).

¶15 The record indicates that the parties disputed whether Hutzenbiler had defaulted on her obligations, but neither party made an argument regarding the effect of any default or lack thereof. Clause stated in his affidavit that, "From 2013 through 2015 , Hutzenbiler repeatedly failed to meet her obligations under the Contract, and failed to make her monthly payments on numerous occasions."

(Emphasis added.) Hutzenbiler asserted in her summary judgment response that "[t]here are disputed facts concerning the Plaintiff's payments on the contract," and that she had not "missed" payments as averred by Clause but had made all of her payments within the "statutory" grace period. It seems odd, indeed, that Hutzenbiler would maintain she never defaulted when that well could defeat her U.C.C. arguments. Also odd, if in fact supported in the existing record, is that RJC has not argued Hutzenbiler's lack of default to refute her claims. We simply take the case in the procedural posture presented and will not speculate on the arguments, if any, the parties may have regarding Hutzenbiler's default or its effect on the statutory requirements. The District Court erred when it granted RJC summary judgment on the ground that the U.C.C. no longer applied after Hutzenbiler signed the Release.

¶16 2. Did the District Court err in determining that the Release constituted an acceptance of the collateral in full satisfaction of Hutzenbiler's secured obligation?

¶17 The District Court alternatively held that even if Article 9 does apply, the Release constituted full satisfaction of the parties' respective obligations under the contract in accordance with § 30-9A-620(1), MCA. Hutzenbiler argues that the Release did not satisfy the requirements of strict foreclosure because the Release did not contain any language releasing the claims of RJC. Hutzenbiler adds that the Release was signed before she was in default, and strict foreclosure therefore is not permitted. RJC responds that the undisputed facts establish strict foreclosure in compliance with the statute.

¶18 Addressing the same arguments on identical release language, we held in Kapor : "[T]here must be mutual agreement between the parties; the statute does not allow a creditor to obtain a debtor's relinquishment of rights without accepting the collateral in satisfaction of the debt and waiving its right to pursue a deficiency." Kapor , ¶ 24. "Although explicit language may not be required, the document must indicate at least that [the creditor] was giving up its right to seek a deficiency from [the debtor] or was accepting the collateral in full satisfaction of the obligation." Kapor , ¶ 27.

¶19 Kapor requires a like conclusion in this case. Whether Hutzenbiler was or was not in default, the plain language of the Release is insufficient for strict foreclosure. As in Kapor , RJC did not include any language in the Release that it accepted the collateral in satisfaction of the obligation, that it released Hutzenbiler from all her obligations, or that it relinquished its right to pursue a deficiency judgment against her if the mobile home sold for less than the owed principal. The District Court erred in granting RJC summary judgment on the ground that RJC satisfied the elements of the acceptance of collateral in full satisfaction pursuant to § 30-9A-620, MCA.

¶20 3. Is RJC entitled to summary judgment on other statutory or equitable grounds?

¶21 RJC argues that the District Court could have granted summary judgment on the alternative ground that the exculpatory provision of the U.C.C. absolved RJC of any liability because RJC had no reason to believe Hutzenbiler remained a debtor after signing the Release. Section 30-9A-628(2), MCA, provides that a secured party is not liable because of its status as a secured party unless the secured party knows that the person is a debtor. See also § 30-9A-605(1), MCA. The Official Comments explain that without this provision "a secured party could incur liability to unknown persons and unknown circumstances that would not allow the secured party to protect itself." Section 30-9A-628, MCA, cmt. 2. An example of an unknown debtor is when "a secured party may be unaware that the original debtor has sold the collateral subject to the security interest and that the new owner has become the debtor." Section 30-9A-605, MCA, cmt. 2. Hutzenbiler was not an "unknown" debtor. Cherry Creek assigned RJC the Contract that Cherry Creek and Hutzenbiler entered to create the debtor/creditor relationship, and RJC collected payments from Hutzenbiler under that Contract. RJC is not entitled to summary judgment under §§ 30-9A-605(1) or -628(2), MCA.

