No. 85-315
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
O'DONNELL FIRE SERVICE AND EQUIPMENT
COMPANY,
Plaintiff and Appellant,
THE CITY OF BILLINGS, an incorporated
City of the State of Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerome J. Cate argued, Billings, Montana
For R.espondent:
Peterson, Schofield & Leckie; Kenneth Peterson argued,
Billings, Montana
For Amicus Curiae:
Felt & Martin for Billings Elementary School Dist. No.
2, Billings, Montana
Ronald K. Olson for Yellowstone County Sewer Board of
Billings Heights, Christian Spring-Sielbach & Assoc.,
Donna Schiedel, Jack Rollinger, Rex Marquardt,
Billings, Montana
Submitted: November 27, 1985
Decided: December 31, 1985
Filed: DEC 3 11995
Mr. Justice L . C. Gulbrandson delivered the Opinion of the
Court.
OIDonnell Fire Service and Equipment Company
(O'Donne11), appeals the granting of summary judgment in
favor of the City of Billings by the Yellowstone County
District Court. O'Donnell brought this action to challenge
the validity of annexations of certain areas to the City of
Billings. We affirm the District Court's judgment and order
decreeing OtDonnell has no standing to challenge the
annexations and dismissing its complaint with prejudice.
During 1984, the City of Billings annexed several
parcels in the Billings Heights area. Five parcels were
annexed after a majority of the resident freehold electors in
each of the areas petitioned the City Council for annexation.
The Council annexed these areas under the provisions of Title
7, Chapter 2, Part 46, MCA. An additional annexation on the
west-end of the City of Billings occurred on November 5,
1984. This was done pursuant to Title 7, Chapter 2, Part 47,
MCA. Some of the west-end residents filed a petition to
review this annexation. OfDonnell is not a party to that
petition.
The petitions requesting annexation were prepared by
engineering firms retained by area residents and were
circulated by the residents. After the petitions were
presented, the city engineer's office reviewed them and
determined a majority of resident freehold electors had
petitioned for annexation. The City Council then passed
resolutions of annexation. None of the area residents
protested.
O'Donnell is a Montana corporation with its place of
business in the City of Billings. It owns no real property
in the annexed area.s or within the City of Billings.
O'Donnell provides private contracted fire service to
customers in Yellowstone County. After the annexations in
1984, most, if not all, of its contracts in the annexed. areas
lapsed.
O'Donnell filed a complaint in District Court on
January 30, 1985 asking for damages, for an injunction
against further annexations by Billings, for a declaration
that these annexations were illegal and void, and for
attorney fees and other relief. It alleged that the Billings
Heights annexations were invalid because they violated
certain provisions in Part 46 and that the illegal
annexations caused the lapse or cancellation of most of their
fire service contracts. A second count alleged that the
annexation of the west-end parcel violated Part 47 resulting
in similar damages. The third count requested monetary
damages as a result of other invalid procedures during
annexation. The final count alleged plaintiff was a resident
landholder of Billings, apparently based on O'Donnellls
stockholders' statuses, who could prospectively share the
increa.sed tax burden resulting from the annexations; that it
suffered direct injury to its business; and the negligent
violation of the annexation statutes was the direct and
proximate cause of its injury.
The City answered and counter-claimed alleging the suit
was frivolous. Both parties filed motions for summary
judgment supported by affidavits and briefed and argued their
motions before the District Court. The District Court denied
OIDonnell's motion for partial summary judgment, and granted
the City's motion for summary judgment by dismissal on May
29, 1985.
OIDonnell then requested leave to file an amended
complaint including its two owners as plaintiffs and alleging
additional federal and constitutional grounds for relief.
After a hearing, the District Court denied permission to file
an amended complaint.
OIDonnell filed a notice of appeal from the order
granting summary judgment. It raises two issues on appeal:
(1) Did the District Court properly rule O'Donnell has
no standing to challenge the annexations by the City of
Billings?
(2) Did the District Court properly deny OIDonnell
permission to file an amended complaint?
O'Donnell brought suit against the City of Billings
directly challenging the annexation proceedings in three
counts and indirectly challenging them in the fourth count on
a negligence theory. In Stewart v. Bd. of Cty. Com'rs. of
Big Horn Cty. (1977), 175 Mont. 197, 573 P.2d 184, this Court
established requirements for standing to sue a governmental
entity:
(1) the issue must represent a case or controversy;
(2) the complaining party must clearly allege past,
present or threatened injury to a property or civil right;
and
(3) the injury must be distinguishable from injury to
the public generally, but need not be exclusive to the
complaining party. Stewart, 175 Mont. at 201, 573 P.2d at
186. When addressing the particular question of protesting
annexations, additional principles apply. Absent a
constitutional prohibition, annexation is "a political matter
exclusively for legislative control." Harrison v. City of
Flissoula (1965), 146 Mont. 420, 424, 407 P.2d 703, 705-706.
result, most jurisdictions hold that private
usually does not have the capacity to attack annexation
proceedings. Annot., 13 ALR2d. 1279, 1281. In Montana, we
have permitted a property owner within the annexed area to
directly attack an annexation through a suit to enjoin the
city's action. Sharkey v. City of Butte (1915), 52 Mont. 16,
155 P. 226. Nilson Enterprises, Inc. v. City of Great Falls
(Mont. 1980), 621 P.2d 466, 37 St.Rep. 1977, affirmed the
rule in Sharkey quoting:
". . . where such proceedings are void
ab initio [emphasis in original] for want
of jurisdiction of the subject matter, as
here, equity will afford relief to the
property owner [emphasis added] whose
taxes would be increased if his property
were included within the city's limits."
