DeALMEIDA, P.J.T.C.
The issue before the court is whether R. 4:50-1 vests this court with jurisdiction to vacate a Certificate of Debt issued against a taxpayer by the Director, Division of Taxation pursuant to N.J.S.A. 54:49-12. For the reasons stated more fully below, the court concludes that a taxpayer may not use R. 4:50-1 as a vehicle for challenging the validity of a Certificate of Debt issued by the Director. Plaintiffs complaint, therefore, is dismissed for lack of jurisdiction.
I. Findings of Fact and Procedural History
The material facts are not in dispute. Plaintiff Millwork Installation, t/a Midwest Installation, is an Illinois corporation with a principal place of business in Evergreen Park, Illinois. In 2003, plaintiff installed finished carpentry and millwork at the Borgata hotel casino in Atlantic City and at the Short Hills Mall in Short Hills. Plaintiff billed $215,259 for the work at the hotel casino and $17,238.95 for the work at the mall. In neither instance did plaintiff collect sales tax for its services. Nor did plaintiff file corporation business tax returns for 2003.
On March 11, 2005, a representative of the Division of Taxation sent plaintiff a nexus survey posing several questions regarding the company's contacts with New Jersey. No response was forthcoming. A follow up survey was sent to plaintiff on June 24, 2005. Plaintiff responded to that inquiry.
On October 18, 2005, a representative of the Director sent plaintiff a proposed determination that plaintiff was doing business in this State within the meaning of the Corporation Business Tax Act by virtue of plaintiffs having performed services in the State. The proposed determination demanded that plaintiff file corporation business tax returns for tax years 2003 and 2004 and sales and use tax returns for all periods commencing January 1, 2003. The proposed determination did not contain an assessment of either tax because plaintiff had yet to file returns for the relevant periods.
Having received no response to the October 18, 2005, proposed determination, a representative of the Director on February 21, 2006, sent to plaintiff a Formal Notice of its obligation to file both corporation business tax and sales and use tax returns for all periods commencing January 1, 2003. No assessment of either tax was contained in the February 21, 2006, Formal Notice because plaintiff had yet to file returns for the relevant periods.
The February 21, 2006, Formal Notice included an explanation of plaintiffs appeal rights, including plaintiffs right to request an administrative hearing at the Division of Taxation and its right to file an appeal with this court. The Formal Notice stated that if no protest was filed within the prescribed time period, collection proceedings would be initiated. This notice was mailed to plaintiff two more times, on March 17, 2006 and April 25, 2006, because of a change in address. Plaintiff did not file either an administrative or judicial appeal.
On July 13, 2006, the Division issued a Notice of Assessment and Demand for Payment indicating that plaintiff had been assessed $17,985 in corporation business tax and $71,940 in sales and use tax for the period 2003 through 2005. In light of the fact that plaintiff did not respond to the prior notices, the assessments were based on estimates by a Division employee. The July 13, 2006, Notice and Demand informed plaintiff of its right to request an administrative appeal or to file an action with this court. A return receipt card confirms delivery of this Notice and Demand to plaintiff, a fact acknowledged in the Complaint.
On January 16, 2007, plaintiff was advised by the Division that no response had been received from plaintiff to the July 13, 2006 Notice and Demand, that the period in which to file an administrative or judicial appeal had expired, and that the matter had been forwarded to the Division's Judgment Section for final disposition.
On June 22, 2007, the Division issued a second Notice and Demand for Payment of Tax to plaintiff. The Notice and Demand assessed $17,985 in corporation business tax and $71,940 in sales and use tax against plaintiff. The Notice and Demand plainly stated that a failure to pay the taxes within 30 days would result in the entry of a Certificate of Debt against plaintiff.
Plaintiff did not respond to the June 22, 2007, Notice and Demand. As a result, on August 16, 2007, the Director issued a Certificate of Debt against plaintiff pursuant to N.J.S.A. 54:49-12 assessing $17,985 in corporation business tax and $71,940 in sales and use tax against plaintiff. The Clerk of the Superior Court entered the information contained in the Certificate of Debt in the Clerk's record of docketed judgments.
On April 15, 2009, a Deputy Attorney General wrote to plaintiff demanding payment on the Certificate of Debt. On June 19, 2009, plaintiff paid its outstanding corporation business tax liability. The sales and use tax assessment, plus interest, memorialized in the August 16, 2007, Certificate of Debt remains outstanding.
On July 24, 2009, a little more than two years after issuance of the Certificate of Debt, plaintiff filed an Order to Show Cause in the Superior Court, Law Division, seeking pursuant to R. 4:50-1 to vacate the Certificate of Debt as it relates to the sales and use tax assessment. The Hon. Thomas W. Sumners, J.S.C., denied the motion after concluding that the Certificate of Debt does not constitute a judgment for purposes of R. 4:50-1. Judge Sumners indicated that his order did not preclude the Tax Court from resolving plaintiffs claims should an action be brought in this court.
On October 14, 2009, plaintiff filed a Complaint in this court seeking pursuant to R. 4:50-1 an Order vacating the Certificate of Debt as it relates to the sales and use tax assessment. Plaintiff contends that "although ultimately in error in not retaining counsel at an earlier stage," it was in frequent contact with representatives of the Division during the relevant periods and was under the impression that its tax liabilities would be resolved through negotiations. In addition, plaintiff contends that the work that it performed in New Jersey was not subject to sales tax because it constituted a capital improvement to real property. See N.J.S.A. 54:32B-3(b)(4).
On February 25, 2010, plaintiff filed a motion to vacate the Certificate of Debt as it relates to the sales and use tax assessment. The Director cross-moved for dismissal of the Complaint for lack of jurisdiction.
II. Conclusions of Law
As our Supreme Court recently reiterated, the "Tax Court is vested with limited jurisdiction" defined by statute. McMahon v. City of Newark, 195 N.J. 526, 546, 951 A.2d 185 (2008). The statutory scheme establishing this court's jurisdiction is "one with which continuing strict and unerring compliance must be observed. . . ." Id. at 543, 951 A.2d 185. This court's jurisdiction to review assessments by the Director regarding a State tax is clearly defined: "[A]ll complaints shall be filed within 90 days after the date of the action sought to be reviewed." N.J.S.A. 54:51A-14. The 90-day period is also stated in R. 8:4-1(b), which provides that "Complaints seeking to review actions of the Director of the Division of Taxation . . . with respect to a tax matter . . . shall be filed within 90 days after the date of the action to be reviewed." Careful compliance with these rules is necessary to establish jurisdiction in this court. "Failure to file a timely appeal is a fatal jurisdictional defect." F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 425, 495 A.2d 1313 (1985). A Complaint that is even one day late must be dismissed for lack of jurisdiction. Mayfair Holding Corp. v. Township of North Bergen, 4 N.J.Tax 38 (Tax 1982); Prospect Hill Apartments v. Borough of Flemington, 172 N.J.Super. 245, 1 N.J.Tax 224, 411 A.2d 737 (Tax 1979).
