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.