*1 CONSTRUCTION, L.L.C., KIELY Plaintif/Respondent/Cross-Appellant, through acting CITY OF RED LODGE, and its the RED LODGE CITY COUNCIL past present members, council AL OWEN, GOLFI, SMOKEY HUGO PHILLIP BARBARA SWANSON, JAQUITH, ROOD, MARY ANNE BECK, FITZGERALD, GESSLING, RICHARD MAHAN, GLORY CRITELLI, BEAM, PETE and CRAIG Defendants/Appellants/Cross-Respondents. No. 01-200. September
Submitted on Briefs 2001. Decided November 2002.
For Bruce Kristin Hanson, Dietrich, Haughey, Billings. Toole & Opinion JUSTICE COTTER delivered the Court. Lodge City Council appeal This arises from decisions the Red concerning rulings by Twenty-Second
and Judicial District Court subdivision, approval, and ultimate application an for a its conditioned denial, advisory jury verdicts. affirm in special as well as from and We part part. and reverse receiving plat application proposed for a preliminary After County (Kiely), from Construction the Carbon
subdivision subdivision, Planning approval proposed Board recommended (Red subject conditions, Lodge Lodge). of Red eighteen Lodge in the Summer of but failed application Red received sixty days. Kiely a Writ ofMandamus upon to act within obtained 1997, compelling Lodge upon application, Red to act August of Kieiys subject Lodge conditionally approved application, Red 14, 1997, Kiely complaint, filed a twenty-six conditions. On October mandatory sixty-day alleging Lodge that Red failed to act within frame, conditions an abuse of imposition time of some were discretion, rights violated. process and that its due were negotiated a parties in the Fall of Following mediation Lodge conditionally Red improvements agreement, which subdivision accepted, rejected. but then On March the District partial summary judgment, ordering Court entered “approve, conditionally approve deny,” Kiely’s review application thirty days. Following public hearing, within unanimously Kiely’s application Council denied without written alleging findings. Kiely complaint, then filed an amended requesting damages constitutional violations and of its trial, summary Prior application. partial the District Court entered judgment, dismissing Kiely’s against individually claims named defendants. trial, Kiely sought damages alleged arbitrary for the At jury’s
capricious application. special denial of its verdict awarded Kiely $292,170.00 damages Lodge’sarbitrary for Red capricious *6 pursuant law, Kiely and actions state also found on its 1983, damages constitutional claims under 42 U.S.C. but awarded in Kiely only appealed the sum of had also to the District Court $1.00. Lodge’s preliminary plat application. from Red denial of its issue, accepted jury’s advisory District Court verdict on this and Lodge arbitrarily, capriciously that Red acted and concluded conditionally unlawfully, Lodge approve Kiely’s and ordered Red subject original eighteen to the preliminary plat application, $250,243.50 attorney’s Kiely conditions. The District Court awarded in 1988, Lodge pursuant fees to 42 U.S.C. and also awarded costs. Red pre-trial, trial, post-trial District Court’s appeals several of the Kiely summary rulings, cross-appeals while two of the court’s rulings. judgment We restate the issues as follows: Kiely’s submitting the District erred in
1. Whether Court claims jury; U.S.C. § awarding Kiely attorney’s Court erred in
2. Whether the District 1988; pursuant fees to 42 U.S.C. § the District Court its discretion when
3. Whether abused claims; instructing jury on state law claims; Kiely relief is entitled to under its state law 4. What dismissing Court erred in the individual 5. Whether the District summary judgment; defendants order of regarding Court abused its discretion 6. Whether District evidence; admission of modifying damage District Court erred
7. Whether the award. PROCEDURAL BACKGROUND
FACTUAL AND for its approval process initiated the Spring In the Creek, subdivision, Kiely Island at Rock referred to as proposed City Lodge, County, Carbon Montana. On of Red located within preliminary subdivision May 16, Kiely submitted time, Board, at the County Planning because application to the Carbon Following a city place. Lodge planning did not have a board Red County Planning Board hearing on June public City of Red subdivision to proposed recommended The recommendation was Lodge, subject eighteen conditions. Council) July on Lodge City (City Council transmitted to the Red an 76-3-604, MCA, city upon to act such Although requires 1996. sixty days, Lodge pass Red let the time without application within Lodge Planning place, Red Board was action. After the July 15, 1997, it recommended the report issued a staff on wherein Kiely’s preliminary plat application with the approve Council Planning Board. eighteen proposed by County same conditions 26,1997, Kiely’s request, the Judicial August upon On Thirteenth Mandamus, compelling Lodge Red District Court1 issued Writ of upon Kiely’s preliminary plat application days by act within ten denying approving, conditionally approving, application. 10,1997, Following public hearing September Kiely’s application on conditionally approved, subject twenty-six conditions. City of Apparently, Kiely’s application Red reviewed under the (1997 Code), Lodge Development Development Code which was 22,1997. adopted April May and effective 14,1997, appealing On October commenced this action twenty-six adopted by September final conditions 76-3-625(1) (2), MCA, and Kiely brought 1997. the action under §§ *7 (§ 1983), Lodge acted maintaining 42 U.S.C. that Red § Kiely sought arbitrarily capriciously imposing and the conditions. (1) Lodge apply following requiring relief: an order Red submitted, regulations application was in effect at the time the (2) regulations; and comply the “final conditions” to with such revise (caused by Lodge’s damages delay incurred as a result of the Red twenty-six final conditions sixty-day requirement), violation of and the rights damages Kiely’s deprivation for imposed, and also District, early Although originated Judicial this case in the Thirteenth newly Twenty-Second District. See 1999 Mont. created Judicial it was transferred to the District). (Act creating the 22nd Judicial Laws Ch. Sec. zoning Lodge responded adoption
under 1983.Red that the ofinterim § 8,1997, any April prohibit ordinances on allowed it to uses in conflict ordinances, and that the individual council members were with the immunity. entitled to qualified partial summary judgment August In for filed on a motion
1998, Kiely preliminary plat District Court deem its requested the approved, subject original eighteen conditions application by County Planning Board, Lodge Red recommended because mandatory sixty days. failed to act within the Following Fall of 1998. parties commenced mediation 14, 1998, September parties entered into a negotiations on (SLA), Lodge improvements agreement which Red subdivision 12,1999, conditionally accepted January by adding seven conditions on Kiely rejected original agreement. that not considered in the this were SIA, Court, seeking pursued conditional relief in the District (a) County Planning Board’s approval” either a “deemed (b) conditions, requiring city an order to revise its eighteen Subdivision twenty-six comply condition with the 1995 County, City Lodge, for of Red and Towns of Regulations Carbon (1995 Joliet, Fromberg, and Bearcreek Subdivision Bridger, Regulations). 20, 1999, partial summary entered On the District Court March law, Lodge 76-3- finding as a matter of Red violated
judgment, 604, MCA, Kiely’s application plat approval for by failing to act on grant relief in the form of a sixty days. The court declined within instead ordered Red Kiely’s application, approval” “deemed conditionally deny,” the “approve, approve Lodge to review any based on thirty days, adding that conditions application within in effect at regulations Regulations other than the 1995 Subdivision unlawful and void. preliminary application, the time of were Council Following public hearing April However, it unanimously Kiely’spreliminary plat application. denied by 76- findings required as provide Kiely failed to with either written 76-3-620, MCA, mandated 3-608(2), or a written statement as Red seeking reversal of complaint, then filed an amended MCA. Lodge Red requiring and an order Lodge’s application denial of its application time the regulations in effect at the the subdivision apply damages and sought compensatory also submitted. original complaint. attorneys pursuant to its fees summary judgment, May of2000, filed a motion legislative City Council were and the alleging the acts *8 acts, City qualifying Lodge statutory thus Red and the Council for 2-9-111, immunity Lodge under MCA. Red further asserted that it § arbitrarily capriciously. 13,2000, Kiely had not acted June filed or On partial summary judgment, seeking finding a motion for that Red Lodge arbitrarily capriciously denying applications acted and its and that the Council's failure to enter a statement at the written 15, 1999, meeting and April arbitrary capricious per se. 3, 2000, order, July denying On the District Court entered an