Adherence to statutory filing deadlines is of particular concern in tax matters, given "the exigencies of taxation and the administration of . . . government." F.M.C. Stores, supra, 100 N.J. at 424, 495 A.2d 1313 (citing Princeton Univ. Press v. Borough of Princeton, 35 N.J. 209, 214, 172 A.2d 420 (1961)); see also Bonanno v. Director, Div. of Taxation, 12 N.J.Tax 552, 556 (Tax 1992). A failure to file a timely Complaint divests this court of jurisdiction even in the absence of harm to the taxing authority. Lawrenceville Garden Apartments v. Township of Lawrence, 14 N.J.Tax 285 (App.Div. 1994). Once the filing deadline has passed, the Director is entitled to assume that his determination is final and no longer subject to review. Commercial Refrigeration Fixture Co. v. Director, Div. of Taxation, 184 N.J.Super. 387, 2 N.J.Tax 415, 419, 446 A.2d 210 (Tax 1981). These rules allow for the effective administration of the State's finances by removing doubt as to the validity of fixed and final tax assessments.
Here, the Director's assessment of sales and use tax against plaintiff became final 90 days after the July 13, 2006, Notice of Assessment and Demand for Payment. N.J.S.A. 54:51A-14. Plaintiff did not file either an administrative appeal or an action in this court within the time for challenging the Director's assessment of sales and use tax. Plaintiff did not initiate an action in this court until October 14, 2009, more than three years after issuance of the July 13, 2006, Notice and Demand. By that time, the period in which to invoke the court's jurisdiction to review the Director's assessment had long since expired.
The Director's issuance of a Certificate of Debt did not create a new ninety-day appeal period for challenging the assessment of sales and use tax. The Director's authority to issue a Certificate of Debt and have information from that Certificate of Debt entered in the record of docketed judgments by the Superior Court Clerk is established in N.J.S.A. 54:49-12. That statute states:
As an additional remedy, the Director of the Division of Taxation may issue a certificate to the Clerk of the Superior Court that any person is indebted under such State tax law in such an amount as shall be stated in the certificate. The certificate shall contain a short name of the tax under which the said indebtedness arises. Thereupon the clerk to whom such certificate shall have been issued shall immediately enter upon his record of docketed judgments the name of such person, and of the State, the address of the place of business where such tax liability was incurred, if shown in the certificate, the amount of the debt so certified, a short name of the tax, and the date of making such entries. The making of the entries shall have the same force and effect as the entry of a docketed judgment in the office of such clerk, and the director shall have all the remedies and may take all of the proceedings for the collection thereof which may be had or taken upon the recovery of a judgment in an action, but without prejudice to the taxpayer's right of appeal.
[
N.J.S.A. 54:49-12.]
This court has long held that the filing of a Certificate of Debt does not initiate a new ninety-day period for filing a Complaint in this court. In C.J. Kowasaki, Inc. v. Director, Div. of Taxation, 13 N.J.Tax 160 (Tax 1993), the taxpayers filed a Complaint in this court challenging the assessment of sales and use tax reflected in a Certificate of Debt filed by the Director. The taxpayers contended that the issuance of the Certificate of Debt triggered a new ninety-day appeal period for initiating an action in this court to challenge the assessment reflected in the Certificate of Debt. Judge Rimm squarely rejected this argument: "[o]f the many cases dealing with [Certificates of Debt], not one supports plaintiffs' position." Id. at 164. "The statutory scheme relating to the imposition of state tax liability differentiates between tax liability and collection of taxes." Id. at 165. The court explained that N.J.S.A. 54:32B-19 allows the Director to impose assessments of sales and use tax. N.J.S.A. 54:32B-21 defines the procedure for initiating judicial review of such an assessment. The statute provides:
(a) Appeal to tax court. Any aggrieved taxpayer may, within 90 days after any decision, order, finding, assessment or action of the Director of Taxation made pursuant to the provisions of this act, appeal therefrom to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, R.S. 54:48-1 et seq.
(b) Appeal exclusive remedy of taxpayer. The appeal provided by this section shall be the exclusive remedy available to any taxpayer for review of a decision of the director in respect of the determination of the liability of the taxpayer for the taxes imposed by this act.
As noted above, the State Tax Uniform Procedure Law establishes a 90-day period for filing a Complaint in this court. N.J.S.A. 54-.51A-14. This time limit is reflected in R. 8:4-1(b).
N.J.S.A. 54:49-12, on the other hand, provides "an additional remedy" to assist the Director in the collection of taxes due. As Judge Rimm succinctly held,
Plaintiffs completely misconstrue the nature and purpose of a [Certificate of Debt]. It is a device for collecting taxes, not an independent determination of tax liability. It has no meaning except as it relates to an already ascertained tax liability. Its purpose is to give the Director a tool for imposing a lien on a delinquent taxpayer's property. It is not the basis for a dispute as to tax liability.[
Id. at 169.]
This understanding of the significance of a Certificate of Debt is reflected in R. 8:3-5(b)(2). That Rule provides that
A complaint by a taxpayer seeking review of a Certificate of Debt shall have attached thereto, where available, copies of the Certificate of Debt and the underlying tax assessment. The complaint shall state whether the issuance of the Certificate of Debt or the underlying tax assessment is being challenged. A challenge to the tax assessment may be reviewed only if the applicable period for filing a complaint to challenge this assessment had not previously expired.
[
R. 8:3-5(b)(2).]
Thus, "if the applicable period for challenging the underlying assessment has expired, the taxpayer may attack a [Certificate of Debt] in the Tax Court only on procedural grounds, because, for example, the amount in the [Certificate of Debt] differs from the amount in the underlying assessment or because the wrong party is named in the [Certificate of Debt]." Kowasaki supra, 13 N.J.Tax at 171.
Plaintiff argues that the holding in Kowasaki notwithstanding, R. 4:50-1, which provides an avenue for relief from a final judgment or order of a court in certain circumstances, allows this court to vacate a Certificate of Debt if a taxpayer files a Complaint seeking such relief within a "reasonable time" of issuance of the Certificate of Debt. See R. 4:50-2.
Rule 4:50-1 provides:
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment
or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief for the operation of the judgment or order.
Motions under R. 4:50-1 "shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order of proceeding was entered or taken." R. 4:50-2.
Plaintiffs argument misconstrues R. 4:50-1 and contradicts the statutes and court rules that strictly circumscribe this court's jurisdiction. Our courts have consistently construed R. 4:50-1 to apply only to judgments entered by a New Jersey court. See Sonntag Reporting Serv., Ltd. v. Ciccarelli, 374 N.J.Super. 533, 538-39, 865 A.2d 747 (App.Div. 2005). "This rule provides a mechanism for direct attack on a judgment or order entered by a court of this state." Id. at 539, 865 A.2d 747 (quoting Hon. Sylvia B. Pressler, P.J.A.D., Current N.J. Court Rules, comment 1 on R. 4:50-1 (2005)). " R. 4:50 applies only to final judgments and orders adjudicating all claims as to all parties." Lawler v. Isaac, 249 N.J.Super. 11, 16, 592 A.2d 1 (App.Div. 1991). The rule is intended to provide relief from litigation errors "that a party could not have protected against" during the suit that resulted in the judgment sought to be vacated. DEG, LLC v. Township of Fairfield, 198 N.J. 242, 263, 966 A.2d 1036 (2009) (quotations omitted).
