                                                                                          August 12 2014


                                            DA 13-0714

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2014 MT 216



DARREL W. SHARP, et al.,

              Petitioners and Appellants,

         v.

THE EUREKA TOWN COUNCIL and
THE TOWN OF EUREKA, MONTANA,

              Respondents and Appellees.



APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV 13-03
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Douglas Scotti, Morrison & Frampton, PLLP, Whitefish, Montana

                For Appellees:

                       Clifton W. Hayden, Hedman, Hileman & Lacosta, PLLP, Whitefish, Montana



                                                    Submitted on Briefs: June 4, 2014
                                                               Decided: August 12, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Petitioners Darrel W. Sharp, et al., appeal from an order of the Nineteenth Judicial

District Court, Lincoln County, granting summary judgment in favor of the Eureka Town

Council and the Town of Eureka, Montana (Eureka). We affirm.

¶2     The issue presented for review is whether § 7-2-4741, MCA, allows relation back of

an amendment to the pleadings adding the names of an additional 89 petitioners previously

identified as “John Does 1-200.”

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     On December 4, 2012, Eureka passed an ordinance of annexation encompassing the

Midvale Water and Sewer District and the Mountain View Trailer Park (Midvale). The

ordinance would extend the corporate limits of Eureka to include Midvale effective July 1,

2013. Darrel Sharp is the owner of property in Midvale. Sharp coordinated opposition to the

annexation by collecting signed notices of opposition from the owners of 85 parcels of land,

which he claimed represented a majority of real property owners in the area to be annexed.

¶4     On December 27, 2012, Sharp met with an attorney to discuss filing a petition for

review of the annexation procedure pursuant to § 7-2-4741, MCA, which allows a majority

of real property owners in the area to be annexed to petition for judicial review within 30

days of the passage of an annexation ordinance. Sharp claims he had already compiled a list

of those individuals to be named as petitioners and represented them when meeting with

counsel. The would-be petitioners, however, had not yet decided who would bear the costs

of legal representation. The 30-day deadline for filing the petition was January 3, 2013. In

an effort to meet this deadline, Sharp filed a petition naming himself, his wife Dorothy


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Sharp, and “John Does 1-200” as petitioners. On March 14, 2013, after the petitioners had

determined responsibility for legal fees, Sharp filed an amended petition naming himself,

Dorothy Sharp, 89 other individuals, and “John Does 1-10” as petitioners.

¶5     On June 28, 2013, Eureka filed a motion to dismiss, arguing that the petitioners had

failed to file a petition representing a majority of real property owners before the 30-day

deadline. The petitioners responded that under M. R. Civ. P. 15(c), the amended petition

naming the individual property owners should relate back to the date the original petition

was filed. Sharp filed an affidavit stating that the names of the petitioners were already

known to him at the time of filing, and included as an exhibit signed notices of objection

collected before the petition was filed. The District Court converted Eureka’s motion to

dismiss to a motion for summary judgment and granted summary judgment in favor of

Eureka, concluding that § 7-2-4741, MCA, did not allow relation back of amended

pleadings. The petitioners filed this appeal.

                               STANDARD OF REVIEW

¶6     A district court’s ruling on a motion for summary judgment is reviewed de novo,

applying the same criteria under M. R. Civ. P. 56(c) as the district court. Turner v. Wells

Fargo Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, 291 P.3d 1082. Summary judgment

is appropriate when there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. M. R. Civ. P. 56(c); Turner, ¶ 11.




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                                      DISCUSSION

¶7    Whether § 7-2-4741, MCA, allows relation back of an amendment to the pleadings
adding the names of an additional 89 petitioners previously identified as “John Does 1-
200.”

¶8     Property owners in an area to be annexed may petition for judicial review of the

annexation procedures followed by the municipality. Section 7-2-4741, MCA. The petition

must be filed by a majority of real property owners or by the owners of property comprising

75% of the assessed value of real estate in the area within 30 days of the passage of an

annexation ordinance. Section 7-2-4741, MCA. The reviewing district court may hear

arguments, receive written briefs, and take evidence intended to show that statutory

procedures were not followed or applicable standards were not met. Section 7-2-4742,

MCA. The decisions of the governing body of the municipality are presumed to be

reasonable and lawful until set aside. Section 7-2-4743, MCA. Either the petitioners or the

municipality may appeal the decision of the district court in the manner prescribed by the

Montana Rules of Appellate Procedure. Section 7-2-4744, MCA. The appealing party may

also request a stay of the judgment of the lower court while the appeal is pending.

