                                                                                           January 2 2013


                                           DA 12-0094

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 1



BOYNE USA, INC.,

              Plaintiff and Appellee,

         v.

SPANISH PEAKS DEVELOPMENT, LLC,
LONE MOUNTAIN HOLDINGS, LLC
and JOHN DOES 1-5,

              Defendants and Appellants.



APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Madison, Cause No. DV 29-2008-8
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Stephen R. Brown; Charles E. McNeil; Elena J. Zlatnik; Garlington, Lohn
                        & Robinson, PLLP, Missoula, MT

                For Appellee:

                        David M. Wagner, Crowley Fleck PLLP, Bozeman, MT


                                                    Submitted on Briefs: September 26, 2012
                                                               Decided: January 2, 2013




Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1    Boyne USA, Inc. (Boyne) filed an action for breach of contract against Blixseth

Group, Inc. that covered a land sale for 15 acres of property on Lone Peak in Madison

County, Montana.      Boyne sought specific performance.     Boyne joined Yellowstone

Mountain Club, LLC as a party due to Yellowstone Mountain Club’s acquisition of the

contested property.

¶2    Yellowstone Mountain Club purportedly conveyed the contested 15-acre Lone Peak

property to Spanish Peaks Development, LLC (SPD). Boyne joined SPD as a party. SPD, in

turn, conveyed the 15-acre Lone Peak property to Lone Mountain Holdings, LLC (LMH).

Boyne joined LMH as a party. Boyne further alleged abuse of the legal process and deceit.

The District Court dismissed Blixseth Group and Yellowstone Mountain Club from the case

on January 15, 2010, due to Yellowstone Mountain Club’s bankruptcy.

¶3    The jury awarded Boyne $300,000 from each defendant based on its determination

that SPD and LMH had deceived Boyne and had abused the legal process. The District

Court awarded Boyne specific performance on the Peak Agreement. The District Court also

awarded attorney fees to Boyne. SPD and LMH appeal and we affirm subject to one minor

modification. (See ¶ 70). We will refer to SPD and LMH collectively as “Appellants” when

we address their claims on appeal.

¶4    Appellants raise the following issues on appeal:

¶5    1. Whether the District Court properly awarded specific performance to Boyne.

¶6    2. Whether the jury properly awarded compensatory damages to Boyne.



                                            2
¶7     3. Whether the District Court properly awarded legal fees to Boyne pursuant to the

terms of the contract.

¶8     4. Whether Boyne is entitled to legal fees on appeal.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶9     The dizzying array of land transfers, assignments, and corporate metamorphoses

leads us to prepare a program to identify the players:

BLS                                Blixseth’s & McDougal brothers’ entities; owned
                                   checker-boarded land that it exchanged with the U.S.
                                   for the Lone Peak property; entered into the Peak
                                   Agreement with Boyne.

Yellowstone Mountain Club          Entity managed by Dolan & Blixseth; owned the Lone
                                   Peak property and transferred it to SPD.

Spanish Peaks Development          Entity managed by Dolan and Blixseth.
(SPD)
Spanish Peaks Holding (SPH)        Entity owned by SPD; managed by Dolan and
                                   Blixseth.

Lone Mountain Holdings             Entity owned and managed by Dolan and his family;
                                   purchased the Lone Peak property from SPD.
(LMH)


Peak Agreement                     Boyne receives Lone Peak land in return for 4 items of
                                   consideration that included transfer of land under the
                                   Southfork Agreement. Boyne entered into the Peak
                                   Agreement with BLS; BLS transferred its rights to
                                   SPD.
Southfork Agreement                Boyne transfers 25 acres of land as partial
                                   consideration for the Peak Agreement. Boyne entered
                                   into the Southfork Agreement with McDougals;
                                   McDougals transferred their rights to SPD; SPD
                                   transferred its rights to SPH.




                                             3
¶10    The United States Forest Service (U.S.) decided to consolidate lands in the Gallatin

National Forest pursuant to the Gallatin Land Consolidation Act of 1998, Pub. L. No. 105-

267, 112 Stat. 2371. Consolidation would make these lands easier for the U.S. to manage.

Blixseth Group and two other entities, LeeLynn, Inc., and Wiley Mt., Inc., (collectively

BLS), owned checker-boarded lands in the Gallatin National Forest that the U.S. wished to

acquire. The U.S. entered into an agreement with BLS to exchange BLS lands for certain

federal lands, including 15 acres of federal land at the top of Lone Peak.