¶22 Finally, RJC argues that the District Court also could have granted RJC summary judgment on the ground that Hutzenbiler was equitably estopped from asserting her claims because of her alleged false representations through the Release that she would not seek remedies under the U.C.C. We resolved this issue in Kapor , ¶¶ 31-37. The same holding applies. RJC is not entitled to summary judgment on other statutory or equitable grounds.

CONCLUSION

¶23 The District Court erred in granting RJC summary judgment on the grounds that Article 9 no longer applied after the Release was signed and that the Release satisfied the elements of strict foreclosure. Because the District Court held the U.C.C. inapplicable, it did not reach the merits of Hutzenbiler's claims; nor do we. The case is remanded to the District Court for further proceedings consistent with this Opinion.

We Concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

Justice Laurie McKinnon, dissenting.

¶24 I agree with the Court that the District Court erred when it failed to first determine whether Hutzenbiler was in default before holding Title 30, MCA, did not apply to Hutzenbiler and RJC's relationship after they signed the Full Release of Contract ("2015 Agreement"). Notwithstanding, based on the existing record, I would hold Hutzenbiler was not in default when she signed the 2015 Agreement. Therefore, she is not entitled to any surplus from the mobile home's sale provided for under Title 30, chapter 9A, part 6, MCA ("Part 6"), which governs default in secured transactions. Furthermore, even if Hutzenbiler was in default, then the District Court's alternative conclusion-that Hutzenbiler and RJC executed a strict foreclosure-was correct. Accordingly, I would affirm the District Court's order granting summary judgment in favor of RJC.

¶25 The Court states that the District Court must decide the question of default on remand, but it provides no guidance to the District Court for how to evaluate whether Hutzenbiler was in default, and it fails to paint a clear picture of why the issue of default is so important to begin with. Thus, I will explain its importance here: if Hutzenbiler was not in default when she executed the 2015 Agreement, she is not entitled to any surplus from the mobile home's sale. Further, the parties do not dispute any material facts, and Hutzenbiler's payment record and security agreement are part of the record on appeal. The record establishes that Hutzenbiler was not in default when she executed the 2015 Agreement. Where the material facts are undisputed, we "identify the applicable law, apply it to the uncontroverted facts, and determine who prevails." Yorlum Props., Ltd. , ¶ 12.

¶26 Part 6 governs default in secured transactions. Default triggers certain rights provided under Part 6 for both secured parties and debtors, but those rights do not exist before default. Section 30-9A-601(4), MCA ("Except as otherwise provided ... after default , a debtor and an obligor have the rights provided in this part and by agreement of the parties." (emphasis added)); § 30-9A-601(1), MCA ("After default , a secured party has the rights provided in this part and, except as otherwise provided in [§] 30-9A-602, [MCA,] those provided by agreement of the parties." (emphasis added)). For example, a secured party may take possession of collateral after default, but it may not do so before. Section 30-9A-609(1)(a), MCA ; see Padin v. Oyster Point Dodge , 397 F.Supp.2d 712, 725 (E.D. Va. 2005) (interpreting Virginia's version of § 30-9A-609, MCA : "A secured party may take possession of the collateral, but only after default." (emphasis in original)). Similarly, a debtor is only entitled to a surplus under §§ 30-9A-615 and -616, MCA, after default, because the statutory mechanisms that lead to a surplus-for example, the secured party's possession and disposition of the collateral under §§ 30-9A-609 and -610, MCA -can only occur after the debtor defaults.

¶27 Part 6 provides fundamental protections for debtors and specific statutory procedures that secured parties must follow to possess and dispose of collateral after a debtor is in default. These protections are especially important because a debtor in default is in a substantially inferior bargaining position. See Walker v. Grant Cty. Sav. & Loan Ass'n, 304 Ark. 571, 803 S.W.2d 913, 916 (1991) ("One clear policy reason underlying Article 9 default provisions is the protection of post default debtors from the potential of overbearing tactics and intimidation by secured parties. After default the secured party is unquestionably in a position of control and even dominance."). However, when the debtor is not in default, the debtor and creditor can mutually agree to exchange the collateral and terminate their security agreement without triggering Part 6. And this makes sense: when the debtor is not in default-when the parties hold more balanced positions of bargaining power-the parties must be able to exchange the collateral, terminate their security agreement, and go their separate ways without concern that the default procedures of Part 6 will impede their ability to do so. Debtors have a significant interest in avoiding the negative consequences of a default proceeding.

