Prosser v. Kennedy Enterprises, Inc., DA 06-0073.

CourtUnited States State Supreme Court of Montana
Citation179 P.3d 1178,342 Mont. 209,2008 MT 87
Decision Date12 March 2008
Docket NumberNo. DA 06-0073.,DA 06-0073.
PartiesEleanor M. PROSSER, Richard H. White and Lorraine Crotty, Plaintiffs and Appellants, v. KENNEDY ENTERPRISES, INC., d/b/a Kennedy's Tavern & Casino, Vicki Kennedy and The City of Hamilton, Defendants and Appellees.
179 P.3d 1178
2008 MT 87
342 Mont. 209
Eleanor M. PROSSER, Richard H. White and Lorraine Crotty, Plaintiffs and Appellants,
KENNEDY ENTERPRISES, INC., d/b/a Kennedy's Tavern & Casino, Vicki Kennedy and The City of Hamilton, Defendants and Appellees.
No. DA 06-0073.
Supreme Court of Montana.
Submitted on Briefs September 12, 2007.
Decided March 12, 2008.

[179 P.3d 1180]

For Appellants: Howard C. Greenwood, Attorney at Law, Hamilton, Montana.

For Appellee City of Hamilton: William L. Crowley and Cynthia K. Thiel, Boone, Karlberg, P.C., Missoula, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Eleanor M. Prosser (Prosser), Richard H. White (White), and Lorraine Crotty (Crotty) (collectively Neighbors) appeal from the order of the Twenty-First Judicial District, Ravalli County, granting summary judgment to the City of Hamilton (City).

¶ 2 We review the following issues on appeal:

¶ 3 Do Hamilton City Ordinances § 17.116.010 and § 17.116.050 impose a "special duty" on the City to protect residents in the vicinity of a proposed building modification?

¶ 4 Does a condition that the City places on a building modification permit impose a "special duty" on the City when it is deciding whether to enforce that condition?


¶ 5 Vicki Kennedy, on behalf of Kennedy Enterprises, Inc. (collectively Kennedy) purchased property in Hamilton at 1013 South First Street on March 1, 2000. The property originally had been constructed as a Kentucky Fried Chicken restaurant and was zoned for commercial uses. The property bordered residentially zoned property to the west, unzoned property to the south and east, and commercially zoned property to the north. The Neighbors all resided, at some time during this litigation, on the residentially zoned property immediately to the west of Kennedy's property.

¶ 6 Kennedy submitted Precise Plan of Design No.2015 (the Plan) in April 2000 to the City. Kennedy proposed to modify the property for the commercial uses of a casino and lounge. The Hamilton City Zoning Board of Adjustment (Board) held a hearing regarding the Plan on April 25, 2000. White and Crotty attended. White raised concerns regarding the Plan, including car headlights shining into his windows. The Board considered White's comments, as well as other public comments, incorporated some of the comments into the Plan, and then adopted the Plan through Office of Community Development Resolution 20-14 (the Resolution).

179 P.3d 1181

The Board included in the Resolution a condition stating that "[t]he developer shall comply with all federal, state and local laws," (the Condition). The City subsequently issued Kennedy a temporary certificate of occupancy for the casino on January 1, 2001, followed by a permanent certificate of occupancy on April 30, 2002.

¶ 7 Neighbors allege that Kennedy's casino became an unbearable nuisance immediately after it opened for business. Neighbors complained of loud music, loud patrons, revving car engines, fights, loud garbage dumping, and drug use, occurring on the Kennedy property at all hours of the night. Neighbors contend that these disturbances unreasonably interfered with the use and enjoyment of their property. Neighbors claim that they complained about Kennedy's casino to various City officials, including the City Council, the Police Chief, and the Mayor. Neighbors allege, however, that they received no satisfactory resolution to their complaints.

¶ 8 Neighbors filed this lawsuit against the City and Kennedy in district court on March 6, 2003. Neighbors brought tort claims for compensatory damages against the City, alleging, among other things, that the Board had violated City ordinances when it approved the Plan, that various City officials had failed to take legal action against Kennedy, and that various City officials had failed to abate a nuisance at Kennedy's casino. Neighbors also sought compensatory and punitive damages against Kennedy for intentionally or recklessly maintaining a nuisance, and asked the court to enjoin Kennedy from creating or continuing the nuisance.

¶ 9 The City filed a motion for summary judgment on May 30, 2003, with regard to all of Neighbors' claims against the City. The District Court held a hearing on August 13, 2003, and granted summary judgment on September 27, 2005, in favor of the City on all claims. The City filed an unopposed motion asking the court to certify the summary judgment order as final pursuant to M.R. Civ. P. 54(b). The District Court granted the motion and entered final judgment on October 27, 2005. The Neighbors timely appealed.


