Heringer v. Barnegat

04/27/2021
DA 20-0512

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0512

2021 MT 100

CHARLES J. HERINGER, III, as the Trustee of the
CHARLES J. HERINGER, III, Trust, dated May 20, 1999,
as Amended and Restated; RONALD R. BROADWAY;
SHAWN A. SCHAFFER and KRISTY M. SCHAFFER;
MICHAEL A. DiFRONZO; TRACIE E. PABST; MOOSE 59, LLC;
and MOOSE DROOL PROPERTIES, LLC,

Plaintiffs and Appellants,

v.

BARNEGAT DEVELOPMENT GROUP, LLC; RZLDZL, LLC;
and John and Jane Does 1-10;

Defendants and Appellees.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-20-114B
Honorable Rienne H. McElyea, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Robert K. Baldwin, Goetz, Baldwin & Geddes, P.C., Bozeman, Montana

For Appellees:

Alanah Griffith, Patrick Tillisch, Griffith & Cummings, PC, Big Sky,
Montana (for Barnegat Development Group, LLC)

Elizabeth W. Lund, Berg Lilly, PC, Bozeman, Montana
(for RZLDZL, LLC)

Submitted on Briefs: March 3, 2021

Decided: April 27, 2021

Filed:
c.,.--.6--4f
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 The owners of condominium units located in Big Sky, Montana, sued the

condominium developer for breach of contract and declaratory judgment after the

developer unilaterally amended the condominium declaration to create a new homeowners’

association to which new unit owners would belong, leaving the existing unit owners in

the original association. Before answering the complaint, the developer revoked the

amendment to the declaration. The Eighteenth Judicial District Court, Gallatin County,

dismissed the case as moot and declined to award attorney fees to either party, concluding

neither party was a prevailing party under the circumstances. The condominium owners

appeal, raising the following restated issues on appeal:

1. Whether the District Court erred dismissing the case as moot; and

2. Whether the District Court erred in refusing to award attorney fees and costs.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Charles J. Heringer, III, as the Trustee of the Charles J. Heringer, III, Trust, dated

May 20, 1999, as Amended and Restated; Shawn A. Schaffer and Kristy M. Schaffer;

Michael A. DiFronzo; Tracie E. Pabst; Moose 59, LLC; and Moose Drool Properties, LLC

(Owners) own existing condominium units in the Moose Ridge Condominium

Development in Big Sky, Montana. Their seven units were built between 2007 and 2009.

The Owners all purchased their individual units before September 2018.

¶4 The Amended and Restated Declaration for Moose Ridge Condominium (the

“Declaration”), filed with the Gallatin County Clerk and Recorder in 2007, governs the

2
development of the Moose Ridge condominiums and provides for the Moose Ridge

Condominium Owners’ Association, Inc. (the “Association”).1 The Declaration provides

a procedure for seeking the Owners’ consent to amend the Declaration. It also allows the

developer to unilaterally amend the Declaration “for the purposes of correcting survey or

other errors and for any other purpose unless the amendment would materially alter or

change the rights of a Unit Owner or mortgagee, in which event Unit Owner and mortgagee

consent shall be required as provided above.” The Declaration further provides

“[n]otwithstanding the procedure set forth above, the [developer] may amend this

Declaration, or any other Governing Documents, prior to any sale or lease of a Unit or

interest thereof.”

¶5 Barnegat Development Group, LLC (Barnegat) acquired the development rights to

Moose Ridge from the prior developer in September 2018 and began taking steps to

develop the remaining units. Barnegat called a meeting with the Owners shortly after

acquiring the development rights to discuss issues facing the Association. The meeting

took place on December 5, 2018, with most of the Owners in attendance. Barnegat told

the Owners the Association was facing multiple financial issues. Under the Declaration,

the Association was responsible for maintaining the common elements of the

condominiums as defined by the Declaration, which included, among other things, the

structural components of the buildings such as the foundations, as well as the roofs of the

1
The development was originally created with the filing of the Preliminary Declaration for Moose
Ridge Condominium in 2006. The amendments filed in 2007 are not contested and thus govern
this controversy.

