source: Caselaw Access Project

author: JUSTICE REGNIER JUSTICE LEAPHART, JUSTICE NELSON

license: Public Domain

text:
    IN RE THE WAGE CLAIM OF SHARON LANGAGER, Claimant, Respondent, and Cross-Appellant, v. CRAZY CREEK PRODUCTS, INC., Respondent, Appellant, and Cross-Respondent.
    No. 97-179.
    Submitted on Briefs December 11, 1997.
    Decided March 3, 1998.
    1998 MT 44.
    55 St.Rep. 169.
    287 Mont. 445.
    954 P.2d 1169.

      JUSTICE LEAPHART specially concurs.
    JUSTICE NELSON specially concurs and dissents, joined by JUSTICES GRAY and TRIEWEILER.
    For Appellant: Kent E. Young, Attorney at Law, Red Lodge.

      For Respondent: Sharon Langager, Pro Se, Roberts.
    For Intervenor State of Montana: Robert Campbell, Legal Services, Department of Labor and Industry, Helena.
   JUSTICE REGNIER

delivered the Opinion of the Court.

¶1 On April 24,1996, claimant Sharon Langager filed an action in the District Court for the Thirteenth Judicial District in Carbon County, seeking judicial review of an order issued by the Department of Labor and Industry’s Board of Personnel Appeals. The order denied Langager’s request that her employer, Crazy Creek Products, Inc., be required to compensate her for two weeks of unused vacation time. On December 27, 1996, the District Court issued its order reversing the decision of the Board of Personnel Appeals, and granting a judgment in Langager’s favor and against Crazy Creek in an amount equal to one week of vacation pay plus penalties. It is from this order that Crazy Creek appeals, and Langager cross-appeals. For the reasons discussed below, we reverse.

¶2 We find the following issues dispositive on appeal:

¶3 1. Did the District Court err in concluding that Crazy Creek’s personnel manual did not apply to Langager and thus did not alter the terms of her employment?

¶4 2. Did the Board of Personnel Appeals err in concluding that Langager was not entitled to vacation pay pursuant to the terms of Crazy Creek’s personnel manual?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Langager began working for Crazy Creek on June 3, 1992, at which time Crazy Creek had a verbal policy regarding vacation time pursuant to which each employee was entitled to one week of paid vacation upon completion of one full year of employment. The verbal policy additionally provided that an employee would earn one week of paid vacation after completing each succeeding year of employment. For eligible employees to take advantage of accrued vacation, Crazy Creek required only that they provide the company with thirty-days’ notice.

¶6 Langager continued to work for Crazy Creek until June 6,1994. In February 1994, several months prior to Langager’s separation, Crazy Creek adopted a written manual of Employment Benefits and Policies For All Personnel (personnel manual). The personnel manual modified the company’s policy with respect to paid vacation, providing specifically as follows:

Vacation: CCP provides one week paid vacation per year after the completion of the first year of employment (1st anniversary date). After the completion of the second year of employment (2nd anniversary date) CCP will provide two weeks paid vacation per year. Employees must use their vacation within the year after it is earned. Vacation does not carry over from year to year. (ie. At the end of the first year an employee has one week of paid vacation accrued. Vacation must be taken before the end of the second year - 2nd anniversary date.) Vacation must be used all at once in consecutive days.
If a company holiday falls within the vacation period it will be considered as a paid holiday and not vacation time. This day of vacation can be used either at the beginning or the end of the vacation time.
An employee must work the regularly scheduled work days before and after the paid vacation period in order to be eligible to receive vacation pay.
Vacations are allowed on a first come first served basis. In the event more than one employee requests the same days as another, management reserves the right to deny the second request received at their discretion.
Requests for vacation should be made at least 30 days prior to the time requested. Please plan ahead.

¶7 Crazy Creek held a meeting on February 3,1994, during which it provided each of its employees, including Langager, with a copy of the new personnel manual. On February 8, 1994, Crazy Creek convened a second meeting, at which Langager was present, for the purpose of discussing the personnel manual. In February 1994, following distribution of the personnel manual, Langager asked for and received permission to take her two weeks of vacation in late June of that year.

¶8 In early June 1994, Langager secured other employment. Thus, on June 6,1994, Langager provided Crazy Creek with notice that she intended to quit her job two weeks later, at the start of her scheduled vacation. Upon learning of Langager’s plans, however, the Crazy Creek manager informed her that she would not receive any vacation pay if she did not return to work following her vacation. In response, Langager opted to terminate her employment effective June 6,1994, and thus did not work her regular shift either prior to or following her scheduled vacation period.

¶9 Crazy Creek did not provide Langager with two weeks of vacation pay following her separation from the company. Thus, on July 5, 1994, Langager filed a wage claim with the Montana Department of Labor and Industry (DOL), claiming entitlement to $520 in vacation pay. On July 28, 1994, DOL compliance specialist Jim Dobbins authored a written determination in which he ruled that Crazy Creek owed Langager two weeks of vacation pay, in an amount of $520, along with penalties pursuant to § 39-3-206, MCA.

¶10 Crazy Creek subsequently requested a hearing, which was conducted telephonically by DOL hearing officer Stan Gerke on June 1,1995. On October 13,1995, the Hearings Bureau issued its findings of fact, conclusions of law, and order in which it ordered that Crazy Creek pay Langager $520 for two weeks of earned vacation, as well as $572 in penalties pursuant to § 39-3-206, MCA.

¶ 11 Crazy Creek appealed to the DOL Board of Personnel Appeals, which issued its findings of fact, conclusions of law, and order on March 25,1996. The Board of Personnel Appeals reversed the hearing officer’s decision, concluding that because Langager did not work the shifts prior to and after her vacation period, she did not qualify for vacation pay pursuant to the terms set forth in Crazy Creek’s personnel manual. The Board of Personnel Appeals thus held that Crazy Creek did not owe Langager the vacation pay to which she claimed entitlement.

¶12 Langager, actingpro-se, chose to appeal the Board of Personnel Appeals’ decision and filed a petition for judicial review in District Court on April 24, 1996. On June 3, 1996, the DOL filed a motion to intervene, which the District Court granted in an order dated June 26, 1996. On December 27, 1996, the District Court issued an order reversing the Board of Personnel Appeals’ determination that Langager was not entitled to vacation pay. The District Court instead concluded that Crazy Creek’s personnel manual did not apply to Langager, and that she was entitled to recover one week of vacation pay pursuant to the company’s prior verbal vacation policy, as well as penalties. Crazy Creek filed a notice of appeal on February 21,1997, and Langager filed a notice of cross-appeal on March 6, 1997.

