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Full Opinion
June 28 2011
DA 10-0472
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 153
RUSSELL LEVENS and MELISSA LEVENS,
Plaintiffs and Appellants,
v.
AL BALLARD and ECOSAFE GOLD RECOVERY, LLC,
Defendants and Appellees.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 05-612
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Holly Jo Franz; Franz & Driscoll, PLLP, Helena, Montana
For Appellees:
Gregory W. Duncan; Attorney at Law, Helena, Montana
Submitted on Briefs: May 18, 2011
Decided: June 28, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Russell and Melissa Levens appeal from the District Court’s Memorandum and
Order on Motion for Contempt, filed July 31, 2009, and the Order Granting Attorney
Fees filed September 1, 2010. We reverse.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 Levens and Ballard own adjoining properties in Grizzly Gulch, a mountainous
area south of Helena, Montana. Levens live on their property which lies south of
Ballard’s property, where he operates a gold mine. Ballard’s gold mine is an open pit
dug with heavy equipment alongside the county road in Grizzly Gulch, and near or to the
boundary with Levens’ property on the south end. Ballard digs earth and rocks
(“material”) out of the pit and processes it to extract gold. Ballard can expand his pit
only to a limited surface area because of the country road, Levens’ property, and his five-
acre limit as a “small miner” under State law (§§ 82-4-303(16) and -305, MCA). One of
the consequences of this is that Ballard tends to dig down rather than “out” to recover
material for processing. A consequence of digging down is that the steep sides of the pit
tend to collapse into the pit. Ballard removes this material for gold processing.
¶3 In 2003, Lewis & Clark County allowed Ballard to relocate the county road that
had formerly separated the Levens and Ballard tracts. Levens and Ballard could not
agree upon the location of the boundaries of their properties, but in August 2005 they
entered a written agreement defining their boundary according to a draft survey
completed the prior year. One provision of the agreement moved a portion of Levens’
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property boundary 30 feet to the south, giving Ballard title to a 30-foot strip between the
two properties.
¶4 In return, Ballard agreed “that to protect the lateral support of Levens’ property,
no excavating will occur within 30 feet of Levens’ real property.” The parties also
agreed to share the cost of a new survey and to execute all documents required to
accomplish the boundary relocation. Disputes quickly arose after Ballard occupied the
area between the two properties and refused to sign the new certificate of survey.
¶5 Levens brought an action against Ballard to enforce the agreement and for an
injunction. The evidence in that proceeding showed that Ballard refused to sign the new
survey and had “bladed a road,” drilled a water well, and placed heavy equipment on
Levens’ property or property that would belong to Levens under the agreement. In
October, 2005, the District Court enjoined Ballard from “excavating, mining, bull dozing
. . . or in any manner changing the disputed property” or trespassing on Levens’ property.
In April, 2006, the District Court issued a Memorandum and Order determining that the
agreement was “clear and unambiguous” and granting Levens’ motion for summary
judgment. In a judgment filed April 24, 2006, the District Court ordered that the August,
2005 agreement between Levens and Ballard was valid and enforceable; that Ballard was
required to sign the new certificate of survey; that Ballard was required to execute all
documents necessary to accomplish the boundary relocation; and that Ballard was
“permanently enjoined from excavating within 30 feet of the property boundary of the
Plaintiffs, Russell and Melissa Levens.”
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¶6 Less than a month later, in May, 2006, Ballard moved the District Court to
“clarify” the judgment because another dispute had arisen over the well that Ballard had
drilled on land belonging to Levens. Ballard wanted access to the well and the right to
use the road he bladed across the property he recently acquired from Levens. Ballard’s
motion argued that the intent of the 2005 agreement was that he “not mine within thirty
feet of the [Levens] property therefore insuring lateral support.” Ballard contended that
the agreement “only addresses excavation as it affects lateral support.” (Emphasis
added.) He asked the District Court to order that the prior judgment did not prevent him
from drilling a new water well or excavating a road on the 30-foot strip that he now
owned.
¶7 Ballard’s attorney filed an affidavit in support of the motion, asserting that the
intent of the 2005 agreement with Levens was “meant to include only the loss of lateral
support through Mr. Ballard’s actual excavation, mining, digging, or enlarging the pit.”
(Emphasis added.) A draft order attached to Ballard’s motion provided that the intent of
the 2005 agreement was to prohibit “digging in the pit in such a manner that it enlarges
the pit to within 30 feet of the property line, thereby diminishing the lateral support to the
Levens Property.” (Emphasis added.) Ballard also filed an affidavit in support of that
motion in which he requested that the “excavation” covered by the judgment be declared
to be “strictly for the purpose of lateral support” for Levens’ property.
