NO.96-550 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1997



### LYNN LABATTE and LYNDA LABATTE, d/b/a L& L SANITATION, Plaintiffs and Appellants,

v. TOWN OF CULBERTSON, Defendant and Respondent.

APPEAL FROM: District Court ofthe Fifteenth Judicial District, In and for the County of Roosevelt, The HonorableDavid J. Cybulski, Judge presiding.

COUNSEL OF RECORD: For Appellants: Laura Christoffersen;Christoffersen & Knierim, Wolf Point, Montana For Respondent: Greg Hennessy;Hennessy Law Office, Williston,North Dakota

Filed: Submitted on Briefs: February 27, 1997 Decided: April 29, 1997Justice Karla M. Gray delivered the Opinion ofthe Court. Lynn Labatteand Lynda Labatte, d/b/a 

### L &

### L Sanitation (L &L), sought a declaratory judgment in the Fifteenth Judicial District Court, Roosevelt County, concerning the Town of Culbertson's ordinances on garbage collection and disposal. The District Court granted summaryjudgment to the Town of Culbertson (Town). L & L appeals and we reverse. The dispositive issue on appeal is whetherthe District Court erred in concluding that the Town's garbage ordinances provide a mandatory garbage fee which does not abate when the Town's contracted garbage service is not used. Background Lynn LabatteandLyndaLabatte areresidents ofCulbertson, Montana,whose garbage disposal business, L & L Sanitation, is a Class D certified garbage carrier licensed by the Public Service Commission. The Town of Culbertson is a general power municipality and political subdivisionofthe State ofMontana. L & L had contracted with the Town to haul the Town's garbage over a number of years. It last contracted to haul that garbage to a landfill in Williston,North Dakota, from May 1994 through June 1995. When L & L's contract expired,the Town put its garbagehauling needs out for bid. The new three-year contract was awarded to a garbage hauler located in Williston.In January 1996,

### L & 

### L advertised to haul commercial and residential garbage for citizens living inside and outside the Town limits. Residents ofthe Town contacted

### L & L to request service, and then contacted the office ofthe Culbertson Town Clerkto discontinue their Town garbage service. They were advised that they could not discontinue Town garbage service and that, if they did not pay their city garbage bill, their water service would be turned off. 

### L & 

### L brought this action seeking a declaratory judgment that the Town, pursuant to itsTown Code, cannotrestrictcollection of garbage within its limits to the Town's contracted service, and that it has no power to shut offthe water of any person or business disposing of garbage either through contract with L & 

### L or otherwise. On cross-motions for summary judgment, the District Court determined that althoughthe Town Code does not provide that the Town's contracted garbage service is exclusive, CULBERTSON, 

### MT.,CODE 

## 5 7.02.070 provides that a fee will be collected under a fee schedule for ordinary garbage service and does not provide that the fee is abated if garbage serviceis not used. The court reasoned that "[tlheTown's right to collect and enforce fees for service[s]lawfully provided, regardless of whether they are accepted, remains intact." The court concluded that while the Town Code does not prohibit L & 

### L from providing both ordinary garbage service and extraordinary garbage service to Town residents, nonuse ofthe Town's contracted garbage services does not abate the fees for those services established under the Town Code. The court furtherconcludedthat 

### L &

### L was not entitledtoreliefunder

## 5 7- 13-4107,MCA, because

### L & 

### L was not a private waste disposal service. Standard of Review Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitledtojudgment as a matter oflaw. Rule 56(c),M.R.Civ.P. This Court reviews a grant of summary judgment under the same Rule 56(c), M.R.Civ.P., criteriaused by the district court. Carelli v. Hall (Mont. 1996),926 P.2d 756,759, 53 St.Rep. 1116, 1117 (citation omitted). Here, the parties agree that there are no genuine issues of material fact; they disagree only as to questionsoflaw. We review a district court's conclusions of law to determine whetherthey are correct. Werre v. David (1996),275 Mont. 376, 385, 913 P.2d 625,631. Discussion Did the District Court err in concluding that the Town's garbage ordinances provide a mandatory garbage fee which does not abate when the Town's contracted garbage service is not used? The parties direct our attention to various garbage-related sections of the Culbertson Town Code. CULBERTSON, MT.,CODE 

## 5 7.02.070 provides: For the collection of garbage, rubbish and refuse, and for the disposal thereof, there is hereby fixed and established the following schedule ofmonthly fees and charges to be placed upon the water bills of the person occupying the residence from which garbage, refuse or rubbish is collected



### . . . .CULBERTSON, MT., CODE 

## 5 7.02.110provides: Any person owning,having collected orproducing garbage,refuse, rubbish or wastes not subject to removal under the terms of this chaptermay dispose of such garbage, refuse,rubbish or other wastes by transporting or arranging for the transportation thereof to the garbage disposal area ofthe town on such days and during suchhours, to be determined by the Town Council, as the garbage disposal area may be open to the public. The Town argues that if it had intended to exempt property from the garbage fee provided under 

## 5 7.02.070, it could--and would--have done so and that there is no opt-out provision in tj 7.02.070. The Town arguesthat the only nonexclusive garbage-relatedprovision of the Town Code is contained in 

