FT - Blackwell v. Lurie (3/26/2002)

[Riser Adkisson LLP]

Blackwell v. Lurie,
43 P.3d 985 (Mont. 03/26/2002)

Montana Supreme Court

No. 01-474

43 P.3d 985, 2002 MT 53, 2002.MT.0000075

March 26, 2002

ROBERT J. BLACKWELL, LIQUIDATING TRUSTEE OF POPKIN & STERN LIQUIDATING TRUST,
PLAINTIFF AND RESPONDENT,

v.

RONALD U. LURIE, DEFENDANT AND APPELLANT, NANCY LURIE, RYAN LURIE AND
MICHAEL LURIE, AS PARTIES WHOSE PROPERTY INTERESTS ARE AFFECTED BY THE
ORDERS BEING APPEALED FROM, APPELLANTS.

Counsel OF Record: For Appellants: Bryan P. Fay and Christopher R. Angel; Angel Law Firm,
Bozeman, Montana. For Respondent: Philip Walsh; Walsh & McKenna, Bozeman, Montana.

The opinion of the court was delivered by: Chief Justice Karla M. Gray

UNPUBLISHED

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of
Gallatin, The Honorable Mike Salvagni, Judge presiding.

Submitted on Briefs: December 6, 2001

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the
following decision shall not be cited as precedent. It shall be filed as a public document with
the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number
and result to the State Reporter Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.

Ronald U. Lurie, Nancy Lurie, Ryan Lurie, and Michael Lurie appeal from two orders entered by the
Eighteenth Judicial District Court, Gallatin County, relating to Robert J. Blackwell's efforts to
enforce a foreign judgment against Ronald U. Lurie. We affirm.

Blackwell's efforts to collect on a $1.1 million Missouri bankruptcy court judgment against
Ronald U. Lurie have brought the parties before this Court on several occasions. See State ex
rel. Blackwell v. District Court (1997), 282 Mont. 530, 934 P.2d 1041; Lurie v. Sheriff of
Gallatin County (1997), 284 Mont. 207, 949 P.2d 1163 (Lurie I); Blackwell v. Lurie (1997), 284
Mont. 351, 943 P.2d 1318; Lurie v. Blackwell (1997), 285 Mont. 404, 948 P.2d 1161 (Lurie II);
Lurie v. Sheriff of Gallatin County, 2000 MT 103, 299 Mont. 283, 999 P.2d 342 (Lurie III). Here,
the District Court granted a preliminary injunction prohibiting Ronald U. Lurie and Nancy Lurie
from transferring two parcels of real property located in Gallatin County, Montana, pending trial
of Blackwell's fraudulent transfer action against them. The court also extended until November 9,
2004, the period in which Blackwell is entitled to have writs of execution issued on the foreign
judgment which has been filed in Gallatin County. The Luries contend the District Court erred in
issuing both of the above orders. They also argue the court erred in ordering that all the
personal property previously seized by the Gallatin County Sheriff may be sold at a sheriff's
sale to satisfy the judgment against Ronald U. Lurie, with half of the proceeds to be returned to
Nancy Lurie.

Our standard of review of an order granting or denying a preliminary injunction is whether the
district court abused its discretion. Sweet Grass Farms, Ltd. v. Board of County Com'rs of Sweet
Grass County, 2000 MT 147, 20, 300 Mont. 66, 20, 2 P.3d 825, 20 (citation omitted). The remaining
issues on appeal represent questions of law. Consequently, our standard of review is whether the
district court's conclusions are correct. See Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 474-75, 803 P.2d 601, 603.

A preliminary injunction may be granted in any of the five situations described in § 27-19-201,
MCA. The District Court granted Blackwell's application for a preliminary injunction under
subsection (2), finding that it appeared Blackwell will suffer irreparable injury if the
injunction is not granted, and also under subsection (1), finding that it appeared Blackwell was
entitled to relief consisting of restraining the commission of the act complained of. The Luries
challenge the preliminary injunction by contending Blackwell is unable to show he will suffer
irreparable harm or injury if a preliminary injunction is not granted under § 27-19-201(2), MCA,
because the lis pendens which he has filed against their Gallatin County real property will fully
protect him from subsequent purchasers or encumbrancers. They do not challenge the District
Court's finding under, and application of, § 27-19-201(1), MCA, in issuing the preliminary
injunction.

