DA 06-0483 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 196

JOAN K. McCORMICK, f/k/a JOAN K. BREVIG, Pl aintiff, Appellant a nd Cross-Respondent,

v. CLARK A. BREVIG, Defendant, Respondent and Cross-Appellant, and BREVIG LAND LIVE AND LUMBER, a Montana General Partnership consisting of Joan K. Brevig and Clark A. Brevig, Defendant.

APPEAL FROM: District Court of the Tenth Judicial District, In and For the County of Fergus, Cause No. DV 95-086 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellant and Cross-Respondent: Michael J. Lilly; Berg, Lilly & Tollefsen, P.C., Bozeman, Montana For Respondent and Cross-Appellant: David A. Veeder, Jolane D. Veeder ; Veeder Law Firm, Billings, Montana

Submitted on Briefs: March 28, 2007 Decided: August 14, 2007 Filed:

__________________________________________ ClerkJustice John Warner delivered the Opinion of the Court.

¶1 This appeal marks the fourth appearance before this Court of the dispute between siblings Joan K. McCormick (Joan) and Cl ark A. Brevig (Clark) concerning their respective interests in the fa mily partnership, Brevig La nd, Live and Lumber (the Partnership). Due to our opinion in McCormick v. Brevig , 2007 MT 195, Sup. Ct. No. 05-697, hande d down this day, al ong with subse quent proceedings in the District Court, this appeal is dismissed as moot. ¶2 For the factual and procedural background of this case, see McCormick v. Brevig , 1999 MT 86, 294 Mont . 144, 980 P.2d 603 ( McCormick I ), McCormick v. Brevig , 2004 MT 179, 322 Mont. 112, 96 P.3d 697 ( McCormick II ), and McCormick v. Brevig , 2007 MT 195, ___ Mont. _ __, ___ P.3d ___ ( McCormick III ). ¶3 While McCormick III was pending, the District Court proceeded with the sale of the Partnership assets, in accordance with our ruling in McCormick II . The sale was held October 31, 2006. This fourth appeal concerns orders of the District Court that directed

how the sale was to be conducted. ¶4 The District Court issued its original Or der for Sale of the Partnership assets on September 20, 2005. This order, which ha s now been affirmed by our decision in

McCormick III , provided that the “net sale proceeds” of the sale received by the sheriff be deposited with the clerk of the District C ourt pending any appeal . Joan and Clark, however, disputed the definition of “net sale proceeds.” Clark sought a stay of execution on this order, both in the District Court and th is Court. However, no stay was granted.

2¶5 Joan presented the District Court’s or der to the Fergus County sheriff and demanded a sale of the Partnership assets. The sheriff refused. Joan then sought a writ of mandamus from this Court ordering the sheriff to conduct the sale. The writ was

denied. ¶6 Following our denial of Jo an’s petition for a writ of mandamus, the District Court

considered the sheriff’s concerns. On June 20 , 2006, the District C ourt issued its “Order Regarding the Court’s Order for Sale of Partnership Assets and Payment of Special Master’s Fee,” which stated, “This Order is entered to clarify and amplify the Court’s Order for Sale . . . entered on September 20, 2005.” This second order allowed Joan and

Clark to submit credit bids at the sale. That is, because each of them already owned part of the property being sold, the amount of their bids would be credited with their respective interests in the Partnership. Beca use the District Court had previously found Joan had not paid for her full 50% ownership in the Partnership, Clark’s bid would be credited with 50% of its amount, plus $1,322,761. C onversely, Joan’s bid would be credited with 50% of its amount, minus $1,322,761. ¶7 The District Court’s clarifying order also allowed bidders to submit letters of credit as proof of ability to pay the amount bid. ¶8 Joan appeals and Clark cross-appeals the Di strict Court’s June 20, 2006, order. ¶9 Joan appeals that portion of the District Court’s clarifying order allowing Clark to submit a credit bid. She argues the credit bid could result in insufficient cash to pay her what she is owed. However, th e record reveals that the sa le has been completed, and

3Clark purchased the remaining Partnership asse ts for enough money to pay Joan what she

is owed. ¶10 Clark appeals that portion of the District Court’s clarifying order allowing letters of credit to be submitted by bi dders. However, he purchased the remaining Partnership assets at the sale and, thus, now has no complaint about payment. ¶11 Because of the results of the sale which has taken place, the issues raised in this appeal have been decided between these pa rties. Where a court’s judgment will not effectively operate to grant relief, the matter is moot. Walker v. State , 2003 MT 134, ¶ 40, 316 Mont. 103, ¶ 40, 68 P.3d 872, ¶ 40. ¶12 As a decision of this Court would not effectively operate to grant relief to Joan or Clark on the issues raised, this a ppeal is dismissed.

/S/ JOHN WARNER We concur: /S/ JAMES C. NELSON /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE

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