DISCUSSION

¶13 A district court must review an administrative agency’s findings of fact to determine “whether the findings are clearly erroneous in view of the reliable, probative and substantial evidence in the whole record.” State Personnel Div. of Dep’t of Admin. v. Board of Personnel Appeals, Div. of Dep’t of Labor and Industry (1992), 255 Mont. 507, 511, 844 P.2d 68, 71 (citing Department of Revenue v. United Parcel Service, Inc. (1992), 252 Mont. 476, 482, 830 P.2d 1259, 1263); see also § 2-4-704, MCA. Furthermore, the district court will uphold an agency’s conclusion of law “if the agency’s interpretation of the law is correct.” State Personnel Division of Dep’t of Admin., 255 Mont. at 511, 844 P.2d at 71 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). We in turn employ the same standards when reviewing the district court’s decision, and must accordingly determine whether an agency’s findings of fact are clearly erroneous and whether its conclusions of law were correct. See Swan Corp. v. Department of Revenue (1988), 232 Mont. 210, 213, 755 P.2d 1388, 1390.

ISSUE 1

¶ 14 Did the District Court err in concluding that Crazy Creek’s personnel manual did not apply to Langager and thus did not alter the terms of her employment?

¶15 In its order reversing the decision of the Board of Personnel Appeals, the District Court ultimately concluded that the paid vacation policy contained in Crazy Creek’s written personnel manual did not apply to Langager, but that the terms of her employment were instead governed by the verbal vacation policy in effect at the time she began working for Crazy Creek in June 1992. In so concluding, the court relied upon our decision in Gates v. Life of Montana Ins. Co (1982), 196 Mont. 178, 183, 638 P.2d 1063, 1066, in which we held that “[a]n employee handbook distributed after the employee is hired does not become a part of that employee’s contract.” In Gates, we concluded that an employee handbook distributed two years after the plaintiff was hired “constituted a unilateral statement of company policies and procedures” and that it could not have modified the employee’s contract “because there was no new and independent consideration for its terms” and because “its terms were not bargained for.” Gates, 196 Mont. at 183, 638 P.2d at 1066.

¶16 In the present case, the court noted that Crazy Creek had adopted its personnel manual long after Langager was hired, and reasoned that because “[t]he parties do not argue and the record does not reflect that the new terms were bargained for, nor that there was new and independent consideration,” the “new manual does not constitute a modification of the terms of the claimant’s employment.” The court thus concluded the verbal vacation policy in effect at the time Langager was hired controlled the present case.

¶17 The court noted that, pursuant to Crazy Creek’s verbal policy, Langager became eligible for one week of paid vacation upon completion of her second year of employment, and that to take advantage of that accumulated vacation she had only to put in her request for vacation at least thirty days in advance. The court observed that Langager had met the thirty-day requirement, and thus held she was entitled to receive one week of vacation pay pursuant to the provisions of the verbal vacation policy, but not the two weeks of vacation pay to which she claimed entitlement. Because the court concluded that Crazy Creek’s written personnel manual did not apply to Langager, whether or not she had worked the shifts prior to and following her scheduled vacation was of no ultimate consequence to the court’s analysis.

¶18 On appeal, Crazy Creek first argues the District Court erroneously exceeded the proper scope of its review when it found that the administrative record “does not reflect that the new terms were bargained for nor that there was new and independent consideration” and accordingly concluded that “the vacation policy applicable to [Langager] is the verbal policy in place at the time she began her employment at Crazy Creek Products, Inc.” Crazy Creek argues that the administrative record contains no specific findings with respect to the presence of bargained for exchange or new and independent consideration, and thus suggests the court erroneously substituted its own judgment for that of the agency, and reached a legal conclusion with respect to the applicability of Crazy Creek’s personnel manual based upon assumed facts about which there existed no specific agency findings. Crazy Creek points to § 2-4-704, MCA, and asserts the District Court was without statutory authority to reverse the Board of Appeals’ decision as it did, and that its only option was to remand the case for additional findings on the questions of bargained for exchange and new consideration.

¶19 Crazy Creek next argues that, even if the court was acting within the scope of its reviewing authority, it erred in determining that the administrative record contained no evidence of bargained for exchange and new consideration, and in concluding that Crazy Creek’s personnel manual thus did not apply to Langager. Instead, Crazy Creek argues that the administrative record contains sufficient evidence of bargained for exchange and new consideration to support the conclusion, implicit in the Board of Appeal’s decision denying Langager’s request for vacation pay, that Crazy Creek’s personnel manual effectively modified the terms of Langager’s employment.

¶20 Following a review of the administrative record, we note that this case is factually distinguishable from the Gates case, and determine the elements of bargained for exchange and independent consideration are indeed present. In Gates, a former employee brought an action for wrongful discharge against her employer, asserting in part that her employer “breached the contractual terms of her employment as set forth in [an] employee handbook.” Gates, 196 Mont. at 183, 638 P.2d at 1066. We held that where the employer had merely distributed the handbook two years after the plaintiff was hired, there was no new and independent consideration for its terms and its terms were not bargained for. Gates, 196 Mont. at 183, 638 P.2d at 1066. In the present case, however, the administrative record indicates that Crazy Creek not only distributed its personnel manual to each employee, but additionally convened a second meeting on February 8, 1994, during which it asked if any employees had questions regarding the provisions of the manual. That Langager not only received a copy of the manual, but also attended this second meeting during which the employer asked for input from its employees, indicates the manual’s terms were sufficiently bargained for. Moreover, Langager continued to work for Crazy Creek, thereby supplying the necessary consideration.

¶21 Based on the foregoing, we hold the District Court erred in finding no evidence of bargained for exchange and new consideration under the circumstances of this case, and hold the court consequently erred in concluding Crazy Creek’s personnel manual did not apply to Langager. Because the record as a whole contains substantial evidence indicating that the terms of the personnel manual were bargained for, and that there was new and independent consideration, we conclude that remand for additional findings is unnecessary and that the District Court did not exceed the proper scope of its review.

ISSUE 2

¶22 Did the Board of Personnel Appeals err in concluding that Langager was not entitled to vacation pay pursuant to the terms of Crazy Creek’s personnel manual?