The Peak Agreement

¶11    BLS contracted to sell this Lone Peak property to Boyne through the Peak Agreement.

Boyne owns and operates Big Sky Resort. Boyne intended to use the Lone Peak property as

part of its ski resort. Boyne and BLS finalized the Peak Agreement on September 30, 1998.

The Peak Agreement provided that BLS would transfer the property to Boyne if BLS were

successful in obtaining the Lone Peak property from the U.S.

¶12    The Peak Agreement required Boyne to perform four obligations as consideration for

its receipt of the Lone Peak property. First, Boyne would not challenge the U.S.’s decision

to transfer the property to BLS. Second, Boyne would pay for a survey of the Lone Peak

property. Third, Boyne would exchange 25 acres of Boyne’s property with the McDougal

brothers for the first half of the Lone Peak property, pursuant to a separate agreement, the

Southfork Agreement. The Peak Agreement referred to the McDougal brothers because two

brothers, Mel and Norm McDougal, owned LeeLynn, Inc. and Wiley Mt., Inc., two of the

three entities that comprised BLS. Fourth, Boyne would pay cash to the Blixseth Group for

the second half of the Lone Peak property. The parties estimated the Lone Peak property’s
                                             4
value at $800 per acre. Boyne agreed to pay the appraised price of the property when the

U.S. and BLS exchanged lands.

The Southfork Agreement

¶13    McDougals owned nine hundred acres of property, Southfork, situated south of

Boyne’s property. McDougals planned to develop Southfork into Spanish Peaks Resort.

McDougals wanted ski in/ski out access to Big Sky Resort’s chairlifts. Ski in/ski out access

would increase the value of McDougals’ planned Spanish Peaks Resort. Boyne owned the

property between the planned Spanish Peaks Resort and the nearest chairlift at Big Sky

Resort.

¶14    McDougals and Boyne finalized the Southfork Agreement in September 1998. The

Southfork Agreement required Boyne to transfer 25 acres of Boyne’s property to

McDougals. The parties did not identify the exact location of the property to be transferred

because McDougals had not yet designed Spanish Peaks Resort. The parties understood,

however, that Boyne would transfer property that would provide McDougals ski in/ski out

access for Spanish Peaks Resort to Big Sky Resort. McDougals agreed to pay an override

fee to Boyne for each property that McDougals sold at Spanish Peaks Resort that would have

ski in/ski out access to Big Sky Resort’s chairlifts.

Assignment of Peak Agreement and Southfork Agreement

¶15    James Dolan (Dolan) and Tim Blixseth (Blixseth) co-managed SPD. SPD purchased

the property that the McDougal brothers had been planning to develop as the Spanish Peaks

Resort. The McDougal brothers then assigned their rights under both the Peak Agreement

and the Southfork Agreement to SPD on September 5, 2000. The Southfork Agreement
                                              5
required Boyne to transfer the 25 acres that would facilitate ski in/ski out access for Spanish

Peaks Resort. The third party to the Peak Agreement, Blixseth Group, managed by Blixseth,

also assigned its rights under the Peak Agreement to SPD. These assignments left SPD as

the sole beneficiary of both the Peak Agreement and the Southfork Agreement.

¶16    Dolan and Blixseth formed Spanish Peaks Holding (SPH) in 2002. The same two

also managed SPH. SPH purchased the McDougals’ Spanish Peaks Resort property from

SPD. SPD then assigned its interest in the Southfork Agreement to SPH. SPD maintained

its interest in the Peak Agreement.

Original Parties to Peak Agreement (1998)               Blixseth Group & McDougal
                                                        Brothers
Transfer of McDougals’ rights (2000)                    McDougal Brothers to SPD


Transfer of Blixseth Group’s rights (2000)              Blixseth Group to SPD


Final party with all rights to Peak Agreement           SPD




Original Party to Southfork Agreement (1998)            McDougal Brothers


Transfer 1 (2000)                                       McDougal Brothers to SPD


Transfer 2 (2002)                                       SPD to SPH


Final party with all rights to Southfork Agreement      SPH




The Purchase and Sale Agreement

                                              6
¶17    SPH, Boyne, and a third entity, Blue Sky Ridge, LLC, entered into a Purchase and

Sale Agreement on March 30, 2002. Blixseth and Dolan owned and controlled Blue Sky

Ridge. SPH and Blue Sky Ridge purchased approximately 1,734 acres of property from

Boyne as part of the Purchase and Sale Agreement. SPH and Blue Sky Ridge paid $7

million to Boyne for this property.