Kiely’s summary motion partial judgment denying summary for judgment Lodge. However, granted as to Red the court summary judgment individually City Council, as to the named members pursuant 2-9-305(5), MCA, to concluding § the individual council members were immune from suit. trial, Prior to parties agreed the court and the appeal Lodge’s application, 76-3-625(2),
from Red denial its MCA, under § non-jury issue, awas and therefore submitted jury that issue to the sitting advisory jury. However, as an Kiely sought damages also Lodge’s arbitrary Red or capricious application actions on its under § 76-3-625(1), MCA, damages as well as under and those issues § were jury special submitted to the for a jury verdict. The trial July 17, commenced on 2000. Following trial, jury arbitrarily found acted or
capriciously Kiely $292,170.00 and awarded in damages pursuant to 76-3-625(1), jury Kiely MCA. The also found for on § its constitutional (finding claims under procedural process substantive and due § violations, equal protection violations), but not damages but awarded only verdict, the sum of advisory jury $1.00. an found (a) arbitrarily had acted capriciously unlawfully when it (b) Kiely’s application sixty days; failed to act on conditionally within approved conditions, the application subject twenty-six a number of (c) void; SLA, which were approve subject unlawful voted to (d) conditions; seven additional Kiely’s application April denied 15,1999, and failed issue findings explaining written the denial. Following verdict, Kiely attorney's petitioned the court for fees 1988). (§ pursuant Kiely and costs to 42 U.S.C. 1988 also continued Court, 76-3-625(2), pursue appeal MCA, its to the District under from denying application. Kiely sought Council’s decision approving application originally approved by an order as County (i.e., conditions), Planning subject eighteen Board or in alternative, January an approving application order SIA. August hearing On the District Court held a attorney’s
determine if was entitled to fees and whether 76-3-625(2), 23, was entitled to relief under MCA. On October Findings Fact, Law, the District Court entered its Conclusions of *9 arbitrarily, and Order. The court acted Lodge concluded Red unlawfully Kiely’s capriciously application and when it failed to act on sixty days, conditionally approved application within with Code, pursuant Development conditions to the 1997 rather than those (the application Regulations), in effect at the time of 1995 Subdivision Kiely’s and preliminary plat application. when it denied The court Lodge 15, Kiely’s April ordered Red to vacate its 1999 denial of application conditionally approve application, subject and to the original eighteen County Planning conditions recommended $250,243.50 attorney’s Board. District Court awarded in fees to Kiely, pursuant $5,627.46 to 42 U.S.C. and also awarded § pursuant 25-10-501, costs MCA. § Lodge appeals jury form, Red and special instructions verdict
¶19 rulings, remedy evidentiary requiring several court’s the court’s Lodge approve application subject eighteen Red to the conditions, damages, attorney’s of and the calculation fees award. Kiely entry summary cross-appeals partial the District Court’s of two judgments, allegedly one of which eliminated conditional of Kiely’s application, and the other which dismissed the individual Council members.
STANDARDS OF REVIEW issues, Opinion multiple This addresses and diverse therefore, immediately of each standard review will be set forth preceding discussion of the issue at hand.
DISCUSSION Issue 1 § submitting Kiely’s Did the Court err 1983 District jury? claims to the 76-3-625(1) Kiely brought against Lodge under claims §§ challenges
(2), MCA, appeal, 42 1983. On U.S.C. § jury given by District Court relative to several instructions Kiely alleges the instructions. prejudice 1983 claims and from § challenges to the constitutional counters that we should not consider reply claims, arguing that Red first raised them its brief 42 attorney’s fees under where it asserted was not entitled 63 However, question possessed U.S.C. 1988. of whether § protected property underlying Lodge’s interest of Red basis instructions, challenges jury therefore reach the will Lodge’s challenge Kiely’s merits of Red 1983 claims. Because it is dispositive appeal, other issues on we will address the issue of Kiely’s 1983 claims first. claim, plaintiff In order to state a viable 1983 must first possesses protected guarantees
establish it interest since only Fifth and Fourteenth Amendments “apply constitutionally when a is at stake.” Tellis v. protected liberty interest or property interest (9th (citations omitted). Godinez 1993), 1314, 1316 Thus, Cir. F.3d “a threshold requirement procedural to a or process substantive due plaintiffs claim is the showing liberty property of a interest Wedges/Ledges California, protected by the Inc. Constitution.” (9th Phoenix, Ariz. 1994), Board Cir. (citing F.3d Regents v. Roth U.S. 92 S.Ct. 556). L.Ed.2d While provides the Due Process Clause protection for certain liberty interests, property interests themselves are not Constitution;
created
“they are created and their dimensions are
*10
by existing
defined
rules or understandings
that stem from an
Roth,
source,
independent
such
577, 92
as state law.”
408 U.S. at
S.Ct.
(9th
2701. See also Parks v.
Watson
1983),
646,
Cir.
716 F.2d
656.
Whether
protected property
one has a
interest
is determined
(9th
as a matter of law. See Doran
v. Houle
1983),
1182,
Cir.
721 F.2d
(citation omitted)
1184
(“Although the
question
answer to the
of
property
whether a
present necessarily
interest was
depends on the
case,
legal
facts in this
it remains a
issue requiring
interpretation
an
Constitution.”).
also,
of the federal
See
Gardner v.
Mayor
Baltimore
&
(4th
(In
Council
1992),
63, 68
Cir.
969 F.2d
analyzing substantive
process claims,
due
cognizable property interest,
“[i]f there is no
there
is no need
question
to reach the
purported deprivation
whether the
Realty Corp.
Village
and RRI
v. Inc.
arbitrary
capricious.”);
was
918, cert.
(2d
Southhampton
denied,
1989),
Cir.
870 F.2d
493 U.S.
(“Since
(1989)
110 S.Ct.
64 jury. Thus, must determine as a matter of law
submitted to a
we
to maintain its
property
established a
interest sufficient
whether
1983 claims.
interests,”
“protected property
for its
Kiely claimed two sources
(a)
may
unreasonably restrict
asserting
governing body
a
76-3-608(5)(a),MCA;and
Kiely’s right
property, relying
use its
on §
(b)
plat, relying
on 76-3-
right
had a
to final
611(1),
Therefore, must determine if either of these statutes
MCA.
sufficient to sustain a
protected property
confer a
interest
places
“significant
a
substantive
statutory
claim. If the
scheme
license,
grant
permit
it would be
restriction” on the decision to
Wedges,
conferred
claim of entitlement
legitimate
had no
(plaintiff
65 property ‘only interest exists when the discretion ofthe issuing agency narrowly so approval circumscribed that of a property application is ” virtually Gardner, assured.’ at (citing Realty, F.2d RRI 918). F.2d at analyzing “When plaintiff presents whether a legitimate claim entitlement,
of
degree
focus
of
given
discretion
decisionmaker and not
probability
on the
of the decision’s favorable
Jacobs,
(10th
outcome.”
Visconsi &
Jacobs v.
Lawrence
Cir.
of
(citation omitted).
1991),
1111, 1116
927 F.2d
If applicants
rezoning
cannot establish that “there is a set of conditions the fulfillment of
which
give
legitimate
would
rise to a
expectation”
of their
request,
city’s
“the
making
decision
lacks sufficient substantive
limitations to invoke due process guarantees.” Jacobs,
property Kiely might interest possessed have to sustain its claims. The two statutes right relied on for this were 76-3- §§ 608(5)(a) 76-3-611(1), MCA. § 76-3-608(5), Does MCA, establish a constitutionally protected (i.e., interest legitimate claim of entitlement)? 76-3-608,MCA,
¶32 Section sets forth government the criteria for local review of preliminary plat applications and reads in part: relevant
(1) The basis for the governing body’s decision approve, conditionally approve, or disapprove a subdivision is whether the preliminary plat, applicable environmental assessment, public hearing, planning recommendations, board or additional information demonstrates that development the subdivision requirements meets the chapter. this ... (2) governing body shall findings issue written of fact that weigh the criteria in subsection as applicable.
