Thornton v. Flathead County

November 3 2009

DA 09-0141

IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 367

DENNIS THORNTON, DONNA THORNTON, and
MISTY CLIFF II CONDOMINIUMS ASSOCIATION,
and BLOMGREN FAMILY TRUST, BILL B. BLOMGREN
and LARILYN A. BLOMGREN, TRUSTEES, and
MISTY CLIFF I CONDOMINIUMS ASSOCIATION,
_______________________________________

JIM ETZLER and BEVERLY ETZLER,

Plaintiffs and Appellants,

v.

FLATHEAD COUNTY, a political subdivision, BOARD
OF COUNTY COMMISSIONERS OF FLATHEAD COUNTY,
in its official capacity, CLERK AND RECORDER OF
FLATHEAD COUNTY, in her official capacity, et al.,

Defendants and Appellees.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV 07-912A
Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Michael A. Ferrington; Attorney at Law, Whitefish, Montana
(for Jim Etzler and Beverly Etzler)

James C. Bartlett; Attorney at Law, Kalispell, Montana
(for Dennis Thornton, Donna Thornton, Misty Cliff II Condominium
Association, Blomgren Family Trust, Bill B. Blomgren and Larilyn A.
Blomgren, Trustees, and Misty Cliff I Condominiums Association)
 For Appellees:

Alan F. McCormick; Garlington, Lohn & Robinson, Missoula, Montana
(for Flathead County)

Peter A. Steele; Office of the County Attorney, Kalispell, Montana

Submitted on Briefs: August 12, 2009

Decided: November 3, 2009

Filed:

__________________________________________
Clerk

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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Jim and Beverly Etzler (Etzlers), Blomgren Family Trust (Blomgrens), and Dennis

and Donna Thornton (Thorntons) (collectively Appellants) appeal from an order of the

Eleventh Judicial District Court, Flathead County, granting Flathead County’s (County)

motion for summary judgment. We affirm.

¶2 We restate the issues on appeal as follows:

¶3 Whether Appellants’ properties were correctly required to complete subdivision

review for their condominium projects.

¶4 Whether the District Court correctly granted summary judgment to Flathead

County.

¶5 Whether recording certain condominium documents bars Flathead County’s

actions under theories of estoppel or waiver.

¶6 Whether the District Court abused its discretion by denying Etzlers’ motion to

amend their complaint.

BACKGROUND

¶7 This is a case about condominium exemptions from subdivision review. The

District Court consolidated two cases challenging the County’s refusal to allow the filing

of transfer deeds for condominiums until the projects completed subdivision review. The

particular facts presented by Appellants are similar, but addressed separately here.

¶8 On October 19, 2006, Etzlers recorded a declaration and bylaws for a residential

condominium project containing 31 buildings and 124 condominium units on real

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property near Lakeside. The Clerk and Recorder’s Office accepted the documents for

recording. Etzlers previously obtained subdivision approval on the same real property for

a five-lot subdivision (plus one remainder lot) for single-family dwellings. The original

subdivision approval did not contemplate construction of condominiums. The real

property comprising the proposed Osprey Ridge condominium project is located in the

County’s Scenic Corridor Zoning District.

¶9 On August 1, 2006, Blomgrens recorded a declaration of residential

condominiums and related documents with the Flathead County Clerk and Recorder for a

residential condominium project containing four buildings and 105 condominium units.

The Clerk and Recorder’s Office accepted the documents for recording. The real

property comprising the proposed Misty Cliff I condominium project is not within any

zoning district and the project has not been constructed. The parcel for the condominium

project was created prior to enactment of the Montana Subdivision and Platting Act of

1973 (Subdivision Act).

¶10 On July 25, 2006, Thorntons recorded a declaration of residential condominiums

and related documents with the Flathead County Clerk and Recorder for a residential

condominium project containing 17 buildings and 385 condominium units. The Clerk

and Recorder’s Office accepted the documents for recording. The real property

comprising the proposed Misty Cliff II condominium project is not within any zoning

district and the project has not been constructed. The parcel for the condominium project

was created prior to enactment of the Subdivision Act.

