                                                                                          02/28/2017


                                       DA 16-0289
                                                                                      Case Number: DA 16-0289

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2017 MT 38



MICHAEL SULLIVAN; JOY W. HUNT; DR. HERSCHEL R.
and MARY BETH HARTER,

           Plaintiffs,

     v.

THOMAS CHEREWICK and RONALD M. HENRY,

           Defendants.

RONALD M. HENRY, Counterclaim Plaintiff, and
WESTERN INVESTMENTS, INC., Third-Party Plaintiff,

           Counterclaim Plaintiffs and Appellants,

     v.

MICHAEL SULLIVAN; JOY W. HUNT; DR. HERSCHEL R.
and MARY BETH HARTER,

           Counterclaim Defendants and Appellees.


APPEAL FROM:        District Court of the Twenty-Second Judicial District,
                    In and For the County of Carbon, Cause No. DV 11-122
                    Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

            For Appellants:

                    Paula Saye, Saye Law, Absarokee, Montana
                    (for Ronald M. Henry and Western Investments, Inc.)

                    T. Thomas Singer, Frederick P. Landers, Axilon Law Group, PLLC,
                    Billings, Montana (for Thomas Cherewick and Ronald M. Henry)
         For Appellees:

                Michael B. Anderson, Anderson & Liechty, P.C., Billings, Montana
                (for Dr. Herschel R. and Mary Beth Harter)

                Brendon J. Rohan, Poore, Roth & Robinson, P.C., Butte, Montana
                (for Michael Sullivan)

                John F. (Jack) Jenks, J. Wayne Capp, Capp & Jenks, P.C., Missoula,
                Montana (for Michael Sullivan, Joy W. Hunt, Dr. Herschel R. and
                Mary Beth Harter)

                Paul N. Tranel, Katie C. Guffin, Bohyer, Erickson, Beaudette & Tranel,
                P.C., Missoula, Montana (for Joy W. Hunt)



                                             Submitted on Briefs: January 11, 2017

                                                        Decided: February 28, 2017


Filed:

                __________________________________________
                                  Clerk




                                     2
Justice Beth Baker delivered the Opinion of the Court.

¶1     The parties have been engaged for years in a contentious dispute regarding the

management of a real estate development in which they all owned property.                The

Plaintiffs sued to restrain Thomas Cherewick and Ronald Henry from actions that

Plaintiffs alleged were unauthorized or exceeded their authority as directors and officers

of the development’s property owners’ association.1 Henry and his company, Western

Investments, Inc., counterclaimed, alleging that Landowners had conspired to interfere

with his business. The District Court granted summary judgment against all parties on

their respective claims. It entered a final judgment, declining to award attorney fees and

costs to Henry and Cherewick. There are two issues on appeal:

       1. Whether the District Court erred in granting Landowners summary judgment
       on Henry’s and Western Investments’ counterclaims for conspiracy and other
       alleged tortious conduct;

       2. Whether the District Court abused its discretion in denying Henry’s and
       Cherewick’s motion for attorney fees after they prevailed on the Plaintiff’s claims
       against them.

¶2     We affirm.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     This case has a contentious history, consuming nearly five years in litigation, with

almost 600 documents in the District Court record, five separate summary judgment

orders, and eleven briefs from various arrangements of parties covering two distinct

claims on appeal. The District Court described it as “a muddled and chaotic case . . . [in

1
 The Plaintiffs remaining in the action are Appellees Michael Sullivan, Joy Hunt, Dr. Herschel
Harter, and Mary Beth Harter. We refer to the Appellees collectively as Landowners.
                                            3
which] neither Plaintiffs nor Defendants substantially prevailed on any of the asserted

claims and counterclaims.”

¶4     Henry, Cherewick, and Landowners all owned property in Remington Ranch—a

real estate development comprising several subdivisions outside of Red Lodge, Montana.

Henry developed much of Remington Ranch through his company Western Investments.

Western Investments owned numerous lots in Remington Ranch. Western Investments

purchased Dr. Herschel and Mary Beth Harters’ interest in a tract of land in one of the

subdivisions. In exchange, Western Investments gave the Harters a promissory note for

$750,000. After Western Investments failed to make any payments on the note, the

Harters filed a UCC-1 Financing Statement and vendor’s lien on certain lots that Western

Investments was trying to sell.

