Christopherson v. State , 226 Mont. 350 ( 1987 )

No. 8 6 - 3 5 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IAN CHRISTOPHERSON,
Petitioner and Appellant,
-vs-
STATE OF MONTANA, STATE TAX APPEAL
BOARD, and MONTANA DEPARTMENT OF
REVENUE,
Respondents and Respondents.
LEO C. MIGHT,
Intervenor.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sol & Wolfe; Michael Sol, Missoula, Montana
For Respondent:
Charles A. Smith, 111, State Tax Appeal Board, Helena,
Montana
Michael Garrity, Dept. of Revenue, Helena, Montana
Geiszler, Taylor, Newcomer & McClain; Kerry N.
Newcomer, Intervenor, Missoula, Montana
Submitted on Briefs: Jan. 22, 1 9 8 7
Decided: April 9, 1 9 8 7
Filed:
Asn: - !,..
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Petitioner Ian Christopherson appeals orders of the
Fourth Judicial District Court denying petitioner's
application for writ of mandamus and/or prohibition,
permitting intervention by Leo Might, and partial award of
attorney's fees to Might. We affirm.
On September 7, 1983, Ian Christopherson filed an
application with the Montana Department of Revenue (DOR)
requesting a liquor license transfer to himself from another
individual. Christopherson intended to use the license for
operation of the OK Corral Bar located at 411 N. California
in Missoula, Montana. Following hearing on the transfer
request, the hearings examiner determined the proposed
location was in violation of local zoning ordinances and
denied the application. On April 12, 1984, the director of
DOR affirmed the decision.
Pursuant to statute, Christopherson appealed the DOR
decision to the Montana State Tax Appeal Board (STAB).
Contemporaneous with that appeal, Christopherson filed a
complaint in District Court requesting declaratory judgment
that the location of the OK Corral Bar did not violate local
zoning ordinances. The appeal to STAB was stayed pending
decision by the District Court. On November 2, 1984, the
District Court entered judgment finding that the use of the
OK Corral Bar as a licensed alcoholic beverage establishment
was a legal, nonconforming use at its present location. The
court ordered STAB to remand Christopherson'a appeal to DOR
for further proceedings consistent with the court's opinion.
In compliance with the District Court order, DOR granted
Christopherson's license transfer application on November 26,
1984. Leo Might, a homeowner adjacent to the OK Corral Bar,
appealed the DOR decision to STAB. Christopherson filed an
application for alternative writ of mandamus and/or
prohibition in District Court on January 18, 1985, requesting
that the court order STAB to deny Might's appeal and affirm
issuance of the liquor license to Christopherson. The
District Court granted the writ compelling STAB to deny
Might's appeal, but subsequently stayed the order following
STAB'S motion to quash the alternative writ. Might filed a
motion to intervene in District Court which was granted May
9, 1985.
On December 16, 1985, the District Court entered its
order denying Christopherson's application for alternative
writ of mandamus and/or prohibition, dismissing Might's
amended complaint in intervention and requiring each party to
pay their own attorney's fees. On December 27, 1985, Might
filed a motion to alter or amend judgment and noticed the
matter for hearing January 17, 1986. The day prior to
hearing, Christopherson appealed the May 9, 1985, and
December 16, 1985, District Court orders to this Court. We
dismissed the appeal by order dated April 14, 1986, finding
it premature due to Might ' s pending motion to alter or amend
judgment.
Following dismissal of Christopherson's appeal the
District Court heard the parties' arguments concerning
Might's motion to alter or amend judgment. On May 14, 1986,
the District Court amended judgment to award Might attorney's
fees and costs incurred due to Christopherson's untimely
appeal to this Court.
Meanwhile, on January 13, 1986, STAB dismissed Might's
appeal of the DOR decision granting the license transfer to
Christopherson. STAB determined that the 1.985 amendment of S
16-4-411, MCA, deprived it of jurisdiction to hear Might's
appeal and placed jurisdiction with district court. Might
petitioned District Court on February 11, 1986, appealing the
STAB order as well as the DOR license transfer to
Christopherson. On November 10, 1986, the District Court
entered its order finding the 1985 amendments to S 16-4-411,
MCA, did not retroactively apply to Might's appeal before
STAB, and ordered STAB to hear Might's appeal.
Christopherson appeals and raises the following issues:
1) Whether Might has standing to appear in
Christopherson's mandamus action and to pursue appeal to
STAB?
2) Whether the District Court erred in dismissing
Christopherson's application for alternative writ of manda-mus
and/or prohibition?
3) Whether the District Court erred in awarding Might
partial attorney's fees and costs and denying award of
attorney's fees and costs to Christopherson?
Christopherson contends Might had no standing to
intervene in District Court in the mandamus action nor was he
an interested party with a right to appeal the DOR decision
to STAB. We disagree.
Might filed a motion to intervene April 3, 1985, in
District Court pursuant to Rule 24 t M.R.Civ.P.
Christopherson objected to Might's intervention as untimely
because Might did not appeal the April 12, 1984, decision by
DOR nor did he appear in Christopherson's initial action in
District Court. The District Court granted Might's motion to
intervene finding that it was the modified DOR decision
entered November 16, 1984, which gave Might a basis for
appeal. The April 12, 1984, DOR decision supported Might's
position and provided no reason for him to appeal. Might
appealed the modified DOR decision to STAB within 30 days of
his receipt of the order pursuant to S 15-2-302(2), MCA.
