Lone Moose Meadows, LLC v. Boyne USA, Inc.
396 P.3d 128
Mont.
2017
Check Treatment

*1 LONE MOOSE MEADOWS,LLC, Counter-Claim Defendant Plaintiff, Appellant, v. Michigan corporation,

BOYNE d/b/a USA, INC., Big Sky Ski & Summer Resort, Counter-Claimant Defendant, Appellee. No. DA 16-0636. April Submitted on Briefs 2017. Decided June 2017. 2017 MT 142.

387 Mont. 507. 396 P.3d 128. *2 Appellant: Quentin Rhoades, Erickson, For M. Robert Erickson, PLLC, Rhoades Siefert & Missoula. Appellee: Stevens, Crowley Wagner,

For David M. Griffin B. PLLP, Fleck Bozeman. Opinion

CHIEF JUSTICE McGRATHdelivered the of the Court. Meadows, appeals summary judgment Lone Moose LLC from a ruling Boyne USA, in favor of Inc. We affirm. appeal We restate the issue on as follows: properly Boyne pursue

Did the District Court allow to successive claims contract? AND FACTUAL PROCEDURAL BACKGROUND (LMM) Meadows, Boyne USA, (Boyne) Lone Moose LLC Inc. corporations operating Big Sky, Boyne are Montana. is the owner operator Big Sky housing development LMM Resort. is a at the Big Sky operations In base of Resort. entered into an agreement pay Boyne LMM where would construct a ski lift and to operate operating it. annual maintenance and expenses, $50,000 yearly depreciation expense. as well as a agreement required pay any depreciation “[LMM] stated shall not be component operating expenses dollar until the 2002-2003 ski “replacement by season” and lifts will be constructed and owned Boyne.” 2002, Boyne operation In December sent a notice of lift expenses season, $50,000 for the 2002-2003 ski which included depreciation expenses. pay, stating LMMrefused to it was not pay depreciation expenses Despite until owned the ski lift. non-payment, Boyne operating lift, electing continued the ski to treat continuing. the contract as February 2008, Boyne filed suit for breach of contract.

asserted failed to make and demanded *3 payment years past payments: under the contract for the seven due 2002-03, 2003-04, 2004-05, 2005-06, 2006-07, 2007-08,2008-09. LMM obligated contended it was not to make until Boyne granted summary judgment owned the lift. The District Court Boyne, concluding obligated pay $50,000 LMM favor of was annually beginning appealed. LMM with the 2002-03 ski season. This I).1 upheld ruling (Boyne 2012, In Court the District Court’s October judgment against LMM the District Court entered a restated for seven depreciation expenses plus costs, fees, paid LMM and interest. $634,328.19 Boyne, satisfying judgment. appeal pending, LMM December while the above was against Boyne alleging engaged wrongful

filed an action it had respect judgment.2 Boyne collection efforts with to the first asserting LMM counterclaimed for breach of contract now owed depreciation expenses 2009-10, 2010-11, for the 2011-12 ski seasons. Boyne’s process, counterclaim also included claims for abuse of prosecution, punitive damages, third-party malicious as well as a against Dolan, claim LMM’sowner James Sr. The settled these voluntarily wrongful claims. moved to dismiss the collection only remaining claim and the District Court dismissed it. The issue Boyne’s Boyne breach of contract counterclaim. moved for summary judgment. hearing In October the District Court held a on

summary judgment any motion. it had not made payments, but that this breach of contract claim was barred preclusion, eliminating Boyne’s under the doctrine of claim thus judgment. granted Boyne’s entitlement to a new The District Court summary judgment motion. The District Court found that the second suit arose from facts not existence at the time of the first suit and Boyne had the to maintain successive actions for each new Boyne breach of the contract as arose. was not to sue for payments though material, future even LMM’s breach was and the pay depreciation District Court held LMM’s refusal to costs did not anticipatory repudiation agreement. amount to of the terms of the On 7,2015, judgment October the District Court entered favor of USA, Meadows, LLC, Inc. v. Lone Moose 2010 MT P.3d 1269. Restvedt, server, original complaint Tyler process included as a defendant. voluntarily dismissed him from the lawsuit.

