City of Missoula v. Mountain Water Co., DA 17-0272

Docket NºDA 17-0272
Citation391 Mont. 422, 419 P.3d 685, 2018 MT 139
Case DateJune 05, 2018
CourtUnited States State Supreme Court of Montana

391 Mont. 422
419 P.3d 685
2018 MT 139

The CITY OF MISSOULA, a Montana municipal corporation, Plaintiff, Appellee, and Cross Appellant,
v.
MOUNTAIN WATER COMPANY, a Montana corporation, and Carlyle Infrastructure Partners, LP, a Delaware limited partnership, Defendants and Appellants.


The Employees of Mountain Water Company, (Shanna M. Adams, Heather M. Best, Dennis M. Bowman, Kathryn F. Datsopoulos, Wayne K. Davis, Valarie M. Dowell, Jerry E. Ellis, Greg A. Gullickson, Bradley E. Hafar, Michelle Halley, Douglas R. Harrison, Jack E. Heinz, Josiah M. Hodge, Clay T. Jensen, Kevin M. Johnson, Carla E. Jones, Micky A. Kammerer, John A. Kappes, Susan M. Lowery, Lee Macholz, Brenda K. Maes, Jason R. Martin, Logan M. McInnis, Ross D. Miller, Beate G. Newman, Maureen L. Nicholas, Michael L. Ogle, Travis Rice, Eric M. Richards, Gerald L. Schindler, Douglas J. Stephens, Sara S. Streeter, Joseph C. Thul, Denise T. Tribble, Patricia J. Wankier, Michael R. Wildey, Angela J. Yonce, and Craig M. Yonce), Intervenors and Appellants.

DA 17-0272

Supreme Court of Montana.

Submitted on Briefs: January 31, 2018
Decided: June 5, 2018
As Corrected June 8, 2018


For Appellants Mountain Water: William T. Wagner, Stephen R. Brown, Kathleen L. DeSoto, Garlington, Lohn & Robinson, PLLP, Missoula, Montana, Michael Green, D. Wiley Barker, Crowley Fleck PLLP, Helena, Montana, Joe Conner, Adam Sanders, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Chattanooga, Tennessee

For Appellants Carlyle Infrastructure Partners, LP: William W. Mercer, Kyle Anne Gray, Brian Michael William Murphy, Holland & Hart LLP, Billings, Montana

For Appellee: Scott M. Stearns, Natasha Prinzing Jones, Randy Tanner, Boone Karlberg P.C., Missoula, Montana, William K. VanCanagan, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana, Harry Schneider, Jr., Perkins Coie LLP, Seattle, Washington

For Intervenor Montana Department of Transportation: David L. Ohler, Valerie D. Wilson, Special Assistant Attorneys General, Helena, Montana

Justice Jim Rice delivered the Opinion of the Court.

391 Mont. 424

¶1 This is another appeal concerning the proceeding initiated by the City of Missoula (City) to condemn the water system serving the City, previously owned by Mountain Water Company (Mountain Water) and its upstream holding company, Carlyle Infrastructure Partners, LP (Carlyle) (collectively, Property Owners). Property Owners appeal the District Court's orders resolving their claims for attorney and expert fees. The City cross appeals. We address the following issues:

1. Did the District Court err by denying the facial and as-applied constitutional challenges to the definition under § 70-30-306, MCA,
391 Mont. 425
of the "necessary expenses of litigation" a prevailing party is constitutionally authorized to obtain, as the "customary" rate for attorneys and experts "in the county in which the trial is held?"

2. Did the District Court err by determining that Carlyle is a prevailing party and thus entitled to recover litigation expenses?

3. Did the District Court err in awarding attorneys' fees for out-of-state attorneys?

We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In January 2014, the City made a final written offer of $50 million to purchase the water system, which was rejected by Property Owners. In February 2014, the City's Mayor made a public presentation introducing the legal team that would handle the City's condemnation lawsuit, which included specialized legal counsel from Seattle, Portland, and Spokane, and experts from New York, Seattle, and Minneapolis. Two Missoula law firms were also added to the City's legal team. In the City's pro hac vice motion, it stated "the City and its Montana counsel require the assistance and resources of a larger firm to prosecute this action." Likewise, Carlyle stated its intention to hire "the most qualified lawyers," and Property Owners ultimately retained attorneys from Denver, Chattanooga, Billings, and Missoula. The parties acknowledge that specialized, out-of-town legal counsel and experts charge higher rates than is customary in Missoula County.