¶5     The Remington Ranch Association (Association) is an “umbrella” property

owners’ association.    It is responsible for maintenance of the common areas of the

subdivisions that make up Remington Ranch. While each individual subdivision within

Remington Ranch has its own declaration of covenants, conditions, and restrictions, the

Association also has its own declaration of covenants, conditions, and restrictions.

Landowners are all members of the Association, and Henry and Cherewick were

directors and officers of the Association.

¶6     The breaking point in a longstanding period of discord between the parties came

when Henry announced that he was going to try to develop part of the property as a

resort. Landowners reacted to Henry’s announcement by organizing and discussing their

                                             4
options for preventing commercial development. Ultimately, Landowners—along with

about twenty other Remington Ranch property owners—filed a complaint against

Cherewick, Henry, the Association, and Association director Nancy Gammill.2

Landowners challenged the Association’s authority over the affairs of Remington

Ranch’s component subdivisions. Landowners also claimed that Henry and Cherewick

took actions that were either unauthorized or exceeded their authority as directors.

¶7     Henry and Western Investments brought several counterclaims against

Landowners, including defamation, tortious interference with business relations and

prospective economic opportunity, negligent or intentional infliction of emotional

distress, slander of title, abuse of process, and civil conspiracy. The basic premise of the

counterclaims was that Landowners colluded to drive Henry into bankruptcy, to stop his

planned commercial development of the site, and to ruin his reputation in the community.

Henry and Western Investments also sought punitive damages.

¶8     Over the course of nearly five years, the parties engaged in extensive discovery

and litigated their various claims and counterclaims through dozens of motions. In the

end, the District Court entered summary judgment orders granting judgment to Henry and

Cherewick on Landowners’ claims.           The court also granted Landowners summary

judgment on Henry’s and Western Investments’ counterclaims because it concluded that

Henry and Western Investments failed to produce evidence establishing each of the

elements of the counterclaims.       Finally, the court denied Henry’s and Cherewick’s

2
  The Association, Gammill, and all plaintiffs except for Landowners were dismissed for various
reasons during the course of litigation.
                                            5
motion for attorney fees and costs on Landowners’ claims because it determined that they

were not a prevailing party. Henry and Cherewick appeal the court’s refusal to award

attorney fees; Henry and Western Investments appeal the dismissal of their

counterclaims.

                              STANDARDS OF REVIEW

¶9     We review summary judgment rulings de novo, applying the standards set forth in

M. R. Civ. P. 56(c)(3). Bird v. Cascade Cnty., 2016 MT 345, ¶ 9, 386 Mont. 69,

386 P.3d 602. Summary judgment is appropriate when the moving party demonstrates

both the absence of any genuine issues of material fact and entitlement to judgment as a

matter of law. M. R. Civ. P. 56(c)(3); Bird, ¶ 9. Once the moving party has met its

burden, the opposing party must present material and substantial evidence to raise a

genuine issue of material fact. Bird, ¶ 9. We will draw all reasonable inferences from the

offered evidence in favor of the party opposing summary judgment; but conclusory

statements, speculative assertions, and mere denials are insufficient to defeat a motion for

summary judgment. Bird, ¶ 9. We review a district court’s conclusions of law to

determine whether they are correct. Bird, ¶ 9.

¶10    We review a district court’s conclusion regarding the existence of legal authority

to award attorney fees for correctness. City of Helena v. Svee, 2014 MT 311, ¶ 7,

377 Mont. 158, 339 P.3d 32. If legal authority exists, we review a district court’s order

granting or denying attorney fees for abuse of discretion. Svee, ¶ 7. We review a district

court’s determination of “prevailing” or “losing” parties for abuse of discretion as well.

                                         6
Whipps, L.L.C. v. Kaufman, Vidal, Hileman, & Ramlow, P.C., 2007 MT 66, ¶ 6, 336

Mont. 386, 156 P.3d 11. A district court abuses its discretion when it acts arbitrarily,

without employment of conscientious judgment, or in excess of the bounds of reason

resulting in substantial injustice. Whipps, L.L.C., ¶ 6.

                                       DISCUSSION

¶11 1. Whether the District Court erred in granting Landowners summary judgment
on Henry’s and Western Investments’ counterclaims for conspiracy and other alleged
tortious conduct.

