WLW Realty Partners, LLC v. Continental Partners VIII, LLC, 360 P.3d 1112

Continental purchased a lot (Chalets 9 & 10) from Yellowstone Development in 2004; the sale agreement stated Yellowstone Development would construct groomed ski-in and ski-out access before home completion and provided a map of the proposed route.
Continental designed and began building Chalet 9 (sold to WLW Realty/W. Weidner in 2007) and Chalet 10; WLW inspected existing ski-in access and relied on Continental’s representation that ski-out access (to be built by Yellowstone Club/affiliate) would be completed before home completion.
Yellowstone Club never began ski-out construction and filed bankruptcy in November 2008; new owners later abandoned the ski-out plan.
WLW recovered about $225,000 in the Yellowstone Club bankruptcy for a rope-tow substitute, then sued Continental alleging negligent misrepresentation and violations of the Montana Consumer Protection Act (contract claims were dismissed on summary judgment).
At bench trial the District Court found Continental liable for negligent misrepresentation and MCPA violations and awarded roughly $2.2 million; the Montana Supreme Court reversed, holding (1) WLW failed to prove actionable negligent misrepresentation because the representations concerned a future event and were not untrue when made, and (2) WLW failed to show an MCPA violation for the same reason.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of negligent-misrepresentation legal argument	Continental waived the argument by first raising it in a reply brief	Reply was timely because WLW changed its theory in its response brief; fairness allowed the reply	Continental did not waive the argument; issue preserved for appeal
Whether representation was to an existing/past fact or a future event	WLW: representations were tied to an existing contractual right and thus concerned present facts	Continental: statement that Yellowstone would build ski-out was a prediction of a future event, not an existing fact	Court: representation was about a future event, not an existing fact; first element not met
Whether representation was untrue when made (scienter/not required)	WLW: ski-out ultimately never built, so representation was false and actionable	Continental: statement was reasonably believed true at the time; falsity occurred only after unforeseen bankruptcy	Court: representation was not untrue when made; second element not met; intent/knowledge irrelevant but temporal falsity required
MCPA liability for unfair/deceptive acts	WLW: Continental’s promise that chalet would have ski-out access was deceptive under the MCPA	Continental: depiction later proved false does not make it deceptive if it was true/ reasonable when made	Court: no MCPA violation because statements were not false when made; reversed judgment

Cechovic v. Hardin & Associates, Inc., 273 Mont. 104, 902 P.2d 520 (1995) (elements of negligent misrepresentation require representation as to a past or existing fact and that it be untrue)
Kitchen Krafters v. Eastside Bank, 242 Mont. 155, 789 P.2d 567 (1990) (a false representation must relate to a fact already in existence)
Harpole v. Powell County Title Co., 371 Mont. 543, 309 P.3d 34 (2013) (a statement may later prove false without being untruthful when made)
Circle S Seeds of Mont., Inc. v. Mont. Merch., Inc., 335 Mont. 16, 157 P.3d 671 (2006) (all elements of a tort must be proved for liability to arise)
Worledge v. Riverstone Residential Group, LLC, 379 Mont. 265, 350 P.3d 39 (2015) (issues first raised in reply briefs may be considered depending on fairness to the parties)