(4) design the the subdivider to governing body may require The significant adverse reasonably potentially minimize subdivision to under subsection through required the review impacts identified (3). findings justify to the body issue written governing shall The (4). under this subsection mitigation required reasonable (3) (5) (a) subsection and when reviewing In a subdivision under body may (4), governing a requiring mitigation under subsection land, ability develop unreasonably to restrict a landowner’s unmitigated impacts that in some instances recognized but it is preclude and will development may unacceptable be proposed aof approval plat. [Emphasis added.] ... (5)(a), property relied for its vested upon which Subsection “unreasonably.” Such a broad not act
right, government directs the to level of a substantial implicitly standard vests subjective (9th Cir. Jacobson v. governing body. discretion in the See Hannifin (When only substantive restriction 1980), “[t]he F.2d authority [to [Gaming] Commission’s exercise imposed upon the decision be that the basis for its requirement is the deny licenses] protectible to a reasonable,” “negates the claim such wide discretion State.”). Moreover, 76-3-608(1), by the property interest created in the amount of discretion MCA, a considerable explicitly vests body makes its decision under body, governing governing since the requirements of meets the “the subdivision guidance broad ofwhether body the discretion governing has chapter.” this subsection minimize the subdivision to design to require to the subdivider impacts. identified a 76-3-608, MCA, confers or infers either provision No of § manner, as use,” particular in a “right to
“right enjoy,” a landowner’s upon restrictions imposes statute Kiely argued. The right develop land. We land; not establish a ability develop it does legitimate a 76-3-608, MCA, does not establish therefore conclude § Kiely’s 1983 claims. support claim of entitlement Act, Platting specifically Montana’s Subdivision Does constitutionally MCA, 76-3-611, establish §§ 76-3-610 interest? protected property its for statutory relied on remaining provisions provide: property interest protected
claimed plat approval preliminary Effect 76-3-610.
(1) plat, conditionally preliminary approving approving or Upon a dated and with body provide the subdivider shall governing signed approval. approval shall be force for statement This years year. calendar less than 1 At not more than 3 calendar governing body may, request the end of period this at subdivider, its for no 1 calendar approval extend more than body may year, except governing approval extend its year a period approval period of more than 1 if that is included as specific governing of a written agreement condition between body subdivider, according and the to 76-3-507.
(2) preliminary plat governing body After approved, is may any not impose subdivisions additional conditions as a prerequisite providing approval said final original obtained approval period within or extended as *13 (l).2 provided in subsection [Emphasis added.] plat 76-3-611. of final Review
(1) body The governing shall examine each final plat subdivision and shall approve plat only if:
(a) it conforms to the forth approval conditions set on the preliminary plat and to chapter regulations the terms this adopted pursuant to this chapter;
(b) the county treasurer has certified real property that all special taxes and assessments assessed and on the levied land to be have been paid. subdivided [Emphasis added.]
.... Lodge Red the discretionary power had reject/accept to Planning Board, County recommendations of the jurisdiction as the for approval ultimate proposed of the Lodge. subdivision rested with Red the proposed “When subdivision within the lies boundaries of an incorporated town, city preliminary plat must be submitted to approved by city governing body.” town Section 76-3- 601(2)(a), Kiely’s proposed MCA. subdivision was located within the city Lodge, limits of Lodge “governing Red thus Red is body” contemplated -611, in 76-3-610 and MCA. We now must examine §§ reposed the level of governing body concerning plat discretion If applications. significant we conclude there lack of is a substantive Lodge’s powers reject restrictions on plat, Red to then we must Kiely legitimate conclude did not have a claim of entitlement. Significantly, although Kiely it to argues plat is entitled final approval, Kiely plat never submitted final approval. Regulations. provision appears This identical also the 1995 See Subdivision II-B-5, Preliminary Approval § Plat Period. (with September twenty- approval
received a conditioned on conditions), following summary six and then court’s order on Kiely’s preliminary application entirely denied on judgment, plat time a final April plat 1999. At no did consider application Kiely. from county/city regulations require that to The local subdivision obtain submitted approval, plat
final final must be the subdivision approval expiration preliminary plat administrator before the Regulations, II-C-1, Final Plat period. See 1995 Subdivision § 76-3-611(l)(a), Moreover, MCA, requires governing Submittal. § body approve plat only “the if it conforms to the conditions of [final] case, plat approval preliminary set forth on the ....” the instant plat there is no final available for review to determine if it conforms However, preliminary plat approval. maintains had a approval, protected property acquired interest once it conditioned approval if it meet all the claiming plat it was entitled final could requirements. MCA, any 76-3-610, impose could not new Under long as as the final prerequisite plat approval
conditions as a final Thus, according to approval approval period. was obtained within the 76-3-610,MCA,it appears there were substantive restrictions Red approval as final Lodge’s powers reject plat, long the final as the However, 76-3-610,MCA, frame. was obtained within the stated time 76-3-611, MCA, final plat since conjunction must be read with § guided by the latter section. 76-3-611(1), MCA, According to § body each final governing shall examine subdivision *14 (a) conditions approve plat only the it conforms to the and shall if: preliminary plat on and to the terms of approval set forth the regulations adopted pursuant chapter; to this chapter this and (b) property county has certified that all real and treasurer added.] paid.” [Emphasis ... have taxes been MCA, Although 76-3-611, discretionary power limits the (“a approved”), shall body preliminarily approved plat be governing (1) set forth on the requires approval still the conditions of subsection required to governing body is preliminary plat be satisfied before approval. grant final here, Kiely not fulfill all the conditions In the did situation “Kiely Kiely opening in its brief that: was
preliminary approval. admits conditions,” “[u]pon then a and asserts: prepared majority to meet conditions, right plat to final Kiely had a vested meeting the valid Moreover, citing 76-3-610, -611, MCA. approval,” during §§ (William’s) asked, Kiely’s testimony, at William he was “How close that [Spring you 1999] to final applying platitude [sic]?” time were for “At it a responded, just cleaning up William that time was matter of a ready go.” to few loose ends and were Later William was asked to go through twenty-six explain any problems each of the conditions and why. During portion testimony, he had with them this of his on the he had provisions, noting problem” William commented “no with some, to “impossible” Although while others were for him meet. 76-3- MCA, city to appears deny leave little no discretion to the to plat approval final met all applicant who has conditions set governing body, Kiely yet conditions, had met those therefore, deny Kiely’s retained the discretion to final Parks, pursuant 76-3-611(l)(a), See approval to MCA. F.2d at 657 (“The Oregon statute mandates if the that three matters are determined in shall vacate the petition governing body favor Once city streets. the conditions are met discretionary lacks (underline added). powers.”) emphasis (9th on Bateson v. Kiely relies Geisse 1988), Cir. 857 F.2d Bateson,
asserting possessed a property interest. In the Court of Appeals concluded Bateson’s process rights substantive due were city violated when the building failed to issue him a permit.
holding, the court did not explicitly protected hold Bateson had building permit, interest in his rely city’s but did on regulations required that of a permit applicant’s issuance once an building plans complied paid. with the code and the fees were court noted that necessary Bateson had met all the requirements city a building regulations issue him permit, city did provision city not include a which allowed the council review an application permit before the issued. was Bateson There, misplaced. reliance the plaintiff had requirements necessary city
met all the for the him a building issue permit, case, whereas instant had not met the conditions (i.e., approval yet apply for final had for final and had not met all the from preliminary plat approval September conditions 1997). Furthermore, the regulations at issue in Bateson did not city building issuance, permit here, allow the review whereas specifically required Council approve to review and preliminary and final applications. Thus, protected property we conclude did not have at preliminary approval stage plat application
interest of his *15 Kiely a process. Arguably, property could have established interest met approval, twenty-six final if it either all upon application for or, twenty-six it established which of the conditions once Code, had Development on that it met conditions were based the conditions, remaining paid necessary the taxes. those lawful clearly that record us does not problem is the before establish Kiely complied with and which it twenty-six which of the conditions compliance did even establish with the not. Nor does record original eighteen Although conditions. briefs to District Court motions, questioned legality of some of the pre-trial Kiely conditions, clearly twenty-six the record before us does not satisfy “unlawful,” impossible or to demonstrate which conditions were Significantly, twenty- according Kiely. question of which of six unlawful was decided the District Court. conditions were never to, Kiely legitimate protected For a entitlement establish in, it property preliminary application, final of its interest all complied would have demonstrate with had either minimum, a imposed upon preliminary plat, or at conditions However, never reached it had met all the “lawful” conditions. present point application process, this in the and therefore could demonstrating compliance required the level of to establish evidence In application. in his absence of protected property a interest interest, Kiely’s 1983 claims protected property a demonstrated § erred in Accordingly, stand. we conclude District Court cannot submitting jury, claims vacate that § special decision of the court which portion jury’s verdict and liability 1983. premised Lodge’s § on 42 U.S.C.