510 $150,000, plus appeals. fees and interest.

STANDARD OF REVIEW grant summary We review de novo a district court's or denial of ¶7 judgment, applying the same criteria of M. R. Civ. P. 56 as a district Pilgeram Mortg. Funding, Inc., 354, 9, MT court. v. GreenPoint 2013 ¶ 373 Mont. 313 P.3d 839. We review a district court’s conclusions of they findings law to determine whether are correct and its of fact to clearly Pilgeram, determine whether are erroneous. 9. ¶ 56(c),judgment Under M. R. Civ. P. “shall be rendered forthwith pleadings, depositions, interrogatories, if the answers file, together affidavits, any, if admissions on with the show that there genuine any moving party is no issue as to material fact and that the judgment City Missoula, is entitled to a as a matter of law. Roe v. of 417, 14, MT 221 354 Mont. P.3d 1200. ¶

DISCUSSION properly Boyne pursue Did the District Court allow claims contract? of preclusion Boyne’s attempt LMM asserts claim barred to collect depreciation expense payments for three of and that the District determining preclusion in Court erred that claim did not bar claims this matter. contends their initial breach of the required contract was so severe that was to sue for all theory under the contract under a anticipatory repudiation. (“res preclusion judicata”) relitigation Claim bars the of a claim party opportunity litigate previous proceeding. had an Co., 184, 18, 78, 285 MT

Brilz v. Metro Gen. Ins. 366 Mont. P.3d ¶ relitigated judicata long An 494. issue cannot be under res so as the parties privies same, subject present or their are the matter of the past same, actions is the the issues are the same and relate to the subject matter, capacities same are the same to the subject them, judgment matter and issues between and a final on the State, MT merits has been entered. Denturist Ass’n Mont. v. 119, 11, 383 Mont. 372 P.3d 466. ¶ parties only dispute whether the issues are the same. argues preclusion applies by Boyne that claim because the issue raised is one that could have been raised the first action and preserve to do so under Montana law order to that claim. Altenhofen, 200, 10, MT Gibbs v. 330 P.3d 458. ¶

511 elementary We are not convinced. “It is an rule of law that where claims, payable times, several at different arise out of the same contract, may brought liability Clark, suit be as each accrues.” Cohen v. (1911). 151, 155, 119 775, 44 Mont. P. 777 The issues are not the same. years Each law suit addresses different the contract. Significantly, expressly grants contracting Montana law to maintain successive actions on the same contract. Court, State ex rel. Towne v. Second Judicial Dist. Mont. (1942); Wolff, (1962); P.2d 161 Green v. 372 P.2d 427 (“successive 28-2-1501, may upon MCA actions be maintained § same contract or transaction whenever after the former action a new therefrom”). cause of action arises Towne, couple intended to divorce and created a contract for property custody

division of their as well as care and of their minor Towne, 3-4, child. Mont. at 132 P.2d at 162. The district court approved pay the contract. Within the the father to support Towne, 114 to the mother for of her and the child. Mont. $150 4, 132 age 18, at P.2d at 162. After the child reached the father refused monthly modify to Father filed a motion to the divorce $150. monthly payments. contract as to the amount of The motion was heard support but no decision was made. Mother sued for two months of payments (January, February); the district court issued a writ of discharge contending attachment. Father filed a motion to the writ complaint there was no contract. Mother amended her to include the payment. missed March The district court issued another writ of again discharge attachment. Father filed a motion to the writ. The appeal, district court denied Father’s motions. Before Father filed the action, intervening Mother filed another for the three months of support payments (April, May, June), paid. which Father had not Again, appealed. the district court issued a writ of attachment. Father permitted Father mother should not be monthly Towne, 114 suits for the installments as become due. (1943) (petition rehearing). Mont. at 132 P.2d at 171-72 This rejected argument. Relying substantively Court his on the identical predecessor 28-2-1501, MCA, this Court held that the mother was Towne, entitled to maintain successive actions on the contract.3 (1943) (petition rehearing). LMM Mont. at 132 P.2d at 172 attempts distinguish disagree. this case as “not a contract case.” We acknowledged parties’ rights solely The Court Towne rested 3 R.C.M. 1921 9819. *6 Towne, 6-7, 132 (rejecting

