                                                                                              April 12 2016
                                           DA 15-0486

                   IN THE SUPREME COURT OF THE STATE OF MONTANA                            Case Number: DA 15-0486



                                           2016 MT 87N


THE ESTATES HOMEOWNERS ASSOCIATION
(GROUSE MOUNTAIN), INC.,

               Plaintiff and Appellee,

         v.

CITY OF WHITEFISH,

               Defendant and Appellant,

         and

GROUSE MOUNTAIN HOMEOWNERS, INC.,

               Proposed Intervenor and Appellant.


APPEAL FROM:             District Court of the Eleventh Judicial District,
                         In and For the County of Flathead, Cause No. DV 14-1215B
                         Honorable Robert B Allison, Presiding Judge

COUNSEL OF RECORD:

                 For Appellant:

                         Terry N. Trieweiler, Trieweiler Hedman Hileman & Lacosta, Whitefish,
                         Montana
                         (Attorney for Grouse Mountain Homeowners, Inc.)

                         Angela K. Jacobs, City Attorney, Whitefish, Montana

                 For Appellee:

                         Sean S. Frampton, Morrison & Frampton, PLLP, Whitefish, Montana
                         (Attorney for Grouse Mountain)


                                                     Submitted on Briefs: March 23, 2016
                                                                Decided: April 12, 2016

Filed:

                         __________________________________________
                                           Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶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     The City of Whitefish (City) appeals an order by the Eleventh Judicial District

Court, Flathead County, granting summary judgment to The Estates Homeowners

Association (Grouse Mountain), Inc. (Estates) on the issue of whether a city resolution

interferes with Estates’ vested right to construct gates on Mountainside Drive, a private

road. Grouse Mountain Homeowners, Inc. (Homeowners) appeals the District Court’s

order denying Homeowners’ motion to intervene in this action and the District Court’s

denial of Homeowners’ motion to revise that order. We address whether the District

Court: (1) erred in denying Homeowners’ motion to intervene as a matter of right; (2)

abused its discretion in denying Homeowners’ motion for permissive intervention; (3)

erred in granting summary judgment to Estates and denying summary judgment to the

City; and (4) incorrectly concluded that a justiciable controversy exists between Estates

and the City. We affirm on all issues.

¶3     Estates and Homeowners are associations of homeowners who own property in the

Grouse Mountain residential subdivision.        Grouse Mountain was developed in three

phases. Phases I and II, which include the lower area of the subdivision surrounding a

golf course, are managed by Homeowners.           Phase III, known as Grouse Mountain

Estates, is managed by Estates and is accessed via Mountainside Drive.           The City

                                            2
approved the final plats for the subdivision subject to conditions of approval. Condition

12(a) provides: “The roads in Grouse Mountain Estates shall be private roads and the

Homeowner’s Association shall be entitled to close them to vehicular access by the

public.” Condition 18 provides: “A reciprocal easement agreement shall be agreed to

between Grouse Mountain Estates and Grouse Mountain Phases I, II, and II [sic]

homeowners associations to ensure reciprocal street access through each subdivision.”

Pursuant to Condition 18, Estates and Homeowners entered into an easement agreement

granting Homeowners’ residents the right to use Mountainside Drive. Condition 24

provides: “Plans for streets . . . shall be approved by the Public Works Director prior to

construction.”

¶4    In October 2014, the City adopted Resolution 14-48, which prohibits any

subdivision from gating its streets to prevent public access. Estates filed suit seeking a

declaratory judgment that it has the right to construct gates to the entrances of Grouse

Mountain Estates on opposite ends of Mountainside Drive. Homeowners moved to

intervene, contending that gates on Mountainside Drive would impede and obstruct the

reasonable use of Homeowners’ easement, as provided by Condition 18 of the final plat

approval. The District Court denied Homeowners’ motion. The Court concluded that

Homeowners did not have a justiciable controversy because “no gates have been installed

and there has been no interference with the easement interest of [Homeowners] or breach

of contract.”    The Court further concluded that protection of Homeowners’ alleged

easement interest “would not be impaired by a decision” in favor of Estates. The Court

concluded that the City adequately represented Homeowners’ interests as residents of

Whitefish in keeping Mountainside Drive open to public access. Homeowners moved for

                                            3
revision of the District Court’s order denying its motion to intervene. The District Court

denied that motion. Homeowners has since filed a separate action against Estates to

protect its easement interests.