¶28 How courts should define default varies from case to case. Neither Title 30, MCA, nor the UCC define the term "default." Black's Law Dictionary defines "default" as "[t]he omission or failure to perform a legal or contractual duty; esp., the failure to pay a debt when due." Default , Black's Law Dictionary (10th ed. 2014). In most cases, however, default is simply "whatever the security agreement says it is." 4 James J. White, Robert S. Summers, & Robert A. Hillman, Uniform Commercial Code: Practitioner Treatise Series § 34:5, at 530 (6th ed. 2015) (internal quotations and footnotes omitted). Thus, in order to determine whether a party is in default, courts should look first to the security agreement itself. Here, the parties' original security agreement ("2010 Security Agreement") states what the parties agreed would constitute a default: "Default. If [Hutzenbiler] fails to perform any of the covenants or promises called for hereunder, such failure shall, at the election of [RJC], constitute a default in performance of this agreement."

¶29 Notwithstanding, a security agreement may provide debtors with an opportunity to cure a default, acting to reverse the events that led to it. When a debtor cures a default, the debtor returns both parties to their pre-default positions. See In re Taddeo , 685 F.2d 24, 26-27 (2d Cir. 1982) ("Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified."). Accordingly, an effective cure eliminates a default and its attendant consequences. After a debtor cures, the debtor is simply no longer in default. In re Entz-White Lumber & Supply, Inc. , 850 F.2d 1338, 1342 (9th Cir. 1988) (holding that after a debtor cures the default, the debtor "is entitled to avoid all consequences of the default ...."). Courts sometimes refer to the period of time the security agreement allows the debtor to cure a default as a "cure period." See Rathblott v. PeopleStrategy, Inc., 2016 WL 861348, *3, 2016 U.S. Dist. LEXIS 28864, *8-9 (E.D. Pa. 2016).

¶30 The 2010 Security Agreement provides the following cure period: "If [Hutzenbiler] fails to cure any such default within THIRTY(30) days after written notice thereof to [Hutzenbiler], [RJC] may, without further notice or period of grace, declare the entire unpaid balance of the purchase price, principal and accrued interest, immediately due and payable." In other words, if Hutzenbiler defaulted-for example, by failing to make a payment-the 2010 Security Agreement gave Hutzenbiler thirty days to cure the default before RJC could accelerate her outstanding debt. And once Hutzenbiler cured it, she was no longer in default.

¶31 In the District Court, while the parties disputed whether Hutzenbiler was in default when she signed the 2015 Agreement-a legal conclusion-they did not dispute any material facts. Specifically, they did not dispute Hutzenbiler's payment history. Hutzenbiler failed to make timely payments several times over the course of her relationship with RJC.

She ultimately made every payment within 30 days of the due date, though, curing each default. She wrote a check for what would become her final payment to RJC on November 23, 2015. After RJC deposited Hutzenbiler's check, Hutzenbiler's account was current, and the next payment was not due under the terms of the 2010 Security Agreement until December 19, 2015. That fact is crucial-because Hutzenbiler's account was current, she was not in default when she executed the 2015 Agreement. Through the 2015 Agreement, Hutzenbiler agreed to transfer ownership of the mobile home to RJC in exchange for terminating the 2010 Security Agreement and forgiving the remaining balance Hutzenbiler owed RJC. And Hutzenbiler executed the 2015 Agreement when she was not in default-when she and RJC shared more balanced positions of bargaining power. Accordingly, I would hold Hutzenbiler is not entitled to whatever surplus RJC derived from the mobile home's sale.