¶12    Henry and Western Investments asserted the following counterclaims against

Landowners: abuse of process, defamation, negligent or intentional infliction of

emotional distress, conspiracy, slander of title, and tortious interference; they also sought

punitive damages. While the court granted Landowners summary judgment on all of the

counterclaims, Henry and Western Investments address only a few explicitly on appeal.

We briefly address each claim.

I.    Abuse of process, defamation, and negligent or intentional infliction of
emotional distress claims.

¶13    The District Court first concluded that Henry and Western Investments abandoned

their claims of abuse of process and defamation because they did not include any

argument regarding those claims in their briefing to the court; therefore, the court granted

Landowners summary judgment on those claims.               With regard to the negligent or

intentional infliction of emotional distress claim, the District Court noted that Western

Investments, as an entity, could not sustain such a claim. The court noted further that

Henry’s arguments contained no discussion of the factual or legal basis for the emotional
                                          7
distress claim against Landowners. After determining that the record did not contain any

evidence that Landowners caused Henry any emotional distress, the District Court

granted Landowners summary judgment.

¶14    On appeal, Henry and Western Investments do not contest the District Court’s

conclusion that they abandoned their abuse of process and defamation claims. Nor do

they offer any arguments regarding the court’s conclusion as to their negligent or

intentional infliction of emotional distress claim. It is not our responsibility “to develop

legal analysis that might support a party’s position.” State v. Gunderson, 2010 MT 166,

¶ 12, 357 Mont. 142, 237 P.3d 74. Accordingly, we conclude that the District Court

correctly granted Landowners summary judgment on Henry’s and Western Investments’

abuse of process, defamation, and negligent or intentional infliction of emotional distress

counterclaims.

II.   Conspiracy, slander of title, tortious interference, and punitive damages
claims.

¶15    Henry’s and Western Investments’ conspiracy claim alleged that the Harters

conspired with the other Remington Ranch property owners to stop Henry’s planned

development, force him into bankruptcy, and ruin his business relationships in the

community. In addressing the civil conspiracy claim, the court recognized that Henry’s

and Western Investments’ “various theories of liability are generally centered on only a

few overt actions taken by the Harters. They allege that the Harters’ overt acts—and any

liability tied to these acts—should be imputed to all other remaining counterclaim

defendants.” In an effort to simplify the analysis of the remaining claims, the court chose
                                         8
to “first discuss whether the record contains any evidence of a conspiracy between the

remaining counterclaim defendants that would allow the Court to impute the actions of

the counterclaim defendants to one another.”

¶16   The court noted Henry’s and Western Investments’ claim that the evidence

supported a finding that there was a conspiracy between Landowners to stop the resort’s

construction at Remington Ranch. The court determined that such an assertion alone,

however, “does not assert a claim for civil conspiracy even if true” because there is

“nothing inherently unlawful about protesting a resort planned to be built in a

complainant’s backyard.” Instead, the court concluded, in order to prevail on their claim

of civil conspiracy, Henry and Western Investments would have to prove that

Landowners “had a ‘meeting of the minds’ to use unlawful means in pursuit of their

otherwise lawful goal of stopping the development of the resort.”

¶17   The court recognized Henry’s and Western Investments’ assertion that the

“unlawful means” Landowners used to stop the resort were the Harters’ filings. The

court acknowledged that the evidence demonstrated Landowners’ opposition to the

resort’s construction; it determined, however, that the evidence did “not support an

inference that [Landowners] agreed to use unlawful means to stop the development of the

Remington Resort or that the other counterclaim defendants even knew about the Harters’

filings.” Thus, the court held that Henry’s and Western Investments’ claim of conspiracy

was nothing more than “mere speculation, insufficient to survive summary judgment.”




                                        9
¶18   The court’s determination regarding the conspiracy claim framed its analysis of

the remaining claims. Henry’s and Western Investments’ additional claims centered on

the Harters’ filings. Because the court concluded that there was no conspiracy between

Landowners, the court determined that the Harters’ conduct was not attributable to Hunt

or Sullivan. Based in large part on that determination, the court concluded that Henry

and Western Investments had failed to make a prima facie case for the remaining claims

against Hunt and Sullivan and therefore granted them summary judgment. Because the

Harters filed the liens, the District Court analyzed in more depth the remaining claims

against them.