We need not address the Luries' challenge to the preliminary injunction on the grounds set forth
in § 27-19-201(2), MCA. Even if they prevailed on the contention they advance, the District
Court's issuance of the preliminary injunction under § 27-19-201(1), MCA, remains a separate,
independent and unchallenged basis on which to uphold the preliminary injunction. We conclude,
therefore, that the District Court did not abuse its discretion in granting the preliminary
injunction.

The Luries' challenge to the District Court's order extending the period in which Blackwell may
have writs of execution issued is indirect. They point out that the bankruptcy court judgment,
filed in Gallatin County as a foreign judgment, is for a deficiency calculated at $1,121,743, but
that the bankruptcy court ordered the amount is to be reduced if the amount of the deficiency is
ultimately determined to be less. As a result, the Luries claim the exact amount of the
deficiency has not been established and, therefore, no judgment currently exists which satisfies
the § 25-13-301, MCA, requirement that a writ of execution state the amount actually due on the
judgment. We disagree. The bankruptcy court judgment is for a sum certain and the Luries have not
established the occurrence of any condition subsequent obligating Blackwell to seek modification
of the judgment. We hold the District Court did not err in extending the period in which
Blackwell may have writs of execution issued.

In extending the time for obtaining writs of execution, the District Court also specifically gave
Blackwell authority to sell, at sheriff's sale, personal property which has been seized by the
Gallatin County Sheriff. The Luries raise two issues regarding this grant of authority.

First, the Luries contend there must be a judicial determination as to the respective interests
of Ronald U., Nancy, Ryan, and Michael Lurie in the seized property before the sheriff sells that
property. In Lurie III, 15, however, this Court determined property seized in Gallatin County
that was held by both Ronald U. and Nancy Lurie is owned either in joint tenancy or tenancy in
common and is subject to execution. There, Nancy Lurie also claimed that some of the personal
property seized in Gallatin County was acquired by her with her own separate funds. See Lurie
III, 4. We affirmed the District Court's dismissal of Nancy Lurie's claim for conversion and
granted the Gallatin County Sheriff "full summary judgment" on Nancy Lurie's complaint for claim
and delivery. Lurie III, 24. Lurie III is res judicata as to Nancy Lurie and all such personal
property. Michael and Ryan Luriethe adult sons of Ronald U. and Nancy Luriefirst raised their
claims of interest in the property by affidavit dated October 23, 2000. As a result, their claims
are barred by the two-year statute of limitations set forth in § 27-2-207, MCA, which began to
run in November of 1994 when the Gallatin County Sheriff seized the personal property.

The Luries also contend the District Court erred in authorizing the sale of personal property in
which Nancy Lurie has a joint interest with Ronald U. Lurie, with half of the proceeds to be
returned to Nancy. They rely on our statement in Letz v. Letz (1950), 123 Mont. 494, 502, 215
P.2d 534, 538, in which this Court stated that while the undivided interest of a cotenant may be
attached, the attaching officer may sell on execution only the debtor's interest.

Unlike the present case, Letz involved a pre-judgment writ of attachment by the sheriff, not a
writ of execution based on a district court judgment. The Luries cite to no statute or opinion
from this Court prohibiting the District Court from ordering the sale of the personal property in
the Gallatin County Sheriff's possession and the return of one-half of the gross proceeds to
Nancy Lurie. A court has the power to enforce its judgment through any order or writ necessary to
carry the judgment into effect. See Little Horn State Bank v. Stops (1976), 170 Mont. 510, 512,
555 P.2d 211, 212. We hold the District Court did not err in ordering the sale of the personal
property in the Gallatin County Sheriff's possession and the return of half the proceeds to Nancy
Lurie.

Affirmed.

We concur:

PATRICIA COTTER

JIM REGNIER

TERRY N. TRIEWEILER

JIM RICE