Slack v. Landmark Co., DA 10–0651.

Decision Date22 November 2011
Docket NumberNo. DA 10–0651.,DA 10–0651.
Citation267 P.3d 6,362 Mont. 514,2011 MT 292
PartiesJames Wyatt SLACK and Josephine L. Slack, individually and on behalf of their minor children, S.S., L.S., and J.S., Plaintiffs, Appellees and Cross–Appellants, v. The LANDMARK COMPANY, a Montana limited liability company; Mitzi Grover, Defendants,andLewis and Clark County, Defendant, Appellant, and Cross–Appellee.
CourtMontana Supreme Court

2011 MT 292
267 P.3d 6
362 Mont. 514

James Wyatt SLACK and Josephine L. Slack, individually and on behalf of their minor children, S.S., L.S., and J.S., Plaintiffs, Appellees and Cross–Appellants,
v.
The LANDMARK COMPANY, a Montana limited liability company; Mitzi Grover, Defendants,andLewis and Clark County, Defendant, Appellant, and Cross–Appellee.

No. DA 10–0651.

Supreme Court of Montana.

Submitted on Briefs Sept. 28, 2011.Decided Nov. 22, 2011.


[267 P.3d 7]

For Appellant: Steven R. Milch, Crowley Fleck PLLP, Billings, Montana, Richard A. Larson, Attorney at Law, Helena, Montana.

For Appellee: Trevor L. Uffelman, Drake Law Firm, Helena, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[362 Mont. 515] ¶ 1 Defendant Lewis and Clark County (the “County”) appeals from a jury verdict in the First Judicial District Court, Lewis and Clark County, finding the County negligent under § 75–10–1306(1), MCA, and awarding $563,592 in damages to Plaintiffs James and Josephine Slack (“Slacks”). The Slacks cross-appeal the District Court's denial of their motion for attorneys' fees. We affirm.

BACKGROUND

¶ 2 On April 13, 2002, the Missouri River Drug Task Force (“MRDTF”) busted a clandestine methamphetamine laboratory (“meth lab”) in a home located at 1050 Mill Road in Helena, Montana. The MRDTF is a multi-jurisdictional drug task force, which includes members of the Lewis and Clark County Sheriff's Office. The operator of the meth lab was prosecuted by Lewis and Clark County and convicted.

¶ 3 In 2005, the Montana Legislature enacted §§ 75–10–1301 to –1306, MCA, a series of new laws regarding the cleanup of methamphetamine

[267 P.3d 8]

contaminated properties in Montana. The purpose of these new statutes was to “protect the public health, safety, and welfare by providing specific cleanup standards [.]” Section 75–10–1301, MCA. The Legislature found that “Innocent members of the public may be [362 Mont. 516] harmed when they are unknowingly exposed to [hazardous chemical] residues if the properties are not decontaminated prior to any subsequent rental, sale, or use of the properties.” Section 75–10–1301, MCA.

¶ 4 The new laws established the following “reporting requirements”:

(1) Whenever a state or local law enforcement agency becomes aware that an inhabitable property has been contaminated by its use as a clandestine methamphetamine drug lab, the agency shall report the contamination to the department and to the local health officer.

(2) The department shall maintain a list of inhabitable property that has been reported as contaminated, and the list must be made available to the public through a website except as provided in subsection (3).

(3) Upon confirmation by the department that an inhabitable property has been properly remediated to the standards established in 75–10–1303 or that the inhabitable property meets the decontamination standards without decontamination, the department shall remove the inhabitable property from the list required in subsection (2). The department shall provide written notification to the local health officer and the property owner of record when the documentation shows that the inhabitable property has been properly assessed or remediated.

(4) The department may adopt rules establishing reasonable requirements for the sufficiency of documentation to be provided by a certified contractor.

(5) Notwithstanding any other provision of law, once an inhabitable property has been removed from the list required in subsection (2), a property owner, landlord, or real estate agent is not required to report or otherwise disclose the past contamination.

Section 75–10–1306, MCA (emphasis added).1 The new statutes became effective on October 1, 2005. The home at 1050 Mill Road was not listed as contaminated until sometime between August and November of 2007, when the County was contacted by the Department of Environmental Quality (“DEQ”) regarding possible contamination at the site.