A Certificate of Debt issued by the Director is not a judgment entered by a court. It is a debt collection tool to enforce a fixed and final assessment of taxes by an Executive Branch official. Kowasaki, 13 N.J.Tax at 164-66; see also New York, Susquehanna and Western R.R. v. Vermeulen, 44 N.J. 491, 210 A.2d 214 (1965). A Certificate of Debt is issued after a taxpayer's liability has been determined in order to create a lien on the taxpayer's property and thereby facilitate the Director's collection of the debt. A judgment, on the other hand, is entered by a court with jurisdiction to resolve a dispute between parties with competing legal claims. Entry of the information on the Certificate of Debt in the record of docketed judgments of the Superior Court Clerk does not transform the Certificate of Debt into an adjudication of claims by a court. N.J.S.A. 54:49-12 provides that the "making of the entries" of information from the Certificate of Debt onto the docket of judgments has "the same force and effect as the entry of a docketed judgment in the office of [the] clerk." The statute does not, however, declare that a Certificate of Debt is the same as a judgment issued by a court. In fact, the Director may issue a Certificate of Debt prior to the expiration of the time in which to file a Tax Court Complaint challenging the underlying assessment "without prejudice to the taxpayer's right of appeal." Kotvasaki, supra; N.J.S.A. 54:49-12. The statute contemplates, therefore, that a judicial judgment of the taxpayer's claims may follow issuance of a Certificate of Debt and is something apart from the Certificate of Debt.
Although R. 4:50-1 applies to judgments issued by the Tax Court in matters in which the court's jurisdiction is established through the timely filing of a Complaint, see Jackson Construction Co. v. Township of Ocean, 182 N.J.Super. 148, 3 N.J.Tax 296, 440 A 2d 88 (Tax 1981), the rule does not create jurisdiction in this court where a taxpayer failed to file a timely appeal of an assessment by the Director. As noted above, the jurisdiction of this court is defined by statute. A taxpayer who does not invoke this court's jurisdiction as provided by the State Tax Uniform Procedure Law to challenge an assessment of the Director forfeits the right to judicial review of the validity of that assessment. R. 4:50-1 does not, long after the time for fling an appeal in this court has expired, provide a second bite at the apple by allowing an appeal of the Director's assessment to be filed "within a reasonable time" after issuance of a Certificate of Debt.
This conclusion is confirmed by R. 8:3-5(b)(2), which recognizes that a challenge to a Certificate of Debt in this court is limited to procedural matters, unless a Complaint is filed prior to expiration of the ninety-day period for challenging the underlying assessment. With respect to this court's jurisdiction to review Certificates of Debt, R. 8:3-5(b)(2) is certainly more specific than R. 4:50-1, which has general application. In addition, R. 8:3-5(b)(2) is contained in Part VIII of the court rules which apply specifically to the Tax Court. Thus, even if the court were to view the two rules as conflicting, R. 8:3-5(b)(2) would control.
To hold otherwise would expand this court's jurisdiction beyond the limits established by the Legislature and Governor. Moreover, a holding allowing taxpayers to mount collateral challenges to a tax assessment "within a reasonable time" after issuance of a Certificate of Debt by the Director would undermine firmly established precedents regarding finality and certainty in tax collection. The Director could no longer be assured that his assessments were fixed and final after expiration of the statutory period for challenging those assessments, introducing an element of uncertainty to the State's financial affairs. In addition, it makes little sense to have a rule of law making the Director's assessment of tax fixed and final after expiration of the appeal period only to be reopened to attack once the Director takes steps to collect the tax assessed through issuance of a Certificate of Debt.
Because this court lacks jurisdiction to hear plaintiffs challenge to the Director's assessment of sales and use tax, the court is not permitted to address the substantive claims raised by plaintiff regarding the taxability of its services and whether the Director should be estopped from collecting the tax because of representations made during the administrative review process. Plaintiffs opportunity to raise those claims expired along with the ninety-day period for challenging the Director's assessment. Additionally, plaintiffs due process claims, if considered within this court's jurisdiction to adjudicate, are soundly contradicted by the record. The Director has submitted numerous correspondence, receipt of which is acknowledge by the taxpayer, informing plaintiff of the Director's intention to assess sales and use tax against plaintiff and of the available avenues of administrative and judicial review available to challenge the assessment. Plaintiff clearly had notice and an opportunity to be heard prior to issuance of the Director's assessment and Certificate of Debt.
The Clerk of the Tax Court will enter Judgment dismissing the Complaint for want of jurisdiction.
sed rezone would differ significantly from surrounding uses. SME does not challenge seriously this conclusion. Plains Grains has established the first prong of the
test.
¶ 64 The number of landowners affected by the proposed rezone must be analyzed in concert with the third factor-whether the proposed zone change constitutes "special legislation." North 93 Neighbors, ¶ 68 (citing Boland, 275 Mont, at 134, 910 P.2d at 894). The number of landowners affected relates directly to whether the zoning constitutes special legislation designed to benefit one person. North 93 Neighbors, ¶ 68. This inquiry should focus on the benefits of the proposed rezone to surrounding landowners, not the benefits-financial or otherwise-that would accrue from the proposed development. Boland, 275 Mont, at 134, 910 P.2d at 894. The Urquharts' application for rezoning acknowledged that grain farming and cattle ranching constituted the predominant surrounding land uses. The Staff Report likewise confirms that agricultural production dominates the surrounding land uses.
¶ 65 The District Court found that "one landowner (be it viewed as either SME, the current deed holder, or the Urquharts, the applicants) will benefit at the expense of others." The court recognized that these costs constituted "not merely the location of a power plant in the `Back 40' but the power lines, rail spurs, and other industrial detritus of a large, power generating facility." The court acknowledged that the impacts of this special legislation would be "imposed on some landowners by way of eminent domain." We agree. No discernible benefit for the rezone would accrue to the neighboring farmers and ranchers. The benefits of the rezone inure solely to the owners of the 668 acres, first the Urquharts and now SME.
¶ 66 The District Court based its determination that no spot zoning had occurred on its conclusion that the zone change "was in name only" and did not change the uses allowed under the existing Cascade County regulations. Our application of the Little factors reveals, however, that the rezoning of the HGS property constituted spot zoning. The requested heavy industrial use differs significantly from the current agricultural uses that dominate the surrounding area. The area to be rezoned is relatively small-both in absolute size and in terms of landowners affected. The proposed rezone smacks of "special legislation" in that the benefits would accrue to a single landowner to the detriment of the surrounding farmers and ranchers. Little, 193 Mont, at 346, 631 P.2d at 1289.
¶ 67 The County's adoption of the 2009 amendments to the CCZR did not render moot Plains Grains' spot zoning claim. The amendments did not change the rezoning at issue in this litigation. The 2009 amendments to the CCZR do not preclude us from granting Plains Grains the relief that it has requested. We deny SME's motion to dismiss the appeal as moot based upon Plains Grains' failure to challenge the 2009 amendments to the CCZR. The sale of the property from the Urquharts to SME likewise did not render moot Plains Grains' claims.
