Malpeli v. State , 366 Mont. 69 ( 2012 )

August 21 2012
DA 11-0593
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 181FAITH MALPELI,
Plaintiff and Appellant,
v.
STATE OF MONTANA,
Defendant, Appellee, and Cross-Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 10-105B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade J. Dahood, Bernard J. Everett; Knight, Dahood, Everett & Sievers;
Anaconda, Montana
For Appellee:
David Lee Ohler, Jolyn E. Eggart; Special Assistant Attorneys General,
Montana Department of Transportation; Helena, Montana
Submitted on Briefs: June 6, 2012
Decided: August 21, 2012
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Faith Malpeli brought an inverse condemnation action against the Montana
Department of Transportation (MDT), seeking compensation for the alleged taking of her
property as a result of the reconstruction of Montana Highway 191 near Big Sky,
Montana during a highway safety improvement project. A jury found that MDT had not
taken a property right belonging to Malpeli, and therefore did not reach the question of
compensation. Malpeli appeals, arguing that the District Court erred by (a) denying
Malpeli’s motions for judgment as a matter of law or a new trial; (b) excluding Malpeli’s
appraiser from testifying; and (c) allowing MDT to disclose to the jury an offer of
compromise it had made to Malpeli before this action was filed. MDT cross-appeals,
arguing that the District Court erred by denying its motion for partial summary judgment
before trial. After careful consideration, we determine that the motion for summary
judgment should have been granted, and therefore affirm the judgment in favor of MDT.
¶2 The issue that we address on appeal is the following:
¶3 Did the District Court err in denying MDT’s motion for summary judgment
regarding Malpeli’s claim that MDT took from her the right of reasonable access to her
property?
¶4 Because we conclude that the District Court erred in denying summary judgment
on this issue, we do not address Malpeli’s claims of trial error.
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PROCEDURAL AND FACTUAL BACKGROUND
¶5 Malpeli owns residential property adjacent to Montana Highway 191. MDT is the
state agency responsible for operating and maintaining public highway facilities,
including rights-of-way, embankments, drainage structures, bridges, guardrails, and other
protective structures, to ensure the safe, efficient use of the highways. See §§ 2-15-2501
to -2511, MCA; §§ 60-1-101 to -103, MCA; §§ 60-2-201 to -243, MCA.
¶6 In the summer and fall of 2008 and 2009, MDT reconstructed the portion of
Highway 191 adjacent to Malpeli’s residence as part of a highway safety improvement
project. The MDT reconstruction of Highway 191 involved widening the highway to
include a left-turn lane and adding eight-foot-wide paved shoulders. All of these
improvements were completed within the existing highway right-of-way. None of
Malpeli’s property was required in order to widen the highway and add the paved
shoulder.
¶7 Malpeli’s property includes a driveway from Highway 191 to her garage. Part of
Malpeli’s garage is located just one foot from the highway right-of-way. After the
project was completed, the highway fog line and the edge of the pavement were as much
as eight feet (the fog line) to nearly eighteen feet (the edge of the pavement) closer to part
of Malpeli’s garage than they had been before the project. In addition, Malpeli’s
approach from the highway to her property had been paved, the grade had been reduced,
and a guardrail had been added on the south side of the approach.
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¶8 On January 29, 2010, Malpeli filed this lawsuit, alleging that MDT, in carrying out
the reconstruction project, had, among other claims, (a) “taken from plaintiff MALPELI
reasonable and safe access to her residential property to and from Highway 191;” and
(b) “violated its own MDT ‘approach standards’ in the reconstruction of the highway.”1
The crux of Malpeli’s complaint about access to her property was described in later
pleadings: “Before the widening of Highway 191, FAITH MALPELI could maneuver
her vehicles to turn them around and face the approach to Highway 191. Since the
widening, she cannot. She, her guests and delivery vehicles now must back out onto the
highway or back out onto the paved shoulder . . . .”
¶9 Following discovery, MDT filed a motion for summary judgment, arguing that
Malpeli did not have a property interest in use of the public right-of-way for maneuvering
vehicles, and that using the public right-of-way in such a manner was unrelated to any
right of access that a landowner might possess. Malpeli opposed the motion.
¶10 The District Court denied MDT’s motion for summary judgment, concluding that
Malpeli has a property interest in “reasonable ingress and egress” to and from her
property, and that the question whether the reconstruction of Highway 191 constitutes a
taking of this property interest is a question of fact.