on the contract. Mont. at P.2d at 163-64 argument obligation pay upon the father’s that “his ... is not based action.”) a contract but the decree of the court the divorce Green, 415, a landlord leased a ranch to a tenant. 140 Mont. at four-year contract, 372 P.2d at 429. Under the the landlord was to provide steer; six hundred head of the tenant was to tend the herd and Green, 415-16, annual rent. 140 Mont. at 372 P.2d at 429. The agreement provided that, following animals, a fall sale of the the Green, parties split profits. would 140 Mont. at 372 P.2d at year, parties’ agreement apart. 429. After the first fell The landlord made it known that he wished the tenant off the land and refused to operate profits under the terms ofthe contract. The tenant sued for lost year two, shortly again year’s thereafter sued for the third lost Green, profits. 140 Mont. at 372 P.2d at 430. The district court ruled favor of the tenant. appeal, On the landlord that the tenant had elected to damages. Therefore,

treat the contract as breached and sue for split up year’s tenant could not then the contract and sue for each damages. rejected argument, again finding This Court predecessor §28-2-1501, MCA, controlling.4 identical parties’ parts. contract “contained several divisible It ran for four year separate phase and each ... was a to be Green, separately performed and settled.” 140 Mont. at 372 P.2d at 434. This Court held successive actions could be maintained for each Green, year parties’ contract. 140 Mont. at 372 P.2d at 434. Here, Boyne twice, years’ sued once after the first seven made, again were not after the final three years’ depreciation payments were not made. While the obligations contract, continued all other under the the issues are not payment period identical. Each missed was for a different of time. Further, Boyne’srights 28-2-1501, MCA, applied in under as Towne and Greene to successive actions on the same defeats preclusion. LMM’sdefense of claim clearly owes under the contract. The contract was nothing required Boyne damages

never terminated and to sue for all litigation. under the contract the first

CONCLUSION regarding The District Court’s conclusions of law this contract 4 R.C.M.1947 93-8704. *7 argument

were correct. LMM’s fails to establish that claims by preclusion. were barred considerations of claim Because we have application 28-2-1501, MCA, dispositive determined that the of is of § case, arguments appeal. this we will not address LMM’s other on Further, ruling by under the terms of the contract and the this Court Boyne 1, Boyne attorney’s is entitled to reasonable fees it incurred appeal. on We remand to District Court for the determination of attorney’s fees. Affirmed. SHEA, McKINNON,

JUSTICES WHEAT and SANDEFUR concur. MCKINNON, concurring.

JUSTICE agree analysis regarding I with the Court’s decision and 28-2- § 1501, MCA, application proceedings. However, I and its to these feel compelled appears obvious, to add what to be but nonetheless overlooked; may not, breaching party, as the choose the remedy anticipatory gives wronged party, An for its breach. breach proceedings Boyne, in these to either rescind the repudiation breach, bring treat the as a or to suit after the time for performance passed. Anticipatory repudiation allows, has but does not require, wronged party a breach of contract action before the opposing party’s performance time the is due. STC, City Billings, 364, 370-71, We held Inc. v. of (1975), legal anticipatory 543 P.3d effect ofan 472(1), pp. 653-55, by

is described 17A C.J.S. Contracts this language: party by executory repudiates

Where a bound an contract or obligation performance renounces his before the time for promisee according great weight authority, option has to the an ended, performance to treat the contract as as far as further is concerned, damages and to maintain an action at once for by anticipatory breach, repudiation, occasioned such or renunciation, specific even the absence from the contract of a provision authorizing the maintenance of an action or the declaring of a forfeiture. Accordingly, would, analysis I in addition to the Court’s of 28-2-

1501, MCA, definitively reject attempt remedy LMM’s to choose the Boyne may anticipatory remedy elect for LMM’s breach. The anticipatory option wronged party, breach is at the which is not only precedent, consistent with our own but the universal rule and weight authority jurisdictions. from other reasons, I For these concur.

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