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;
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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).
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¶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.
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Justic
We Concur:
Chief Justice
S24
Justices
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