October 22, 2013
DAWN BROWN AND LORA BROWN, Petitioners,
THE MONTANA ELEVENTH JUDICIAL DISTRICT COURT, AND THE HONORABLE HEIDI J. ULBRICHT, PRESIDING JUDGE, Respondent
Dawn Brown and Lora Brown (the Browns) have asked this Court to exercise supervisory control over the Eleventh Judicial District Court in Flathead County Cause No. DV-12-1294(C). In that case, the Browns seek compensation for damage to their property as a result of their home having been buih too close to a steep slope that partially collapsed. Their complaint alleges negligence, professional negligence, and negligent misrepresentation; it includes claims against the developer of the subdivision in which their home is located, the surveying firm that designed the subdivision, the construction contractor, the engineering firm that designed the storm water drainage system, the home inspector, and the City of Kalispell.
The Browns ask us to take supervisory control over the District Court's order dismissing the Browns' claim against the City on ground that the public duty doctrine renders that claim legally unsupportable. The Browns maintain that the public duty doctrine does not apply to this case or, if it does, that the "special relationship" exception applies here. Alternatively, they ask us to declare the public duty doctrine unconstitutional. In any event, they seek an order directing the District Court to vacate its order dismissing their claim against the City.
After reviewing the Petition and attachments, we granted the District Court and the defendants in the District Court time to file responses. The District Court and the City of Kalispell both have filed responses.
Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors make the normal appeal process inadequate; the case involves purely legal questions; and, in a civil case, the district court is proceeding under a mistake of law and is causing a gross injustice or constitutional issues of state-wide importance are involved. M. R. App. P. 14(3).
Here, our review of the petition and responses convinces us that the Browns have an adequate remedy of appeal. The District Court granted leave to the Browns to file an amended complaint with new claims against the City and we are not persuaded that subsequent litigation against the City will be inevitable if this Court does not intervene now. The Browns have not established that the extraordinary remedy of supervisory control is justified.
IT IS ORDERED that the petition for writ of supervisory control is DENIED and DISMISSED.
The Clerk is directed to provide copies of this Order to all counsel of record and to the Honorable Heidi J. Ulbricht, presiding District Judge.