Attorneys argue Mercantile case in court

By Martin Kidston

Attorneys representing a developer looking to build a new hotel in downtown Missoula presented their arguments in Missoula County District Court on Tuesday, where they asked the judge to dismiss a lawsuit filed a preservation group on a number of grounds.

Among them, they told District Judge Dusty Deschamps, the complaint filed by preservation attorney Michael Doggett was fatally defective and that his clients in the case lacked the legal standing necessary to bring the issue to court.

Doggett, in turn, asked the court for more time to amend his complaint. Deschamps took the arguments under consideration and said he’d issue a ruling within the next 24-hours.

“I need to think about some of things thath ave come before the court during this proceeding,” Deschamps said. “I will attempt to have a ruling before 5 p.m. tonight. It may not be very elaborate, but it’ll let you know which way we’re going at least.”

During the morning hearing, Natasha Jones, an attorney representing 110 North Higgins LLC, said Doggett’s clients don’t have standing to file suit. She told the court that the case represented a political issue, not a judicial one.

“We have a group of citizens who have a clear political preference as to what happens to this particular building,” Jones said. “They participated fully in the political process. Unhappy with the result, they filed a lawsuit.”

Jones and City Attorney Jim Nugent both argued that Doggett’s clients don’t own the Mercantile property, nor any adjacent property. Nowhere in their complaint did they specifically argue any personal harm if the Mercantile were replaced with a new building.

Simply claiming a preservation interest wasn’t enough to allow the complainants to sue, Jones said, adding that Doggett’s case lacked concrete proof and was riddled with abstract arguments.

“A general concern about historic preservation, because you own property in downtown Missoula, is not sufficient,” said Jones. “What we have here is real damage being done to our clients on the basis of hypothetical, abstract damage that’s no different than any other property owner in downtown Missoula.”

Deschamps suggested that citizens have little recourse if they disagree with a decision by the City Council, which approved a deconstruction permit for the Mercantile over the summer.

He asked Jones what other options were available to Doggett’s clients if the court dismissed their case without hearing their arguments on if the City Council erred by approving the permit.

“They do have a right, and that’s through the political process – that’s through their representative,” Jones countered. “There are other ways in which folks cold bring a claim, that being if they were denied the right to participate in the political process. This court is powerless to act unless that constitutional mandate is met.”

Deschamps said that at least one of Doggett’s clients have historic property in downtown Missoula, and that removing the Mercantile could damage them in some way. He also noted, however, that they failed to prove in their complaint that doing so would actually result in concrete damage.

While he said the argument was slender, it was still something the court could consider. But Nugent disagreed, saying Doggett’s clients aren’t an aggrieved party as defined by city ordinance.

“They did not plead being an aggrieved party,” Nugent said. “They did not plead any harm. They haven’t met the threshold that is necessary. They haven’t even alleged a concrete harm.”

Alan McCormick, also representing the Mercantile developer, said that while the law affords citizens a right to address issues though the court, this particular case wasn’t one of them.

He said Doggett’s complaint was defective – reason enough for the court to dismiss it.

“You can’t overlook the fact there’s no allegation of damage by any of these complainants,” McCormick said. “They don’t own the building, they have no interest in the building, and they don’t have anything at stake. They have to allege specific, personal harm in order to have the ability to petition this court.”

Deschamps agreed, suggesting the flaws in Doggett’s complaint did pose a problem.

“I searched for some allegation of injury and I couldn’t find it,” Deschamps said. “Where’s your allegation of damage? Can you point me to where that might be.”

Doggett said he could not, though he asked the court for more time to amend the complaint. He said the amended complain would identify specific downtown property owners who have an interest in historical properties.

The new complaint, Doggett added, would allege that the City Council failed to grant the Historic Preservation Commission a presumption of correctness when it voted to overturn the commission’s decision and grant the permit.

While Deschamps had intended to rule from the bench Tuesday morning, he opted instead to take the arguments under advisement and issue a decision within the next 24 hours. He would also decide if Doggett would be permitted to file an amended complaint.

That, McCormick argued, would run contrary to existing case law.

“You can’t get to this point, realize you’re on your last gasp, and then say you’ll fix it,” said McCormick. “Case law is very clear in saying that’s too late. This is one of those rare cases where the complaint is so obviously defective, you can’t wait till you get to the hearing to fix it.”

Contact reporter Martin Kidston at info@missoulacurrent.com