Blackmore v. Dunster
274 P.3d 748
Mont.2012Background
- Blackmore sued Dunster for assault and unlawful restraint; jury awarded $3,500, later judgment reduced to $3,117.81 after offsets.
- Dunster, after trial, allegedly transferred all property and money to his children or girlfriend; Blackmore could not collect on the judgment.
- A writ of execution was issued in the judgment to satisfy the balance from Dunster's nonexempt personal property, directing seizure of Dunster's claim against Yellowstone County.
- The levying sale occurred on December 17, 2010, and Blackmore purchased Dunster's pending tort claim for $50.
- Judge Todd later denied substitution of counsel and deemed the levying sale void; Judge Watters previously set aside the sale on grounds that pending personal injury actions cannot be levied before judgment and due to procedural issues.
- The Montana Supreme Court affirmed the trial court’s order voiding the sale, holding that a pending personal injury action cannot be seized prior to judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pending personal injury action is subject to levy. | Blackmore: sale authorized to satisfy judgment. | Dunster: sale void; pending action not subject to levy. | Pending personal injury actions are not subject to levy. |
| Whether Coty v. Cogswell remains controlling law on levying pending actions. | Blackmore argues Coty should be overruled due to old statutes. | Dunster defends Coty as still good law. | Coty remains valid law on non-attachment of pending tort claims. |
| Whether the sale was void for procedural reasons regardless of Coty. | Blackmore asserts proper procedural steps were followed. | Dunster argues defects invalidated the sale. | Even if procedural issues exist, Coty governs and the sale cannot stand. |
Key Cases Cited
- Coty v. Cogswell, 100 Mont. 496 (1935 MT) (unliquidated tort claims not subject to attachment)
- Baker v. Tullock, 106 Mont. 375 (1938 MT) (personal injury actions not subject to execution except as noted)
- Allstate Ins. Co. v. Reitler, 192 Mont. 351 (1981 MT) (subrogation and assignment principles; Coty reaffirmed)
- Youngblood v. American States Ins., Co., 262 Mont. 391 (1993 MT) (distinguishes assignability of tort vs. property damage claims)
- Brockie v. Omo Constr., Inc., 268 Mont. 519 (1994 MT) (survivorship statute context, not directly transferable to this issue)
- Runstrom v. Allen, 2008 MT 281 (2008 MT) (survivorship/statutory context; limits on transferring rights)