3
buildings, decks, patios, and asphalt. Since the construction of the existing units about ten

years prior, little to no maintenance and repair had taken place on the Owners’ units. The

Association had not set aside reserve money for the repair and replacement of expensive

items like roofs, decks, siding, and asphalt. In addition, one of the condominium buildings,

housing two of the existing units, had unaddressed foundation issues. The statute of

limitations for construction defects against the original builder/developer had run on the

foundation issues and the Association was now responsible for the costs of the needed

repairs to these units.

¶6 Barnegat explained to the Owners at the meeting these issues could prevent the

future sale of any new units that Barnegat built. Any new owners would be added to the

Association and share responsibility to pay for these existing liabilities. The cost to address

these issues was unknown at that time. Given the state of the Association’s finances and

the unknown cost of the liabilities facing the Association, financing for purchasers of new

units was in jeopardy, as banks may not approve a loan for the purchase of a condominium

unit within the Association. Barnegat advised the Owners it intended to begin selling new

units the following summer. If the Association had not resolved these issues by that time,

Barnegat warned it would look into splitting the Association into two associations, one

including all the existing units and the other including all the new units.

¶7 After the meeting, Barnegat took steps to determine the extent of the liabilities

facing the Association. Barnegat ordered and paid for a reserve study, which identified the

various maintenance and repairs needed, their costs, and the amount the Association

needed to assess the Owners to bring the reserve accounts up to where they should be.

4
Barnegat also commissioned an engineering report on the foundation issues, which were

determined to be caused by expansive clays, settlement, and poor drainage around the

building. The report estimated the cost of the repair could be anywhere between $50,000

and $350,000. Barnegat received this report shortly before the closing date for the sale of

the eighth unit in November 2019. Barnegat disclosed the report to the buyer of the eighth

unit. The buyer, RZLDZL, LLC, demanded Barnegat split the Association and indemnify

it from any future suit. On October 16, 2019, Barnegat filed the amendment (the

“Amendment”) at issue in this litigation with the Gallatin County Clerk and Recorder,

creating two separate homeowners’ associations. Barnegat closed the sale with RZLDZL.

¶8 In a January 8, 2020 letter from Barnegat’s counsel to the Owners’ counsel,

Barnegat explained the association split was in response to two issues: the unresolved

foundation issues with two units and the lack of reserves to pay for needed maintenance,

repair, and replacement of common elements. Barnegat explained these issues could cause

financing issues and prevent the sale of new units. Barnegat maintained it

split the associations to give your clients more time to fix the issues. It was
never the intention that this would be a permanent split . . . . [A]s soon as
[the foundation issue] is fixed and the reserves are brought up to industry
standards, my client will look at combining the associations again.

The owners filed suit against Barnegat2 on January 24, 2020, alleging breach of contract

and seeking a declaratory judgment “the Amendment is invalid, null and void.”

2
Owners also named RZLDZL as a defendant, as it was a member of the newly created association.
On February 12, 2020, RZLDZL appeared and stipulated it would not defend this case but will be
bound by the final judgment.

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¶9 Before Barnegat filed its answer, the Owners and Barnegat stipulated to a stay in

the proceedings on February 26, 2020. While the case was stayed, Barnegat sought

estimates for the cost of repairing the foundation issues, which came in at $60,000. In an

April 9, 2020 letter to the Owners’ counsel, Barnegat’s counsel explained its

plan is to file an amendment revoking the Amendment which split the
Association into two Associations. . . . Barnegat will take over the Board [of
the Association] . . . . Then, Barnegat/Board plans to move forward with
fixing [the foundation issues] and apportioning the cost between the 8 Units.
Should Barnegat revoke the amendment, I believe your clients’ lawsuit
would be moot.

In closing, Barnegat’s counsel informed the Owners “I will move forward with filing the

Revocation of the Amendment, and then file the Motion to Dismiss.”

