No. 87-79

INTHE SUPREMECOURT OF THE STATE OF MONTANA
1987

CARL WEISSMAN & SONS, INC., Plaintiff andAppellant,-vsMARTY PAULSONd/b/aMONTANA FENCE, Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, TheHonorableThomasA. Olson, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
Robert Kolesar,Bozeman,Montana
For Respondent:
A. Michael Salvagni,County Attorney, Bozeman,Montana JamesMcKenna,Deputy County Attorney, Bozeman

Filed: Submitted onBriefs: May 14, 1987 Decided: July 21, 1987



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ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

Plaintiff Carl Weissman & Sons, Inc. appeals the December 15, 1986,order of the Eighteenth JudicialDistrict Court,GallatinCounty, finding storage costs assessed by the Gallatin County Sheriff tobe reasonable. We affirm. On appeal, defendant Paulson is no longer involved in the case. Plaintiff Carl Weissman & Sons, Inc. (Weissman & Sons) contests the Gallatin County Sheriff's assessment of storage costs which eliminated any recovery by Weissman & SonsagainstPaulson. Weissman & Sons originally filed an action in justice court against Paulson for failure to pay the amount due on his account. Weissman & Sons obtained awrit ofprejudgment attachment from the Justice Court directed to a Honda motorcycle owned by defendant Paulson. The sheriff seized the motorcycle March 18, 1986, and arranged for towing and storage by Art's Towing Service. The motorcycle was stored in aheated area of the garage at $5 a day. Weissman & Sons subsequently filed a complaint against Paulson in District Court on May 19, 1986, alleging failure to pay the amount due and owing on his account, $2,210. On June 19, 1986, a Sheriff's Return Showing Defendant Not Found

was filed declaring defendant was unable to be located in Gallatin County. On that same date, attorney forWeissman & Sons filed a summons for publication. Publication occurred June 14, July 1 and 8, 1986. On August 5, 1986,Weissman & Sons filed a request for entry ofdefault, whichwas granted. Subsequently, a motion for default judgmentwas heard before the District Court which was granted August 14, 1986, in the amount of $2,210.92 plus interest, and a civil penalty of $500.Following the entry ofdefault judgment,Weissman & Sons obtained a writ of execution August 27, 1986. A sheriff's sale was held September 24, 1986, at which time the motorcycle was removed from storage and sold for $450. The towing and storage costs amounted to $1,080.00. Weissman & Sons subsequently filed amotion to determine reasonable costs. A hearing on the matter was held October 29, 1986. At the hearing Weissman & Sons introduced evidence that the standard storage cost in Bozeman at a storage warehouse for a motorcycle tobe $18monthly. The testimony did not reveal whether such storage was heated. The Sheriff's Departmentproduced testimony froma towing service operator and from an auto parts store manager that their inside heated storing charges would be $7.50 and $10 a day respectively. The District Court ruled against Weissman & Sons, finding a lack of communicationby Weissman & Sons and that the sheriff erred on the side of keeping the property in an insured, heated storage area. Weissman & Sons appeals and raises the following issues: 1) Whether the Gallatin County Sheriff exceeded his authority in placing property seized pursuant to a writ of prejudgment attachment with a third party keeper without obtaining a court order? 2) Whether a county sheriff, in seizing and storing property pursuant to a writ of prejudgment attachment, is acting as a trustee for all parties to writ of prejudgment attachment? 3) Whether theDistrict Court erred in finding that the storagecostswere reasonable? The first issue raisedby Weissman & Sons iswhether the sheriff violated § 27-18-301,MCA, and § 7-32-2142,MCA, by employing a keeper without first obtaining a court order.Section 27-18-301, MCA, provides that a writ of attachment must direct the sheriff to "attach and safely keep" the defendant's property. Section 7-32-2142, MCA, provides:

For the expense in taking and keepingpossession of and preserving property under attachment, execution, or other process, the sheriff shall receive such sum as the court or judge may order, not to exceed the actual expense incurred. No keepermust receive to exceed $10 per day, and no keeper must be employed without an order of court or be so employed unless the property is of such character as to need the personal attention and supervision of a keeper. No property shall be placed in charge of a keeper if it can be safely and securely stored orwhere there isno reasonable danger of loss.
The record showsWeissman & Sonsdid not raise violation of 5 7-32-2142, MCA, before the District Court and the court did not consider this section inrendering itsdecision. Weissman & Sons filed a motion to determine reasonable costs alleging the sheriffdid not attempt to locate storage at a reasonable price. Weissman & Sons did not raise violation of 

### 5 7-32-2142, MCA, in its affidavit supporting the motion, proposed findings, at the hearing, or in its motion to reconsider. Weissman & Sons contendsthat language in its brief in support of motion to reconsider raised the issue of employment of a keeperby the sheriff without court order. We find no language inWeissman & Sons1briefs or in the hearing transcripts which brought this issue to the attention of the District Court. Therewas no citation of 

### 5 7-32-2142,MCA, nor was the statute mentioned at the hearing

on the motion to reconsider. The District Court found the costs to be reasonable which was the only issue clearly presented to the court. We will not address an issue on appeal which was not presented to the District Court.Chadwick v. Giberson (Mont. 1980), 618 P.2d 1213, 37 St.Rep. 1723.The next issue raised by Weissman and Sons is that the sheriff in seizing property under writ of attachment acts as a trustee to the parties with an interest in the seized property. Weissman & Sons contends that the sheriffviolated his duty as a trustee by failing to secure the cheapest available storage. Weissman & Sons cite Sherlock v. Vinson

(Mont. 1931), 90 Mont. 235, 1 P.2d 71, wherein this Court held the sheriff to be a trustee for the debtor and creditor in conducting an execution sale. We are not concerned with

an execution sale in this case, but with reasonable storage costs. The duty of the sheriff in this instancewas to "attach and safely keep" the debtor's property pursuant to the writ of attachment. The expenses of keeping the seized property should be reasonable, which is consistent with the safekeeping of theproperty. 30ArnJur 2d,Execution, § 272. There isno dispute that the sheriff placed themotorcycle in

a heated, insured storage area. Testimony reveals that the motorcyclehad part of its engine disassembledand protection from the weather was necessary. Whether or not the sheriff violated his duty to safely keep the property due to alleged exorbitant storage costs isnext addressed. Weissman & Sons contends that $5 a day storage costs are clearlyunreasonable and that the testimony established the "going rate" for storage costs in Bozeman to be exorbitant. Weissman & Sons presented testimony that storage at a commercial storing facility for a motorcyclewould be approximately $18 amonth. The testimony did not reveal whether such storage spacewas heated. The sheriff presented testimony that two Bozeman area businesses charge $7.50 and $10 a day for inside, heatedstorage. Thesebusinessesprovide storagebut are not in the storage business and determine their storageprices based on the "going rate" inBozeman. Further testimony at the hearing revealed that the sheriff's department did not make an effort to find the cheapest storage available for the seizedproperty. Weissman
& Sons admitted that it was aware the motorcycle was being stored atArt's Towing but never inquired as to storage costs during the 190days themotorcycle was in storage. The District Court found the storage costs to be reasonable. There is substantial credible evidence in the record supporting this finding. As noted by the District Court, it isnot unusual for the value of seized property to be consumedby storagecostsand creditors should be aware of that fact. The DistrictCourt is affirmed. 

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We Concur:

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