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STEWART E. STADLER
District Court Judge, Department 3
Flathead County Justice Center
920 South Main
Kalispell, MT 59901
Telephone: (406) 758-5906
IN THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT OF THE
STATE OF MONTANA, IN AND FOR THE COUNTY OF FLATHEAD
FLATHEAD ALLIANCE FOR SENSIBLE
GROWTH INC., a Montana nonprofit
public benefit corporation,- GORDON
PIRRIE, TOM D. LITTLE, D.M.D.,
MARION GERRISH, C.M. CLARK, THOMAS
P. FULLERTON, D.C., WILLIAM W.
GOODMAN and JOHN D. HINCHEY,
Plaintiffs,
vs.
CITY COUNCIL AND MAYOR OF THE CITY
OF KALISPELL, MONTANA, acting as
the governing body of the City of
Kalispell, a governmental entity,
Defendants.
Cause No. DV-02-420C
This matter is before the Court on Plaintiffs, Motion For
Award of Attorney Fees and Costs. The Court having considered the
memoranda in support and opposition and being fully advised in the
premises, now enters the following:
ORDER
IT IS HEREBY ORDERED that the Plaintiffs, Motion For Award of
Attorney Fees and Costs is DENIED.
iecc - • a R
A brief history or background of this action is as follows:
On July 1, 2002, the Defendants, at the request of Wolford
Development, Inc., approved an amendment to the Kalispell City -
County Master Plan. This amendment changed a land designation from
[e W/
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industrial, residential and agricultural to commercial and was
expressly contingent upon and effective only upon the annexation of
the area in question into the City of Kalispell. The area in
question was never annexed by the city.
During the months of July and August, 2002, a successful
petition drive placed the amendment and annexation for voter
referendum to be held in November of 2003. Defendant has alleged,
which allegation has not been challenged by the Plaintiff, that the
Defendants' ability to proceed was stayed pending the outcome of
the referendum.
Even though a petition drive was underway which would
effectively stay the amendment and annexation, Plaintiffs caused
this action to be filed on.July 31, 2002. In the present action
the Plaintiffs sought multiple forms of relief from the amendment:
That the Court determine the approval was void ab initio; That the
Court issue alternative and peremptory writs of mandamus; For a
writ of review; and, Eight other reasons why the Defendants'
actions should be declared null and void. Defendants further
requested reasonable attorneys fees under mandamus, under the Open
Meeting Act and under a private attorney general theory.
Pursuant to Section 27-26-204, MCA, the Court issued an
alternative writ of mandamus without notice on August 2, 2002.
Defendants were to appear and show cause by September 13, 2002.
The show cause hearing was continued and changed to a status
hearing on October 4, 2002, at the request of Plaintiffs on
September 6, 2002.
On September 26, 2002, the Attorney General of the State of
Montana issued an opinion interpreting SB 97. He determined that
master plans and comprehensive plans in existence prior to October
1, 2001, were no longer legally effective unless they complied with
SB 97.
Section 27-26-302, MCA, provides as follows:
"On the return of the alternative or the day on which the
application for the writ is noticed, the party on whom the
writ or notice has been served may show cause by answer, under
oath, made in the same manner as an answer to a complaint in
a civil action."
On October 4, 2002, Defendants, pursuant to this statute,
elected to show cause by filing their answer. In this answer
Defendants deny that a peremptory writ of mandamus should issue and
deny that there was any violation of Montana's Open Meeting Law,
Section 2-3-203, MCA. Prior to a determination whether the answer
filed had raised factual issues and prior to the Court setting a
date for hearing or argument as required by Section 27-26-307, MCA,
the issue was resolved.
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On October 7, 2002, Defendants approved Resolution 4743 which
rescinded the prior resolution amending the master plan.
The only issue now before the Court is whether Plaintiffs can
recover their attorney fees and costs. Plaintiffs' have raised
three separate arguments seeking recovery:
1. That recovery is allowed as damages pursuant to Section 27-
26-402, MCA, which provides as follows:
If judgment is given for the applicant:
(1) he may recover the damages which he has sustained, as
found by the jury or as determined by the court or referees,
if a reference was ordered, together with costs;
(2) an execution may issue for such damages and costs; and
(3) a peremptory mandate must be awarded without delay.
2. That recovery is allowed under Montana open meeting law,
pursuant to Section 2-3-221, MCA, which provides as follows:
A plaintiff who prevails in an action brought in district
court to enforce his rights under Article II, section 9, of
the Montana constitution may be awarded his costs and
reasonable attorneys' fees.
3. Finally, that recovery is allowed in equity under a private
attorney general theory which requires a three part inquiry,
Montanans for the Responsible Use of the School Trust v. State 1999
MT 263, ¶ 67, 296 Mont. 402, 989 P.2d 800, as follows:
(1) the strength or societal importance of the public policy
vindicated by the litigation, (2) the necessity for private
enforcement and the magnitude of the resultant burden on the
plaintiff, (3) the number of people standing to benefit from
the decision.
The basic requirement of all three theories of recovery,
judgment be given, prevails in,the action, and vindicated by the
litigation, certainly does not apply to this action where those
issues were contested. No hearing was held and no evidence was
presented. No findings have been made in this case and none are
possible. It would be an abuse of this Court's discretion to award
damages to either of the parties at this stage of the proceedings.
An award under Section 27-26-402, MCA, has been expanded to
include the right to recover reasonable attorney fees and costs if
prior to hearing, the defendant complies with the demand of the
plaintiff making further action unnecessary. O'Sullivan v. District
Court (1953), 127 Mont. 32, 37, 256 P.2d 1076. In the present
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action, this case and the two Kansas cases relied on in O'Sullivan
are clearly distinguishable. An award of attorney fees and costs
pursuant to Section 27-26-402, MCA, is discretionary. It is
equally clear that the Court in O'Sullivan and the Kansas cases
relied on in support of O'Sullivan, that the Court had sufficient
information to be convinced that had a hearing been held, the
relief requested would have been granted, a peremptory writ issued
and judgement entered for the plaintiffs. The referenced Kansas
case indicated that although a judgment was not entered, "the
findings were in favor of the appellee". O'Sullivan at 38. The
alternative writ of mandamus issued by the Court on August 2, 2002,
without notice to Defendants, is little more than an ex parte order
to show cause, which the Defendants could satisfy pursuant to
Section 27-26-302, MCA, "by filing an answer, under oath, made in
the same manner as an answer to a complaint in a civil action."
Defendants filed their answer on October 4, 2002, denying that a
writ of mandamus was appropriate. On October 7, 2002, Defendants,
relying on a Montana Attorney General's opinion, dated September
26, 2002, not necessarily on Plaintiff's lawsuit, rescinded their
prior amendment to the master plan, which is the relief requested
in this action by Plaintiff. In the present action, in which
Plaintiffs have requested numerous forms of relief, the Court
cannot find that a writ of mandamus would have issued or that the
Defendants' action in rescinding the prior resolution was as a
result of the mandamus action. Both findings would be necessary
prior to an award of damages. Accordingly Plaintiffs' motion for
attorney fees and costs must be denied.
DATED this 27th day of January, 2003.
Stew rt E. Stadler
District Judge
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