## 5 7.02.1 10,which permits private individuals to eitherhaul--or arrange for "custom" hauling of--garbage which exceeds the Town's hauling ability because of size, weight or hazardous material. We disagree. The terms of a writing are jurisprudentially presumed to have been used as they are primarily and generally accepted. Section 1-4-107,MCA. Under 

## 9 7.02.070, the garbage collection fee is only charged to "a person occupying the residence from which garbage, rehse or rubbish is collected[;]"further, 

## 5 7.02.070 expressly establishes the fee schedule 

## "lflorthe collection of garbage, rubbish or refuse 

## . . 

## . ." (Emphasis added.) Read in plain English, either alone or together, this language means that a fee may be charged only if garbage is collected from a residence; if no garbage is collected, no fee may be charged. Moreover, nothing in 

## 5 7.02.070 requires Town residents to have their garbage collected bythe Town's contract garbage collector. While the Town may desire to impose such a requirement,it has not done so in 

## 5 7.02.070. The third Town Code section to which our attention is drawn, CULBERTSON, 

### MT., CODE 

## 5 7.02.040, provides: The Town Council shall have the power to advertise for bids for the purpose of entering into a contractproviding for the removal of garbage, rubbish and refuse from the town. The contract is to be entered into on or before the first regular meeting ofthe Town Council in the month of January on or before the termination date ofthe existing contract and shall be awarded for a term not to exceed three (3) years to the lowest responsible bidder. The contract is to provide that garbage, rubbish and refuse is to be collected from each family dwelling: or residential building two (2) times a week, and from each commercial establishmentthree (3) times a week, except that this section shall not require the collection of garbage,refuse orrubbish where streets and alleys are in a temporary condition which makes it impossible so to do and in case of failure to collect such garbage, refuse and rubbish, such failure shall not relieve the occupant of the premises from the payment ofthe garbage, refuse and rubbish collection fee hereinafter provided for. The contract is to further provide that items of garbage, refuse and rubbish exceeding seventy-five (75)pounds by weight, or because of size not subjecttoplacement in garbage containers, shallbe collected from each family dwelling or residentialbuilding and commercial establishment at least once a month. [Emphasis added.] This ordinance sets forth provisions to be included in any contract between the Town and a commercial garbage hauler for garbage collection and removal. However, the terms the Town has chosen to include in a contract between it and a garbagehauler cannotbe read to impose a use or fee obligation on residents where none is provided in 

## $5 7.02.070 andWe conclude that the Culbertson Town Code neither requires nor permits the Town to charge a fee for its garbage service unless that service is used. As a result, we hold that the District Court erred in concluding that the Town Code establishes a mandatory garbage fee that does not abate when the Town's contract garbage serviceis not used. We, therefore,

reverse the District Court's grant of summary judgment to the Town and direct the entry of judgment for L & L on its complaint for declaratory judgment. We observe that the parties also dispute--both procedurally and substantively--a conclusion by the District Court that L & L is not entitled to reliefpursuant to 

## 5 7- 13-41 07, MCA. For the reasons statedbriefly below, we determine that the court erred in reaching that conclusionbecause it related to an issue which was beyond the scope of relief sought. Thus, we reverse that conclusion on procedural grounds and decline to address it on the merits.L & L's declaratory judgment complaint sought a declaration interpreting the Town's garbage-related ordinancesin favor of nonexclusive Town contract garbage service and nonmandatory fees when the Town's service was not used. The Town's answer disputed L & L's interpretationofthe ordinances, asserted its municipal power to amend its ordinances at any time and requested dismissal ofL & L's complaint. L & L's motion for summary judgment again requested only an interpretation of the Town's garbage ordinances. In its arguments, L & L warned that it might subsequently pursue an action pursuant to either 

## 5 7-13-4107, MCA, which sets forth requirementsapplicablewhen a municipality decides to switch from garbage service by a private motor carrier to exclusivepublic service, or the "takings" clause of the Montana Constitution; it provided legal analyses on those subjects "for illustrative purposes." Noting L & L's warning, the Town's motion for summary judgment argued that the District Court should exercise its statutory discretion not to render a declaratory judgment because the judgment would not terminate the controversy; it sought summary judgment on the merits ofthe action pursuant to 

## 5 7-13-4107, MCA. In granting the Town's motion, the District Court first interpreted the garbage-related ordinancesatissue in the Town's favor. As discussed above, the court's conclusion regarding the ordinances is erroneous. The DistrictCourt then proceeded to address and resolve the issues relatingto 

## 5 7- 13- 4107, MCA, in the Town's favor. As outlined above, those issues were not part of 

### L & L's declaratoryjudgment complaint or the relief soughttherein. In essence, the District Court permitted the Town to raise, in its summary judgment motion, substantive matters not at issue in the case and to prevail on those matters. The Town cites to no authority in support of such a procedure which would allow a court to render an advisory opinion on a potential but nonexistent legal action. It is true, as the Town contends, that 

## 5 27-8-206, MCA, permits a district court to refuse to render a declaratory judgment where the judgment "would not terminate the uncertainty or controversy giving rise to the proceeding." The District Court did not do so 8here, however. As set forth above, the District Court purported to resolve a declaratory judgment action premised entirely on Town ordinances on the basis of substantive issues beyond the scope ofthe relief sought in the pleadings. The court erred in doing so. Reversed and remanded for further proceedings consistent with this opinion.

R

We concur:

ChiefJustice //

- Justices