¶10 The Owners filed a notice of withdrawal from the stipulation to stay the case on

April 20, 2020. Barnegat filed a revocation of the Amendment with the Gallatin County

Clerk and Recorder on April 21, 2020. Barnegat then filed both its answer and a motion

for summary judgment with the District Court on April 30, 2020. In its three-page motion

and brief, Barnegat argued the case was moot because it had revoked the Amendment,

attaching a copy of the filed revocation as an exhibit.

¶11 The Owners filed an extensive brief in opposition and cross-motion for summary

judgment, seeking a declaration from the court the Amendment was invalid because

Barnegat did not have authority under the declarations to file the Amendment splitting the

Association. In its response brief, Barnegat argued both counts of the complaint were

moot, because it had revoked the Amendment and although it maintained that it had

authority under the Declaration to file the amendment to create two homeowners’

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associations, it had sworn not to unilaterally amend the Declaration again because it had

resolved the underlying issues. Barnegat attached an affidavit from Russell Lucas, the

managing member of Barnegat, in which he attested Barnegat had revoked the amendment,

assumed control of the Association, and had begun moving forward with the needed

repairs. He concluded, “I will not need to file another amendment splitting the Association

into two associations as I have resolved the underlying issues which caused Barnegat to

file the amendment in the first place and I prefer to have one association.” Both parties

sought their attorney fees and costs as the prevailing party.

¶12 On September 24, 2020, the District Court dismissed the case as moot under M. R.

Civ. P. 12(b)(1). The District Court declined to award either party their attorney fees and

costs, concluding neither party was the prevailing party.

STANDARDS OF REVIEW

¶13 We review a district court’s conclusions of law for correctness. Havre Daily News,

LLC v. City of Havre, 2006 MT 215, ¶ 9, 333 Mont. 331, 142 P.3d 864. “Mootness, as an

issue of justiciability, presents a question of law,” which we review for correctness.

Montanans Against Assisted Suicide (MAAS) v. Bd. of Med. Exam’rs, 2015 MT 112, ¶ 7,

379 Mont. 11, 347 P.3d 1244 [hereinafter MAAS]; see also Gottlob v. DesRosier, 2020 MT

210, ¶ 5, 401 Mont. 50, 470 P.3d 188.

¶14 Whether legal authority exists entitling a party to recover attorney fees is a question

of law reviewed for correctness. See Havre Daily News, LLC, ¶ 11. If legal authority exists

to award attorney fees, we review the district court’s order granting or denying attorney

fees under that authority for an abuse of discretion. See Whipps, L.L.C. v. Kaufman, Vidal,

7
Hileman & Ramlow, P.C., 2007 MT 66, ¶ 6, 336 Mont. 386, 156 P.3d 11. Thus, we review

a district court’s determination of “prevailing” or “losing” parties for an abuse of

discretion. Whipps, L.L.C., ¶ 6.

DISCUSSION

¶15 1. Whether the District Court erred dismissing the case as moot.

¶16 The District Court concluded the issues in the case were moot and dismissed the

case under M. R. Civ. P. 12(b)(1). The court explained the Owners sought a declaration

from the court that the Amendment was invalid, but the issue of the validity of the

Amendment was moot as Barnegat had revoked it. The court declined to apply the

voluntary cessation exception to the mootness doctrine. Relying on language in Havre

Daily News, LLC, the District Court explained the voluntary cessation doctrine generally

will not apply when there has been only a single instance of a party ceasing an allegedly

wrongful act as a result of the filing of a lawsuit. The court concluded because there was

only a single incident at issue, it was not reasonable to expect the same wrong to recur.