Section 7-2-4744, MCA. Judicial review of annexation procedures is to be conducted “only

in the manner provided in 7-2-4741 through 7-2-4744 [MCA].” Section 7-2-4746, MCA.

¶9     Petitioners claim relation back of their amended petition is permitted by the Montana

Rules of Civil Procedure. Relation back of amendments is governed by M. R. Civ. P.

15(c)(1), which reads as follows:

       An amendment to a pleading relates back to the date of the original pleading
       when:



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        (A) the law that provides the applicable statute of limitations allows relation
        back;
        (B) the amendment asserts a claim or defense that arose out of the conduct,
        transaction, or occurrence set out—or attempted to be set out—in the original
        pleading; or
        (C) the amendment changes the party or the naming of the party against whom
        a claim is asserted . . . .

¶10     Petitioners argue M. R. Civ. P. 15(c)(1)(B) is applicable because the claims stated in

their amended petition “arose out of the conduct, transaction, or occurrence set out . . . in the

original pleading.” We have held that relation back of amendments adding or changing a

plaintiff is allowed where there is a close identity of interest between the original plaintiff

and the present plaintiff and the new claim is based on the same allegations as the original

claim. Semenza v. Bowman, 268 Mont. 118, 123, 885 P.2d 451, 454 (1994) (citing Priest v.

Taylor, 227 Mont. 370, 381, 740 P.2d 648, 655 (1987)).

¶11     The Montana Rules of Civil Procedure, however, “do not supersede the provisions of

statutes relating to appeals to or review by the district courts . . . .” M. R. Civ. P. 81.

Section 7-2-4746, MCA, states that annexation decisions may be reviewed only in the

manner provided in §§ 7-2-4741 through -4744, MCA. Where the Montana Rules of Civil

Procedure are inconsistent with those statutory provisions, the statutory provisions must

govern. M. R. Civ. P. 81. Moreover, M. R. Civ. P. 81 “does not interject the Rules of Civil

Procedure    into   other   statutory    schemes     which    provide    different   procedural

requirements . . . .” In re Estate of Spencer, 2002 MT 304, ¶ 13, 313 Mont. 40, 59 P.3d

1160.

¶12     Section 7-2-4741, MCA, sets out two requirements for the filing of a petition for

review: the petition must be filed by a majority of real property owners of the area to be


                                               5
annexed, and it must be filed within 30 days of passage of an annexation ordinance. If the

petition requesting review does not meet these requirements, the court may not review the

annexation procedures. Section 7-2-4746, MCA. Relation back under M. R. Civ. P. 15(c)

would effectively nullify both of these requirements by allowing anyone—including a

minority of real property owners or parties who do not own any real property in the area to

be annexed—to file the initial petition, and then allowing a majority of real property owners

to join after the 30-day deadline. Such an application of M. R. Civ. P. 15(c) is inconsistent

with the manner of review provided in § 7-2-4741, MCA. The statutory provision must

govern. Section 7-2-4746, MCA; M. R. Civ. P. 81. The requirements of § 7-2-4741, MCA,

are clearly stated and do not contemplate relation back of an amendment adding the names of

a majority of real property owners to the petition after the 30-day deadline has passed.

Because we may not interject the provisions of M. R. Civ. P. 15(c) into the different

procedural requirements stated by § 7-2-4741, MCA, we need not further address whether

relation back would be permitted under the rule. Spencer, ¶ 13.

¶13    The petition in this case was filed by the Sharps alone. Although they claim to have

had the support of a majority of property owners at the time, those property owners had not

yet decided to join in the legal action, and the petition was not filed by them. Moreover,

although Sharp presented signed notices of objection which he claimed demonstrated the

intent of other real property owners to join him in seeking judicial review, the vast majority

of the notices were collected prior to the passage of the annexation ordinance. They all state

an objection to the act of annexation rather than an intention to seek review of the procedures

followed. The right to protest an annexation before it occurs is legally distinct from the right


                                               6
to seek judicial review of a completed annexation. Gregg v. Whitefish City Council, 2004

MT 262, ¶ 52, 323 Mont. 109, 99 P.3d 151. A property owner’s exercise or waiver of one of

these rights cannot be construed as the exercise or waiver of the other, separate right. Gregg,

¶¶ 52-53. The petition in this case was not filed within 30 days of the passage of the

annexation ordinance by a majority of real property owners in the area to be annexed.

Eureka was therefore entitled to judgment as a matter of law.

¶14    For the reasons stated above, the order of the District Court granting summary

judgment to Eureka is affirmed.


                                                   /S/ LAURIE McKINNON

We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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