City of Missoula v. Mountain Water Co.
| Decision Date | 23 March 1989 |
| Docket Number | No. 88-148,88-148 |
| Citation | 236 Mont. 442,771 P.2d 103 |
| Parties | The CITY OF MISSOULA, a Montana Municipal Corporation, Plaintiff and Appellant, v. MOUNTAIN WATER CO, a Montana Corporation, Defendant and Respondent, Warren A. Bache, LaMarr Baldwin, Jacqueline D. Beck, Linda D. Dunn, Dennis L. Falk, Sharon R. Fraser, Gary L. Frey, Georgette Gerlack, Shirley S. Guy, Bradley E. Hafar, Diane R. Hamilton, Arvid M. Hiller, M. Susan Hunt, Jerry E. Kirkpatrick, Gerald L. Lukasik, Louis F. McConaughey, Edmond L. Magone, Gary M. Mitchell, Ray W. Mitchell, Richard A. Morse, Michael L. Ogle, Susan L. Ori, Timothy J. Schwenk, Julie K. Stanley, Robert B. Ward and Bonita L. Wilder, Intervenors and Respondents. |
| Court | Montana Supreme Court |
Dexter Delaney, Mulroney, Delaney & Scott, and Jim Nugent, City Atty., Missoula, for plaintiff and appellant.
William Evan Jones and Sherman V. Lohn, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.
William H. Coldiron, Helena, for intervenors and respondents.
Dan Caderberg, Missoula, for amicus curiae.
The City of Missoula appeals from a judgment entered January 19, 1988, against the City in which the District Court, Fourth Judicial District, Missoula County, determined that the City had failed to meet its burden of proving by the preponderance of the evidence that it is necessary that the City operate the water system now owned by Mountain Water Company, and that "it is more necessary that the City take over" the Mountain Water Company operation. We affirm the District Court.
The underlying action is an eminent domain proceeding commenced by the City of Missoula to acquire by condemnation the water distribution business conducted in the Missoula area by Mountain Water Company.
This same cause was before us on appeal in City of Missoula v. Mountain Water Co. (Mont.1987), 743 P.2d 590, 44 St.Rep. 1633, where the City was also the appellant. In that cause we affirmed in part, reversed in part, and remanded the cause to the District Court for reconsideration of certain pertinent factors.
Following the remand, the District Court determined that to comply with the order of remand, in further hearings, it would take up the following specific issues and no others:
1. Non-economic factors involved in whether public ownership as compared to private ownership, is necessary and, as a corollary, is more necessary.
2. What consideration must be given to out of state ownership of Mountain Water as opposed to local ownership.
3. The vote of the people and council of Missoula and related questions raised thereby. Specific sub questions:
A. The exact question which was submitted to the voters.
B. How many of the people who voted are users of Mountain Water.
C. Conversely, how many people who voted were not users of Mountain Water.
D. Whether water users outside of Missoula support the City or Mountain Water.
4. Whether ownership by City of Rattlesnake water rights is necessary for future water use and to protect the use of such rights.
Following the foregoing determination of specific issues by the District Court, the City of Missoula petitioned this Court for a writ of supervisory control, objecting to the limitations. This Court denied the issuance of such a writ. Thereafter, the matter came on for trial before the District Court on December 9, 1987.
At the December 9, 1987 hearing, the District Court received evidence from both parties and denied evidence offered by the City which the City preserved by means of offers of proof. On January 19, 1988, the District Court entered its "additional findings of fact, conclusions of law and judgment, after remand" and entered a judgment thereon. From that judgment the City has appealed.
The findings and conclusions of January 19, 1988, include matters taken in evidence at the December 9, 1987 hearing, and also from the first trial of this cause in the District Court. A resume of the facts from the first trial are found in the first Opinion of this Court, 743 P.2d at 591-592. For the purposes of the reader here, it is enough to say that Mountain Water Company is a Montana corporation operating a water distribution system serving 11,720 customers within the Missoula city limits and 4,481 outside of the city limits. Mountain Water Company acquired the Missoula water system from Montana Power Company in 1979. On August 6, 1979, the City passed a resolution declaring its intent to acquire the water system. Five years later, in 1984, the City adopted a further resolution affirming its 1979 resolution and its interest in acquiring the water system. In late 1984, the City brought this condemnation proceeding against Mountain Water. In September, 1985, the question of co- ownership of the water system was approved by the citizens of Missoula as a ballot initiative.
We will state other facts where necessary in connection with the issues discussed hereafter.
