TALLY BISSELL NEIGH. v. EYRIE SHOTGUN RANCH

• Decision Date: 29 March 2010
• Docket Number: No. DA 09-0147.,DA 09-0147.
• Parties: TALLY BISSELL NEIGHBORS, INC., a Montana Nonprofit Corporation, Robin Allen, Nancy Allen, Bob Brown, Sue Brown, Jon Capon, Betsy Capon, Marian Cartee, Tom Courtney, Susan Courtney, Ed Chianelli, Chris Evans, Robert Frahm, Margo Frahm, Eldon Frahm, Jacqueline Frahm, Don Hanks, Wendy Hanks, Bonnie Hodges, Will Hunt, Leslie Hunt, Lorri Hustwaite, Darryl Hustwaite, John Klassen, Susan Klassen, Steve Knight, Kaleen Knight, Michele Larsen, Greg Lee, Richard Marriott, Linda Marriott, Bridget O'Leary, Jeff Powers, Barbara Powers, Rob Rice, Wendi Rice, Steve Smith, Shari Smith, Tim Williams, Amy Williams, and Amy Winslow, Plaintiffs and Appellants, v. EYRIE SHOTGUN RANCH, LLC, a Montana Limited Liability Company, Robert Hayes and John Does, 1 through 3, Defendants and Appellees.
• Court: Montana Supreme Court

228 P.3d 1134
2010 MT 63
355 Mont. 378

TALLY BISSELL NEIGHBORS, INC., a Montana Nonprofit Corporation, Robin Allen, Nancy Allen, Bob Brown, Sue Brown, Jon Capon, Betsy Capon, Marian Cartee, Tom Courtney, Susan Courtney, Ed Chianelli, Chris Evans, Robert Frahm, Margo Frahm, Eldon Frahm, Jacqueline Frahm, Don Hanks, Wendy Hanks, Bonnie Hodges, Will Hunt, Leslie Hunt, Lorri Hustwaite, Darryl Hustwaite, John Klassen, Susan Klassen, Steve Knight, Kaleen Knight, Michele Larsen, Greg Lee, Richard Marriott, Linda Marriott, Bridget O'Leary, Jeff Powers, Barbara Powers, Rob Rice, Wendi Rice, Steve Smith, Shari Smith, Tim Williams, Amy Williams, and Amy Winslow, Plaintiffs and Appellants,
v.
EYRIE SHOTGUN RANCH, LLC, a Montana Limited Liability Company, Robert Hayes and John Does, 1 through 3, Defendants and Appellees.

No. DA 09-0147.

Supreme Court of Montana.

Submitted on Briefs November 12, 2009.

Decided March 29, 2010.

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For Appellants: Eric F. Kaplan and Stephanie M. Breck, Kaplan & Breck, Columbia Falls, Montana.

For Appellees: Sean S. Frampton, Morrison & Frampton, Whitefish, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Tally Bissell Neighbors, Inc. (Neighbors), appeal the order of the District Court of the Eleventh Judicial District, Flathead County, granting the motion to dismiss to Eyrie Shotgun Ranch, LLC (Ranch). We affirm in part and reverse in part.

¶ 2 We review the following issues on appeal:

¶ 3 Did the District Court properly dismiss Neighbors' public nuisance claim?

¶ 4 Did the District Court properly dismiss Neighbors' private nuisance claims?

¶ 5 Did the District Court properly dismiss Neighbors' trespass claim?

¶ 6 Did the District Court properly dismiss Neighbors' attractive nuisance claim?

¶ 7 Did the District Court properly dismiss Neighbors' constitutional and statutory claims?

¶ 8 Did the District Court properly dismiss Robert Hayes as a defendant?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 9 Robert Hayes (Hayes) purchased approximately 60 acres of property in 2006 located in the Tally/Bissell Zoning District near homes and properties owned by Neighbors. The Tally/Bissell Zoning District lies southwest of Whitefish, Montana, in Flathead County. Hayes transferred the property to the Ranch, of which he is a member. Hayes and the Ranch constructed a private shooting range on the 60 acres.

¶ 10 Neighbors filed a multi-count action in which they alleged that the Ranch's operation of a shooting range in close proximity to a subdivision and an elementary school constituted both a public nuisance and a private nuisance. Neighbors further claimed that the shooting range presented an attractive nuisance, that it constituted trespass, and that its operation violated various provisions of the Montana Constitution. Finally, Neighbors alleged pursuant to § 76-9-105, MCA, that the court had authority to close the Ranch because it presented a "clear and provable safety hazard."

¶ 11 The Ranch filed a motion to dismiss for failure to state a claim upon which relief could be granted. The District Court dismissed Neighbors' public nuisance claim on the basis that § 76-9-101, MCA, specifically authorizes shooting ranges, and, thus, shooting ranges may not be considered a nuisance pursuant to § 27-30-101(2), MCA. The court determined that § 27-30-102, MCA, barred the private nuisance claim because the alleged condition—noise—could not constitute both a private and public nuisance.

