                                                                                          August 15 2012


                                            DA 11-0760

                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2012 MT 178N



AL BALLARD and ECOSAFE GOLD RECOVERY, LLC,

              Defendants and Appellants,

         v.

RUSSELL LEVENS and MELISSA LEVENS,

              Plaintiffs and Appellees.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark County, Cause No. CDV 2005-612
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Gregory W. Duncan; Attorney at Law; Helena, Montana

                For Appellees:

                        Holly Jo Franz; Franz & Driscoll, PLLP; Helena, Montana



                                                    Submitted on Briefs: July 25, 2012

                                                               Decided: August 15, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Al Ballard and Ecosafe Gold Recovery, LLC (Ballard), appeal from the order entered by

the District Court following this Court’s remand in the first appeal of the case. The facts related

to this dispute, which arise out the parties’ written agreement, are set forth in our earlier opinion.

See Levens v. Ballard, 2011 MT 153, 361 Mont. 108, 255 P.3d 195. We reversed the entry of

judgment in favor of Ballard and held that:

       [T]he 2006 judgment in this case must be construed to prevent Ballard from
       excavating in his pit in such a way that the pit excavation intrudes, by sloughing,
       slumping, subsidence or otherwise, into the 30-foot buffer strip at the edge of
       Levens’ property. Levens are entitled under the agreement and the judgment to
       have the 30-foot buffer strip remain intact.

Levens, ¶ 23. We also reversed the award of attorney fees to Ballard and remanded the matter

for further proceedings consistent with our opinion. Levens, ¶ 24.

¶3     Upon remittitur, Russell and Melissa Levens (Levens) moved for an order on remand that

would provide various forms of relief, including attorney fees. When Ballard did not initially

respond, the District Court entered an order requiring Ballard to immediately restore the 30-foot

buffer zone by appropriate filling, compacting, and buttressing. The court ordered Ballard to

commence work immediately and to complete the restoration within 30 days, and imposed a

$100 per day penalty for every day beyond the 30-day deadline that the restoration was

incomplete. The court required Ballard to mark the boundary of the buffer zone and to pay

Levens’ attorney fees and costs, and scheduled a hearing to determine the proper amount of fees.

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¶4     Ballard moved to vacate the order, citing a clerical error in his counsel’s office which

resulted in his failure to note and respond to Levens’ motion. Ballard’s briefing also revealed

that Ballard had sold his mining property to J. M. Safe Haven A, LLC (Safe Haven), and argued

that the relief ordered by the District Court “may be legally impossible at this point in time

because Mr. Ballard does not own the property and does not have access to the property.”

Levens opposed the motion to vacate and moved for joinder of Safe Haven as a defendant. Safe

Haven made a limited appearance to object to joinder as an unnecessary complication of the

litigation because it had granted Ballard access to the property to complete the ordered

restoration and for other purposes.

¶5     The District Court conducted a hearing on October 26, 2011, and thereafter issued an

order. The court denied the motion to join Safe Haven, reasoning that adding Safe Haven was an

unnecessary complication of the litigation in light of Ballard’s continued access to the property.

Noting the evidence of cracks that were appearing in Levens’ property on their side of the eroded

buffer zone, the court denied Ballard’s motion to vacate the original order on remand because

“Ballard has no meritorious defense to the Order requiring that he restore the 30-foot buffer

zone.” The court altered the original order by granting Ballard additional time to complete the

restoration work. Finally, the court ordered Ballard to pay Levens’ attorney fees and costs.

¶6     On appeal, Ballard’s arguments focus primarily on the proper definition of “excavation”

and the activities that he believes are permissible within the buffer zone under the parties’

agreement. These are largely re-arguments of the issues that were decided adverse to Ballard in

the first appeal, but he offers that this Court “somehow misinterpreted the testimony.” He also

argues that the buffer zone was eroded by water and wind forces beyond his control, that he no

longer owns the property, and that the District Court’s order constitutes a judicial taking. Ballard

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asks that we reverse our earlier decision in favor of Levens and grant him attorney fees under the

parties’ agreement as the prevailing party.

¶7     Levens respond that Ballard’s primary arguments are improper under the law of the case

doctrine, that the facts developed at the hearing demonstrate that Ballard continues to have

access to the property to complete the restoration work, that the takings claim was not raised

below, and that attorney fees were properly awarded to Levens by the District Court pursuant to

the parties’ agreement, because they are the prevailing party.

¶8     Both sides have argued throughout this proceeding that they are entitled to attorney fees

under their agreement as the prevailing party. Prior to the first appeal, the District Court

awarded fees to Ballard, who was then the prevailing party, on the basis of the agreement:

       [T]he issue of attorney fees is settled by the plain language of the agreement . . . .
       There is no qualifying language in the agreement to the effect that attorney fees
       are only recoverable for the initial injunction action filed in September 2005.
       Indeed, the Levens themselves recognized this fact when they filed the instant
       action, requesting costs and attorney fees.

Consistent therewith, following this Court’s reversal and remand, the District Court awarded fees

to Levens under the agreement because they had become the prevailing party. In their respective

appellate briefing in this appeal, both sides argue entitlement to attorney fees under the

agreement as the prevailing party.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The primary

legal issues are controlled by settled law, here, the law of the case, which the District Court

correctly applied. Ballard has no meritorious defense and the takings claim was raised for the

first time on appeal. The District Court properly awarded attorney fees to Levens under the



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agreement. Levens are likewise entitled to attorney fees on appeal. Boyne USA, Inc. v. Lone

Moose Meadows, LLC, 2010 MT 133, ¶ 26, 356 Mont. 408, 235 P.3d 1269.

¶10    Affirmed.

                                                          /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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