¶17 The Owners argue on appeal the District Court misinterpreted this Court’s holding

in Havre Daily News, LLC. They maintain this Court’s reasoning in Havre Daily News,

LLC, to decline the application of the voluntary cessation exception when there was only a

single incident was limited to the fact-intensive inquiry of whether a government entity has

properly withheld criminal justice information. Owners argue that situation is not

analogous to the facts of this case. Rather, they argue the voluntary cessation exception to

mootness should apply in this case because unlike the fact-intensive constitutional analysis

at issue in Havre Daily News, LLC, ¶ 38, there is not an “infinite assemblage of variables”

8
involved in analyzing the contract provision at issue here, which would render a decision

of “limited meaningful guidance” as to dispute between “hypothetical future parties.” The

Owners further maintain Barnegat cannot meet its burden to establish its conduct cannot

reasonably be expected to recur because Barnegat defends the correctness of its action and

maintains the Declaration gave it the authority to split the association into two.

¶18 Article VII, Section 4, of the Montana Constitution limits the judicial power of the

courts of Montana to justiciable controversies. See, e.g., Greater Missoula Area Fed’n of

Early Childhood Educators and Related Pers. v. Child Start, Inc., 2009 MT 362, ¶ 22,

353 Mont. 201, 219 P.3d 881 “A justiciable controversy is one upon which a court’s

judgment will effectively operate, as distinguished from a dispute invoking a purely

political, administrative, philosophical or academic conclusion.” Plan Helena, Inc. v.

Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 8, 355 Mont. 142, 226 P.3d 567 (quoting

Clark v. Roosevelt County, 2007 MT 44, ¶ 11, 336 Mont. 118, 154 P.3d 48). Thus “[a]

court lacks jurisdiction to decide moot issues or to give advisory opinions insofar as an

actual ‘case or controversy’ does not exist.” Plan Helena, Inc., ¶ 11.

¶19 “A matter is moot when, due to an event or happening, the issue has ceased to exist

and no longer presents an actual controversy.” Havre Daily News, LLC, ¶ 31 (quoting

Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, 974 P.2d

1150). If the issue presented at the outset of the action has ceased to exist or if a court can

no longer grant effective relief due to an intervening event or change in circumstances, the

issue is moot. Havre Daily News, LLC, ¶ 31. “[A] justiciable controversy in which the

parties have a personal stake must exist at the beginning of the litigation, and at every point

9
thereafter, unless an exception to the doctrine of mootness applies.” Havre Daily News,

LLC, ¶ 31. If a court lacks jurisdiction, then it may take no action in the case other than to

dismiss it. Plan Helena, Inc., ¶ 11.

¶20 When the challenged conduct is of indefinite duration but is voluntarily terminated

by the defendant prior to completion of appellate review, the “voluntary cessation”

exception to mootness may apply. Havre Daily News, LLC, ¶ 34. Under such

circumstances, “[a] case might become moot if subsequent events made it absolutely clear

that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708

(2000) (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203,

89 S. Ct. 361, 364 (1968)). “Due to concern that a defendant may utilize voluntary

cessation to manipulate the litigation process,” the “heavy burden” of demonstrating “the

challenged conduct cannot reasonably be expected to start again lies with the party

asserting mootness.” Havre Daily News, LLC, ¶ 34 (quoting Friends of the Earth, Inc.,

528 U.S. at 189, 120 S. Ct. at 708). In MAAS, we elaborated that the voluntary cessation

exception applies

in the limited circumstances where the defendant has voluntarily ceased the
alleged wrong; where it is “reasonable to expect the ‘same wrong’ to recur,
such that a ruling on the merits would be of . . . discernible future benefit to
the litigants or the interests of judicial economy”; and where the
reasonableness of such recurrence is supported by evidence, rather than
speculation or allegation alone.

MAAS, ¶ 15 (quoting Havre Daily News, LLC, ¶¶ 38-40) (alteration in original).