Issue 2 § lack a In dismissal of its 1983 claims for light our interest, attorney’s entitled to fees protected § to 42 1988? pursuant U.S.C. 1988(b): to 42 U.S.C. Pursuant proceeding provision of sections any action to enforce court, title,...
1981,1981a, 1982,1983,1985, and 1986 of this than discretion, party, other may prevailing in its allow the costs, States, attorney’s part fee as United a reasonable against judicial officer for an any brought except that in action judicial capacity such officer taken in such officer’s act or omission attorney’s fees, costs, including any shall not be held hable of such officer’s clearly excess unless such action was jurisdiction. attorney’s Although power award fees 1988 is under
discretionary,
ordinarily
in a
claim
prevailing plaintiff
should
*16
attorney’s
special
an
fee
render
recover
“unless
circumstances would
unjust.”
County
an
v.
Dept.,
such
award
Laudert
Richland
Sheriff’s
49,
114,
MT 218,
49,
386,
(citing
2000
301
P.3d
49
Mont.
7
¶
¶
¶
Hensley
429,
1933,
(1983),
424,
1937,
v. Eckerhart
U.S.
103
461
S.Ct.
48).
40,
However,
granted,
76 L.Ed.2d
fees
attorney’s
before
can be
a
plaintiff
Laudert,
must
the
prevailed.
court
determine whether
49¶
1933).
(citing Hensley,
434,
Kiely
the as prevailing party to its claims under state we have determined that its 1983 verdict cannot stand. § a prevailed In case the on plaintiff where his state law claims
¶51 (assault, battery, negligence) against arresting officers who force, allegedly unnecessary used but had his 1983 claim dismissed § verdict, on a directed Circuit Appeals Ninth Court of held that the plaintiff was “prevailing party” attorney’s not a entitled to fees under (9th Mateyko 1990), 824, denied, 1988. v. Felix § Cir. 924 F.2d cert. 502 (1991). 814, 65, 116 U.S. 112 S.Ct. L.Ed.2d 40 See City also Seattle of (Wash. (“Because McCready 1997), v. 156, P.2d 160 931 we have rejected Appellants’ argument considered and inspection that Amendment, warrants violated the Fourth Appellants are not entitled attorney pendent fees under 1988’s claim theory.”); Kelly § v. (5th (when 1990), City Leesville Cir. jury 897 F.2d 177 expressly against plaintiff claim, found on his he constitutional is not entitled to fees under “since 42 U.S.C. ‘does not § § authorize an award of fees a party pendent who recovers on a state ”) (5th claim but rights (citing loses on his civil claim.’ McDonald Doe 1056). 1984), Cir. 748 F.2d response In that assertion the “de minimis” award on $1.00 fees, 1983 support attorney’s claims did not an § award
argues
recovery
fees,
on a
justifies attorney’s
state law claim
claiming that the Ninth Circuit’s decision in Morales controls because
in that case the plaintiff
attorney’s
though
recovered
fees even
his §
following
appeal.
1983 claims had been dismissed
an
Morales v.
San
96 F.3d
as
on
rehearing,
amended
denial
Rafael
(1997).
Morales,
§ arrest both of San Rafael Although and the is arresting opinion decipher, officer. difficult to appears plaintiffs city, that the claim was dismissed as § prevailed against Therefore, Morales, but that he as the officer. here, attorney’s fees under § unlike basis an award remained. verdict, Kiely is not Kiely’s have Because we vacated attorney’s Accordingly, fees 1988. the District pursuant
entitled to to § 250,243.50 attorney’s fees vacated. Court’s award $
Issue 3 its discretion when Did the District Court abuse Kiely’s law claims? instructing jury state form Lodge challenges special the trial court’s verdict Red special jury Although portion several of instructions. questioned by jury instructions verdict form and some claims, only dealing Kiely’s will address those involve claims, portion of verdict has law as the 1983 with state been vacated. essentially form special contends that verdict case, arguing that to find for in this jury
directed the presented the issues offact interrogatories unduly confusing were *17 in a biased manner. The a form left to the discretion of special verdict use 49(a), to use M.R.Civ.P. A district court’s decision
the trial court. Rule for discretion. Barthule special a verdict form is reviewed an abuse of 477, 488, See also (1994), 268 Mont. 886 P.2d 978. v. Karman 81, 49, 294 Engineering, 1999 MT Mont. v.Arrow Tank and ¶ Baldauf trial 107, 49, Although 49. it is “within the court’s 979 P.2d ¶ ¶ special questions of a to structure the form and frame the discretion jury the to verdict, interrogatories adequate must be to enable the Baldauf, judgment.” to ¶ determine the factual issues essential (citation omitted). the a standard to determine three-part We use adequacy special of a verdict form:
(1) conjunction the as a and in with whether, when read whole the interrogatories presented the general charge, adequately jury; issues to the contested fair;
(2) jury issues the the submission the to was whether (3) clearly submitted questions of fact were whether the ultimate jury. the to (citation omitted).
Baldauf, ¶ claims, special verdict form respect Kiely’s state to law With following “yes” or “no” jury to check either instructed interrogatories: acting through Red City Lodge,
1. Did the of Red (the arbitrarily it City “City”), capriciously act or when Council not, required day period, approve, approve within with did Preliminary or Plat deny Application Approval conditions for (the “Application”) for “Island Rock Creek” at Subdivision County Planning (“Planning was with the Carbon Board filed Board”) 28,1996, Construction, May by Kiely on L.L.C. and which Planning 2,1996, on City July was Board to the forwarded Planning approve with a recommendation to Board subject to Application 18 conditions? City when, Did arbitrarily capriciously
2. act or on 10,1997, September using wrong regulations, approved it Application subject conditions, a number which were unlawful void? arbitrarily when, January
3. Did the act or capriciously on unanimously approve voted Subdivision Improvements Agreement subject to seven additional conditions? arbitrarily when,
4. Did the act capriciously April or 15,1999, it unanimously deny voted to the Application and failed findings issue written explaining the denial? We conclude that state law claims adequately were presented the jury. Kiely alleged four distinct instances in which (or decision) Lodge’s final or delay action decision making “arbitrary capricious.” upon order to recover its state law claims 76-3-625(1), MCA, under had to establish that the actions “arbitrary or capricious.” were Given that this was the level required finding liability, misconduct there to be a it was appropriate jury for the Lodge’s court ask the whether Red conduct in those alleged “arbitrary capricious” threshold, instances met the court, action, much as negligence would the trial frame question “negligence.” in terms of interrogatories incorporated gleaned prior facts from District rulings
Court and unrefuted presented evidence at the trial. We special conclude that the form presented fairly verdict the issues also questions clearly. Accordingly, submitted ultimate of fact *18 special conclude confusing, present verdict form was not did it nor plaintiffs in a theories biased manner. We therefore hold the using District Court did not its in abuse discretion this form. Lodge also claims District its Court abused discretion gave jury, arguing
when it certain instructions several Kiely’s pertaining instructions to state law claims were either duplicative emphasized unduly Kiely’s or theories in the case.