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¶11 When the County learned that Appellants recorded the documents purporting to

create condominium projects without subdivision review, the County informed the Clerk

and Recorder’s Office not to accept deeds for the condominium developments and posted

a reminder notice in order to prevent construction of the projects and transfers of any

condominium units until Appellants obtained subdivision approval in accordance with the

Subdivision Act. Appellants sued. The District Court granted summary judgment to the

County on January 14, 2009. Appellants appeal from that order.

STANDARD OF REVIEW

¶12 This Court reviews a district court’s conclusions of law to determine whether its

interpretation is correct. Bitterrooters for Planning v. Bd. of Co. Commrs. of Ravalli Co.,

2008 MT 249, ¶ 12, 344 Mont. 529, 189 P.3d 624.

¶13 This Court reviews summary judgment rulings de novo, applying the same criteria

as the district court based on M. R. Civ. P. 56. Peterson v. Eichhorn, 2008 MT 250, ¶ 12,

344 Mont. 540, 189 P.3d 615. Thus, the moving party must establish both the absence of

genuine issues of material fact and entitlement to judgment as a matter of law. Peterson,

¶ 12. The evidence must be viewed in the light most favorable to the nonmoving party,

and all reasonable inferences are to be drawn in favor of the party opposing summary

judgment. Peterson, ¶ 12. “Once the moving party has met its burden, the party

opposing summary judgment must present substantial evidence, as opposed to mere

denial, speculation, or conclusory statements, raising a genuine issue of material fact.”

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Peterson, ¶ 13. The determination that the moving party is or is not entitled to judgment

as a matter of law is a legal conclusion, which we review for correctness. Peterson, ¶ 13.

¶14 This Court reviews a district court’s denial of a motion to amend pleadings to

determine if the district court abused its discretion. Peuse v. Malkuch, 275 Mont. 221,

226, 911 P.2d 1153, 1156 (1996). Pursuant to M. R. Civ. P. 15(a), a party may amend its

pleading by leave of court and leave shall be freely given when justice so requires. An

opportunity to amend a pleading is not appropriate, however, when the party opposing

the amendment would incur substantial prejudice as a result of the amendment. Peuse,

275 Mont. at 227, 911 P.2d at 1156.

DISCUSSION

¶15 Whether Appellants’ properties were correctly required to complete subdivision

review for their condominium projects.

¶16 This issue turns on the interpretation of a statutory exemption from subdivision

review for certain condominiums. The Subdivision Act defines condominiums as

subdivisions:

“Subdivision” means a division of land or land so divided that it creates one
or more parcels containing less than 160 acres that cannot be described as a
one-quarter aliquot part of a United States government section, exclusive of
public roadways, in order that the title to or possession of the parcels may
be sold, rented, leased, or otherwise conveyed and includes any
resubdivision and further includes a condominium or area, regardless of its
size, that provides or will provide multiple space for recreational camping
vehicles or mobile homes.

Section 76-3-103(15), MCA (emphasis added). However, the Subdivision Act also

exempts certain condominiums from subdivision review:

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 Exemption for certain condominiums. Condominiums constructed on
land divided in compliance with this chapter are exempt from the
provisions of this chapter if:
(1) the approval of the original division of land expressly
contemplated the construction of the condominiums and any applicable
park dedication requirements in 76-3-621 are complied with; or
(2) the condominium proposal is in conformance with applicable
local zoning regulations where local zoning regulations are in effect.

Section 76-3-203, MCA (2005). Thus, a condominium project is exempt from

subdivision review if it meets two prerequisites. First, the condominium project must be

constructed on “land divided in compliance with this chapter.” Second, the condominium

project must be either: (1) expressly contemplated at the time of the original approval

(i.e. subdivision approval); or (2) in conformance with applicable local zoning

regulations where local zoning regulations are in effect. Section 76-3-203, MCA (2005).

Etzlers

¶17 The Osprey Ridge condominium project fulfills the first prerequisite of § 76-3-

203, MCA (2005), because Etzlers obtained approval in 2005 to subdivide the property

into five single-family dwellings in accordance with the Subdivision Act. Etzlers rely on

their interpretation of § 76-3-203(2), MCA (2005), as providing them an exemption from

subdivision review.