¶23 Having determined that Crazy Creek’s personnel manual did in fact apply to Langager, we must reach that question not addressed by the District Court and determine whether the Board of Personnel Appeals erred in concluding Langager was not entitled to recover two weeks of vacation pay. We review an agency’s conclusion of law to determine whether it is a correct interpretation of the law. See, e.g., State Personnel Div. of Dep’t of Admin., 255 Mont. at 511, 844 P.2d at 71.

¶24 In a 1949 opinion, which remains valid authority for the resolution of vacation pay disputes, the Attorney General concluded that “vacation pay which has been earned and is due and owing must be considered in the same category as wages and is collectable in the same manner and under the same statutes as are wages.” 23 Op. Att’y Gen. 151, 153 (1949); See generally, Morris v. C.C. Communications Corp. (1977), 175 Mont. 23, 571 P.2d 1163. The parties to the present action do not dispute the fact that Montana law recognizes vacation pay as a wage, and do not take issue with the following conclusions by the Board of Personnel Appeals:

Employers are under no legal obligation to provide employees with a paid vacation. The decision to grant paid vacations to employees is left to the discretion of an employer. Although there is no legal obligation on the part of an employer to provide a paid vacation, once the decision is made to grant a paid vacation, the employer is obligated to pay that which is earned and due and owing.

¶25 Crazy Creek correctly identifies the critical question on appeal as whether Langager has actually earned the paid vacation to which she claims entitlement, and whether Crazy Creeks is thus “obligated to pay that which is earned and due and owing.” Faced with the similar question of whether vacation pay is due and owing under a given set of circumstances, other courts have recognized that “[a]n employer is free to set the terms and conditions of employment and compensation and the employee is free to accept or reject those conditions.” Rowell v. Jones & Vining, Inc. (Me. 1987), 524 A.2d 1208, 1211. See also Roberts v. Public Finance Co. (Or. 1983), 662 P.2d 330, 332 (similarly recognizing that “[a]n employer is free to set the terms and conditions of the work and of the compensation and the employee may accept or reject those conditions.”).

¶26 Thus, to determine whether vacation pay is due and owing in the present case, we must look to the terms of the employment contract as set forth in Crazy Creek’s personnel manual. See, e.g., Roberts, 662 P.2d at 332 (recognizing that“[t]he employment contract itself will control the employee’s right to vacation.”). In its decision denying Langager’s request for vacation pay, the Board of Personnel Appeals evaluated the requirements set forth in Crazy Creek’s personnel manual and concluded that Langager “had not yet earned her vacation pay and is not entitled to recover the wages claimed for vacation pay.” In so concluding, the Board of Personnel Appeals reasoned that Langager “did not fulfill the requirements delineated by the employer to qualify for vacation pay” because she did not comply with the personnel manual’s requirement that she “work both the day prior to and the day after taking vacation.” Thus, the Board of Personnel Appeals ultimately held that, “[b]ecause of the failure of claimant to fulfill the contractual prerequisite to vacation pay, she is not entitled to vacation pay.”

¶27 Review of Crazy Creek’s personnel manual reveals a number of “contractual prerequisites” to an employee’s entitlement to vacation pay. For example, Crazy Creek requires that each employee work for at least one year before accruing any paid vacation. Crazy Creek’s personnel manual additionally requires that, to take advantage of accrued vacation, employees must take vacation in consecutive days within the next calendar year, request vacation thirty days in advance, and work their regularly scheduled shifts both before and after a scheduled vacation. In light of these provisions, Crazy Creek argues that employees do not earn paid vacation until they comply with the conditions set forth in the company’s personnel manual, including the requirement that they report to work for their regularly scheduled shifts immediately prior to and following a paid vacation period. Crazy Creek asserts, and the Board of Personnel Appeals concluded, that because Langager failed to work her regularly scheduled shifts both prior to and following her scheduled vacation, she never earned any paid vacation, and is not entitled to prevail in the present action.

¶28 Crazy Creek’s personnel manual specifically states that the company “provides one week paid vacation per year after the completion of the first year of employment (1st anniversary date)” and explains that “[a]t the end of the first year an employee has one week of paid vacation accrued” (Emphasis added.) Furthermore, the manual explicitly provides that “[ajfter the completion of the second year of employment (2nd anniversary date) CCP will provide two weeks paid vacation per year.” (Emphasis added.) Thus, in no uncertain terms, Crazy Creek states that it “will provide two weeks paid vacation” to employees who reach their second anniversary date.

¶29 In the present case, it is undisputed that Langager completed her second year of employment with Crazy Creek on June 3, 1994. According to the above-cited portion of Crazy Creek’s personnel manual, Langager had two weeks of paid vacation accrued when she completed the second year of her employment with Crazy Creek on June 3, 1994. Despite the fact that Crazy Creek’s personnel manual explicitly states that the company “will provide two weeks paid vacation” to employees, like Langager, who complete their second year of employment, Crazy Creek argues that because Langager quit her job and therefore failed to comply with the condition that she work the shifts immediately preceding and following her scheduled vacation, she never earned any paid vacation. Implicit in Crazy Creek’s argument is its attempted differentiation between accrued vacation and earned vacation, and its apparent contention that an employee may have accrued two weeks of vacation after working for the company for two years, but not yet earned it. Indeed, pursuant to Crazy Creek’s argument in this case, Langager could not have earned paid vacation until that vacation had come to an end.

¶30 Notwithstanding Crazy Creek’s argument to the contrary, we conclude that vacation pay is earned by virtue of an employee’s labor and once it has accrued, it has by definition been earned. See, e.g., Wolf v. Sam’s Town Furniture, Inc. (N.M. Ct. App. 1995), 904 P.2d 52, 57 (recognizing that “[a]ccrued vacation is based upon vacation time earned ....”); Kistler v. Redwoods Community College Dist. (Cal. Ct. App. 1993), 19 Cal. Rptr. 2d 417, 421 (equating “vacation pay which is to be earned in the future” with vacation pay “which has not yet accrued”). Pursuant to the terms of Crazy Creek’s own personnel manual, and by virtue of her two years of labor for the company, Langager had accrued, or earned, two weeks of paid vacation by the time of her June 3, 1994, second anniversary of employment. We recognize that an employer may, as did Crazy Creek in the présent case, place reasonable restrictions upon the accrual of paid vacation. We conclude, however, that once an employee has accrued paid vacation pursuant to the terms of his or her employment contract, an employer may not then impose conditions subsequent which would, if unmet, effectively divest an employee of that accrued vacation.

