Love v. Harlem Irrigation District
802 P.2d 611
Mont.
1990
Check Treatment

*1 LOVE, ROSEMARY LOVE and CLINTON Appellants, Plaintiffs v. LARRY DISTRICT, HARLEM IRRIGATION ANDERSON, L. MOHAR and GILBERT Respondents, Defendants LOVE, CLINTON LOVE and ROSEMARY Appellants, Plaintiffs v. KULBECK, KNUTE Respondent. Defendant No. 90-094. Sept. 1990. Submitted on Briefs Rehearing Denied Jan. 1991. Decided Dec. 802 P.2d 611. *2 L. Irving, Glasgow

David for Appellants. Plaintiffs and Robert D. Richardson; Morrison, Morrison and Kathleen Young, H. Melcher, Richardson; Havre, Brown & for Defendants Respondents.

JUSTICE WEBER Opinion delivered the of the Court. When the Harlem Irrigation District discontinued delivery of water to the Loves for failure pay assessments, to water Loves brought suit against Irrigation give District for failure to ade- quate notice. The District Court District, of the Seventeenth Judicial County, granted Blaine defendants motion for judg- ment based on immunity. order, From that plaintiffs appeal. We affirm.

The sole issue for our review is: Did the District Court err in granting summary judgment in favor of defendants on the basis immunity? (Loves)

Plaintiffs owned and operated family farming ranching operation located within the Harlem Irrigation District District) (Irrigation County, located in Blaine Montana. The Irrigation District pursuant was established to public corporation is a promotion for the of the public welfare. The Irrigation commissioners of the qualified District are and elected pursuant to 85-7-1702, state law. 85-7-1501 and MCA. The §§ (Mohar), Anderson defendants, Larry Gilbert L. Mohar individual (Kulbeck) (Anderson) for the commissioners and Knute Kulbeck were this litigation. the time to Irrigation District at relevant As since 1967. Irrigation The Loves were members of District operation taxes they bi-yearly members were assessed such up to Irrigation paid their assessment of the District. Loves However, the for the half of including the installment first subsequent up installment for 1980 all installments second litigation paid. the time of this May Irrigation sent a letter On District certified the Loves which read: Mr. and Love:

“Dear Mrs. Board, brought dining the State “It was to the attention of the March, that assessments completed audit which was your property years more than arrears. Pursuant are two Law the Harlem Montana 25, your advise that as of water service will be you May wishes to paid. terminated unless water assessments necessary. regret this action has We also wish “We become *3 may separately that you delinquent paid advise water assessments county delinquent. taxes are also when 9,May please disregard “If made payment has been since notice.

“Sincerely yours, L.

“/s/Gilbert Anderson

“President” picked up

The letter was not the Loves was returned paid was not and water was Irrigation District. The water assessment as crops claim that their failed not delivered the Loves. Loves’ a result. 5, August 1983, alleging Irrigation filed that the

Loves suit on losses crop and the were liable for District individual commissioners Court punitive damages. On the District November in their years in delinquent that the fact two ruled Loves were Irrigation p.m., May assessments until 5:00 1983. prior to in that the Loves were position District erred date. later, continued, years and six Discovery litigation allowing the 9, 1989, its order the District Court entered November 446

defendants to amend its answer to raise immunity as an affirmative judgment defense. Final 20,1989, was entered on granting November defendants summary judgment motion for grounds on the 4,1989,

On December the Loves made a motion to amend the order based, and for trial part, upon newly new in discovered evidence. The District Court ruled that the new evidence incompetent, was declined to reverse its judgment. This appeal followed.

Did the District Court in granting err summary judgment in favor immunity? defendants on the basis of argue The Loves law, that under Montana issue is considered an They affirmative defense. maintain that the defenses estoppel of laches and should control since defendants had never raised the through years defense six and litiga- one-half tion. Loves further contend that defendants are not immune because they did legislative body. not act as a

Summary judgment proper only genuine is when there are no issues of material fact moving party and the judgment is entitled to 56(c), as a matter of Any law. Rule M.R.Civ.R inferences to be drawn from the factual record must be party opposing resolved favor ofthe summary judgment summary judgment is never a substitute for (N.A.) a trial on the merits. Hoven - Billings v.First Bank [244 229,] Mont. St.Rep.

In this case there are no genuine issues of material fact. The clearly a “governmental entity” within the meaning out, MCA. As point “governmental defendants entity” “political 2-9-101(5), includes subdivisions” as defined MCA: “ ‘Political any county, city, subdivision’ means municipal corpora- tion, district, district, special improvement school taxing any or added).” political other public corporation. (Emphasis subdivision or provides: “Every irrigation district public corporation so established is a promotion welfare, of the public and the lands included therein shall constitute all the property taxable and assessable of such *4 added).” district for the purposes chapter. (Emphasis of this 2-9-111(2),MCA, “governmental Under a entity is immune from member, officer, suit for an act or legislative body omission of its or a agent clearly thereof.” Harlem governmental entity immune from suit under these definitions. 2-9-111(3), MCA, individually Under the commissioners legislative body immune as of a who are immune from suit members by body. damages arising from action urge long The Loves that defendants waited too to raise 15(a), disagree. empowers Rule as a defense. We M.R.Civ.R In grant the district courts with broad discretion to leave to amend. (1987), 370, 378, 648, 653, Taylor Priest v. 227 Mont. 740 P.2d Court stated: 15(a) freely given

“Rule declares that leave to amend shall be when justice requires; underlying so this mandate is to be heeded. ... If the upon by [party] may proper facts or circumstances relied be a relief, subject ought he to be afforded an to test his opportunity claim the on merits.”

