source: Caselaw Access Project

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text:
    LETICA LAND COMPANY, LLC, a Michigan Limited Liability Company, and Don McGee, an Individual, Plaintiffs and Appellants, v. ANACONDA-DEER LODGE COUNTY, a Political Subdivision of the State of Montana, Defendant and Appellee.
    DA 18-0249
    Supreme Court of Montana.
    Submitted on Briefs: December 5, 2018 Decided: February 5, 2019 Rehearing Denied March 12, 2019
    For Appellant Letica Land Company, LLC: Martin S. King ; Jesse C. Kodadek, Worden Thane, P.C., Missoula, Montana
    For Appellee: Cynthia L. Walker ; Mark A. Thieszen, Poore, Roth & Robinson, P.C., Butte, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Letica Land Company, LLC, (Letica) appeals the judgment of the Third Judicial District Court granting Anaconda-Deer Lodge County's motion for summary judgment. We affirm in part and reverse in part.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court erred in concluding that Anaconda-Deer Lodge County's use of the upper branch of Modesty Creek Road did not amount to a taking under the United States and Montana Constitutions.
2. Whether Letica is constitutionally entitled to litigation expenses under Article II, Section 29 of the Montana Constitution.
3. Whether the District Court correctly ordered Letica to pay the costs previously awarded to Anaconda-Deer Lodge County as the prevailing party at trial.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 This case arises from a dispute over the status of Modesty Creek Road, located near the boundary between Anaconda-Deer Lodge County (County) and Powell County in the Flint Creek Range foothills approximately ten miles north of Anaconda, Montana. Modesty Creek Road consists of two sections, an upper branch and a lower branch, both of which are located on Letica's property.

¶4 In 2012, the Anaconda-Deer Lodge County Commissioners voted to reaffirm Modesty Creek Road as a county road. Immediately after reaffirming the road, the County cut locks on the two gates blocking the lower branch and removed a dirt berm from the upper branch.

¶5 Shortly thereafter, Letica filed a complaint and sought a preliminary injunction barring public use until a judgment established the existence of a public right-of-way over either or both branches. The District Court denied Letica's request for a preliminary injunction, concluding that both branches were likely statutorily created county roads established by petition. The District Court also sua sponte bifurcated Letica's Takings Clause claims from the public right-of-way claims. In 2014, following a five-day bench trial, the District Court held that a county petition established the lower branch of Modesty Creek Road, a public prescriptive easement established the upper branch as a public road, and the prescriptive easement had not been extinguished by reverse adverse possession. Letica and McGee appealed. This Court affirmed the District Court's conclusion that the lower branch of Modesty Creek Road is a validly existing petitioned county road and confirmed the District Court's determination of the location of the lower road's terminus. However, this Court found that the public's prescriptive easement on the upper branch was extinguished by reverse adverse possession. The case was remanded for further consideration of Letica's outstanding takings claims.

¶6 On remand, the District Court issued an order granting summary judgment in favor of the County and dismissing Letica's takings claims. Letica appeals.

STANDARD OF REVIEW

¶7 We review de novo a district court's decision on a motion for summary judgment, using the same criteria applied by the district court under M. R. Civ. P. 56. Malpeli v. State , 2012 MT 181, ¶ 11, 366 Mont. 69, 285 P.3d 509. Rule 56(c)(3) provides: "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." A material fact is one involving the elements of the cause of action or defense at issue to such an extent that it requires resolution of the issue by a trier of fact. Malpeli , ¶ 11.

¶8 To overcome a motion for summary judgment, the opposing party must set out specific facts showing a genuine issue for trial. Malpeli , ¶ 12. In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the party opposing summary judgment. Malpeli , ¶ 12.

DISCUSSION

¶9 1. Whether the District Court erred in concluding that Anaconda-Deer Lodge County's use of the upper branch of Modesty Creek Road did not amount to a taking under the United States and Montana Constitutions.

¶10 Letica argues that its fundamental rights under the Montana and United States Constitutions were violated when the County removed the dirt berm from the upper branch and encouraged public use of Letica's property. According to Letica, the County's actions amounted to an unconstitutional taking of property that necessitates compensation. The County contends that the temporary physical invasion was done under a claim of right and therefore did not amount to a taking of Letica's private property.

¶11 The Takings Clause of the United States Constitution provides that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V. Article II, Section 29 of the Montana Constitution similarly provides, "Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into the court for the owner." Despite the facial disparities found in the separate clauses, "[W]e have generally looked to federal case law for guidance when considering a takings claim brought under Article II, Section 29." Kafka v. Mont. Dep't of Fish, Wildlife & Parks , 2008 MT 460, ¶ 30, 348 Mont. 80, 201 P.3d 8.

¶12 Significantly, the United States Supreme Court has held that if the government mistakenly asserts the right to use its own property, and the property in fact belongs to another, the true property owner's remedy is in tort and the mistake does not amount to a constitutional taking. Langford v. United States , 101 U.S. 341, 25 L.Ed. 1010 (1880). In Langford , the Court considered whether government occupation of private property under a mistaken claim of right constitutes a taking. The Court noted that if the government takes private property for public use and asserts no claim of title, the use may amount to a taking. Langford , 101 U.S. at 343. However, the Court also explained:

It is a very different matter where the government claims that it is dealing with its own, and recognizes no title superior to its own. In such case the government, or the officers who seize such property, are guilty of a tort, if it be in fact private property.

Langford , 101 U.S. at 344. This holding was relied upon in In the Matter of Chicago, Milwaukee, St. Paul and Pacific R. Co ., 799 F.2d 317 (7th Cir. 1986) : "[W]hen agents of the United States wrongly believe that the government owns some land, and occupy it under a claim of right, the occupation is a noncompensable tort rather than a taking." Matter of Chicago , 799 F.2d at 326. The court further noted, "Mistaken applications of the law are inevitable, but no principle of constitutional law requires compensation for every mistake." Matter of Chicago , 799 F.2d at 327.

¶13 Here, the County acted under a claim of right when it removed the dirt berm. Specifically, the County relied on county records, maps, surveys, and other evidence related to historical use of the road before reaffirming the upper branch. Although the County erroneously relied on the initial petition and this Court subsequently concluded that the public prescriptive easement was extinguished by reverse adverse possession, the County's actions were reasonable. The County's conduct was reinforced by the District Court order denying Letica's request for a preliminary injunction, in which the District Court concluded that the County was likely to succeed on the petition regarding the upper branch.

¶14 Pursuant to Langford , the County's good faith reliance on the petition, and other evidence supporting its petition, preclude Letica's claim that a taking occurred.

¶15 Letica further argues that it is entitled to compensation pursuant to Article II, Section 29 of the Montana Constitution because the County damaged Letica's property. Letica contends that the County physically damaged the property by sending heavy machinery to remove the berm, and by "allowing, causing, and encouraging an unknown number of people to drive over primitive roads, which caused erosion, loss of established plant life, and the substantial spread of noxious weeds." We agree with the District Court that "the record is devoid of any evidence that the temporary invasion of the upper branch resulted in any significant burden or substantially interfered with Letica's use of the property despite Letica's conclusory claims to the contrary." The County introduced evidence establishing that public use of the road was minimal considering the location and character of the road. Letica failed to present evidence contradicting the County's evidence that the effect on the land was insignificant.

¶16 When viewed in a light most favorable to Letica, the evidence presented establishes no genuine issue of material fact. The District Court did not err when it granted summary judgment in the County's favor. Because a taking did not occur, and the upper branch was not damaged, Letica is not entitled to compensation per the United States or Montana Constitutions.

¶17 2. Whether Letica is constitutionally entitled to litigation expenses under Article II, Section 29 of the Montana Constitution.

¶18 Article II, Section 29 of the Montana Constitution provides, "In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails." Mont. Const. art. II, § 29. Here, Letica asserts that it is constitutionally entitled to its necessary expenses of litigation-including attorney's fees-because it prevailed when this Court found the public prescriptive easement on the upper branch was extinguished by reverse adverse possession.

¶19 The question of whether Letica prevailed was litigated before the District Court. In its order on cross motions for award of costs, the District Court held that neither Letica nor the County were prevailing parties under M. R. App. P. 19(3)(a), or § 25-1-711(1), MCA. Consequently, the Court determined that neither party was entitled to their costs on appeal. The District Court's decision rested on this Court's holding that "there is no prevailing party where both parties gain a victory but also suffer a loss." Parcel v. Myers, 214 Mont. 220, 224, 697 P.2d 89, 91 (1984). The District Court found neither party prevailed because even though this Court reversed the trial court's conclusion that the public prescriptive easement was not extinguished by reverse adverse possession, the remaining issues were decided in favor of the County.