¶ 12 Neighbors had requested an injunction under the attractive nuisance claim to prevent the "likelihood of injury" to nearby schoolchildren. The District Court dismissed the claim on the basis that attractive nuisance represents a tort theory that requires a showing of damage. Mere anticipation of

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injury, according to the court, proved insufficient to enjoin the shooting range. The court dismissed the trespass action on the grounds that noise cannot constitute a trespass. The court reasoned that only a person or tangible thing that enters the property of another can constitute a trespass

¶ 13 The court summarily dismissed Neighbors' constitutional claims. The court dismissed Neighbors' claim under § 76-9-105, MCA, due to the vagueness in the statute in that it provides no procedures for closure or relocation of a shooting range. The court further ruled that the statute provides for no private cause of action.

¶ 14 The court also dismissed Hayes as a defendant. The court determined that § 27-30-105, MCA, applied only to successive landowners. Hayes had owned the land before selling it to the Ranch and the court reasoned that no nuisance existed until the Ranch had constructed the shooting range. Neighbors appeal.

STANDARD OF REVIEW

¶ 15 We review de novo a district court's ruling on a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6). Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552. A motion to dismiss under Rule 12(b)(6) admits the allegations in the well-pled complaint. The court must consider the complaint in the light most favorable to the plaintiff in evaluating the motion. The court also must take as true all the allegations of fact contained in the complaint. Meagher, ¶ 13.

DISCUSSION

¶ 16 Did the District Court properly dismiss Neighbors' public nuisance claim?

¶ 17 Neighbors rely on Martin v. Vincent, 181 Mont. 247, 593 P.2d 45 (1979), and Wheeler v. Moe, 163 Mont. 154, 515 P.2d 679 (1973), in arguing that the District Court improperly dismissed their public nuisance claim by looking beyond the face of the complaint. The Court in Martin determined that a court may not rely on "matters outside the allegations of the complaint" in granting a motion to dismiss. Martin, 181 Mont. at 251, 593 P.2d at 48. The district court in Martin had relied upon factual matters outside the complaint. For example, the district court determined that the brokers had failed to disclose their dual capacity as both broker and buyer based upon the brokers' signatures on both the listing agreement and the sales contract. Martin, 181 Mont. at 248, 593 P.2d at 46. This Court determined that nothing on the face of the complaint allowed the district court to conclude that the brokers had failed to disclose their dual capacity. Martin, 181 Mont. at 250, 593 P.2d at 47.

¶ 18 Nothing in Martin, however, barred the district court from considering the applicable law when reviewing a motion to dismiss. Nothing in the District Court's order indicates that it looked at factual matters outside the allegations contained in the complaint. The court expressly stated in its order, "even taking all of the allegations as true and the claim as well pled," §§ 27-30-101(2) and 76-9-101, MCA, barred Neighbors' relief.

¶ 19 The plaintiffs in Wheeler filed an action against the Missoula County Sheriff, the Missoula County Attorney, and other public officials. Wheeler, 163 Mont. at 155, 515 P.2d at 680. This Court in Wheeler upheld a district court's dismissal of the plaintiff's complaint based upon the public officials' immunity from civil prosecution in the performance of their official duties. Wheeler, 163 Mont. at 163, 515 P.2d at 684. The Court noted that the plaintiff's complaint contained no allegations that the public officers had been acting in any capacity other than as public officials. Wheeler, 163 Mont. at 163, 515 P.2d at 684. This Court dismissed the complaint as insufficient to support a claim. Wheeler, 163 Mont. at 161, 515 P.2d at 683.

¶ 20 Neighbors go astray with their argument that nothing in their complaint expressly refers to § 76-9-101, MCA. The plaintiffs complaint in Wheeler did not expressly refer to the fact that public officials enjoyed immunity from civil prosecution in the performance of their official acts. The complaint in Wheeler referred solely to the fact that the defendants had been performing official acts. Wheeler, 163 Mont. at 160, 515 P.2d at 682.

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Here, as in Wheeler, the District Court must apply the controlling law to the factual allegations raised in the complaint.

¶ 21 Neighbors allege that the Ranch's shooting range constitutes a public nuisance. Sections 27-30-101(2) and 76-9-101, MCA, apply regardless of whether Neighbors refer to them explicitly in their complaint. To presume that a district court can grant a motion to dismiss only if the plaintiff expressly raised all potential affirmative defenses or controlling statutes would undermine the district court's responsibility in reviewing a motion to dismiss. The district court considered no facts beyond the face of Neighbors' complaint. The court merely applied law directly applicable to Neighbors' complaint.

¶ 22 We now must review whether the District Court properly applied §§ 27-30-101(2) and 76-9-101, MCA. Section 27-30-101(2), MCA, provides that "nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." Section 76-9-101, MCA, provides protection for "the locations of and investment in shooting ranges for shotgun, archery, rifle, and pistol shooting." Neighbors argue that § 76-9-101, MCA, represents a general policy statement that does not expressly authorize all shooting ranges.

¶ 23 This Court addressed the effect of § 27-30-101(2), MCA, in Barnes v. City of Thompson Falls, 1999 MT 77, 294 Mont. 76, 979 P.2d 1275. We determined in Barnes that a court must inquire whether the activity is authorized "either by the express terms of the authorizing statute or by necessary implication therefrom" as a threshold matter under § 27-30-101(2), MCA. Barnes, ¶ 27. The test of statutory authorization thus requires a "particularized assessment of each authorizing statute in relation to the act which constitutes the nuisance." Barnes, ¶ 21. Only in this manner can a court ensure an "unequivocal" legislative intent to sanction a...