text:
    FORD MOTOR COMPANY, Petitioner, v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, Elizabeth Best, Respondent.
    OP 19-0099
    Supreme Court of Montana.
    Decided: May 21, 2019
    For Petitioner: Ian McIntosh, Marcia Davenport, Crowley Fleck, PLLP, Bozeman, Montana, Vaughn A. Crawford, Snell & Wilmer, Phoenix, Arizona
    For Plaintiff Charles S. Lucero : Dennis P. Conner, Keith D. Marr, James R. Conner, Conner & Marr, PLLP, Great Falls, Montana, Daniel P. Buckley, Buckley Law Office, PC, Bozeman, Montana
    Justice Laurie McKinnon delivered the Opinion and Order of the Court.
   ¶1 Ford Motor Company (Ford) petitions this Court for a writ of supervisory control following an order of the Eighth Judicial District Court, Cascade County, in Charles Lucero v. Ford Motor Company , ADV-18-247(b), denying its motion to dismiss for lack of personal jurisdiction. We accept supervisory control, conclude Montana has specific personal jurisdiction over Ford in this case, and accordingly affirm the District Court's order. This Opinion and Order addresses the following issue:

Does Montana have specific personal jurisdiction over Ford regarding Lucero's design defect, failure to warn, and negligence claims when the vehicle accident occurred in Montana but the vehicle was not designed, manufactured, or first sold by Ford in Montana?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Markkaya Jean Gullett, a Montana resident, drove a 1996 Ford Explorer. Ford did not design or manufacture the Explorer in Montana. Ford assembled the Explorer in Kentucky and sold it for the first time to a dealer in Washington. Over ten years later, the Explorer was resold and registered in Montana. In 2015, as Gullett drove the Explorer on the interstate in Montana, one of the Explorer's tires suffered a tread/belt separation. The vehicle lost stability, rolled into a ditch, and came to rest upside down. Gullett died at the scene. Gullett's personal representative, Charles Lucero (Lucero), filed this suit against Ford in Montana state district court on behalf of Gullett and her heirs. The complaint alleges three claims against Ford: strict liability for design defect, strict liability for failure to warn, and negligence. Lucero seeks compensatory and punitive damages.

¶3 Defendant Ford moved to dismiss, arguing Montana does not have specific personal jurisdiction over Ford regarding Lucero's claims and specifically reasoning that there is no link between Ford's Montana contacts and Lucero's claims. The District Court disagreed and ultimately concluded it had specific personal jurisdiction over Ford.

¶4 Ford now asks this Court to exercise supervisory control over the District Court, conclude no specific personal jurisdiction exists, and dismiss the case against Ford. Ford faults the District Court for resting its analysis on Ford's in-state contacts and the fact that Gullett was injured in Montana, arguing the court erred when it failed to identify a link between Ford's contacts with Montana and Lucero's claims. Lucero asserts the court's exercise of specific personal jurisdiction is appropriate in this case.

STANDARD OF REVIEW

¶5 This Court has supervisory control over Montana courts. Mont. Const. art. VII, § 2 (2); see also Great Falls Clinic LLP v. Mont. Eighth Judicial Dist. Court , 2016 MT 245, ¶ 6, 385 Mont. 95, 381 P.3d 550. Supervisory control is an extraordinary remedy and we determine whether to use it on a case-by-case basis. M. R. App. P. 14(3). We may exercise supervisory control when "urgency ... mak[es] the normal appeal process inadequate," "the case involves purely legal questions," and "[c]onstitutional issues of state-wide importance are involved." M. R. App. P. 14(3)(b).

¶6 This Court reviews a personal jurisdiction ruling de novo. Tackett v. Duncan , 2014 MT 253, ¶ 16, 376 Mont. 348, 334 P.3d 920.

DISCUSSION

¶7 We accept Ford's petition for supervisory control to resolve the issue of whether a Montana state court may exercise specific personal jurisdiction over Ford regarding Lucero's design defect, failure to warn, and negligence claims. Urgency makes the normal appeal process inadequate in this case involving personal jurisdiction, because the District Court must have power over the parties in a proceeding to afford adequate relief. The question is purely legal and of state-wide constitutional importance: Ford's due process rights are at issue and this decision will clarify when persons injured in Montana may appropriately file suit in Montana courts. We accordingly accept supervisory control and, for the following reasons, affirm the District Court's decision finding that Montana may exercise specific personal jurisdiction over Ford in this case.

¶8 Personal jurisdiction-a court's power over the parties in a proceeding-may be general (all-purpose) or specific (case-linked). DeLeon v. BNSF Ry. Co. , 2018 MT 219, ¶ 7, 392 Mont. 446, 426 P.3d 1. "General personal jurisdiction is premised upon the defendant's relationship to the forum state, while specific personal jurisdiction is premised upon the defendant's relationship to both the forum state and the particular cause of action." DeLeon , ¶ 7. Ford is undisputedly not subject to general personal jurisdiction in Montana. See BNSF Ry. Co. v. Tyrrell , 581 U.S. ----, ----, 137 S. Ct. 1549, 1559, 198 L.Ed.2d 36 (2017). The question in this case, therefore, is whether Montana may exercise specific personal jurisdiction over Ford regarding Lucero's design defect, failure to warn, and negligence claims.

¶9 Specific personal jurisdiction exists when the suit itself "arises from the specific circumstances set forth in Montana's long-arm statute, M. R. Civ. P. 4(b)(1)." Buckles v. Cont'l Res., Inc. , 2017 MT 235, ¶ 15, 388 Mont. 517, 402 P.3d 1213. A Montana court's exercise of specific personal jurisdiction "depends on whether the defendant's 'suit-related conduct' created a substantial connection with" Montana. Tackett , ¶ 19 (quoting Walden v. Fiore , 571 U.S. 277, 284, 134 S. Ct. 1115, 1121, 188 L.Ed.2d 12 (2014) ). The defendant's relationship with the forum and the litigation must relate to contact the defendant itself created with the forum. Tackett , ¶ 32. Accordingly, exercising specific personal jurisdiction over a defendant is only appropriate when both the defendant and the underlying controversy are appropriately affiliated with Montana. Tackett , ¶ 19 (citing Daimler AG v. Bauman , 571 U.S. 117, 133, 134 S. Ct. 746, 758, 187 L.Ed.2d 624 (2014) (stating that specific personal jurisdiction focuses on the "relationship among the defendant, the forum, and the litigation")).

¶10 We apply a two-step test to determine whether a Montana court may exercise personal jurisdiction over a nonresident defendant. DeLeon , ¶ 10 (citing Milky Whey, Inc. v. Dairy Partners, LLC , 2015 MT 18, ¶ 18, 378 Mont. 75, 342 P.3d 13 ; Tackett , ¶ 22 ). First, we determine whether personal jurisdiction exists under Montana's long-arm statute, M. R. Civ. P. 4(b)(1). Milky Whey , ¶ 18. If the first step is satisfied, we then determine whether exercising personal jurisdiction is constitutional; that is, whether it conforms with "the traditional notions of fair play and substantial justice embodied in the due process clause." Cimmaron Corp. v. Smith , 2003 MT 73, ¶ 10, 315 Mont. 1, 67 P.3d 258.

¶11 First, in considering whether specific personal jurisdiction exists under Montana's long-arm statute, we turn to M. R. Civ. P. 4(b)(1) which provides, in pertinent part: "[A]ny person is subject to the jurisdiction of Montana courts as to any claim for relief arising from ... the commission of any act resulting in accrual within Montana of a tort action." M. R. Civ. P. 4(b)(1)(B). In this case, Lucero's claims for relief arise from Ford's alleged actions of design defect, failing to warn, and negligence. Lucero alleges those actions resulted in the accrual of a tort action in Montana: Gullett was driving the Explorer in Montana when the accident occurred. Accordingly, we conclude Lucero's claims for relief arise from Ford's actions allegedly resulting in a tort action accruing within Montana. See Bunch v. Lancair Int'l, Inc. , 2009 MT 29, ¶ 40, 349 Mont. 144, 202 P.3d 784 (concluding the out-of-state defendant's conduct fell under Montana's long-arm statute because the alleged tort accrued in Montana). Step one is satisfied; Ford's conduct falls under Montana's long-arm statute.

¶12 We next turn to the question of whether exercising personal jurisdiction over Ford is constitutional. A Montana court's exercise of personal jurisdiction over a defendant is limited by the Fourteenth Amendment's Due Process Clause. U.S. Const. amend. XIV. A defendant must have "certain minimum contacts [with Montana] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Tackett , ¶ 18 (quoting Walden , 571 U.S. at 283, 134 S. Ct. at 1121 (quoting Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L.Ed. 95 (1945) )). The concept protects a defendant from having to litigate in a distant forum and allows a defendant to reasonably anticipate where he may be haled into court. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L.Ed.2d 490 (1980). The primary focus "is the defendant's relationship to the forum State." Bristol-Myers Squibb Co. v. Superior Court of Cal., S.F. Cty. , 582 U.S. ----, ----, 137 S. Ct. 1773, 1779, 198 L.Ed.2d 395 (2017). To determine if exercising personal jurisdiction over a defendant comports with due process, we consider whether: (1) the nonresident defendant purposefully availed itself of the privilege of conducting activities in Montana, thereby invoking Montana's laws; (2) the plaintiff's claim arises out of or relates to the defendant's forum-related activities; and (3) the exercise of personal jurisdiction is reasonable. Simmons v. State , 206 Mont. 264, 276, 670 P.2d 1372, 1378 (1983). Once the plaintiff demonstrates that the first element is satisfied-that the defendant purposefully availed itself of the privilege of conducting activities in Montana-a presumption of reasonableness arises, which the defendant can overcome only by presenting a compelling case that jurisdiction would be unreasonable. B.T. Metal Works v. United Die & Mfg. Co. , 2004 MT 286, ¶ 34, 323 Mont. 308, 100 P.3d 127.