When, as in this case, this Court on appeal affirms in part the judgment of the District Court, and remands for reconsideration other parts of the appeal, those parts of the judgment which are affirmed become the law of the case and are binding upon the trial court and the parties in subsequent proceedings on remand. In re Stoian's Estate (1960), 138 Mont. 384, 357 P.2d 41; Ivins v. Hardy (1950), 123 Mont. 513, 217 P.2d 204; Lake v. Emigh (1948), 121 Mont. 87, 190 P.2d 550. In our first Opinion in this cause, this Court found that certain findings were supported by the evidence and included "findings on public savings, on rates and charges, on cooperation between Mountain Water and the City, and on the effect of having Mountain Water's home office in Missoula." 743 P.2d at 596. With respect to the Mountain Water employees, this Court said:
... The undisputed record shows that the City would make reductions in the number of personnel and also reductions in the pay scale of the remaining employees in order that the employees would be paid salaries comparable to other City employees. We do not agree with the District Court conclusion that the "City's calloused plan for Mountain Water's twenty-six employees, standing alone, is enough to defeat a finding of public necessity." We hold that the effect on Mountain Water employees is one factor to be considered in determining whether the acquisition is necessary, but that factor alone is not dispositive.
On remand, the District Court denied the City's offer of resolution no. 4737, from the city council of Missoula, which stated "it is desirous of retaining the current Mountain Water Company employees living in Missoula County and employed in Missoula as city employees at their current wage or salary compensation with equivalent fringe benefits as established pursuant to Montana state law." (Emphasis added.)
The offered resolution represents a change in direction of 180 degrees from the evidence offered in the trial preceding our Opinion as to the effect on the Mountain Water Company employees. In that trial, part of the savings claimed by the City, if it were allowed to condemn the water company, came from specified cuts in the wages of each position held at the Mountain Water Company. The City contended that the City could reduce the pay of 20 people employed by Mountain Water by $117,656.00, and replace six Mountain Water employees at a savings of $162,983.00. It was this evidence that this Court held was "undisputed" as to reductions in the number of personnel and reductions in the pay scale. The directive of this Court on remand was that the District Court should consider the effect on Mountain Water employees as one factor to be considered. The District Court was correct in denying the admission of the offered resolution, for its admission would change in part the law of the case established in the Opinion of this Court where we found that the evidence supported the findings on public savings on rates and charges and recognized the effect of having Mountain Water's home office in Missoula.
On remand, the District Court did, in fact, as directed by us, weigh the effect on employees as one factor in determining public interests. The court found:
City claims there will be substantial savings to the City resulting in the reduction in the employees' salaries and the termination of certain other employees. The Court finds City has made assumptions in arriving at these alleged savings which are unrealistic. Nor has the City proved that there will be any savings of any consequence to the City by the proposed reduction in the number of employees and the salaries of the employees remaining at Mountain Water. On the other hand, these proposals would work substantial and severe hardships upon the employees for no real gains. The employees are loyal to Mountain Water and their morale is high. They provide water to the consumers in an exemplary and economical fashion. Rather than being overpaid, the salaries that the employees now receive provide them with a reasonable standard of living. The public interest would not be served by such a detrimental impact upon these employees.
The City of Missoula does not attack the foregoing finding of fact on this appeal from the judgment on remand. Findings of fact may not be set aside by us unless clearly erroneous. Rule 52(a), M.R.Civ.P.
The City, however, points to two other paragraphs in this Court's Opinion before remand on which the City relies to open, in effect, the remand to a full blown new trial:
We also do not agree with the conclusion of the District Court that the "prejudicial issues" of profit and out-of-state ownership "demeans the whole process." We do not find any legal basis for excluding these facts from consideration on the issue of necessity. We conclude these issues are pertinent to the determination of whether...
To continue reading
Request your trial
-
City of Missoula v. Mountain Water Co.
...in Missoula v. Mountain Water Co. (Mountain Water I ), 228 Mont. 404, 743 P.2d 590 (1987) and Missoula v. Mountain Water Co. (Mountain Water II ), 236 Mont. 442, 771 P.2d 103 (1989).¶ 45 The District Court compared the pleadings, evidence, and circumstances in the prior condemnation action ......
-
Mountain Water Co. v. Mont. Dep't of Revenue
...Co. (Mountain Water I ), 228 Mont. 404, 743 P.2d 590 (1987), and again in 1987-88, see City of Missoula v. Mountain Water Co. (Mountain Water II ), 236 Mont. 442, 445, 771 P.2d 103, 105 (1989). In addition to the appeals referenced herein, see also, e.g. , City of Missoula v. Mountain Water......
-
In re Marriage of Bartsch
...subsequent proceedings. In re Marriage of Becker, 255 Mont. 357, 361, 842 P.2d 332, 334 (1992) (citing City of Missoula v. Mountain Water Co., 236 Mont. 442, 446, 771 P.2d 103, 105 (1989)). The value of the Stock is fixed as the law of the case. The District Court's findings of fact are not......
-
Marriage of Becker, In re
...of the case and are binding upon the trial court and the parties in subsequent proceedings on remand. City of Missoula v. Mountain Water Co. (1989), 236 Mont. 442, 446, 771 P.2d 103, 105. Once a decision has been rendered by this Court on a particular issue between the same parties in a cas......