¶ 68 We reverse the District Court's order granting summary judgment to SME and grant judgment in favor of Plains Grains on its spot zoning claim. We also deny SME's motion to dismiss the appeal as moot based on SME's alleged expenditure of millions of dollars to prepare the 668 acres for a gas fired power plant.
¶ 69 We need not address Plains Grains' remaining claims in light of our determination that the rezoning of the HGS property constituted impermissible spot zoning.
CHIEF JUSTICE McGRATH, JUSTICES LEAPHART and DISTRICT JUDGE SHERLOCK, sitting for JUSTICE WARNER concur.
JUSTICE RICE, dissenting.
¶ 70 I believe the Court's analysis is deeply flawed and evades the clear principles of our jurisprudence. This appeal has been mooted — several times over. There is simply no defensible way to reconcile the Court's decision in this case with our contrary precedent, and I dare say that no lawyer will now be able to explain this Court's mootness jurisprudence, except by observing that this Court will arbitrarily moot those cases it doesn't want to decide, while reaching the merits on identically situated cases if it so desires. Ultimately, the legal standards simply do not matter.
¶ 71 I begin by advising the reader of our previous order in this case and then turn to mootness principles.
¶ 72 1. The Law of the Case
¶ 73 Previously, we issued an Order in response to Plains Grains' Petition for Writ of Supervisory Control, which had requested that we order the District Court to rule on all dispositive issues of the case so Plains Grains could appeal the spot-zoning issue. We granted the Writ, and provided the following instructions in our Order:
The District Court should resolve any remaining claims in Plains Grains' complaint and issue a final judgment.
At that point. Plains Grains can decide whether to appeal and whether to seek a stay of the District Court's final judgment or an injunction pending appeal. Plains Grains first must file with the District Court any request for a stay or an injunction pending appeal. M.R.App.P.22()1(a)(i) and (iii). A district court retains jurisdiction to rule on any motion for stay even after the appellant has filed a notice of appeal. M.R.App.P.22()1(c).
The district court promptly must enter a written order on a motion filed M.R.App.P.22 and include findings of fact and conclusions of law, or a supporting rationale, that contains the relevant facts and legal authority on which the district court's based its order. M.R.App.P.22(1)(d).
This Court retains the authority to review any decision by the district court regarding the stay of execution of a judgment or the denial or granting of an injunction pending appeal. M.R.APP.P.22(2).
Order Granting Pet. for Writ of Supervisory Control, Plains Grains v. Eighth Jud. Dist., 5 (April 29, 2009) (OP 09-0054).
¶ 74 Our Order instructed Plains Grains and the District Court, in step-by-step fashion, what procedure to follow for addressing either a stay or an injunction if the matter was appealed. These instructions became the "law of this case," which is "well established and long adhered to in this state." Carlson v. Northern Pac. Ry. Co., 86 Mont. 78, 81, 281 P. 913, 914 (1929); Scott v. Scott, 283 Mont. 169, 175-76, 939 P.2d 998, 1001-02 (1997) (citations omitted). In the seminal Carlson decision, we held that a previous ruling by this Court "upon a point distinctly made . . . is a final adjudication from the consequences of which this court may not depart, nor the parties relieve themselves." Carlson, 86 Mont, at 82, 281 P. at 914 (collecting numerous cases and authorities for this proposition). In Fiscus v. Beartooth Electric Cooperative, Inc., we further defined "law of the case" in holding that the "decision, judgment, opinion or rulings on former appeal or writ of error become `law of the case.' . . . The doctrine expresses practice of courts generally to refuse to reopen what has been decided." 180 Mont. 434, 436, 591 P.2d 196, 197 (1979) (emphasis added). We have applied the law of the case to dispose of an issue addressed in a denial of an Appellant's Application for Writ of Supervisory Control. Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶¶ 50-51, 56, 337 Mont. 411, 162 P.3d 106. Our cases have consistently applied the law of the case doctrine.
The Court asserts that this Dissent attempt[s] to equate Plains Grains' situation with that in Murphy Homes, Inc." Opinion, ¶ 39, and then proceeds to discuss Murphy at length to distinguish the two cases. However, the Dissent does not do so. Murphy is cited here merely to demonstrate the scope of the law of the case doctrine. The Court's analysis of the facts of Murphy is a straw man argument.
See In re Estate of Snyder, 2009 MT 291, ¶ 6, 352 Mont. 264, 217 P.3d 1027 (The law-of-the-case doctrine is based on policies of judicial economy and finality of judgments[;] a prior decision of this Court resolving an issue between the same parties is binding and may not be relitigated."); Muri v. Frank, 2003 MT 316, ¶ 11, 318 Mont. 269, 80 P.3d 77; In re Potts, 2007 MT 236, ¶ 33, 339 Mont. 186, 171 P.3d 286; Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 29, 351 Mont. 464, 215 P.3d 649 (citing Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure vol. 18B, § 4478.3, 733 (3d ed., West 2005)); Moody v. Northland Royalty Co., 286 Mont. 89, 92-93,951P.2d 18, 20-21 (1997); Hafner v. Conoco, Inc., 1999 MT 68, ¶ 20, 293 Mont. 542, 977 P.2d 330; State v. Gilder, 2001 MT 121, ¶¶ 8-12, 305 Mont. 362, 28 P.3d 488 (collecting cases). [All internal citations omitted.]
¶ 75 Our previous Order instructed that, once the District Court had ruled on the dispositive issues of the case, "Plains Grains [could] decide whether to appeal and whether to seek a stay of the District Court's final judgment or an injunction pending appeal." The District Court was instructed to enter findings of fact, conclusions of law and rationale regarding Plains Grains' request for a stay or injunction. However, Plains Grains did not follow our instructions, and the District Court entered no order addressing the stay or injunction issues. Without a stay or an injunction, Plains Grains risked having their appeal mooted for a variety of reasons and, indeed, Plains Grains' appeal has been mooted because of the post-judgment developments discussed below.
¶ 76 Plains Grains makes repeated references to the District Court's statement that "[a] stay would require a bond that would cover the prospective damages to Defendants due to delayed construction [and] such a bond could be astronomical," as justification for their failure to even request a stay or seek an injunction. However, our Order instructing the parties on a post-appeal stay came after the District Court's comments, effectively vacating them. Setting that aside for a moment, the District Court and Plains Grains both ignored the rules of civil and appellate procedure and the rights of Appellees, who are entitled to proceed upon the judgment failing entry of an injunction or stay, or be given assurances by a bond that they will be compensated for any further delays. If the District Court and Plains Grains had consulted the law, they would have discovered that M. R. App. P. 22(3) provides that, "[i]n the interests of justice," this Court "may grant, modify, or deny the relief requested." See Turner v. Mt. Eng'g. Constr., Inc., 276 Mont. 55, 62, 915 P.2d 799, 804 (1996) ("On application, the supreme court in the interest of justice may suspend, modify, restore, or grant any order made under this subdivision."). As such, this Court is empowered to consider equitable issues when addressing the bond, which would include allegations of the feasibility or "astronomical-ness" of the price of justice. We explained this exact principle in our previous Order: "This Court retains the authority to review any decision by the district court regarding the stay of execution of a judgment or the denial or granting of an injunction pending appeal. M.R.App.P.22(2)." Moreover, Plains Grains needed no money to seek an injunction. Nonetheless, Plains Grains, without citation to authority and without making any argument to excuse its obligation, simply elected to ignore its obligation to seek to stay or enjoin the judgment. That left Appellees fully within their rights to proceed on the judgment, which is exactly what they have done.
