STATE EX REL DEPT OF HEALTH v L
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Honorable John M. McCarvel, District Judge, sitting in place of Mr. Justice Sheehy, delivered the Opinion of the Court. Plaintiff appeals from an order of the Glacier County District Court dismissing its amended complaint. On June 10, 1977, William and Mary Kessner of Great Falls, Montana, initiated a series of twenty-six conveyances involving a 14.457 acre tract of land in Glacier County. They transferred the entire 14.457 acre parcel to Kenneth and Mary Kessner by warranty deed. Kenneth and Mary Kessner, in turn, transferred 13.446 acres to Louis Fontana, and at the same time deeded the remaining 1.034 acres back to William and Mary Kessner. Louis Fontana then made a similar conveyance, transferring all but approximately one acre of land to the third party and quitclaiming the remaining acre back to William and Mary Kessner. A chain of conveyances continued until the original owners held title to the entire tract of land again, but instead of holding the original deed, they had thirteen deeds, evidencing thirteen separate and distinct parcels of land. The twenty-six deeds were all dated June 10, 1977, and were recorded in sequence on June 16, 1977, together with certificates of survey for each of the thirteen new lots. These certificates of survey were characterized as certificates of survey for occasional sales. The Department reviewed none of the transactions. It is obvious from the foregoing that the transactions thus made were designed to evade the provisions of the Montana Subdivision and Platting Act, section 11-3859 et seq., R.C.M. 1947, now section 76-3-101 et seq. MCA, and the Sanitation in Subdivisions Act, section 69-5001 et seq., R.C.M. section 76-4-101 et seq. MCA. 1947, now The amended complaint and the issues raised in the lower court by the appellant were directed only to alleged violations of the Sanitation in Subdivisions Act, section 69-5001 et seq., R.C.M. 101 et seq. MCA. 1947, now section 76-4- under § 3-1-805(a), MCA. Again, we cautioned Drollinger that if this Court granted her motion to dismiss, her opportunity to appeal the underlying decisions by the trial court may well be lost forever. With that admonishment, we again granted Drollinger 30 days to file her opening brief in Cause No. 02-558. We noted that the appeal would be dismissed with prejudice for failure to prosecute if Drollinger did not file a timely brief. ¶10 On April 14, 2003, Drollinger filed a non-substantive response, stating that she had no choice but to allow the Court to dismiss her appeal. On April 15, 2003, we entered an order dismissing Cause No. 02-558 with prejudice to the merits. ¶11 As noted above, on December 23, 2002, Drollinger filed a motion with the District Court requesting a change of venue on the remaining issues of [the] case. Drollinger contended that change of venue was necessary to promote the ends of justice and to counter extraordinary examples of bias in this case. Drollinger contended that the trial judges of the Eighteenth, Sixth, Fifth, Third, and Second Judicial Districts had conflicts of interest and that she had been unable to obtain a fair hearing. In support of her motion Drollinger attached a brief and other documents. Stoneman did not respond. ¶12 On February 10, 2003, the District Court denied the motion on the grounds that the court lacked jurisdiction to consider change of venue. On March 17, 2003, Drollinger filed her notice of appeal and, subsequently, filed an opening brief on May 30, 2003. While Stoneman did not file a response brief, Drollinger nevertheless filed a reply brief on July 10, 2003. DISCUSSION 5 and recorder or contained in the records of the United States bureau of land management; " (b) reveals a material discrepancy in such map ; "(c) discloses evidence to suggest alternate locations of lines or points; "(d) establishes one or more lines not shown on a recorded map the positions of which are not ascertainable from an inspection of such map without trigonometric calculations." Certain divisions of land are exempt from the Act's numerous requirements for subdivisions. land is the "occasional sale". One such division of An occasional sale is "one sale of a division of land within any twelve month period." Section 11-3861(13), R.C.M. The 1947, now section 76-3-103(7) MCA. statutory exemption applies unless the occasional sale is adopted for the purpose of evading the Act. section 76-3-207 MCA. Section 11-3862(6), now If an occasional sale is made in an attempt to evade the Act, then the division of land is treated as any other subdivision. Section 69-5001 et seq., R.C.M. 1947, now section 76-4- 101 et seq. MCA, commonly referred to as the Sanitation in Subdivisions Act, was passed in 1967, and rewritten in 1973 to conform with the Montana Subdivision and Platting Act. The Act's definition of subdivision is identical to that found in the Subdivision and Platting Act. However, the terms "certificate of survey" and "plat" are not defined. Administration and enforcement of the Sanitation in Subdivisions Act rests with the Department of Health and Environmental Sciences. Section 69-5003(1), R.C.M. 1947, now section 76-4-123 MCA states: "69-5003. Approval of plans for facilities in subdivisions. (1) A person may not file a subdivision plat with a county clerk and recorder, make disposition of any lot within a subdivision, erect any building or shelter in a subdivision which requires facilities for the supply of water or disposal of sewage or solid waste, or occupy
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