¶8 In August, 2006, the District Court denied Ballard’s motion for clarification,
holding again that the 2005 agreement “is clear and unambiguous and prohibits any type
of excavating within 30 feet of the property boundary.” (Emphasis added.)
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¶9 In June, 2009, Levens filed a motion for contempt against Ballard for failure to
abide by the April, 2006 judgment entered against him. The Hon. Tom Honzel presided
over the case prior to this time, but he had retired by the time the June, 2009 motion was
filed and the Hon. Kathy Seeley assumed jurisdiction. Levens sought an order requiring
Ballard to “fully and adequately remediate the excavation, sloughing, and ground
cracking that has occurred within 30 feet” of their property and to compensate them for
all damages incurred as a result of Ballard’s violation of the permanent injunction in the
judgment. In July, 2009 the District Court held two days of evidentiary hearing on
Levens’ motion and conducted a site visit. In July, 2009, the District Court denied
Levens’ motion for contempt, finding that while there had been “slumping of material
along the edge” of Ballard’s pit, he had not actually excavated within 30 feet of the
property line. In September 2010, the District Court entered an order awarding attorney
fees to Ballard under the 2005 agreement.
STANDARD OF REVIEW
¶10 Review of a district court’s interpretation of a judgment presents an issue of law,
and this Court reviews the district court’s interpretation to determine whether it is correct.
Harland v. Anderson Ranch Co., 2004 MT 132, ¶ 20, 321 Mont. 338, 92 P. 3d 1160.
DISCUSSION
¶11 Issue: Did the District Court err in denying Levens’ motion to have Ballard held
in contempt for violation of the prior judgment? Levens filed a motion with the District
Court requesting an order holding Ballard in contempt of court pursuant to § 3-1-
501(1)(e), MCA. That section provides that disobedience of any lawful judgment of the
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court constitutes contempt of court. Levens’ motion was based upon their contention that
Ballard violated the District Court’s April 24, 2006 judgment, and particularly the portion
that permanently enjoined Ballard from excavating within 30 feet of their property line.
Levens further sought the District Court’s order to require Ballard to “fully and
adequately remediate the excavation, sloughing and ground cracking” that occurred
within 30 feet of their property line, and sought compensation for all damages they had
incurred as a result of Ballard’s actions.
¶12 On July 31, 2009, following a hearing and a site visit, the District Court entered an
order denying the motion for contempt, finding that the issue was resolved by the
language of the 2005 agreement between Levens and Ballard; particularly the provision
that prohibited Ballard from “excavating” within 30 feet of Levens’ property line. The
District Court found that “while there has been and will be slumping of material along the
edge of the area where excavating has occurred, there has been no excavating within 30
feet of the property line.”
¶13 The District Court’s order can only be fully understood in the context of the
testimony presented at the hearing. Ballard’s contention at the hearing, and now on
appeal, is that the word “excavating” as used in the 2005 agreement with Levens and in
the District Court’s 2006 judgment, only prohibits him from moving any portion of his
excavating equipment into the 30-foot buffer strip in front of Levens’ property. Ballard,
his expert Earl Griffith and his employee Gerry Kelly testified that while they did not
measure or survey the pit, in their estimation no part of Ballard’s excavating equipment
intruded into the 30-foot strip. Ballard’s contention is that he can dig as deeply into his
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pit as he wants and allow the pit walls to collapse as long as no portion of his equipment
crosses the plane of the 30-foot boundary in front of Levens’ property.
¶14 According to Ballard’s expert Griffith, the natural and expected consequence of
Ballard’s excavation of his pit up to the edge of the 30-foot boundary is that the
“material” (earth and rocks) above the steep headwall slumps (i.e., slides or falls) into the
pit. Griffith testified that the slumping into the pit will continue as long as the wall of the
pit fails to provide sufficient lateral support to keep it in place. This slumping has
progressed as a result of Ballard’s excavation to the point that the earth from Levens’ side
of the 30-foot boundary has begun sliding into Ballard’s pit. This is the “slumping”
referred to in the District Court’s order. Both Levens and Ballard agree that this has
occurred.
¶15 The loss of lateral support caused by Ballard’s steep-sided excavation has also
caused cracking in the remaining earth surface within the 30-foot strip. According to
Ballard’s expert Griffith, this is an indication that the cracked earth will eventually also
slide into the pit. At the time of the hearing in 2009, the cracks in the earth had
progressed across the 30-foot strip and, according to Griffith, were already within a few
feet of Levens’ property boundary.