¶20 Perhaps more significantly, our holding that the County's conduct did not amount to a taking precludes the finding that Letica is a prevailing party pursuant to Article II, Section 29 of the Montana Constitution. Letica is not entitled to necessary litigation costs.

¶21 3. Whether the District Court correctly ordered Letica to pay the costs previously awarded to Anaconda-Deer Lodge County as the prevailing party at trial.

¶22 Following the first trial, the District Court ordered Letica and McGee to pay the County's costs, in the amount of $5,048.29. Letica asserts the District Court erred in failing to reconsider the award of costs after the District Court's decision was reversed and remanded. The County challenged Letica's request for reconsideration on the basis that Letica failed to appeal the District Court's November 2014 order on costs. The District Court agreed with the County and held Letica and McGee jointly and severally responsible for the County's costs, as initially calculated. This Court reviews a district court's award of costs to determine whether the district court abused its discretion. Mularoni v. Bing, 2001 MT 215, ¶ 22, 306 Mont. 405, 34 P.3d 497.

¶23 Section 25-10-102, MCA, provides that defendants are entitled to costs, as a matter of course, upon a judgment in the defendant's favor. There is no authority which requires an appellant, when challenging on appeal the merits of a trial court's decision, to separately challenge the imposition of trial costs in favor of the prevailing party. Rather, a challenge to trial costs is implicitly tied to a challenge on the merits. Thus, a party does not waive their right to challenge an order on costs by failure to appeal if the costs were awarded per § 25-10-102, MCA. However, § 25-10-103, MCA, allows for costs in the district court's discretion. In that case, a party should appeal the district court's award to avoid waiver.

¶24 Here, neither Letica nor the County prevailed for the purpose of entitlement to costs. Although Letica prevailed on the status of the upper branch, the County succeeded on the remaining claims. Letica , ¶ 50. Accordingly, because "Letica and [the County] have both gained a victory and suffered a defeat" neither can be considered the prevailing party pursuant to M. R. App. P. 19(3)(a), §§ 25-10-101, -102, and -711(1)(a), MCA, or M. R. Civ. P. 54(d)(1). H-D Irrigating, Inc. v. Kimble Props., Inc ., 2000 MT 212, ¶ 60, 301 Mont. 34, 8 P.3d 95 (holding there is no prevailing party where both parties gain a victory but also suffer a loss). As here, when there is no prevailing party, each party shall remain responsible for their own costs. The District Court's order holding Letica accountable for the County's trial costs is reversed.

CONCLUSION

¶25 For the aforementioned reasons, Letica is not entitled to compensation under the Montana or United States Constitutions, nor attorney's fees pursuant to Article II, Section 29 of the Montana Constitution. Both Letica and the County are responsible for their individual trial costs.

¶26 Reversed in part and affirmed in part.

We Concur:

LAURIE McKINNON, J.

DIRK M. SANDEFUR, J.

INGRID GUSTAFSON, J.

JIM RICE, J.

      McGee is not a party to this appeal.

      Letica Land Co., LLC v. Anaconda-Deer Lodge Cnty ., 2015 MT 323, 381 Mont. 389, 362 P.3d 614.

      The District Court also dismissed Letica's other claims including substantive due process, violation of civil rights, and spoliation of evidence. Letica only appeals dismissal of the takings claims.

      Because McGee is not a party to this appeal, this Opinion does not address his obligations involving the County's trial costs.


text:
    In the MATTER OF: G.M., Respondent and Appellant.
    DA 17-0263
    Supreme Court of Montana.
    Submitted on Briefs: January 16, 2019 Decided: February 19, 2019
    Affirm.


text:
    STATE of Montana, Plaintiff and Appellee, v. Donald Ryan OSTRANDER, Defendant and Appellant.
    DA 17-0060
    Supreme Court of Montana.
    Submitted on Briefs: January 16, 2019 Decided: February 19, 2019
    Affirm.


text:
    Glenn DAVIDSON and Tom Ide, Plaintiffs, Counter-Defendants and Appellees, v. Woodrow BARSTAD and Christine Barstad, Defendants, Counter-Claimants, Third-Party Complainants and Appellants.
    DA 18-0050
    Supreme Court of Montana.
    Submitted on Briefs: August 8, 2018 Decided: February 26, 2019
    For Appellant: Quentin M. Rhoades, Nicole L. Siefert, Rhoades Siefert & Erickson PLLC, Missoula, Montana
    For Appellees: J. Andrew Person, Alan F. McCormick, Garlington, Lohn & Robinson, PLLP, Missoula, Montana (for Glenn Davidson), Graham J. Coppes, Ferguson Law Office, PLLC, Missoula, Montana (for Tom Ide)
   Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Woodrow and Christine Barstad (Sellers) appeal from the judgment of the Montana Third Judicial District Court, Powell County, granting summary judgment specifically enforcing post-auction real property buy-sell agreements between Sellers and respective auction purchasers, Glenn Davidson and Tom Ide (Buyers). We affirm.

¶2 We find the following restated issues dispositive on appeal:

1. Whether the District Court erroneously granted summary judgment specifically enforcing the parties' real estate buy-sell agreements despite genuine issues of material fact regarding conditions precedent to formation of the contracts?
2. Whether the District Court abused its discretion in not granting Sellers Rule 56(f) relief prior to rendering summary judgment?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Sellers are residents of Tasmania, Australia, who owned a 320-acre ranch property near Ovando in Powell County, Montana. By written agreement dated April 2, 2016, Sellers contracted with an Alabama auction company, Albert Burney, Inc . (Auctioneer) to sell their ranch property at an "absolute auction with no minimums or reserves ... to the highest bidder(s) regardless of the bid price." In the listing agency agreement, Sellers "appointed" the Auctioneer as their "sole and exclusive agent" with the "exclusive right to sell" the property with their "written approval." Inter alia , the agency agreement specified that, upon sale, Sellers would convey the property by general warranty deed free and clear of all encumbrances, including but not limited to a then-outstanding mortgage debt in the amount of $ 550,000. The agreement specified that the auction would take place on the property on June 30, 2016.

¶4 At all times pertinent, the Auctioneer acted by and through James Morgan, its employed project manager. Following execution of the agency agreement with the Auctioneer, Sellers acted through Woodrow Barstad personally and under Christine Barstad's power of attorney.

¶5 The Auctioneer marketed the ranch to the public via a published brochure and website. The brochure and website indicated that the Sellers would auction the ranch property either as a whole or in two separate 160-acre parcels (Parcels #1 and #2). On the day of the auction, the Auctioneer distributed a conforming property sheet noting that Parcel #1 (southern parcel) included certain existing improvements (modular home, 60' x 84' barn, and a 100' x 260' arena) and that Parcel #2 (northern parcel) was unimproved. The auction day property sheet also referenced a required preliminary bid deposit-$ 50,000 to bid on the whole, $ 30,000 to bid on Parcel #1, or $ 20,000 to bid on Parcel #2.

¶6 The Auctioneer also prepared and published a two-page document, entitled Real Estate Auction Terms and Conditions (REATC), specifying the various terms and conditions of the auction and the subsequent real estate sales transaction(s). The introductory section of the REATC declared that, by bidding, all registered bidders agreed "to abide by [its] terms and conditions" which would "be attached to and become a part of" a subsequent written buy-sell agreement "represent[ing] the final contracted terms of the sale." The "Registration" section of the REATC specified that all bidders "must register and obtain a bid number." As a condition of registration, the REATC stated that, "[i]n order to bid, Bidders will be required to present a bid deposit in certified funds, or other funds acceptable to the Seller and/or Auction Company "-$ 50,000 to bid on the whole, $ 30,000 to bid on Parcel #1, or $ 20,000 to bid on Parcel #2. (Emphasis added.) The REATC made no reference to a registration form or other documentation required for registration or bidding.

¶7 The "Terms of Sale" section of the REATC specified that the successful auction bidder(s) would "be required to execute" a written buy-sell agreement "immediately following the [a]uction" with "an Earnest Money Deposit equal to ten percent (10%) of the total purchase price with the Bid Deposit being in cash, certified funds, or other funds acceptable to the Seller and the balance of the 10% being by company or personal check." The "Defaults" section of the REATC specified that, if Sellers default under the post-auction buy-sell agreement, "Buyer shall have only the right of specific performance."