¶31 Crazy Creek argues employees only earn paid vacation if they comply with the personnel manual’s additional requirements and take their accrued paid vacation in consecutive days within the next calendar year, request vacation thirty days in advance, and work their regularly scheduled shifts both before and after vacation. Termed conditions precedent by Crazy Creek, these contractual requirements are, in effect, conditions subsequent which do not affect the accrual of paid vacation which occurs, pursuant to the terms of Crazy Creek’s personnel manual, upon each anniversary of employment. Instead, these contractual requirements affect an employee’s ability to take advantage of accrued vacation and, if unmet, divest that employee of accrued vacation. In the present case, the fact that Langager failed to fulfill Crazy Creek’s requirements that she report to work for the shifts immediately preceding and following her vacation effectively divested her of her two weeks vacation already accrued pursuant to the explicit terms of the company’s own personnel manual. Moreover, we note the inherent inconsistency of a vacation policy pursuant to which an employee cannot earn paid vacation until that vacation has come to an end.

¶32 Based on the foregoing, we conclude the Board of Personnel Appeals erred in concluding that Langager was not entitled to recover two weeks of vacation pay from Crazy Creek, and that the District Court similarly erred in concluding Langager was entitled to one week of vacation pay pursuant to Crazy Creek’s verbal vacation policy. We remand to the District Court for a determination of appropriate penalties, if any, pursuant to § 39-3-105, MCA, and § 39-3-206, MCA.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and LEAPHART CONCUR.

JUSTICE LEAPHART,

specially concurring.

¶33 I specially concur in the Court’s holding that vacation pay is earned by virtue of an employee’s labor and once it has accrued, it has been “earned” and cannot be divested by a condition subsequent; e.g., that an employee work the next shift after having taken a vacation. I write to address what I see as the fallacy in the dissent’s position. The dissent argues that the employer is entitled to fashion reasonable requirements pertaining to the earning and using of vacation benefits granted to the employee. I agree to the extent that the employer imposes conditions precedent on the awarding of vacation pay. If, however, as the dissent seems to acknowledge, vacation pay is recognized as the equivalent of a “wage,” then vacation pay, like a wage, cannot be conditioned upon performance of conditions subsequent. We would certainly not, for example, uphold an employer’s policy which provides that an employee will not be paid her wage for the month unless she returns and works the first week of the succeeding month. If the employee works the month of March, she has earned her pay and is entitled to be paid her wage for that month regardless of whether she works at all in April.

¶34 Langager earned her vacation pay when she completed the second year of her employment. The condition subsequent, that she work the shift following her vacation, does not pertain to whether she “earned” the vacation, rather it pertains to whether she will be paid for the vacation she earned. Conditions which purport to divest an employee of that which the employee has earned are not reasonable and should not be upheld.

JUSTICE NELSON

specially concurs and dissents.

¶35 I concur in the Court’s discussion of and in its conclusion that, once earned, vacation pay is a wage collectible in the same manner and under the same statutes as are wages. I also agree that, within the limits imposed by the constitution or by law, an employer is free to set the terms and conditions of employment and compensation and that the employee is free to accept or reject such conditions and compensation. Finally, I agree that the critical question in the case at bar is whether Langager earned the vacation pay to which she claims entitlement. On this question, I would hold that she has not. Rather, I would reverse the District Court and affirm the conclusion of the Board of Personnel Appeals that Langager “did not fulfill the requirements delineated by the employer to qualify for vacation pay” because she did not comply with the personnel manual’s requirement that she “work both the day prior to and the day after taking vacation.” Because Langager did not fulfill this contractual prerequisite, she is not entitled to vacation pay.

¶36 As to issue 1,1 do not see any particular need for our lengthy discussion of Gates v. Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063. In the proceedings below, the parties did not argue whether there was a bargained for agreement with new consideration. Indeed, both Crazy Creek’s and Langager’s position was always that the new agreement did apply. There is no question that Langager accepted the new agreement. She sought to take advantage of it. If she had taken a contrary position, then she could not claim two weeks vacation pay, as that was only payable under the new policy that went into effect after she was hired. Whether there was a bargained for exchange and new consideration under Gates is a non-issue.

¶37 As to issue 2, there is no dispute that, absent a contractual or statutory requirement to the contrary, the decision to grant employees vacation, paid or otherwise, is in the discretion of the employer. Moreover, we appear to be agreed that, in exercising this discretion, the employer is entitled to fashion reasonable requirements and restrictions pertaining to earning and using the vacation benefits granted.

¶38 I part company with the majority at the point it concludes that “in no uncertain terms, Crazy Creek states that it ‘will provide two weeks paid vacation’ to employees who reach their second anniversary date.” That misrepresents Crazy Creek’s vacation policy. In fact, Crazy Creek agreed that it would provide its employees two weeks vacation pay subject to various restrictions and requirements. These included, among others, that “[a]n employee must work the regularly scheduled work days before and after the paid vacation period in order to be eligible to receive vacation pay.” (Italics added.)

¶39 Crazy Creek implemented this policy to benefit its employees by granting them two weeks paid vacation, as opposed to the one week to which they had been previously entitled. Crazy Creek also adopted the new vacation policy to benefit its own business operations by discouraging seasonal turn-over in its work force and by providing incentives for employees to remain in the company’s service.

¶40 In order to “earn” or to become eligible for vacation pay, employees had to comply with the conditions clearly set forth in the employee manual. There is no dispute that Langager knew of the requirements to become eligible for vacation pay; she simply did not want to abide by those. She wanted the benefits of the employer’s agreement to provide vacation pay without any of the concomitant obligations that the agreement imposed upon her. Unfortunately, in agreeing with this tack, the majority has effectively and improperly re-written the employment contract.

In the construction of an instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Section 1-4-101, MCA. See also Talley v. Flathead Valley Community College (1993), 259 Mont. 479, 487, 857 P.2d 701, 705, cert. denied 510 U.S. 1044, 114 S.Ct. 691, 126 L.Ed.2d 658 (1994) (court may not disregard the express language of an employment contract and read into the agreement expectations of employment not supported by the contractual language used by the parties).

¶41 It is for these same reasons that I disagree with Justice Leaphart’s concurrence. He assumes that Langager “earned” her vacation pay merely by completing two years of employment. She did not. The employer defined at what point vacation pay was “earned” and that definition included certain prerequisites with which Langager did not comply. The only way Justice Leaphart’s view can be valid , is to judicially write out of the employee manual the very conditions that Langager agreed to in accepting the new vacation pay policy. Since she never earned vacation pay, she had no wages to claim.