Might's appeal to STAB was stayed due to Christopherson's
application for writ of mandamus and/or prohibition before
the District Court.
Section 16-4-411, MCA, permits any "interested party" to
appeal a DOR decision concerning liquor license issuance,
transfer, suspension or revocation. Might lives adjacent to
the OK Corral Bar and objects to continued operation of a bar
at that location. At the initial DOR hearing concerning
Christopherson's a.pplication for liquor license transfer
Might appeared as a protestor. We find Might's opposition to
the liquor license transfer and his residence adjacent to the
bar give him standing as an interested party within the
meaning of 5 16-4-411, MCA.
The District Court acted properly in permitting Might to
intervene in Christopherson's mandamus action. Rule 24 (a),
M.R.Civ.P. provides:
Rule 24 (a). Intervention of right. Upon timely
application anyone shall be permitted to intervene
in an action: (1) when a statute confers an
unconditional right to intervene; or (2) when the
applicant claims an interest relating to the
property or transaction which is the subject of the
action and he is so situated that the disposition
of the action may as a practical matter impair or
impede his ability to protect that interest, unless
the applicant's interest is adequately represented
by existing parties.
Christopherson requested the District Court to order DOR and
STAB to issue a liquor license to himself. Might's appeal
before STAB concerned the same issue. It is clear Might's
motion to intervene falls within Rule 24 (a)(2), M.R.Civ.P.,
because an order by the District Court granting
Christopherson's application for writ of mandamus and/or
prohibition would have barred Might's appeal to STAB. This
Court has previously held that a person having an interest in
the subject matter of a mandamus action may be permitted to
intervene for the purpose of resisting the granting of the
writ. State ex rel. Miles City v. Northern Pacific Railway
Co. (1930), 88 Mont. 529, 295 P. 257.
The second issue on appeal is whether the District Court
properly denied Christophersonls application for alternative
writ of mandamus and/or prohibition. The District Court
found that Christopherson had a plain, adequate and speedy
remedy in the ordinary course of law pursuant to S 16-4-411,
MCA, and that there had been no showing that DOR and STAB had
failed to perform an act required by law. There is
substantial credible evidence in the record supporting the
court's dismissal of Christophersonls mandamus action.
Christopherson argues on appeal that his mandamus action
was actually a direct appeal to District Court as provided
for in the Montana Administrative Procedure Act. However,
the record shows Christopherson's complaint was an
application for alternative writ of mandamus and/or
prohibition. The District Court order dated December 16,
1985, dismissed Christopherson's application for failure to
establish that mandamus was proper. Our review is confined
solely to whether the District Court properly dismissed the
mandamus action and we will not address Christopherson's
arguments raised pursuant to MAPA.
Section 27-26-102, MCA, provides that a writ of mandamus
may be issued to compel performance of a duty required by law
and the writ must be issued where there is not a plain,
speedy, and adequate remedy in the ordinary course of law.
Section 27-27-102, MCA, provides that a writ of prohibition
may be issued where there is not a plain, speedy, and
adequate remedy in the ordinary course of law. We agree with
the District Court that Christopherson has failed to exhaust
his administrative remedies nor has he shown that DOR and
STAB are acting contrary to law.
DOR issued a modified decision November 26, 1984,
granting a liquor license transfer to Christopherson in
compliance with the November 2, 1984, declaratory judgment of
the District Court. Might appealed DOR's modified decision
to STAB pursuant to § 16-4-411, MCA (1983) . Jurisdiction to
hear Might's appeal is vested within STAB and Christopherson
is not entitled to short circuit Might's statutory right to
appeal by means of a mandamus or prohibition action. A writ
of prohibition will lie only to restrain activities in excess
of jurisdiction, and only when there is no plain, speedy,
adequate remedy of law. State ex rel. Fulton v. District
Court (1961), 139 Mont. 573, 366 P.2d 435.
The final issue is whether the District Court erred in
awarding partial attorney's fees to Might and denying award
of attorney's fees to Christopherson. The court awarded to
Might attorney's fees and costs incurred due to
Christopherson's untimely appeal to this Court. The District
Court found Christopherson's notice of appeal filed the day
before hearing on Might's motion to amend judgment was
intend.ed to interfere with consideration of Might's motion.
We find no abuse of discretion by the District Court in
awarding partial attorney's fees and costs to Might.
Christopherson's appeal to this Court was untimely and caused
expense and delay to Might. The District Court concluded
that pursuant to § 27-26-402, MCA, and its inherent equitable
powers it had the power to assess attorney's fees to Might.
We find the award to Might is supported by the record and was
within the equity powers of the District Court. We will not
overturn such an award absent a showing of abuse of
discretion. State ex rel. Wilson v. Dept. of Natural
Resources (Mont. 1982), 648 P.2d 766, 39 St.Rep. 1294.
Christopherson's contention that he is entitled to
attorney's fees must fail. Christopherson has not prevailed
on any of the issues raised herein and has presented no
grounds for the award of attorney's fees. The District
Court's denial of attorney's fees and costs to Christopherson
is af firmed.
The orders of the District Court appealed from are
affirmed.
We Concur:
/ I '
Chief Justice
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