¶3 In April 2014, the City initiated condemnation proceedings against Mountain Water and Carlyle. Carlyle filed a motion to dismiss, and later a motion for summary judgment, seeking dismissal as a party on the ground it was not the owner of the assets for which condemnation was sought. Carlyle argued the action should be prosecuted only against its subsidiary, Mountain Water. The

419 P.3d 689

City opposed the motion, arguing that Carlyle, as the ultimate owner who made the integral decisions regarding the water system and sale, was a proper party to the action. The District Court denied the motions, ruling the City had sufficiently alleged that Carlyle was an owner and thus a proper party to the action.

¶4 In August 2014, the District Court issued a scheduling order that gave the parties six months to complete their discovery and pre-trial filings, and scheduled a trial date shortly thereafter. The parties acknowledge that the litigation schedule was demanding, even for the large legal teams employed by both sides. The District Court recognized that the abbreviated time before trial was "undoubtedly demanding and difficult." Ultimately, nearly 450,000 pages of discovery

391 Mont. 426

were exchanged, over 100 trial witnesses were identified, and 47 depositions were taken at locations across the country.

¶5 After a three-week bench trial, the District Court entered a preliminary condemnation order in favor of the City, which this Court affirmed. City of Missoula v. Mountain Water Co. , 2016 MT 183, ¶ 103, 384 Mont. 193, 378 P.3d 1113. In the proceeding before the Condemnation Commissioners, Mountain Water sought compensation for the value of the water system, and Carlyle sought severance damages for unfunded pension liabilities. In November 2015, the Condemnation Commissioners determined the value of the water system was $88.6 million, awarding the entire amount to Mountain Water, and awarded no damages to Carlyle.

¶6 Because the value determined by the Commissioners was higher than the City's final offer of $50 million, Property Owners moved for reimbursement of their litigation expenses, arguing they were prevailing parties. Property Owners argued § 70-30-306(2) and (3), MCA, which cap reimbursement for attorney and expert fees to the customary rate in the county where the case is tried, is unconstitutional, both facially and as-applied. The City argued that Carlyle was not a prevailing party because it had received no damages from the Commissioners, that the statute is constitutional, and that Property Owners' expenses were largely unnecessary and poorly documented. In order to establish the necessity and reasonableness of their expenses, Property Owners sought to discover the City's legal bills for purposes of context and comparison.

¶7 The District Court held Mountain Water and Carlyle were both prevailing parties with a right to be reimbursed for their necessary litigation expenses. The District Court precluded discovery of the City's litigation costs, finding them irrelevant to whether Property Owners met the requirements under §§ 70-30-305 and -306, MCA, for compensation of their own litigation expenses, but received testimonial evidence of the rates charged by the City's Missoula counsel in determining the statutory cap to be set for Property Owners' fees. The District Court found the statute constitutional facially and as-applied, and imposed a Missoula County customary rate on all hours billed by Property Owners' attorneys and experts.1 The District Court further

391 Mont. 427

reduced the expense claim by 25% for Mountain Water and 35% for Carlyle, citing deficiencies in their billing records and concluding that "use of out of state counsel, overstaffing and duplication of effort result[ed] in attorney's fees that are not reasonable and necessary."2 Consequently, the District Court reduced the approximately $7 million claimed by Mountain Water and Carlyle for attorney and expert fees to just over $3.9 million. Mountain Water was awarded approximately $1.8 million in attorney fees and $1 million in expenses, and Carlyle was awarded approximately $900,000 in attorney fees and $223,000 in expenses.

419 P.3d 690

¶8 Property Owners appeal, raising the District Court's denial of their constitutional challenges to the statute. In response to their filing of a notice of constitutional challenge, the Montana Department of Transportation intervened on behalf of the Attorney General. The City cross appeals.