¶42 Furthermore, the majority’s reliance on Wolf v. Sam’s Town Furniture, Inc. (N.M.Ct. App. 1995), 904 P.2d 52, is unavailing. Unlike the case at bar, Wolf did not involve any issue of when, under the terms of a specific written employment policy, vacation time “accrues” or is “earned”. The same is true of Kistler v. Redwoods Community College District (Cal. Ct. App. 1993), 19 Cal. Rptr. 2d 417. While in that case the Court ruled that the employer could not divest the employee of vacation pay already earned (a point with which no one argues), the Court also conceded the obvious — that by specific order or general policy, the employer could bar the accrual of future vacation pay absent compliance with the conditions which the order or policy imposed. Kistler, 19 Cal. Rptr. 2d at 421.

¶43 More to the point is the decision in Sweet v. Stormont Vail Regional Med. Ctr. (Kan. 1982), 647 P.2d 1274, wherein the Court held that the failure of a hospital employee to give two weeks prior notice of termination as required by the handbook precluded any determination that her unused vacation time constituted “earned wages.” As the Court stated:

It is apparent to this court that by the Claimant’s agreement Claimant only became entitled to vacation pay, hence “earned” it, in one of two ways: scheduling time off with pay and continuing her employment, or giving Respondent two weeks prior notice of her intent to resign. The nature of Respondent’s service to the public requires a stable work force and requiring notice or continued employment for entitlement to vacation pay was Respondent’s means of maintaining that work force. The notice requirement for “earning” unused accumulated vacation pay was consciously drafted for this purpose. Claimant’s failure to comply with either of the requirements of her agreement with Respondent prevented her from earning vacation pay.

Sweet, 647 P.2d at 1281 (quoting the trial court’s analysis).

¶44 Similarly, the Court in New Mexico State Labor and Indus. Comm. v. Deming Nat’l Bank (N.M. 1981), 634 P.2d 695, upheld the employer’s right to condition payment of vacation pay on the employee’s compliance with the Bank’s personnel guidelines. Accord Bondio v. Joseph Binder, Inc. (La.Ct.App. 1946), 24 So.2d 398, 401. In Rowell v. Jones & Vining, Inc., (Me. 1987), 524 A.2d 1208, 1211, the Court stated:

An employer is free to set the terms and conditions of employment and compensation and the employee is free to accept or reject those conditions. We see no reason why an employer may not condition the vesting of a benefit right on some event or act in addition to the performance of services, such as continued employment until a given date.

¶45 In the instant case, Crazy Creek, through its employee handbook, set clear and -unambiguous requirements for its employees to earn vacation pay. These conditions were not unreasonable and were designed to benefit both Crazy Creek’s employees and its own business operations. Langager knew the requirements; agreed to the policy; and sought to take advantage of her employer’s vacation benefit package. She was not divested of payment for vacation time which she had earned. Rather, by failing to comply with Crazy Creek’s paid vacation policy, Langager never earned vacation pay in the first place.

¶46 I would reverse the decision of the District Court and remand for an entry of an order affirming the decision of the Board of Personnel Appeals. I dissent from our failure to do so.

JUSTICES GRAY and TRIEWEILER join in the foregoing special concurrence and dissent.


author: CHIEF JUSTICE TURNAGE JUSTICE LEAPHART,

text:
    EDWARD ISERN, a/k/a EDWARD H. ISERN, III, Plaintiff and Appellant, v. KAREN SUMMERFIELD, a/k/a K. SUMMERFIELD, DACE HAWKINSON, B & D PROPERTIES, DANIEL SUMMERFIELD and TRACY SUMMERFIELD, Defendants and Respondents.
    No. 97-402.
    Submitted on Briefs January 15, 1998.
    Rehearing Denied April 9, 1998.
    Decided March 4, 1998.
    1998 MT 45.
    55 St.Rep. 177.
    287 Mont. 461.
    956 P.2d 28.

      JUSTICE LEAPHART dissenting, joined by JUSTICE TRIEWEILER.
    For Appellant: W. Carl Mendenhall, Worden, Thane & Haines, Missoula.
    For Respondents: James A. Bowditch, Milodragovich, Dale, Steinbrenner & Binney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶ 1 In this case, we reverse a decision of the Fourth Judicial District Court, Missoula County, which upheld the validity of a tax deed to real property.

¶2 The issue is whether defects in and omissions from the statutory tax deed process as followed by Missoula County and the Defendants and Respondents deprived Missoula County of jurisdiction to issue the subject tax deed and render the deed void.

¶[3 In 1990, Edward Isern purchased a residence at 4217 Timber-lane in Missoula, Montana. The full legal description of the property is:

Lot 9 in Block 6 of LINCOLNWOOD ADDITION NO. 5, a platted subdivision in Missoula County, Montana, according to the official recorded plat thereof.

Isern failed to timely pay $787.38 in second half taxes on the property for 1991.

¶4 Missoula County held a tax sale of the property in July 1992. There were no bidders. Missoula County continued to assess taxes against the property for the years 1992, 1993, 1994, and 1995. On November 20, 1995, upon payment to the county of $9,460.51 representing delinquent taxes, penalties, interest, and costs, the county assigned a tax sale certificate on the property to “Dace Hawkinson-K Summerfield.” On February 2, 1996, the county issued a tax deed to “Dace Hawkinson & Karen Summerfield.”

¶5 Isern subsequently attempted to redeem the property by tendering a check for the delinquent taxes, penalties, and interest then due, but Missoula County refused to accept his check. Isern filed this action in March 1996, seeking to set aside the tax deed and to quiet title to the property in himself based upon statutory defects, omissions, and deficiencies in the tax deed process used. In addition to Hawkinson and Summerfield, Isern named as defendants other persons or entities which he believed might claim some right or title to the property.

¶6 Following discovery, the parties filed cross-motions for summary judgment. The District Court denied Isern’s motion, and granted the Defendants summary judgment. Isern appeals.

Discussion

¶7 Do defects in and omissions from the statutory tax deed process as followed by Missoula County and the Defendants and Respondents deprive the county of jurisdiction to issue the subject tax deed and render the deed void?

¶8 This Court’s standard of review of a summary judgment is the same as that initially employed by the District Court — whether there exist genuine issues of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P., and Estate of Strever v. Cline (1996), 278 Mont. 165, 170, 924 P.2d 666, 669. In this case, the parties agree there are no issues of material fact.