STANDARD OF REVIEW
¶11 We review de novo a district court’s decision on a motion for summary judgment,
using the same criteria applied by the district court under M. R. Civ. P. 56. Boehm v.
1
Malpeli raised several other claims, but they are not at issue in this appeal.
4
Cokedale, LLC, 2011 MT 224, ¶ 12, 362 Mont. 65, 261 P.3d 994. Rule 56(c)(3)
provides: “The judgment sought should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” A
material fact is one that involves the elements of the cause of action or defense at issue to
such an extent that it requires resolution of the issue by a trier of fact. Williams v. Plum
Creek Timber Co., 2011 MT 271, ¶ 14, 362 Mont. 368, 264 P.3d 1090.
¶12 In order to defeat a motion for summary judgment properly made and supported,
the opposing party must set out specific facts showing a genuine issue for trial by
affidavits or as otherwise provided by Rule 56. M. R. Civ. P. 56(e)(2). In evaluating a
motion for summary judgment, the evidence must be viewed in the light most favorable
to the non-moving party; all reasonable inferences must be drawn in favor of the party
opposing summary judgment. Williams, ¶ 15.
DISCUSSION
¶13 Did the District Court err in denying MDT’s motion for summary judgment
regarding Malpeli’s claim that MDT took from her the right of reasonable access to her
property?
¶14 Malpeli’s inverse condemnation claim is based on Article II, Section 29 of the
Montana Constitution, which states that “[p]rivate property shall not be taken or damaged
for public use without just compensation to the full extent of the loss having been first
made to or paid into court for the owner.” A claim under this provision requires a court
to first determine “whether a plaintiff possesses a cognizable property interest in the
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subject of the alleged taking. The question of whether plaintiffs owned a compensable
property interest presents a question of law based on factual underpinnings.” Kafka v.
Mont. Dep’t of Fish, Wildlife & Parks, 2008 MT 460, ¶ 32, 348 Mont. 80, 201 P.3d 8(quoting Mohlen v. United States, 74 Fed. Cl. 656, 660 (Fed. Cl. 2006)). Under Montana
law, the threshold question whether one has a protected property interest must be
answered in the affirmative before the question whether one was deprived of that interest
may be submitted to the trier of fact. Kafka, ¶ 32 (quoting Seven Up Pete Venture v.
State, 2005 MT 146, ¶ 26, 327 Mont. 306, 114 P.3d 1009).
¶15 Property interests are defined by rules or understandings that stem from an
independent source such as state law. Kafka, ¶ 33 (quoting Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1001, 104 S. Ct. 2862, 2872 (1984)). The determination whether a
citizen has a protected property interest focuses on the citizen’s relationship to the alleged
property, such as whether the citizen had the rights to exclude, use, transfer, or dispose of
the property. Kafka, ¶ 33 (quoting Members of the Peanut Quota Holders Assn. Inc. v.
United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005)).
¶16 The undisputed facts of this case show that Malpeli could still enter and exit her
property after the Highway 191 project was completed, but that it was more difficult for
her to turn a vehicle around, because MDT had used much of the highway right-of-way
where she previously had turned around to widen the highway and add shoulders. At
Malpeli’s deposition, which was among the discovery materials filed in connection with
the summary judgment motion, she explained that her “right of access” claim involved
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only the “danger” of “pulling in and out” of her driveway, specifically her concern that
she could only back onto the highway or paved shoulder. The real question presented by
the motion for summary judgment, therefore, was whether Malpeli had a compensable
property interest in the use of the public’s right-of-way to turn her vehicles around.
¶17 In denying MDT’s motion for summary judgment, the District Court relied on this
Court’s holding in State by State Highway Comm’n v. Keneally, 142 Mont. 256, 384 P.2d
770 (1963). The parties in Keneally recognized that an abutting landowner has a right to
“reasonable ingress and egress from the abutting highway.” Keneally, 142 Mont. at 265,
384 P.2d at 775 (emphasis in original); see Wynia v. City of Great Falls, 183 Mont. 458,
472, 600 P.2d 802, 810 (1979) (quoting Bacich v. Board of Control, 144 P.2d 818, 834
(Cal. 1943) (Traynor, J., dissenting)) (“the right of ingress and egress is limited to
adequate and reasonable access to the property from the street”).