¶18    The Purchase and Sale Agreement also modified the Southfork Agreement to limit the

property at Spanish Peaks Resort for which Boyne would receive override fees. Boyne also

agreed to upgrade the Southern Comfort chairlift at Big Sky Resort on a different schedule

than originally contemplated in the Southfork Agreement. Boyne agreed further to forfeit

override fees if Boyne failed to upgrade the Southern Comfort chairlift according to the new

accelerated schedule.

¶19    All parties agree that Boyne transferred the 25 acres needed to facilitate ski in/ski out

access as described in the Southfork Agreement as part of this Purchase and Sale Agreement.

Appellants contend that Boyne actually sold these 25 acres, along with the other property,

and received $7 million in return. Boyne agrees that the transfers occurred at the same time.

Boyne argues, however, that the $7 million did not include any payment for the 25 acres.

¶20    Boyne suggests that the $7 million constituted payment for SPH and Blue Sky

Ridge’s purchase of the 1,734 acres of property from Boyne. SPH requested that the

transfers occur at the same time to simplify the property transaction for SPH. The Southfork

Agreement and the Purchase and Sale Agreement transferred contiguous parcels. The

transfer of the Southfork Agreement property to SPH at the same time as the property



                                               7
transfer under the Purchase and Sale Agreement apparently allowed SPH to evade

subdivision review.

Boyne’s Alleged Breaches of Contract

¶21    The U.S. issued a patent to BLS for the Lone Peak property on August 23, 2004. BLS

conveyed the Lone Peak property to Yellowstone Mountain Club on December 21, 2004.

Dolan and Blixseth co-managed Yellowstone Mountain Club. Blixseth informed Boyne on

January 1, 2005, that Yellowstone Mountain Club would not transfer the Lone Peak property

to Boyne as originally contemplated in the Peak Agreement.

¶22    Blixseth and Dolan’s lawyer, Mike Doyle (Doyle), informed Boyne in January 2005,

for the first time, that Boyne had breached the Southfork Agreement by not upgrading the

Southern Comfort chairlift quickly enough. Doyle claimed that Boyne’s breach of the

Southfork Agreement would deprive Boyne of the 15-acre Lone Peak property. Boyne

points out that its upgrade of the Southern Comfort chairlift never figured into the

consideration for receiving the Lone Peak property. Boyne argues that Appellants fabricated

this illusory breach as a pretext to withhold the Lone Peak property.

¶23    Doyle told Boyne in February 2005 that Boyne also had breached the Southfork

Agreement by its sale to SPH in 2002 of the 25 acres of Boyne’s property identified in the

Southfork Agreement. Doyle informed Boyne that Boyne should have transferred the 25

acres to SPD. Boyne instead, at the request of SPH, had transferred the 25 acres to SPH, a

different entity owned by SPD and managed by Dolan and Blixseth. Doyle insisted that

Boyne transfer an additional 25 acres of Boyne’s property to SPD before Boyne would

receive the Lone Peak property.
                                             8
¶24    Nobody had suggested to Boyne before February 2005 that its transfer of the 25 acres

to SPH had breached the Southfork Agreement. In fact, Boyne believed that its transfer of

the 25 acres had fulfilled Boyne’s obligation under the Southfork Agreement. SPD had

assigned its interest in the Southfork Agreement to SPH in 2002. Boyne further believed that

it had transferred the property to SPH, rather than separately having sold it, as Doyle

suggested.

¶25    Boyne alleged at trial that Doyle, Blixseth, and Dolan had fabricated this breach of

contract issue to pressure Boyne to discount or eliminate the override fees that SPH owed to

Boyne for the ski in/ski out access afforded to Spanish Peaks Resort. The override fees for

the ski in/ski out access that Boyne had provided to SPH were due in February 2005. Boyne

alleged that Doyle, Blixseth, and Dolan manufactured this alleged breach in February 2005

solely to force Boyne to modify the override fees.

