No. 87-362
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
FRED W. MAGERS and CECILA MAGERS,
DONALD R. ABRAHAMSON and LOUINE W.
ABRAHAMSON, THOMAS TILLMAN and THOMAS
ORCUTT ,
Plaintiffs and Respondents,
-vs-
THE SHINING MOUNTAINS, a California limited
partnership,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Landoe, Brown, Planalp, Komrners & Johnstone; Steve
Reida argued, Bozeman, Montana
Jones & Hoffman; Chester Lloyd Jones argued, Virginia
City, Montana
For Respondent:
Poore, Roth & Robinson; C. Richard Anderson argued and
John P. Davis argued, Butte, Montana
Submitted: January 6, 1 9 8 8
Decided: February 16, 1 9 8 8
*4
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendant-Shining Mountains appeals from a District
Court decision requiring it to provide and construct roadways
throughout a subdivision located in Madison County and to pay
reasonable attorney's fees to plaintiffs. We affirm and
remand with instructions.
This appeal comes from a Madison County bench trial
before the Honorable Frank M. Davis, which was concluded
September 30, 1986. Defendant, "The Shining Mountains," a
California limited partnership, is the owner-developer of
property known as the "Shining Mountains Subdivision" located
in Madison County, Montana. A dispute arose between
defendant and individuals purchasing parcels within the
subdivision as to the extent and nature of defendant's
commitment to construct roadways within the subdivision. The
plaintiff-landowners filed suit alleging defendant
represented that roadways would be provided as part of the
development and constructed by defendant..
This Court previously reversed a partial summary
judgment in favor of plaintiffs. Magers v. Shining Mountains
(Mont. 1986), 711 P.2d 1375, 43 St.Rep. 16 (holding that a
genuine issue of fact remained in determining what
representations were made by defendant to plaintiffs as to
the construction of roadways, and that roadway easement
designations on the plat maps did not alone create a promise
to construct roads). Following a subsequent trial, the
District Court concluded that defendant was obligated to
provide and construct roadways as designated in its recorded
plats of the subdivision, and that the roads comply with the
minimum requirements of local subdivision specifications.
The District Court found that defendant had represented
during sales campaigns that it would construct the roads and
that defendant acknowledged this obligation by beginning "a
program of road and improvement construction in accordance
with the designations thereof in the recorded plats."
Plaintiffs were awarded attorney' s fees in the amount of
Four issues are raised for our consideration on appeal:
(1) Did the District Court properly order specific
performance?
(2) Did the District Court award excessive attorney's
fees?
(3) Are the plaintiffs entitled to an additional award
of attorney's fees incurred in responding to the present
appeal?
(4) Was the plaintiffs' action barred by the statute
of limitations?
We will consider each issue separately. First,
however, we must note that the standard of review on appeal
is that the District Court's findings of fact will not be
disturbed unless clearly erroneous. Rule 52 (a), M. R. Civ. P.
Further, this Court has made the following statement which is
applicable under these circumstances:
In a nonjury trial, the credibility of
witnesses and the weight of their
testimony are matters for the District
Court to determine. The sufficiency of
the evidence must be reviewed from the
perspective most favorable to the
prevailing party. The District Court's
findings and judgment are presumed
correct and will not be overturned unless
the appellant meets the burden of proving
with a preponderance of evidence that
they are wrong. Merely showing the
evidence establishes reasonable grounds
for reaching a different conclusion is
insufficient to reverse the District
Court findings. Lumby v. Doetch (1979),
183 Mont. 427, 431, 600 P.2d 200, 202.
Frank L. Pirtz Const. v. Hardin Town Pump (Mont. 1984), 692
P.2d 460, 462, 41 St.Rep. 2366, 2368.
I. DID THE DISTRICT COURT PROPERLY ORDER SPECLFIC
PERFORMANCE?
Defendant agrees it is obligated to construct some
roadways, but argues the District Court order is excessi~re
because it requires the construction of all roadways
designated on the subdivision plat. Defendant contends that
potential buyers were informed that roads would be
constructed as they were needed, and when the buyer
determined he was ready to build. Defendant alleges "there
is no evidence in the record that Shining Mountains promised
to build all the roads listed on the plat." Defendant relies
upon the previous appeal in this matter, where it was held
that the designation of roadways on the subdivision plat does
not alone obligate the subdivider to construct roadways.