¶ 77 As noted, this discussion is academic, as the District Court's order hypothesizing about how "astronomical" the bond would need to be was superseded by our Order instructing the District Court to "enter a written order" and "include findings of fact and conclusions of law, or a supporting rationale, that contains the relevant facts and legal authority . . . regarding the stay of execution of a judgment or the denial or granting of an injunction pending appeal." That Order is the law of the case. Appellants ignored our Order. The District Court ignored our Order and failed to enter the appropriate order. Now, this Court joins in ignoring our Order.
¶ 78 In response, the Court minimizes our Order, stating that law of the case principles extend only to that "portion" of the Order instructing the District Court to rule on the substantive merits of the case, and that our instructions for requesting a stay or injunction on appeal, as well as our instruction to the District Court to enter a complete order on this issue, were merely "advisory instructions" or "comments" regarding the proper procedures to be followed. Opinion, ¶¶ 37-40. The Court here misses the critical point: even assuming arguendo that our Order was merely "advisory" and our "comments" did not constitute the law of the case, they were nonetheless statements of the law. Our instructions to the parties and the District Court reiterated the appellate procedure that Plains Grains was required to follow without an order from this Court. Yet, Plains Grains failed to do so.
¶ 79 2. Mootness
¶ 80 This case has been mooted because Plains Grains failed to stay or enjoin the proceedings and we cannot now grant effective relief or restore the parties to their original positions. Appellees have legally acted upon the judgment. Further, Cascade County has been completely rezoned-reducing the total number of zones in the County from 15 to 12-and a challenge to the new zoning map and regulations is not before us.
¶ 81 a. Failure to Stay or Enjoin the Proceedings
¶ 82 A case becomes moot when this Court cannot grant or fashion effective relief, or restore the parties to their original position. Because the parties must be able to be returned to their original positions, this Court has repeatedly warned Appellants to seek a stay of the proceedings, or request an injunction, to preserve the parties' status quo pending an appeal. If they fail to do so, the case may be mooted because the Court cannot fairly return a party back to his or her position. For example, without a stay or injunction, one of the parties might sell the property or business in question, see Turner, 276 Mont, at 59-63, 915 P.2d at 802-04, or a party might construct a building, at great expense, on questionably rezoned property, see Povsha, ¶¶ 18-24. We cannot undo the sale of land or a business, nor can we deconstruct buildings. We cannot address the merits of such disputes in good conscience because we cannot return parties to the status quo without causing great economic harm. We have thus made it incumbent upon the appealing party to stay or enjoin the proceedings, and thereby preserve the status quo, to prevent this very harm. We have never wavered from this position.
State ex rel. Hagerty v. Rafn, 130 Mont. 554, 559-60, 304 P.2d 918, 921 (1956); Gallatin Trust Sav. Bank v. Henke, 154 Mont. 170, 176-77, 461 P.2d 448, 451-52 (1969), overruled on unrelated grounds, LeClair v. Reiter, 233 Mont. 332, 335, 760 P.2d 740, 742 (1988); First Sec. Bank of Kalispell v. Income Props., Inc., 208 Mont. 121, 126-27, 675 P.2d 982, 984-85 (1984); Martin Dev. Co. v. Keeney Constr. Co., 216 Mont. 212, 218-20, 703 P.2d 143, 147-48 (1985) (clarifying our mootness jurisprudence in light of Hagerty, Gallatin and other cases); Turner, 276 Mont, at 59-63, 915 P.2d at 802-04; In re Marriage of Gorton, 2008 MT 123, ¶ 16, 342 Mont. 537, 182 P.3d 746 (citing Billings High Sch. Dist. No. 2 v. Billings Gaz., 2006 MT 329, ¶ 12, 335 Mont. 94, 149 P.3d 565).
First Sec. Bank, 208 Mont, at 126-27,675 P.2d at 984-85; Martin Dev., 216 Mont. at 218-20, 703 P.2d at 147-48; Turner, 276 Mont, at 59-63, 915 P.2d at 802-04; Van Troba v. Mont. State Univ., 1998 MT 292, ¶ 35, 291 Mont. 522, 970 P.2d 1029; Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶¶ 19-22, 293 Mont. 188, 974 P.2d 1150; Billings High, ¶ 12-21; City of Bozeman v. Taylen, 2007 MT 256, VI 29-30, 339 Mont. 274, 170 P.3d 939; Henesh v. Bd. of Commrs. of Gallatin Co., 2007 MT 335, ¶¶ 5-6, 340 Mont. 239, 173 P.3d 1188; Poussa v. City of Billings, 2007 MT 353, ¶¶ 18-24, 340 Mont. 346, 174 P.3d 515; Gorton, ¶¶ 16-18; Mills v. Alta Vista Ranch, LLC, 2008 MT 214, ¶ 22, 344 Mont. 212, 187 P.3d 627; Country Highlands Homeowners Assn. v. Bd. of Co. Commrs. of Flathead Co., 2008 MT 286, ¶ 16, 345 Mont. 379, 191 P.3d 424; City of Whitefish v. Bd. of Co. Commrs. of Flathead Co., 2008 MT 436, ¶¶ 23-27, 347 Mont. 490, 199 P.3d 201. [All subsequent case histories and internal citations omitted.]
¶ 83 In Turner, we dismissed an appeal by the lien-holders of the foreclosed "Royal Village" subdivision property as moot, because the property had been sold and the "Appellants allowed [the] foreclosure sale to proceed, did not stay the proceedings, and did not post a supersedeas bond." Consequently, it was "impossible for this Court to grant effective relief because the subject property had been sold and the parties could "not be returned to the status quo." Turner, 276 Mont, at 63, 915 P.2d at 804.
¶ 84 Our unanimous opinion in Henesh likewise followed these established principles. Henesh filed suit in the district court against Gallatin County over a preliminary subdivision plat approval, alleging the Commissioners' decision was unlawful. While the action was pending, the County approved the "Dry Minor Subdivision," and the Estate owner began selling the lots in the subdivision. We dismissed Henesh's appeal on mootness grounds, explaining the opportunities she had to apply for a stay or an injunction to preserve her claims, including an injunction preventing final approval of the subdivision while the action was pending in the district court, or an injunction or stay of execution following the district court's summary judgment order, or an appeal to this Court from any denial of a stay or injunction. Because Henesh "failed to seek available remedies to preserve the status quo pending appeal," we held she could not "be heard to complain because the Estate and the County continued with the process to secure final approval." Henesh, ¶¶ 3-7 (emphasis in original).