¶ 10 We review de novo a district court's decision to grant summary judgment, using the same criteria applied by the district court under M.R. Civ. P. 56. GRB Farm v. Christman Ranch, Inc., 2005 MT 59, ¶ 7, 326 Mont. 236, ¶ 7, 108 P.3d 507, ¶ 7. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R. Civ. P. 56(c). We draw all reasonable inferences in favor of the party opposing summary judgment. Watkins Trust v. Lacosta, 2004 MT 144, ¶ 16, 321 Mont. 432, ¶ 16, 92 P.3d 620, ¶ 16.


¶ 11 We address on appeal only those claims raised by Neighbors. Neighbors' separate action against Kennedy for compensatory and punitive damages, as well as injunctive relief, remains pending in District Court. Nothing in our analysis here affects the validity of Neighbors' claims against Kennedy. Neighbors finally will be allowed to pursue these claims once we have resolved their appeal against the City.

¶ 12 Neighbors argue on appeal that the City breached two "special duties." Neighbors first claim that the City, acting through the Board, breached a "special duty" to protect the Neighbors when it passed the Plan in violation of Hamilton City Ordinances. Neighbors also claim that the City, acting through various City officials, breached a "special duty" owed to Neighbors when it refused to abate the alleged nuisance. The District Court determined pursuant to the public duty doctrine that neither the City, nor its officials, owed any "special duty" to Neighbors when passing the Plan or when deciding whether to take actions to abate the alleged nuisance. Neighbors admit the validity of the public duty doctrine, but argue that they fall within the "special relationship" exception to that doctrine. The Neighbors assert no other basis for imposing a duty on the City on appeal other than through the

179 P.3d 1182

"special relationship" exception to the public duty doctrine.

¶ 13 The Dissent labels the Court's characterization of Neighbors' position on appeal as "patently untrue." Second Dissent, ¶ 70. In truth, however, a review of the Neighbors' briefs reveals that they raise four issues for review. In truth, nowhere in any of the four issues raised do the Neighbors challenge the validity of the public duty doctrine. Neighbors instead assert repeatedly that the District Court erred in not agreeing with their claims that a "special relationship" existed between the City and Neighbors. The Court normally confines its review to the issues actually presented on appeal. Regardless of what Neighbors may have argued in the District Court, we must confine our review to the issues actually raised by Neighbors on appeal. See e.g. In re P.D.L., 2004 MT 346, ¶ 14, 324 Mont. 327, ¶ 14, 102 P.3d 1225, ¶ 14. The Dissent nevertheless launches into an entirely gratuitous analysis of the public duty doctrine with respect to sovereign immunity. Second Dissent, ¶¶ 72-75. Neighbors abandoned this argument on appeal and we need not address it. See e.g. Skinner v. Allstate Ins. Co., 2005 MT 323, ¶ 9, 329 Mont. 511, ¶ 9, 127 P.3d 359, ¶ 9.

¶ 14 In a similar vein, the Dissent, entirely on its own accord, attempts to convert Neighbors' tort claims against the City into an action for inverse condemnation. Second Dissent, ¶¶ 76-97. We normally decline to engage in this type of back-seat lawyering and decline to do so now. See e.g. Elliott v. Montana Dept. of Revenue, 2006 MT 267, ¶ 15, 334 Mont. 195, ¶ 15, 146 P.3d 741, ¶ 15. The Dissent insists that Neighbors alleged and pursued an inverse condemnation action. The Dissent contends in part that the City's approval of the Plan caused the Neighbors' property to depreciate in value. Second Dissent, ¶¶ 92-97.

¶ 15 The Dissent's argument founders on several factors. First, appellant Prosser purchased her property in December of 2001, more than a year after the City had adopted the Resolution on April 25, 2000. "[I]t is a general rule of the law of eminent domain that any award goes to the owner at the time of the taking, and that the right to compensation is not passed to a subsequent purchaser." Palazzolo v. Rhode Island, 533 U.S. 606, 628, 121 S.Ct. 2448, 2463, 150 L.Ed.2d 592 (2001). This Court specifically has stated that a party cannot complain regarding alleged diminution in value caused by a government action when she purchased the property after the government action. Knight v. City of Billings, 197 Mont. 165, 176, 642 P.2d 141, 147 (1982); see also Johns v. Black Hills Power, Inc., 722 N.W.2d 554, 558 (S.D.2006) (applying subsequent purchaser doctrine).

¶ 16 The second defect arises from the fact that appellants White and Crotty do not own their residence. They rent. Neighbors' complaint alleges damage to the value of their property or their real property, but it fails to specify whether White and Crotty are leaseholders in the property or merely tenants at will. White's and Crotty's landlord is not a party to this action. As a general rule, a court will award a single amount for each property taken by the government pursuant to an inverse condemnation and a lessee is barred...

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