¶9 Both Montana’s Constitution and the Constitution of the United States provide that no person shall be deprived of property without due process of law. U.S. Const. Amend. XIV, § 1; Art. II, Sec. 17, Mont. Const. In a tax deed case, a citizen’s right to own property is challenged by the government and the assignee of a tax sale certificate, almost always for a payment by the assignee to the government of far less than the property’s full value.

¶10 Notwithstanding the requirements of due process, Defendants and Respondents cite Cullen v. Western Mortgage & Warranty Title Co. (1913), 47 Mont. 513, 525, 134 P. 302, 305, for the proposition that it is not necessary that tax deed proceedings “be criticised with microscopic nicety” or that tax deeds be rejected for “every insignificant departure from verbal precision.” However, in more recent cases than Cullen, this Court has firmly maintained the position that procedural requirements set forth in tax deed statutes must be strictly observed. See, e.g., Lowery v. Garfield County (1949), 122 Mont. 571, 579, 208 P.2d 478, 483 (“[application for a tax deed is a statutory proceeding and every requirement of the statute must be fully complied with”); Hudson v. McDonald (1987), 229 Mont. 426, 431, 747 P.2d 221, 224 (“[l]et the tax deed applicant be aware of [the tax deed statutes], and let him adhere to the letter thereof, particularly as to description of the property, the content of the affidavits and notices, and the need for the determination of occupancy”); Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 447, 872 P.2d 330, 334 (“[i]n recent decisions, we have required that the procedural steps set forth in tax deed statutes be strictly followed”). Even typographical errors in a document may be sufficient grounds to set aside a resúlting tax deed. Tax Lien Services v. Hall (1996), 277 Mont. 126, 133, 919 P.2d 396, 400. We here reaffirm our position that because a property owner’s fundamental interests are at stake in tax deed proceedings, such proceedings demand punctilious compliance with all statutory and procedural requirements.

¶11 The first step in the tax deed process under Montana’s statutory scheme occurs on the third Monday of December and the third Monday of June of each year, when the county treasurer reports to the county clerk and recorder a list of all persons and property then owing taxes. Section 15-16-301, MCA. In Missoula County, the elected offices of county treasurer and county clerk and recorder have been combined into one office. No delinquent list is made in Missoula County as is required under § 15-16-301, MCA. Defendants and Respondents argue that preparing reports as between the treasurer and the clerk and recorder would be redundant and cost prohibitive, where, as here, those offices have been combined. However, failing to follow the statutes cannot be justified by consolidation of elective offices. Notwithstanding consolidation of the offices, there still remain two distinct office functions, separate from each other, although administered by one elected county official.

¶12 Continuing with the statutory tax deed process, after the county clerk and recorder confirms the validity of the delinquent tax list pursuant to § 15-16-305, MCA, the county treasurer must publish or post a notice of pending tax sale. The notice must comply with the requirements set forth at § 15-17-122, MCA, and a copy thereof must be filed with the county clerk pursuant to § 15-17-123, MCA.

¶13 The method of conducting a tax sale is prescribed at § 15-17-211, MCA. Following the sale, and upon receipt from the buyer of all delinquent taxes, penalties, interest, and costs, the county treasurer is to prepare a tax sale certificate containing the information listed at § 15-17-212, MCA. The Missoula County clerk and recorder/treasurer testified by deposition that she does not prepare tax sale certificates for tax sales when Missoula County is the buyer of the property. She did not prepare a tax sale certificate in this case. Nor did Missoula County follow the alternative procedure established at § 15-17-214, MCA, for county purchases of tax deeds. That alternative procedure involves production of a list of all property remaining unsold at the tax deed sale. The Missoula County clerk and recorder/treasurer did not produce such a list. Defendants and Respondents argue that “wasteful and time-consuming paper copies” were “not necessary” because the offices of clerk and recorder and treasurer are combined in Missoula County. Again, this argument does not justify violation of statutory requirements.

¶14 The form for an assignment of a tax sale certificate by the county to a payor of the amount of the delinquent taxes, including penalties, interest, and costs, is provided at § 15-17-323, MCA. The procedure for then issuing a tax deed is set forth at Title 15, Chapter 18, Part 2, MCA. The clerk and recorder must give notice of the pending issuance of a tax deed, by certified mail, return receipt requested, to each interested party at “the address disclosed by the records in the office of the county clerk.” Section 15-18-212(4), MCA. In applying a predecessor statute to § 15-18-212, MCA, this Court has ruled that a county clerk and recorder must seek addresses “easily ascertainable” in county records. Yellowstone Inv. and Dev. Co. v. Yellowstone County (1982), 201 Mont. 290, 297, 654 P.2d 508, 512.

¶15 In this case, the correct address of property owner Isern was easily ascertainable from the records of Missoula County. The county assessor’s office had received notice of Spokane, Washington addresses for Isern in November 1994 and July 1995. The clerk and recorder/treasurer testified by deposition that the county assessor’s office should have provided the new addresses to heroffice. She admitted that the most current address was available to her by simply going across the hall to the county assessor’s office. Yet the clerk and recorder/treasurer’s office sent the notice of pending issuance of a tax deed to Isern at his former Missoula, Montana address on September 15, 1995, months after the newer addresses were in the county’s records.

¶16 Defendants and Respondents contend that under Moran v. Robbin (1993), 261 Mont. 478, 863 P.2d 395, the alleged defects attributable to Missoula County are not relevant to the propriety of the issuance of a tax deed to Hawkinson and Summerfield. Defendants and Respondents claim that Missoula County’s application for a tax deed was abandoned and superseded by their actions in preparing and issuing the notice, proof of notice, and application for tax deed. We disagree. In Moran, we held that because the redemption dates provided in the first notice and the second notice of pending tax deed issuance differed, the second notice controlled and the first notice was deemed abandoned. Moran, 261 Mont. at 483-84, 863 P.2d at 399. That holding does not translate into a blanket removal of the requirement for strict compliance with all tax deed statutes; it relates only to multiple notices with different redemption dates. The interpretation of Moran proposed by Defendants and Respondents would wrongly allow counties and tax deed applicants to totally ignore all prior statutory requirements as long as the final notice was correct.

¶17 The form of a tax deed must be “in substance” as set forth at § 15-18-213, MCA. The form there provided includes a statement that “the property tax lien has not been redeemed by .......... (name of former owner) or any other person entitled to redeem it.” Section 15-18-211(1), MCA, also requires that a tax deed must contain “a statement that the property tax lien was not redeemed during the redemption period provided in 15-18-111.” The tax deed issued in this case contains no language whatsoever addressing this twice-repeated statutory requirement.