¶18 The Keneally Court stated: “‘No hard and fast rule can be stated as to whether an
abutting property owner has been denied access that is reasonable . . . . In most instances
the question is one of fact, not of law, and its determination depends largely upon the
evidence in the particular case.’” Keneally, 142 Mont. at 265, 384 P.2d at 775 (emphasis
added) (quoting Iowa State Highway Comm’n v. Smith, 82 N.W.2d 755, 760 (Iowa
1957)). This statement was made in a far different context from that presented by
Malpeli’s case, however, and for the reasons that follow we conclude it is not applicable
here.
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¶19 Keneally was a condemnation action in which the State had taken a portion of the
private property on which a service station was located in order to build a new, wider
highway. 142 Mont. at 258-59, 384 P.2d at 771-72. There was no question, therefore,
that the State had taken a compensable property interest, and the only issue at trial was
the amount of compensation to be awarded the service station owner. 142 Mont. at 259-
60, 384 P.2d at 772. The facts were that prior to the highway project, patrons could enter
the property at any point along the 300-foot frontage, but after the project, entry was
limited to one specially constructed approach along the highway, and a new median
divider prevented direct left-hand turns into the service station from the highway. 142
Mont. at 259, 384 P.2d at 772. The facts of Keneally did not involve use of the highway
right-of-way to turn vehicles around.
¶20 The State challenged the District Court’s jury instructions on the right of access,
arguing that the jury was permitted to consider matters that were not compensable. 142
Mont. at 264, 384 P.2d at 774-75. Despite the Keneally Court’s reference to “no hard and
fast rule” about the denial of reasonable access, the Court reversed for a new trial, ruling
that the jury should have been instructed that “no compensation may be awarded . . .
merely because traffic may be diverted as the result of construction of median dividers on
the highway,” and that “the right of access does not embrace all points on the common
boundary on the entire length of the highway.” Keneally, 142 Mont. at 266-68, 384 P.2d
at 775-76. Even the Keneally Court, therefore, recognized that not every change in
access of an abutting landowner implicates a compensable property interest.
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¶21 We look to rules or understandings stemming from state law to determine the
extent of Malpeli’s property interests as an abutting landowner. Kafka, ¶ 33. MDT has
adopted regulations that govern access to highways. Admin. R. M. 18.5.101 to 18.5.113.
The regulations, also referred to as “Approach Standards,” “are intended to provide for
reasonable and safe access to highways, while preserving the safety and utility of the
highways to the maximum extent possible.” Admin. R. M. 18.5.101(1), (2). They
recognize that “[f]rontage property owners have certain rights of access to the highway
consistent with their needs, and the highway user has a right of safety, and freedom of
movement.” Admin. R. M. 18.5.102(2). The purpose of the regulations is “to establish
driveway approach standards which will tend to reconcile and satisfy the needs and rights
of both the property owner and the highway user.” Admin. R. M. 18.5.102(2). An
“approach” within the meaning of these regulations is “that section of the highway right-
of-way between the outside edge of shoulder and the right-of-way line which is designed
as a highway for the movement of vehicles between the highway and the abutting
property.” Admin. R. M. 18.5.103(1).
¶22 The regulations provide instructions for an abutting landowner to obtain a permit
to construct or reconstruct an approach to a public highway (Admin R. M. 18.5.104) and
provide requirements for the construction of an approach (Admin. R. M. 18.5.105 and
18.5.112). Although MDT will not design layouts for driveways on private property, it
does provide “typical drawings illustrating the design requirements” upon request.
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Admin. R. M. 18.5.113. Malpeli never applied for an approach permit, and the MDT had
never issued one for her property before she purchased it.
¶23 Among the design requirements are the following: “Sufficient storage area off the
highway right-of-way shall be provided by the landowner to prevent the servicing,
stopping and storing of vehicles on the approach and to prevent a vehicle from backing
out of an approach onto the traveled way.” Admin. R. M. 18.5.112(9)(b) (emphasis
added). “The setback distance from the right-of-way line to the nearest edge of gas pump
islands, vendor stands, tanks, water hydrants and other improvements should be at least
15 feet. A greater distance is recommended in rural areas where free movement of large
vehicles is anticipated.” Admin. R. M. 18.5.112(9)(a) (emphasis added). These
provisions make it clear that although MDT may not deny a landowner access between
the highway and landowner’s property, it is up to the landowner to provide enough room
on his or her property to maneuver vehicles. Malpeli could not look to MDT to provide
her with enough room on the highway right-of-way to turn her vehicle around; it was her
responsibility to provide that room off the highway right-of-way. 2
¶24 As noted above, determining whether a “property interest” exists for Takings
Clause purposes requires analysis of “‘the group of rights inhering in the citizen’s
relation to the physical thing, as the right to possess, use and dispose of it.’” Kafka, ¶ 168
(Nelson, J., dissenting) (quoting PruneYard Shopping Center v. Robins, 447 U.S. 74, 82
2
We note that an engineer, named as an expert witness by Malpeli, said in a deposition
submitted with the motion for summary judgment that one possible solution to the safety
concerns raised by Malpeli would be “relocating [Malpeli’s] garage.”
