Slack v. Landmark Company, 2011 MT 292

In 2002, MRDTF busted a clandestine meth lab at 1050 Mill Road, Helena, involving a property linked to LC County and a criminal operator; the operator was prosecuted by LC County and convicted.
Montana enacted 75-10-1301 to -1306, MCA in 2005 to address cleanup standards for meth-contaminated properties, creating reporting and public-list requirements.
The Mill Road home was not listed as contaminated until 2007, when DEQ notified the County; in 2005 the Slacks entered into a buy-sell with Grover of The Landmark Company, moving in after closing.
Grover checked DEQ’s list before closing; the home was not on the list, and the Slacks later discovered contamination resulting in extensive cleanup needs and displaced personal property.
In February 2008, the Slacks sued LC County, Grover, and Landmark for failure to provide proper notice under § 75-10-1306(1); the prior owner was later dismissed after settlement.
A three-day trial led to a verdict finding Landmark and Grover not liable, LC County negligent with damages to the Slacks totaling $563,592; issues arose over jury instruction and attorneys’ fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Duty under § 75-10-1306(1)	Slacks contend LC County owed a reporting duty for pre- and post-2005 discoveries.	County argues no duty or scope under the statute; issues not properly raised below.	Waived issue; district court correctly resolved that duty scope was not properly preserved.
Attorneys’ fees eligibility under § 25-10-711	Slacks seek fees for a defense deemed frivolous or in bad faith.	County defends its position as legitimate and not frivolous; timely objection issues raised.	District court did not abuse discretion; no frivolous or bad-faith defense established.
Pretrial handling of the statute's effective date in instructions	Instruction error could have included the 2005 effective date to define duty.	No instructional error since the date issue was argued; no prejudice shown.	Not necessary to address as a separate error; waiver and preservation concerns apply.

Sikorski v. Johnson, 333 Mont. 434 (Mont. 2006) (duty in negligence is a question of law)
Plath v. Schonrock, 314 Mont. 101 (Mont. 2003) (failure to raise legal theory in pretrial order can cause waiver)
LHC, Inc. v. Alvarez, 160 P.3d 502 (Mont. 2007) (pretrial assertions do not overcome failure to raise issue)
Kakos v. Byram, 292 P.2d 909 (Mont. 1930) (existence of a legal duty is decided by the court)
Roy v. Neibauer, 623 P.2d 555 (Mont. 1981) (scope of duty as a legal question for the court)
Ganz v. United States Cycling Federation, 903 P.2d 212 (Mont. 1995) (legal duty and standard of care principles cited)
State of Montana v. Butte-Silver Bow County, 353 Mont. 497 (Mont. 2009) (state-law analysis in duty determination)
Weaver v. Advanced Refrigeration, 361 Mont. 233 (Mont. 2011) (costs do not include attorneys’ fees; bill of costs distinction)
Ostergren v. Department of Revenue, 319 Mont. 405 (Mont. 2004) (frivolous or bad-faith standard under § 25-10-711)
Jones v. City of Billings, 927 P.2d 9 (Mont. 1996) (abuses of discretion standard for fee determinations)