¶ 85 The Court avoids the consequences of these holdings, in part, by hiding them within string cites which follow inaccurate summaries. It characterizes Turner and Henesh, as well as Povsha and Mills, discussed below, as addressing the sale of land or property which renders an appeal moot. Opinion, ¶ 41. The Court then offers that the spot zoning context of this case is so different than the "subdivision" context of Turner, Henesh, Povsha, and Mills that disregarding our settled principles of mootness law is here warranted. However, the Court's characterizations of these cases are inaccurate and it offers no reasoned explanation of why established mootness principles should somehow not apply in a zoning case.
¶ 86 Our decision in Povsha is so squarely on point that it cannot be distinguished in good faith. Contrary to the Court's characterization, Povsha did not merely involve a subdivision. Incredibly, the Court misses that it also involved the exact issue involved here-a spot-zoning challenge. The issue in Povsha was whether the City unlawfully subdivided and rezoned land in South Billings from "Agricultural-Open" to "Urban Study Area" for the sole purpose of developing the study area "for commercial uses." A commercial interest had applied for the zoning change to allow construction of a wholesale auto auction house, and the City's Development Review Committee held a public review meeting to discuss it. Appellant Povsha and numerous other landowners raised substantial concerns about the incompatibility of the rezoning proposal with the surrounding residential area and nearby Riverfront Park. Following the public hearing, the Review Committee voted to recommend denial of the proposed zone change, due primarily to the incompatibility of the proposed auto auction house with the surrounding residential area. Povsha, ¶¶ 1-10.
¶ 87 The City Council, however, rejected the Committee's recommendations and approved the zoning change. Povsha then filed a complaint in the district court, seeking to enjoin and set aside the zoning change and corresponding subdivision approval. Povsha also filed an application for a preliminary injunction to prevent the development of the auto auction house from going forward. The district court held an evidentiary hearing on the request for a preliminary injunction, and denied Povsha's application. Povsha did not appeal the district court's denial of the request for preliminary injunction. Povsha, ¶¶ 10-11.
¶ 88 Relying extensively on Henesh, we concluded that Povsha's appeal had been mooted because Povsha had not stayed or enjoined the proceedings pending appeal and the auto auction house had been built pursuant to the judgment. We again outlined the process for appealing the trial court's denial of Povsha's request for injunctive relief under M. R. App. P. 6(3)(e), or moving the district court and this Court "to stay the zoning change and subdivision proceedings in the City and County under M. R. App. P. [22], before those proceedings became final." Povsha, ¶ 23 (emphasis added). Povsha had not availed himself of any of these remedies. As we later explained, "[n]otably, we chided the applicants in both Povsha and Henesh for failing to appeal the district court's denial of the request for injunctive relief or for failing to seek a stay of proceedings until the parties could reach a resolution on the merits. We explained that we could not restore the parties to their original positions. . . ." City of Whitefish, ¶ 23 (citing Povsha, ¶ 23 and Henesh, ¶ 5).
¶ 89 Povsha is strikingly similar to the case here and, where it is different, the case for mootness is stronger here than in Povsha. The issue here is whether the County unlawfully rezoned the Urquhart's land in Northeast Cascade County from agricultural to commercial, for the sole purpose to `permit, construct and operate the Highwood Generating Station (HGS).' The Cascade County Planning Department's staff report actually recommended the rezoning change, whereas the City's Development Review Committee in Povsha voted to deny the zone change. The Cascade County Planning Board and the Cascade County Commissioners thereafter held extensive public comment sessions to discuss the proposed zone change. Appellant Plains Grains and numerous other landowners, like those in Povsha, raised substantial concerns about the incompatibility of the rezoning proposal with the surrounding character of the land. Following these public hearings, the Commissioners voted to approve the Urquhart's rezoning request. Plains Grains then filed their complaint in the District Court, challenging the rezoning approval on a variety of claims including spot zoning and improper public participation, but did not prevail.
¶ 90 At no time did Plains Grains request a stay of the judgment or an injunction in these proceedings, either from the District Court or this Court. See Povsha, ¶ 23. Simply put, Plains Grains did not avail themselves to any remedy under the law to preserve their claims or the status quo of the parties. Indeed, the appellants in Povsha actually did more to preserve the status quo by requesting an injunction than Plains Grains, who did nothing. Nonetheless, we dismissed their appeal as moot because they failed to avail themselves of further remedies under the rules.
¶ 91 The Court responds to this presentation of our mootness jurisprudence by attempting to distinguish Povsha, and the lengths it goes to do so are astonishing. First, the Court departs from the opinion and actual holding of Povsha and includes information included only in the briefs of that case, without attribution. Opinion, ¶ 45. If this information was not pertinent when we decided Povsha, it certainly is not pertinent now. It then focuses on minutia from the case, apparently to imply that Povsha does not govern because of minor factual differences. However, this is not a principled distinguishment of controlling precedent. Under the Court's approach, any case is distinguishable.
¶ 92 Then, the Court offers that Povsha is distinguishable because "[t]he `damage' that Plains Grains seeks to avoid has not already been done," Opinion, ¶ 46, and asserts that only the "completion and operation of the HGS would have eliminated this Court's ability to provide relief to Plains Grains." Opinion, ¶ 49. In other words, the Court holds that only if the challenged project, which prevailed in the district court, has become fully completed and operational, can a case be considered moot on appeal. This is not the law of judgment execution and stays of judgments, discussed below, but for purposes of the point here-the holding of Povsha-it is not the law of mootness, J either. "If this Court cannot restore the parties to their original [position, the appeal becomes moot." Povsha, ¶ 23 (emphasis added, citations omitted). The proper question is whether this Court can restore the parties to their original position, not whether the challenged action has progressed to completion. This Court cannot now restore Southern Montana Electric (SME) to its original position.
Our mootness jurisprudence includes more than Povsha, but the Court does not address, in response, the additional contrary holdings in Turner, Henesh, and Mills.
¶ 93 Consequently, following entry of judgment in favor of Appellees, and during the pendency of this appeal, Appellees proceeded on the judgment and the status quo of the parties changed substantially. The Urquharts sold the rezoned property to SME, who then recorded their deeds with the Office of the Cascade County Clerk and Recorder. At substantial cost, SME obtained numerous additional permits it was required to obtain in order to commence construction of the HGS. SME was under a specific deadline to commence construction, pursuant to a Department of Environmental Quality Air Permit. And, as of August 2008, the cost of the plant had approximately doubled as a result of the delay already caused by this litigation.
¶ 94 Thus, facing mounting costs and permit deadlines, and Plains Grains having failed to meet its obligations to seek a stay or injunction, SME commenced construction of the HGS, expending millions of dollars to develop the property-in accordance with its legal right to do so. This construction lawfully continues today, and there is simply no way to restore the parties to their original positions without substantial financial harm to Appellee SME. This Court can neither fashion any relief nor restore SME to its original, status quo position, as required under the principles of our mootness law. The Court does not even try to offer an explanation as to how SME can be returned to its status quo, because it simply cannot be done. Nor does the Court offer any explanation whatsoever about why it would issue strongly-worded dismissals of the appeals as mooted in Turner, Henesh, Povsha, and Mills, and many others, but simply ignore the law for Plains Grains. A fair application of the law cannot leave these cases standing side-by-side. At a minimum, the Court should take a principled approach and explain that it has today determined to overturn our entire mootness jurisprudence.