¶19   In addressing Henry’s and Western Investments’ claim that the Harters’ filings

constituted slander of title, the court first noted that the relevant tracts of land were

owned solely by Western Investments. Thus, the court concluded that Henry did not

have a claim for slander of title. The court focused its analysis of Western Investments’

claim on two elements—whether the Harters acted with malice and whether the Harters’

actions caused Western Investments any special damages. The court determined that

there were unresolved fact issues regarding whether the Harters acted with malice, but it

concluded that Western Investments’ slander of title claim must fail “for lack of provable

damages.” The court noted that there was no evidence demonstrating that the Harters’

filings prevented any sale of lots by Western Investments. Because Western Investments

had not presented a prima facie slander of title claim, the court granted the Harters

summary judgment on the claim.

                                        10
¶20    Similarly, the District Court determined that Henry and Western Investments had

failed to present a prima facie claim of tortious interference. Henry’s and Western

Investments’ tortious interference claim alleged that the Harters interfered with their

efforts to develop the resort. The court opined:

       Given that Henry did not own . . . the land upon which the Resort was to be
       located[ ], that the owner of [the land] had not taken any steps nor shown
       any affirmative interest in developing [the land] into the Remington Resort,
       and that Henry had no financing in place to develop the Resort, [Henry’s
       and Western Investments’] assertion that it was the Harters who caused the
       Resort’s failure lacks evidentiary foundation and is speculative.

Thus, the court granted the Harters summary judgment on the tortious interference claim.

¶21    Lastly, the court held that Henry’s and Western Investments’ claim for punitive

damages must fail “[g]iven a lack of any underlying liability against the Harters.” Before

finishing its order, the court noted that the parties “have a great deal of animosity toward

one another.” The court reiterated that in order for the alleged claims “to proceed to trial,

it was incumbent on Henry and Western Investments to provide the Court with at least

some admissible evidence as to each of the elements of their counterclaims. But after

more than four years of litigation, this evidence either does not exist or has not been

produced.” Accordingly, the District Court granted Landowners summary judgment in

all respects.

¶22    Henry and Western Investments argue generally that the District Court’s

conclusions on their counterclaims simply adopt Landowners’ position instead of

considering all of the conflicting evidence submitted by Henry and Western Investments.

They assert that they presented substantial evidence that the Harters’ purpose in making
                                         11
the filings was to interfere with Henry’s business by stopping the sale of the lots. They

stress that a jury also could reasonably infer malice from the Harters’ filing the liens

because they allege that the Harters had knowledge that the liens would interfere with

pending sales of the encumbered lots. And selling those lots was Henry’s only means of

generating income to meet his financial obligations.

¶23    Henry and Western Investments assert further that the court erred by concluding

that the other claims were tied to their theory of conspiracy. They claim that they

asserted “multiple stand-alone counts.” As to their civil conspiracy claim, Henry and

Western Investments contend that the object of the conspiracy was to tortiously interfere

with Henry’s business and that the unlawful objective was the slander of title. Henry and

Western Investments contend that the District Court erred because it is the function of the

jury to determine whether there was a meeting of the minds, whether Landowners

engaged in an unlawful overt act, and whether damages resulted because of Landowners’

conduct.

¶24    A valid civil conspiracy claim requires that each of the following elements be

established: “(1) two or more persons . . .; (2) an object to be accomplished; (3) a

meeting of the minds on the object or course of action; (4) one or more unlawful overt

acts; and (5) damages as the proximate result thereof.” Schumacker v. Meridian Oil Co.,

1998 MT 79, ¶ 18, 288 Mont. 217, 956 P.2d 1370 (citing Simmons Oil Corp. v. Holly

Corp., 258 Mont. 79, 91, 852 P.2d 523, 530 (1993)).




                                        12
¶25    Here, the first two elements are clearly met. Landowners are a group of two or

more persons and the object they sought to accomplish was preventing the construction

of a resort at Remington Ranch. Contrary to the District Court’s conclusion, the third

element does not require “a ‘meeting of the minds’ to use unlawful means”; rather, the

third element requires either a meeting of the minds on the object to be accomplished or a

meeting of the minds on the course of action. Schumacker, ¶ 18. As the District Court

recognized, the “evidence certainly indicates that the Harters, Sullivan, Hunt, and others

did not want the Remington Resort to come to fruition . . . and that they agreed action

should be taken to stop the development of the Resort.” Accordingly, there was a

meeting of the minds as to the object to be accomplished and element three is therefore

met as well.

¶26    The fourth civil conspiracy element requires “one or more unlawful overt acts.”

