Walton v. Mirro ( 2023 )

ORIGINAL 12/19/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 23-0638
DA 23-0638
GEOFFERY D. WALTON AND FLED
SARAH L. WALTON, WHISTLE CREEK
PARTNERS LLC, AND LYNN T. LABRIE DEC 1 9 2023
AND ANN A. LABRIE Bowen GreeNwood
Clerk of Supreme Court
State of Montana
Petitioners, Counter-Defendants, and Appellees,
ORDER
v.
JAMES A. MIRRO AND LORETTA MIRRO,
Respondents, Counterclaimants, and Appellants.
Appellants James A. Mirro and Loretta Mirro, via counsel, move pursuant to
M. R. App. P. 22(2)(a) for relief from the November 16, 2023 Order Denying
Res[p]ondents' Motion to Stay and/or Suspend Order and Waive Bond Pending Appeal of
the Sixth Judicial District Court, Sweet Grass County, denying their motion to stay that
Court's October 23, 2023 Order Granting Plaintiffs' Renewed Application for Preliminary
Injunction and Denying Respondents' Renewed Application for Preliminary Injunction,
pending resolution of this appeal. Mirros argue that the District Court abused its discretion
in failing to stay the Preliminary Injunction until disposition of this appeal because the
injunction does not maintain the status quo but rather grants the ultimate relief sought by
Appellees Geoffery D. Walton and Sarah L. Walton, Whistle Creek Partners LLC, and
Lynn T. Labrie and Ann A. Labrie (collectively "Ditch Users") in this litigation.
According to findings of fact made by the District Court in its October 23, 2023
Order, Ditch Users each hold water rights as to water that is conveyed through the Ellison
Ditch. The Ellison Ditch runs through Mirros' property and a headgate is located within
that segment of the ditch. Ditch Users have an easement through Mirros' property for
purposes of accessing and maintaining the ditch and headgate. The existing headgate,
which has been in service since the early 20th century, was damaged during flooding in
2022. Expert testimony indicated that the headgate was deteriorating rapidly and could fail
at any time, potentially causing significant damage to downstream properties. Witnesses
further testified that funding for headgate replacement had been secured and a contract for
replacing the headgate in the fall of 2023 had been signed, but if the project was delayed,
in addition to the risk of catastrophic failure of the headgate, the costs would increase and
the same contractors might be unavailable.
Mirros purchased their property in 2021. While Mirros indicated a desire to work
out an acceptable solution with Ditch Users, they are concerned that the current
construction plan may damage their recently installed underground sprinkler system and/or
their cattleguards that construction vehicles would need to traverse in order to replace the
headgate.
Both Mirros and Ditch Users requested a preliminary injunction. Mirros wished to
restrain Ditch Users from commencing with replacement of the headgate while Ditch Users
wished to restrain Mirros from interfering with their accessing and maintaining the ditch
and headgate. The District Court granted a preliminary injunction in Ditch Users' favor,
having determined that the last circumstance of peaceable possession was prior to the
dispute over the headgate replacement, and the status quo "was the long history of use of
the ditch and headgate by the water users in a manner allowing them to beneficially use
their water rights without interference." It thus restrained Mirros from interfering with
Ditch Users' easement rights to access the ditch and headgate via the existing access road
and driveway through Mirros' property.
In the October 23, 2023 order granting the preliminary injunction, the court fiirther
noted that the project was prepared to start in two weeks' time "and should be done while
the favorable fall weather allows" because delay would prolong the risk that the headgate
would fail and cause unwarranted expense.
Although Mirros then moved the court to stay its order, the District Court refused
to do so. The court applied the general factors governing stays of civil judgments
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articulated in Hilton v. Braunskill, 481 U.S. 770, 107 S. Ct. 2113 (1987). Those factors
are: (1) whether the stay applicant has made a strong showing that it is likely to succeed on
the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the proceeding;
and (4) where the public interest lies. The court determined that each factor preponderated
against Mirros.
On motion for relief, Mirros assert that the contractors began working on the
headgate replacement immediately after the District Court issued its preliminary
injunction. They argue that good cause for relief from the District Court's denial of the
stay exists because their property will otherwise be permanently altered before this appeal
can be decided on the merits. They further argue that a correct application of the Hilton
factors would illustrate that Mirros are entitled to a stay.
In response, as well as raising substantive arguments in opposition to Mirros, Ditch
Users argue inter alia that Mirros' motion to stay is moot. They assert that the contractors
began work on the headgate replacement on November 6, 2023, and construction will be
completed during the week of December 18, 2023. Thus, this Court would be unable to
grant effective relief at this juncture. See City of Deer Lodge v. Fox, 2017 MT 129, ¶ 8,
387 Mont. 478, 395 P.3d 506.
M. R. App. P. 22(2)(a) provides that a motion for relief under this Rule must, among
other factors, demonstrate good cause for the relief requested. M. R. App. P. 22(3) allows
this Court, in the interests of justice, to grant, modify, or deny the relief requested. "Good
cause" is generally defined as a legally sufficient reason and referred to as the burden
placed on a litigant to show why a request should be granted. Brookins v. Mote, 2012 MT
283, ¶ 29, 367 Mont. 193, 292 P.3d 347 (citations omitted). In this case, Mirros moved the
District Court to stay relocation of the headgate. With the headgate relocation nearly, if
not entirely, complete at this time, we cannot grant effective relief from the November 16,
2023 Order Denying Res[p]ondents' Motion to Stay and/or Suspend Order and Waive
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Bond Pending Appeal. Thus, good cause does not exist nor are the interests of justice
served by overturning the decision of the District Court.
IT IS TFIEREFORE ORDERED that the M. R. App. P. 22(2)(a) motion of
Appellants James A. Mirro and Loretta Mirro for relief from the District Court's order is
DENIED.
The Clerk is directed to provide copies of this order to all counsel of record.
14/4n—,
DA LED this l a —day of December, 2023.
Chief Justice
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