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¶21 We agree with the Owners the District Court misapplied our holding in Havre Daily

News, LLC. Whether there has been only a single instance of a party ceasing an alleged

wrongful act may not carry great weight or be dispositive in every case. Rather, the

relevance of such an inquiry depends on the circumstances of the case. In Havre Daily

News, LLC, the newspaper alleged a violation of the constitutional right to know because

the city of Havre withheld unredacted documents the newspaper requested. Whether a

violation of the constitutional right to know has occurred is a heavily fact-dependent

inquiry, given the need to balance the right to know against an individual’s constitutional

right to privacy. In Havre Daily News, LLC, we explained the exact harm at issue could

not recur, because copies of the requested unredacted documents had been turned over to

the newspaper and the city could not withhold those same documents again. The

newspaper did not “point to inevitable future violations of the right to know in anything

other than conjectural, conclusory fashion” and there was “no concrete evidence suggesting

that Havre will perpetrate a substantially similar wrong.” Havre Daily News, LLC, ¶ 40.

Additional violations were speculative because the newspaper could only point to the

single occurrence of the city violating the right to know by withholding documents until

being sued and a decision on the merits under the facts of this particular case would provide

limited meaningful guidance for future disputes.

¶22 Our holding in MAAS further elaborates on the voluntary cessation exception and is

instructive in this case. In MAAS, MAAS sued the Board of Medical Examiners to

withdraw a position statement that purported to provide guidance to doctors on assisted

suicide after this Court’s decision in Baxter v. State, 2009 MT 449, 354 Mont. 234,

11
224 P.3d 1211. MAAS argued the position statement exceeded the board’s authority. In

response to the suit, the board rescinded all its prior position statements, including the one

at issue in the suit and removed them from its website. We upheld the dismissal of the case

as moot. We rejected the application of the voluntary cessation exception because there

was no indication that the board would issue any position statements, much less one

interpreting the Baxter case, in the future. “Faced with such a lack of ‘concrete evidence

suggesting that [the defendant] will perpetrate a substantially similar wrong’” we refused

to apply the voluntary cessation exception to mootness. MAAS, ¶ 16 (quoting Havre Daily

News, LLC, ¶ 40) (alteration in original).

¶23 Barnegat has consistently maintained it split the Association for two reasons: the

Association’s lack of financial reserves and the unresolved foundation issues with two

units. The Owners do not allege Barnegat’s provided reasons for splitting the homeowners’

association are pretextual or post-hoc explanations for purposes of litigation. Between the

filing of the Amendment and its revocation, Barnegat was able to address both these issues

and the managing member of Barnegat swore under oath in an affidavit, there is no longer

any need for two associations, and he will not need to split the associations again in the

future.3 Barnegat, thus, provided strong evidence that subsequent events had made it

absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.

3
Counsel for Barnegat is even more direct, maintaining in briefing before this Court and the
District Court that Barnegat will not unilaterally split the association again. Having taken this
position before both the District Court and this Court, Barnegat would be hard pressed to defend
any unilateral split of the Association in the future. See Gibbs v. Altenhofen, 2014 MT 200, ¶ 17,
376 Mont. 61, 330 P.3d 458 (“Judicial estoppel precludes a party to an action or proceeding from
taking a position inconsistent with the party’s previous judicial declarations.” (quoting Vogel v.
Intercontinental Truck Body, Inc., 2006 MT 131, ¶ 10, 332 Mont. 322, 137 P.3d 573));
12
¶24 The Owners argue Barnegat fails to meet its burden to establish its conduct cannot

reasonably be expected to recur because Barnegat defends the correctness of its action and

maintains the Declaration gave it the authority to split the association into two.4 The

owners argue this suggests a probability, or at least a possibility, of recurrence. We

disagree. There is no indication in the record before us Barnegat will repeat the offending

behavior in the future and Barnegat is bound by the representation of its managing member,

Russell Lucas, it will not repeat the offending behavior. The issues leading to the filing of

the Amendment were resolved and are unlikely to recur. In response to this evidence, the

Owners have failed to point to “concrete evidence suggesting that [Barnegat] will

perpetrate a substantially similar wrong” in the future. Havre Daily News, LLC, ¶ 40. Such

“concrete evidence” could include, but is not limited to, evidence that Barnegat had

previously revoked an allegedly invalid amendment as a result of a lawsuit. Although the

Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 15, 307 Mont. 238, 36 P.3d 408 (“The
fundamental purpose of judicial estoppel is to protect the integrity of the judicial system and thus
estop a party from playing ‘fast and loose’ with the court system.”); see also Already, LLC v. Nike,
Inc., 568 U.S. 85, 94, 133 S. Ct. 721, 728 (2013); New Hampshire v. Maine, 532 U.S. 742, 749,
121 S. Ct. 1808, 1814 (2001) (“Where a party assumes a certain position in a legal proceeding,
and succeeds in maintaining that position, he may not thereafter, simply because his interests have
changed, assume a contrary position, especially if it be to the prejudice of the party who has
acquiesced in the position formerly taken by him.” (quoting Davis v. Wakelee, 156 U.S. 680, 689,
15 S. Ct. 555, 558 (1895))).
4
The Dissent maintains the issues between the parties are not moot because the Owners sought
construction of the Declaration and a ruling that the Declaration could not be amended unilaterally
by Barnegat upon each new sale of an individual unit. The declaration the Owners sought from
the court in their Complaint, however, was very narrowly written and was not amended. Although
the Owners stated in their complaint they “are entitled to have the court construe the documents
and determine the validity of the Amendment and declare the respective rights of the parties,” the
declaration the Owners sought in the Complaint is simply “A declaration that the Amendment is
invalid, null and void.”

13
District Court misapplied our holding in Havre Daily News, LLC, we conclude the District

Court did not err in declining to apply the voluntary cessation exception to mootness in this

case. We will affirm a district court when it reaches a legally correct result, even if it

reaches the right result for the wrong reason. Dennis v. Brown, 2005 MT 85, ¶ 6, 326 Mont.

422, 110 P.3d 17.

¶25 2. Whether the District Court erred in refusing to award attorney fees and costs.

¶26 The Owners seek attorney fees under both the terms of the Declaration and under

§ 27-8-313, MCA, of the Uniform Declaratory Judgments Act. The District Court declined

to award attorney fees under either theory because it determined there was no prevailing

party. On appeal, the Owners argue they are entitled to an attorney fee award even if the

case was rendered moot. Relying on Havre Daily News, LLC, the Owners argue fees

should be awarded to a party who is forced to file litigation to obtain the relief sought, even

though the case becomes moot and thus yields no ruling on the merits. The Owners argue

the District Court erred in concluding they did not prevail in the suit because they failed to

concede the mootness issue and continued to pursue the merits before the District Court.

The Owners argue from a policy standpoint they should be awarded attorney fees because

“facing imminent defeat,” Havre Daily News, LLC, ¶ 44, Barnegat mooted the case to

dodge the fee-shifting provisions of the Declaration and § 27-8-313. MCA. The Owners

and Barnegat both seek attorney fees on appeal.

¶27 A determination a case is moot does not preclude an award of attorney fees

authorized under statute or contract. Houden v. Todd, 2014 MT 113, ¶ 30, 375 Mont. 1,

324 P.3d 1157. Rather, the question whether a party should be awarded attorney fees “turns

14
instead on a wholly independent consideration: whether the plaintiff is a ‘prevailing

party.’” Houden, ¶ 30 (quoting Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980)). “The

term ‘prevailing party’ is ‘a legal term of art.’” MC, Inc. v. Cascade City-County Bd. of

Health, 2015 MT 52, ¶ 41, 378 Mont. 267, 343 P.3d 1208 (quoting Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603, 121 S. Ct.

1835, 1839 (2001)). “A determination of the prevailing party requires consideration of all

the facts and circumstances of a case.” Gibson v. Paramount Homes, LLC, 2011 MT 112,

¶ 19, 360 Mont. 421, 253 P.3d 903. The general rule is the “prevailing party is the one

who has an affirmative judgment rendered in his favor at the conclusion of the entire case.”

