DA 09-0013

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 434

JOHN TALMAGE, d/b/a MONTANA

DIAMOND AIRE, INC.,

Plaintiff and Appellant,

v.

CITY OF KALISPELL, KALISPELL CITY

AIRPORT ADVISORY BOARD,

Defendants and Appellees.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DV 04-286(B)

Honorable Katherine R. Curtis, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

James D. Moore, Attorney at Law, Kalispell, Montana

For Appellees:

Richard M. Hickel, Adjutant Kalispell City Attorney, Kalispell, Montana

Submitted on Briefs: September 16, 2009

Decided: December 22, 2009

Filed:

__________________________________________

Clerk

December 22 2009
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Justice John Warner delivered the Opinion of the Court.

¶1 John Talmage, d/b/a Montana Diamond Aire, Inc., appeals from the order of the

Eleventh Judicial District Court, Flathead County, granting the City of Kalispell and the

Kalispell Airport AdvisoryBoard’s(collectively, Kalispell) motion forsummary judgment.

The issue on appeal is whether the District Court erred in granting Kalispell’s motion for

summary judgment because there are material facts at issue. We reverse and remand for

further proceedings consistent with this Opinion.

¶2 Talmage owns and operates an aircraft maintenance and fueling business adjacent to

the Kalispell City Airport (the Airport). The deed to Talmage’s property, which was

purchased from the Airport by Talmage’s predecessor in interest, contains a restriction that

limits the property’s use to airport operations.

¶3 In 1999 and 2002, engineering consultants recommended that Kalispell increase

security at the Airport. In response to thisrecommendation, Kalispell constructed a security

fence in October of 2003. This resulted in the construction of a fence between Talmage’s

business and the Airport runway. Kalispell installed a forty-eight foot wide gate to allow

aircraft to access Talmage’s business.

¶4 In May 2004, Talmage filed a complaint naming, among others, the City of Kalispell

and the Kalispell City Airport Advisory Board as defendants. The complaint alleged

unreasonable interference with use of an easement, private nuisance, tortious interference

with business prospects, and infliction of emotional distress. Talmage also sought punitive

damages.
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¶5 The lawsuit languished for many months. Talmage’s counsel withdrew on May 7,

2007. On May 23, Talmage filed an unopposed motion to extend the time within which to

further plead so that he could secure counsel.

¶6 Kalispell filed a motion for summary judgment on May 31, 2007. In its summary

judgment motion, Kalispell claimed that it was justified in fencing the Airport and that the

forty-eight foot gate in the fence was wide enough to accommodate the majority of planes

utilizing the Airport. According to Kalispell, the average plane utilizing the Airport had a

wingspan of thirty-seven feet. In support of its argument that it had provided reasonable

access to Talmage’s property, Kalispell submitted the affidavit of the Airport manager

stating that he had personally observed a Cessna 185 aircraft pass through the gate to

Talmage’s business, turn around, and exit through the gate without difficulty.

¶7 Kalispell relied on § 67-10-201(1), MCA (2003), which statesthat a municipalitymay

“develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect, and police

airports and air navigation facilities,” and argued to the District Court that it was entitled to

fence the Airport, as long as Talmage had reasonable access.

¶8 Acting pro se, Talmage filed a brief in opposition to Kalispell’s motion. Talmage

argued that his property was the only business on or adjacent to the Airport that was

compromised by the fence. Talmage also alleged, albeit in his brief, that the only other

source for fuel at the Airport was not fenced, and it was owned by Kalispell. With respect to

the width of the gate, Talmage maintained that it is not wide enough to accommodate twinengine aircraft, which made up the bulk of his business. Talmage also averred that most of

his customers who fly turbine-powered aircraft and helicopters cannot enter his business or
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park next to his gas pumps, and some aircraft could not access his facility without the use of

a tug pull. Talmage also documented several instances where airplanes had collidedwith the

fence.