¶13 First, we consider whether Ford purposefully availed itself of the privilege of conducting activities in Montana, thereby invoking Montana's laws. "A nonresident defendant purposefully avails itself of the benefits and protections of the laws of the forum state when it takes voluntary action designed to have an effect in the forum." B.T. Metal Works , ¶ 35. On the other hand, "a defendant does not purposefully avail itself of the forum's laws when its only contacts with the forum are random, fortuitous, attenuated, or due to the unilateral activity of a third party." B.T. Metal Works , ¶ 35.

¶14 The stream-of-commerce theory explains that a defendant may purposefully avail itself of the privilege of conducting activities in the forum when it "delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." World-Wide Volkswagen , 444 U.S. at 298, 100 S. Ct. at 567. The focus must remain on the defendant: "the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen , 444 U.S. at 297, 100 S. Ct. at 567.

¶15 Justice O'Connor, writing for a plurality of four in Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cty. , 480 U.S. 102, 112, 107 S. Ct. 1026, 1032, 94 L.Ed.2d 92 (1987) (plurality), introduced what is now known as the "stream of commerce plus" theory: placing a product into the stream of commerce, without more, does not demonstrate purposeful availment. Instead, a defendant must engage in some "additional conduct" establishing its "intent or purpose to serve the market in the forum State, [such as] designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State." Asahi , 480 U.S. at 112, 107 S. Ct. at 1032. A similarly-divided Court revisited the stream of commerce theory in J. McIntyre Mach., Ltd. v. Nicastro , 564 U.S. 873, 882-85, 131 S. Ct. 2780, 2788-90, 180 L.Ed.2d 765 (2011) (plurality), where Justice Kennedy, writing for a plurality, adopted Justice O'Connor's stream of commerce plus approach. According to the stream of commerce plus theory, a defendant's mere awareness that its product may enter the forum state is not enough to demonstrate purposeful availment; the defendant must also engage in some additional conduct establishing its intent or purpose to serve the forum state's market. Asahi , 480 U.S. at 112, 107 S. Ct. at 1032.

¶16 We leaned towards Justice O'Conner's "stream of commerce plus" theory in Bunch v. Lancair Int'l, Inc. , when we reasoned that a defendant must do more than place a product into the stream of commerce in order to purposefully avail itself of the privilege of conducting activities in Montana. Bunch , ¶¶ 24, 28, 30, 55 (quoting Asahi , 480 U.S. at 112, 107 S. Ct. at 1032, for the proposition that "[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State").

¶17 Applying the more stringent "stream of commerce plus" theory, we conclude Ford purposefully availed itself of the privilege of conducting activities in Montana. Ford delivers its vehicles and parts into the stream of commerce with the expectation that Montana consumers will purchase them. Further, Ford engages in additional conduct establishing its intent to serve the market in Montana. Ford advertises in Montana, is registered to do business in Montana, and operates subsidiary companies in Montana. Ford has thirty-six dealerships in Montana. Ford also has employees in Montana. It sells automobiles, specifically Ford Explorers-the kind of vehicle at issue in this case-and parts in Montana. Ford also provides automotive services in Montana, including certified repair, replacement, and recall services. Ford's conduct clearly establishes channels that permit it to provide regular assistance and advice to customers in Montana; Ford serves the market in Montana and expects consumers to drive its automobiles in Montana. Ford's conduct satisfies the more-stringent stream of commerce plus theory, and we accordingly find it purposefully availed itself of the privilege of conducting activities in Montana, thereby invoking Montana's laws.

¶18 Second, we consider whether Lucero's claims arise out of or relate to Ford's forum-related activities. The Supreme Court recently clarified the mandatory nature of this prong. Due process requires a connection between a defendant's in-state actions and a plaintiff's claim: "the suit must arise out of or relate to the defendant's contacts with the forum." Bristol-Myers , 582 U.S. at ----, 137 S. Ct. at 1780 (internal quotations and alterations omitted). Ford argues that, because it did not design or manufacture the Explorer at issue in Montana and because Ford first sold the Explorer outside of Montana, Lucero's claims do not arise out of or relate to any of Ford's Montana activities. Ford's position is supported by courts in other jurisdictions finding no specific personal jurisdiction in similar factual scenarios because of a lack of connection between the plaintiffs' claims and the defendants' in-state contacts. Lucero counters, urging us to find the second due-process consideration satisfied because the claims relate to Ford's in-state activities. Lucero's position is also supported by courts in other jurisdictions finding due process satisfied in similar factual scenarios as long as a defendant has some other connection to the forum state and could have reasonably foreseen its product being used there. For the following reasons, we agree with Lucero and conclude the second prong is satisfied here: Lucero's claims relate to Ford's Montana activities.

¶19 In a products liability action where the defendant purposefully availed itself of the privilege of doing business in Montana based on the stream of commerce plus theory, the question of whether the plaintiff's claims arise out of or relate to the defendant's forum-related activities presents a challenging legal inquiry. The defendant's out-of-state conduct-placing the product into the stream of commerce-technically led to the plaintiff's in-state use of the product and resulting claim. In that sense, the defendant's forum-related activities did not directly result in the plaintiff's use of the product in that forum. However, due process does not require a direct connection; it only requires that the plaintiff's claims "arise out of" or "relate to" the defendant's forum-related activities. Therefore, we must determine when the plaintiff's claims "arise out of" or "relate to" the defendant's Montana-related activities when the defendant purposefully availed itself of the privilege of conducting activities in Montana based on the stream of commerce plus theory.

¶20 "[I]f the sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury ...." World-Wide Volkswagen , 444 U.S. at 298, 100 S. Ct. at 567 (emphasis added); see also Walden , 571 U.S. at 290, 134 S. Ct. at 1125 ("[A]n injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State."). Where a plaintiff alleges a nonresident defendant, acting outside of the forum, placed a product into the stream of commerce that ultimately caused harm in the forum, the "[f]low of a manufacturer's products into the forum ... may bolster an affiliation germane to specific jurisdiction." See Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 927, 131 S. Ct. 2846, 2855, 180 L.Ed.2d 796 (2011). Therefore, when the defendant purposefully avails itself of the privilege of conducting activities in a specific forum by placing a product into the stream of commerce, the plaintiff's claims will relate to the defendant's forum-related activities as long as the connection between the defendant's in-state conduct and the plaintiff's claim is sufficient enough to not offend due process.

¶21 At its core, due process is concerned with fairness and reasonableness: Is it fair and reasonable to ask an out-of-state defendant to defend a specific lawsuit in Montana? Companies build vehicles specifically for interstate travel. Irrespective of where a company initially designed, manufactured, or first sold a vehicle, it is fair to say that a company designing, manufacturing, and selling vehicles can reasonably foresee (even expect) its vehicles to cross state lines. When a company engages in the design, manufacture, and distribution of products specifically designed for interstate travel, it is both fair and reasonable to require the company to defend a lawsuit in a state where the product caused injury as long as the company has otherwise purposefully availed itself of the privilege of doing business in that state and if a nexus exists between the product and the defendant's in-state activity. Where a company first designed, manufactured, or sold a vehicle is immaterial to the personal jurisdiction inquiry, and focusing on those limited factors would unduly restrict courts of this state from exercising specific personal jurisdiction that comports with due process over nonresident defendants in cases such as this one.

¶22 Accordingly, we now hold that if a defendant's actions resulted in the accrual of a tort action in Montana (that is, if M. R. Civ. P. 4(b)(1)(B) is satisfied), and if the defendant purposefully availed itself of the privilege of conducting activities in Montana under the stream of commerce plus theory, the plaintiff's claims "relate to" the defendant's forum-related activities if a nexus exists between the product and the defendant's in-state activity and if the defendant could have reasonably foreseen its product being used in Montana. In this case, M. R. Civ. P. 4(b)(1)(B) is satisfied and Ford purposefully availed itself of the privilege of conducing activities in Montana under the stream of commerce plus theory. Therefore, Lucero's claims "relate to" Ford's Montana activities if a nexus exists between the Explorer and Ford's Montana activities and if Ford could have reasonably foreseen the Explorer being used in Montana.

¶23 A nexus exists between Gullett's use of the Explorer and Ford's in-state activity. Ford advertises, sells, and services vehicles in Montana. Ford makes it convenient for Montana residents to drive Ford vehicles by offering maintenance, repair, and recall services in Montana. Gullett's use of the Explorer in Montana is tied to Ford's activities of selling, maintaining, and repairing vehicles in Montana. Further, Ford could have reasonably foreseen the Explorer-a product specifically built to travel-being used in Montana. We accordingly conclude that Lucero's claims "relate to" Ford's Montana activities.