Avanta Fed. Credit Union v. Shupak, 2009 MT 458, ¶ 49, 354 Mont. 372, 223 P.3d 863

(quoting Schmidt v. Colonial Terrace Assocs., 215 Mont. 62, 68, 694 P.2d 1340, 1344

(1985)). Under limited circumstances, we have approved an award of attorney fees to a

party who did not obtain an affirmative judgment on the merits but nonetheless obtained

the “very relief it sought to procure through litigation.” Citizens for Balanced Use v. Mont.

Fish, Wildlife & Parks Comm’n, 2014 MT 214, ¶ 15, 376 Mont. 202, 331 P.3d 844 (quoting

Havre Daily News, LLC, ¶ 44). A district court is in the best position to understand the

circumstances of the case and the parties’ positions, and we will not reverse its

determination of “prevailing party” absent an abuse of discretion. See Sullivan v.

Cherewick, 2017 MT 38, ¶ 41, 386 Mont. 350, 391 P.3d 62.

¶28 In Havre Daily News, LLC, this Court upheld the district court’s limited award of

attorney fees “incurred in securing the unredacted” documents but denying any attorney

fees incurred after the release of those documents, as the additional prospective relief the

15
newspaper sought was not justiciable. Havre Daily, News, LLC, ¶¶ 44, 48. On the issue

of obtaining the unredacted documents, we held the newspaper “did not technically

‘prevail’ in its action” but “prevailed in substance,” because it had obtained “the very relief

it sought to procure through litigation,” that is, the release of the unredacted documents.

Havre Daily News, LLC, ¶ 44. We warned a party cannot provide the relief sought to moot

a case “after extensive litigation, at the eleventh hour, and facing imminent defeat” in an

attempt to “dodge [a] fee-shifting statute.” Havre Daily News, LLC, ¶ 44.

¶29 In their complaint, the Owners alleged a breach of contract and sought specific

performance of the Declaration and a decree the Amendment was invalid, null, and void as

a violation of the Declaration. The Declaration allows for attorney fees for the prevailing

party of the contract claim and § 27-8-313, MCA, grants the District Court discretion to

award attorney fees in declaratory judgment suits “whenever necessary or proper.” This

case became moot when the challenged Amendment was revoked and was no longer in

effect. After Barnegat revoked the Amendment, the District Court could no longer provide

the Owners with the relief they sought in their complaint. Nonetheless, the Owners argued

the case was not moot and continued to seek a decree from the court that the revoked

Amendment was invalid, null, and void under the Declaration. As the District Court

correctly determined the issue was moot and any decree would have amounted to an

advisory opinion. The Owners could not obtain the very relief it sought of obtaining a

decree from the District Court or specific performance of the Declaration.

¶30 The revocation did invalidate the Amendment, however, which was the ultimate

outcome the Owners sought under both their breach of contract and declaratory judgment

16
claims. Based on this record though, it is not clear the Owners were forced to file this suit

to obtain the revocation of the Amendment because it is not clear Barnegat revoked the

Amendment in response to this suit. Barnegat had been taking steps to resolve the

Association’s financial issues since 2018. Barnegat filed the Amendment in October 2019

to prevent the sale of a new unit from falling through. Before litigation began in this case,

Barnegat informed the Owners it preferred for the amendment to be temporary and would

work to consolidate the associations when the financial issues were resolved. In the time

between the filing of the Owners’ suit and the revocation of the Amendment, Barnegat

learned the foundation issue was not as expensive to repair as feared. It then revoked the

Amendment, took over the Association, and began taking steps to resolve the underlying

financial issues facing the Association. Barnegat revoked the Amendment before filing an

answer to the complaint. The Owners point to no evidence Barnegat’s stated reasons for

revoking the Amendment were mere pretext to avoid a decision on the merits or an attempt

to dodge the fee-shifting provisions of the Declaration and § 27-8-313, MCA, when “facing

imminent defeat.” Under these circumstances, the District Court concluded neither party

was the prevailing party. The District Court was in the best position to make this

determination and we find no abuse of its discretion in its determination the Owners were

not prevailing parties.