Magers, 711 P.2d at 1378, 43 St.Rep. at 20. Instead, the
obligation depends upon the actual representations made by
the seller to the buyer. Defendant contends that the
evidence does not sufficiently demonstrate a promise to
construct the entire network of roadways.
In the previous appeal in this case, we reversed a
partial summary judgment in favor of the plaintiffs and
stated:
" [Ilt is the use made of the plat in
inducing the purchasers .. . which
gives rise to the legally enforceable
right in the individual purchasers, and
such is not dependent upon a dedication
to public use, or upon the filing or
recording of the plat. " [Citing, Ute
Park Summer Homes Ass'n v. Maxwell Land
Gr. Co. (N.M. 1967), 427 P.2d 249, 253.j
Similarly here, the purchasers acquired
an easement for the designated use.
Whether there is any legally enforceable
riaht to h a v e the roads' constructed
depends - - the designation - -
not on - in the
plats but on the use of those plats in
inducing purchases. The instrumen=
alone do not crive rise to a promise t-n
- -
~ ~ or n
e construct the roads. ~actux
issues remain on the use made of the
plats and what representations were made
in the sale of lots. We therefore
reverse the order granting partial
summary judgment for respondents and
remand for further proceedings.
(Emphasis added.)
Magers, 711 P.2d at 1378, 43 St.Rep. at 20. Following a
subsequent bench trial, the District Court found sufficient
evidence to demonstrate that defendant's sales agents had
made actual representations throughout the sales campaign
that roads would be constructed and provided by defendant.
This finding is supported by substantial credible evidence
and we therefore affirm the finding.
The trial testimony consistently indicates that the
defendant's sales agents referred to the plats of the
subdivision when making a sales presentation to a potential
buyer. Those plats clearly set forth a roadway system. The
use of the plats suggest that the potential buyers would be
purchasing land in a subdivision with a developed system of
roadways, and not an isolated piece of real property.
Defendant actually admits that once a land buyer decides to
construct a residence, defendant is responsible for
constructing a road to that plot of land. The trial
testimony sufficiently demonstrates that the buyers were
partially induced to make purchases because a roadway system
would be provided by the seller. Substanti-a1 credible
evidence supports this conclusion, and we therefore refuse to
hold that the District Court's decision is clearly erroneous.
Defendant contests the award of specific performance
and states this is an inappropriate remedy because the
obligations of the parties under the contracts are not
sufficiently ascertainable. "Specific performance is an
equitable remedy which compels the performance of a contract
in the precise terms agreed on. " Seifert v. Seifert (1977),
173 Mont. 501, 504, 568 P.2d 155, 156. Specific performance
is not appropriate if the terms of the contract are not
sufficiently certain so as to make the precise act which is
to be done clearly ascertainable. Section 27-1-412(5), MCA.
In other words, a contract will not be specifically enforced
unless the terms of the contract are sufficiently definite.
This Court has also noted however, that absolute certainty in
every detail is not necessarily required:
[Ilt is well settled that absolute
certainty in every detail is not a
prerequisite for specific performance.
Gropp v. Lotton (1972), 160 Mont. 415,
503 P.2d 661; Steen v. Rustad (1957), 132
Mont. 96, 313 P.2d 1014. Those matters
which are collateral or which go to the
performance of the contract are not
essential and need not be expressed in
the contract. Steen v. Rustad, supra;
Johnson v. Elliot (1950), 123 Mont. 597,
218 P.2d 703.
Keaster v. Bozik (Mont. 1981), 623 P.2d 1376, 1381, 38
St.Rep. 194, 201. Additionally, we must note that specific
performance is an equitable remedy:
[Tlhe foundation of a suit for
performance of a contract is that, by
compelling the parties to do the very
things they agreed to do, more complete
and perfect justice is attained than by
giving damages for breach of a contract.