¶24 Ford cites recent Supreme Court opinions Bristol-Myers and Walden , reasoning they support its argument that Lucero's claims do not arise out of or relate to its forum-related activities because it did not design, manufacture, or first sell the Explorer in Montana. Those cases, however, do not limit the specific personal jurisdiction analysis in the way Ford argues.

¶25 In Bristol-Myers , plaintiffs filed a products liability action against Bristol-Myers in California state court, alleging they were injured by the pharmaceutical company's drug Plavix.

Bristol-Myers , 582 U.S. at ----, 137 S. Ct. at 1778. Over 600 plaintiffs participated in the action: 86 plaintiffs alleged Plavix injured them in California, while 592 plaintiffs alleged Plavix injured them in other states. Bristol-Myers , 582 U.S. at ----, 137 S. Ct. at 1778. Bristol-Myers challenged the California court's jurisdiction over the claims arising from the out-of-state injuries. Notably, the court's jurisdiction over the claims arising from the in-state injuries was not at issue. The Supreme Court ultimately held the California state court could not exercise specific personal jurisdiction over the claims arising from out-of-state injuries because the plaintiffs bringing those claims "were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California." Bristol-Myers , 582 U.S. at ---, 137 S. Ct. at 1781. This case is distinguishable. Gullett was injured while driving the Explorer in Montana. Therefore, while Bristol-Myers did not have sufficient California contacts regarding the claims arising from out-of-state injuries, the Court's holding from Bristol-Myers does not impact our analysis regarding whether Lucero's claims relate to Ford's Montana contacts because Gullett was injured while driving the Explorer in Montana.

¶26 In Walden , a police officer seized a large sum of cash from airline passengers at an airport in Georgia, believing the cash was connected to drug-related activity. Walden , 571 U.S. at 279, 134 S. Ct. at 1119. The passengers filed suit in Nevada. The Supreme Court ultimately held the officer was not subject to personal jurisdiction in Nevada because he lacked any connection to the state. The Court recognized that in order for personal jurisdiction to comport with due process, the "defendant's suit-related conduct must create a substantial connection with the forum State" and the "relationship must arise out of contacts that the 'defendant himself' creates with the forum State." Walden , 571 U.S. at 284, 134 S. Ct. at 1121-22 (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475, 105 S. Ct. 2174, 2184, 85 L.Ed.2d 528 (1985) ). "[T]he plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him." Walden , 571 U.S. at 285, 134 S. Ct. at 1122. The Court reiterated that the specific personal jurisdiction analysis must focus on the "relationship among the defendant, the forum, and the litigation." Walden , 571 U.S. at 291, 134 S. Ct. at 1126.

¶27 This case presents a much different factual scenario. Unlike in Walden , where the plaintiffs were the only connection between the defendant and the forum state, here, Gullett is by no means the only connection between Ford and Montana. Rather, Ford's own actions link its Montana contacts to Lucero's claims. Ford markets, sells, and services vehicles in Montana, demonstrating a willingness to sell to and serve Montana customers like Gullett, who was injured while driving an Explorer in Montana. Focusing on the relationship between the defendant (Ford), the forum (Montana), and the litigation (Lucero's design defect, failure to warn, and negligence claims arising from a vehicle accident that occurred in Montana), we conclude Lucero's claims relate to Ford's in-state activities.

¶28 Third in our due process analysis, we consider whether the exercise of personal jurisdiction is reasonable. After finding that a defendant purposefully availed itself of the privilege of conducting activities, we presume that the exercise of personal jurisdiction is reasonable. A defendant can only overcome that presumption by presenting a compelling case that exercising jurisdiction would be unreasonable. B.T. Metal Works , ¶ 34. Because we found that Ford purposefully availed itself of conducting activities in Montana under the stream of commerce plus theory, we presume that exercising personal jurisdiction is reasonable unless Ford can overcome that presumption by presenting a compelling case that jurisdiction would be unreasonable.

¶29 The reasonableness analysis generally depends on an examination of factors that illustrate the concept of fundamental fairness, such as: (1) the extent of the defendant's purposeful interjection into Montana; (2) the burden on the defendant of defending in Montana; (3) the extent of conflict with the sovereignty of the defendant's state; (4) Montana's interest in adjudicating the dispute; (5) the most efficient resolution of the controversy; (6) the importance of Montana to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Simmons Oil Corp. v. Holly Corp. , 244 Mont. 75, 87-88, 796 P.2d 189, 196-97 (1990) ; see also World-Wide Volkswagen , 444 U.S. at 292, 100 S. Ct. at 564-65.

¶30 Applying those factors to this case, we conclude Ford has failed to present a compelling case that exercising jurisdiction over it would be unreasonable: (1) Ford's purposeful interjections into Montana are extensive; (2) Ford did not represent that it is burdened by defending in Montana; (3) Ford did not point out any conflicts between Montana and its home states; (4) Montana has a strong interest in adjudicating the dispute, considering the fact that the accident involved a Montana resident and occurred on Montana roadways; (5) the controversy may be efficiently resolved in Montana, as it was the place of the accident; (6) Montana's court system is important to Lucero's interest in convenient and effective relief; and (7) while alternative forums exist where Ford would be subject to general personal jurisdiction, those forums are less convenient considering the fact that the accident occurred in Montana. Ford has failed to overcome our presumption that exercising jurisdiction is reasonable. The third due process factor is satisfied.

CONCLUSION

¶31 We accept Ford's petition for supervisory control. This case regarding personal jurisdiction presents urgent factors making the normal appeal process inadequate. The issue presented is purely legal and of state-wide constitutional importance. We agree with the District Court's determination that a Montana court may exercise specific personal jurisdiction over Ford regarding Lucero's design defect, failure to warn, and negligence claims.

IT IS THEREFORE ORDERED Ford's Petition for a Writ of Supervisory Control is GRANTED and the District Court's order denying Ford's motion to dismiss for lack of personal jurisdiction is AFFIRMED.

The Clerk is directed to forward a copy of this Opinion and Order to all counsel of record in the Eighth Judicial District Court Cause No. ADV-18-247(b), and to the Honorable Elizabeth Best, presiding District Judge.

We concur:

MIKE McGRATH, C.J.

BETH BAKER, J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.

      Ford selectively quotes from our prior case law in Tackett and Milky Whey to support its contention that its conduct here does not satisfy subsection (b)(1)(B) of Montana's long-arm statute. See Tackett , ¶ 31 (accrual turns "on where the events giving rise to the tort claims occurred, rather than where the plaintiffs allegedly experienced ... their injuries"), ¶ 34 ("[N]o part of [the defendant's] course of conduct forming the basis of [the plaintiff's] claims occurred in Montana."), ¶ 35 ("Mere injury to a forum resident is not a sufficient connection to the forum, however."); Milky Whey , ¶ 24 ("[A] tort does not accrue in Montana when all acts giving rise to the claims occur in another state.").
      Those cases, however, are factually distinguishable-Tackett involved a monetary dispute where the only connection to Montana was a party's transfer of funds from his Montana bank account, and Milky Whey involved a dispute over the delivery of a product where the product never physically entered Montana. See Tackett , ¶ 24 ; Milky Whey , ¶¶ 22-24. In this case, the tort undoubtedly accrued in Montana: the accident occurred while Gullett was driving on a Montana roadway. Lucero's claims of design defect, failing to warn, and negligence against Ford, if proven, resulted in the accrual of a tort in Montana and, accordingly, M. R. Civ. P. 4(b)(1)(B) is satisfied in this case.

      Justice Brennan, also writing for four justices in Asahi , rejected the stream of commerce plus approach, instead supporting a less-demanding test: a defendant participating in "the regular and anticipated flow of products from manufacture to distribution to retail sale" is properly subject to jurisdiction so long as the defendant is "aware that the final product is being marketed in the forum State." Asahi , 480 U.S. at 117, 107 S. Ct. at 1034 (Brennan, J., concurring in part and concurring in judgment). Justice Stevens, joined by two justices, stated that, instead of considering the defendant's awareness that a component could find its way into the forum state, the court should evaluate "the volume, the value, and the hazardous character" of the defendant's product to determine purposeful availment. Asahi , 480 U.S. at 122, 107 S. Ct. at 1037 (Stevens, J., concurring in part and concurring in judgment).

      See, e.g. , Sullivan v. Ford Motor Co. , No. 16-cv-03505-JST, 2016 WL 6520174, at *3 (N.D. Cal. 2016) (finding no specific personal jurisdiction over Ford in California where the plaintiff was injured in California but Ford manufactured and first sold the vehicle outside of the state because there was "every reason to think that [plaintiff's] injury would have occurred regardless of Ford's contacts with California"); Erwin v. Ford Motor Co. , No. 8:16-cv-01322-T-24 AEP, 2016 WL 7655398, at *7 (M.D. Fla. 2016) (finding no specific personal jurisdiction over Ford in Florida where the accident occurred in Florida but where Ford first sold the vehicle outside of the state because the plaintiff's injuries would have occurred regardless of whether or not Ford had contacts with Florida); Pitts v. Ford Motor Co. , 127 F. Supp. 3d 676, 686 (S.D. Miss. 2015) (finding no specific personal jurisdiction over Ford in Mississippi where the plaintiffs purchased their vehicle in Texas and crashed in Mississippi because there was no "meaningful connection" between the claims and Ford's Mississippi contacts).