¶8 The Auctioneer and Woodrow Barstad were personally present on the property at the place and time of the auction. Prior to the auction, the Auctioneer administered the pre-auction registration of bidders in occasional consultation with Woodrow. Davidson appeared and sought to register with a $ 50,000 bid deposit in the form of a personal check and a letter from an Ohio bank (FirstMerit Bank) stating that he "has $ 50,000 available in his FirstMerit Bank accounts." The letter further stated that the undersigned Bank Branch Manager would be available for questions at a specified number. Finding the personal check and bank verification letter sufficient based on his experience and, as later-asserted, belief that Woodrow had personally authorized several other bidders to register "without required documentation," the Auctioneer accepted Davidson's bid deposit and issued him a bid number with an accompanying auction registration form.

¶9 Tom Ide separately appeared and sought to register to bid at the auction. By subsequent affidavit, the Auctioneer attested that he allowed Ide to register and bid upon deposit of a $ 50,000 "cashier's check." In a later affidavit, the Auctioneer attested that Ide made his bid deposit in the form of $ 50,000 in cash. The Auctioneer accepted Ide's bid deposit and issued him a bid number without an accompanying registration form.

¶10 At the auction, after determining that separate sales of Parcels #1 and #2 would yield the highest total sale price, the Auctioneer declared Davidson the highest and successful bidder on Parcel # 1 at $ 341,000. The Auctioneer declared Ide the highest and successful bidder on Parcel # 2 at $ 154,000.

¶11 Following the auction, Sellers, through Woodrow, immediately executed separate written buy-sell agreements with Davidson and Ide, respectively, using standard fill-in contract forms provided by the Auctioneer. Inter alia , the buy-sell agreements declared that the undersigned buyer was "the highest bona fide bidder" on each of the generally described parcels at an auction conducted on behalf of Sellers by the Auctioneer. The agreements stated that "Seller agrees to sell and convey [the property] to Purchaser by General Warranty Deed ... pursuant to" terms set forth in the agreement, including the incorporated and attached REATC as initialed by Woodrow. The agreements further stated that the "Seller acknowledges and agrees" that the Auctioneer conducted the auction "pursuant to a separate Agreement between Seller and Auction Company" and that the Seller "accepts Purchaser was the successful bidder ." (Emphasis added.) The agreements thus stated that, "[u]pon approval of this [a]greement ... by their signatures hereto, a valid and binding contract of sale shall exist under the [following] terms and conditions" set forth herein. The Auctioneer was not a party to the post-auction buy-sell agreements.

¶12 The Davidson buy-sell agreement specified a $ 341,000 purchased price for Parcel # 1 with a required $ 34,100 "earnest money" payment "to be applied as partial payment of the purchase price" with the balance due at closing. The Ide buy-sell agreement specified a $ 154,000 purchase price for Parcel #2 with a required $ 15,400 "earnest money" payment "to be applied as partial payment of the purchase price" with the balance due at closing. The agreements further stated that the "Purchaser has given to" the designated closing title company an earnest money "deposit to be credited against the payment of the purchase price and as a guaranty of specific performance of this contract." The "Defaults" section of the agreements provided that, "[i]f Seller defaults in the performance of this Agreement, Purchaser may reclaim the earnest money deposit or ... shall have only the right of specific performance." The agreements finally included the following integration clause and acknowledgements:

This is the entire agreement between the parties. It replaces and super[s]edes any and all oral agreements between the parties, as well as any prior writings.
...
This is a legal document and each party to the contract acknowledge by their execution hereof that they have fully reviewed the matter and are satisfied with its content and understand the terms and conditions set-forth herein.

¶13 Upon execution of his post-auction buy-sell agreement, Davidson gave the Auctioneer a personal earnest money check in the amount of $ 34,100. The Auctioneer "Fed-Exed" the check to the closing title company the next day. Following deposit by the title company, the funds were drawn from Davidson's account on July 6, 2016. In subsequent telephone and email communications with Davidson on July 7, Woodrow did not mention any concern, objection, or perceived problem or discrepancy with the conduct of the auction or the sufficiency of Davidson's pre-auction bid deposit or post-auction earnest money payment.

¶14 Upon Ide's similar post-auction execution of a buy-sell agreement with Sellers, the Auctioneer accepted a $ 15,400 cash earnest money payment from Ide. In a subsequent affidavit, the Auctioneer attested that:

[1] Mark Hogan and I counted the cash in front of Mr. Ide to ensure the correct amount.
...
[2] The title company, ... however, would not accept cash.
[3] I flew home on Friday, June 31st, and went to our bank, BBVA Compass, that day to get the cash converted to a cashier's check in the amount of $ 15,400.
[4] Immediately afterwards, I went to Office Max to make copies of all of the documents, and sent the agreements and cashier's check via Fed-Ex to the title company.

In a later affidavit, the Auctioneer similarly stated that he accepted a $ 15,400 cash earnest money payment from Ide "on the day of the Auction, which [he then] converted to a cashier[']s check and deposited with [the closing title company] the following day."

¶15 In July 2016, Sellers separately notified Buyers that Sellers would not perform and close on the real estate sales as previously agreed due to Buyers' alleged non-compliance with pre-auction bid deposit and post-auction earnest money requirements. Sellers asserted that Davidson's buy-sell agreement was void and unenforceable because his pre-auction bid deposit was not in the form of certified or guaranteed funds as required by the REATC. Sellers asserted that Ide's buy-sell agreement was void and unenforceable because his pre-auction bid deposit was not in funds "acceptable to the Seller" as required by the REATC and because he did not timely deposit his earnest money payment with the closing title company on the date of execution of the agreement as referenced therein.

¶16 In August 2016, Davidson and Ide commenced separate lawsuits in the Montana Third Judicial District Court seeking specific enforcement of their respective buy-sell agreements against Sellers. After the District Court consolidated the actions, Sellers asserted in their answer, inter alia , that the Buyers did not make their respective pre-auction bid deposits with certified or other acceptable funds. Sellers further counterclaimed that the buy-sell agreements were void due to fraud, misrepresentation, and "unclean hands." Following hearing on May 16, 2017, on the parties' cross-motions for summary judgment, the District Court denied Sellers' motion and granted summary judgment to Buyers. The court rejected Sellers' assertions that the buy-sell agreements were either void due to non-compliance with pre-auction bid deposit requirements or due to lack of sufficient property descriptions (including specification of access and water rights). By final judgments filed January 8, 2018, the District Court ordered Sellers to specifically perform under the respective buy-sell agreements and convey the subject parcels, with appurtenant water rights, to the respective Buyers. Sellers timely appeal.

STANDARD OF REVIEW

¶17 We review summary judgment rulings de novo for compliance with M. R. Civ. P. 56. Dick Anderson Constr., Inc. v. Monroe Prop. Co. , 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). Whether a genuine issue of material fact exists or whether a party is entitled to judgment as a matter of law are conclusions of law subject to de novo review for correctness. Ereth v. Cascade Cty. , 2003 MT 328, ¶ 11, 318 Mont. 355, 81 P.3d 463. We review a district court's ruling on discovery motions for an abuse of discretion. Brookins v. Mote , 2012 MT 283, ¶ 21, 367 Mont. 193, 292 P.3d 347.

DISCUSSION

¶18 1. Whether the District Court erroneously granted summary judgment specifically enforcing the parties' real estate buy-sell agreements despite genuine issues of material fact regarding conditions precedent to formation of the contracts?

¶19 Sellers assert that genuine issues of material fact remained on the Rule 56 factual record as to whether the Buyers respectively satisfied conditions precedent to formation of their respective buy-sell agreements with Sellers. Sellers assert that, as referenced in the REATC and related registration cards used by the Auctioneer, a pre-auction bid deposit in the form of a cashier's check, bank guaranty, or other form of payment approved in writing by the Sellers was a specific condition precedent to Buyers' bid eligibility and, in turn, formation of the resulting post-auction buy-sell agreements. As to Davidson, Sellers assert that a genuine issue of material fact remained as to whether his personal check and accompanying bank verification letter satisfied the condition precedent to his post-auction buy-sell agreement with Sellers. As to Ide, Sellers assert that a genuine issue of material fact remains as to whether his bid deposit satisfied a condition precedent to his post-auction buy-sell agreement based on a discrepancy in the Auctioneer's post-auction affidavits as to whether Ide made his pre-auction bid deposit in cash or by cashier's check. We disagree on both counts.

