Supreme Court: Couple can sell Reserve Street home

2013-02-28T06:00:00Z 2014-08-04T19:09:47Z Supreme Court: Couple can sell Reserve Street home missoulian.com

A unanimous opinion rendered Wednesday by the Montana Supreme Court ordered Missoula County to let Rob and Dawn Braach sell their home on Reserve Street.

The ruling upheld a district court order last year that awarded the Braachs costs and attorney fees, which Rob Braach said Wednesday have reached $80,000.

How it affects other parcels created by mortgage exemptions in the county and across the state before 2003 remains unclear, since the memorandum opinion “shall not be cited and does not serve as precedent,” Chief Justice Mike McGrath wrote.

“My wife and I are obviously delighted and not surprised by the unanimous decision, and the fact that this solves a statewide problem is quite gratifying beyond just our case,” Rob Braach said in an email to the Missoulian.

Missoula County appealed a decision last February by District Court Judge Ed McLean that said the Braachs could legally transfer a tract that was created by mortgage exemption in 2002, before a state legislative amendment clarified that such a transfer was illegal. Mortgage exemptions are pieces of land broken off from larger properties for financing purposes.

Attorneys on both sides expressed uncertainty about the broader ramifications of Wednesday‘s opinion.

“I’ll be interested to see how the county interprets it,” said Colleen Dowdall, who represented the Braachs. “I think essentially the Supreme Court has adopted the decision by the district court that would mean these mortgage parcels would be allowed to be transferred, but Missoula County still has decisions to make.”

That uncertainty is even more disappointing than the failed appeal itself, said Marnie McClain, Missoula County’s chief civil attorney.

She said she, Deputy County Attorney James McCubbin and Clerk and Recorder Vickie Zeier did not make the decision to appeal lightly.

“Nobody wants to waste anybody’s time or energy with an appeal that’s not going to be useful,” McClain said. “We have to think about dollars and cents, too, and time and resources. I think we made a good faith effort to analyze the facts and the law. It’s disappointing that it turned out the way it did.”

“The court says, yep, we’re good with this decision but it’s confined to the specifics of this case,” McClain said. “That makes you want to smack your forehead.”

The opinion came a year and five days after McLean released his ruling in district court on a complaint that named Zeier the defendant. McLean denied the Braachs’ motion to find Zeier in contempt of court for refusing to record their deed after determining she followed protocol by deferring to the county attorney’s office.

“My wife and I were quite shocked that the Clerk and Recorder, based on James McCubbin's advice, decided to appeal the well-reasoned and researched District Court opinion rendered by Judge McClean (sic),” Rob Braach wrote. “At the time it certainly seemed like a bad use of Missoula County taxpayer money and resources and this ruling has upheld our belief.”

Braach said he was “particularly delighted” that the Supreme Court agreed with McLean’s dismissal of the county’s complaint against the role in the case played by Dowdall, a former Missoula County deputy attorney, deeming it a “litigation strategy and without merit.”

McLean wrote that the complaint against Dowdall was “so abhorrent in and of itself to justify the awarding of attorney fees and costs.”

That, said Braach, “sums up very well the situation we were up against.”

Braach is a currently co-defendant in a separate case in U.S. District Court. Steven Sann, his wife Terry, son Nathan and Braach were accused last month by the Federal Trade Commission of engaging in years of “cramming,” or adding unauthorized charges to phone bills across the nation via an array of telecommunications companies.

Reporter Kim Briggeman can be reached at (406) 523-5266 or by email at kbriggeman@missoulian.com.

Copyright 2015 missoulian.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(9) Comments

  1. no12call
    Report Abuse
    no12call - February 28, 2013 12:06 pm
    @MTGUY The Braach's fought off a very poorly contrived system and clearly were correct in doing so. So you question the families character on something completely unrelated? Well Judge Dredd, it's nice to know that due process means nothing to you. You are now accusing him of tax fraud because he his named in a civil suit that has nothing to do with taxes... No evidence and with no reasoning you are judge jury and jailer. I reviewed your other comments on other stories and I can't find one positive statement relating to any subject you have engaged in. I dare you to use your real name and make accusations like you do with your ambiguous MTGUY name. In the real world it's called libel, which if charges were pressed against you would bring you to the exact same civil court. According to your supposed logic, since I have accused you of libel you are clearly guilty right?
  2. david_brown_mt
    Report Abuse
    david_brown_mt - February 28, 2013 7:56 am
    "How it affects other parcels created by mortgage exemptions in the county and across the state before 2003 remains unclear, since the memorandum opinion “shall not be cited and does not serve as precedent,"...