Schumacker, ¶ 18. It is the unlawful act—and not the conspiracy itself—that gives rise to

a civil conspiracy cause of action. Schumacker, ¶ 18. Henry and Western Investments

assert that the Harters’ filing of the allegedly false UCC-1 and vendor’s lien is the

“unlawful act” because the filings constitute slander of title.

¶27    Slander of title occurs when “one maliciously publishes false matter which brings

in question or disparages the title to property, thereby causing special damage to the

owner.” Pryor v. Babcock Bldg. Corp., 2002 MT 68, ¶ 10, 309 Mont. 222, 45 P.3d 35

(citations and internal quotations omitted). Although the District Court acknowledged

that there may be a genuine issue of material fact regarding whether the Harters acted

                                          13
with malice in filing the liens, it concluded that Henry and Western Investments failed to

establish that they suffered any damages as a result of the liens.

¶28    Henry asserts that he suffered “damages in the hundreds of thousands of dollars”

due to the Harters’ filing of the allegedly false liens. He contends that the damages

resulted when he was unable to sell the lots with the liens attached. Henry further alleges

that he suffered damages because he incurred attorney fees and other costs in removing

the liens.

¶29    The District Court determined, and we agree, that Henry and Western Investments

failed to establish a triable factual issue that the Harters’ filing of the liens caused them

damages. As the District Court noted, the affidavits of the potential buyers of the lots—

on which Henry and Western Investments relied to show damages—“contradict the

notion that the Harters’ filings prevented any lot sales.” The affidavits of both potential

buyers demonstrate that neither buyer had reached an agreement with Henry or Western

Investments regarding the purchase of the lots. Further, neither of the potential buyers

referenced the liens as the reason they did not buy the properties; rather, they both stated

that, if anything, their decisions were affected by the animosity between Remington

Ranch property owners and Henry.

¶30    Additionally, there were three other encumbrances totaling nearly two million

dollars on the properties at issue. As the District Court observed, Henry and Western

Investments presented “no argument or evidence” that they sought a release or removal

of all of those encumbrances.       Henry and Western Investments therefore failed to

                                         14
demonstrate how title to the property was marketable. Finally, as the District Court

emphasized, Henry “admitted he was not selling property in Remington Ranch during the

time period the Harters filed their liens.” In an October 2012 letter to a real estate

company, Henry stated:

       Here are some facts. I closed my RE/MAX office in Red Lodge, Montana
       December 31, 2010. I have not had any “real estate services” nor have I
       provided any since that date. I do own property in the area but my
       properties have not been listed for sale nor have I tried to market any of my
       properties since the closing of my RE/MAX offices.

In the face of all of this evidence, Henry and Western Investments did not come forward

with specific evidence, as opposed to speculation and argument, that the liens caused

them damage.

¶31    Because Henry and Western Investments failed to present material and substantial

evidence sufficient to raise an issue of material fact regarding whether they suffered

damages, the District Court correctly concluded that their slander of title claim failed as a

matter of law. Henry and Western Investments’ civil conspiracy claim consequently fails

as well because they have not established both that Landowners committed an unlawful

act and that they suffered damages as the proximate result thereof. Accordingly, albeit

for slightly different reasons, the District Court correctly granted Landowners summary

judgment on Henry’s and Western Investments’ civil conspiracy claim.

¶32    We also are unpersuaded by Henry’s and Western Investments’ contentions

regarding their tortious interference claim. Similar to civil conspiracy and slander of

title, in order to assert a prima facie claim of tortious interference, Henry and Western

                                         15
Investments must prove that “actual damages and loss resulted” as a consequence of the

alleged conduct. Hughes v. Lynch, 2007 MT 177, ¶ 25, 338 Mont. 214, 164 P.3d 913.

Though Henry and Western Investments contend that whether Landowners’ “agreement

to stop the development of the resort constitutes a tortious interference with their business

is a question of fact for the jury,” they have again offered only conclusory statements and

speculative assertions that they suffered damages as a result thereof. Accordingly, we

conclude that the District Court correctly granted Landowners summary judgment on

Henry’s and Western Investments’ tortious interference claim.