¶18 Etzlers argue that the Osprey Ridge condominium project is exempt from

additional subdivision review because the property is located within the Scenic Corridor

Zoning District. Flathead County Zoning Regulations (Zoning Regulations) define the

Scenic Corridor as:

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 An overlay or standing district intended to protect the scenic vistas and
provide greater traffic safety along the highway corridors by restricting the
number, size and location of outdoor advertising signs and billboards. This
district can function as a standing district or can be applied to zoned areas.
If zoned, this district will only regulate off-premise advertising signs.

No other land use restrictions apply in this district other than those relating
to signs.

Section 3.32.010. The Zoning Regulations only regulate signs and cellular towers within

the Scenic Corridor Zoning District. Etzlers interpret the provision that “[n]o other land

use restrictions apply in this district other than those relating to signs” as inferring that

condominiums are permitted in the Scenic Corridor, since the Scenic Corridor only

regulates signs and cellular towers. Etzlers claim that the Osprey Ridge condominium

project is exempt from subdivision review, because, pursuant to § 76-3-203(2), MCA

(2005), the project is “in conformance with applicable local zoning regulations where

local zoning regulations are in effect.” In other words, Etzlers argue that the Osprey

Ridge condominium project complies with the only land-use restrictions for the Scenic

Corridor Zoning District, therefore the project conforms with applicable local zoning

regulations and qualifies for an exemption from subdivision review.

¶19 Etzlers misconstrue the Scenic Corridor Zoning District’s application to § 76-3-

203(2), MCA (2005). This Court has held that the exemption provisions of the

Subdivision Act are to be narrowly interpreted. Shults v. Liberty Cove, Inc., 2006 MT

247, ¶ 17, 334 Mont. 70, 146 P.3d 710. The Scenic Corridor Zoning District only applies

to signs and cellular towers. The Scenic Corridor Zoning Regulations do not address

appropriate land uses or densities, and do not contemplate or regulate development of

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condominiums. Etzlers strain logic by interpreting the Scenic Corridor’s provision that

“[n]o other land use restrictions apply in this district other than those relating to signs” to

infer that condominiums are permitted in the Scenic Corridor. This provision merely

limits application of the Scenic Corridor Zoning District to signage. Etzlers’ attempt to

read into this provision any inferred permission for condominium development

misconstrues the plain language of the regulation.

¶20 Furthermore, the legislative history of § 76-3-203(2), MCA (2005), clarifies that

the Legislature never intended for an absence of zoning regulating condominiums to

create an exemption from subdivision review. As the District Court reasoned:

The legislative history of Section 76-3-203, M.C.A., makes the intent of the
exemption provisions clear. The amendment was intended to address
situations involving lands already subject to zoning regulations. Where a
local government has completed the public, legislative process to determine
appropriate land uses for an area, the subsequent construction of
condominiums in conformance with those zoning regulations should not
require subdivision review. However, where zoning has not been enacted,
condominium projects should undergo subdivision review because the local
government has not yet had an opportunity to determine whether the
property is suitable for any particular land use or for the condominium
project such as in the case at bar.

See Mont. Sen. Comm. on Loc. Govt., HB 589, 57th Leg., Reg. Sess. 7-8 (Mar. 27,

2001). Clearly the exemption provided in § 76-3-203(2), MCA (2005), contemplates

application to local zoning regulations that address condominium development. The

Scenic Corridor Zoning District does not address condominium development, and is

therefore not applicable to the exemption in § 76-3-203(2), MCA (2005). Thus, the

District Court correctly concluded that the Etzlers’ condominium project fails to meet the

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prerequisites for an exemption from subdivision review under § 76-3-203, MCA (2005),

and Etzlers were correctly required to complete subdivision review.

Thorntons/Blomgrens

¶21 Thorntons and Blomgrens argue that their real properties have never been subject

to the Subdivision Act because their parcels were created prior to enactment of the

Subdivision Act in 1973. They contend that the Subdivision Act does not affect their pre-

1973 “tract land,” therefore they receive a “wholesale blanket exemption” from

subdivision review and are free to construct condominium developments without

government intervention.

