Kucera v. City of Billings, DA 19-0331

• Docket Nº: DA 19-0331
• Citation: 457 P.3d 952, 399 Mont. 10, 2020 MT 34
• Case Date: February 11, 2020
• Court: United States State Supreme Court of Montana

399 Mont. 10
457 P.3d 952
2020 MT 34

Mark E. KUCERA, Plaintiff and Appellant,
v.
CITY OF BILLINGS and John Does 1-10, Defendant and Appellee.

DA 19-0331

Supreme Court of Montana.

Submitted on Briefs: January 8, 2020
Decided: February 11, 2020

For Appellant: Peter L. Helland, Helland Law Firm, pllc, Glasgow, Montana

For Appellee: Gerry P. Fagan, Adam Warren, Moulton Bellingham PC, Billings, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

399 Mont. 11

¶1 Mark Kucera appeals an April 23, 2019 Thirteenth Judicial District Court order granting summary judgment for the City of Billings and John Does 1-10, dismissing Kucera’s claims for negligence and nuisance. We affirm.

¶2 We address the following issue on appeal:

Whether the District Court erred in granting summary judgment for the City of Billings, dismissing Kucera’s claims for negligence and nuisance, based on its determination that Kucera’s claims were barred by judicial estoppel.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Kucera resides in Billings, Montana. On July 21, 2011, a City water line near Kucera’s residence burst, sending thousands of gallons of water into his neighborhood. On August 8, 2011, Kucera filed a claim with his homeowner insurance carrier for water damage. Kucera’s claim stated that he discovered the damage upon returning home after being gone for several days. Kucera reported that he believed that a rainstorm caused the damage. The insurance claim form described damage to Kucera’s roof, carpet, and sheetrock. Evidently, after speaking with his insurance company, Kucera also believed he had a claim against the City. On August 15, 2011, Kucera presented a claim

399 Mont. 12

to the City for damages to his home from the water line break.¹ On August 26, 2011, the City denied Kucera’s claim.

¶4 On June 1, 2012, nearly ten months after filing his claim against the City, Kucera filed a petition for relief under Chapter 13 of the United States Bankruptcy Code.² Kucera concurrently filed a personal property schedule in which he stated under penalty of perjury that he had no "contingent and unliquidated claims of any nature" despite the fact that he already asserted a claim for damages against the City and had a potential cause of action. On February 21, 2013, Kucera obtained a plan of reorganization in his bankruptcy proceeding.

¶5 On September 3, 2013, over two years after the City denied his claim, Kucera filed a complaint in District Court against the City for negligence, nuisance, and inverse condemnation, alleging the City was liable for compensatory damages caused by the water leak. On January 6, 2015, the City filed its first Motion for Summary Judgment, arguing that Kucera’s claims were barred by judicial estoppel because he failed under penalty of perjury to disclose the potential claims on his bankruptcy petition.³ In response, on January

457 P.3d 954

9, 2015, Kucera re-opened his bankruptcy case and amended his personal property schedule to disclose his lawsuit against the City. Kucera’s action stayed the litigation, interrupting the City’s motion. On September 25, 2018, the City again filed a motion for summary judgment for all three claims. Kucera conceded judgment on the inverse condemnation claim but contested judgment on his nuisance and negligence claims. On April 23, 2019, the District Court granted the City’s motion and dismissed Kucera’s claims, holding that both of Kucera’s claims were barred by judicial estoppel, and alternatively, that Kucera’s negligence

399 Mont. 13

claim was barred by the statute of limitations. Kucera appeals.

STANDARD OF REVIEW

¶6 We review a district court’s ruling on a motion for summary judgment de novo, applying the same standards under M. R. Civ. P. 56 as the district court. Hughes v. Lynch , 2007 MT 177, ¶ 7, 338 Mont. 214, 164 P.3d 913. Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Davis v. Westphal , 2017 MT 276, ¶ 9, 389 Mont. 251, 405 P.3d 73. We view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in their favor. Hughes , ¶ 7.

DISCUSSION

¶7 Whether the District Court erred in granting summary judgment for the City of Billings,...