Boyne Files Complaint

¶26    Boyne filed a complaint against Blixseth Group and Yellowstone Mountain Club on

January 29, 2008. Yellowstone Mountain Club conveyed the Lone Peak property to SPD on

February 7, 2008. Boyne added SPD as a party on February 20, 2008. Dolan and his family

created a new entity, LMH, on November 25, 2008. SPD conveyed the Lone Peak property

to LMH on December 22, 2008. Boyne added LMH as a party on August 28, 2009. Boyne

further sought damages for Appellant’s abuse of the legal process and deceit. The District

Court dismissed Blixseth Group and Yellowstone Mountain Club from the case on January

15, 2010, due to Yellowstone Mountain Club’s bankruptcy.



                                             9
¶27    The District Court conducted a five-day jury trial in November 2010. The jury

decided the legal claims that Boyne presented, including the breach of contract and damages

issue, and issued advisory judgments on Boyne’s equitable claims. The jury determined that

SPD had breached the Peak Agreement with Boyne. The jury also determined that SPD and

LMH each had deceived Boyne and had abused the legal process. The jury awarded Boyne

$300,000 from SPD and $300,000 from LMH as compensatory damages. The jury also

awarded $1 in punitive damages. The District Court, acting as a court of equity, awarded

Boyne specific performance on the Peak Agreement and ordered LMH to transfer the Lone

Peak property to Boyne. The District Court also awarded attorney fees to Boyne pursuant to

a provision in the Peak Agreement. SPD and LMH appeal.

                                STANDARD OF REVIEW

¶28    We review for clear error a district court’s findings of fact. Pastimes, LLC v. Clavin,

2012 MT 29, ¶ 18, 364 Mont. 109, 274 P.3d 714. Clear error exists if substantial credible

evidence fails to support the findings of fact, if the district court misapprehended the

evidence’s effect, or if we have a definite and firm conviction that the district court made a

mistake. Pastimes, ¶ 18. We review for correctness a district court’s conclusion of law.

Varano v. Hicks, 2012 MT 195, ¶ 7, 366 Mont. 171, 285 P.3d 592.

¶29    We review a jury’s verdict for substantial credible evidence. Evidence that a

reasonable mind might accept as adequate to support a conclusion qualifies as substantial

credible evidence. Seltzer v. Morton, 2007 MT 62, ¶ 94, 336 Mont. 225, 154 P.3d 561.

¶30    We review for abuse of discretion an award of attorney fees. Tripp v. Jeld-Wen, Inc.,

2005 MT 121, ¶ 12, 327 Mont. 146, 112 P.3d 1018. A district court abuses its discretion
                                             10
when it acts arbitrarily without employment of conscientious judgment or exceeds the

bounds of reason resulting in substantial injustice. Tripp, ¶ 12.

                                        DISCUSSION

¶31    1. Whether the District Court properly awarded specific performance to Boyne.

¶32    Appellants appeal the District Court’s award of specific performance of the Peak

Agreement to Boyne. Appellants correctly note that Boyne must have performed its

obligations under the contract in order to be eligible for specific performance. Baker v.

Berger, 265 Mont. 21, 29, 873 P.2d 940, 944-45 (1994); § 27-1-416, MCA. Appellants

argue that Boyne failed to meet two of Boyne’s four contractual obligations, and, therefore,

Boyne remains ineligible for the equitable award of specific performance.

¶33    All parties agree that Boyne fulfilled its first contractual obligation: not to contest the

U.S.’s decision to exchange the Lone Peak property with BLS. All parties also agree that

Boyne fulfilled its contractual obligation to pay for the survey when Boyne retained Gaston

Engineering in 1999 to survey the Lone Peak property. We address whether Boyne fulfilled

its final two obligations under the Peak Agreement.



A. Exchange of Property Under the Southfork Agreement

¶34    The Peak Agreement’s third contractual obligation required Boyne to “exchange

certain lands with McDougal” for the Lone Peak property. All parties agree that the

Southfork Agreement enumerated all of the lands to be exchanged with the McDougal

brothers. Boyne assuredly transferred the 25 acres described in the Southfork Agreement to

SPH on March 30, 2002, as part of a bigger transaction under the Purchase and Sale
                                               11
Agreement. Appellants argue, nevertheless, that Boyne’s transfer of property failed to fulfill

Boyne’s contractual obligations under the Southfork Agreement.

1. transfer to SPH instead of SPD

¶35    Boyne originally had entered into the Southfork Agreement with the McDougal

brothers. The McDougal brothers later assigned their rights under the Southfork Agreement

to SPD. Appellants apparently accept the validity of the McDougals’ assignment to SPD.

