DA 06-0483 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2007 MT 196 

JOAN K. McCORMICK, f/k/a JOAN K. BREVIG, 

 Plaintiff, Appellant and 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: 

__________________________________________ 

Clerk 
Justice 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 Clark A. Brevig (Clark) concerning their 

respective interests in the family partnership, Brevig Land, Live and Lumber (the 

Partnership). Due to our opinion in McCormick v. Brevig, 2007 MT 195, Sup. Ct. No. 

05-697, handed down this day, along with subsequent 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 Order for Sale of the Partnership assets on 

September 20, 2005. This order, which has 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 Court 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 this Court. However, no stay was granted. 

 2
¶5 Joan presented the District Court’s order 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 Joan’s petition for a writ of mandamus, the District Court 

considered the sheriff’s concerns. On June 20, 2006, the District Court 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. Because 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. Conversely, 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 District 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, the record reveals that the sale has been completed, and 

 3
Clark purchased the remaining Partnership assets 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 bidders. 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 parties. 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 appeal is dismissed. 

 

/S/ JOHN WARNER 

We concur: 

/S/ JAMES C. NELSON 

/S/ BRIAN MORRIS 

/S/ PATRICIA COTTER 

/S/ JIM RICE 

 4