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Dettmering v. Flathead County

Supreme Court of Montana

October 22, 2019

KEVIN and HEIDI DETTMERING, Plaintiffs and Appellees,
FLATHEAD COUNTY, a political Subdivision of the State of Montana, Defendant, and JOHN and ANNE PASSARGE, Defendants and Appellants.

          Submitted on Briefs: October 2, 2019

          APPEAL 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

          For Appellants: Jenifer S. Reece, Reece Law, PLLC, Bozeman, Montana

          For Appellees: Paul A. Sandry, Jennifer McDonald, Johnson, Berg and Saxby, PLLP Kalispell, Montana


          DIRK M. SANDEFUR.

         ¶1 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 Montana Reports.

         ¶2 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.

         ¶3 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 regulations.[1]

         ¶4 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"[2] as certified by an "engineering firm mutually agreed to by the parties."[3]

         ¶5 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 determination.

         ¶6 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 hearing record:

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 ...

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