¶32 Finally, even if Hutzenbiler was in default, I would hold Hutzenbiler and RJC executed a strict foreclosure under § 30-9A-620, MCA, following similar reasoning from my dissent in Kapor . See Kapor , ¶¶ 46-61 (McKinnon, J., dissenting). In the 2015 Agreement, the phrase "releasing myself and removing my name off the contract currently in place with RJC" is clear and unambiguous language indicating the parties were agreeing to release Hutzenbiler from her obligations and terminate their contract. By holding that RJC did not consent to accepting the mobile home in satisfaction of Hutzenbiler's obligation, the Court once again elevates form over substance, as it did in Kapor . See Kapor , ¶¶ 49, 54, 61 (McKinnon, J., dissenting). Even if the 2015 Agreement's language is ambiguous, the surrounding circumstances-just like the circumstances in Kapor -indicate Hutzenbiler was attempting to give up any rights she had in the mobile home, transfer her rights to RJC, and terminate the security agreement with RJC, just like a debtor would in strict foreclosure. The 2015 Agreement could have no other purpose but to relieve the parties from the terms of the security agreement. Like Kapor , this case simply involves a debtor and a creditor, through a signed agreement, attempting to consent to a transfer of collateral to the creditor in full satisfaction of the debtor's obligation. See § 30-9A-620, MCA. The Court, however, renders the 2015 Agreement meaningless.

¶33 From the record before the Court, including the 2010 Security Agreement and Hutzenbiler's payment history, Hutzenbiler was not in default when she executed the 2015 Agreement. I disagree with the Court that remand is necessary to resolve the issue. Hutzenbiler is not entitled to any surplus RJC derived from the mobile home's sale under Part 6, and specifically §§ 30-9A-615 and -616, MCA. Furthermore, even if Part 6 applies, Hutzenbiler and RJC executed a strict foreclosure. I would affirm the District Court's conclusion that Hutzenbiler was not entitled to a surplus. I dissent.

Justice Jim Rice and Justice Dirk Sandefur join in the dissenting Opinion of Justice McKinnon.

      U.C.C. Article 9 is codified in Title 30, chapter 9A, MCA.

      This Court reversed that district court order in Kapor v. RJC Investment, Inc. , 2019 MT 41, 394 Mont. 311, 434 P.3d 869.


text:
    In the MATTER OF: A.B., A Youth in Need of Care.
    DA 18-0300
    Supreme Court of Montana.
    Submitted on Briefs: March 13, 2019 Decided: April 16, 2019
    Affirmed.


text:
    STATE of Montana, Plaintiff and Appellee, v. Justin Eugene HETRICK, Defendant and Appellant.
    DA 17-0154
    Supreme Court of Montana.
    Submitted on Briefs: March 6, 2019 Decided: April 16, 2019
    Affirmed.


text:
    Janice GRIFFIN, M.D., Plaintiff and Appellant, v. Richard LEWIS, D.O. and Mark Nichols, M.D., Defendants and Appellees.
    DA 18-0567
    Supreme Court of Montana.
    Submitted on Briefs: February 27, 2019 Decided: April 16, 2019
    Affirmed.


text:
    Tony EVERETT, Plaintiff and Appellee, v. Kimberley D. HARBERT, Defendant and Appellant.
    DA 18-0488
    Supreme Court of Montana.
    Submitted on Briefs: January 16, 2019 Decided: April 16, 2019
    Affirmed.


text:
    Heather ROOS, Plaintiff and Appellant, v. The CITY OF MILES CITY, Mayor Butch Grenz, and Police Chief Doug Colombik, Defendants and Appellees.
    DA 18-0459
    Supreme Court of Montana.
    Submitted on Briefs: February 27, 2019 Decided: April 30, 2019
    Affirmed.


text:
    STATE of Montana, Plaintiff and Appellee, v. Raymond Arlen HOLMES, Defendant and Appellant.
    DA 18-0548
    Supreme Court of Montana.
    Submitted on Briefs: March 13, 2019 Decided: April 23, 2019
    Affirmed.


text:
    JAY COCHRAN FBFS, INC., a Montana corporation, Plaintiff and Appellee, v. Kurt James FAUTH and SY Sales, LLC, a Montana limited liability company d/b/a Fauth Agency, Defendants and Appellants.
    DA 18-0447
    Supreme Court of Montana.
    Submitted on Briefs: February 20, 2019 Decided: April 23, 2019
    Affirmed in part. Reversed and remanded in part.


