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Harrison v. Harrison

Supreme Court of Montana

March 26, 2019

WILLIAM ("BILL") D. HARRISON and HARRIET ("SHERRIE") A. HARRISON, individually and as husband and wife, Plaintiffs,
v.
THOMAS ("TOM") D. HARRISON and KIMBERLY ("KIM") HARRISON, husband and wife; and LINCOLN ROAD RV PARK, INC., a Montana corporation, Defendants and Counter-Plaintiffs,
v.
WILLIAM ("BILL") D. HARRISON and HARRIET ("SHERRIE") A. HARRISON, individually and as husband and wife, Counter-Defendants. And JON BOUSER, KIMBERLY BOUSER, individually and as husband and wife, ERICK BRODSHO, HEATHER BRODSHO, individually and as husband and wife, GORDON BROWN, LYNDEE BROWN, individually and as husband and wife, PAUL CHATRIAND, TAMRAH CHATRIAND, individually and as husband and wife, KENDALL CUNNINGHAM, ABIGAIL CUNNINGHAM, individually and as husband and wife, REBECCA SMITH EANES, JOSEPH FOWLER, FRANK GONZALEZ, TRACY GONZALEZ, individually and as husband and wife, HEATHER HARRINGTON, ROBERT HOLLIDAY, ZACHARY KOZAK, CHERIE LOFTON, JOSEPH MARINER, RICHARD NEWBY, KRISTEN NEWBY, individually and as husband and wife, ROBIN ROUSE, ALLEN TARYN ROUSE, individually and as husband and wife, IAN STEFFAN, JESSICA STUART, LESIDSAY ZELL, EMILIANO CUAUTEMOC ZELL, individually and as husband and wife, GV75, LLC, a limited liability company, Interveners, Plaintiffs and Appellees,
v.
THOMAS ("TOM") D. HARRISON and, KIMBERLY ("KIM") HARRISON, husband and wife; Defendants and Appellants, and LINCOLN ROAD RV PARK, INC., a Montana corporation, Defendant and Appellee.

          ORDER

         Defendants and Appellants Thomas ("Tom") D. and Kimberly ("Kim") Harrison move this Court to relieve them from an Order of the First Judicial District Court, Lewis & Clark County, requiring them to each post a supersedeas bond in the amount of $35, 000 pursuant to M. R. App. P. 22.

         Pursuant to a partial settlement agreement in the underlying dispute and pertinent to the bond at issue here, after the sale of the only major asset of Lincoln Road RV Park, Inc., Tom and Kim received slightly over $545, 000 of the proceeds, while a Receiver appointed •-by the District Court retained slightly over $34, 000 to complete the corporation's obligations. As per the District Court's order of appointment, when the Receiver determined that the amount retained was insufficient to complete the corporation's obligations, the Receiver sought additional instruction from the District Court. The Receiver noted that obtaining a valid water use permit from the Montana Department of Natural Resources & Conservation (DNRC) had become unexpectedly complex, and an issue of unpaid taxes and penalties had arisen with the Internal Revenue Service.

         In an Order on Receiver's Application for Further Instruction from the Court Regarding Final Action Pending Dismissal of Receiver (Order on Receiver's Application), the District Court ordered that Tom and Kim each pay $25, 000 to the Receiver to be used to pay the ongoing expenses of the corporation. That order is the subject of the present appeal before this Court.

         After the District Court entered its Order on Receiver's Application, the Receiver moved the District Court to require Tom and Kim to each provide a supersedeas bond pursuant to M. R. App. P. 22(1)(a)(ii) during the pendency of this appeal. The District Court granted the motion. In its Order for Appellants to Provide Supersedeas Bond, the court found that neither Tom nor Kim had moved to stay the District Court's Order on Receiver's Application pending appeal, nor had they complied with the court's order to return part of the proceeds of the sale. Because the court retained the power to entertain and rule upon the Receiver's motion to require a supersedeas bond under M. R. App. P. 22(1)(c), the court ordered Tom and Kim to each post a bond in the amount of $35, 000. The court explained, "That number represents the $25, 000 judgment issued by this Court, plus an additional $10, 000 for costs incurred during this appeal."

         Tom and Kim now move for relief from the Order for Appellants to Provide Supersedeas Bond. In support of their motion, they argue that the factual basis for the $25, 000 judgments against them was incorrect because the cost of resolving the water use permit issue is speculative and the tax issue has since been resolved at little or no expense to the corporation. Tom and Kim further argue that the estimate of $10, 000 each for costs on appeal far exceeds a reasonable estimate of such costs. They suggest that the supersedeas bonds should be reduced to $11, 000 each.

         On appeal, we consider only the district court record, including "'the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court. . .." M. R. App. P. (8)(1). Parties on appeal are bound by the record and may not add additional matters in briefs or appendices. State v.J.C, 2004 MT 75, ¶ 25, 320 Mont. 411, 87 P.3d 501 (citation omitted). Here, Tom and Kim attempt to introduce factual allegations that are not of record and are thus beyond the reach of this Court, which is ...


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