¶5     After the District Court denied Homeowners’ motion to intervene, Estates and the

City cross-filed for summary judgment.       Estates moved for summary judgment that

Resolution 14-48 presents an unlawful interference or impairment of Estates’ vested right

to gate private roads as provided by Condition 12(a) of the final plat approval. The City

argued that Estates’ complaint was an impermissible request for an advisory opinion

based on the District Court’s logic in denying Homeowners’ motion to intervene. The

City further contended that Estates’ property interests is not an absolute vested right

because it is subject to conditions of approval, City subdivision regulations, and

engineering standards. The District Court granted Estates’ motion for summary judgment

and denied the City’s motion. The Court concluded: “The City did grant the right to

Grouse Mountain to close its private roads to vehicular access by the public.          The

Resolution disallowing gates closing streets from public access interferes with that right.”

The Court further concluded that a justiciable controversy exists between Estates and the

City because Resolution 14-48 directly affects Estates’ property interest, which vested

when the City approved the final plats for the subdivision.

¶6     Homeowners appeals the District Court’s denial of its motion to intervene and

motion for revision of that denial. The City appeals the District Court’s order denying

the City’s motion for summary judgment and granting summary judgment to Estates.

¶7     We review de novo a district court’s denial of a motion to intervene as a matter of

right under M. R. Civ. P. 24(a). Loftis v. Loftis, 2010 MT 49, ¶ 6, 355 Mont. 316,

                                             4
227 P.3d 1030. We review for abuse of discretion a district court’s denial of a motion for

permissive intervention under M. R. Civ. P. 24(b). Loftis, ¶ 6. A district court abuses its

discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds

of reason. Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561.

¶8     We review summary judgment orders de novo. Bailey v. State Farm Mut. Auto.

Ins. Co., 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. Summary judgment is

appropriate when the moving party demonstrates an absence of a genuine issue of

material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3). “A

district court’s ruling on whether a justiciable controversy exists is a conclusion of law,”

which we review for correctness. Northfield Ins. Co. v. Mont. Ass’n of Cntys., 2000 MT

256, ¶ 8, 301 Mont. 472, 10 P.3d 813.

¶9     Homeowners contends that the District Court should have granted its motion to

intervene as of right under M. R. Civ. P. 24(a)(2), which provides:

       On timely motion, the court must permit anyone to intervene who . . .
       claims an interest relating to the property or transaction which is the subject
       matter of the action, and is so situated that disposing of the action may as a
       practical matter impair or impede the movant’s ability to protect its interest,
       unless the existing parties adequately represent that interest.

The timeliness of Homeowners’ motion is not disputed. Homeowners contends that it

has a direct interest in the subject matter of this litigation because Estates claims that it

has an unequivocal vested right to close its road by gates when, in fact, Estates’ right is

limited by Homeowners’ reasonable use of an easement over Mountainside Drive.

Alternatively, Homeowners contends that the District Court should have granted it

permissive intervention under M. R. Civ. P. 24(b). M. R. Civ. P. 24(b)(1)(B) provides:

“On timely motion, the court may permit anyone to intervene who . . . has a claim or

                                             5
defense that shares with the main action a common question of law or fact.”

Homeowners contends that it should have been allowed to intervene because whether the

gates impair Homeowners’ easement rights is a common question of law and fact.

¶10    Contrary to Homeowners’ assertions, the easement issue is not common to both

parties’ claims. Estates contends that Resolution 14-48 interferes with its vested property

interests, whereas Homeowners contends that the construction of gates on Mountainside

Drive will interfere with its contractual easement interests. The applicability of

Resolution 14-48 to Estates involves different facts and different law than the

interpretation of the easement contract between Estates and Homeowners. Further, a

judgment that Resolution 14-48 interferes with Estates’ property interests does not

necessarily preclude Homeowners from arguing that a gate on Mountainside Drive would

interfere with its easement interests. The District Court determined that Homeowners

could assert its interest through separate litigation. That, in fact, is what Homeowners

has done. The District Court did not err in denying Homeowners’ motion to intervene as

of right or abuse its discretion in denying Homeowners’ motion for permissive

intervention.

¶11    Because we resolve Homeowners’ involvement in this case by concluding that the

District Court did not err in denying Homeowners’ motion for intervention, we need not

decide whether the District Court correctly determined that Homeowners has no

justiciable controversy against Estates.      By the same logic, we decline to address

Homeowners’ arguments concerning summary judgment. Since Homeowners was not

properly a party to this lawsuit, it cannot appeal the merits.