text:
    Patrick HACKLEY, Plaintiff and Appellant, v. William HACKLEY, Defendant and Appellee.
    Supreme Court of Montana.
    Submitted on Briefs: March 13, 2019 Decided: April 23, 2019
    Affirmed.


text:
    Jesse W. ANDERSON, Appellant, v. State of Nevada DEPARTMENT OF EMPLOYMENT, TRAINING & REHABILITATION, EMPLOYMENT SECURITY DIVISION, Respondent.
    No. 78242
    Supreme Court of Nevada.
    FILED APRIL 17, 2019
    Dismissed.


text:
    Lawrence George WORTHEN, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent, and The Honorable Mathew Harter, District Judge, Real Party in Interest.
    No. 78361
    Supreme Court of Nevada.
    FILED APRIL 17, 2019
    Dismissed.


text:
    Peter MURPHY, Jr., Appellant, v. Alicia MOORE, Respondent.
    No. 78300
    Supreme Court of Nevada.
    FILED APRIL 17, 2019
    Dismissed.


text:
    Thomas ROBERTS, Petitioner, v. William A. GITTERE, Warden, Ely State Prison, Respondent.
    No. 78223
    Supreme Court of Nevada.
    FILED APRIL 17, 2019
    Dismissed.


text:
    William K. ERRICO, an Individual; and William Errico & Associates, P.C., a Nevada Professional Corporation, Appellants, v. Sandra STAHL, as Successor Guardian of the Estate of Wilfred Richard-James Bosserman, an Incapacitated Adult Individual, Respondent.
    No. 74663
    Supreme Court of Nevada.
    FILED APRIL 19, 2019
    AFFIRMED.


text:
    In the MATTER OF DISCIPLINE OF Grant R. ROSTAD, Bar No. 5473.
    No. 77463
    Supreme Court of Nevada.
    FILED APRIL 19, 2019
    Recall. Grant. Dismiss.


text:
    BROADACRES OPEN AIR MARKETPLACE, LLC, a Nevada Domestic Company, a Business Licensed to do Business in North Las Vegas, NV, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Kerry Louise Earley, District Judge, Respondents, and Hilda Perez-Camacho, Individually, Real Party in Interest.
    No. 78477
    Supreme Court of Nevada.
    FILED APRIL 18, 2019
    DENIED.


text:
    Lawrence George WORTHEN, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent, and The Honorable Mathew Harter, District Judge, Real Party in Interest.
    No. 78360
    Supreme Court of Nevada.
    FILED APRIL 17, 2019
    Dismissed.


text:
    Robert J. TAIT, M.D., an Individual, Appellant, v. James J. WHITTACRE, an Individual, Respondent.
    Robert J. Tait, M.D., Petitioner, v. The Eighth Judicial District Court of the State of Nevada, in and for the County of Clark; and the Honorable Richard Scotti, District Judge, Respondents, and James J. Whittacre, Real Party in Interest.
    No. 74911 No. 74960
    Supreme Court of Nevada.
    FILED APRIL 19, 2019
    AFFIRMED. DENIED.


text:
    John Lawrence MEIRING, Petitioner, v. The FIRST JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CARSON CITY; and the Honorable James E. Wilson, District Judge, Respondents.
    No. 78524
    Supreme Court of Nevada.
    FILED APRIL 18, 2019
    DENIED.


text:
    Kenneth Paul CHOI, an Individual; Nellis Cab LLC Operations Series, d/b/a Nellis Cab Company ; and Nellis Cab LLC Vehicle Series 114, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable J. Charles Thompson, Respondents, and Julio Robaina-Moralez, an Individual, Real Party in Interest.
    No. 78485
    Supreme Court of Nevada.
    FILED APRIL 18, 2019
    Denying.


text:
    James Eugene HERMANSON, Petitioner, v. The THIRD JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF LYON, Respondent, and The State of Nevada, Real Party in Interest.
    No. 78500
    Supreme Court of Nevada.
    FILED APRIL 18, 2019
    DENIED.