(Citations omitted. )
621 P.2d at 470, 37 St.Rep. at 1981. Title 7, Chapter 2,
Part 46, MCA, does not provide any method for attacking a
resolution of annexation accomplished by petition. Following
the rule in Sharkey and Nilson, supra, the annexations would
have to be void ab initio and the challenger would have to be
a property owner who would suffer tax increases before the
annexation could be set aside in a direct attack. O'Donnell
owns no property in the annexed area. It seeks monetary
damages rather than just an injunction, the equitable remedy
available. Given these facts, O'Donnell has no standing to
challenge the annexations done pursuant to Part 46, as it
attempted to do in the first and third counts of its
complaint.
The discussion of whether the annexations are void. ab
initio requires additional development. The challenge to the
annexation procedures consisted of two separate claims.
First, the petitions may not have contained the requisite
number of signatures and second, the petitions were not
submitted to the proper authority. The only authority
submitted for the first claim consisted of a count of the
signatures on the petitions by an O1Donne1-1stockholder. The
count took place in only one of the annexed areas and was
based on criteria determined by that stockholder. This is
insufficient to support a claim that the City inaccurately
counted the signatures on the petition.
As to the second claim, S7-2-4601, MCA, gives the
governing body of the municipality the authority to a.pprove a
petition for annexation. In Kunesh v. City of Great Falls
(1957), 132 Mont. 285, 317 P.2d 297, and State v. City of
Butte (1964), 144 Mont. 95, 394 P.2d 753, this Court approved
procedures where city officials determined the validity of
petitions. OIDonnell's reliance on S7-1-4130, MCA, is
misplaced. It states that the county election administrator
determines the sufficiency of the signatures "unless
otherwise provided." The section within Part 46 gives that
authority to the governing body of the municipality. Thus,
O'Donnellls claims that the annexations by petition are void
ab initio must fail.
The second count in the complaint challenged the
annexation which took place pursua.nt to Part 47 rather than
Part 46 of Title 7, Chapter 2, MCA. This part specifically
provides a right to court review, in contrast to Part 46 on
annexation by petition. Section 7-2-4741, MCA, provides:
(1) Within 30 days following the passage
of an annexation ordinance under
authority of this part, either a majority
of the resident freeholders in the
territory or the owners of more than 75%
in assessed valuation of the real estate
in the territory who believe that they
will suffer material injury by reason of
the failure of the municipal governing
body to comply with the procedure set
forth in this part or to meet the
requirements set forth in 7-2-4734 and
7-2-4735, as they apply to their
property, may file a petition in the
district court of the district in which
the municipality is located seeking
review of the action of the governing
board and serve a copy of the petition on
the municipality in the manner of service
of civil process.
O'Donnell did not bring its action within 30 days and is not
a. resident freeholder of the territory or an owner of more
than 75% in assessed valuation of real estate of the
territory. This section is the exclusive appeal provision
under Part 47. Thus, O'Donnell's second count fails.
The third count has been addressed in the above
discussion.
The fourth count in O'Donnell's complaint collaterally
attacks the annexations by attempting to state a claim in
negligence. O'Donnell has no standing to directly attack the
annexations, as discussed above. Similarly here, it owns no
property in the annexed area. If it lacks standing to
directly attack the annexations, it should not be permitted
to pursue a calla-teral attack. Montana has never permitted
such a collateral attack and we will not do so in this case.
We hold O'Donnell has no standing to challenge,
directly or collaterally, the annexations done pursuant to
Parts 46 and 47 of Title 7, Chapter 2, MCA.
The second issue concerns whether the District Court
properly denied O'Donnell permission to file an amended
complaint. However, in its notice of appeal, O'Donnell only
requested consideration of the granting of summary judgment
in favor of the City of Billings. No mention is made of the
order denying permission to file an amended complaint after
judgment. Thus O'Donnell did not perfect an appeal from this
order. I n a . d d i t i o n , denying a motion t o amend a c o m p l a i n t
after final judgment i s not a s p e c i a l o r d e r which can be
appealed. See Rule 1 ( b ) , M.R.Civ.P. and Apple v . Seaver
(1924), 7 0 Mont. 6 5 , 2 2 3 P. 830. W e t h e r e f o r e do n o t a d d r e s s
t h i s i s s u e on a p p e a l .
The judgment o f t h e D i s t r i c t C o u r t i s a
t