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Robert M. Braach and Dawn Braach v. Missoula County Clerk and Recorder

February 27, 2013


APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 11-830 Honorable Edward P. McLean, Presiding Judge

The opinion of the court was delivered by: Mike McGRATH

Submitted on Briefs: December 19, 2012

Decided: February 26, 2013



Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Missoula County appeals from the District Court's Findings of Fact, Conclusions of Law and Order, filed February 22, 2012. We affirm.

¶3 In 1997 Robert and Dawn Braach bought a house on a tract of land in Missoula County, described in a deed recorded by Missoula County as Lot 16 of U. S. Government Survey No. 2, Sec. 30, Twp. 13 N., R. 19 W. During 2000 they obtained approval from Missoula County for a "subdivision for lease or rent" allowing them to build a rental unit on the property.*fn1 In November 2001 the Braachs applied for and obtained approval from Missoula County to use a portion of their property as security for a construction loan to build the rental unit, as provided by § 76-3-201, MCA (2001). In January 2002 the Braachs had the property surveyed at the request of the lender and filed certificate of survey (COS) 5235 with Missoula County.*fn2 COS 5235 depicted the Braachs' entire lot, but separately depicted "Tract 1" as the portion of the property surveyed for mortgage security. The remaining portion of the Braachs' property that was not intended for use as mortgage security is referred to as the remainder. Before they could build a rental house on Tract 1 Robert Braach became seriously ill with cancer and the project was postponed until 2005.

¶4 In 2005 the Braachs formed a joint venture with a house builder, transferred an interest in Tract 1 to the builder by quitclaim deed, and recorded the deed with Missoula County. The joint venture borrowed money using Tract 1 as collateral, and recorded the construction mortgage with Missoula County. The joint venture built the house on Tract 1, and the Braachs sold the house and Tract 1 to third parties in 2006. The joint venture house was deeded to the buyers as Tract 1 of COS 5235, and Missoula County recorded the deed. Missoula County had separately taxed Tract 1 and the remainder since the Braachs recorded COS 5235. After the 2006 sale of Tract 1, the County separately billed the new owners for the property taxes on Tract 1 and the Braachs for the taxes on the remainder property.

¶5 In 2011 the Braachs decided to sell their house on the remainder portion of their property, and accepted an offer from a purchaser. The Braachs engaged a title insurance company, which questioned whether Missoula County would allow the sale of the property. The Missoula County Attorney's office advised the County Clerk and Recorder to not record a deed attempting to transfer any portion of COS 5235. Missoula County took the position that the Braachs' remainder property shown in COS 5235 was not an independent tract of land, but that it would allow a deed to be recorded if the Braachs obtained a court order. The Braachs negotiated with the prospective buyers for an extension of the closing of the sale until June 30, 2011.

¶6 On June 27, 2011, the Braachs obtained a writ of mandamus from the District Court ordering Missoula County to record the deed to consummate the property sale. On June 30, 2011, the County moved the District Court to conduct further proceedings and to allow it to respond to the Braachs' application for the writ of mandamus. The District Court received motions and briefs and conducted an evidentiary hearing on December 6, 2011.

¶7 Pursuant to the writ the Braachs recorded a deed transferring the property from Robert Braach and Dawn Braach to Dawn Braach. The County took the position that the writ applied only to that transaction; that no further deeds would be recorded concerning either Tract 1 or the remainder depicted on COS 5235; and that the County would require a court order prior to recording any other deed. The potential buyers were told that if they bought the Braachs' property they could not later sell it without a court order, and the sale of the remainder portion of the property did not take place. The County did not require review under the Subdivision and Platting Act and did not require any survey. The County's only express requirement was that a court had to approve the recording of any deed transferring any of the property depicted on COS 5235.

ΒΆ8 Prior to the December 2011 hearing, Missoula County requested that Braachs' attorney withdraw from the case based upon an asserted conflict of interest because she once worked as a Deputy Missoula County Attorney. The Braachs' attorney declined to withdraw and responded with an analysis of her position. In October 2012 Missoula County filed a complaint against the Braachs' attorney with the Office of Disciplinary Counsel (ODC), raising the issue of the perceived conflict. The County subsequently filed ...

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