¶22 Thorntons and Blomgrens base this argument on a tortured interpretation of § 76-

3-103(15), MCA, which defines a subdivision to include “a condominium or area,

regardless of its size, that provides or will provide multiple space for recreational

camping vehicles or mobile homes.” (Emphasis added.) Thorntons and Blomgrens

suggest that the “or” in this statutory language equates condominiums to areas for

recreational camping vehicles or mobile homes, and then argue that this language does

not comport with the common definition of condominium as used in the Flathead County

Zoning Regulations: “[o]wnership in common with others of a parcel of land and certain

parts of a building together with individual ownership in fee of a particular unit or

apartment in such building.” Section 7.04.150. We decline to accept this strawman

interpretation of the definition of subdivision, and instead give “or” its common

disjunctive meaning, understanding that the Subdivision Act defines subdivisions to

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include a “condominium,” as well as an “area, regardless of its size, that provides or will

provide multiple space for recreational camping vehicles or mobile homes.” Section 76-

3-103(15), MCA. The inclusion of condominiums as subdivisions subject to the

Subdivision Act was implicit in our discussion in Shults, which addressed whether a

condominium project similar to those here met the requirements for an exemption from

subdivision review under § 76-3-203, MCA (2005). Shults, ¶¶ 7, 13-23. We conclude

that no “wholesale blanket exemption” from subdivision review exists for pre-1973 “tract

land,” thus Thorntons and Blomgrens must complete subdivision review for their

condominium projects unless they fulfill the requirements for an exemption under § 76-3-

203, MCA (2005).

¶23 Thorntons and Blomgrens do not meet the prerequisites for an exemption from

subdivision review under § 76-3-203, MCA (2005). Thorntons and Blomgrens

acknowledge that their properties were created prior to enactment of the Subdivision Act.

Thus, since their proposed condominium projects will not be built on “land divided in

compliance” with the Act, their projects fail to meet the first prerequisite for an

exemption from subdivision review under § 76-3-203, MCA (2005). This conclusion is

sufficient to determine that their condominium projects are not exempt from subdivision

review under § 76-3-203, MCA (2005). However, since they argue that Flathead County

has established county-wide zoning, and assert that their parcels are located in the

County’s “unzoned” district not subject to any regulations preventing construction of

condominiums, we address this issue as well.

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¶24 In 1993, Flathead County adopted zoning regulations pursuant to Title 76, Chapter

2, Part 2, MCA. The Zoning Regulations specifically provide that “[t]hese regulations

may be applied throughout the County, regardless of planning jurisdictions, wherever a

County zoning district is created.” Section 1.04.040. Thus, zoning is only applied to

those zoning districts created by the County. The Zoning Regulations establish specific

use districts “[f]or the purpose of applying these regulations to the zoned areas of

Flathead County. . . .” Section 3.01.020. Once again, zoning is applied exclusively to

zoned areas of the County. These zoning provisions clarify that Flathead County has not

adopted county-wide zoning, but rather has adopted zoning regulations for specific

zoning districts. Furthermore, the Zoning Regulations do not include an “unzoned”

district in the list of zoning districts, which includes typical zoning uses such as

agricultural, residential, business, commercial, industrial, and others. Section 3.01.020.

The District Court correctly noted that “the County has presented uncontradicted

evidence and argument that Flathead County has not established County-wide zoning and

only those parcels that are within one of the County’s established zoning districts are

subject to zoning regulations. There is no zoning district designated as ‘unzoned’.”

Because there are no local zoning regulations in effect for the area where the Misty Cliff I

and II condominium projects are proposed, Thorntons and Blomgrens do not meet the

second prerequisite for an exemption from subdivision review under § 76-3-203(2), MCA

(2005). The District Court correctly concluded that Thorntons’ and Blomgrens’

condominium projects fail to meet the prerequisites for an exemption from subdivision

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review under § 76-3-203, MCA (2005), and they were correctly required to complete

subdivision review for their condominium projects.

¶25 Appellants devote much attention to their perceived deprivation of property rights.

To clarify our holding in this respect, Appellants are not deprived of their potential to

develop condominiums on their property, they are merely denied an exemption from

subdivision review under § 76-3-203, MCA (2005). Appellants may still pursue their

condominium projects by completing subdivision review as required by law.

¶26 Whether the District Court correctly granted summary judgment to Flathead

County.

¶27 Etzlers attempt to raise various issues of disputed facts to challenge the District

Court’s summary judgment ruling. Etzlers claim that an affidavit of County Planning

Director Jeff Harris (Harris) fails to state that it is based on personal knowledge. Etzlers

thus attempt to elevate their affidavits as the only proper consideration, even suggesting

that their interpretations of the law become the undisputed facts for purposes of summary

judgment. Etzlers further attempt to create disputes of material fact under § 76-3-203(1),

MCA (2005), regarding whether condominiums were expressly contemplated when the

real property was subdivided in 2005.