STANDARD OF REVIEW

¶9 This Court exercises plenary review of constitutional issues. Mont. Cannabis Indus. Ass'n v. State , 2016 MT 44, ¶ 12, 382 Mont. 256, 368 P.3d 1131 (citations omitted). We review a district...

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17 practice notes
  • Mont. State Univ.-Bozeman v. Mont. First Judicial Dist. Court, OP 18-0311
    • United States
    • Montana United States State Supreme Court of Montana
    • September 11, 2018
    ...conscientious judgment or exceeding the bounds of reason, resulting in substantial injustice. City of Missoula v. Mountain Water Co. , 2018 MT 139, ¶ 9, 391 Mont. 422, 419 P.3d 685. Whether a district court abused its discretion is a question of law subject to de novo review. Farmers Union ......
  • Mountain Water Co. v. Mont. Dep't of Revenue, DA 19-0262
    • United States
    • August 4, 2020
    ...Water Co. (Mountain Water V) , 2018 MT 114, 391 Mont. 288, 417 P.3d 321 ; City of Missoula v. Mountain Water Co. (Mountain Water VI ), 2018 MT 139, 391 Mont. 422, 419 P.3d 685 ; City of Missoula v. Mountain Water Co. (Mountain Water VII ), 2018 MT 245, 393 Mont. 68, 427 P.3d 1018.3 Liberty ......
  • Fouts v. Mont. Eighth Judicial Dist. Court, OP 21-0568
    • United States
    • Montana United States State Supreme Court of Montana
    • January 18, 2022
    ...judgment, beyond the bounds of reason resulting in substantial injustice. Larson , ¶ 16 ; City of Missoula v. Mountain Water Co. , 2018 MT 139, ¶ 9, 391 Mont. 422, 419 P.3d...
  • Fouts v. Mont. Eighth Judicial Dist. Court, OP 21-0568
    • United States
    • Montana United States State Supreme Court of Montana
    • January 18, 2022
    ...judgment, beyond the bounds of reason resulting in substantial injustice. Larson, ¶ 16; City of Missoula v. Mountain Water Co., 2018 MT 139, ¶ 9, 391 Mont. 422, 419 P.3d 685. --------- ...
  • Request a trial to view additional results
17 cases
  • Mont. State Univ.-Bozeman v. Mont. First Judicial Dist. Court, OP 18-0311
    • United States
    • Montana United States State Supreme Court of Montana
    • September 11, 2018
    ...conscientious judgment or exceeding the bounds of reason, resulting in substantial injustice. City of Missoula v. Mountain Water Co. , 2018 MT 139, ¶ 9, 391 Mont. 422, 419 P.3d 685. Whether a district court abused its discretion is a question of law subject to de novo review. Farmers Union ......
  • Mountain Water Co. v. Mont. Dep't of Revenue, DA 19-0262
    • United States
    • August 4, 2020
    ...Water Co. (Mountain Water V) , 2018 MT 114, 391 Mont. 288, 417 P.3d 321 ; City of Missoula v. Mountain Water Co. (Mountain Water VI ), 2018 MT 139, 391 Mont. 422, 419 P.3d 685 ; City of Missoula v. Mountain Water Co. (Mountain Water VII ), 2018 MT 245, 393 Mont. 68, 427 P.3d 1018.3 Liberty ......
  • Fouts v. Mont. Eighth Judicial Dist. Court, OP 21-0568
    • United States
    • Montana United States State Supreme Court of Montana
    • January 18, 2022
    ...judgment, beyond the bounds of reason resulting in substantial injustice. Larson , ¶ 16 ; City of Missoula v. Mountain Water Co. , 2018 MT 139, ¶ 9, 391 Mont. 422, 419 P.3d...
  • Fouts v. Mont. Eighth Judicial Dist. Court, OP 21-0568
    • United States
    • Montana United States State Supreme Court of Montana
    • January 18, 2022
    ...judgment, beyond the bounds of reason resulting in substantial injustice. Larson, ¶ 16; City of Missoula v. Mountain Water Co., 2018 MT 139, ¶ 9, 391 Mont. 422, 419 P.3d 685. --------- ...
  • Request a trial to view additional results

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