¶20 A contract condition is the subsequent occurrence of a specific uncertain act, event, or circumstance. See § 28-1-401, MCA ; Restatement (Second) of Contracts § 224 (1981). A condition precedent to contract formation is a specific condition, usually an extraneous event or circumstance or third-party act, the occurrence upon which the reciprocal promises constituting the contract consideration depend. See § 28-1-403, MCA ; Thompson v. Lithia Chrysler Jeep Dodge of Great Falls , 2008 MT 175, ¶¶ 22, 30, 343 Mont. 392, 185 P.3d 332 (approval of third-party financing in amount and rate agreed in retail sales contract); ERA Real Estate Home & Ranch Props. v. Big Horn Game Ranch, Inc. , 213 Mont. 47, 52, 692 P.2d 1218, 1220 (1984) (third-party shareholder approval of ranch sale and partial in-kind consideration as condition precedent to formation of real estate buy-sell agreement); Hein v. Fox , 126 Mont. 514, 518, 254 P.2d 1076, 1079 (1953) (lender financing approval as waived condition precedent to formation of water well drilling contract). In contrast, a condition precedent to a contract performance, duty, or right is a specific post-formation act or forbearance by a promisor , the occurrence upon which the reciprocal performance or forbearance of the other party depends. See §§ 28-1-403, -404, -406, MCA ; Thompson , ¶ 22 ; King Res., Inc. v. Oliver , 2002 MT 301, ¶ 26, 313 Mont. 17, 59 P.3d 1172 (reciprocal promises bind regardless of a party's subsequent refusal or inability to perform); Miller v. Titeca , 192 Mont. 357, 364-65, 628 P.2d 670, 675 (1981) (reciprocal promises of value sufficient to constitute valid consideration). See also Scottsdale Ins. Co. v. Hall , 2003 MT 188, ¶¶ 29-31, 316 Mont. 460, 73 P.3d 819 (owner failure to provide agreed foundations due to house mover failure to obtain insurance resulted in mutual breaches of contract promises rather than material failure of condition precedent to owner's performance); Weyler v. Kaufman , 196 Mont. 132, 136, 638 P.2d 393, 396 (1981) (promised assistance with tool down payment as condition precedent to contractor's promised performance); United Campgrounds, U. S. A. v. Stevenson , 175 Mont. 17, 21-22, 571 P.2d 1161, 1163 (1977) (franchisor breach of implied promise to maintain trade name standards as a material failure of an implied condition precedent to reciprocal performance by franchisee).

¶21 The failure or non-satisfaction of a condition precedent to contract formation renders the contemplated contract non-existent as never formed and thus non-binding and unenforceable. Thompson , ¶ 22. In contrast, the failure or non-satisfaction of a condition precedent to performance generally effects or constitutes a breach of an enforceable contract promise subject to remedy as a material or non-material breach of the contract. Estate of Gleason v. Cent. United Life Ins. Co. , 2015 MT 140, ¶ 35, 379 Mont. 219, 350 P.3d 349 ; Sjoberg v. Kravik , 233 Mont. 33, 38, 759 P.2d 966, 969 (1988). Accord Beckenheimer's Inc. v. Alameda Assocs. Ltd. P'ship , 327 Md. 536, 611 A.2d 105, 114 (1992) ; Rohauer v. Little , 736 P.2d 403, 409 (Colo. 1987) ; Restatement (Second) of Contracts § 227(2) cmt. d (1981); 13 Richard A. Lord, Williston on Contracts § 38:13 (4th ed. 2013).

¶22 Upon a material breach of a contract, the non-breaching party has the option of either rescinding the contract without requirement for further performance or, alternatively, enforcing the contract at law or in equity. R.C. Hobbs Enters., LLC v. J.G.L. Distrib., Inc. , 2004 MT 396, ¶ 33, 325 Mont. 277, 104 P.3d 503 ; Norwood v. Serv. Distrib., Inc. , 2000 MT 4, ¶¶ 29-33, 297 Mont. 473, 994 P.2d 25 ; Reinke v. Biegel , 185 Mont. 31, 35-37, 604 P.2d 315, 317-18 (1979). Accord Brown v. Grimes , 192 Cal.App.4th 265, 120 Cal.Rptr.3d 893, 902-03 (2011). In contrast, a non-material breach does not relieve the non-breaching party from performance but merely entitles the party to enforce the contract at law or in equity. R.C. Hobbs , ¶ 33 ; Norwood, ¶¶ 29-32 ; Reinke , 185 Mont. at 35-37, 604 P.2d at 317-18 ; Brown , 120 Cal.Rptr.3d at 902-03. See also Restatement (Second) of Contracts § 229 (1981) (non-occurrence of a condition of performance does not forfeit reciprocal performance of other party unless material to the agreement).

¶23 A breach of contract is not material if the breaching party substantially performed all essential contract requirements. Rohauer , 736 P.2d at 409. In other words, a breach is not material if the non-breaching party has or will substantially receive "the expected benefit of the contract." Stan Clauson Assocs., Inc. v. Coleman Bros. Constr., LLC , 297 P.3d 1042, 1045 (Colo. App. 2013). Substantial performance occurs when the breaching party has performed all "major aspects of the contract but has deviated in insignificant particulars that do not detract from the benefit" expected by the non-breaching party had the breaching party "literal[ly] perform[ed]." Rohauer , 736 P.2d at 410. A " 'material breach' is a failure to do something that is so fundamental to a contract that the failure to perform ... defeats the essential purpose of the contract." 23 Richard A. Lord, Williston on Contracts § 63:3 (4th ed. 2018). Accord Reinke , 185 Mont. at 36, 604 P.2d at 317 ; Rogers v. Relyea , 184 Mont. 1, 6-7, 601 P.2d 37, 40 (1979). Whether a breach is material or not is a matter of "objective reasonableness rather than" the non-breaching party's "purely subjective belief." 23 Richard A. Lord, Williston on Contracts § 63:3 (4th ed. 2018). A party claiming a material breach must show the materiality of the breach. R.C. Hobbs , ¶ 33 ; Norwood , ¶ 33.

¶24 Here, unlike the contracts at issue in Thompson , ERA Real Estate , and Fox , neither the REATC, nor the subsequent real estate buy-sell agreements that incorporated it, expressly specified or manifestly implied any extraneous or third-party occurrence as a threshold condition precedent to triggering the parties' mutual or reciprocal promises under the buy-sell agreements. While the REATC expressly specified that the bid deposits must be in the form of certified funds or other form acceptable to the Sellers, neither the language of the buy-sell agreements, nor that of the incorporated REATC, expressly conditioned the parties' mutual obligations under the buy-sell agreements upon strict compliance with the specified pre-auction bid deposit requirements. Thus, unlike in Thompson , Buyers' compliance with the specified pre-auction bid requirements was not a condition precedent to formation of the post-auction buy-sell agreements between Sellers and the respective Buyers.

¶25 As to the conditions precedent to Sellers' performance, Davidson's tendered personal check and bank verification letter were not certified funds as referenced in the REATC. However, pursuant to the prior written agreement between Sellers and the Auctioneer, as well as the language of the REATC, the Auctioneer was the actual and manifestly ostensible agent of the Sellers. Beyond that actual and ostensible agency, the "Registration" section of the REATC expressly authorized prospective bidders to make the required bid deposit either "in certified funds, or other funds acceptable to the Seller and/or Auction Company ...." (Emphasis added.) Consequently, as a matter of law on the face of the REATC, the buy-sell agreements that incorporated it, and the prior agency agreement between the Sellers and Auctioneer, the Auctioneer was actually and ostensibly authorized to accept pre-auction bid deposits in any form he deemed acceptable. Regardless of Sellers' after-the-fact affidavit dispute as to the Auctioneer's rationale, or what he said or didn't say to or in Woodrow's presence prior to the auction, it is beyond genuine material dispute on the Rule 56 record that the Auctioneer in fact accepted Davidson's tendered personal check, as accompanied by his bank verification letter, as an acceptable form of funds for the required bid deposit in accordance with the REATC. It is similarly beyond genuine material dispute that the Auctioneer issued Davidson a bid number authorizing him to bid at the auction as required by the REATC.