¶ 95 b. Subsequent Legislative Enactment
¶ 96 Plains Grains' appeal has also been rendered moot by Cascade I County's subsequent adoption of a new county-wide zoning map and new county-wide zoning regulations. The Court attempts to avoid this additional mootness problem by emasculating Country Highlands. However, that case should be dispositive.
¶ 97 In Country Highlands, landowners brought suit against the Flathead County Board of Commissioners, alleging the County's amendments to its growth policy and the continuous rezoning of 215 acres of land, from "agricultural" to eventually "general business," were invalid. While the case was pending on appeal, Flathead County adopted a new growth policy and specifically incorporated the existing zoning districts. We held the landowners' appeal was moot because, even were we to strike down the zoning district amendments under the old Growth Policy, the County's new Growth Policy reenacted the zoning district amendments via incorporation and that action was presumed lawful and valid, absent another challenge. Country Highlands, ¶¶ 8, 13, 22 (citations omitted). We have recognized that adoption and revision of zoning regulations are legislative acts, entitled to presumptions of validity and reasonableness. North 93 Neighbors, Inc. v. Bd. of Co. Commrs. of Flathead Co., 2006 MT 132, ¶ 18, 332 Mont. 327, 137 P.3d 557 (citing Schanz v. City of Billings, 182 Mont. 328, 335, 597 P.2d 67, 71 (1979)).
¶ 98 The Court offers that Cascade County's "2009 amendments to the CCZR changed nothing about the 668 acre rezone challenged by Plains Grains. The zoning designation and map remain unchanged for the SME parcel, [and] [t]he area surrounding the SME parcel retains its A-2 `Agricultural' designation." Opinion, ¶ 31. The Court then concludes that the 2009 amendments "do not purport to repeal the earlier version of the CCZR," and minimizes the new ordinance as a "mere refinement." Opinion, ¶¶ 33.
As with Povsha, the Court attempts to distinguish Country Highlands by quoting from the briefs in that case.
¶ 99 Giving the Court the benefit of the doubt, the Court may well have been hindered by the lack of a full record about this issue which results from the absence of a legal challenge to the new zoning ordinance. Nonetheless, the information provided to us by way of supplemental briefing demonstrates that the Cascade County Commissioners undertook an extensive, County-wide examination of the zoning districts and governing rules and regulations. In the spring of 2008, while this case was pending on appeal, Cascade County began the process of revising its County-wide regulations and zoning map to satisfy an exhaustive list of objectives, including:
* To update the regulations with current standard zoning language and practices;
* To update and refine definitions;
* To alter zoning districts and boundaries (See accompanying proposed zoning map.);
* To alter allowed uses in the various zoning districts;
* To zone all properties with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout Cascade County;
* To protect residential, business, commercial, and industrial areas alike from harmful encroachment by incompatible uses and to ensure that land allocated to a class of uses shall not be usurped by inappropriate uses;
* To avoid the inappropriate development of lands and provide for reduction of flood damage; . . .
* To foster a more rational pattern of relationship between residential, business, and industrial uses for the mutual benefit of all; [and]
* To isolate or control the location of unavoidable nuisance producing uses.
Ultimately, the County reduced the total number of zoning districts from 15 to 12, and established a new Multi-Use District. The County then provided the updated zoning map, along with corresponding identified uses, development standards and regulations for "each of these districts." Obvious from the materials, the County reexamined every zoning district in the entire County and adopted a new general zoning structure.
¶ 100 The Court attempts to distinguish Country Highlands on the ground that the County's "2009 amendments to the CCZR changed nothing about the 668 acre rezone challenged by Plains Grains." Opinion, ¶ 31. Of course they didn't; the County had just undergone a monumental effort to address that particular zone. Instead, the County revised the entirety of the remaining areas in the County, reducing the total number of zones from 15 to 12, and enacting new regulations. The rezoned parcel at issue in this case was thus placed within a completely new zoning context-surrounded by completely different zones with different regulations than when the current case was brought. The Court here completely misses the point: it has focused solely on the rezoned parcel without realizing that a spot zoning challenge requires an analysis of the surrounding zones as well. A new challenge providing a new record is required. This case is thus controlled by Country Highlands, and is rendered moot by Cascade County's subsequent legislative actions taken to institute a new county-wide zoning plan. This Court cannot provide effective relief. Country Highlands, ¶¶ 22-23. The Court's opinion is nothing more than an advisory opinion about the spot zoning issue as it existed under the former zoning plan, not the current one. Plains Grains must raise its spot zoning challenge under the new zoning structure.
¶ 101 In response to this issue, the Court attaches a map for the purpose of illustrating that, even after enactment of the 2009 Ordinance, the challenged zone is still a "black island of industrial land surrounded by a sea of green Agricultural land." Opinion, ¶ 33. I do not know why the Court would draw such a conclusion without benefit of a full record proving it, but the map is clearly misleading. Within a few miles of the challenged zone is Malmstrom Air Force Base, visible from the property and including its own coal-fired heating plant, large hangars, facilities for storage of nuclear weapons and many large buildings. To the northeast of the parcel is the Malt Euro malting barley plant, with numerous large concrete silos and large buildings. The Great Falls switch yard for electrical transmission switching is just across the Missouri River and is also visible from the property. Within a few miles of the rezoned property are five hydroelectric dams on the Missouri River, as well as high capacity transmission lines, gas pipelines and related facilities, grain silos, elevators, rail lines and numerous other structures. Yet, none of these are included in the Court's "sea of green" map, and the Court's reliance on it is flawed. This illustrates the need for a proper record to be developed in response to a challenge to the new, county-wide ordinance-which Plains Grains, again, has failed to do. While we have enough information to know that the zoning has changed, we do not have a full judicial record necessary to adjudicate the spot zoning issues under the new ordinance. For that reason, County Highlands controls and this case is moot.
¶ 102 c. Lohmeier v. State and the Capable of Repetition yet Evading Review Exception to Mootness
¶ 103 The Court makes two passing references to our decision in Lohmeier v. State, 2008 MT 307, 346 Mont. 23, 192 P.3d 1137, for the propositions that the spot zoning claim remains viable despite no stay or injunction, and that the transfer of property from the Urquharts to SME does not constitute a changed circumstance rendering Plains Grains' appeal moot. Opinion, ¶¶ 34, 51 (citing Lohmeier, ¶ 13). Briefly, it is well settled in our mootness jurisprudence that "[a] party I may not claim an exception to the mootness doctrine where the case I has become moot through that party's own failure to seek a stay of the judgment." Turner, 276 Mont, at 60, 915 P.2d at 803 (citing Gates v. Deukmejian, 987 F.2d 1392, 1408 (9th Cir. 1993)); Billings High, ¶¶ 14-18 (citations omitted). "Thus, where a party has failed to obtain-or at least attempt to obtain-a stay of proceedings pending appellate review, that party may not take advantage of the `capable of repetition, yet evading review' exception to the mootness doctrine." Billings High, ¶ 18 (citing Gates, 987 F.2d at 1409).