¶28 Etzlers’ arguments are unpersuasive. The factual disputes that Etzlers describe are

not material to the dispositive issue regarding the application of § 76-3-203, MCA

(2005). This Court has repeatedly held that “the party opposing summary judgment must

present substantial evidence, as opposed to mere denial, speculation, or conclusory

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statements, raising a genuine issue of material fact.” Peterson, ¶ 13. Etzlers’ arguments

amount to nothing more than denial, speculation, and conclusory statements pertaining to

immaterial facts. For example, Etzlers’ affidavit includes a vague statement that “when

we submitted our prior application for Osprey Ridge Minor Subdivision and when we

received our preliminary plat approval, the concept of multi-family use such as

townhomes or condominiums was in fact contemplated,” yet the affidavit fails to support

this statement with any documentation that counters the submitted matters of record.

Similarly, Etzlers attempt to contradict Harris’ statements that the Scenic Corridor

District is merely for sign regulation by mischaracterizing the District as “clearly

identified as a separate ‘free standing’ zoning district.” The plain language of the

regulation defines the Scenic Corridor District as an “overlay or standing district,” and

adds that “[t]his district can function as a standing district or can be applied to zoned

areas. If zoned, this district will only regulate off-premise advertising signs.” Section

3.32.010. This provision clarifies that a zoned area may still be designated a Scenic

Corridor District, although such designation functions as an overlay district to regulate

signage, while other uses continue to be regulated by whatever zoning was already in

place for the area. The provision can be interpreted by a plain reading of the regulation

and no suggested dispute of material fact is relevant.

¶29 More importantly, Etzlers’ affidavits are not relevant to the material facts at issue.

All applicable statutes, including the entire text of the Zoning Regulations with sections

providing for the Scenic Corridor District, were presented to the District Court, which

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reached its own conclusions regarding their effect on the condominium projects without

citation to the affidavits. Removing all affidavits from consideration does not change the

fact that all undisputed material facts necessary for resolution of this case were before the

District Court.

¶30 Thorntons and Blomgrens raise the issue of whether the District Court erred in

granting summary judgment to the County, but fail to develop any clear argument to

address the issue. This Court’s Rules of Appellate Procedure provide that “[t]he

argument shall contain the contentions of the appellant with respect to the issues

presented, and the reasons therefor, with citations to the authorities, statutes, and pages of

the record relied on. . . .” M. R. App. P. 12(1)(f). The closest that Thorntons and

Blomgrens come to developing their argument is to blame the County for incomplete

discovery that contributed to their absence of a cross-motion for summary judgment.

However, as noted above, the District Court had all undisputed material facts necessary

for resolution of the case before it when it granted summary judgment to the County.

¶31 We conclude that the District Court correctly granted summary judgment to the

County.

¶32 Whether recording certain condominium documents bars Flathead County’s

actions under theories of estoppel or waiver.

¶33 Etzlers challenge the District Court’s conclusion that Montana law is clear that the

recording of a document does not establish the document’s validity. Etzlers maintain that

they relied upon the approval and recordation by the County. However, Etzlers fail to

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cite any authority for their contention that the County reviewed and approved their

declaration prior to recordation. In fact, the only approval the Etzlers obtained was from

the Montana Department of Revenue. The Department of Revenue lacks discretion to

deny approval of a condominium declaration if the name of the project is unique and the

landowner has paid all taxes and assessments due. Section 70-23-304, MCA. However,

the Department has no authority to determine whether a condominium project is exempt

from subdivision review. Only the local governing body has authority to determine

whether a division of land is exempt from subdivision review.

¶34 Montana law provides that the act of recording a document, such as a deed or a

condominium declaration, does not establish the document’s validity simply because the

clerk and recorder’s office accepted and recorded it. For example, this Court held that

void one-party deeds could not legitimately transfer property simply because they were

accepted and filed with the clerk and recorder’s office. Elk Park Ranch, Inc. v. Park Co.,

282 Mont. 154, 164, 935 P.2d 1131, 1136-37 (1997). “The Landowners cannot seriously

argue that the void one-party deeds somehow serve to accomplish a legitimate property

transfer simply because the void deeds were accepted and filed with the clerk and

recorder’s office. The recording of a deed does not establish the deed’s validity.” Elk

Park Ranch, 282 Mont. at 164, 935 P.2d at 1136-37.