text:
    Stephen SILBERKRAUS; Chelyn Sawyer; David Satory; Claire Roth; Neil Roth ; and Kathryn McKenzie, Signatories of the Notice of Intent to Recall, Appellants, v. Joyce WOODHOUSE, in Her Capacity as Nevada State Senator for Senate District 5; Nicole J. Cannizzaro, in Her Capacity as Nevada State Senator for Senate District 6; Barbara Cegavske, in Her Official Capacity as Nevada Secretary of State; and Joseph P. Gloria, in His Official Capacity as Registrar of Voters for Clark County, Nevada, Respondents.
    No. 76040
    Supreme Court of Nevada.
    FILED APRIL 19, 2019
    AFFIRMED.


text:
    Javier RIGHETTI, Appellant, v. The STATE of Nevada, Respondent.
    No. 73015
    Supreme Court of Nevada.
    FILED APRIL 19, 2019
    AFFIRMED.


text:
    Frederick H. SHULL, Jr., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable William D. Kephart, District Judge, Respondents, and The Roseman Contract, via Roseman University, Real Party in Interest.
    No. 78432
    Supreme Court of Nevada.
    FILED APRIL 18, 2019
    DENIED.


text:
    Jason GUNN, Appellant, v. Lorise DAVID, Respondent.
    No. 77155
    Supreme Court of Nevada.
    FILED APRIL 18, 2019
    Dismissed.


text:
    Versell COLEMAN, Appellant, v. The STATE of Nevada, Respondent.
    No. 77216
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    In the MATTER OF DISCIPLINE OF Stephen M. CARUSO, Bar No. 6588.
    No. 77838
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    Reject.


text:
    Lucas Hunter SCHOPPER, Appellant, v. The STATE of Nevada, Respondent.
    No. 78148
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    John Evol FORNEY, Appellant, v. The STATE of Nevada, Respondent.
    No. 78350
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Will Onie SITTON, Appellant, v. The STATE of Nevada, Respondent.
    No. 73014
    Supreme Court of Nevada.
    FILED APRIL 19, 2019
    REVERSED. REMAND.


text:
    In the MATTER OF DISCIPLINE OF Kevin R. HANSEN, Bar No. 6336.
    No. 77954
    Supreme Court of Nevada.
    FILED APRIL 19, 2019
    DISMISSED.


text:
    Anthony R. SALAZAR, Appellant, v. The STATE of Nevada; the State of Nevada Department of Corrections; James Dzurenda, Director; Brian Williams, Warden; Case Worker Baker; and Deputy Director Triston, Respondents.
    No. 78309
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Weslie Hosea MARTIN, Appellant, v. The STATE of Nevada, Respondent.
    No. 77017
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Lucas Hunter SCHOPPER, Appellant, v. The STATE of Nevada, Respondent.
    No. 78149
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Percy Lavae BACON, Appellant, v. The STATE of Nevada, Respondent.
    No. 78120
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Salvador LARA, Appellant, v. The STATE of Nevada, Respondent.
    No. 78471
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Mark Thomas GEORGANTAS, a/k/a Mark Georgantis, Appellant, v. The STATE of Nevada, Respondent.
    No. 78504
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Wilbert Roy HOLMES, Appellant, v. The STATE of Nevada, Respondent.
    No. 78494
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Frank J. MATYLINSKY, Jr., Appellant, v. The STATE of Nevada, Respondent.
    No. 78330
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Jeffrey K. BROWN, Appellant, v. Farha BROWN, Respondent.
    No. 78554
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    Sergio Sotomayor AMONES, Appellant, v. The STATE of Nevada, Respondent.
    No. 77978
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    John Elvin TURNER, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent.
    No. 78525
    Supreme Court of Nevada.
    FILED APRIL 23, 2019
    DENIED.


text:
    Robert Anthony TOTMAN, Appellant, v. The STATE of Nevada, Respondent.
    No. 78503
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    180 LAND CO LLC, a Nevada Limited-Liability Company, Appellant, v. CITY OF LAS VEGAS, a Political Subdivision of the State of Nevada, Respondent.
    No. 77771
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    DISMISSED.


text:
    James Michael BIELA, Appellant, v. The STATE of Nevada, Respondent.
    No. 71427
    Supreme Court of Nevada.
    FILED APRIL 22, 2019
    AFFIRMED.