74 it regarding A district court has discretion the instructions gives a will not a give jury or refuses to and we reverse district court McAlpine on the basis ofits instructions absent an abuse of discretion. Co., 31, 16, 304 16 Ag. v. Rhone Poulenc 2000 MT Mont. ¶ ¶ 1054, (citing Anderson, 16 Co. v. 1999 MT P.3d Federated Mut. Ins. ¶ 44). 33, 915, 44, 44, reviewing P.2d In 288, 297 Mont. ¶ ¶ ¶ refused, or particular jury properly given whether a instruction was we entirety, in its as well as in connection with consider the instruction given and with the evidence introduced at trial. other instructions McAlpine, party assigning 16. The error a district court’s ¶ prejudice prevail, prejudice in will instruction must show order to jury entirety if in their state the not found instructions be applicable McAlpine, case. 16. See Barnes v. law the also ¶ Falls, MT Thompson 294 Mont. 979 P.2d ¶ ¶ ¶ (a trial court is with broad discretion determine whether imbued give jury). or it will a instruction to the proposed not entirety and in considering After the instructions their trial, we conclude that Red connection with the evidence introduced at instructions, jury it prejudiced failed to demonstrate was Rather, the trial any duplicative. or that of the instructions were jury Kiely’s properly on state law claims stated court’s instructions the District Court did applicable law of case. therefore conclude We instructing the jury. not its discretion abuse Issue entitled, its claims? relief to under state law What is claims, statutory Kiely sought relief addition to 76-3-625(1) MCA. against Lodge pursuant to §§ (1) MCA, 76-3-625, plaintiff a to sue for actual allows Subsection if body’s plat application on a damages governing caused decision verdict, jury arbitrary capricious. special In its that decision was (1) arbitrarily capriciously when it: that Red acted concluded (2) sixty days; applied the Kiely’s application within failed review conditionally application wrong regulations approved when 10,1997, twenty-six ofwhich subject to conditions-some September (3) subject void; SIA to seven approved were unlawful (4) Kiely’s application and failed conditions; and denied additional explaining jury denial. awarded findings issue written protected constitutionally as a $292,170.00 damages. Inasmuch liability finding under pre-requisite to a interest ofthis MCA, analysis 76-3-625(1), need not conduct constitutional *19 75 judgment. aspect of the court’s 76-3-625(1), damages pursuant to to addition its action for §
MCA, Lodge’s April 15, appealed also 1999 denial of its 76-3-625(2), preliminary plat application, pursuant to MCA. This the party appeal allows a district court if it is subsection governing approval, or aggrieved by body’s approval, conditional disapproval preliminary plat. proposed plat of final subdivision (2) However, specify may does the subsection when district court grant may grant. relief nor what relief it trial, Following considering jury’s advisory and after
verdict, Findings Fact, the District Court entered its of Conclusions of (2) Order, of76-3-625, pursuant Law and to subsection MCA.The court Lodge arbitrarily, capriciously concluded that Red acted and within unlawfully mandatory when it: failed to sixty-day act requirement 76-3-604, MCA; conditionally approved the application pursuant Development with conditions to the 1997 Code rather than Regulations the 1995 Subdivision at effect the time the application submitted; rejected was application without findings. 15, The court April ordered Red vacate 1999 denial and conditionally approve preliminary application subject eighteen originally conditions recommended County Planning Board. Red Lodge contends this order an unconstitutional violation
of the doctrine of separation powers, that arguing under the Platting Act, Montana governing body town, Subdivision (city, county) had “the sole approve, conditionally discretion to approve or limit, deny a proposed application.” Kiely counters that Act does not the District statutory powers appeal, Court’s on and that court properly arbitrarily, determined that Red capriciously, acted unlawfully. Kiely’s Alsorelated this issue contention on cross- appeal that the partial summary judgment District Court’s on March 20,1999, effectively abrogated prior conditional approval of preliminary plat. law, When we review district court’s our conclusions of
standard plenary of review is and we must determine whether the court’s conclusions Hampton are correct as a matter law. v. Lewis County, 81, 19,305 19, 23 and Clark MT 103, 908, Mont. P.3d ¶ ¶ (citing Lane Ins., 252, 15, 296 v. Farmers Union 1999 MT Mont. ¶ ¶ 15). 989 P.2d The standard of ¶ ¶ review a district ruling 76-3-625(2), MCA, court’s is the same standard of review apply agencies: to decisions of administrative “the standard of is whether court and this Court applied the trial
review to be body] acted [i.e., governing agency record establishes Ltd. v. unlawfully.” Madison River R.V. arbitrarily, capriciously, P.2d Ennis, 15, 30, 298 Mont. 2000 MT ¶ Town ¶ (1989), 238 Mont. State Lands Dept. Fork Pres. v. (citing North ¶ 867). district court or this Court 451, 458-59, When a 778 P.2d standard, a “arbitrary capricious” an action under the reviews “merely because ruling permitted is not appealed reversal might support or evidence which record contains inconsistent evidence *20 appear Rather, being challenged must the decision a different result. unmotivated, on the random, unreasonable, seemingly based to be 329, (1993), Mont. Falls 258 v. Columbia existing record.” Silva of 335, 671, 675. 852 P.2d determination the District Court’s First, conclude that we cannot in unlawfully arbitrarily, capriciously, and Lodge acted that Red 15,1999, April was plat application denying Kiely’s preliminary that its “conscience Memorandum, District Court noted In its the error. state.” disregard for the laws of our the Council’s shocked was and Conclusions of Findings of Fact the District Court’s We conclude evidence, as the as well and credible based on substantial Law were not the court did and therefore conclude jury, from the advisory verdict and arbitrarily, capriciously, determining acted err in unlawfully. relief a district 76-3-625(2), MCA, silent as to what is Section statute, this aggrieved party. Under may for an
court enter governing the by a decision of aggrieved party [a] ... who proposed disapprove a conditionally approve, or body approve, days may, 30 plat within or final subdivision preliminary plat county the court in decision, to the district appeal the after specify must petition The is located. the involved which appeal is made. which the grounds upon 76-3-625(2), MCA. Section 76-3-625, MCA, is of devoid history legislative behind § statute, other intended under scope ofrelief insight into the
helpful
holding
“overturned”
provision
that the
indication
passing
than a
258, 859 P.2d
(1993), 260 Mont.
County
Flathead
City of Kalispell
v.
a
(because
of
judicial
for
review
mechanism
there was no
458
in the
subdivision
preliminary
approval of a
conditioned
decision
Act,
County Commissioner’s
Platting
Subdivision
an
provide
not
stated,
legislature did
“the
had
appealable).
not
We
of
involving decisions
for cases
this Act
under
appeal process
77
preliminary
accordingly,
Court,
plats;
conditional
of
this
will
261,
at
Kalispell,
(citing
not fabricate one.”
260 Mont.
because the
prescribe
statute does
rules to
trying
appeal.”
district court in
such an
Heldenbrand Montana St.
Reg.
Bd.
P.E. &
L.S.
Mont.
411 P.2d
of
(the
court,
provided
by statutory right
function
district
as
appeal
registration
board
decisions,
was to “assure that
overstep
guidelines
administrative officials do not
of their
authority
legislature,”
set down
right
appeal
as such
existed, the
plaintiffs
district court did not err
it denied
when
writ of
mandate).
Heldenbrand,
person,
statute at issue
allowed
aggrieved by any
registration,
action of the hoard of
appeal
court,
district
hearing,
and after a
cotut
“said
shall make such decree
sustaining
reversing
may
just
the action of
board
as...
seem
66-2345,
Heldenbrand,
proper.”
Mont.
(citing
P.2d at 747
at
1975)).
(repealed
Court recognized
although
This
RCM
a trial of such a case in
may
“awkward, difficult,
the district court
be
unsatisfactory,”
judge
“learned district
be
would
able
devise
*21
ways
incompatible
and means not
with the
for disposing
Code
of the
Heldenbrand,
case.”
agency decision, light in holding River, of our in Madison where we applied (arbitrary, the same of capricious, standard review or unlawful) legislative to decisions as to of those administrative agencies, analysis we conclude the fashioning rationale behind the for judicial the of proper scope review in applies Heldenbrand likewise in Heldenbrand, the instant As in case. we noted to granted, disposition [t]he relief be or to be made of the appeal, depend must and each facts circumstances of case as it judge. machinery, by comes before the district Corrective its nature, limits, given must be flexible of within course the statutory framework, adequate proper constitutional that dispositions may of each case result.
