Call 888-354-4529 if you need a Easement and Road access Attorney in Montana.

MoreLaw Legal Marketing Services

The Better Way To Market Your Services On The Internet

Call: 888-354-4592 Today!

After the Dettmerings purchased property located kitty-corner to Passarges’

property outside of Columbia Falls, Montana, in 2002, a dispute and litigation ensued

between the parties regarding various easement and road access issues. The litigation

settled in 2006 pursuant to a settlement agreement that in pertinent part authorized the

Dettmerings to construct acontemplateddriveway withinthe boundaries oftwo previously

disputed easements across Passarges’ property “subject to approval by Flathead County.”

At the time, the parties believed that the roadway to which the contemplated future

3

driveway would connect (Parker Hill Road) was a county road governed by Flathead

County road regulations.1

¶4 The dispute flared up again in 2011-12 when Passarges asserted, inter alia, that a

new driveway recently constructed by Dettmerings did not comply with county road

approach regulationsas contemplated in the2006 settlementagreement. Dettmeringsthen

sued Passarges for declaratory enforcement of their rights under theagreement. Passarges

counterclaimed for termination of Dettmerings’ easementsbased on alleged overburdening

and for compensation for lossallegedlycaused bythe substandard driveway construction.

Upon bench trial in 2016, the District Court determined, inter alia, that the driveway was

properly located within Dettmerings’ easements and that it did not unreasonably

overburden those easements. It further found that water runoff from the driveway

detrimentally affected Passarges’ use of their property but that they otherwise failed to

prove their asserted damages claim(s). However, based on its finding that the new

driveway did not comply with county road regulations as agreed, the court ordered

Dettmerings to bring the driveway into compliance within one year “so as to minimize

injury to the Passarges’ property”2 as certified by an “engineering firm mutually agreed to

bythe parties.”3

1 As later determined or ascertained in related litigation with Flathead County, Parker Hill Road was in fact not a county road and therefore not technically subject to Flathead County regulations governing county road approaches. 2 See Dettmering v. Passarge(Dettmering I) No. DA 16-0723, 2017 MT 161N, ¶ 6. 3 See October 2016 District Court findings of fact, conclusions of law, and judgment.

4

¶5 On October 30, 2017, Dettmerings filed a notice and motion for adjudicationof their

compliance with the 2016 order. Passarges filed a response contesting the motion. In

February 2018, lateonFriday afternoon before thepreviously scheduled Monday hearing,

Dettmerings filed a notice acquiescing that their driveway in fact did not comply with

county road regulations but asserting their intent to bring it into compliance as depicted in

an attached exhibit. At the ensuing Monday hearing, the District Court vacated the

proceeding pursuant to Dettmerings’ acquiescence and stated its intent to award related

attorney fees to Passargesupon subsequent affidavit and hearing determination.

¶6 OnNovember 19, 2018, theattorney feeshearing primarily focusedon the predicate

issue of whether and when Dettmerings complied with the court’s 2016 order regarding

the disputed driveway. The District Court admitted various documentary exhibits into

evidence and heard the testimony of three different roadway experts (one presented by

Dettmerings and two presented by Passarges) regarding the physical characteristics of the

disputed driveway in relation to county road approachregulations. At the close ofhearing,

the court made the followingoralfindings of fact on the hearing record:

The [c]ourt will also find that consistent with the testimony here today that the Dettmering approach . . . does meet the requirements of the Flathead County regulations consistent with the testimony of Terrance Stoneh[oc]ker from TD&H Engineering, which both parties stipulated to use in order to bring the driveway into conformity.

The other experts testified in substantial conformity with Mr. Stoneh[oc]ker to the extent their testimony is even relevant considering the stipulation of the parties. Looking to the requirements, there is – I’m looking at the May 30th letter of 2018 from Mr. Stoneh[oc]ker, number 1, there's no dispute as to that.

5

Number 2, there’s not a culvert, there’s no dispute, nor is one required, nor is there any testimony that one is necessary for purposes of improving the drainage onto the road.

Number 3, that there is a 3 percent [grade/slope] away.

Number 4, the approach in some manners can be used so a car could pull up to Parker Hill Road at a 90-degree angle, which is the purpose of the 90-degree angle; it’s a safety requirement.

The approach is 24 feet wide, it’s unpaved, natural vegetation, back slope, and a single ditch.

On December 10, 2018, the court issued formal written findings of fact, conclusions of

law, and judgment awarding Passarges’ $3,024 in attorney fees related to the aborted

February 2018 hearing.4 The written judgment included the court’s predicate finding of

fact and conclusion of law that the disputed driveway “compli[es] with Flathead County

Regulation[s]and the intent of the parties’ 2006 Stipulation.” Passarges timely appeal.

¶7 Passarges assert that the District Court erroneously construed or applied its

2016 order, and the underlying 2006 settlement agreement, by failing to require strict

compliance with the pertinent county road regulations. Without reference to its oral

findings of fact, they further assert that the court erroneously found that the disputed

driveway complies with Flathead County regulations and the intent of the parties’

2006 agreement. They assert that thecourt’s ultimate written finding is clearly erroneous

as unsupported by sufficient evidenceand predicate findings. They assert that the hearing

4 The court awarded attorney fees pursuant to ourequity exception to the American Rule.

6

record contrarilyindicates that the drivewaydoes not comply withcounty roadregulations

or, at most, only partially. We disagree.

