Summary
The Montana Supreme Court reviewed post-remand proceedings concerning enforcement of a 30-foot property buffer zone under the parties’ agreement. The court held that Ballard’s arguments were barred by the law of the case, that his takings claim was raised for the first time on appeal, and that the District Court properly ordered restoration of the buffer zone and awarded attorney fees to the Levens. The court affirmed.
Topics
Practice areas
Questions Presented
- Whether Ballard could relitigate the meaning of excavation and the permissible activities within the 30-foot buffer zone after those issues had been decided in the first appeal.
- Whether Ballard had a meritorious defense to the District Court's post-remand restoration order based on lack of property ownership, lack of access, or erosion caused by forces beyond his control.
- Whether Ballard's judicial-takings claim could be considered when it was raised for the first time on appeal.
- Whether the District Court properly awarded attorney fees to the Levens under the parties' agreement and whether the Levens were entitled to attorney fees incurred on appeal.
Holdings
- The law-of-the-case doctrine controlled the primary legal issues, so Ballard could not relitigate the interpretation of excavation or the protections afforded by the 30-foot buffer zone.
- Ballard had no meritorious defense to the District Court's order requiring restoration of the 30-foot buffer zone.
- The judicial-takings claim would not be considered because Ballard raised it for the first time on appeal.
- The District Court properly awarded attorney fees to the Levens under the parties' agreement because they became the prevailing party after the first appeal, and the Levens were also entitled to attorney fees on appeal.
Key quotations
“this case is decided by memorandum opinion and shall not be cited and does not serve as precedent.” (¶ 1)
“The primary legal issues are controlled by settled law, here, the law of the case, which the District Court correctly applied.” (¶ 9)
Factual background
The parties' written agreement and a prior judgment protected a 30-foot buffer strip along the Levens' property. After the Supreme Court held that Ballard could not excavate in a manner causing sloughing, slumping, subsidence, or similar intrusion into the buffer strip, the District Court ordered Ballard to restore the strip. Ballard argued that erosion resulted from natural forces, that he no longer owned the mining property, and that restoration was legally impossible, but the evidence showed that he continued to have access to the property and that cracks were appearing on the Levens' side of the eroded buffer.
Procedural history
In the first appeal, the Montana Supreme Court reversed a judgment in favor of Ballard, construed the parties' agreement and the 2006 judgment to protect the Levens' 30-foot buffer strip, reversed the award of attorney fees to Ballard, and remanded for further proceedings. On remand, the District Court ordered Ballard to restore the buffer zone, later denied his motion to vacate, allowed additional time for restoration, and awarded attorney fees and costs to the Levens. Ballard appealed, reasserting issues decided in the first appeal and raising a takings argument for the first time on appeal.