Heldenbrand,
the discretion to determine what based noted, appeal. of As have 76-3- facts and circumstances each we MCA, authority court’s or 625(2), no limits on the district provides thin scope review, to fashion such limits out of air. and we decline held, statutory construction consistently As have the Court’s role we contained “is to and declare what is terms in substance ascertain therein, has omit what has been not to insert what omitted to been Court, MT 158, 13, 300 Mont. inserted.” Huether District ¶ MCA). 1-2-101, plain (citing We conclude P.3d ¶ ¶ authority 76-3-625(2), MCA, grants the district court the language appropriate remedy aggrieved party. fashion an for an to remedy in this the District Court’s We conclude case-ordering Kiely’s preliminary approval conditional subject original eighteen conditions recommended application remedy, and County Planning proper an by the Board-was unique factual situation with appropriate response to which fashioning remedy, this the court noted that presented. court [Kiely] approval,” “the clear that was entitled to evidence was disregard recognized that, “[i]n Council’s laws view acting [Kiely’s] plat] application, upon [preliminary of our state in if the court expect there no that it would follow those laws reason matter, cannot Council.” We were to ... remand the back logic. fault the District Court’s ruling which ordered Accordingly, we affirm the District Court’s (a) 15,1999 Kiely’s preliminary April its denial of vacate (b) conditionally preliminary plat approve
plat application, eighteen period for a subject original conditions application However, only modify ruling the court’s extent years. three years from approval shall be in force three Kiely’s preliminary that years from the date decision, rather than three the date of this Court’s This conclusion also resolves order was entered. District Court’s partial the District Court’s cross-appeal, contention on prior conditional summary judgment effectively abrogated granted Kiely has been preliminary plat, because approval Kiely’s summary partial in motion for sought the conditional judgment.
Issue dismissing the individual Court err Did the District *22 §of 2-9- summary judgment on the basis by defendants order of 79 305(5), MCA? de novo. summary judgment rulings appeals from We review Services, 19,
Sleath v. Mont Home Health 381, MT 304 West ¶ omitted). (citation 1, 19, 16 1042, Mont. P.3d When we review ¶ ¶ judgment, apply we the same grant summary a district court’s of applies, evaluation as the district court based on Rule M.R.Civ.P. (citation omitted). Sleath, Finally, we court’s review district ¶ correct. Steinback v. Bankers of interpretation law to determine if it Co., 483, 11, 15 Cas. 11, 302 2000 MT Mont. P.3d ¶ ¶ Life (citation omitted). 11¶ Kiely argues cross-appeal immunity does not attach to the that members) (i.e., Lodge City individual defendants Red Council under § MCA, 2-9-305(5), because council members cannot immunize creating themselves without a conflict interest. asserts also City administrative, legislative, Council's actions were than rather Lodge and that therefore neither Red nor the individuals claim may 2-9-111, immunity Lodge under MCA. Red counters that the council § acting employment members scope were within the their and that legislative, their actions were that immunity therefore the 2-9-111, MCA, also cites to W.D. provisions apply. Red Lodge § County Const. Inc. Bd. Com’rs 348, 351-52, 218 Mont. P.2d proposition that the approving act application legislative act, ais which entitles the council members to immunity. July 3, In Order, 2000 Memorandum and District Court determine, 2-9-111(2), MCA,
declined to under the acts the whether City by Council its council were members either “administrative” or ‘legislative.” court, 2-9-111(2), opinion MCA, of the and 76-3- §§ 625(1), MCA, Rather, were not in conflict. considered “the court 76-3-625(1), remedy MCA, specific afforded Section to be to cases involving appropriate application of the provisions of the Montana Platting granted Subdivision and Act.” The council court the individual 2-9-305(5), MCA, immunity noting members that “stated under City position Lodge city acted Red council members in their capacities representatives official as of the Red 2-9-305(5), acknowledgment contemplated by Council is tacit as MCA.” First, reject Lodge’s argument that the actions legislative subject immunity were Council and therefore
protection. administrative, We conclude the council's acts were legislative, afford nor the council and therefore neither *23 2-9-111, immunity under MCA.
members § Although held in that the of a we W.D. Construction members County damages were immune from suit for Board Commissioners they require arising allegations compliance from failed to with approval, Lodge’s to a regulations prior subdivision final misplaced, is because that case was reliance W.D. Construction 2-9-111, recognized MCA.As prior decided amendments we § Dagel City (1991), in v. Great Falls 250 Mont. 819 P.2d changed 2-9-111, (1991), significantly MCA “Section expressed in the statute and therefore modified the theories various amendments immunity Moreover, recognized cases . ...” that the entity longer clear no immune for its governmental “make that a is all actions,” only legislative. Knight City actions considered those to be 1270, 1278 232, 245, 827 (emphasis 252 P.2d Missoula Mont. of in amending original). Dagel, purpose we recited the ofthe act 2-9- 111, MCA, Legislature as: which described THAT
AN ACT CLARIFYING
STATUTORY LEGISLATIVE
ONLY TO LEGISLATIVE BODIES OF
IMMUNITY EXTENDS
GOVERNMENTAL ENTITIES AND ONLY TO LEGISLATIVE
BODIES;
TAKEN BY THOSE
CLARIFYING THAT
ACTIONS
ARE NOT IMMUNE UNDER
GOVERNMENTAL ENTITIES
THE
FOR
LEGISLATIVE
IMMUNITY STATUTE
ACTIONS....
NONLEGISLATIVE
added).
(emphasis
Dagel,
231-32,
250
at
of the policies rather are the execution of public policy,” declaration of but conclude Platting Act. We as set forth in the Montana Subdivision and City Council, gave rise this which the actions Red acts, accordingly neither the action, conclude were administrative are acting entity for the immune entity any nor member governmental However, this Kiely’s complaint. alleged suit for actions from dispositive conclusion is not of the issue before us. We must now determine if the District Court’s dismissal of the individual council pursuant 2-9-305(5), MCA, members was error. The District 2-9-305(5), MCA, Court relied on provides: which
Recovery against a governmental entity provisions under the parts through chapter of this constitutes a complete bar to any recovery action or damages by claimant, by reason of subject matter, the same against employee negligence whose wrongful act, error, or omission or other actionable conduct gave rise to the any against claim. In such governmental action entity, employee gave whose conduct rise to the suit is liability immune from by reasons of subj the same ect matter if the governmental entity acknowledges judicial bound determination that the upon conduct brought which the claim is arises out of the course and scope employee’s employment, *24 (b) unless the claim constitutes an provided exclusion in through (d) (6). of subsection We have had occasion interpret
¶87
and apply this
Story
statute. In
v. City
(1993),
Bozeman
207,
259
202,
Mont.
856 P.2d
jury
the
of
awarded the plaintiff $850,000 in damages against
city
for breach
of contract and/or breach ofthe
good
covenant of
dealing,
faith
fair
and
$100,000
also awarded
damages against
city engineer
intentional interference with contractual relations. After determining
recovery against
engineer
and the recovery against
city
arose from the
subject matter,
same
we held
recovery
“the double
jury
awarded
is barred
the plain language
2-9-305(5),
of §
MCA,”and
$100,000
struck the
against
award
city engineer
from
judgment.
Story,
221,
82
Lodge.
Kiely argues the individual defendants cannot
immunize
(i.e., acknowledge
scope
themselves
their conduct was within the
However,
employment)
creating a conflict of
without
interest.
2-9-305(5), MCA,
face,
conclude the first sentence of
is on its
holding
complete
individual council
liable. See
bar
members
222,
Therefore,
at
Story, 259 Mont.
analysis same reached the result as we do here, correct, uphold ruling regardless we will a court if it is given reasons result. below for the Schmasow Native American Center, 12, 304, MT 293 Mont. 978 P.2d 12¶ ¶ ¶ (citations omitted). Therefore, we hold the District Court did err when it dismissed individual defendants.
