Country Estates Homeowners Ass'n v. McMillan

No. 94-357
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
COUNTRY ESTATES HOMEOWNERS ASSOCIATION,
a Montana corporation,
Petitioner and Respondent,
v.
DEC 22 t%
GEORGE W. McMILLAN, ELOISE F. McMILLAN,
and VANCE A. McMILLAN,
Respondents and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Richard R. Buley, Tipp & Buley,
Missoula, Montana
For Respondent:
E. Eugene Atherton, Attorney at Law,
Kalispell, Montana
Submitted on Briefs: December 8, 1994
Decided: December 22, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Petitioner Country Estates Homeowners Association filed a
petition for a writ of mandate on June 8, 1993, in the District
Court for the Eleventh Judicial District in Flathead County. They
requested that George, Eloise, and Vance McMillan (the McMillans),
be ordered to comply with the restrictive covenants attached to
real property owned by the McMillans, and that the McMillans be
ordered to pay reasonable attorney fees. On December 1, 1993, the
District Court held a hearing to consider the motion. On
February 14, 1994, the District Court issued its final judgment and
order in which it stated that the matter would be treated as one
for injunctive relief, and in which it enjoined the McMillans from
further violations of the restrictive covenants, and ordered them
to remove the offending structure within 60 days, or complete
construction within 60 days and landscape their lot. On
February 24, 1994, the McMillans filed a motion for a new trial or
to amend the judgment. The court did not rule on the motion within
45 days, and as a result, it was deemed denied, pursuant to
Rule 59(d), M.R.Civ.P. The McMillans appeal. We vacate the
judgment of the District Court and remand for further proceedings.
The issue on appeal is:
Did the District Court err when it treated this matter as one
for injunctive relief, rather than for a writ of mandate, without
prior notice to the respondents?
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FACTUAL BACKGROUND
The McMillans own Lot 2 of country Estates Unit No. 1, which
is subject to restrictive covenants that provide, in part, at
paragraph l(c), that "[al11 construction shall be complete within
one year from the date construction begins." The covenants also
provide, at paragraph l(d), that "[al 11 lots shall be landscaped to
the paved street."
On June 8, 1993, Country Estates filed a petition for a writ
of mandate in which they requested that the McMillans be forced to
comply with the restrictive covenants which attached to their
property, and also requested attorney fees incurred in this matter.
In her affidavit filed in support of the petition, Wendy Madison,
the secretary of Country Estates, alleged that the McMillans have
partially built a structure on their property, but have failed to
complete it. Madison alleged that the McMillans have violated
provisions of the restrictive covenants which require that all
construction be completed within one year from when it is
undertaken, and that all lots be landscaped to the paved street.
In her affidavit, Madison stated that the McMillans' structure has
been incomplete for over ten years, and that they have not
completed any landscaping.
On December 1, 1993, the District Court held a hearing
pursuant to Country Estates' petition. Madison, and Janice Stout,
a resident of Country Estates, testified.
Stout testified that the restrictive covenants which attach to
properties in Country Estates were signed on October 18, 1979,
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prior to the date the McMillans purchased their property. She also
testified that the McMillans started construction on their
residence over four years ago and that neither the house nor the
landscaping had been completed.
The McMillans presented no evidence at this hearing, but
argued that a writ of mandate was not an appropriate remedy, based
on the facts alleged--particularly the private nature of the
dispute.
At the conclusion of the hearing, the District Court stated
that although the requirements of the restrictive covenants had not
been satisfied, it was concerned about whether a writ of mandate
was the appropriate remedy. The court invited the parties to file
briefs in connection with that question.
On February 14, 1994, the District Court signed its final
judgment in which it ordered that Country Estates' pleadings be
amended to state a claim for injunctive relief. The District Court
further ordered that the McMillans were enjoined from further
violations of the restrictive covenants and were ordered to
complete construction of, or remove, the offending structure within
60 days, and landscape their lot on or before July 1, 1994. The
District Court also awarded attorney fees and costs to Country
Estates.
On February 24, 1994, the McMillans filed a motion for a new
trial or to amend the judgment. The motion was not ruled on within
45 days, and therefore, was deemed denied under Rule 59(d),
M.R.Civ.P.
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DISCUSSION
Did the District Court err when it treated this matter as one
for injunctive relief, rather than for a writ of mandate, without
prior notice to the respondents?
The standard of review of discretionary court rulings is
whether the district court abused its discretion. Montana Rail Link v.
Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125.
We have held that "due process requires a reasonable notice as
to give everyone interested their opportunity to be heard." Shaw
v. CityofKalispell (1959), 135 Mont. 284, 293, 340 P.2d 523, 528. In
this case, the McMillans were given notice of a hearing to consider
a petition for a writ of mandate. They were not given prior notice
of a claim for injunctive relief.
"[Lliberal construction and amendment of pleadings does not
grant counsel carte blanche to advance new theories on an
unsuspecting opponent." McJunkin v. Kaujinan and Broad Home Systems, Inc.
(1987), 229 Mont. 432, 437, 748 P.2d 910, 913. in McJunkin, we
cited Brothersv. SurplusTractorPartsCorp. (19371), 161 Mont. 412, 417, 506
P.2d 1362, 1365, for the proposition that "I [i]t is generally
accepted that the appellant cannot recover beyond the case stated
by him in his complaint. . This Court believes that fair
notice to the other party remains essential . . .'II McJunkin, 74 8
P.2d at 913. We have also held that "'pleadings will not be deemed
amended to conform to the evidence because of "implied consent"
where the circumstances were such that the other party was not put
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on notice that a new issue was being raised."' In re Custody of C.JK.
(1993), 258 Mont. 525, 528, 855 P.2d 90, 91 (citing GallatinTrustand
SavingsBankv.Darrah (1968), 152 Mont. 256, 261-62, 448 P.2d 734, 737).
In this case, an entirely new and dissimilar theory formed the
basis of the District Court's judgment without prior notice to the
McMillans. We conclude that the District court abused its
discretion by treating petitioner's claim as one for injunctive
relief under these circumstances
The judgment of the District Court is vacated and this matter
is remanded for a hearing after proper notice is given to the
McMillans regarding the nature of the relief being sought.
/
J&tice
We concur:
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