10
n. 6, 100 S. Ct. 2035, 2041 n. 6 (1980)). This Court and others have held, based on the
facts presented, that government-issued permits or licenses to use property in a certain
manner are not compensable property interests. See e.g. Kafka, ¶ 41 (noting that
“[c]ourts . . . have taken a dim view of the notion that government-issued licenses are
compensable property interests,” and citing cases involving grazing permits, fishing
licenses, and licenses to operate lottery machines); Kafka, ¶ 54 (alternative game farm
licenses are not compensable property interests). Malpeli’s case for a compensable
property interest is even weaker than that of a licensee or permit-holder, as she did not
have government license to use the highway right-of-way as she did; she did not even
have an approach permit for her driveway. Although she had—and still does have—a
right to access her property across the right-of-way, Malpeli had no ownership interest in
the right-of-way, no right to exclusive use of the right-of-way, no ability to exclude
others from the right-of-way, and no right to transfer or dispose of any interest in the
right-of-way.
¶25 The uncontested facts presented to the District Court in connection with the
motion for summary judgment were that part of Malpeli’s garage was located just one
foot from the right-of-way, and that the area that Malpeli previously had used for
maneuvering her vehicles was located on the right-of-way. As a matter of law, she
cannot claim that MDT denied her access to her property, because she had no property
interest in the use of the public right-of-way to turn her vehicles around.
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¶26 Malpeli emphasizes in her brief that she is entitled not just to access, but to “safe
and reasonable access.” She claims that she is entitled to compensation because the
widening of the highway rendered her access “unsafe and inconvenient, in that she must
now back out on the highway.” Malpeli has cited no authority for her argument. A
similar claim was rejected in the case of In re Condemnation by the DOT, 827 A.2d 544(Pa. Commw. 2003). There, the Pennsylvania Commonwealth Court denied the claim of
an abutting landowner who sought compensation on the grounds that a road expansion
entirely within the public right-of-way had eliminated a gravel shoulder that he
previously had used to back trailers into his garage and look around his building to check
for oncoming traffic. Distinguishing a case in which a family’s access to their residence
had been physically restricted when the Pennsylvania Department of Transportation
dumped stone onto their driveway, the court held:
That Landowner previously made special use of the shoulder in the public
right-of-way to overcome dimensional and sight distance limitations on his
property does not raise an enforceable expectation that this bare license will
continue. . . . Simply put, Landowner did not prove a basis to be
compensated for loss of special use of PennDOT property.
827 A.2d at 548 (citation omitted).
¶27 In Malpeli’s case, she previously had made special use of the unpaved shoulder in
the public right-of-way to overcome the problems caused by the location of her garage
and her failure to provide “[s]ufficient storage area off the highway right-of-way . . . to
prevent a vehicle from backing out of an approach onto the traveled way.” Admin. R. M.
18.5.112(9)(b) (emphasis added). This use of the highway right-of-way did not establish
12
a compensable property interest. Because the undisputed facts established that Malpeli
did not have a compensable property interest as a matter of law, summary judgment
should have been granted in favor of MDT.
¶28 For the same reasons, we determine that the District Court correctly denied
Malpeli’s motions for judgment as a matter of law or for a new trial under M. R. Civ. P.
50 and 59. We have considered Malpeli’s arguments concerning MDT’s Approach
Standards and Montana’s traffic laws, but do not find them persuasive. MDT witnesses
acknowledged at trial that MDT had the duty to provide reasonable access to Malpeli’s
property, and that the way in which Malpeli used the approach to her property was “less
than ideal” from a safety perspective. Nevertheless, the undisputed facts established that
any safety problems were not the result of the taking of a compensable property interest,
but rather the result of limitations on Malpeli’s property. Malpeli was not entitled to
judgment as a matter of law or a new trial.
CONCLUSION
¶29 Because MDT was entitled to summary judgment as a matter of law, we will not
address Malpeli’s claims of trial error in the admission of evidence.
¶30 The judgment in favor of MDT is affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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