Issue Did regarding the District Court abuse its discretion admission of evidence? rulings evidentiary Our standard of of a district court’s is review Co., &
abuse discretion. Finstad v. W.R. Grace 2000 MT ¶ 43, 8 (citing Hosp. Mont. Busta v. P.3d Columbus ¶ ¶ 342, 353, 916 122, 128). Mont. Corp. P.2d The district court Thus, if is has broad discretion determine evidence admissible. discretion, of that Court will not overturn the absent an abuse this Baldauf, Finstad, district court’s determination. (district 43. See also 41¶ ¶ has broad to determine whether evidence is court discretion Evidence). pursuant relevant and admissible the Montana Rules of test “The for abuse discretion whether trial court acted arbitrarily employment judgment *25 without conscientious exceeded resulting injustice.” Jarvenpaa the bounds of reason substantial 118, 13, 970 Inc., 306, 13, 292 MT Co-Op., Glacier Elec. Mont. ¶ ¶ (citation omitted). 84, P.2d 13¶ by refusing Lodge argues Red District Court erred to admit testimony and that demonstrated the reasons the
certain documents 15,1999 (i.e., Kiely’s application April minutes of Council denied members). Lodge meeting, testimony of Red also and certain council admitting negotiations settlement argues erred in evidence of the court excluding Kiely’sproposed SIA, that resulting and the and in evidence zoning the 1995 requirements did not meet the under subdivision Regulations. Finally, Lodge Red contends it was Subdivision ruling Pump, for it to in Town Inc. v. Board reasonable believe Adjustment, 349, permitted it to 1998 MT 292 Mont. 971 P.2d retroactively, and the District apply Development its 1997 Code excluding relating to the 1997 Court therefore erred evidence Development Code. First, Lodge testimony regarding Red asserts the settlement
negotiations resulting under Rule and SIA were inadmissible District Court from precluded M.R.Evid. The held that was not admitting negotiations evidence ofthe settlement because under 76- 3-608(5)(b),MCA, required governing body to which consult with give weight due and to expressed subdivider consideration preference subdivider, Lodge statutorily mandated negotiate. admitting We conclude the District Court did not err in negotiations resulting evidence from the settlement subdivision improvement agreement. 408, M.R.Evid., Rule complete concerning is not a bar on evidence Rather, compromise. M.R.Evid., only
offers of Rule excludes being evidence that is prove liability validity offered to or the of a claim specifically require or amount. The rule “doesnot exclusion when purpose evidence is offered for another ....” Rule M.R.Evid. testimony concerning negotiations resulting settlement and the SIA were not prove liability validity Kiely5sclaim, offered to or the SIA). nor prove (i.e., the matter had been settled to enforce the Rather, Kiely offered the evidence arbitrary to demonstrate the capricious nature of the decision of Lodge adopt subject the SIA Therefore, to seven new conditions. the evidence falls under the exception clause of Rule 408. We conclude the District Court did not abuse its in admitting negotiations discretion evidence of the resulting SIA. Second, we conclude the District Court did not abuse April 15,
discretion when it excluded the minutes of the meeting, testimony Council as as well from individual council members, explain as offered Red the individual member’s reasons for the denial. The record is clear that Red violated 76- 3-620, MCA,by issuing explaining a written statement the reasons for the denial justifying and the evidence the denial. The council meeting are equivalent minutes not the of the written statement the statutorily issue, required council was and cannot be used as a Accordingly, substitute. the District Court did not abuse its discretion excluding the minutes. *26 84 Norwerethe
¶97 after-the-fact opinions ofindividual councilmembers as to the reasons for the denial relevant. In analogous situation, an courts will not post-enactment consider legislators statements of they because part are not ofthe legislative history accordingly, not part (9th America, of the record. See Slaven v. BP Inc. 1992), Cir. 973 1468, F.2d 1475; and Hazardous Waste Treatment Council v. U.S. (D.C. 1989), E.P.A. Cir. 355, 886 F.2d Therefore, 365. we conclude it was not error for the trial testimony court to exclude from the individual council members as to their denying Kiely’s reasons for preliminary application, since testimony such “post- would constitute statements, decision” which properly part were not of the record. Third, we conclude the trial court did not abuse discretion when it excluded evidence concerning zoning requirements. The trial court properly concluded dealing that evidence zoning with was not relevant to the issue of whether Lodge Red acted arbitrarily or capriciously when it acted Kiely’s preliminary plat applications under the Platting Subdivision and Act. challenges also partial the District Court’s summary
judgment ruling which concluded that the Development 1997 Code (which issues) presumably addressed zoning could applied not be retroactively. rejected The District Court Lodge’s argument that our Pump decision Town apply allowed Red the 1997 Development Code to preliminary plat application. We review a district court’s interpretation of law determine if it is correct. Steinback, 11. ¶ Although Pump Town addressed issues similar to those
presented here, readily this distinguishable Here, case is on its facts. explicit an provision ofthe Platting provided Subdivision and Act that “[r]eview and disapproval of a may subdivision ... occur only regulations under those in effect at the time an application for approval of a preliminary plat... is submitted governing body.” 76-3-501(2), Thus, Section MCA. application retroactive of the 1997 Development Kiely’s May, Code to preliminary plat 1996 application expressly precluded by Accordingly, statute. we conclude the District Court excluding did not err in Development 1997 Code as zoning regulations. evidence of local
Issue 7 Did the District Court err modifying damage award? reviewing The standard of damages review when an award of Sletteland, Roberts, v. its discretion.
is whether the trial court abused 36, 1062, (citing 382, 36, 21, 16 P.3d 2000 MT 304 Mont. ¶ ¶ ¶ 970, P.2d Edington v. Oil Co. 213 Mont. Creek 978). 27-1-302, cases, damages In all must be reasonable. Section substantially must reduced exceeds “[A]n MCA. award be when Shoesource, Pay can sustain.” Onstad v. less which the evidence (citing 301 Mont. 9 P.3d Maurer MT ¶ ¶ ¶ *27 229, 237, Distributing (1996), Co. 275 Mont. 912 P.2d Clausen 199). “Only grossly proportion the amount awarded is so out of when injury appellate shock the conscience an court to the as to will (citation omitted). Onstad, also, Frisnegger intervene.” See ¶ (amount Gibson 183 Mont. 598 P.2d of sufficiently record, damages awarded based on did not shock the conscience, by in effect approved was the district court when it trial). denied motions for remittitur and new Lodge argues directing that the trial court’s order it to approve preliminary application subject eighteen conditions damage award, damages eliminates the basis for much of the since the devaluation, losses, included property amounts for future and for costs project. Kiely damages associated with the contends the are not duplicative they extinguished upon nor should be the conditional approval application, arguing of its “whether Kiely approved, experienced appeal, Kiely subdivision was a loss.” On jury’s damage asks this Court to affirm both the and the award approval granted by conditioned the District Court. trial, During Kiely presented from certified evidence analyst, types damages
valuation who testified to several of suffered by Kiely. delay Lodge’s He testified that due in Red decision making, Kiely damages suffered in the form of lost investment value (when County Planning of funds between Board first October addition, approved Kiely’s application) Kiely and the trial. In asserted delayed that Red Lodge’s decision-making also resulted in devaluation of the to a in the real market due decline estate between years analyst of 1996 and 1999. The valuation testified that the lost property damages investment value of funds and would devaluation ultimate regardless application. denial of have been suffered Kiely presented receipts expenditures also several that included stemming start-up project costs associated and costs both with city. Kiely application process from the continued with the While $179,000 costs, jury only $15,000. Finally, claimed in such awarded Value,” Kiely that it suffered “Lost Future Investment also asserted decision-making caused an also Lodge’s delay arguing that issues time due to two-year development increase additional analyst the valuation system. the sewer While implementing with may be somewhat Future Value agreed that the Lost Investment (i.e., granted approval), conditioned relief affected what development could still a loss because he stated would have Kiely asserted properly approved. if it had been done earlier have been however, $116,000; jury to be its Lost Future Investment Value damage. $97,170 for this element of the sum of awarded did not address the issue Although District Court testimony modification, and evidence damages we conclude that approval that the conditioned support at trial the conclusion presented jury’s or reduce the award should not eliminate Kiely’s application fully Moreover, Court was aware Kiely. the District damages Kiely’s request for the two presented by potential dilemma 76-3-625(1), (money damages), and 76-3- MCA remedies under § 625(2), of a denial or conditional (appeal MCA conference, discussed the During the court pretrial application). ultimately parties, remedies with the potential for inconsistent Kiely’s appeal under 76-3- jury advisory jury as an designated the damages under 76-3- concluding that the issue of 625(2), MCA, while jury. 625(1), MCA, determined would be *28 and the Court, having heard all the evidence District ¶106 possible overlap damages, cognitive of the jury’s on verdict to position in the best remedies, and was therefore between See Maddux duplicative. excessive or damages if the were determine Tague v. (citing Bunch 784 P.2d 241 Mont. 297) (district court in best Caplice Co. (1903), 28 Mont. 72 P. John damages since proof punitive of of requirements determine position to witnesses). Therefore, we conclude all evidence and observed it heard by declining to its discretion District Court did not abuse that Kiely’s preliminary its order that damages upon awarded adjust the original subject to the conditionally approved be plat application damages is affirmed. Accordingly, the award of eighteen conditions. as holdings our follows: summarize We (1) accordingly, § vacate Kiely’s 1983 claims dismiss § We award; attorney’s fees jury and the (2) Court’s instructions affirm the District We form; special verdict
(3) vacated order which the District Court’s affirm We and directed application Kiely’s preliminary Lodge’s denial subject to Kiely’s plat application city approve preliminary conditions, year approval eighteen original with the three Opinion; period commencing as of the date of this (4) summary judgment partial affirm the District Court’s We action; dismissing council from this order the individual members (5) evidentiary rulings; the District We affirm Court’s (6) ruling summary judgment We affirm the District Court’s retroactively the 1997 apply that Red was not entitled to Code; and Development
(7) damages. We affirm the award possesses preliminary plat approval, now conditioned on the County original eighteen provisions by Planning recommended Board, chooses, may, proceed apply plat approval if it for final according 76-3-611, MCA. § part part. Affirmed in and reversed in GRAY,
CHIEF JUSTICE JUSTICES NELSON and REGNIER concur. specially concurring.