¶33    Finally, given our conclusions on Henry’s and Western Investments’ underlying

counterclaims, we affirm the District Court’s grant of summary judgment to Landowners

on the punitive damages claim. See Finstad v. W. R. Grace & Co.-Conn., 2000 MT 228,

¶ 20, 301 Mont. 240, 8 P.3d 778 (“[P]unitive damages are merely a component of

recovery of the underlying civil cause of action.”).        Although Henry and Western

Investments make additional arguments, we conclude that the contentions discussed

above are dispositive. Based on the foregoing analysis, we hold that the District Court

correctly granted Landowners summary judgment on each of Henry’s and Western

Investments’ counterclaims.

¶34 2. Whether the District Court abused its discretion in denying Henry’s and
Cherewick’s motion for attorney fees after they prevailed on the Plaintiff’s claims against
them.

¶35    In a concise order, the District Court concluded that Henry and Cherewick were

not prevailing parties on the claims Landowners brought in their initial complaint. The

                                         16
court therefore determined that Henry and Cherewick were not entitled to an award of

attorney fees and costs. In addition, the District Court concluded, “having presided over

this case for four years and understanding well the circumstances of this case and the

respective positions of the parties, in an exercise of its inherent equitable powers, the

Court concludes that equity does not support an award of attorney fees and costs to any

party.”

¶36       Henry and Cherewick assert that they are entitled to attorney fees and costs

because they prevailed on all of Landowners’ claims against them—evidenced by the

District Court’s grant of summary judgment in their favor on those claims. Henry and

Cherewick invoke the Association’s declarations, as well as the declarations of each of

Remington Ranch’s component subdivisions, arguing that Landowners’ claims asserted

violations of the various declarations. Henry and Cherewick point out that Landowners’

claims are the only claims in the case subject to the various declarations’ fee provisions.

Thus, they contend that as prevailing parties on these claims, they should have been

awarded attorney fees and costs, and that the District Court erroneously took into account

Henry’s lack of success on his counterclaims.

¶37       Henry and Cherewick argue alternatively that the District Court erred by not

considering whether they should be awarded attorney fees and costs under § 35-2-1306,

MCA. They assert that Landowners’ claims were derivative claims and that the District

Court concluded that Landowners failed to meet the standing and procedural

requirements of § 35-2-1301, MCA. Henry and Cherewick thus assert that Landowners

                                        17
commenced and maintained their derivative claims without reasonable cause and they

were accordingly entitled to attorney fees pursuant to the statute.

¶38    The general rule is that “attorney fees will not be awarded to the prevailing party

in a lawsuit” absent statutory or contractual authority.      Svee, ¶ 18.   As Henry and

Cherewick correctly point out, Landowners asserted claims under the various

declarations and those declarations provide contractual authority for awarding the

prevailing party attorney fees and costs. There is no “prevailing party,” however, where

both sides “gain a victory but also suffer a loss.” Whipps, ¶ 9 (citing H-D Irrigating, Inc.

v. Kimble Props., Inc., 2000 MT 212, ¶ 60, 301 Mont. 34, 8 P.3d 95).

¶39    Focusing exclusively on Landowners’ claims against Henry and Cherewick, we

find no abuse of discretion in the District Court’s conclusion that both sides gained a

victory but also suffered a loss.      During the course of the litigation, Landowners

succeeded on several claims, mainly: securing a court-supervised election of new

directors for the Association; persuading the court to appoint a receiver to manage the

transition from the old board of directors to the new board; and obtaining an inspection of

the Association’s books and records. Henry and Cherewick obviously prevailed as well

because at the end of the litigation they were granted summary judgment on Landowners’

claims. The District Court therefore did not act arbitrarily in concluding that neither side

could claim prevailing party status.

¶40    Finally, Henry’s and Cherewick’s arguments under § 35-2-1306, MCA, are

misplaced. Even if Landowners’ action constituted a derivative action, § 35-2-1306,

                                         18
MCA, simply gives the court the option of awarding attorney fees and costs; the statute

does not require the court to award attorney fees.        Section 35-2-1306, MCA (“On

termination of the derivative proceeding, the court may order . . . the complainant to pay

any defendant’s reasonable expenses, including attorney fees . . . .”).

¶41    The District Court presided over this contentious, complicated case for nearly five

years. The court understood the circumstances and the parties’ positions well. We

conclude that the District Court did not commit legal error or abuse its discretion in

denying Henry’s and Cherewick’s motion for attorney fees.

                                     CONCLUSION

¶42    The District Court’s judgment is affirmed in all respects.



                                                  /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA




                                         19