                                              6
¶12    We next turn to the City’s appeal of the District Court’s order granting summary

judgment to Estates and denying summary judgment to the City. In its response to the

City’s appellate brief, Estates contends that its two main arguments—that it has a vested

right and that Resolution 14-48 interferes with that right—were unopposed by the City

during the District Court proceedings. Estates cites the City’s motion for summary

judgment and response to Estates’ motion for summary judgment to support this

contention. A review of that document reveals that the City clearly opposed Estates’

arguments that it had a vested right—contending that public works approval was

necessary before Estates could install the gates—and that Resolution 14-48 interfered

with Estates’ vested right. Because the City raised these arguments before the District

Court, we will address them on appeal.

¶13    The City contends that the District Court erred in its summary judgment order for

two reasons. First, the City contends that the District Court should not have reached the

issue of whether Resolution 14-48 violated Estates’ constitutional right because, the City

argues, no justiciable controversy existed. Second, the City contends that the District

Court erred in determining that Estates’ constitutionally-protected property right in

installing gates on Mountainside Drive vested at final plat approval. These two issues are

related and, therefore, we will address them simultaneously.

¶14    This Court engages in a three-part analyses to determine whether a justiciable

controversy exists:

       First, a justiciable controversy requires that parties have existing and
       genuine, as distinguished from theoretical, rights or interests. Second, the
       controversy must be one upon which the judgment of the court may
       effectively operate, as distinguished from a debate or argument invoking a
       purely political, administrative, philosophical or academic conclusion.

                                            7
       Third, [it] must be a controversy the judicial determination of which will
       have the effect of a final judgment in law or decree in equity upon the
       rights, status or legal relationships of one or more of the real parties in
       interest, or lacking these qualities be of such overriding public moment as
       to constitute the legal equivalent of all of them.

Chipman v. Nw. Healthcare Corp., 2012 MT 242, ¶ 19, 366 Mont. 450, 288 P.3d 193

(change in original and citation omitted).

¶15    The District Court concluded that Estates’ right is existing and genuine because

Condition 12(a) “granted [Estates] the right to have private roads and to close its private

roads . . . to vehicular access by the public. That right vested upon final plat approval.”

The City contends that this conclusion is incorrect, attempting to characterize Estates’

right as conditional and therefore incomplete. The City contends that Estates’ proposed

gates on Mountainside Drive are subject to the Public Works Department’s review

pursuant to the City’s engineering standards and Condition 24 of final plat approval.

Condition 24 specifically refers to plans for streets. Estates desires to install a gate, not a

street. Further, as Estates points out, the City only approved the final plats once all of the

conditions were satisfied. See § 76-3-611(1), MCA (“The governing body shall examine

each final subdivision plat and shall approve the plat only if: (a) it conforms to the

conditions of approval set forth on the preliminary plat . . . .”). The District Court

correctly determined that Estates’ right to construct gates on private roads within the

Grouse Mountain Estates subdivision vested when Estates received its final plat. The

City cannot now withdraw its approval of that plat by passing Resolution 14-48.

¶16    The District Court’s decision resolved a concrete dispute between the parties as to

their existing rights. A controversy existed upon which the District Court’s judgment

effectively operated: Estates has an existing property right to construct gates on its

                                              8
private roads, and Resolution 14-48 conflicts with this right by prohibiting Estates from

constructing gates on its private roads. We disagree with the City that the “triggering

event” that would have created a concrete controversy is the members’ approval of the

installation of permanent gates on Mountainside Drive. In fact, the triggering event was

the City’s passage of Resolution 14-48, which interfered with Estates’ vested property

interest. The judgment in this case will have the effect of a final judgment on the rights

of the parties.    Therefore, the District Court correctly concluded that a justiciable

controversy exists.1 The District Court’s grant of summary judgment to Estates and

denial of summary judgment to the City was appropriate because a justiciable

controversy exists, Estates’ property right vested upon final plat approval, and Resolution

14-48 interferes with that property right.

¶17    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct, its findings of fact were not clearly erroneous, and its

ruling was not an abuse of discretion. We affirm.



                                                    /S/ JAMES JEREMIAH SHEA




1
  Because we did not address whether the District Court erred in finding that no justiciable
controversy exists between Estates and Homeowners, we decline to address whether that ruling
is inconsistent with the District Court’s conclusion that a justiciable controversy exists between
the City and Estates.
                                                9
We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




                      10