Appellants argue that the Southfork Agreement required Boyne to transfer this property to

SPD. Boyne instead transferred the property to SPH.

¶36    SPD earlier had transferred all right, title, and interest that it possessed under the

Southfork Agreement to SPH through the Assignment and Assumption document. The

Assignment and Assumption document provides that “Assignor [SPD] hereby assigns and

transfers to Assignee [SPH] all right, title and interest of Assignor in, to and under the

agreements and contracts described in Exhibit A attached hereto.” Exhibit A includes the

Southfork Agreement and the documents that assigned the McDougal brothers’ rights under

the Southfork Agreement to SPD.

¶37    Dolan, the manager of both SPH and SPD, admitted at trial that SPD had transferred

the Southfork Agreement to SPH. Dolan further admitted that SPD retained no rights under

the Southfork Agreement. The same people, Dolan and Blixseth, managed SPH and SPD.

The same attorney, Doyle, represented both SPH and SPD. SPH, an entity owned by SPD,

publicly represented in court filings in a different case that SPH had taken assignment of the

Southfork Agreement.



                                             12
¶38    Appellants do not address directly Boyne’s claim that SPD had assigned its rights

under the Southfork Agreement to SPH. During their closing argument, Appellants urged

jurors to ignore the Assignment and Assumption agreement and made no attempt to explain

it. Appellants seem to argue that the Assignment and Assumption agreement does not mean

what it says and that SPD did not assign away its rights under the Southfork Agreement.

Appellants simply claim that Boyne erroneously transferred the 25 acres to “another party”

instead of transferring the property to SPD. Appellants argue that Boyne’s transfer of the 25

acres to “another party” --SPH-- owned by SPD and managed by the same people as SPD,

somehow breached the Southfork Agreement and therefore breached the Peak Agreement.

¶39    Appellants point to no evidence to suggest that SPD did not transfer all of its rights

and obligations under the Southfork Agreement to SPH. The Assignment and Assumption

document details this transfer of rights. Dolan admitted at trial that this transfer occurred and

that SPD retained no rights under the Southfork Agreement. We decline Appellants’

suggestion to suspend belief and ignore the clear transfer of its rights set forth in the

Assignment and Assumption document. The record supports the District Court’s finding that

SPD had transferred all of its rights under the Southfork Agreement to SPH. Pastimes, ¶ 18.

¶40    Appellants next attempt to re-write the Peak Agreement and the Southfork

Agreement. Appellants argue in their reply brief, apparently for the first time, that the Peak

Agreement required Boyne to have transferred the 25 acres described in the Southfork

Agreement to the party with rights under the Peak Agreement. Appellants criticize Boyne’s

“convoluted reliance” on Boyne’s transfer of 25 acres pursuant to the Southfork Agreement

to SPH, a party with no rights under the Peak Agreement. Appellants claim that “[t]he only
                                               13
relevance of this second contract [the Southfork Agreement] was to identify 25 acres to be

used for the exchange . . . . The Peak Agreement did not say anything such as ‘this

agreement is contingent upon performance of the other agreement’ or anything that would

make Boyne’s arguments [that Boyne transferred 25 acres pursuant to the Southfork

Agreement] valid.”

¶41    Appellants’ argument that the Southfork Agreement merely identified the exchange

acres assumes, however, that the Peak Agreement and the Southfork Agreement do not

identify the parties to whom Boyne was obligated to convey the 25 acres. They do. Boyne

and three entities executed the Peak Agreement. One entity, Blixseth Group, was to receive

a cash payment for half of the Lone Peak property. The other two entities, owned by the

McDougal brothers, were to receive land described in a “separate agreement” for their half of

the Lone Peak property.

¶42    Appellants quote the Peak Agreement to support their interpretation of the Southfork

Agreement: “Boyne will exchange certain lands . . . for the remaining one half of the

surveyed lands.” Appellants conveniently omit key language from the Peak Agreement,

however, that indicates the McDougal brothers were intended to receive the 25 acres under

the Southfork Agreement as their half of the payment. “Boyne will pay BGI [Blixseth

Group] the referenced price for one half of the surveyed acreage. Boyne will exchange

certain lands with McDougal for the remaining one half of the surveyed lands. The land to

be exchanged in [sic] described in a separate agreement between Boyne and McDougal.”

(Emphasis added on Appellants’ omitted words.)