¶26 Sellers nonetheless assert that genuine issues of material fact remained based on their assertions that Woodrow would not have accepted Davidson's bid deposit had he known about it and that the auction registration form issued to Davidson required Woodrow's written approval of any non-certified deposit in any event. However, Woodrow's after-the-fact assertion that he would not have approved the form of Davidson's deposit is immaterial based on the clear and unequivocal language of the REATC "Registration" section, the Auctioneer's actual and ostensible agency, and the fact not subject to genuine dispute that the Auctioneer found the deposit acceptable regardless of rationale. As to the auction registration form issued to Davidson, not only did the REATC not specify the registration form as a bid deposit or bidding prerequisite, the auction form itself includes no language purporting to require the Sellers' written approval of a non-certified bid deposit already approved by the Auctioneer pursuant to the REATC. The registration form merely includes a signature line for the Seller, or the Seller's agent, to give written authorization of a non-certified deposit in lieu of oral authorization and acceptance. The lack of Sellers' written authorization on Davidson's registration form is thus insufficient to create a genuine issue of material fact as to whether he was an authorized bidder under the REATC and the subsequent buy-sell agreement that incorporated it.

¶27 Even if, as asserted by Sellers, we could reasonably construe the auction registration form to be an incorporated part of the REATC and buy-sell agreement and to then to require Sellers' written authorization regardless of Auctioneer approval, there is no non-speculative basis in the Rule 56 record indicating that the lack of such written authorization in fact deprived or was likely to deprive Sellers of their essential contract expectancy under the terms of the REATC and incorporated buy-sell agreements. Thus, the form of Davidson's pre-auction bid deposit, and his derivative post-auction earnest money deposit, neither effected a failure of a condition precedent to formation of his buy-sell agreement with Sellers, nor failure of a condition precedent to their performance thereunder. We hold that the District Court did not erroneously grant summary judgment specifically enforcing the Davidson buy-sell agreement against Sellers.

¶28 As to Ide, Sellers assert that a genuine issue of material fact remained as to whether Ide was qualified under the REATC to bid at the auction based on a discrepancy in the Auctioneer's affidavits as to whether Ide made his pre-auction bid deposit (and derivative post-auction earnest money deposit) by cashier's check as originally asserted, or, as later asserted, by cash later converted to cashier's check by the Auctioneer for deposit with the title company. Aside from the fact that Ide's affidavit assertions do not necessarily differ in any materially sinister regard as alleged by Sellers, whether he made his $ 50,000 bid deposit in cash or by cashier's check is immaterial because it remains beyond genuine material dispute that: (1) a cashier's check constituted "certified funds" as referenced in the REATC; (2) cold, hard cash is not yet anything less than the substantial equivalent of a cashier's check; and (3) the Seller's agent (the Auctioneer) was in possession of Ide's bid deposit and derivative earnest money deposit at all times until deposited with the title company as contemplated by the buy-sell agreement. Thus, the form of Ide's pre-auction bid deposit, and derivative post-auction earnest money deposit, neither effected a failure of a condition precedent to formation of his buy-sell agreement with Sellers, nor a failure of a condition precedent to their performance thereunder. We hold that the District Court did not erroneously grant summary judgment specifically enforcing the Ide buy-sell agreement with Sellers.

¶29 2. Whether the District Court abused its discretion in not granting Sellers Rule 56(f) relief prior to rendering summary judgment?

¶30 Upon motion and affidavit showing that a non-moving party "cannot present facts essential to justify ... opposition" to summary judgment, the court may deny or postpone summary judgment to afford opportunity for additional discovery. M. R. Civ. P. 56(f). However, the moving party has the burden of making a non-speculative affidavit showing of particular facts or types of fact sought and how, if found, those facts will preclude adverse judgment. Bridgman v. Union Pac. R.R. Co ., 2013 MT 289, ¶ 31, 372 Mont. 124, 311 P.3d 416 ; Rosenthal v. Cty. of Madison , 2007 MT 277, ¶ 42, 339 Mont. 419, 170 P.3d 493 ; Envtl. Contractors, LLC v. Moon , 1999 MT 178, ¶¶ 19-21, 295 Mont. 268, 983 P.2d 390 ; Stanley v. Holms , 1999 MT 41, ¶¶ 19-20, 293 Mont. 343, 975 P.2d 1242.

¶31 Here, based on the discrepancy in the Auctioneer's affidavits as to whether Ide made his pre-auction bid deposit in cash or by cashier's check and his real-time failure to generate corroborating evidence of which actually occurred, Sellers assert that the Auctioneer's "willingness ... to change his story to benefit a bidder ... is, at best ... deeply troubling" and, "[a]t worst, ... clear evidence of collusion and bid-rigging" as expressly prohibited by the REATC. Sellers based this alleged bidder misconduct in part on the asserted fiduciary duty of the Auctioneer, "[a]s the seller's real estate agent, ... [to] forbid any collusion with bidders to allow" unqualified bidders to bid. Sellers thus assert that the "suspicious nature" of the Auctioneer's testimony "[a]t the very least" warrants deposition of "Witness" Hogan and the subpoenaing of "Ide's banks and other sources for $ 50,000 in cash."

¶32 However, except for a passing reference to M. R. Civ. P. 56(f) and associated complaint about Ide's inadequate discovery in their Response to Ide's Cross-Motion for Summary Judgment , Sellers did not file any pertinent discovery motion until the day of oral argument on the parties' summary judgment motions. At that time, the literal last-minute motions were separate motions pursuant to M. R. Civ. P. 37(a) to compel answers to previously propounded discovery requests. The motions did not reference M. R. Civ. P. 56(f) and were further not supported by affidavit showings as required by Rule 56(f). The Rule 37 motions focused on Sellers' continuing assertions that the Buyers were not qualified bidders under the REATC. The motions neither sought time to depose Mark Hogan, nor opportunity to issue third-party subpoenas, as now asserted. Whether in name or substance, Sellers did not seek Rule 56(f) relief from the District Court and thus waived any related issue on appeal. Even if not waived, Seller's plea on appeal for Rule 56(f) relief sketches out nothing more than a general fishing expedition, i.e., conclusory allegation, mere suspicion, and speculation regarding Buyers with a dash of conspiratorial breach of fiduciary duty by the Sellers' own agent sprinkled in. We hold that the District Court did not erroneously deny Sellers Rule 56(f) relief prior to rendering judgment on the parties' cross-motions for summary judgment.

CONCLUSION

¶33 We hold that the District Court did not erroneously grant summary judgment specifically enforcing the Buyers' respective real estate buy-sell agreements with Sellers. We further hold that the court did not erroneously deny Sellers Rule 56(f) relief prior to rendering summary judgment on the parties' cross-motions for summary judgment.

¶34 Affirmed.

We concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

INGRID GUSTAFSON, J.

      The 2004 warranty deed under which Sellers acquired the property referenced them with an address in Seeley Lake, Montana.

      In a subsequent affidavit, Woodrow did not deny the Auctioneer's assertion that Woodrow allowed several others to register "without required documentation," but flatly denied the Auctioneer's additional affidavit assertions that he specifically told Woodrow that Davidson did not register with certified funds and that the Auctioneer had stated to others in Woodrow's presence that "a personal check and a Bank Letter of Guaranty" would suffice.

      The Auctioneer's later affidavit did not explain the discrepancy in his affidavits regarding the form of Ide's pre-auction bid deposit. However, both affidavits attested that he accepted Ide's post-auction earnest money in the form of $ 15,400 in cash. The later affidavit attested that Ide "promptly tendered" his 10% earnest money payment to the Auctioneer in "cash ... in that amount on the day of the [a]uction, which" the Auctioneer then "converted to a cashier[']s check and deposited with" the escrow title company "the following day."

      Though not at issue or material on appeal, Sellers notified Buyers in separate July 12, 2016 letters that water rights were not included in their respective sales.

