After one failed effort to legally restrain Stinger Welding from the Kootenai Business Park, Lincoln County has convinced a different judge to keep in place a temporary restraining order against the company while litigation continues over ownership of valuable industrial property.

At issue are six industrial cranes that are housed in the former Stinger Welding building at the business park in Libby. The county argues the cranes were paid for with taxpayer dollars and should remain in county control, while the new owners of Stinger Welding argue that the cranes were part of Stinger’s portfolio of assets when the company changed hands and, therefore, should be considered company property.

While the case to determine ownership moves forward, the county has sought relief in the form of a temporary restraining order to keep Stinger Welding’s officials and employees from entering the property. Stinger removed one of the cranes in mid-October, and the county believes the company intends to remove the others prior to a ruling in the case.

The county’s first attempt to get a judge to maintain a temporary restraining order and to grant injunctive relief was unsuccessful. Judge Loren Tucker decided to lift a temporary restraining order on Oct. 28, but warned Stinger that removing additional cranes could end up costing the company more money if the county wins the lawsuit. He also denied the county’s attempt for injunctive relief.

The county filed another complaint seeking a temporary restraining order and injunctive relief on Nov. 1. That complaint and the previous one were filed in Judge James Wheelis’ court, but both were transferred to different jurisdictions after attorneys representing Stinger petitioned for substitutions.  

This time, on Nov. 14, Judge James Manley kept in place the county’s temporary restraining order against Stinger, effectively barring the company from the Kootenai Business Park for the time being.

The Lincoln County Port Authority is the plaintiff in the lawsuit. Defendants include Stinger Welding Montana, Inc., Tommy Fisher, Dennis Diteman, David Domino and Ralph Seeley.

In the week prior to Manley’s decision to keep the temporary restraining order in place, both sides in the case filed a flurry of paperwork. The county is seeking damages as a result of the alleged trespass and punitive damages. The defendants are arguing they have a right to be on the property.

The county argued in its multiple filings that the defendants and their agents “maliciously and intentionally” trespassed through the Kootenai Business Park, which is under the control of the Lincoln County Port Authority, with the intention of injuring the Port Authority by removing seven industrial cranes from the property. The company had permission to enter the property to conclude their operations, but not to dismantle or remove any of the cranes, the county stated.

The county also noted that Tommy Fisher told Lincoln County Sheriff Roby Bowe that the company would continue to trespass in order to obtain the cranes.

The defendants responded on Nov. 13 with a motion to dismiss the county’s complaint, arguing that a judge had already decided the matter in favor of the company. Stinger’s attorneys argued that the county was “essentially forum shopping” by re-filing what amounts to the same claims a second time.

“Under the doctrine of issue preclusion, plaintiff gets one bite at the apple,” according to the company’s motion to dismiss. “It is not afforded the opportunity to try again and again until it receives the relief it wants. Plaintiff essentially wants a second bite at the apple under the same theory of trespass it plead (sic) in its first request.”

However, Lincoln County’s attorney Allan Payne said the two lawsuits are much different.

The case in front of Tucker is what Payne calls the “main lawsuit.” Ownership of a wide range of assets is at stake, including the former Stinger building and the cranes.  

The case in front of Manley is much narrower in scope and seeks to restrict Stinger from the property, Payne said.

Payne said he was frustrated with the argument by Stinger’s attorneys that the county was trying to change courtrooms to get a more favorable result. “After the first complaint was denied, they say everything was involved with that case,” he said.

The defendants also argued that the county’s complaint contains “merely speculative allegations,” rather than findings of fact. Without an affidavit from Bowe, any claims about what Fisher said to him are simply hearsay, according to the motion to dismiss. On top of that, the defendants can enter the former Stinger building without stepping foot on private property.

“Perhaps the most important piece of evidence the plaintiff does not want this court to consider is the evidence showing defendants have access to the property via public streets,” Stinger’s attorneys wrote. “It is legally impossible to commit trespass on property that is dedicated as a public street.”

The temporary restraining order remains in place as the lawsuit moves forward. Lincoln County Presiding Commissioner Tony Berget said he was relieved by the judge’s decision.

“We’re glad to see that in place. We don’t want to see those cranes disappear,” Berget said. “Possession ends up being nine-tenths of the law. And we feel better when the cranes are here.”