                                             14
¶43    The Southfork Agreement, the “separate agreement,” also clearly identifies the

McDougal brothers, referred to as “Southfork,” as the party to receive the 25 acres. “Boyne

will transfer to Southfork approximately 25 acres . . . .” The Southfork Agreement makes no

mention of the Peak Agreement and nowhere states that Boyne must transfer these 25 acres

to the party with rights under the Peak Agreement. Absolutely nothing in these two contracts

suggests that the party with rights under the Peak Agreement represents the proper party to

receive the 25 acres. The plain language of the two contracts confirms that SPH was to

receive the 25 acres from Boyne.

¶44    Further, the terms of the Southfork Agreement establish a stand alone contract, rather

than merely a description of the 25 acres to be transferred. The Southfork Agreement

addresses numerous issues between the McDougal brothers and Boyne. These issues include

Boyne’s obligation to upgrade the Southern Comfort ski lift at Big Sky Resort as part of the

effort to facilitate ski in/ski out access for Spanish Peaks Resort. The Southfork Agreement

also addresses Boyne’s obligation to pay $225,000 for a second chair lift that McDougals

would build as part of the ski in/ski out access for Spanish Peaks Resort. In addition, the

Southfork Agreement addresses the override fees that Boyne would receive on McDougals’

property at Spanish Peaks Resort sold within walking distance of Big Sky Resort’s ski lifts.

¶45    As a final matter, SPD owned SPH at the time that Boyne transferred the 25 acres to

SPH. Dolan and Blixseth managed both SPH and SPD, and their attorney, Doyle,

represented both entities. Nobody suggested to Boyne that Boyne transferred the 25 acres to

the wrong entity in 2002. In fact, Dolan and Doyle repeatedly made representations to

Boyne over the next three years that led Boyne to believe that both agreements were still in
                                             15
good standing. The parties to the Southfork Agreement, rather than the parties to the Peak

Agreement, were the proper party to receive the 25 acres. Boyne properly transferred the 25

acres to SPH.

2. selling instead of exchanging property

¶46    Appellants next argue, apparently in the alternative, that the Southfork Agreement

required Boyne to “exchange” 25 acres of Boyne’s property, but that Boyne instead “sold”

this property to SPH. Boyne transferred the 25 acres to SPH in 2002 as part of a larger

transfer of property described in the Purchase and Sale Agreement.

¶47    Boyne entered into the Purchase and Sale Agreement with two entities owned and

controlled by Dolan and Blixseth: SPH and Blue Sky Ridge. SPH and Blue Sky Ridge paid

Boyne $7 million under the Purchase and Sale Agreement. In return, Boyne sold 1,734 acres

of property to SPH and Blue Sky Ridge. The Purchase and Sale Agreement nowhere

discusses the transfer of the 25 acres described in the Southfork Agreement.

¶48    Moreover, subdivision review would have been necessary if Boyne had transferred

the 25 acres independently. Section 76-3-103, MCA; § 76-3-104, MCA. Boyne’s lawyer for

the Purchase and Sale Agreement testified at trial that Boyne had transferred the 25 acres at

the same time as the property transfer under the Purchase and Sale Agreement to help SPH

evade subdivision review. SPD did not claim that Boyne had breached the Southfork

Agreement until three years after Boyne had transferred the 25 acres. In the interim, SPH

and SPD made statements to Boyne that indicated that all parties still believed that a valid

contract existed and that SPD soon would transfer the Lone Peak property to Boyne.



                                             16
¶49    Appellants point to no evidence to show that Boyne had “sold” the 25 acres rather

than “exchanging” the 25 acres. Appellants point only to the timing of the transaction. The

transaction occurred at the same time as the property transfer pursuant to the $7 million

Purchase and Sale Agreement. Appellants make no effort whatsoever to address Boyne’s

claim that the exchange was done at the same time as the Purchase and Sale Agreement to

help SPH evade subdivision review.

¶50    The District Court found that Boyne had exchanged the property, as required under

the Southfork Agreement, rather than selling the property. The District Court noted that

from 2002, when SPH received the property, to February 2005, SPD, Dolan, Blixseth, and

Doyle did not claim that Boyne had breached the Peak Agreement or the Southfork

Agreement by transferring the property to SPH. The District Court found that in 2004, SPD,

SPH, and their lawyer made a number of representations to Boyne that were intended to, and

did, leave Boyne with the impression that the Peak Agreement and Southfork Agreement

were in good standing. The District Court further found that Boyne’s transfer of the 25 acres

of property to SPH in 2002 had fulfilled Boyne’s obligation to transfer property under the

Southfork Agreement.