Here, the District Court allowed the amendment “in the further- justice” given ance of and “in order that all issues could full pointed consideration.” The District Court out that at no time did the addition, discovery. Loves ask for time for further In the Loves failed showing they by to submit evidence prejudiced the amendment. hold that correctly granted summary judg- We the District Court Therefore, ment favor of defendants on the basis of we conclude that we need not discuss the other raised issues parties.

Affirmed. HARRISON,

CHIEF JUSTICE BARZ TURNAGE JUSTICES concur. McDONOUGH SHEEHY, dissenting: JUSTICE

I vigorously grant dissent as as I can from this court reckless irrigation major- districts and their commissioners. The ity follow-up (1988), decision is a from County Bieber v. Broadwater 487, 145, 232 Mont. 759 P.2d Peterson v. Great School District Falls (1989), 61,] [8 No. 1 237 Mont. Ed Law and State ex rel. Eccleston v. District Court 240 Mont. 783 P.2d Eccleston, dissent, my 146G]. 8 Ed Law I stated extensive, immunity trilogy was the most his- even monarchical tory, men, king’s and that the had excused the his feudal vassals, (Sheehy, dissenting). lords and all their 783 P.2d at 370 J. granting immunity This case demonstrates the dire results from the feudal lords.

448 2-9-111,MCA, grant legislative is a of Neither acting legislatively irrigation district nor its commissioners were

the holding non-discretionary in In functions of administrative this case. character, entitled to in and therefore decisions greater any a extent than immunity, the have stretched to Utah, the legislative activity. the of the where concept other court discretionary that state functions Supreme Court of that state holds immunity, ordinary routine governmental agents of are entitled discretionary operational matters at the level are not considered be County recently That court has said in Hansen v. Salt Lake functions. J.): (Utah 1990), (Durham, 846 794 P.2d the trial arguments know which of defendant’s “Because we do not dismiss, we accepted granting in defendant’s first motion court actions contention that defendant’s must also address Hansen’s immunity gener- the discretionary not functions for which Utah Code ally negligence specifically is retained. waived for 63-30-10(l)(a). Ann., § Commission, 27 Utah. 2d early

“As as Carroll v. State Road discretionary functions are those 496 P.2d 888 we held that policy matters and do requiring governmental evaluation ofbasic — everyday, level those operational include acts and decisions at the 27 policy of factors.’ requiring routine matters not ‘evaluation broad State, 613 [v. noted in Frank at 496 P.2d at 891. We Utah.2d (1980)] exception is ‘intended discretionary that the function P.2d 517 large on impacting acts and decisions governmental to shield those individual myriad ways ofunforeseeable from people numbers of a public make actions, threat which would legal and class the continual Frank, 613 P.2d at 520. impossible.’ administration all but (Utah 1985), we held Arguelles, v. 716 P.2d 283 “In Doe policy operational implementing preexisting action a a ‘decision or discretionary under the undeserving protection of in nature and is sexually assaulted case, 14-year-old a was exception.’In that function community in the but placement who was on by juvenile a offender The Detention Center. discharged from the Youth had not been offender, state, juvenile guardian victim’s sued theory on the officer,the latter two defendants probation supervising recognize probation that ‘a Although we negligent supervision. of ‘acts discretionary,’ held that we decisions policy officer’s by case-by-case basis considered policy must be implementing thereby outside ministerial and they are to determine whether had decided protections/ Id. case been below reversed remanded for trial. judgment County argues “The that in its efforts to remove obstacles from part Big Creek as flood control natural channel Cottonwood necessarily an of judgment conduct involved exercise program, its discretionary disagree. rejected and constituted a function. We We in- ‘discretionary’ in cases interpretation this literal our earliest case.)” 63-30-10(l)(a). volving (Citing section at 846. persisted considering maj ority ofthis Court has that routine everyday governmental agencies public administering matters *6 acts, legislative are covered under the corporations and 2-9-111, has concept That provisions of MCA. erroneous § this from District rising created flood of decisions now to Court the Courts, at taking majority all the District are the because Courts word, legislative immunity every possible act applying their to government. of case, Al- frightening.

In this the implications of of though requires the Board of Commissioners irrigation keep an district book record all of its complete to of actions, every meetings per- minutes of and “other matters of kind taining irrigation to the district” no such record was belonging or kept here. No order or resolution ofthe Board ofCommissioners exists the the part which would show an official action on Board The in this case discontinue the water to the Loves. District Court decided was cut offfrom the Loves already had that when the water Commissioners, persons acting in the role the purported require their tax as to assessments were so rights. consequence, their farm did not suspension of water crop they year receive it needed and lost an entire the water perhaps other losses not now detailed before us. ought thinking decision means to to be what this this

every irrigation user in an district Montana: Under decision, agents only are immune not for their the district and which negligent acts but for their willful and wanton acts constitute a tort. appor- right irrigation regulate, supervise an district to MCA, apply

tion water under does not users by court rights rights established district who have water ditch decision, Yet, decree, use, under this appropriation or otherwise. negligent or wanton refusal of the supply District to the water to which the member of the may lawfully otherwise be entitled subject irrigation mil district agents and its liability, to no in spite rights. such water Thus, all water users within an irrigation district face the same risk of ruin that the Loves in this case have endured. The Commis- sioners apparently wrongfully deprived water, them of their says Court they have no recourse at law. might public

Well officials and irrigation commissioners of districts salute the majority of Immunity this Court. having say never you’re sorry.

JUSTICE HUNT concurs with the foregoing dissent of JUSTICE SHEEHY.