JUSTICE RICE I concur with the Court’s dismissal of 1983 claims but § entirety analysis.
not with the of the Court’s (9th 1980), The Court relies on Jacobson v. Cir. Hannifin proposition F.2d for the that a prohibits statute which government acting “unreasonably” legitimate from does not establish claim necessary support However, of entitlement a 1983 claim. my view, persuasive authority holding Jacobson for the Court’s herein. gaming by Jacobson involved the denial license
fill Gaming governing Nevada Commission. The Nevada statute granted authority deny commission “full and power absolute any any application for cause deemed to the commission. reasonable” 463.220(6). grant authority hardly Nev. Rev. Stat. A broader can imagined. Clearly, protectable interest, “legitimate be no entitlement,” claim was created the Nevada statute. Such carte provided blanche was not the statutes at issue here. 76-3-608, MCA, Although only the Court as describes body “unreasonably,”
requiring governing to not act a close review in the provided term within the full context of the statute *29 opinion granted Court’s thereunder is not reveals that the discretion unconstrained: governing body may unreasonably restrict a
[A] landowner’s ability develop land, recognized it is that in some instances but may unmitigated proposed development of a be impacts unacceptable preclude approval plat. will “ 76-3-608(5)(a), are not preclude”
Section MCA. “Restrict” and equivalent provision. power place terms within this reasonable not, itself, in and of include the development restrictions on the does proposed development. provision As the authority preclude indicates, development may a be the “some instances” which only unmitigated impacts exist precluded altogether are those in which instances, unacceptable. and are found to Even in those be thereby governing body may mitigate unacceptable impacts development. Section 76-3- eliminate these obstacles to body’s 608(4), governing that the provisions MCA. These demonstrate mere of unreasonableness duty applicant exceeds the avoidance plan. requires earnest consideration of the landowner’s find Nonetheless, I do sufficient discretion within the statute Section purposes to defeat a claim of entitlement of a 1983 claim. 76-3-608(4), MCA, body approve require governing does not that the stating only “may” that it do so. mitigation impacts, of adverse Without can mitigation, development’s “unmitigated impacts” preclude language as well and approval. qualifying The statute uses other developer in the meets mandating approval cannot be read as event requirements. certain (7th 1991), The court in Wallace v.Robinson Cir. 940 F.2d necessary that is to establish explanation
offered an of the entitlement interest, drawing many other cases protectable liberty the issue: which have addressed “legitimate [statutory] language create a claim
Does this
not,
liberty
property.
If
there is no constitutional
entitlement”?
entitlement” means
“legitimate
omitted.] A
claim of
[Citations
is instead an entitlement
more than an
desire.
It
abstract
facts, something you
prescribed
hold unless
contingent on
[Citations
of its defeasance can be established.
conditions
durably yours ... as distinct
Something “securely and
omitted.]
your
many conditions as to make
you
subject
from
hold
to so
what
omitted.]
transitory,
[Citations
or uncertain”.
meager,
interest
“legally
must be
enforceable”
securely? Your entitlement
How
[Kentucky
Or,
formulation
omitted].
[citations
454, 109
Thompson
Corrections v.
490 U.S.
Department of
“
mandatory
‘explicitly
must be
1904, 104
506]
L.Ed.2d
there
S.Ct.
‘specified
the establishment
language,’ in- connection with
to limit discretion.”
predicates’
substantive
*30
unwieldy, Wallace’s
Although somewhat
Wallace,
¶115 concurring dissenting. and JUSTICE TRIEWEILER ofissues numbered one majority’s I concur with the resolution ¶116 I majority’s resolution of issue seven. through six. I dissent from the to the District Court for damage vacate the award and remand would light of the District Court’s damages further determination of application pursuant approval plaintiffs decision to order of the 76-3-625(2), MCA. damage the of the law set forth agree While I with discussion any majority Opinion, disagree I that there was rational basis
in the damages in this case jury on could determine reasonable which appeal from knowing plaintiffs the ultimate outcome of the without words, City’s preliminary plat application. denial of its other arbitrary a final decision City’s capricious and denial was whether District Court have a going or was to be vacated would damages plaintiff. sustained impact substantial the actual following indicate, jury instructions was led to believe the As the denial was final. 12, as jury In Instruction No. was instructed follows: meeting special held a April
11. On Council The Preliminary Approval. for Plat Application denied the Preliminary Approval Plat Application Council’s denial of the action, CodeAnn. 76- decision or order. Mont. constitutes final [Emphasis added.] 3-625. 13, again instructed that: jury In Instruction No. was 10, Lodge’s September of Red You are instructed that January approval approval, conditioned denial Agreement April Improvement Subdivision actions, [Emphasis added.] orders. decisions or are final following advice jury given In Instruction No. regarding damages: you then arbitrarily capriciously, you
If find the acted you will such sum as believe should award Construction it has any damages reasonably fairly compensate it for sustained, reasonably and is future, certain to sustain in the as a September 10, result of the approval, conditional January Improvements of the Subdivision Agreement April 15, and/or the 1999 denial. damages
The just must be have reasonable basis in the damages evidence. The exact, need not be mathematically but there to make a reasonable enough must be you evidence for damages estimate without speculation guesswork. Recovery cannot be denied for damages simply they because are difficult to [Emphasis determine. added.] jury awarded the following damages: Damages
Nature of Amount Lost $100,000 investment value *31 Property 80,000 devaluation expended 15,000 Costs 97,170 Lost future investment $292,170 TOTAL may While there have been an evidentiary awarding basis for some of these damages whether the effects of the Council’s decisions were permanent only is temporary, way there no to know jury’s whether assumption verdict was based on its that damages temporary permanent. were meaning Confusion about the jury compounded by verdict is Instruction No. 36 in which the jury was instructed that if it found a violation of 42 U.S.C. § Kiely damages was entitled to for “[t]he reasonable value of the investment income lost and future, which will be lost in the property out-of-pocket expenses.” However, devaluation and jury was also instructed in you Kiely “[i]f No. 36 that find for Construction on its claim, you Kiely U.S.C. 1983 but find that Construction has failed to prove damages, you actual damages shall return an award of nominal not to exceed $1.00.” jury did find for on its 1983 claim apparently but proven
found that it had not actual damages for investment income lost, out-of-pocket expenses. Therefore, devaluation and Kiely’s rights returned a verdict for violation civil in the amount of jury’s one dollar. The damages failure to find for violation of rights totally civil inconsistent with its earlier determination that he specific damage had sustained losses for to the those elements of due City’s arbitrary capricious preliminary denial of his application. circumstances, I conclude considering all of the would After necessarily uninformed and jury’s damage verdict was
that damage when the issue posture of the case speculative because granted jury subsequent to the and the relief was submitted damage jury’s necessarily mitigated much of the on which which may verdict have been based. District way There is no to know from the record whether the damages
Court took into account the extent to actual which Kiel/s mitigated by subsequent Following jury’s award of were relief. judgment granting Kiely damages, prior but to the District Court’s approval, City argued any remedy granted by conditional 76-3-625(2), denial, MCA, pursuant District Court other than However, damage should result in a reduction of the award. District Court did address or to consider this issue in its appear Fact, Findings of Conclusions of and Order. Law reasons, majority For these I concur in part Opinion with jury’s dissent part Opinion but from that which affirms both damages award of and the refusal of the District Court to reduce those damages light granted plaintiff of its affirmative relief 76-3-625(2), pursuant MCA. joins foregoing
JUSTICE LEAPHART in the concurrence/dissent.