Malpeli v. State

378 Mont. 539

348 P.3d 672 (Table)

Faith MALPELI, Plaintiff and Appellant

v.The STATE of Montana, DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.

No. DA 14–0479.

Supreme Court of Montana.

Submitted on Briefs Jan. 14, 2015.

Decided Feb. 17, 2015.

For Appellant: Wade J. Dahood, Jeffrey W. Dahood, Knight & Dahood, Anaconda, Montana.

For Appellee: David L. Ohler, Eli Z. Clarkson, Special Assistant Attorneys General, Montana Department of Transportation, Helena, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 Appellant Faith Malpeli appeals from an order entered by the Eighteenth Judicial District Court, Gallatin County, denying her motion for scheduling conference and closing Malpeli's case. We affirm.

¶ 3 Malpeli filed a Complaint for Inverse Condemnation and Demand for Jury Trial on January 29, 2010. In her Complaint, Malpeli alleged that the Department of Transportation had taken her reasonable and safe access to her residential property and had caused damage to her property. Prior to trial, the parties prepared a Pre–Trial Order which was signed by both parties and the court. In the Pre–Trial Order, Malpeli's contentions included the same allegations that were contained in her Complaint. More specifically, Malpeli contended that “[a]s a result of the safety improvement construction project of Highway 191 in June 2008,” Malpeli's “safe, reasonable and convenient access to her property was taken from her.” Malpeli also contended that the Department's actions “caused damage to her property and property rights.”

¶ 4 On February 17, 2011, the Department filed a motion to bifurcate the trial. Malpeli opposed the motion asserting that her right of access and property damage were fact issues for the jury to decide. The court denied the Department's motion to bifurcate.

¶ 5 The case proceeded to trial on Malpeli's assertions. During trial, however, Malpeli limited her production of evidence to the alleged taking of her reasonable and safe access to her residential property. Malpeli did not present any evidence to the jury regarding damage to her property. Following a four day jury trial, a verdict was rendered finding that the Department had not taken Malpeli's property. Malpeli appealed the jury's verdict. We affirmed judgment in favor of the Department. Malpeli v. State, 2012 MT 181, ¶ 30, 366 Mont. 69, 285 P.3d 509. On September 24, 2012, the District Court issued an order closing the case.

¶ 6 Over one year later, on February 6, 2014, Malpeli filed a motion in the District Court requesting a scheduling conference. Following the response from the State and Malpeli's additional request for oral argument, the District Court issued its decision denying Malpeli's request for scheduling conference on July 8, 2014. The District Court found it unnecessary to have oral argument. Based upon the Complaint and Pre–Trial Order, the District Court determined it was the understanding of the parties and the court that the damages issue would be heard during the jury trial. The District Court observed that it denied the Department's request to bifurcate trial and that to allow Malpeli to have a trial on her damage issue would frustrate the policy behind the doctrine of res judicata. The District Court found that Malpeli “cannot now change her mind and have a new trial on an issue that could have and should have been litigated at the August 2011 trial.”

¶ 7 Malpeli argues that the District Court erred in denying her request for a scheduling conference on the basis of res judicata because there was no evidence presented at trial on the issue of damages. Malpeli asserts there was “not any adjudication of the damages cause of action.”

¶ 8 As the District Court observed, the damages issue was to be heard at the August 2011 trial. Malpeli never produced evidence of damages during the trial and she did not seek a pre-trial order bifurcating the damages issue from the loss of access issue. Indeed, she opposed such a request by the Department.

¶ 9 The District Court correctly applied the law to the facts of this case. We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions.

¶ 10 Affirmed.

We Concur: MIKE McGRATH, JAMES JEREMIAH SHEA, PATRICIA COTTER and JIM RICE.

Justice BETH BAKER, dissenting.

¶ 11 Despite the plaintiff's procedural missteps in this case, I would reverse based upon a landowner's “constitutional right to be made whole” under Article II, Section 29 of the Montana Constitution for a taking or damaging...