Meadow Lake Estates Homeowners v. Shoemaker

• Decision Date: 05 February 2008
• Docket Number: No. DA 06-0261.,DA 06-0261.
• Citation: 178 P.3d 81,2008 MT 41,341 Mont. 345
• Parties: MEADOW LAKE ESTATES HOMEOWNERS ASSOCIATION, Plaintiff and Appellee, v. Daniel SHOEMAKER, an individual, and Jane Shoemaker, an individual, and John Does I-X, Defendants and Appellants.
• Court: Montana Supreme Court

178 P.3d 81

2008 MT 41

341 Mont. 345

MEADOW LAKE ESTATES HOMEOWNERS ASSOCIATION, Plaintiff and Appellee, v. Daniel SHOEMAKER, an individual, and Jane Shoemaker, an individual, and John Does I-X, Defendants and Appellants.

No. DA 06-0261.

Supreme Court of Montana.

Submitted on Briefs May 31, 2007.

Decided February 5, 2008.

For Appellants: Quentin M. Rhoades, Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana.

For Appellee: Martin S. King, Worden, Thane, P.C., Missoula, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Daniel Shoemaker and Jane Shoemaker (the Shoemakers) appeal from the District Court's order granting summary judgment to Meadow Lake Estates Homeowners Association (the Association). We affirm.

¶ 2 The Shoemakers present the following issues for review:

¶ 3 1. Whether the District Court properly determined that the Shoemakers had waived the affirmative defense of statute of limitations.

¶ 4 2. Whether the District Court improperly resolved a genuine issue of material fact in granting the Association's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Meadow Lake Estates is a residential development located in Ravalli County. Developers of the subdivision intended to preserve the "natural beauty, primitive characteristics, and seclusion" of the property by filing a Deed of Restriction with the Ravalli County Clerk and Recorder in August 1979. The Deed of Restriction set forth a variety of land use limitations on property owners within the subdivision, including the prohibition of commercial activities not "compatible with the residential nature and characteristics of the area." The Deed of Restriction reserved easements on all existing roads within the subdivision for the "scenic views and enjoyment" of the property and for the "reasonable general use" by all subdivision property owners to access public lands.

¶ 6 The Shoemakers bought three tracts of land in the Meadow Lake Estates subdivision in 1984. The Jack Creek access road encumbered the Shoemakers' property at the time of their purchase. The Shoemakers promptly erected a gate across the road where it intersected with their property. When locked, the gate blocked vehicular access to public lands on the other side of the Shoemakers' tract. The Association demanded in 1987 that the Shoemakers unlock or remove the gate because it was interfering with the property owners' access to public lands. The Shoemakers refused. The Shoemakers warned the Association that it would have to initiate legal action to resolve the issue surrounding the locked gate. The Association took no immediate action.

¶ 7 The Shoemakers then launched an outfitting business from their property in 1988. The business operated under an outfitter license and provided guided hunting trips in eastern Montana. The business also occasionally guided hunters on the public lands near the Shoemakers' property. The Shoemakers ceased operations after several years of business.

¶ 8 The Association filed a complaint against the Shoemakers in November 2000. The Association accused the Shoemakers of violating provisions of the Deed of Restriction by interfering with the easement over the Jack Creek access road and by operating an outfitting business on their property. The Association sought a permanent injunction ordering the Shoemakers to remove all obstructions from the Jack Creek access road and prohibiting the Shoemakers from operating the outfitting business on their property. At the same time, the Association filed an application for a temporary injunction and a request to set a show cause hearing. The District Court issued an order on November 15, 2000, directing the Shoemakers to appear on December 4, 2000, to show cause why a preliminary injunction should not be granted.

¶ 9 The Shoemakers filed their answer to the Association's complaint on January 31, 2001. The Shoemakers' answer asserted general denials of the allegations in the Association's complaint, including a denial that an express easement encumbered their property for the benefit of Association members. They admitted that "a gate exists on their driveway and that the gate is sometimes locked." (Emphasis added.) The Shoemakers alleged as their first affirmative defense that the Association had waived or abandoned any easement due to the fact that the Association had not used the Jack Creek access road for over seventeen years. The second and third affirmative defenses asserted that, in light of other available forest service access roads in the subdivision, the easement encumbering their land was unnecessary and moot. Their final affirmative defense asserted that, if the easement exists, parking vehicles on the section of Jack Creek access road that sits on the Shoemakers' property is outside the scope of the easement.