¶18 Section 15-18-211(1), MCA, also requires that a tax deed must contain the full legal description of the property. The full legal description of the subject property in this case is set forth above at paragraph 3. An abbreviated description of the property (“SUID # 1862006 Lincolnwood #5-Lot 9 Blk 6”) was used in the tax deed issued to Hawkinson and Summerfield. The tax deed issued by Missoula County in this case did not contain the full legal description as required under § 15-18-211(1), MCA.

¶19 In Hudson, this Court set aside a notice of application for a tax deed that included an improperly abbreviated legal description and no identification of the county where the property was located. We reasoned that by failing to comply with statutory requirements the published description was fatally defective. Hudson, 229 Mont. at 431, 747 P.2d at 223-24. The same reasoning applies to a tax deed, particularly since § 15-18-211(1), MCA, specifically requires the “full legal description” in the tax deed.

¶20 The District Court found, without detailed analysis, that the procedural defects in this case were either “minor clerical errors and/or non-substantive deviations of specific statutory language,” or “internal operating procedures and documentation of the County as a result of the County’s present computerized system of record keeping.” The court effectively concluded that none of the defects affected Isern’s due process rights. We disagree. Our case law has established that tax deed statutes must be strictly followed. Where, as here, failure to follow statutory requirements has been clearly established, we must conclude that due process rights have been abridged. The argument that advances in computerized record keeping justify deviation from the procedures currently prescribed by statute is a matter properly addressed not to this Court, but to the Legislature, with proposals for statutory amendment.

¶21 Given the requirement of strict compliance with statutory procedures for issuing a tax deed, and without passing judgment on the significance of other errors and omissions cited by Isern but not discussed herein, we hold that the errors and omissions discussed above void the subject tax deed issued by Missoula County to Dace Hawkinson and Karen Summerfield. We therefore reverse the summary judgment entered by the District Court. This case is remanded for further proceedings consistent with this Opinion.

JUSTICES GRAY, NELSON, REGNIER and HUNT concur.

JUSTICE LEAPHART,

dissenting.

¶22 Isern appeals to this Court asserting that Montana law requires strict compliance with statutory requirements of the code in issuing tax deeds. This Court has reasoned that

[s]trict compliance with the statutes is required because the owner risks losing his or her real property for the failure to pay the property taxes. Often, very valuable property is lost for a mere pittance. ... “The proceedings are to a large extent ex parte, the owner is an unwilling party, is seldom, if ever, present at the sale, is generally ignorant of it, and the tax almost always bears a very small proportion to the value of the property sold. Upon these considerations it has generally been held that proceedings on tax sales should strictly comply with the statute.”

Moran v. Robbin (1993), 261 Mont. 478, 482-83, 863 P.2d 395 (quoting Rush v. Lewis and Clark County (1908), 36 Mont. 566, 569, 93 P. 943, 944). However, this policy must be considered in light of the State’s interest in the effective collection of property taxes.

¶23 As Respondents assert, Montana relies heavily on revenue received from real property tax assessments. This revenue funds public schools, transportation, and other expenditures necessary for effective operation of the county. To invalidate tax deed proceedings on the purely technical grounds asserted by Isern eviscerates the tax deed process and frustrates a county’s ability to obtain necessary operational revenue.

¶24 The statutory procedure drafted by the legislature and set forth in Title 15 seeks to embody the protections of the United States and Montana Constitutions which provide that no person shall be deprived of property without due process of law. U.S. Const. amend. XIV, § 1; Mont. Const. Art. II, Sec. 17. Due Process in the broad sense requires that “one deprived of his property must be given notice and an opportunity to defend.” Ball v. Gee (1990), 243 Mont. 406, 413, 795 P.2d 82, 86. Title 15 sets forth a standard procedure that is designed to assure that a tax deed will not issue unless the property owner has first been afforded due process of law.

¶25 The Court holds that “[w]here ... failure to follow statutory requirements has been clearly established, we must conclude that due process rights have been abridged.” However, I agree with Respondents that, in determining the validity of a tax deed, the ultimate question to be resolved is whether the property owner (Isern) was deprived of his property without due process of law. In other words, did the slight deviations from the Title 15 procedure necessarily deprive Isern of his property without due process of law? In blindly requiring strict compliance, the majority ignores the fact that, despite technical discrepancies, Isern received due process, that is, both notice and an opportunity to defend (to redeem).

¶26 Realizing that the strict compliance rule essentially made the issuance of tax titles impossible thereby hampering the state’s ability to collect taxes, the Supreme Court of Florida responded by characterizing some statutory tax deed provisions as directory and some as obligatory depending on their due process ramifications. See Dawson v. Saada (Fla. 1992), 608 So.2d 806. Likewise, Indiana requires strict compliance with essential procedures, but allows substantial compliance with procedures that do not effect due process rights. See Ind. Code § 6-1.1-25-16 (1997); see also Anton v. Davis (Ind. App. 1995), 656 N.E.2d 1180. This Court, however, has strayed from its holding that “[e]very essential and material step required by the tax deed statutes must be strictly followed,” Moran, 863 P.2d at 398 (emphasis added) (citing Stanford v. Rosebud County (1991), 251 Mont. 128, 134, 822 P.2d 1074, 1077-78), in favor of a rule requiring strict compliance with all steps of the statutory process.

¶27 The Court, in support of its rule of absolute strict compliance, characterizes Tax Lien v. Hall as standing for the proposition that even typographical errors in a document may be sufficient grounds to set aside a resulting tax deed. In Hall, the typographical error was in the description of the property in a published notice. In invoking Hall, the Court fails to acknowledge that Hall was denied notice and thus, due process, because the typographical error made it impossible to identify the property. This is a stark contrast to the present case in which Isern has not alleged prejudice or denial of his right to due process resulting from the “errors” in the tax deed process. He alleges only that Respondents and the county failed to comply with all the technicalities of the tax deed process irrespective of whether they affected his rights to due process.

¶28 This Court has held that a critical element in the process of applying for a tax deed is the giving of notice by the tax deed applicant to the owner of the real property. We have held that “ ‘[t]he giving of notice is jurisdictional; if the legal requirements with respect to notice are not complied with, a county treasurer may not legally issue a tax deed.’ ” Tax Lien v. Hall (1996), 277 Mont. 126, 133, 919 P.2d 396, 400 (quoting Moran, 863 P.2d at 398). Indeed, when this Court has determined that failure to strictly comply with statutory procedures denies a county of jurisdiction to issue a tax deed, the noncompliance has almost exclusively related to the failure toprovide the property owner with proper notice of her rights.