¶31 As we do not disturb the District Court’s determination that neither party was the

prevailing party, we also decline to award attorney fees to either party on appeal. See R.C.

Hobbs Enters., LLC v. J.G.L. Distrib., Inc., 2004 MT 396, ¶¶ 51-52, 325 Mont. 277,

104 P.3d 503.

17
 CONCLUSION

¶32 The District Court is affirmed.

/S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR

Justice Beth Baker, dissenting.

¶33 Tracking Barnegat’s argument, the Court focuses narrowly on the Amendment to

split the Association in two to conclude that revocation of that Amendment moots this

controversy. The Court emphasizes Barnegat’s representations in the District Court and

on appeal that it “will not unilaterally split the association again.” Opinion, ¶ 23 n.3. The

Court thus concludes that the voluntary cessation exception to mootness does not apply

because there is no “concrete evidence suggesting that [Barnegat] will perpetrate a

substantially similar wrong” in the future. Opinion, ¶ 24.

¶34 What the Court overlooks is the Owners’ claim for declaratory judgment, seeking a

declaration of their rights under the Declaration for the Moose Ridge Condominiums

regarding Barnegat’s ability to make a unilateral amendment. Their complaint sought to

have the District Court “construe the documents and determine the validity of the

Amendment and declare the respective rights of the parties.” The Uniform Declaratory

Judgments Act, §§ 27-8-101 through -313, MCA, allows a court to afford a party

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“relief from uncertainty and insecurity with respect to rights, status, and other legal

relations; and it is to be liberally construed and administered.” Needham v. Kluver,

2019 MT 182, ¶ 16, 396 Mont. 500, 446 P.3d 504 (quoting Murray v. Motl, 2015 MT 216,

¶ 11, 380 Mont. 162, 354 P.3d 197; § 27-8-102, MCA) (internal quotation marks omitted).

“Any party to a written contract, or whose rights, status, or other legal relations are affected

by a contract, may have its construction and validity determined and obtain a declaration

of rights, status, or other legal relations from a district court.” Needham, ¶ 16 (citing

§§ 27-8-201, -202; Murray, ¶ 11). “A contract may be construed either before or after

there has been a breach thereof.” Section 27-8-203, MCA.

¶35 Although the amendment they sought to invalidate was the amendment splitting the

Association in two, the Owners sought construction of the declaration of covenants and a

ruling that they could not be amended by Barnegat unilaterally upon each new sale of an

individual unit. As the party asserting mootness, Barnegat bears a “heavy burden” to

demonstrate that its “challenged conduct cannot reasonably be expected to start up

again[.]” Havre Daily News, LLC, ¶ 34. Both before the District Court and on appeal,

Barnegat has chosen its words carefully in attempt to defeat the voluntary cessation

exception to mootness. Barnegat points out its clear statement that it “will not” amend the

Declaration to split the Association into two separate associations; the Court relies on this

promise to find the action moot. Opinion, ¶¶ 23-24. Barnegat asserts without qualification,

however, that the Declaration allows it “to make any type of amendment prior to the sale

of any Unit.” Barnegat plainly anticipates future Unit sales. As the litigation demonstrates,

it made the unilateral amendment at issue in hasty fashion when a prospective buyer balked

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at closing the sale; a similar circumstance—even if it is some other provision of the

covenants to which a new purchaser objects—certainly may arise with the next sale, or the

sale after that, with little time for adjudication of the disputed language prior to closing.

The threatened repeated conduct is not the splitting of the Association but Barnegat’s

unilateral amendment of the Declaration. Invoking the voluntary cessation exception is

appropriate under these circumstances, when the defendant expressly defends its ability to

engage in repeated conduct of the sort challenged in the action.

¶36 I would conclude that Barnegat has failed to meet its burden to establish mootness.

Because the District Court dismissed the action without reaching the merits, I would

remand for consideration of the parties’ arguments on the construction of the Declarations’

provisions for amendment and for reconsideration of the Owners’ claim for attorneys’ fees.

/S/ BETH BAKER

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