      See, e.g. , Bandemer v. Ford Motor Co. , 913 N.W.2d 710, 716-17 (Minn. Ct. App. 2018) (concluding plaintiff's injury was connected to Ford's Minnesota contacts because Ford initiated contacts with Minnesota and actively sought out business through marketing in the state-Ford "should have reasonably anticipated being haled into court in Minnesota"); Semperit Technische Produkte Gesellschaft M.B.H. v. Hennessy , 508 S.W.3d 569, 583-84 (Tex. Ct. App. 2016) (concluding there was a sufficient nexus between the plaintiff's claims and Texas because the defendant was engaged in the business of selling the product in Texas-the fact that the particular product at issue went through a distributor in another state was immaterial to the analysis); Thomas v. Ford Motor Co. , 289 F. Supp. 3d 941, 948 (E.D. Wis. 2017) (finding a connection between the plaintiffs' claims because Ford could have reasonably foreseen that it would be subject to suit in Wisconsin based on its willingness to serve and sell to Wisconsin consumers, its pervasive marketing platforms, and its accrual of benefits from Wisconsin consumers buying its products); Antonini v. Ford Motor Co. , 2017 WL 3633287, *3-4, 2017 U.S. Dist. LEXIS 135247, *8-9 (M.D. Penn. 2017) (holding that, because plaintiff testified that she would not have purchased the vehicle had she not seen Ford's advertisements touting the safety of Ford's vehicles, Ford established a reasonably foreseeable connection with Pennsylvania by enticing Pennsylvanians to buy and drive Ford vehicles); Tarver v. Ford Motor Co. , 2016 WL 7077045, *5-6, 2016 U.S. Dist. LEXIS 167363, *15-16 (W.D. Okla. 2016) (finding a nexus between plaintiffs' claims and Oklahoma because Ford's contacts with Oklahoma-advertising, maintaining dealerships, and providing regular service and product information to Oklahoma consumers through its dealerships-combined with the fact that Ford manufacturers products specifically meant for interstate travel, established a sufficient connection).


source: Caselaw Access Project

author: Justice Beth Baker delivered the Opinion of the Court. Justice Laurie McKinnon, dissenting.

license: Public Domain

text:
    IN RE the MARRIAGE OF: Pamela Gail FOSSEN, Petitioner and Appellant, and Allan R. Fossen, Respondent and Appellee.
    DA 18-0043
    Supreme Court of Montana.
    Submitted on Briefs: March 6, 2019 Decided: May 28, 2019
    For Appellant: Nathan J. Hoines, Zachary D. Kitchen, Hoines Law Office, P.C., Great Falls, Montana
    For Appellee: Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C., Great Falls, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 Pamela Fossen ("Pam") appeals an order from the Eighth Judicial District Court, Cascade County, awarding Allen Fossen ("Al") prejudgment interest on a $ 20,000 sum Pam was directed to pay in the dissolution. Pursuant to a provision in the dissolution settlement agreement, the District Court also awarded Al's attorney fees incurred in a separate action. We address the following issues on appeal:

1. Whether the District Court erred in awarding Al attorney fees under terms of the parties' dissolution Settlement Agreement for defending Pam's third-party complaint against him in a separate action;
2. Whether the District Court abused its discretion in admitting certain evidence to support the calculation of attorney fees and costs; and
3. Whether the District Court erred in awarding prejudgment interest.

¶2 We affirm issues one and three and reverse and remand issue two for the District Court to determine the amount of attorney fees and costs upon properly admitted evidence.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Pam and Al entered into a portable toilet business, Great Falls Portables, Inc., with Charles and Mary Lou Dees (the "Deeses") in 1996. Pam and Al separated in 2001, and Pam took control of the management of Great Falls Portables. Pam created a separate LLC, Rocky Mountain Portables, and transferred all Great Falls Portables assets and customers to Rocky Mountain Portables. The Deeses filed suit against Pam, Great Falls Portables, and Rocky Mountain Portables in October 2003, seeking recognition of their interest in Great Falls Portables.

¶4 Pam and Al entered into a Settlement Agreement a month later to divide their marital property between them in the marriage dissolution action. The Agreement called for Pam to receive Great Falls Portables and to pay Al $ 20,000 from the sale or refinance of the real property used by Great Falls Portables. The Agreement provided that Pam would indemnify Al from certain debts, including Pam's agreement to "be responsible to the Dees for any obligation which may be owed them in connection with their interest, if any, in Great Falls Portables." The Agreement's attorney fee provision stated that, "In the event of future litigation between the parties to enforce, modify, or interpret any provision of this agreement, the prevailing party shall be entitled to all his or her court costs, including a reasonable attorney's fee."

¶5 Shortly after entry of the final dissolution decree incorporating Pam and Al's Agreement, Pam filed a third-party complaint against Al in the Deeses' suit against her. Pam alleged that the Deeses' claim arose out of Al's fraudulent actions in his individual capacity and that Al had fraudulently induced Pam to enter the Agreement assigning responsibility for payment of the Deeses' interest. She demanded that Al remedy this fraud by indemnifying her against all liability to the Deeses. The district court in that case granted Al summary judgment on all three counts because Pam failed to plead fraud with sufficient particularity, and no material issue of fact demonstrated Pam's reliance on the alleged fraudulent representations. The court dismissed Pam's indemnity and contribution claim as relating back to the fraud alleged in the other two counts. This Court affirmed the district court's grant of summary judgment to Al on all issues. Fossen I , ¶ 21.

¶6 Following Fossen I , Al moved in the dissolution action to compel enforcement of the Agreement and for an award of attorney fees and costs. The request for attorney fees was based on Al's defense of the third-party complaint in the Dees case. In July 2014, the Standing Master held a hearing on Al's motions, together with Pam's motion to set aside the Agreement for fraud, her motion for attorney fees and costs or for a setoff, and her motion for contempt for failure to pay child support. The Standing Master granted Al's motion and ordered Pam to pay Al the $ 20,000 awarded in the Decree. The Standing Master denied Pam's motions and set a hearing on the amount of fees. The Standing Master awarded Al fees from the third-party action because the Agreement's attorney fee provision did not limit recovery to only future litigation in the dissolution. The Standing Master interpreted the provision to apply to any litigation involving enforcement, modification, or interpretation of the Agreement. The Standing Master concluded that the substance of Pam's third-party complaint against Al was to modify the Agreement: Pam sought to avoid being solely liable for payment to the Deeses for their equity interest in Great Falls Portables. The Standing Master held a hearing on the amount of attorney fees in March 2015. Pam paid Al the $ 20,000 pursuant to the Agreement on the day of the hearing. At the hearing, Al presented attorney Doug Allen as his expert to testify on the reasonableness of the attorney fees.

¶7 The Standing Master failed to rule on the amount of attorney fees, and the District Court withdrew the referral and took up the issue. Considering the testimony and exhibits from the March 2015 hearing, the District Court awarded Al $ 45,894 in attorney fees from his defense to the third-party complaint. The court also awarded Al $ 18,684.93 in prejudgment interest, reasoning that the right to recover the $ 20,000 payment vested when the Agreement was entered in November 2003.

STANDARDS OF REVIEW

¶8 We review for abuse of discretion a decision on a request for an award of attorney fees unless a contract requires an award of fees, in which case a district court lacks discretion to deny the request. In re Marriage of Szafryk , 2010 MT 90, ¶ 19, 356 Mont. 141, 232 P.3d 361. In that case we review the district court's interpretation of the contract to determine whether it is correct. In re Marriage of Szafryk, ¶ 19. We review evidentiary rulings for abuse of discretion. In re Marriage of Lundstrom , 2010 MT 261, ¶ 10, 358 Mont. 318, 245 P.3d 25. A district court, however, is bound by the Montana Rules of Evidence and applicable statutes in exercising its discretion. State v. Polak , 2018 MT 174, ¶ 12, 392 Mont. 90, 422 P.3d 112. Accordingly, we review de novo a district court's ruling based on its interpretation of a Rule of Evidence or a statute. Polak , ¶ 12. We review the decision to award prejudgment interest to determine whether the district court correctly interpreted the law. DeTienne v. Sandrock , 2018 MT 269, ¶ 30, 393 Mont. 249, 431 P.3d 12.

DISCUSSION

¶9 1. Whether the District Court erred in awarding Al attorney fees under terms of the parties' dissolution Settlement Agreement for defending Pam's third-party complaint against him in a separate action.

¶10 The Standing Master held that the relief Pam sought against Al in the third-party complaint appropriately could have been brought as part of an action to modify the portion of the Settlement Agreement that made Pam responsible for any obligation to the Deeses in connection with Great Falls Portables. The court therefore concluded that the third-party complaint constituted an action to modify the Agreement and is thus subject to its attorney fee provision. Pam argues that the Standing Master incorrectly applied the Agreement's attorney fee provision because it was intended to apply only to enforcement of terms governing the marriage dissolution. Pam maintains that there is no wording in the Agreement allowing for the provision's application to litigation separate from the dissolution action.

