City owes $337K in damages, costs to South Avenue property owners

Missoulian article from March 7, 2014

The city of Missoula owes a total $337,671.78 in damages and costs to property owners who lost land during the South Avenue reconstruction and won a lawsuit against the municipality in the Montana Supreme Court, according to a judgment this week from Missoula County District Court.

“The attorneys’ fees in this case, because of the way the city handled it, are in fact higher than what the damage award is,” said Thomas Orr, lawyer for the plaintiffs. “They’re nearly $200,000.”

The March 5 ruling orders the city to pay for “reasonable attorneys’ fees, expert witness costs and costs of the suit.” In the order, the District Court found the city owed additional attorneys’ fees of $33,406.11 and other costs of $1,697.37, all expenses incurred by the plaintiffs defending the judgment on appeal; in the earlier appeal, the Supreme Court had affirmed $115,352 for lawyers, $25,132 for expert witnesses, and $4,910 in other fees.

“Plaintiffs are the prevailing party on appeal under the authority of (the Montana Constitution), and the Plaintiffs are constitutionally entitled to their costs and attorney’s fees incurred on appeal as a necessary expense of litigation to defend their constitutional rights against the city’s appeal,” reads the order by District Judge Ed Mclean.

The city will determine how to pay the costs when it knows the total due and the deadline, said city communications director Ginny Merriam. She said a discussion among Mayor John Engen, the chief administrative officer, and the lawyer on the case will determine whether to contest the $33,406.11 judgment.

“We do not know yet if we will appeal,” Merriam said.

In the lawsuit, property owners sued the city for taking their land to rebuild part of South Avenue east of Reserve Street. On paper, old plats showed the distance between road centerlines to be consistent, but on the ground the distance actually varied. South Avenue wasn’t a standard 60 feet.

The city argued the excess land belonged in the public right-of-way, but plaintiffs argued it belonged to them and the city had unlawfully taken their property despite multiple warnings. The courts agreed with the plaintiffs.

“I see it as incredible arrogance on the part of the city officials,” said lead plaintiff Glen Wohl. “They just felt that the plaintiffs would go away. They definitely feel if you violate a few people’s constitutional rights for the public good, that that’s OK.”

In the recent judgment, the judge also noted the total damages awarded to 17 plaintiffs. The total damages to landowners amount to $157,174.30.

“The parties have agreed to use the sum of $15.41 per square foot as the measure of damages for the Defendant City’s seizure, trespass and encroachment of public improvements upon the Plaintiff’s lands for which the Defendant City shall thereupon have an encroachment easement for public use,” reads the ruling.

Reporter Keila Szpaller can be reached at @KeilaSzpaller, 523-5262, or on