¶ 104 3. The Court's Errors Regarding SME's Rights to Proceed from a Lawful Judgment and to Due Process of Law; The Court's Rejection of SME's Statements and its Criticisms of ISME.
¶ 105 In an apparent effort to shift the focus of this case from Plains Grains' failures, the Court conjures up a series of legal claims and aspersions to cast blame upon SME. The Court reasons that this case is not moot because "[i]t seems far from clear . . . that SME possessed the necessary permits that would have given it a legal right to develop the property. . . ." Opinion, ¶ 46. However, issues regarding what permits were necessary and whether SME properly possessed them are not before this Court and, more importantly, it defies clear legal authority to suggest that SME could not proceed from the unstayed, legal judgment in its favor. See Rules of Civil Procedure: Title 25, chapter 9, MCA (Judgment); Title 25, chapter 13, MCA (Execution of Judgment); Title 25, chapter 20, part VII, MCA (Judgment). SME held this right regardless of whether it ultimately decided to change the design of its plant, discussed below. The effect of the Court's statements to the contrary-that a prevailing party must necessarily wait for the outcome of a possible appeal before acting upon a valid, lawful judgment-contradicts our statutory and procedural framework governing judgments and appeals. See above-referenced statutes and rules of procedure, as well as M. R. App. P. 22()1(a)(i) and (iii) (Stay of Judgment or Order Pending Appeal).
¶ 106 This undermining of the right to proceed on a property judgment raises the issue of SME's constitutional right not to be deprived of its property without compensation or due process of law. Mont. Const., art. II, § 17; U.S. Const., amend. XTV, § 1. Plains Grains never requested, before the District Court or this Court, that SME's judgment be stayed or enjoined. Procedurally, SME never had notice or opportunity to present evidence in opposition to a stay or an I injunction. Consequently, after obtaining a judgment, SME was entitled, as a matter of law, to proceed to develop its land pursuant to that judgment. The Court's decision today appears to take from SME I the investment it has properly made in its property, without I compensation or due process of law. See Yellowstone Fed. Credit Union v. Daniels, 2008 MT 111, ¶¶ 28-29, 342 Mont. 451, 181 P.3d 595 (recognizing fundamental rights and interests in property demand "punctilious compliance with all statutory and procedural requirements," requiring at least notice and a hearing; citations omitted); In re Best, 2010 MT 59, ¶ 22, 355 Mont. 365, 229 P.3d 1201 ("due process requires a fair and impartial tribunal, State v. Moore, 268 Mont. 20, 51, 885 P.2d 457, 477 (1994), overruled on other grounds, State v. Gollehon, 274 Mont. 116, 906 P.2d 697 (1995), and a fair hearing, Matter of Goldman, 179 Mont. 526, 551, 588 P.2d 964, 978 (1978);" citations omitted).
¶ 107 As if in recognition of the wrong here done to SME, and in I order to be able to excuse Plains Grains' failure to follow the appellate rules, the Court takes measures to make SME's expenditures in furtherance of its judgment "go away." It does so, first, by rejecting SME's explanation of its expenditures. It denies SME any relief for Plains Grains' failure to seek a stay because it "cannot determine from the record whether SME indeed has spent `millions of dollars' to develop the property. . . ." Opinion, ¶¶ 48, 50. This begs the question-whose fault is that? Why doesn't this Court have a record about the precise amount SME has "indeed" spent on developing the property? The answer-because Plains Grains failed to follow the law and our Order. Consequently, a hearing wasn't held and the District Court did not enter an order setting forth the "findings of fact and conclusions of law, or a supporting rationale, that contains the relevant facts and legal authority," which we ordered. However, the Court concludes that it is somehow SME's fault because it "has adduced no evidence" and "failed to substantiate" its expenditures by an accounting, Opinion, ¶ 34, and failed to "substantiate with particularity" its losses, Opinion, ¶ 49, when any lack of evidence is only due to Plains Grains' failure to follow the law and our Order.
¶ 108 Every litigant who appears before this Court has an ethical duty of candor to the tribunal, and I see no reason to presume that SME has been untruthful to this Court about the money it has spent developing its land, particularly when the absence of evidence to the contrary-the absence of a record-is not SME's fault. See Mont. R. Prof. Conduct 3.3(a)(1) ("A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;"). Plains Grains waived the right to make a record on this issue, but the Court is placing the financial consequence of Plains Grains' failure upon SME by rejecting its statements without a basis to do so.
¶ 109 But the Court goes further in casting blame upon SME. The statements made in ¶¶ 47-48 of the Opinion, detailing SME's missteps and setbacks in pursuing this project, have nothing to do with the issues before the Court-not even the issue of mootness. I can only surmise that they are made solely to discredit SME or the project. The Court subtly raises an issue not litigated by the parties-SME's consideration of changing the plant to a gas-fired design, Opinion, ¶ 48-to escape the effect of any expenditures SME has made pursuant to original design, a legitimate cost. The Court dismisses the sale of the land and the substantial sums expended thereon as irrelevant to mootness, when our cases show that these issues are directly relevant.
¶ 110 4. Conclusion
¶ 111 A summary of the Court's statements and decisions herein raises serious questions, in my view, about the disposition of this case. Consider the Court's:
-Excusing Plains Grains' failure to follow appellate rules and procedures and our previous Order;
-Rejecting application of our substantial mootness jurisprudence on the basis of an inappropriate distinguishment of a controlling case,
Povsha;
-Deciding the validity of the zone without a challenge to, or a full judicial record about, a newly passed, county-wide zoning ordinance;
-Undermining the right of SME to proceed on a lawful, unstayed judgment;
-Requiring SME to bear the costs of its reliance upon the valid, unstayed judgment, in possible violation of its due process rights;
-Casting aspersions upon SME for irrelevant setbacks in the process of developing the project.
¶ 112 I do not understand the animus toward SME reflected in the Court's decision, and believe the Opinion stands in utter disregard to the law of appellate procedure, to the substantive law of judgments, and to our mootness jurisprudence. The Court has excused Plains Grains from compliance with the rules requiring a stay or injunction of the judgment to preserve the status quo of the parties, and then placed the consequences for that failure upon SME. Our long-established rules thus ring hollow, as their enforcement depends upon the Court's beck and call. And, in this case, the Court has gone both ways, first requiring precise enforcement of the rules, and then completely abandoning them. While "[a]n independent, fair, and impartial judiciary is indispensable to our system of justice," Mont. Code of Jud. Conduct preamble (2009), I believe SME has not been given justice here.
¶ 113 This appeal has been mooted in several different ways under very clear principles. I dissent and would dismiss the appeal.
JUSTICE NELSON joins in the dissenting Opinion of JUSTICE RICE.
JUSTICE COTTER joins in paragraphs 70-101 and 113 of the foregoing dissent.