¶11 Provisions set forth in a marital property settlement agreement are enforceable as contract terms. Section 40-4-201(5), MCA. "District courts are bound by attorney fee provisions within marital settlement agreements if the terms of the agreement are clear." In re Marriage of Simpson , 2018 MT 281, ¶ 34, 393 Mont. 340, 430 P.3d 999 (internal citation omitted). The attorney fee provision in the Agreement provides: "In the event of future litigation between the parties to enforce, modify, or interpret any provision of this agreement, the prevailing party shall be entitled to all his or her court costs, including a reasonable attorney's fee." The language of the provision does not limit recovery of attorney fees to future litigation only in the dissolution case. The Standing Master did not err in concluding that the provision applied to any future litigation, as long as the litigation "involve[ed] enforcement, modification or interpretation" of the Agreement. That is what the plain language provides.

¶12 Pam relies on In re Marriage of Simpson , in which the settlement agreement contained language substantively identical to the attorney fee provision at issue in this case. See In re Marriage of Simpson , ¶ 34. The appellant asserted that she was entitled to attorney fees related to a bankruptcy proceeding that her ex-husband filed. The district court denied her request, reasoning that the bankruptcy proceedings were separate proceedings from the dissolution and the bankruptcy judge did not order the ex-husband to pay attorney fees to any creditors, including the appellant. In re Marriage of Simpson , ¶ 35.

¶13 As the Standing Master observed, Count II of Pam's Third-Party Complaint referenced the Agreement directly. Pam alleged that "[a]s a direct result of the fraudulent acts of [Al], [Pam] was fraudulently induced into entering into the indemnification agreement, all to her detriment and damage." Through the Third-Party Complaint, Pam sought to avoid being solely liable for payment to the Deeses for their alleged interest in Great Falls Portables. See Fossen I , ¶ 20 (finding that "[t]hroughout this litigation, Pam framed her indemnity argument as a remedy to Allan's fraud"). Substantively, Pam sought relief from-or modification of-her agreement to "be responsible to the Dees[es] for any obligation which may be owed them in connection with their interest, if any, in Great Falls Portables." Unlike In re Marriage of Simpson , where the bankruptcy proceeding did not require the court to "enforce, modify, or interpret" the agreement in any way, the parties' indemnity agreement specifically referenced the Deeses' claims, and the fee provision reasonably encompassed attorney fees Al incurred in defending Pam's attempt to avoid responsibility for those claims. Because the Third-Party Complaint sought to modify the Agreement's terms, the Standing Master did not err in awarding Al attorney fees pursuant to its plain language.

¶14 2. Whether the District Court abused its discretion in admitting certain evidence to support the calculation of attorney fees and costs.

¶15 The Standing Master held a hearing in March 2015 regarding attorney fees and costs. Allen testified that the fees Al claimed were reasonable. Allen based his opinions on the Standing Master's summary of the litigation history, the briefs filed with this Court in Fossen I , and the billing statements provided by Al's attorneys. Allen had no personal knowledge of the case or of the work described in the billing statements. Over Pam's objection to lack of foundation, the Standing Master admitted a compilation of billing records from Al's attorneys, Barbara Bell, E. Lee LeVeque, and Jason Holden; copies of checks; hand written notes; and invoice listings ("Exhibit A"). It also admitted a summary of attorney fees and costs compiled from Exhibit A by Jason Holden ("Exhibit B"). The attorneys did not testify. The District Court assumed jurisdiction over the case when the Standing Master did not issue a ruling. After reviewing Exhibits A and B and the transcript of Allen's expert testimony, again over Pam's objection, the District Court awarded Al attorney fees and costs in the amount of $ 45,894. Pam argues that there was no foundation for the exhibits or for the calculation because the attorneys involved in the matter did not file affidavits or testify regarding their billable ledgers, and it was never shown at the hearing that each billable amount was accounted for. Al responds that Exhibit A was authenticated by a "witness with knowledge" and admissible pursuant to M. R. Evid. 901(b)(1), and that Exhibit B was admissible as a summary pursuant to M. R. Evid. 1006.

¶16 Like any other award, an award of attorney fees must be based on competent evidence. Plath v. Schonrock , 2003 MT 21, ¶ 39, 314 Mont. 101, 64 P.3d 984. To be admissible, evidence requires authentication or identification that supports a finding that the matter is what the proponent claims. M. R. Evid. 901(a). Authentication or identification may be accomplished by the testimony of a witness with knowledge that a matter is what it is claimed to be. M. R. Evid. 901(b)(1). Firsthand knowledge that a document is what it is purported to be is sufficient for its introduction and admissibility under M. R. Evid. 901(b)(1). State v. Sullivan , 182 Mont. 66, 72, 595 P.2d 372, 376 (1979) ; see also Smith v. Burlington N. & Santa Fe Ry. , 2008 MT 225, ¶ 52, 344 Mont. 278, 187 P.3d 639 (discussing that none of the affiants could authenticate a document pursuant to Rule 901(b)(1) because none could testify "to the genuineness and authenticity"). To support a claim for attorney fees, there "must be some type of proof of amount and reasonableness introduced into the record by counsel." In re Marriage of Mease , 2004 MT 59, ¶ 58, 320 Mont. 229, 92 P.3d 1148.

¶17 Al's only witness at the hearing on fees was his expert Allen, a lawyer with considerable experience, who testified to the reasonableness of the fees claimed. Allen had no personal knowledge of the truth or accuracy of the written statements of hourly charges for the attorney fees in this case. When asked if he could look through the bills and tell the court what the attorney did, Allen responded, "No, I can tell what the attorney described, and understand what he's describing because ... I'm familiar with those kinds of legal services." Allen could not testify to the number of the hours spent on the matter or that the hours billed were devoted to the issue of modifying the Agreement, because he did not have that knowledge. Without personal knowledge of the case, Allen could not testify that Exhibit A was what it purported to be, an accurate representation of hours Al's attorneys billed him in defending against Pam's Third-Party Complaint. Exhibit A therefore was not admissible pursuant to M. R. Evid. 901(b)(1) because Allen lacked personal knowledge to establish that the exhibit was true and accurate.

¶18 Although an expert may rely on inadmissible evidence in formulating an opinion, the expert may not serve as a conduit for the admission of substantive evidence. See Reese v. Stanton , 2015 MT 293, ¶ 22, 381 Mont. 241, 358 P.3d 208 ; Weber v. BNSF Ry. , 2011 MT 223, ¶ 38, 362 Mont. 53, 261 P.3d 984. Allen could rely on the documents in Exhibits A and B to formulate an opinion on the reasonableness of the fees claimed. Without personal knowledge, however, Allen could not testify to the accuracy of the billing records or be cross-examined on their substance.

¶19 For a summary to be admissible under M. R. Evid. 1006, it must meet two requirements: (1) the underlying material upon which the summary is based must be admissible in evidence; and (2) the underlying materials must be made available to the opposing party for inspection. Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc. , 2008 MT 2, ¶ 77, 341 Mont. 33, 174 P.3d 948. The District Court improperly admitted Exhibit B as a summary pursuant to M. R. Evid. 1006 because the underlying material in Exhibit A was inadmissible as it was presented.

¶20 The District Court abused its discretion when it admitted the billing records without adequate foundation, as required by M. R. Evid. 901. Without that foundation, the court erred in relying on the amounts set forth in Exhibit A and Exhibit B to calculate the attorney fees and costs. We reverse and remand for further proceedings to determine the amount of attorney fees and costs upon properly admitted affidavit or testimonial evidence.

¶21 3. Whether the District Court erred in awarding prejudgment interest.

¶22 In September 2010, the Standing Master stayed all motions in the dissolution case pending resolution of the Dees litigation. The parties stipulated to continue to stay the dissolution proceedings pending this Court's decision on Pam's appeal in Fossen I because many or all of the issues raised in the dissolution case would be affected by this Court's decision. Al moved to lift the stay and for attorney fees and costs in November 2013 after this Court affirmed summary judgment on the Third-Party Complaint. In its final order awarding Al his fees and costs, the District Court also awarded Al prejudgment interest in the amount of $ 18,684.93. The District Court found that interest accrued on the $ 20,000 judgment for nine years and 125 days. Pam argues that she was prevented by law from paying any debt during the stay in this case, and prejudgment interest therefore should not have accrued during the stay periods. Pam maintains further that the District Court did not complete its analysis of the requirements to award prejudgment interest pursuant to § 27-1-211, MCA. She maintains that there was no underlying monetary obligation because no set amount was being litigated; that the amount of recovery was not certain or capable of being calculated because the calculations included dates during this case's stay; and that the court did not find that the right to recover vested on a certain date.