¶29 The agreed facts in this case indicate that on September 15, 1995, the county, in compliance with § 15-18-212, MCA, sent notice of pending tax deed issuance to Isern via certified mail and also published the notice in the Missoulian. This notice stated that Isem’s 36-month period of redemption had expired, notified Isern that his 60-day period of redemption would expire on November 14,1995 and explained that if Isern failed to redeem the property during that time a tax deed would issue. Isern did not respond to the county’s notice. Isern asserts that this notice was deficient because the county did not send the notice to Isern’s Spokane address. The Court agrees, holding that the county had a duty to go across the hall to the to the county assessor’s office to obtain the Spokane address. However, as set forth below, Isern’s argument should fail as he was not denied notice or due process.

¶30 Summerfield purchased the county’s tax lien on November 20, 1995 (5 days after Isern’s redemption period under the county’s notice expired), and on November 28th Summerfield mailed a new notice of pending tax deed issuance to Isern pursuant to § 15-18-212, MCA. This second notice indicated that Isern had yet another 60 days, until January 30, 1996, to redeem the property. This notice was sent via certified mail addressed to Isern and “occupant” at the address of the subject property in Missoula, to Isern at another listed Missoula address and to Isern’s address in Spokane, Washington. Delivery was attempted three times (December 1, 6, and 16). The letter remained unclaimed and was returned to Summerfield on December 22nd. Isern’s wife, however, acknowledged that she and Isern received post office notification of certified letters at their Spokane residence, but refused to claim them.

¶31 As a result of Isern’s failure to acknowledge service at any address of record, Summerfield also elected to notify Isern of the pending tax deed issuance by publication pursuant to § 15-18-212(5), MCA. On December 1st and 8th she published a further Notice to Interested Parties of Pending Tax Deed Issuance in the Missoulian and filed the additional notice with the clerk on December 29th. As a result of Respondents’ notices of issuance of tax deed (via certified mail and publication), Isern received the benefit of an additional 60-day redemption period. Again, he did not choose to redeem the property. Accordingly, on January 31, 1996, Summerfield submitted her application for tax deed to the county. The treasurer issued a tax deed to Summerfield on February 2, 1996. Respondents and the county followed the essential and material steps in applying for and issuing the tax deed.

¶32 The Respondents argue that the second notice was, in effect, an “abandonment” of the county’s notice and should control in accord with this Court’s decision in Moran. In Moran, the purchaser of a tax deed sent notice via certified mail notifying the owner of the pending tax deed issuance. The purchaser elected also to publish the notice. The second, published notice stated a later redemption date than the first notice. This Court determined that the first, certified mail notice was abandoned and the second, published notice and date of redemption controlled. Moran, 863 P.2d at 399. In the present case, the Court rejects Respondents’ reliance on Moran, stating: “That holding [Moran] does not translate into a blanket removal of the requirement for strict compliance with all tax deed statutes; it relates only to multiple notices with different redemption dates.” I agree with Respondents that, under Moran, the notice providing the more generous redemption date supersedes all prior notices. However, even without Moran, Isern has failed to assert any damage, prejudice or violation of due process as a result of the county’s notice. Even assuming that the county’s notice was deficient, Respondents’ subsequent notice gave Isern an additional 60-day redemption period beyond that provided by the county’s notice. Therefore, I would hold that the Respondents’ notice, sent to three addresses of record and published in the Missoulian, satisfied the requirements of § 15-18-212, MCA, and gave sufficient notice to Isern of his right to redeem the property. Isern has not alleged errors that deprived him of due process of law. He does not contest the fact that Respondents sent him notice of the pending tax deed at his Spokane address and that he had more time than allotted by the county’s notice to redeem the property. He asserts only clerical errors that were not of a jurisdictional nature and did not deny him of notice or an opportunity to defend or redeem.

¶33 The Court has taken the strict compliance analysis to a new level by voiding a tax deed absent any showing of the slightest prejudice or denial of due process of law. The result is that a property owner who shirks his tax obligations and thwarts notice by actively avoiding his certified mail may later reclaim the property by finding any insignificant typographical or clerical error.

¶34 I would affirm the District Court’s holding that the numerous errors cited by Isern were nothing more than insignificant clerical errors and slight procedural deviations which did not deny Isern due process of law.

JUSTICE TRIEWEILER joins in the foregoing dissenting opinion of JUSTICE LEAPHART.

      . This is not to say that notice is the only essential and material step in the tax deed process that has due process ramifications. For example, in Ball v. Gee this Court determined that a statutory requirement that property owners make a deposit of back taxes and expenses before asserting their right to quiet title to real property was a violation of their right to due process. Ball v. Gee (1990), 243 Mont. 406, 795 P.2d 82.

      . See, e.g., Tax Lien Services v. Hall (1996), 277 Mont. 126, 919 P.2d 396 (the legal requirements for notice were not met in the process of applying for the tax deed, thus the tax deed is null and void); Sanders v. Yellowstone County (1996), 276 Mont. 116, 915 P.2d 196 (county treasurer’s failure to give interested party required notice of tax deed rendered county treasurer without jurisdiction to issue tax deed); Moran v. Robbin (1993), 261 Mont. 478, 863 P.2d 395 (due to the failure to give proper notice, the treasurer was without jurisdiction to issue a tax deed); Stanford v. Rosebud County (1991), 251 Mont. 128, 822 P.2d 1074 (citing several errors including the fact that an affidavit of notice of an application for a tax deed and an affidavit of notice of tax sale were not filed; therefore, the treasurer did not have proof that the owners had been given notice and did not have jurisdiction to issue the tax deed); Hudson v. McDonald (1987), 229 Mont. 426, 747 P.2d 221 (if proper notice of application for tax deed is not given to the owner of the real property, then the time for redemption continues indefinitely); Kahle v. Smithers (1987), 225 Mont. 452, 733 P.2d 844 (Kahle, who was not given service of process in another state was denied notice of her right to redeem the property); Walters v. Kruse (1986), 219 Mont. 386, 712 P.2d 780 (defective notice of application for a tax deed deprives the county treasurer of jurisdiction to issue the tax deed); Anderson v. Richland (1985), 219 Mont. 60, 711 P.2d 784 (tax deed proceeding was void for reasons that clerk and recorder failed to give notice of application for tax deed to owners of the property).