Simpkins v. Speck

2021 MT 237N, 494 P.3d 899

Opinion

09/14/2021

DA 21-0147 Case Number: DA 21-0147

IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 237N

HUNTER SIMPKINS and PATRICK GUSTIN,

Plaintiffs and Appellees,

v. FILED SHARON J. SPECK, SEP 14 2029 Defendant and Appellant. Bowen Greenwood Clerk of Supreme Court State of Montana

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV-2017-569 Honorable Christopher D. Abbott, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Burt W. Ward, Jackson, Murdo & Grant, P.C., Helena, Montana

For Appellees:

Mark Lancaster, Element Law Group, PLLC, Helena, Montana

Submitted on Briefs: August 25, 2021

Decided: September 14, 2021

Filed:

Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 In Simpkins v. Speck, 2019 MT 120, 395 Mont. 509, 443 P.3d 428 ("Simpkins 1"),

we affirmed the Justice Court's finding that Sharon Speck's manner of feeding birds on

her property caused a nuisance, but we reversed as overly broad the court's injunction

prohibiting Speck from all bird feeding within one hundred feet of Hunter Simpkins and

Patrick Gustin's property. Simpkins I,¶¶ 16, 21. The record showed that the birds causing

the nuisance were attracted by ground feeding and Speck's unfrozen water source during

the winter, and the injunction thus did not need to include hanging feeders that attracted

non-nuisance varieties of birds. Simpkins I, ¶ 21.

¶3 On remand, the Justice Court issued an order clarifying the injunction, which Speck

appealed to the District Court. The District Court agreed with her in part, finding that

"the order is not completely clear as to how its various provisions interrelate." Pursuant to

§ 3-10-115(3), MCA—allowing a reviewing court in such a case to "direct the proper order

or judgrnent to be entered"—the District Court clarified that Speck would be enjoined from

the following:

1. Speck is prohibited from all ground feeding of birds on her property year-round; 2 2. Speck is prohibited from providing open water for birds during the winter rnonths, beginning with the first day of winter, through the first day of spring of each calendar year; 3. Speck is prohibited from any feeding, including hanging any bird feeders, that attracts magpies, pigeons, crows, ravens, doves, or other larger birds, within 100 feet from Plaintiffs' property; and 4. Speck may hang bird feeders attracting hummingbirds, songbirds, and other srnall birds wherever she deerns appropriate in her yard.

¶4 We review for a manifest abuse of discretion the scope of a district court's order for

permanent injunctive relief. Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 12,

319 Mont. 132, 82 P.3d 912 (a manifest abuse of discretion is one that is obvious, evident,

or unmistakable). Speck argues on appeal that the District Court abused its discretion by

"issu[ing] injunctive relief that broadly expanded the scope of this Court's ruling to include

Ms. Speck's front yard, which was not originally found to be a part of the nuisance[.]"

¶5 "The trial court should examine the mandate and the opinion of the reviewing court

and proceed in conformity with the views expressed therein." Zavarelli v. Might,

239 Mont. 120, 126, 779 P.2d 489, 493 (1989). We remanded in Simpkins I for an

injunction that inore narrowly addressed the conduct causing the nuisance. Simpkins I,

41121. The District Court's order narrowly and specifically addresses this conduct by

allowing bird feeders that attract non-nuisance varieties of birds, liiniting feeders that

attract larger varieties of birds within a reasonable distance of Simpkins and Gustin's

property, and prohibiting the feeders and water sources that were found to largely cause

the nuisance. The order is not "broader than necessary to cure the effects of the harrn

caused by the violation." Simpkins, ¶ 19 (citations omitted).

3 ¶6 We have deterrnined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for mernorandum opinions. The issue on appeal

is resolved by the clear application of the governing standard of review. The

District Court's final order was not a rnanifest abuse of discretion, and we accordingly

affirm.

/ -2-g-- Justic

We Concur:

Chief Justice

S24 Justices