¶8 We review conclusions and applications of law de novo for correctness. In re

Marriage of Bessette, 2019 MT 35, ¶ 13, 394 Mont. 262, 434 P.3d 894; Steer, Inc. v. Mont.

Dep’t of Revenue, 245 Mont. 470, 475, 803 P.2d 601, 603 (1990). In the wake of the

revelation that Flathead County road regulations did not directly apply because the Parker

Hill Road was not a county road as contemplated in 2006, the court’s 2016 orderrequired

Dettmerings to bring their driveway into compliance with Flathead County road regulations

“so as to minimize injury to the Passarges’ property” as certified by an “engineering firm

mutually agreed to by the parties.” Neither party appealed thataspect of the 2016 order in

Dettmering I. Passarges, therefore, cannot challenge it now. Nothing in the language of

the 2016 order, or underlying 2006 settlement agreement, specifically required strict

compliance with thepertinent Flathead County road regulations. We hold that the District

Court did not erroneously construe or apply its 2016 order, or the parties’ underlying 2006

settlement agreement, as pertinent here.5

¶9 We review lower court findings of fact only for clear error. Ray v. Nansel, 2002

MT 191, ¶ 19, 311 Mont. 135, 53 P.3d 870. Findings of fact are clearly erroneous only if

5 We similarly find no basis upon which to conclude that the District Court erroneously construed or applied Flathead County roadapproach regulations. As noted by the court at the hearing, neither party offered into the record a copy of the pertinent county road regulations aspublished or issued by Flathead County. Passarges’ arguments instead rely on the regulations as referenced in the county road approach permit form filled-out and submitted to the County by Dettmerings in 2010. Passarges have not demonstrated that the District Court erroneously construed them even as referenced in the record.

7

not supported by substantial evidence, the court misapprehended the effect of the evidence,

or, based on our review of the record, we have a definite and firm conviction that the lower

court was mistaken. Larson v. State, 2019 MT 28, ¶ 16, 394 Mont. 167, 434 P.3d 241;

Interstate Prod. Credit Ass’n of Great Falls v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285,

1287 (1991). Lower court findings of fact are presumed correct on appeal. Hellickson v.

Barrett Mobile Home Transp., Inc., 161 Mont. 455, 459, 507 P.2d 523, 525 (1973). The

appellant thus has the burden of demonstrating asserted errors in accordance with the applicable standard of review. In re Marriage of McMahon, 2002 MT 198, ¶ 7, 311 Mont.

175, 53 P.3d 1266;Hellickson, 161 Mont. at 459, 507 P.2d at 525.

¶10 Under the law of this case as established by the 2016 order, Dettmering I, and as

litigated by the parties thereunder at the November 2018 hearing, the central issue was

whetherand whenDettmeringsbrought the disputed driveway intocompliancewithcounty

road regulations as required by the 2016 order. As pertinent here, the 2016 order required

Dettmerings to construct the disputed driveway in accordance with Flathead County road

regulations “so as to minimize injury to the Passarges’ property” as certified by an

“engineering firm mutually agreed to by the parties.” It is beyond genuine material

disputed on the hearing record that, at some point in the wake of the 2016 order, the parties

stipulated and designated Thomas Dean & Hoskins, Inc. (TD&H) as the engineering firm

to make the necessarycompliance“certification”requiredby the order. It isfurther beyond

genuine material dispute on the record that, upon inspection in October 2017, TD&H (by

and through licensed professional engineer Terrence Stonehocker) initially found the

8

disputed drivewaydid not comply with Flathead Countyregulationsrequiring thatcounty

road approaches: (1) have a 3 percent landing grade/slope; (2) intersect county roads at a

90-degree angle; and (3) connect to county roads at a width of 24 feet. Finally, based on

Stonehocker’s May 30, 2018 correspondence6 to Dettmerings and his subsequent hearing

testimony, it is beyond genuine material disputethat, upon inspection in May 2018, TD&H

ultimately foundthat furthercorrectivework by Dettmerings had corrected the previously

noted deficiencies and that the driveway was thus in compliance with pertinent Flathead

County road regulationsas ordered.

¶11 Passarges dispute TD&H’s particularized findings and ultimate certification based

on the hearing testimony of their independently retained experts (licensed professional

engineer/surveyor Rick Breckenridge and licensed surveyor Jeff Larsen). However, they

gloss over the testimony of their experts that was consistent with the TD&H findings.

Moreover, Passargesultimately assert no more than conflicts in the evidence, the resolution

of which lie within the broad discretion of the District Court to resolve based on its

first-hand assessment of relative weight and credibility. Upon our review of the evidentiary

record,the District Court’sultimate written findingsoffactand more detailed oral findings

are supported by substantial record evidence regardless of the conflicting evidence

highlighted by Passarges. We further find no basis upon which to conclude that the court

misapprehended the effect of the evidence and have no definite and firm conviction that

6 The District Court admitted Stonehocker’s May 30 correspondence into evidence at the November 2018 hearing without objection or qualification.

9

the court was otherwise mistaken. We hold that the District Court’s finding that the

disputed drivewayultimatelycomplied with pertinent Flathead County roadregulationsas

required by its 2016 orderis not clearly erroneous.

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

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent.

We affirm.