¶23 "The primary objective of the prejudgment interest statute is to fully compensate the injured party for the loss of use of his money during the period in which a valid claim was not paid." DeTienne , ¶ 30 (internal citations and quotations omitted). Prejudgment interest is awarded pursuant to § 27-1-211, MCA, when: (1) there is an underlying monetary obligation; (2) the amount of the recovery is certain or capable of being made certain; and (3) the right to recover vests on a particular day. DeTienne , ¶ 30. The award of prejudgment interest is mandatory if the requesting party satisfies the § 27-1-211, MCA, criteria. Kraft v. High Country Motors , Inc. , 2012 MT 83, ¶ 71, 364 Mont. 465, 276 P.3d 908. Section 27-1-211, MCA, provides that interest accrues "except during the time that the debtor is prevented by law ... from paying the debt." Pam argues that the plain language in § 27-1-211, MCA, means that no interest accrued during the stay. But the $ 20,000 payment was for Al's share of the real property and was not tied to the Deeses' claimed interest in the business. Pam has not developed her argument or provided this Court with any support to suggest that during the stay she was prevented by law from paying the sum she agreed to pay. It is not this Court's obligation to conduct legal research on behalf of a party, to speculate a party's precise position, or to develop legal analysis that may lend support to the position. Johnston v. Palmer , 2007 MT 99, ¶ 30, 337 Mont. 101, 158 P.3d 998 ; see also M. R. App. P. 12(g). We decline to address this argument further.

¶24 The District Court correctly awarded prejudgment interest after finding all § 27-1-211, MCA, elements satisfied. An underlying monetary obligation existed because Pam and Al settled in the Agreement that, "The shop is to be sold as soon as possible and from the net proceeds [Al] shall receive $ 20,000.00, with said amount to be secured in the property until sold by a mortgage on the property.

Alternatively, [Pam] may refinance or otherwise pay [Al] for the $ 20,000 and retain ownership of the property." Pam did not sell the property, and she did not pay Al the $ 20,000 obligation until March 2015. The amount of recovery is certain because the parties agreed to the amount of $ 20,000 in the Agreement regardless if the property was sold or refinanced, or if Pam paid Al by other means. The court correctly found that the right to recover vested on November 4, 2003, when the Agreement was entered into because the Agreement became effective upon its filing with the District Court-November 4, 2003. The District Court found that due to the nature of the property, the latest the property should have been sold was November 4, 2005. Pam was credited for that intervening time, and the District Court did not calculate interest for those two years. The District Court therefore did not err in awarding Al prejudgment interest because all the § 27-1-211, MCA, elements were satisfied.

CONCLUSION

¶25 The District Court did not err in awarding Al attorney fees pursuant to the Agreement when Pam's third-party complaint substantively asked the court to modify the Agreement. But it lacked admissible evidence to properly evaluate the amount of Al's claimed attorney fees and costs. We affirm the decision to award fees, but reverse and remand for further proceedings for the District Court to determine the amount of attorney fees and costs. We affirm the District Court's award of prejudgment interest on Pam's $ 20,000 obligation to Al under the Settlement Agreement.

We Concur:

MIKE McGRATH, C.J.

JIM RICE, J.

DIRK M. SANDEFUR, J.

Justice Laurie McKinnon, dissenting.

¶26 I concur with the Court's decision to award Al attorney fees and prejudgment interest, but I dissent from its decision to reverse and remand for further proceedings to determine the amount of fees. The Court errs when it concludes the billing records themselves had to be admitted into evidence in order for the District Court to determine that the fees were reasonable. We have previously avoided establishing a per se rule requiring an attorney to admit billing records to substantiate reasonableness of fees. I would not deviate from our precedent nor limit the trial court's discretion in determining the evidence offered supports that the fees were reasonable.

¶27 Our review of a trial court's decision regarding the reasonableness of attorney fees is limited to whether the court abused its discretion. Here, there was substantial evidence in the record from which the District Court could assess the reasonableness of fees. Al's expert witness, Doug Allen, gave his opinion at the hearing that attorney fees of $ 45,894 were reasonable. Allen based his opinion on his review of the billing statements; the extensive history between the parties and complexity of the litigation; the numerous appellate briefs and litigation before this Court; the large amount of property involved; and the challenges presented when litigating such diverse and wide-ranging claims. Neither Allen's expertise nor the hourly rate he quoted as reasonable were disputed by Pam's counsel, Nathan Hoines.

¶28 In Tacke v. Energy West, Inc. , 2010 MT 39, 355 Mont. 243, 227 P.3d 601, the trial court awarded Tacke's counsel attorney fees despite Tacke's failure to submit into evidence billing records detailing her request. Tacke argued she was not required to file contemporaneous billing records and her evidence-"two affidavits containing a total of seven sentences, expert deposition testimony, and testimony from Tacke's counsel"-was sufficient to carry her burden. Tacke , ¶ 34. The trial court concluded it was familiar with the case and validated the hours requested as reasonable. This Court, after noting the "temp[tation]" to deny attorney fees where billing records have not been maintained and offered to prove fees are reasonable, respected the standard of review and held the trial court "conducted a careful review of the fee issue and we conclude that it exercised conscientious judgment and did not clearly err in approving the fee award." Tacke , ¶¶ 34, 38. We explained that we were "not adopt[ing] a per se rule" requiring admission of contemporaneous billing records, but nonetheless encouraged them to be provided in support of a fee request. Tacke , ¶ 38.

¶29 Here, counsel filed Allen's expert disclosure, which included a sealed envelope containing the billing statements. Hoines objected to admission of the documents based on foundation, although his dispute was not "that the matter in question [was not] what its proponent claim[ed]," M. R. Evid. 901(a) ; that is, that the documents were not the billing statements from the attorneys. Rather, Hoines took issue with time spent on particular assignments. The Standing Master first admitted the billing records as demonstrative exhibits and then, following a portion of Allen's testimony, into evidence. The record reflects the Standing Master concluded Allen's testimony had overcome any objection Hoines made to foundation and the records should be admitted.

¶30 Trial courts are given broad discretion in controlling the admission of evidence. Seltzer v. Morton , 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561. We review evidentiary errors, such as this, for an abuse of discretion. Seltzer , ¶ 65. Here, the Court decides this is error because Allen had no personal knowledge of the records; however, the Standing Master, although aware of the foundational objection, concluded otherwise. Nonetheless, to the extent there was an evidentiary error in admitting the documents, we will not reverse a court's evidentiary ruling for abuse of discretion unless the error constitutes reversible error. Seltzer , ¶ 65. Reversible error occurs when a substantial right of the appellant is affected, or when the challenged evidence affected the outcome of the trial. Seltzer , ¶ 65. Based on this record, I cannot conclude there was reversible error. There was no genuine dispute as to authentication or foundation of the records-Hoines never argued the documents were not the billing records of the various law firms and attorneys. Furthermore, the trial court properly considered evidence of the records through Allen's testimony, as Allen reviewed the records and relied upon them when forming his opinion. Accordingly, even assuming the Standing Master made an evidentiary error and abused her discretion in admitting the records, the error did not affect Pam's substantial rights or the outcome of the hearing. Allen still established the fees charged were reasonable, and he was entitled to consider the records in forming his opinion. No reversible error occurred.

¶31 I also cannot ignore the procedural difficulties this litigation has presented. Two years following the March 10, 2015 hearing, the Standing Master had still not issued an order on reasonableness of fees. Likely as a result of this delay, the District Court, on March 24, 2017, vacated the order referring the matter to the Standing Master to render the decision itself. The District Court reviewed the hearing testimony, exhibits, court records, and the various paths this extensive litigation had traversed. The District Court issued an order on March 20, 2018, finding Al's fee request was reasonable-almost exactly three years after the attorney fees hearing and five years after Al filed his initial request for attorney fees on November 15, 2013. The District Court noted there were two parallel cases: the present case was filed 16 years ago and the related case was filed 14 years ago. Nearly 350 documents had been filed between the two cases. The court observed the issues were far-reaching and included family law, fraud, collateral estoppel, judicial estoppel, unconscionability and enforceability of a contract, motions to compel, and contract law. The court noted one prior appeal this Court decided which affirmed enforceability of the Settlement Agreement and was thus favorable for Al. The amount requested, $ 45,894, represented work of several attorneys from different law firms, two of whom were named partners. The court noted the success counsel had achieved and considered the seven nonexclusive factors this Court requires when determining reasonableness of fees, citing Houden v. Todd , 2014 MT 113, ¶ 37, 375 Mont. 1, 324 P.3d 1157. Notably none of the factors suggest the trial court must admit the attorney's billing records into evidence before making a decision on reasonableness. The District Court's findings of fact and conclusions of law were thorough and addressed all requirements we have imposed on trial courts when deciding issues related to reasonableness of fees. This Court should restrain its urge to "tweak" and "micro-manage" trial courts when a matter is committed to the trial court's discretion. The District Court did not abuse its discretion. ¶32 I cannot, in good conscience and under the procedural circumstances of this case, prolong this litigation any further based on a poorly reasoned "foundational" objection made by Pam's counsel. The Court's decision to remand for error which does not affect Pam's substantial rights or the outcome of the issue will prolong resolution for at least another year or two and likely result in another appeal. The odds are good that this case, originally a family law matter, will be litigated for close to twenty years. There was no dispute that these were the actual billing records of Al's counsel. To the extent there was error in admitting the records, it was not reversible error. More importantly, however, Al met his burden of establishing the reasonableness of fees through Allen's testimony. The District Court issued a well-reasoned opinion supporting its decision, which we should affirm under our discretionary standard of review.

¶33 I would affirm the entire decision of the District Court.