¶16 Griffith further testified that as Ballard continues to excavate deeper into the pit
and to remove the material that slumps into it from the 30-foot strip bordering Levens’
property, the 30-foot strip of earth itself will eventually disappear into the pit, as the earth
will no longer hold together and seeks its “angle of repose.” That is the angle at which
the loose earth will remain in place without further sliding or slumping. Griffith opined
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that Ballard should be allowed to excavate from his pit until the earth from the entire 30-
foot strip slumps into the pit.
¶17 Ballard’s contention in the District Court and on appeal is that there is a legally
significant difference between “excavating” and “excavation.” He contends that when he
sends heavy equipment into the pit and moves earth as described by Griffith, he is
“excavating.” Ballard argues that the result of excavating is an “excavation” and that
neither the 2005 agreement nor the 2006 judgment prohibit him from creating an
excavation. Ballard contends that if his excavating causes or results in an excavation that
extends into the 30-foot buffer zone with Levens, then that is only a natural geologic
event and is not prohibited by the judgment.
¶18 The District Court apparently agreed with Ballard’s contention that there were no
restrictions on the size of his excavation (the outer limits of the pit) as long as no part of
his heavy equipment came within 30 feet of Levens’ property line. The District Court
was in error because it construed the judgment too narrowly.
¶19 First, it is clear that an express primary purpose of the 2005 Levens-Ballard
agreement was to secure for Levens a buffer of earth 30 feet wide between them and
Ballard’s pit to provide “lateral support” for Levens’ property. In other words, the
purpose was to keep Ballard’s pit far enough away from Levens’ property line to insure
that Levens’ property did not fall into Ballard’s pit. Therefore, the word “excavating” in
the agreement and in the judgment must be read in the context of insuring lateral support
for Levens’ property. Allowing Ballard to excavate in his pit so that the earth from the
30-foot buffer strip falls into the pit does not insure that Levens will have lateral support.
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¶20 Further, it is clear that in 2006 Ballard similarly understood that the judgment’s
injunction against his excavating within 30 feet of Levens’ property was meant to insure
that the 30-foot buffer strip remain intact. Shortly after the entry of the judgment Ballard
wanted to use the buffer strip for a graded road and a water well. He moved to clarify or
amend the judgment, contending that the 2005 agreement was only intended to prevent
“digging in the pit in such a manner that it enlarges the pit to within 30 feet of the
property line, thereby diminishing the lateral support for the Levens Property.” Ballard’s
attorney submitted an affidavit in support of the motion, asserting that he had negotiated
the 2005 agreement and that it was “meant to include only the loss of lateral support
through Mr. Ballard’s actual excavation, mining, digging, or enlarging the pit.”
¶21 This recognition of the importance of lateral support to the Levens, and that the
agreement prevented “enlarging” the pit are directly at odds with Ballard’s position in the
present appeal. Given the express language in the 2005 agreement linking lateral support
for the Levens’ property to the 30-foot buffer strip, it is clear that the intent of the 2006
judgment was to prohibit Ballard from excavating in such a way that the pit was extended
into the strip. This was expressly Ballard’s understanding of the judgment in 2006 and is
consistent with the record.
¶22 Second, we find no justification in law or in the facts of this case to make the
distinction between “excavation” and “excavating” that Ballard now promotes.
Excavating naturally and necessarily creates an excavation. Ballard provides no
substantial support for his contention that, with regard to his relationship with Levens, he
can excavate without regard to the effects of the resulting excavation. Such an
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interpretation would effectively nullify the express recognition in the 2005 agreement
(and in Ballard’s 2006 court filings) of the importance of maintaining lateral support for
the edge of Levens’ property. There is no support in the record for Ballard’s position in
the current proceeding that he can, consistently with the 2005 agreement and 2006
judgment, cause the earth in front of Levens’ property to fall away into his pit right up to
the property line.
¶23 Therefore, we conclude that the 2006 judgment in this case must be construed to
prevent Ballard from excavating in his pit in such a way that the pit excavation intrudes,
by sloughing, slumping, subsidence or otherwise, into the 30-foot buffer strip at the edge
of Levens’ property. Levens are entitled under the agreement and the judgment to have
the 30-foot buffer strip remain intact.
¶24 The District Court’s orders denying the motion for contempt and awarding
attorney fees to Ballard are reversed. This case is remanded to the District Court to
conduct such other proceedings, and enter such other orders as may be required to
address Levens’ motion for contempt, consistent with this opinion.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ JAMES C. NELSON
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