Submitted on Briefs: October 2, 2019
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DV-12-1414A
Honorable Amy Eddy, Presiding Judge
Appellants: Jenifer S. Reece, Reece Law, PLLC, Bozeman,
Appellees: Paul A. Sandry, Jennifer McDonald, Johnson, Berg
and Saxby, PLLP Kalispell, Montana
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
John and Anne Passarge (Passarges) appeal the November 2018
judgment of the Montana Eleventh Judicial District Court,
Flathead County, adjudicating that a disputed driveway
constructed by Kevin and Heidi Dettmering (Dettmerings) is
now in compliance with pertinent Flathead County regulations
as required by the court's prior 2016 order and
underlying 2006 settlement agreement regarding various
easement and road access issues. We affirm.
After the Dettmerings purchased property located kitty-corner
to Passarges' property outside of Columbia Falls,
Montana, in 2002, a dispute and litigation ensued between the
parties regarding various easement and road access issues.
The litigation settled in 2006 pursuant to a settlement
agreement that in pertinent part authorized the Dettmerings
to construct a contemplated driveway within the boundaries of
two previously disputed easements across Passarges'
property "subject to approval by Flathead County."
At the time, the parties believed that the roadway to which
the contemplated future driveway would connect (Parker Hill
Road) was a county road governed by Flathead County road
The dispute flared up again in 2011-12 when Passarges
asserted, inter alia, that a new driveway recently
constructed by Dettmerings did not comply with county road
approach regulations as contemplated in the 2006 settlement
agreement. Dettmerings then sued Passarges for declaratory
enforcement of their rights under the agreement. Passarges
counterclaimed for termination of Dettmerings' easements
based on alleged overburdening and for compensation for loss
allegedly caused by the substandard driveway construction.
Upon bench trial in 2016, the District Court determined,
inter alia, that the driveway was properly located
within Dettmerings' easements and that it did not
unreasonably overburden those easements. It further found
that water runoff from the driveway detrimentally affected
Passarges' use of their property but that they otherwise
failed to prove their asserted damages claim(s). However,
based on its finding that the new driveway did not comply
with county road regulations as agreed, the court ordered
Dettmerings to bring the driveway into compliance within one
year "so as to minimize injury to the Passarges'
property" as certified by an "engineering firm
mutually agreed to by the parties."
On October 30, 2017, Dettmerings filed a notice and motion
for adjudication of their compliance with the 2016 order.
Passarges filed a response contesting the motion. In February
2018, late on Friday afternoon before the previously
scheduled Monday hearing, Dettmerings filed a notice
acquiescing that their driveway in fact did not
comply with county road regulations but asserting their
intent to bring it into compliance as depicted in an attached
exhibit. At the ensuing Monday hearing, the District Court
vacated the proceeding pursuant to Dettmerings'
acquiescence and stated its intent to award related attorney
fees to Passarges upon subsequent affidavit and hearing
On November 19, 2018, the attorney fees hearing primarily
focused on the predicate issue of whether and when
Dettmerings complied with the court's 2016 order
regarding the disputed driveway. The District Court admitted
various documentary exhibits into evidence and heard the
testimony of three different roadway experts (one presented
by Dettmerings and two presented by Passarges) regarding the
physical characteristics of the disputed driveway in relation
to county road approach regulations. At the close of hearing,
the court made the following oral findings of fact on the
The [c]ourt will also find that consistent with the testimony
here today that the Dettmering approach . . . does meet the
requirements of the Flathead County regulations consistent
with the testimony of Terrance Stoneh[oc]ker from TD&H
Engineering, which both parties stipulated to use in order to
bring the driveway into conformity.
The other experts testified in substantial conformity with
Mr. Stoneh[oc]ker to the extent their testimony is even
relevant considering the stipulation of the parties. Looking
to the requirements, there is - I'm looking at the May
30th letter of 2018 from Mr. Stoneh[oc]ker, number 1,
there's no dispute as to that.
Number 2, there's not a culvert, there's no dispute,
nor is one required, nor is there any testimony that one is
necessary for purposes of ...