O DONNELL FIRE SVC EQUIP CO v
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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 Billings, Montana & Leckie; Kenneth Peterson argued, 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: Decided: Filed: DEC 3 11995 November 27, 1985 December 31, 1985 Mr. Justice L . Court. C. Gulbrandson delivered the Opinion of the OIDonnell Fire Service and Equipment Company (O'Donne11), appeals the granting of summary judgment in favor of the City of Billings by District Court. the Yellowstone County 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 annexations and During no dismissing standing to challenge its complaint with 1984, the City of Billings parcels in the Billings Heights area. the prejudice. annexed several 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 circulated by presented, the the retained by city engineer's residents After residents. area the petitions were office determined a majority of resident petitioned for annexation. resolutions of annexation. reviewed and were them and freehold electors had The City Council then passed 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 O'Donnell area.s or provides within private the City contracted customers in Yellowstone County. of fire Billings. service to After the annexations in 1984, most, if not all, of its contracts in the annexed. areas lapsed. O'Donnell January filed complaint asking 1985 30, a in District for damages, for an Court on injunction against further annexations by Billings, for a declaration that these annexations were illegal attorney fees and other relief. Heights annexations were certain provisions in void, and for It alleged that the Billings invalid Part and 46 because and they that violated 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. damages as annexation. a The third count requested monetary result of other invalid procedures during 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 granting summary judgment. from the order 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 complaining party. 186. need not be exclusive to the Stewart, 175 Mont. at 201, 573 P.2d at 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, Nilson Enterprises, Inc. v. City of Great Falls 155 P. 226. (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. owns no property in the annexed area. O'Donnell 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. annexation procedures consisted of The challenge to the two separate claims. First, the petitions may not have contained the requisite number of signatures and second, the petitions were not submitted authority. to the proper The only authority submitted for the first claim consisted of a count of the signatures on the petitions by an O1Donne1-1 stockholder. 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 otherwise provided." of the signatures "unless 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 territory. assessed of real estate of the This section is the exclusive appeal provision under Part 47. The valuation Thus, O'Donnell's second count fails. 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. property Similarly here, it owns no 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 complaint. O'Donnell permission to file an amended 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 final after appealed. (1924), judgment See Rule i s not a s p e c i a l o r d e r which can be 1 ( b ) , M.R.Civ.P. 7 0 Mont. 6 5 , 2 2 3 P. 830. and Apple v . Seaver 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
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