    --- what part of “shall not be cited and does not serve as precedent," does the reporter not understand???
  3. BobbyLee
    Report Abuse
    BobbyLee - February 28, 2013 7:45 am
    Once again a trio of Missoula County workers can waste taxpayer money and will not be held accountable themselves for a single penny of it. What is to stop this nonsense? Only when these workers are held directly accountable for their failings will this ever stop. And they have failed repeatedly!

    Corruption in local government:
    http://en.wikipedia.org/wiki/Corruption_in_local_government
    There are too many similarities between Missoula City/County and this article for it to be a coincidence based upon some idiot's personal 'good faith.' Even if the person does not know it's corruption does not mean they are not corrupt. Enough of this! Combined, many in the City/Council are incompetent fools who need to be held to account for running roughshod over Missoula citizens every time they feel like it. It's as if Missoula promoted a bunch of dumb rednecks to run the county and gave them titles. Oh, that's right, they did.
  4. Sukey
    Report Abuse
    Sukey - February 28, 2013 7:28 am
    This is complicated. Did these people buy a piece of someone's property, and the mortgage bank funded the purchase, but the sellers never applied to subdivide the land, they just broke it off for purposes of this sale. In effect, they subdivided without going through the application process with the county. What a mess, how many of these sales are there? Now that there exists a 2003 law clarifying its illegal, anyone doing this before 2003 will be looked at on a case by case basis since the Supreme Court doesn't want this case cited or used as precedent. Now what does the County do? Braach's self-serving opinion that this solves a "statewide problem" is flat out wrong. This guy took a short cut to buy the land, and somehow prevailed because no statutes existed that made it technically illegal at that time. Interesting that he's a defendant in another legal case with the FTC. The Missoulian made him look like the Flim Flam Man,....What liability do mortgage companies have to repay taxpayers for financing these messes? What about title companies? How do you get clear title to land that's just a piece of a larger parcel?
  5. MTGuy
    Report Abuse
    MTGuy - February 28, 2013 7:22 am
    So Braach seems to be making court decisions a habit. First this house issue...and now the phone cramming scam. He seems to be a real peach. He's a CPA...makes a person wonder how "accurate" his tax returns are.
  6. Barak Nobama
    Report Abuse
    Barak Nobama - February 28, 2013 7:17 am
    It's nice to see justice upheld and to see a bully beaten back. Congratulations to this couple. You should have never had to take it this far. Thank you judge for making the county pay this family for the legal costs incurred.
  7. hellgatenights
    Report Abuse
    hellgatenights - February 28, 2013 4:19 am
    My wife and I were quite shocked that the Clerk and Recorder, based on James McCubbin's advice, decided to appeal the well-reasoned and researched District Court opinion rendered by Judge McClean (sic),” Rob Braach wrote. “At the time it certainly seemed like a bad use of Missoula County taxpayer money and resources and this ruling has upheld our belief.”

    So stickboy Mccubby just cost the county $80k in addition to his costs for pursuing this meritless vendetta. WHEN is the DA going to FIRE this moron? When will the court find him in contempt?

    Something is terribly wrong at the county and I suggest that we begin RECALL elections at once.
  8. It's Just My Opinion
    Report Abuse
    It's Just My Opinion - February 27, 2013 10:22 pm
    James McCubbins once again wasting taxpayer money, costing the county dearly, and greatly affecting innocent citizens with his power grabbing public position. When are the Missoula County Commissioners going to wake up and fire this bum. He would never make it in the real world as he has been nothing but a failure for Ravalli County and now Missoula County!!
  9. GaryTinkSanders
    Report Abuse
    GaryTinkSanders - February 27, 2013 9:09 pm
    Is Missoula County accountable of their actions or does it seem that they like to ride rough shot over us. I would like to know how much money these lawsuits cost us taxpayers.
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