¶ 10 The court held the show cause hearing on February 5, 2001. Larry Wilkins (Wilkins) testified on behalf of the Association. The Shoemakers did not appear, although their counsel cross-examined the Association's witness and presented arguments. The court granted a preliminary injunction directing the Shoemakers to keep open the gate across the Jack Creek access road and to remove all "no trespassing" signs during the pendency of the action.

¶ 11 The court's scheduling order of March 9, 2001, directed the parties to file all pretrial motions, "including motions in limine and motions for summary judgment" on or before July 20, 2001. By stipulation of the parties, the court later extended the deadline for filing motions to October 28, 2001.

¶ 12 The Association filed a motion for summary judgment. The Association sought summary judgment that it held a valid easement across the Jack Creek access road and that the Shoemakers could not sustain their abandonment defense as a matter of law. The Association attached to its motion the deposition of Daniel Shoemaker, taken August 21, 2001, the deposition of Wilkins, also taken August 21, 2001, and the Shoemakers' Response to Plaintiff's First Set of Interrogatories and Requests for Production of Documents.

¶ 13 Wilkins testified that he continued to use the road after the Shoemakers lived there. Wilkins explained that he would get around the Shoemakers' locked gate by walking around the section of fence or climbing over the gate. "I used it when they weren't there and I've used it since they lived there, along with other people." He stated that "[t]here's been periods of time when the gate has stood wide open for days, weeks at a time, but it's always locked during hunting season." He stated that he used to drive up the road when the forest service land was open to vehicles, but that when the forest service became closed to vehicles, he would bike, ski, or ride his horse up to the forest service land, using the Jack Creek access road through the Shoemakers' property to get there. He stated that, as a member of the Association's Board, he knows that the money from the Association dues goes to the road grader and that he saw the Jack Creek access road over the Shoemakers' property graded at least once.

¶ 14 Daniel Shoemaker asserted in his deposition that non-use extinguished the easement. Yet Shoemaker declared that he "caught [Wilkins] twice in the last couple years," riding his bike on the Jack Creek access road, that he gave Mr. Trautman, a lot owner, permission to retrieve an elk that he shot on public land, and that he saw and confronted some children of Dwayne Allen, another lot owner, who were using the road, presumably while lost. He also stated that he gave a key to his cousin, Mike Uffelman, a lot owner, to access the road.

¶ 15 Shoemaker claimed that he had confronted people six or seven times about using the road since owning the property and admitted that he may have been carrying a gun during those confrontations. When asked if the gate was locked 24 hours a day, Daniel Shoemaker replied "yes," that it was locked 99.9% of the time. He also stated that, since March of 1997, he has worked full time in Arizona and comes back to his Montana property on vacations, maybe four to six weeks out of the year. He admitted to paying Homeowners Association dues that, in part, go to road maintenance and that a road grader had graded the road on his property in the past year.

¶ 16 The Shoemakers filed their own motion for summary judgment on November 6, 2001. For the first time, the Shoemakers claimed that the eight-year statute of limitations on contract claims barred the Association's action with respect to the outfitting business. Also for the first time, the Shoemakers claimed that they had extinguished any easement across the Jack Creek access road by adversely possessing the easement for the five-year statutory period. The Shoemakers claimed that the Association should be barred from asserting its interest in the easement because it had failed to raise an objection to the Shoemakers' adverse use within five years of discovering the Shoemakers' locked gate.

¶ 17 The Shoemakers appended the affidavit of Daniel Shoemaker, subscribed and sworn on November 5, 2001 — two-and-one-half months after his deposition — to their motion for summary judgment. Shoemaker alleged that the gate had remained locked since the time of installation in 1984 other than for permitting his family to enter and exit the property. Shoemaker further alleged that no one within the subdivision ever had asked him or his wife for permission to use the roadway: "Any use of the roadway claimed by Mr. Wilkins, or others, has been without permission or consent. To the best of our knowledge, no one other than my family and guests has used the roadway through my property."

¶ 18 Shoemaker mentioned two exceptions to this exclusion. The first exception involved some deer hunters, non-members of the subdivision, to whom he denied permission to go past his gate. The second exception was a real estate agent to whom he had given permission...