¶9 Talmage also filed an affidavit in response to the motion for summary judgment in

which he alleged that Kalispell had taken a number of steps to drive him out of business.

Talmage claimed that Kalispell had fenced off his business from the Airport because the

previous owner had not paid his Airport-user fees. Talmage also maintained that Kalispell

had approved a fencing plan in September 2003 that would not have restricted access to his

business, but on October 20, 2003, told him that he had only until October 27 to fence his

property himself.

¶10 Talmage also claimed that in December 2004, Kalispell sent his predecessor anumber

of emails asking whether the predecessor was still the owner ofthe property and stating that

Kalispell was “very interested in the property and would like to possibly buy it.” Lastly,

Talmage alleged that Kalispell had removed the taxiway that guided pilots to his business

and in its place painted markings on the pavement indicating the former taxiway was a

vehicle access road. Talmage attached documentation to his affidavit to support these

allegations.

¶11 The District Court concluded that all of Talmage’s claims hinged on whether the

access between his business and the Airport was unreasonably obstructed by the forty-eight

foot gate. The District Court noted that while Kalispell had provided evidence that the gate

is sufficiently wide for aircraft access, Talmage had presented no evidence to the contrary,

and therefore summary judgment was appropriate. In addition, the District Court concluded
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that Talmage had not supported his claim of emotional distress and that Kalispell was

immune from exemplary and punitive damages. Accordingly, the District Court granted

summary judgment in favor of Kalispell on all counts.

¶12 Ourstandard ofreview in appealsfrom summary judgment rulingsis de novo. Town

& Country Foods, Inc. v. City of Bozeman, 2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d

1283. We review a district court’s grant ofsummary judgment to determine whether it was

correctly decided pursuant to M. R. Civ. P. 56, which provides that summary judgment is

appropriate only when there is no genuine issue of material fact, and the moving party is

entitled to judgment as a matter of law. Erler v. Creative Finance & Investments, L.L.C.,

2009 MT 36, ¶ 16, 349 Mont. 207, 203 P.3d 744. All reasonable inferences that may be

drawn from the evidence must be drawn in favor of the party opposing summary judgment.

Hopkins v. Superior Metal Workings Systems, L.L.C., 2009 MT 48, ¶ 5, 349 Mont. 292, 203

P.3d 803.

¶13 On appeal, Talmage arguesthat he hasraised a number of material factsthatremain at

issue and that summary judgment is therefore precluded by M. R. Civ. P. 56(c).

¶14 The parties do not dispute that Kalispell has the authority to fence the Airport.

However, upon review ofthe record, we conclude that a genuine issue of material fact exists

regarding whether the fence and gate provided by Kalispell tortiously restricts or interferes

with Talmage’s business. While perhaps not artfully pled, especially while he was acting

pro se, the record contains sufficient evidence to raise a fact issue as to whether the gate

installed was of sufficient width to allow reasonable access to Talmage’s business, and

whether Kalispell, in constructing the fence and gate, acted to tortiously interfere with
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Talmage’s business, unreasonably interfere with Talmage’s alleged implied easement, and

intentionally inflict severe emotional distress.

¶15 In his affidavit in opposition to the motion for summary judgment, Talmage also set

forth facts concerning Kalispell’s actions in regard to the taxiway leading into his business.

Because these facts are to be taken astrue for purposes ofthe motion forsummary judgment,

a genuine issue of material fact is raised concerning whether, by altering this taxiway,

Kalispell intentionally sought to harmTalmage’s business, interfere with his alleged implied

easement, and cause him severe emotional distress.

¶16 Talmage abandons his claims for private nuisance and punitive damages on appeal.

The judgment of the District Court is reversed and this matter is remanded for trial on

Talmage’s claims based on unreasonable interference with the use of an easement, tortious

interference with business relations, and intentional infliction of severe emotional distress.

/S/ JOHN WARNER

We Concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

/S/ BRIAN MORRIS

/S/ PATRICIA O. COTTER