      The Third-Party Complaint is not included in the record for this case; it was included in the record of a separate appeal involving the Dees litigation, Fossen v. Fossen , 2013 MT 299, 372 Mont. 175, 311 P.3d 743 (Fossen I ). We take judicial notice of the Third-Party Complaint and its contents pursuant to M. R. Evid. 201(c).

      Pam's counsel preserved her claim on appeal by objecting to the records for lack of foundation. He argued specifically to the Standing Master that the expert could not testify whether the records were "true and accurate" and that Al's counsel "ha[d]n't testified to them [and] ha[d]n't done an affidavit." Counsel again explained later in the hearing, "my objection is that he never called any of the witnesses to lay a foundation for this billing, you know, or present any affidavit to the Court for any of these billing[s]."

      The Dissent's citation to Tacke v. Energy West, Inc. , 2010 MT 39, 355 Mont. 243, 254, 227 P.3d 601, for the proposition that billing statements need not be admitted to establish a claim for attorney fees is misplaced. Unlike here, though "short on detail", there was affidavit and testimonial evidence in Tacke from the attorney who actually claimed the hours. Tacke , ¶ 34. The point here is lack of personal knowledge of the hours claimed, not whether the records themselves had to be admitted. This is a fundamental rule of evidence that we are unwilling to overlook simply because the case already has dragged on for years.


author: Justice Beth Baker delivered the Opinion of the Court. Justice Jim Rice, dissenting.

text:
    Hunter SIMPKINS and Patrick Gustin, Plaintiffs and Appellees, v. Sharon J. SPECK, Defendant and Appellant.
    DA 18-0504
    Supreme Court of Montana.
    Submitted on Briefs: March 27, 2019 Decided: May 28, 2019
    For Appellant: Burt W. Ward, Jackson, Murdo & Grant, P.C., Helena, Montana
    For Appellees: Mark Lancaster, Shenandoah R. Roath, Luxan & Murfitt, PLLP, Helena, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 Sharon J. Speck appeals an order of the First Judicial District Court, Lewis and Clark County, affirming the Findings of Fact, Conclusions of Law, Order and Judgment of the Lewis and Clark County Justice Court. The Justice Court's order enjoined Speck from feeding birds within 100 feet of her shared property line in the city of Helena with Hunter Simpkins and Patrick Gustin (collectively "Plaintiffs") and prohibited her from maintaining open water during winter months. We restate the issues Speck raises on appeal as follows:

1. Did the Justice Court abuse its discretion in granting injunctive relief on the ground that Speck's feeding of wild birds constituted a nuisance?
2. Was the Justice Court's injunction overly broad?

We affirm in part and reverse and remand in part.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Speck, a local member of the Audubon Society, grew up in what she described as a bird-feeding family and has fed birds in her yard for most of her life. Speck now lives in Helena, and her home sits on a 25-by-125-foot lot. In her yard, Speck planted specific varieties of trees and shrubs to promote a bird-friendly habitat. To attract multiple species of wild birds, Speck utilized a variety of feeds and feeding methods, such as different hanging bird feeders and ground feeding. The feeding she provided changed with the seasons: during winter months, she provided additional feed and maintained a heated bird bath to ensure that wild birds would have an unfrozen source of water.

¶3 Plaintiffs moved in next door to Speck about four or five years before the trial in this case. From the time Plaintiffs first moved in, Gustin observed Speck feed birds in her yard on a regular basis. The birds feeding in Speck's yard congregated on a power line running along the property line and landed in the trees in Plaintiffs' yard. Plaintiffs regularly found bird excrement on their property and on vehicles parked in their driveway, endured bird calls from dawn to dusk, and discovered feathers, dismembered birds, and bird carcasses in their yard. Gustin witnessed pigeons, magpies, and crows coming to and from a large patch of ground along their shared property line where Speck spread feed on the ground.

¶4 Gustin confronted Speck twice in January 2017 about her bird feeding. On or around January 11, 2017, Gustin caught Speck while she was on her way to work to complain about bird carcasses and excrement on his property. Their next encounter about the issue occurred three days later while Speck was spreading bird feed on the ground in her yard. Speck told Gustin that she could not ethically stop feeding the birds at that time because the birds had become habituated to her feedings in winter. After their confrontation, however, Speck attempted to mitigate Gustin's concerns by moving her ground feeding area to the center of her back yard and then to her side yard and by reducing the amount of feed she provided in summer.

¶5 Plaintiffs filed a complaint against Speck in Justice Court on February 9, 2017, alleging trespass, negligence, and nuisance and seeking injunctive relief to prohibit Speck from feeding wild birds within 150 feet of their property. The Justice Court held a bench trial on May 31, 2017. Speck and Gustin testified and provided photographic and video evidence. After the bench trial, the Justice Court determined that Speck had not trespassed onto Plaintiffs' property. It found, however, that Speck was negligent in her bird feeding and caused a nuisance. The court ordered Speck to pay the costs of having Plaintiffs' cars professionally cleaned and enjoined her from feeding birds within 100 feet of Plaintiffs' property and from maintaining open water during winter months. Speck appealed to the District Court, which affirmed the Justice Court's judgment.

STANDARDS OF REVIEW

¶6 We review an appeal from a justice court as if the appeal originally had been filed in this Court. Stanley v. Lemire , 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643.

¶7 We review a finding of fact for clear error. Stanley , ¶ 26. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been committed. In re Eldorado Coop Canal Co. , 2016 MT 94, ¶ 17, 383 Mont. 205, 369 P.3d 1034.

¶8 We review the granting of a permanent injunction for a manifest abuse of discretion. Shammel v. Canyon Res. Corp. , 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912.

DISCUSSION

¶9 1. Did the Justice Court abuse its discretion in granting injunctive relief on the ground that Speck's feeding of wild birds constituted a nuisance?

¶10 Speck first challenges four of the Justice Court's factual findings as clearly erroneous. Specifically, Speck challenges the Justice Court's findings that she "provided food for several birds, including pigeons, crows, and magpies, in her back yard for a significant amount of time," that she "has stated ... she will not stop feeding the birds in her customary manner," that her feeding damaged Plaintiffs' soil, and that her feedings caused an "uncommonly large amount of bird droppings" to accumulate on Plaintiffs' property.

¶11 Our review of a Justice Court's factual findings is limited to determining whether the Justice Court committed clear error. Stanley , ¶ 26. Speck testified that she uses hanging bird feeders and spreads bird feed on the ground to attract multiple species of wild birds. She does not strive to feed pigeons, but does like Eurasian collared doves. She testified that the different feeding methods attract different species of birds. Speck testified that on or around January 11, 2017, was the first time Gustin approached her about dead birds, bird parts, and excessive droppings on his property. Gustin filmed their next interaction three days later, and the Justice Court admitted the video into evidence. In the video, Speck tells Gustin that she cannot stop feeding the birds in winter, because it would be unethical to do so. She testified, however, that after Gustin confronted her she adjusted her bird feedings by moving her ground feeding to the center of her backyard and her side yard, rather than along the back of her property line under the caragana bushes and ash tree. She further testified that she substantially decreased the amount of feed she provides in summer.

¶12 Gustin testified that he sees Speck feed the birds a couple of times a day using bird feeders and spreading feed on the ground. He testified that because of Speck's feedings there are bird droppings on his property, driveway, and vehicles, that there is noise from dawn to dusk, and that there are feathers, dead birds, and dismembered birds in his yard. Gustin provided photographs and videos that the Justice Court admitted into evidence showing the number of birds congregating on the power line along the shared property line after Speck fed birds on the ground in her backyard and showing the bird droppings and feathers on his vehicles and property.

¶13 Based on the testimony and evidence presented to the court, we do not find clear error in the Justice Court's findings that Speck fed birds, causing droppings and feathers to accumulate on Plaintiffs' property. Further, in the videotaped interaction between Speck and Gustin, Speck said she would not stop feeding the birds because it would be unethical to do so in winter, supporting the Justice Court's finding that "Speck has stated ... she will not stop feeding the birds in her customary manner." Her testimony, nonetheless, established that she attempted to adjust her feedings to address the issues Gustin raised with her. Although the Justice Court's finding took Speck's statements out of context, Gustin's testimony and video evidence, including evidence filmed three months after their January confrontations, show that Speck's efforts largely were ineffective at reducing the number of unwanted bird species congregating on and near Plaintiffs' property. We do agree with Speck, however, that substantial evidence did not support the finding that Plaintiffs' soil was damaged.

¶14 Speck argues that the evidence presented to the court did not support its ruling that she acted negligently and created a nuisance. Speck maintains that bird feeding is a lawful activity and that Plaintiffs did not provide evidence that she fed birds negligently. Rather, the evidence showed that she used commercially available bird feeders and feed and engaged in bird feeding practices similar to those employed by other similarly situated persons in the local bird feeding community.

¶15 We review conclusions of law for correctness. Stanley , ¶ 26. Section 27-30-101(1), MCA, defines nuisance as "[a]nything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." When considering what constitutes interference with a property owner's comfortable enjoyment of his or her property, "it is the ordinary and reasonable person's complaint that should serve as a basis for what is a nuisance." Kasala v. Kalispell Pee Wee Baseball League , 151 Mont. 109, 114, 439 P.2d 65, 68 (1968). "A nuisance action may be based upon conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous." Barnes v. City of Thompson Falls , 1999 MT 77, ¶ 16, 294 Mont. 76, 979 P.2d 1275. An action may "become[ ] a nuisance by virtue of circumstances and surroundings." Barnes , ¶ 17. A nuisance based on negligent conduct "consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another." Barnes , ¶ 18. "A negligence action has four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages." Henricksen v. State , 2004 MT 20, ¶ 20, 319 Mont. 307, 84 P.3d 38. All persons have a general duty of care "to abstain from injuring the person or property of another or infringing upon any of another person's rights." Section 28-1-201, MCA.