      In his later affidavit, the Auctioneer attested that Mark Hogan witnessed or participated in the counting-out of Ide's cash deposit.


text:
    CITY OF BILLINGS, Plaintiff and Appellee, v. Clinton Ross GILHAM, Defendant and Appellant.
    DA 18-0343
    Supreme Court of Montana.
    Submitted on Briefs: January 23, 2019 Decided: March 5, 2019
    Affirmed.


text:
    In the MATTER OF: Z.B., A Youth in Need of Care.
    DA 18-0345
    Supreme Court of Montana.
    Submitted on Briefs: January 30, 2019 Decided: March 5, 2019
    Affirmed.


text:
    Amanda PARRISH, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
    DA 18-0210
    Supreme Court of Montana.
    Submitted on Briefs: January 30, 2019 Decided: March 5, 2019
    Affirmed.


text:
    STATE of Montana, Plaintiff and Appellee, v. Charles Henry PINNER, Defendant and Appellant.
    DA 17-0237
    Supreme Court of Montana.
    Submitted on Briefs: February 13, 2019 Decided: March 5, 2019
    Affirmed in part.


text:
    Davin M. TONEY, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 76765
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    BANK OF AMERICA, N.A., Appellant, v. WHITE LANTERN, LLC, Respondent.
    No. 73948
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    REVERSED. REMAND.


text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. Charles E. RAAB, Jr., an Individual, Respondent.
    No. 72347
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    REVERSED. REMAND.


text:
    MHC FLAMINGO WEST, LLC, Individually and d/b/a Flamingo West, a Foreign Limited-Liability Company; Realty Systems, Inc., a Foreign Corporation; MHC Operating Limited Partnership, a Foreign Limited Partnership; Equity Lifestyle Properties, Inc., a Foreign Corporation; and AK Davies Mobile Home Services, Inc., a Nevada Corporation, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Kenneth C. Cory, District Judge, Respondents, and Eloisa Balois Aqui, Real Party in Interest.
    No. 77970
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    DENIED.


text:
    Dempsey Donald Eugene HOOD, Appellant, v. Isidro BACA, Warden, Respondent.
    No. 76073
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Donald Lynn DELONEY, Appellant, v. Renee BAKER, Warden, Respondent.
    No. 76226
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Marvin MILLER, Appellant, v. The STATE of Nevada, Respondent.
    No. 74161
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Kalum Marcell FORTUNE, Appellant, v. The STATE of Nevada, Respondent.
    No. 74413
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Jonathan Scott HANES, Appellant, v. Perry RUSSELL, Warden, Respondent.
    No. 76322
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Freddy ARTEAGA, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 76390
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    David LANI, Appellant, v. The STATE of Nevada, Respondent.
    No. 75923
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Franklin Lee TREVINO, Sr., Appellant, v. Renee BAKER, Warden, Respondent.
    No. 76696
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    A MAUNA KEA PL, LLC, Appellant, v. BANK OF AMERICA, N.A., Successor By Merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP, Respondent.
    No. 74053
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    BAC HOME LOANS SERVICING, LP, f/k/a Countrywide Home Loans Servicing, LP, Appellant, v. PREMIER ONE HOLDINGS, INC.; and Peccole Ranch Community Association, Respondents.
    No. 74768
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2018
    REVERSED. REMAND.


text:
    The ENTRUST GROUP FBO Kenneth RENFROE #52-00056; American Tax Certificate Exchange Company; and Paul Pawlik, Appellants, v. BANK OF AMERICA, N.A.; and Recontrust Company, N.A., Respondents.
    No. 75918
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    Dismissed.


text:
    Raul DIAZ, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 76194
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    David PLASENCIA, Appellant, v. The STATE of Nevada, Respondent.
    No. 76284
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Lanell Vincent BELLOWS, Appellant, v. The STATE of Nevada, Respondent.
    No. 75450
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Brandon Lee KINCADE, Appellant, v. Perry RUSSELL, Warden WSCC, Respondent.
    No. 75968
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    In the MATTER OF DISBARMENT OF Noel Palmer SIMPSON, Bar No. 9642.
    No. 78037
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    Disbarred.


text:
    In the MATTER OF DISCIPLINE OF Andrew LIST, Bar No. 6725.
    No. 77707
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    Suspend.


text:
    In the MATTER OF DISCIPLINE OF Matthew S. DUNKLEY, Bar No. 6627.
    No. 77657
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    Reject. Remand.


text:
    BRADFORD HILL COURT TRUST, Appellant, v. BANK OF AMERICA, N.A., Respondent.
    No. 76130
    Supreme Court of Nevada.
    FILED FEBRUARY 21, 2019
    Dismissed.


text:
    WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-3, ASSET-BACKED CERTIFICATES, SERIES 2006-3, Appellant, v. SOUTHERN CAPITAL PRESERVATION, LLC, Respondent.
    No. 77680
    Supreme Court of Nevada.
    FILED FEBRUARY 21, 2019
    Dismissed.


text:
    BEST RE INVESTMENTS, LLC, as Successor-in-Interest to LV NV IVN, LLC, Appellant, v. BANK OF AMERICA, N.A., S/B/M to BAC Home Loans Servicing, LP, Respondent.
    No. 74820
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    Dismissed.


text:
    Terresita Flores ESCOLANO, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Timothy C. Williams, District Judge, Respondents, and Ray Siobal; Prince Siobal; and Reazzel Siobal, By and Through Their Guardian Ad Litem Ray Siobal, Real Parties in Interest.
    No. 76171
    Supreme Court of Nevada.
    FILED FEBRUARY 21, 2019
    Dismissed.


text:
    SHINING SAND AVE TRUST, Appellant, v. ESTATE OF Richard STONESIFER, F/K/A Richard Vincent Stonesifer, an Individual; and Flagstar Bank, a Federal Savings Bank, Respondents.
    No. 76082
    Supreme Court of Nevada.
    FILED FEBRUARY 21, 2019
    Dismissed.


text:
    SOUTHERN TERRACE HOMEOWNERS ASSOCIATION, Appellant, v. ELSINORE, LLC ; and King Futts PFM LLC, on Behalf of Themselves and as Representatives of the Class Herein Defined, Respondents.
    No. 76182
    Supreme Court of Nevada.
    FILED FEBRUARY 21, 2019
    Dismissed.


text:
    Christopher Stewart WOODSTONE, Appellant, v. The STATE of Nevada, Respondent.
    No. 74238
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    AFFIRMED.


text:
    Albert D. MASSI, an Individual, Appellant, v. Donald NOBIS; and Mary Nobis, as Individuals, Respondents.
    Albert D. Massi, an Individual, Appellant, v. Donald Nobis; and Mary Nobis, as Individuals, Respondents.
    Albert D. Massi, an Individual, Appellant, v. Donald Nobis; and Mary Nobis, Individuals, Respondents.
    Albert D. Massi, an Individual, Appellant, v. Donald Nobis; and Mary Nobis, as Individuals, Respondents.
    No. 74356 No. 74875 No. 75010 No. 75358
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    AFFIRMED.


text:
    Carlos Rafael ALICEA-MENDEZ, A/K/A Carlos AliceaMendez, Appellant, v. The STATE of Nevada, Respondent.
    No. 73477
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    AFFIRMED.


text:
    CYPRESS MANOR DRIVE TRUST, Appellant, v. BANK OF AMERICA, N.A., Respondent.
    No. 77094
    Supreme Court of Nevada.
    FILED FEBRUARY 21, 2019
    Dismissed.


text:
    Leonard BURNS, 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 The State of Nevada, Real Party in Interest.
    No. 75320
    Supreme Court of Nevada.
    FILED FEBRUARY 25, 2019
    GRANTED. Vacate.


text:
    Octavio CARILLO, Petitioner, v. The BOARD OF PAROLE COMMISSIONERS ; the State of Nevada; Eric Christensen; Michael Keeler; Minerva De La Torre; and Adam Endel, Commissioners, Respondents.
    No. 78123
    Supreme Court of Nevada.
    FILED FEBRUARY 25, 2019
    DENIED.


text:
    Robinah NAKIMERA, Appellant, v. Darren McHenry FIELDS, Respondent.
    No. 74208
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    AFFIRMED.


text:
    Pasqual Andres MCMURRY, Appellant, v. The STATE of Nevada, Respondent.
    No. 72805
    Supreme Court of Nevada.
    FILED FEBRUARY 22, 2019
    AFFIRMED.


author: PER CURIAM:

text:
    Jennifer HENRY, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
    No. 75675
    Supreme Court of Nevada.
    FILED FEBRUARY 28, 2019
    Law Office of Daniel Marks and Daniel Marks and Nicole M. Young, Las Vegas, for Petitioner.
    Sinai, Schroeder, Mooney, Boetsch, Bradley & Pace and Thomas C. Bradley, Reno, for Respondent.
    BEFORE GIBBONS, C.J., PICKERING, HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

      The Honorable Elissa F. Cadish and the Honorable Abbi Silver did not participate in the decision of this matter.