Specific performance is purely an
equitable remedy; presenting a purely
equitable controversy and is governed by
equitable principles. 81 C.J.S. Specific
Performance S 1 p. 408. See also:
State ex rel. Victor's Inc. v. District
Court, Mont., 545 P.2d 1098, 33 St.Rep.
23, 27.
In 81 C.J.S. Specific Performance 5 3, p .
411, it is stated:
" * * * specific performance will be
ordered only on equitable grounds - -
in view
o
- - f- conditions surrounding the
the
particular case. * * *
-
"A bill -
in equity - specific
for
performance -is an
- appeal to
- - the
conscience - - court, and generally,
of the
- - such a proceeding, the inquiry - -be
in - must
whether. in -eauitv and aood conscience.
' -
the court should specifically enforce the
contract. Accordingly, specific
performance will be sranted when it is
& <
apparent from a view of all the
circumstances of the particular case that
it will serve the ends of justice, and it
will be withheld when, from a like view,
it appears that it will produce hardships
or injustice to either party * * * . "
(Emphasis in original.)
Seifert, 173 Mont. at 504, 568 P.2d at 156, 157.
In view of the facts of this case and the general rules
governing specific performance, we find the District Court
order is correct. The plats designate the route, location,
and width of the roadways in question. The only item not.
specifically designated is the type or nature of the
roadways. Therefore, we find that the obligations generated
by the sales contracts are sufficiently definite.
Additionally, the actual construction of roadways is the
proper equitabl-e remedy.
Defendant contests the portion of the District Court
order requiring that the roads meet the minimum requirements
of the Madison County subdivision regulations. Since no such
minimum requirements existed when plaintiffs purchased their
lots, defendant contends it is unfair to apply the
requirements at a future time. Defendant alleges the new
requirements will result in a cost increase exceeding
$500,000.
The record demonstrates that defendant has attempted to
satisfy its obligations by constructing certain dirt roadways
that are impassable during large portions of any given year.
It would certainly not be equitable to allow defendant to
escape its obligation by constructing roads which are
rendered basically useless during significant portions of the
year. The roadways must be of sufficient quality to provide
reasonable access during the entire year. Both parties had
an opportunity at trial to present a plan which would provide
reasonable year-round access. Plaintiffs presented the
Madison County subdivision regulations as containing a
reasonable standard for the roadways. The District Court
chose to accept those standards as reasonable, and we see no
reason to reject this decision.
Defendant finally states that the District Court
decision benefits 200 lot owners that are not parties to the
action, and has the effect of treating the dispute as a class
action suit. Defendant concludes this is not an appropriate
case for a class action suit because recovery depends upon
representations made to each individual buyer. Additionally,
a similar case was previously denied class action status. We
reject defendant's contention because the completion of the
roadway system within the subdivision benefits each of the
plaintiffs. Although others will certainly benefit even
though they are not parties to this lawsuit, this
consideration is not controlling. Each plaintiff has a
vested interest in having the subdivision roadway network
completed. We hold the District Court properly awarded
specific performance.
11. DID THE DISTRICT COURT AWARD EXCESSIVE ATTORNEY'S FEES?
Defendant agrees that an award of attorney's fees is
appropriate because the sales contracts and Montana law
provide for such fees. However, defendant states the award
of $26,000 is excessive. Defendant explains that plaintiffs
lost the first appeal in this case and that resulting
attorney's fees from that appeal should not be paid by
defendant. Additionally, defendant alleges a large portion
of the plaintiffs' attorney's fees were paid for by a third
party, and that other portions of plaintiffs' attorney's fees
were generated as a result of a separate case.
In determining what constitutes "reasonable attorney's
fees," this Court has stated that the following factors
should be considered as guidelines: (1) the amount and
character of the services rendered; (2) the labor, time, and
trouble involved; (3) the character and importance of the
litigation in which the services were rendered; (4) the
amount of money or the value of the property to be affected;
(5) the professional skill and experience called for; (6)
the character and standing in their profession of the
attorneys; and (7) the result secured by the services of the
attorneys. See, Carkeek v. Ayer (1980), 188 Mont. 345, 347,
613 P.2d 1013, 1015; First Security Bank of Bozeman v.
Tholkes (1976), 169 Mont. 422, 429, 430, 547 P.2d 1328, 1332;
Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont.
