Judge denies motion in steep slopes case

By RICHARD HANNERS / Whitefish Pilot

Flathead County District Court Judge Ted Lympus last week denied the city of Whitefish's motion for judgment as a matter of law in the Walton steep-slopes case. The city contends that the legal basis underlying the jury's verdict in favor of William and Theodora Walton is incorrect.

The city claimed that the city should not be liable for the equal rights violation because it was not caused by official custom or policy. Furthermore, the city claimed, "there is no evidence of disparate treatment of similarly situated persons or property."

Lympus, however, ruled that the city's motion was improper because its argument was not made prior to the jury's verdict.

The case originated in April 2006 when former city planning director Bob Horne denied the Waltons' application for a building permit. He said their plans for a home on a steep slope overlooking Whitefish Lake would violate the city's interim stormwater ordinance. The Waltons then sued the city.

Lympus noted in his earlier rulings that when the city moved for summary judgment, "the court found that the ordinance was constitutionally valid in both iTs purpose and enactment."

A jury, however, unanimously agreed in June 2007 that the city had violated the Waltons' right to equal protection and awarded the Waltons $300,000 in damages.

The Waltons then filed a writ of mandamus to compel the city to issue a building permit. Lympus, however, ruled that the court could not compel the city of Whitefish to issue a building permit. Since then, with a new critical areas ordinance in effect, the Waltons received a building permit and began construction.

In his Sept. 10 order, Lympus also ruled in favor of the plaintiffs' request for attorney fees. The Whitefish law firm Morrison and Frampton asked for $88,074 in attorney fees, $7,920 in paralegal fees and $4,070 in costs and expenses.

Sean Frampton submitted a claim for 270.12 hours at $180 per hour. Associate Doug Scotti claimed 328 hours at $120 per hour, and paralegal Erica Connors claimed 105.6 hours at $75 per hour.

Lympus denied a $2,125 fee for Bernard Everett, who testified for Morrison and Frampton as an expert on what are considered "reasonable" attorney fees in the Flathead Valley.

Everett testified that he was familiar with attorney rates because he was involved with litigation involving talk-radio host John Stokes. He said the Walton case involved similar complex constitutional claims that are difficult to explain to a jury.

The Waltons obtained a $300,000 verdict, which was "decidedly lower" than what the plaintiffs sought, Lympus said. But citing precedent, he noted, "Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief."

"Given the overall relief obtained by plaintiffs in relation to the hours expended on the litigation, plaintiffs achieved a significant success and are entitled to the full amount of their allowable and documented fees," Lympus said.

Everett's fees, however, should not be allowed, Lympus ruled, because his contribution did not help to vindicate a civil rights case but concerned attorney fees.

City attorney John Phelps said the city council authorized him to appeal the Walton case and the attorney fees.