   PER CURIAM:

This petition for a writ of prohibition challenges the jurisdiction of the Nevada Commission on Judicial Discipline (the Commission). Jennifer Henry challenges the Commission's jurisdiction over her as a hearing master, arguing that NRS 1.428, the statute giving the Commission its purported jurisdiction over her, is unconstitutional. We hold that NRS 1.428 is constitutional and accordingly hearing masters are subject to the Commission's jurisdiction.

FACTS AND PROCEDURAL HISTORY

Henry is a hearing master for the family courts in the Eighth Judicial District Court (EJDC) of Nevada. On October 10, 2016, Henry presided over a hearing in the juvenile court for EJDC, wherein she allegedly acted inappropriately. Four days later, Judge William Voy informed Henry that he had consulted with Presiding Judge Charles Hoskin and Chief Judge David Barker. Judge Voy had listened to the recording of the hearing, and the three determined that Henry's actions were improper. They administered a one-week suspension without pay. On October 10, 2017, the Commission filed a formal statement of charges for Henry's conduct. Henry is challenging the Commission's jurisdiction.

DISCUSSION

The Nevada Constitution creates the Commission and provides a list of positions that the Commission covers. Nev. Const. art. 6, § 21 (1), Henry's argument that the Commission does not have jurisdiction over her rests on the assertion that the Legislature improperly expanded the jurisdiction of the Commission by including hearing masters under the definition of a "judge" in NRS 1.428. The Nevada Constitution provides:

[a] justice of the Supreme Court, a judge of the court of appeals, a district judge, a justice of the peace or a municipal judge may ... be censured, retired, removed or otherwise disciplined by the Commission on Judicial Discipline.

Nev. Const. art. 6, § 21 (1). The Nevada Legislature has enacted additional statutes related to the authority and jurisdiction of the Commission. See NRS 1.425 - 1.4695. NRS 1.440 gives the Commission jurisdiction over "judges." NRS 1.428 defines "judge" as including "[a]ny other officer [besides those specifically enumerated] of the Judicial Branch of this State, whether or not the officer is an attorney, who presides over judicial proceedings, including ... a ... special master or referee." Henry argues that this broad definition of judges improperly expanded the jurisdiction of whom the Commission has authority over beyond what is proscribed in the Nevada Constitution. Thus, she argues, NRS 1.428 is unconstitutional.

Henry admits that hearing masters and referees serve the same purpose, and accordingly, that she would be included in the definition of "judge" under NRS 1.428. However, she cites her original proposition-that referees would have needed to be included in the Constitution-to support her argument against the Commission's jurisdiction over her. The Commission, however, contends that there is authority in the Constitution for the Legislature to enact NRS 1.428. The Commission is correct.

The Nevada Constitution provides an enumerated list of positions that may be disciplined by the Commission. Nev. Const. art. 6, § 21 (1). It further provides, in the district court section, that "[t]he legislature may provide by law for ... Referees in district courts." Id. at § 6(2). We have previously held that multiple sections of the Nevada Constitution may be read in tandem to support the Legislature's authority to expand the jurisdiction of the Commission. See In re Davis, 113 Nev. 1204, 1213, 946 P.2d 1033, 1039 (1997). Before the Constitution was amended to include municipal court judges, a municipal court judge challenged the statute that gave the Commission its jurisdiction to discipline him in Davis . Id. at 1207-10, 946 P.2d at 1036-38. Specifically, the statute he challenged read, at the time, "[t]he Commission on judicial discipline has exclusive jurisdiction over the censure, removal and involuntary retirement of ... judges of municipal courts." Id. at 1211, 946 P.2d at 1038 (emphasis omitted) (quoting NRS 1.440(1) (1977)). Although municipal court judges were not enumerated in the Constitution as subject to the Commission's jurisdiction, the Constitution provided that the Commission may "[e]xercise such further powers as the legislature may from time to time confer upon it." Id. at 1212, 946 P.2d at 1038 (quoting Nev. Const. art. 6, § 21 (9)(d) (1993)). Thus, we held the statute did not unconstitutionally expand the Commission's jurisdiction because "it [was] apparent that the legislature was free to utilize the Commission as a medium for [removing a municipal court judge]." Id. at 1213, 946 P.2d at 1039.

We hold that NRS 1.428 is constitutional for similar reasons. Although hearing masters are not specifically enumerated in the Nevada Constitution, the Nevada Constitution still gives the Legislature authority to enact laws regarding referees in district courts. Since NRS 1.428 concerns referees in district courts, we conclude its enactment was constitutional. Furthermore, the Nevada Constitution still provides, as it did when we analyzed Davis , that the Commission may "[e]xercise such further powers as the Legislature may from time to time confer upon it." Nev. Const. art. 6, § 21 (11)(d). The Legislature conferred powers over judicial officers outside of those named in Article 6, Section 21 when enacting NRS 1.428. Thus, we conclude NRS 1.428 is constitutional and Henry falls under the purview of the Commission's jurisdiction.

Henry also argues that the Commission does not have jurisdiction over hearing masters because the Nevada Constitution intentionally limits the positions that are subject to the Commission's discipline. She asserts that the Commission's creation was intended to hold elected judges accountable to the public and that hearing masters are special in that they are held accountable in other ways. Specifically, she argues hearing masters are appointed and supervised by judges who are subject to judicial discipline by the Commission and that she is an at-will employee that may be disciplined by her employer. However, the only authority Henry cites to support her argument are statutes stating that hearing masters are supervised by justices/judges and caselaw providing that the Commission was created "to provide for a standardized system of judicial governance." Ramsey v. City of N. Las Vegas, 133 Nev. 96, 96, 392 P.3d 614, 616 (2017). We conclude these authorities support our conclusion because the Commission having jurisdiction over a multitude of judicial officers, including hearing masters under NRS 1.428, is consistent with having a standardized system of judicial governance. Therefore, Henry's argument is unpersuasive because the authorities cited are inapposite to her proposition that the Commission was not created with the intent to have jurisdiction over hearing masters.

CONCLUSION

Henry makes a similar argument, regarding NRS 1.428, as the municipal court judge in Davis . However, we reject her argument and hold that NRS 1.428 is constitutional. Accordingly, the Commission is not acting outside of its jurisdiction here because it has the authority, by way of statute, to discipline Henry. Thus, we deny Henry's petition for a writ of prohibition.

      In light of this opinion, we vacate the stay of proceedings entered on May 24, 2018.


text:
    Gene Anthony ALLEN, Petitioner, v. The STATE of Nevada; and Isidro Baca, Warden, Respondents.
    No. 78110
    Supreme Court of Nevada.
    FILED FEBRUARY 25, 2019
    DENIED.


text:
    Steven Samuel BRAUNSTEIN, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent, and The State of Nevada, Real Party in Interest.
    No. 78128
    Supreme Court of Nevada.
    FILED FEBRUARY 25, 2019
    DENIED.


text:
    CVSM, LLC, an Active Limited Liability Company, d/b/a Club Paradise, Appellant, v. Jane DOE DANCER V; and Jane Doe Dancer VI, Individually, and on Behalf of a Class of Similarly Situated Individuals, Respondents.
    No. 72627
    Supreme Court of Nevada.
    FILED FEBRUARY 25, 2019
    Reverse. Remand.


text:
    Jason Ellis MILBURY, a/k/a Jason Mulbury, Appellant, v. The STATE of Nevada, Respondent.
    No. 78042
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    Giovanni Kohler KURTZE, Appellant, v. The STATE of Nevada, Respondent.
    No. 77304
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    Kenneth Charles PAZ, Appellant, v. Governor Brian SANDOVAL, Respondent.
    No. 78124
    Supreme Court of Nevada.
    FILED FEBRUARY 25, 2019
    DISMISSED.


text:
    GREEN TREE SERVICING, LLC, n/k/a Ditech Financial, LLC, Appellant, v. PREMIER ONE HOLDINGS, INC., Respondent.
    No. 75862
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    Dismissed.


text:
    Richard TATE, Special Administrator for the Estate of James S. Tate, Jr., M.D., Appellant, v. The State of Nevada, BOARD OF MEDICAL EXAMINERS, Respondent.
    No. 73510
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    John Tony WHITESELL, Appellant, v. The STATE of Nevada, Respondent.
    John Tony Whitesell, Appellant, v. The State of Nevada, Respondent.
    No. 77441 No. 77442
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    The WILLICK LAW GROUP, Appellant, v. Yoly D'ACOSTA, Respondent.
    No. 76369
    Supreme Court of Nevada.
    FILED FEBRUARY 25, 2019
    DISMISSED.