¶ 5 In late October 2005, the owner of 1050 Mill Road listed the home for sale with Mitzi Grover (“Grover”), who worked for The Landmark Company. The Slacks entered into a buy-sell agreement to purchase the home on November 10, 2005. Grover testified that she checked the DEQ's contaminated property list prior to closing, and the home at [362 Mont. 517] 1050 Mill Road was not on the list. The sale closed and the Slacks, along with their two young daughters (their son was born later), moved into the home.

¶ 6 Approximately two years later, in November 2007, the Slacks were notified by the DEQ that, unbeknownst to them, their home had been the site of a meth lab and may be contaminated with methamphetamine. The Slacks contacted a certified methamphetamine cleanup contractor and had their home tested. The results of the testing showed that levels of methamphetamine in their home were hundreds of times higher than acceptable levels. Not only was the Slacks' home contaminated, but much of their personal property was also contaminated. The Slacks were advised that their home was not safe to live in. They moved immediately; abandoning their home and all their personal belongings, save for clothing, important paperwork, and family photos.

¶ 7 The Slacks were advised that to remediate their home, it would have to be “gutted.” The cost to remediate, and then rebuild, their home was estimated at approximately $145,000—more than the Slacks paid for it. Ultimately, the Slacks defaulted on their mortgage and incurred more debt in purchasing new household items.

[267 P.3d 9]

¶ 8 On February 21, 2008, the Slacks sued the County for failure to provide proper notice under § 75–10–1306(1), MCA, that the home at 1050 Mill Road was contaminated. In the same complaint, the Slacks also sued both The Landmark Company and Grover. In an amended complaint, the Slacks added an additional defendant, the prior owner of the home at 1050 Mill Road. Ultimately, the Slacks settled with the prior owner and she was dismissed from the case. The Slacks' claims against The Landmark Company, Grover, and the County proceeded to jury trial.

¶ 9 After a three day jury trial, the jury found that The Landmark Company and Grover were not liable under any claim asserted by the Slacks. The jury found that the County was negligent and awarded damages in the amount of $563,592 to the Slacks.

¶ 10 The County filed a motion for a new trial under M.R. Civ. P. 59(a), arguing that the District Court improperly instructed the jury by refusing to include the effective date of § 75–10–1306(1), MCA, in the jury instruction. The jury instruction in question, Instruction 20, read:

Whenever a state or local law enforcement agency becomes aware that an inhabitable property has been contaminated by its use as a clandestine methamphetamine drug lab, the agency...

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6 cases
  • Judith Newman v. Scottsdale Ins. Co.
    • United States
    • United States State Supreme Court of Montana
    • 7 Mayo 2013
    ...... judgment or exceeds the bounds of reason resulting in substantial injustice.” Slack v. Landmark Co., 2011 MT 292, ¶ 15, 362 Mont. 514, 267 P.3d 6.          ¶ 24 We review ......
  • Looman v. Montana
    • United States
    • U.S. District Court — District of Montana
    • 31 Enero 2013
    ...care under the circumstances. The question of whether a legal duty exists is an issue of law for the Court to resolve, Slack v. Landmark Co., 267 P.3d 6, 10 (Mont. 2011), and the scope or extent of a legal duty "must necessarily be adjudicated upon a case-by-case basis." Larson-Murphy v. St......
  • Davis v. Jefferson Cnty. Election Office
    • United States
    • United States State Supreme Court of Montana
    • 27 Febrero 2018
    ...decision to grant or deny attorney fees under the UDJA for an abuse of discretion); Slack v. Landmark Co. , 2011 MT 292, ¶ 15, 362 Mont. 514, 267 P.3d 6 (stating that this Court reviews a district court's decision to grant or deny attorney fees under § 25-10-711, MCA, for an abuse of discre......
  • Bertelsen v. CitiMortgage, Inc.
    • United States
    • U.S. District Court — District of Montana
    • 14 Junio 2016
    ...P.3d 615, 620-21 (Mont. 2008). The question of whether a legal duty exists is an issue of law for the court to resolve (Slack v. Landmark Co., 267 P.3d 6, 10 (Mont. 2011), and the scope or extent of a legal duty "must necessarily be adjudicated upon a case-by-case basis." Larson-Murphy v. S......
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