113, 119, 120, 541 P.2d 56, 59; and, Forrester and MacGinnis
v. B. & M. Co. (1904), 29 Mont. 397, 409, 74 P. 1088, 1093.
Determining what constitutes reasonable attorney 's fees is a
discretionary task for the District Court, and this Court
will not disturb its judgment in the absence of an abuse of
that discretion. Talmage v. Gruss (1983), 202 Mont. 410,
412, 658 P.2d 419, 420 (citing, Carkeek, 188 Mont. at 347,
348, 613 P.2d at 1015).
The District Court specifically stated in its order
dated May 4, 1987, that it considered plaintiffs' itemized
statements, the supporting affidavits, and the general and
local standards and criteria for the fixing of attorney's
fees. The District Court actually reduced the amount of
attorney's fees requested by the plaintiff from $29,575.07 to
$26,000. After reviewing the plaintiffs' supporting
affidavits and statements, the guidelines for determining
reasonable attorney's fees, and the District Court order, we
find no abuse of discretion and affirm the award of
attorney's fees.
Defendant also objects to the award of attorney's fees
on the contentions that the fees have already been advanced
by a third party and that a significant portion of the fees
were generated due to a separate but similar case. Defendant
cites no authority which prohibits a third party from
advancing such fees for plaintiffs. Defendant does cite
First National Bank of Great Falls v. Llera (1978), 176 Mont.
481, 487, 580 P.2d 100, 104, for the proposition that only
parties with a contractual right to attorney's fees may
receive an award for those fees pursuant to the contract. In
this case, however, the plaintiffs are parties to the sales
contracts and therefore may receive attorney's fees based on
that contract. This is not altered merely because a third
party advanced the fees. Additionally, there is no
indication that the attorney's fees were incurred due to
another case. Instead, it appears that plaintiffs have
become genuinely obligated to pay significant amounts in
attorney's fees as a result of pursuing this action. The
District Court determined a reasonable amount for these
services and we hold there is substantial evidence to make
such a determination.
111. ARE THE PLAINTIFF/RESPONDENTS ENTITLED TO AN ADDITIONAL
AWARD OF ATTORNEY'S FEES INCURRED IN RESPONDING TO THIS
APPEAL?
Plaintiffs contend that if they prevail on this appeal,
they are entitled to additional reasonable attorney's fees
incurred due to this appeal. The claim for attorney's fees
is based on an attorney's fee clause in the contract for sale
which provides that the seller (defendant) is entitled to
reasonable attorney's fees generated by any subsequent
litigation. Due to the clause, the buyers (plaintiffs)
obtained the same right to claim attorney's fees. Section.
28-3-704, MCA. The clause specifically states it applies to
any legal action instituted in any court. As the prevailing
party on appeal, plaintiffs are entitled to reasonable
attorney's fees. We hold this is consistent with previous
cases discussing similar issues. See, In re Marriage of
Rolstad (1983), 203 Mont. 131, 135, 660 P.2d 95, 97.
IV. WAS THE PLAINTIFF'S ACTION BARRED BY THE STATUTE OF
LIMITATIONS?
Defendant contends the applicable statute of
limitations for this case is five years, despite this Court's
decision which applied an eight year statute of limitations.
Magers, 711 P.2d at 1378, 1379, 43 St.Rep. at 20, 21.
Defendant reasons that since the claim depends upon the oral
representations made to the buyers, the claim is one based on
a contract. not founded upon a written instrument and the
applicable statute of limitations is five years. See,
5 2 7 - 2 - 2 0 2 ( 2 ) , MCA. Defendant urges this Court to reevaluate
the prior decision in this case. After reviewing this issue,
we see no reason to reverse our prior decision regarding the
statute of limitations.
In conclusion, we affirm the District Court on all
issues. We remand for the purpose of determining reasonable
attorney's fees incurred by plaintiffs on this appeal.
Further, we direct the District Court to reestablish a date
for the completion of the roadways, as well as other
improvements including the artificial lake as stated in the
District Court's final judgment, as set forth on the plats of
the subdivision and in accordance with this opinion.
We concur: -4
Justices