¶16 The Justice Court found that Speck created and maintained a nuisance and that she was negligent in the manner in which she fed birds in her yard. Speck protests that bird feeding is legal and that her feeding practices are similar to those used by other members of the local bird feeding community. But an action that is otherwise lawful may create a nuisance depending on the circumstances and surroundings. Barnes , ¶ 17. Evidence showed that a power line runs along the parties' property line upon which birds that ground feed in Speck's yard gather. Further, Gustin testified that the trees on his property are much larger than those in Speck's yard and that the birds land in the trees on his property coming to and from Speck's yard. Although the manner in which Speck feeds birds may not be negligent or a nuisance in different surroundings, the evidence supported the Justice Court's conclusion that the manner of feeding was negligent and created a nuisance under these circumstances. The court did not manifestly abuse its discretion in deciding to issue injunctive relief on this basis.

¶17 2. Was the Justice Court's injunction overly broad?

¶18 Finally, Speck argues that the Justice Court's injunction went too far. She argues that the current injunction is not narrowly tailored to Plaintiffs' complaint and unnecessarily and substantially limits Speck's reasonable use of her own backyard. She suggests that prohibiting ground feeding rather than bird feeding of all types would be more equitable.

¶19 "An injunction is an equitable remedy," and it must be "fashioned according to the circumstances of a particular case." Talley v. Flathead Valley Cmty. Coll. , 259 Mont. 479, 491, 857 P.2d 701, 708 (1993) ; see also City of New York v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 144 (2d Cir. 2011) ("Although a district court has a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct, it is nonetheless the essence of equity jurisdiction that a court is only empowered to grant relief no broader than necessary to cure the effects of the harm caused by the violation." (internal quotations omitted)). "The primary objection to broad injunctive orders is the fear that they will impose unnecessary restraints on individual freedom and prohibit lawful and socially desirable activity." 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure , § 2955, 370 (3d ed. 2013); see also 42 Am. Jur. 2d Injunctions § 261 ("An injunction should not ... impose unnecessary burdens on lawful activity."). Thus, because injunctive relief must be "fashioned according to the circumstances of a particular case," an overbroad injunction is an abuse of discretion. See Talley , 259 Mont. at 491, 857 P.2d at 708.

¶20 We have explained that "if a nuisance is private and arises out of the particular manner of the operation of a legitimate enterprise the court should [do] no more than to point to the nuisance and decree methods of adoption calculated to eliminate the injurious features." Kasala , 151 Mont. at 116, 439 P.2d at 69 ; see also 58 Am. Jur. 2d Nuisances § 299 ("[A trial court] should not enjoin more than that which constitutes the nuisance, should not go beyond the necessities and requirements of the particular case, and should go no further than is absolutely necessary to protect the rights of the parties seeking the injunction." (footnotes omitted)). We have recognized that there is an "overriding policy of individual expression in free and reasonable land use." Higdem v. Whitham , 167 Mont. 201, 208-09, 536 P.2d 1185, 1189 (1975). Thus, while "equity may so decree" the complete abatement of an activity, when it is "possible to [ ] eliminate[ ] the objectionable features which were alleged to have infringed upon the ordinary rights of the respondents" without complete abatement, the court must tailor its injunction to do so. Kasala , 151 Mont. at 116, 439 P.2d at 69.

¶21 The evidence presented before the Justice Court showed that the birds creating the nuisance are those congregating on the power line while feeding on the ground in Speck's backyard, such as pigeons, magpies, and crows. Further, Speck testified that an unfrozen water source during the winter attracts the most birds. Given the evidence presented before the Justice Court, the injunction prohibiting all bird feeding within 100 feet of Plaintiffs' property, including hanging feeders that attract non-nuisance varieties like songbirds, was an overly broad prohibition against Speck's use and enjoyment of her own property and constitutes a manifest abuse of discretion. Based on the evidence in the record, an injunction "calculated to eliminate the injurious features" of Speck's bird feeding would have prohibited Speck from engaging in ground feeding and from providing an unfrozen source of water during winter months. See Kasala , 151 Mont. at 116, 439 P.2d at 69. Prohibiting all feeding was unnecessarily burdensome to Speck's reasonable enjoyment of her property and overly broad. Under the Justice Court's order, Speck could not even hang a hummingbird feeder in her own backyard. We reverse the Justice Court's injunction and remand with instructions to fashion appropriate injunctive relief in light of this Opinion.

CONCLUSION

¶22 The Justice Court did not manifestly abuse its discretion in ordering injunctive relief, but the relief it ordered was overly broad and an abuse of discretion. We affirm the District Court in part and reverse in part. The District Court is directed to enter an order remanding the case to the Justice Court to modify the injunction in accordance with this Opinion.

We Concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

Justice Jim Rice, dissenting.

¶23 I dissent from the Court's decision to reverse the Justice Court's injunction and remand this matter for further proceedings. The Court acknowledges we review the grant or denial of a preliminary injunction for manifest abuse of discretion, and that "[a] 'manifest' abuse of discretion is one that is obvious, evident or unmistakable." Shammel , ¶ 12 ; Opinion, ¶ 8. However, the Court then, in my view, disregards these standards of review and second-guesses the trial court. Because "[t]he grant or denial of permanent or preliminary injunctive relief is highly discretionary and critically dependent on the particular facts, circumstances, and equities of each case," trial courts are given "broad discretion" in these determinations. Davis v. Westphal , 2017 MT 276, ¶¶ 23-24, 389 Mont. 251, 405 P.3d 73.

¶24 Citing Kasala , the Court concludes that because it was "possible to eliminate the objectional features" of Speck's bird feeding habits "without complete abatement," then it was error for the Justice Court to not do so. Opinion, ¶ 20 (emphasis added). However, to the contrary, the Justice Court did not order a complete abatement as in Kasala . There, the trial court enjoined the Kalispell Pee Wee Baseball League from using the public playground for baseball and ordered the removal of all baseball paraphernalia from the playground including backstops and light poles. Kasala , 151 Mont. at 110, 439 P.2d at 66. We held the trial court erred by ordering "the abatement of the use of the baseball field" because it was possible for the court to eliminate the objectionable features of the baseball league, as alleged by the plaintiff, without eliminating all baseball from the playground. Kasala , 151 Mont. at 116, 439 P.2d at 69.

¶25 Unlike the trial court in Kasala , the Justice Court did not prohibit all bird feeding by Speck, but imposed a restriction on "feeding birds within 100 feet of Simpkins' property." The record provides substantial evidence to support the Justice Court's order. Speck testified her property is 125 feet across. The Justice Court was aware of the Defendant's lot size when issuing its 100-foot restriction, and did not prohibit all feeding on Speck's property but merely limited it to one side. The court heard testimony from Mr. Gustin that bird droppings, feathers, body parts, and bird food were discovered on the West, North, and South sides of the Plaintiffs' property-not just on the parties' shared fence line. Despite Speck's asserted 50% reduction in the amount of ground feed she was providing the birds, and feeding birds a further distance from Plaintiffs' property, the court had ample evidence to conclude these remedial measures had not worked. During the parties' January 14, 2017 conversation, Speck expressed a belief she has an ethical duty to feed the birds in the wintertime and conveyed a refusal to alter her patterns. In fact, it was Speck who offered that litigation was the only way to solve the parties' differences. Speck testified to the efforts she has undertaken to attract birds to her property, admitted that more birds come to her house during the cold months than otherwise would naturally be there because of her feeding and watering, and acknowledged she can feed birds in the front and on the side of her house away from Plaintiffs' property. Speck insisted that the number of birds significantly decreases after the winter. However, by April 2017, four months after Speck claims to have mitigated the detrimental effects of her bird feeding, video evidence demonstrated that despite the spring weather conditions and no snow, a vast number of birds remained on the parties' properties, perching on the powerlines, walking on the roof, and flying over the Plaintiffs' driveway in what can only be described as flocks.

¶26 There is sufficient evidence to support the Justice Court's permanent injunction, as necessary and proper, based on its determination that damages resulting from Speck's conduct would continue and be "extremely difficult to quantify or ascertain." It is not obvious, evident or unmistakable that the Justice Court abused its discretion by enjoining Speck's use of open water during the winter months and restricting her bird feeding to areas on her lot further away from Plaintiffs' property. This matter was tried by the Justice Court and reviewed by the District Court. It should here be concluded. By reversing and remanding "with instructions to fashion appropriate injunctive relief," Opinion, ¶ 21, the Court not only usurps the broad discretion of the trial court, but needlessly prolongs this matter and imposes unnecessary further costs upon the parties.

¶27 I would affirm.

Justice Dirk Sandefur and Justice Laurie McKinnon join the dissenting Opinion of Justice Rice.