¶35 Equitable estoppel does not apply here. “Equitable estoppel, by its terms, requires

the misrepresentation of a material fact.” Elk Park Ranch, 282 Mont. at 166, 935 P.2d at

1138. Etzlers do not allege the County made any express representations that the

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condominium projects were entitled to an exemption from subdivision review. The

County’s only representation to Etzlers was that the condominium projects would require

subdivision review. The mere recording of the condominium declarations is not a

representation of any kind. Thus, equitable estoppel does not apply here, since Etzlers

have not demonstrated that the County made any misrepresentation of a material fact.

¶36 Etzlers’ waiver argument is similarly unpersuasive. Etzlers fail to point to any

authority that would permit the County to waive a requirement of state law or its own

local regulations. The County correctly interpreted § 76-3-203, MCA (2005), and found

that the Etzlers’ condominium development must complete subdivision review and

approval in accordance with the Subdivision Act and County Subdivision Regulations.

The County cannot waive these requirements; they are mandatory minimum provisions of

state law that the County cannot ignore. Burnt Fork Citizens Coalition v. Bd. of Co.

Commrs. of Ravalli Co., 287 Mont. 43, 49, 951 P.2d 1020, 1024 (1997) (“the Act

establishes minimum requirements that local governing bodies must follow”).

¶37 Whether the District Court abused its discretion by denying Etzlers’ motion to

amend their complaint.

¶38 After the County’s motion for summary judgment was fully briefed, but before the

time for oral argument, Etzlers filed a motion to amend their complaint to add a claim for

equal protection violations. Etzlers argued that other condominium projects have been

approved that did not meet any statutory exemptions, therefore the County impermissibly

applied restrictions to Etzlers. The District Court denied Etzlers’ motion to amend, citing

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Peuse v. Malkuch for the proposition that the court should not allow amended pleadings

or a change in legal theories after a dispositive motion for summary judgment has been

fully briefed. On appeal, Etzlers maintain that “newly discovered evidence” found during

the course of litigation has always been recognized as a reasonable basis for a motion to

amend, citing Hobble-Diamond Cattle Co. v. Triangle Irr. Co., 249 Mont. 322, 815 P.2d

1153 (1991).

¶39 Etzlers fail to adequately present any “newly discovered evidence” to support their

claim. Etzlers mentioned the alleged discrimination in their brief opposing the County’s

summary judgment motion. The supporting evidence for this claim is limited to an

affidavit with a list of condominium projects allegedly approved through recordation

without subdivision or other approval from the County. As the County notes, this list

fails to provide dates, legal descriptions, or condominium declarations for these projects

sufficient to determine what statutes or local regulations may have applied. The list

merely includes condominium projects created in unzoned areas or within the Scenic

Corridor District. Such projects could have been eligible for statutory exemptions from

subdivision review, but without further evidence presented to the court, the names of

condominium projects alone do not establish any fact proving that the District Court

abused its discretion in denying Etzlers’ motion to amend. In response to discovery

requests, the County directed Appellants to the Clerk and Recorder’s Office to access any

public documents that could potentially support their contentions. Etzlers cannot now

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claim “newly discovered evidence” based on information that remains publicly available,

yet was never adequately presented to any court.

¶40 We conclude that the District Court did not abuse its discretion in denying Etzlers’

motion to amend their complaint. Etzlers sought to add an equal protection claim to their

complaint. This Court has concluded that “[l]itigants should be allowed to change legal

theories after a motion for summary judgment has been filed only in extraordinary cases.”

Peuse, 275 Mont. at 228, 911 P.2d at 1157. This is not such an extraordinary case. The

“newly discovered evidence” here was never fully developed and was available to Etzlers

when they filed their complaint. Allowing Etzlers to add a legal theory after the County

filed its motion for summary judgment would unduly prejudice the County.

¶41 For the reasons stated herein, the decisions of the District Court are affirmed.

/S/ MIKE McGRATH

We concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON

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