text:
    Alexander FALCONI, Appellant, v. Monica Ann FARRAR, Respondent.
    No. 77848
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    Brandon Randolph KIMPTON, Appellant, v. The STATE of Nevada, Respondent.
    No. 77402
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    Gary JASKOL ; and Brenda Lee Jaskol, d/b/a Mountain West Flooring, Appellants, v. ALJ REGIONAL HOLDINGS, INC.; Floors N More, LLC, d/b/a Carpets N More; and Steve Chesin, Respondents.
    No. 74754
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    PLASTER DEVELOPMENT COMPANY, INC., Appellant, v. EXPERT AIR CONDITIONING & HEATING, INC., Respondent.
    No. 72342
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    James R. LAFRIEDA; and Ellen A. LaFrieda, Appellants, v. Nancy A. GILBERT, an Individual, Respondent.
    James R. LaFrieda; and Ellen A. LaFrieda, Appellants, v. Nancy A. Gilbert, an Individual, Respondent.
    James R. LaFrieda; and Ellen A. LaFrieda, Appellants, v. Nancy A. Gilbert, an Individual, Respondent.
    No. 73888 No. 74565 No. 74942
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    AFFIRMED.


text:
    Delbert Charles COBB, Appellant, v. James DZURENDA, Director of Nevada Department of Corrections ; the State of Nevada Department of Corrections; Core Civic ; Saguaro Correctional Center ; and T. Thomas, Warden, Respondents.
    No. 77986
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    Frederick Omoyuma SILVER, Appellant. v. Candice Katie TOWNER, Respondent.
    No. 78005
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    Mark ADAMS, Appellant, v. Katrina HERRLING, Respondent.
    No. 77743
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    Thomas Alan CARR, Appellant, v. Michelle Leandra CARR, Respondent.
    No. 76875
    Supreme Court of Nevada.
    FILED FEBRUARY 27, 2019
    DISMISSED.


text:
    GREEN TREE SERVICING LLC, Appellant, v. SFR INVESTMENTS POOL 1, LLC, a Nevada Limited Liability Company, Respondent.
    No. 71248
    Supreme Court of Nevada.
    FILED FEBRUARY 27, 2019
    AFFIRMED.


text:
    RJRN HOLDINGS, LLC, a Domestic Limited Liability Company, Appellant, v. DITECH FINANCIAL LLC, f/k/a Green Tree Servicing LLC, a Foreign Limited Liability Company, Respondent.
    No. 76442
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    Dismissed.


text:
    Delbert Marshall GREENE, Appellant, v. The STATE of Nevada, Respondent.
    No. 78014
    Supreme Court of Nevada.
    FILED FEBRUARY 26, 2019
    DISMISSED.


text:
    NEVADA MILLING & MINING LLC, Appellant, v. CLARK COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.
    Nevada Milling & Mining LLC, Appellant, v. Clark County Board of County Commissioners, Respondent.
    No. 74312 No. 75086
    Supreme Court of Nevada.
    FILED MARCH 05, 2019
    Dismissed.


text:
    RJRN HOLDINGS, LLC, a Nevada Limited Liability Company, Appellant, v. DITECH FINANCIAL, LLC, Respondent.
    No. 77177
    Supreme Court of Nevada.
    FILED MARCH 4, 2019
    Dismiss.


text:
    LN MANAGEMENT LLC SERIES 100 EL CASTILLO, Appellant, v. DITECH FINANCIAL LLC, f/k/a Green Tree Servicing LLC, Respondent.
    No. 77891
    Supreme Court of Nevada.
    FILED MARCH 4, 2019
    Dismiss.


text:
    SHAC, LLC, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Linda Marie Bell, District Judge, Respondents, and Lily Shepard; Jane Doe Dancer I; Jane Doe Dancer IV; and Jane Doe Dancer V, Individually on Behalf of Similarly Situated, Real Parties in Interest.
    No. 75888
    Supreme Court of Nevada.
    FILED FEBRUARY 28, 2019
    DENIED.


text:
    Mark S. OBERMEYER, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Stefany Miley, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
    No. 78194
    Supreme Court of Nevada.
    FILED MARCH 6, 2019
    DENIED.


text:
    Anthony Edward PETTY, Appellant, v. The STATE of Nevada, Respondent.
    No. 76491
    Supreme Court of Nevada.
    FILED MARCH 6, 2019
    AFFIRMED.


text:
    Nicole Gabrielle COTE, Appellant, v. The STATE of Nevada, Respondent.
    No. 72214
    Supreme Court of Nevada.
    FILED MARCH 05, 2019
    VACATED. REMAND.


text:
    Joel BURKETT, Appellant, v. Renee BAKER, Warden, Respondent.
    No. 72372
    Supreme Court of Nevada.
    FILED MARCH 05, 2019
    Affirm.


text:
    Juan Deleon MANNING, an Individual, Appellant, v. The STATE of Nevada; Sandra K. Digiacomo, Official Capacity ; Sandra K. Digiacomo, Individual Capacity ; Steven S. Owens, Official Capacity ; and Steven B. Wolfson, Official Capacity, Respondents.
    No. 77133
    Supreme Court of Nevada.
    FILED MARCH 08, 2019
    DISMISSED.


text:
    Norman MULLET, Petitioner, v. Brian WILLIAMS, Warden, Respondent.
    No. 78164
    Supreme Court of Nevada.
    FILED MARCH 6, 2019
    DENIED.


text:
    Gene Anthony ALLEN, Petitioner, v. The STATE of Nevada, Respondent.
    No. 78170
    Supreme Court of Nevada.
    FILED MARCH 6, 2019
    DENIED.


text:
    Jose BANDA, Petitioner, v. The State of Nevada DEPARTMENT OF CORRECTIONS, Respondent.
    No. 78215
    Supreme Court of Nevada.
    FILED MARCH 6, 2019
    DENIED.


text:
    Donna J. JOHNSON, an Individual; and Build Design Concepts, Inc., a Nevada Corporation, Appellants, v. Heidi PUTZE, an Individual; and Map 4, LLC, a Nevada Limited Liability Company, Respondents.
    No. 77459
    Supreme Court of Nevada.
    FILED MARCH 08, 2019
    Dismissed.


text:
    Donald Edward MCCALLISTER, Appellant, v. The STATE of Nevada, Respondent.
    No. 76869
    Supreme Court of Nevada.
    FILED MARCH 08, 2019
    DISMISSED.


text:
    Erick Marquis BROWN, Appellant, v. Brian SANDOVAL; Governor of the State of Nevada; and Steven B. Wolfs on, Clark County District Attorney, Respondents.
    No. 77807
    Supreme Court of Nevada.
    FILED MARCH 08, 2019
    DISMISSED.


text:
    In the MATTER OF Parental Rights as to A.M.K. and B.D.C.K., Minor Wards.
    Rachel R. R., Appellant, v. State of Nevada Department of Family Services; A.M.K, and B.D.C.K., Minor Wards, Respondents.
    No. 75067
    Supreme Court of Nevada.
    FILED MARCH 08, 2019
    DISMISSED.


text:
    Anthony D. JOHNSON, Appellant, v. The STATE of Nevada, Respondent.
    No. 78185
    Supreme Court of Nevada.
    FILED MARCH 09, 2019
    DISMISSED.


text:
    Steven Christopher GAZLAY, Appellant, v. The STATE of Nevada, Respondent.
    No. 77961
    Supreme Court of Nevada.
    FILED MARCH 08, 2019
    DISMISSED.


text:
    Kathy Carlene STEELE, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE as Successor by Merger TO LASALLE BANK NATIONAL ASSOCIATION as Trustee for EMC Mortgage Loan Trust 2005-A, Mortgage Laon Pass-Through Certificates, Series 2005-A, Respondent.
    No. 78111
    Supreme Court of Nevada.
    FILED MARCH 08, 2019
    DISMISSED.


text:
    Robert William ELLIOTT, Appellant, v. The STATE of Nevada, Respondent.
    No. 77921
    Supreme Court of Nevada.
    FILED MARCH 8, 2019
    DISMISSED.


text:
    KAL-MOR-USA, LLC, a Nevada Limited Liability Company, Appellant, v. DITECH FINANCIAL LLC, f/k/a Green Tree Servicing LLC, a Foreign Limited Liability Company, Respondent.
    No. 77493
    Supreme Court of Nevada.
    FILED March 4, 2019
    Dismiss.