¶51    Evidence in the record supports the District Court’s findings. The District Court

noted that SPH would have objected in 2002 if Boyne had breached the Southfork

Agreement by requiring SPH to pay for the property, rather than waiting until 2005 to object.

We cannot say that the District Court clearly erred in finding that Boyne had exchanged the

25 acres rather than having sold it. Pastimes, ¶ 18. This finding confirms that Boyne had

fulfilled its third contractual obligation of exchanging 25 acres of property with SPH.
                                             17
B. Payment for Half of Lone Peak

¶52    The fourth contractual condition required Boyne to pay for half of the Lone Peak

property. Appellants claim that Boyne cannot seek specific performance for the Peak

Agreement because Boyne failed to fulfill this fourth obligation. Boyne admits that it has

not yet paid this money. Boyne claims, however, that the Peak Agreement did not obligate it

to pay before it sought specific performance because SPD anticipatorily had breached the

contract.

1. anticipatory breach

¶53    Boyne claims that SPD anticipatorily breached the Peak Agreement by requiring

Boyne to perform an additional term not contained in the contract before SPD would transfer

the Lone Peak property. Boyne argues that SPD’s demand that Boyne transfer an additional

25 acres of property to SPD, after Boyne already had transferred 25 acres of property to

SPH, constituted a demand to perform an additional term not contained in the Peak

Agreement. SPD informed Boyne in 2005 that it would not transfer the Lone Peak property

to Boyne unless Boyne fulfilled this additional term.

¶54    The District Court agreed that SPD’s demand for Boyne to transfer an additional 25

acres constituted an additional term not contained in the contract. The District Court also

found that SPH had made an unequivocal statement in 2005 that SPH would not transfer the

Lone Peak property unless Boyne transferred an additional 25 acres of property. SPD

informed Boyne that it would not transfer the Lone Peak property to Boyne even if Boyne

paid for the Lone Peak property. Further, after it received title to the Lone Peak property,

SPD transferred the property to LMH, a different entity managed by Dolan. This transfer
                                            18
made it impossible for SPD to fulfill its contractual obligation to transfer the Lone Peak

property to Boyne. The District Court concluded that SPD had anticipatorily breached the

Peak Agreement.

¶55    The Peak Agreement and the Southfork Agreement required Boyne to transfer a

single 25-acre parcel. SPD’s demand for Boyne to transfer additional property represented a

demand to fulfill a term not contained in the Peak Agreement. An anticipatory breach occurs

if a party demands performance of a term not included in the contract and the party

unequivocally states that it will not perform the contract unless the additional term is met.

Chamberlin v. Puckett Constr., 277 Mont. 198, 203, 921 P.2d 1237, 1240 (1996). The

record supports the District Court’s finding that Boyne had fulfilled its obligation to transfer

25 acres under the Peak Agreement in 2002. Pastimes, ¶ 18. The record further supports the

District Court’s finding that SPD made an unequivocal statement to Boyne in 2005 that

Boyne must fulfill this additional term before SPD would transfer the Lone Peak property.

SPD anticipatorily breached the contract. Chamberlin, 277 Mont. at 203, 921 P.2d at 1240.

2. useless acts not required before seeking specific performance

¶56    The District Court determined that Boyne could enforce the Peak Agreement without

first fulfilling Boyne’s final contractual requirement of paying SPD in light of SPD’s

repudiation of its contractual duty to transfer the Lone Peak property to Boyne. The District

Court relied on Eschenbacher v. Anderson, 2001 MT 206, ¶¶ 35-36, 306 Mont. 321, 34 P.3d

87, for its conclusion that Boyne was not required to continue performing Boyne’s

contractual obligations before seeking specific performance. We review for correctness a

district court’s conclusion of law. Varano, ¶ 7.
                                              19
¶57    Appellants claim that “Boyne can point to no Montana case law that says it is entitled

to specific performance of a contract when it failed to provide the consideration . . . it was

obligated to provide.” Appellants ignore the District Court’s citation of Eschenbacher.

Incredibly, Appellants cite Eschenbacher for the opposite conclusion—that Boyne was

required to perform fully Boyne’s contractual obligations before it could seek specific

performance.

¶58    Appellants correctly recognize that “Eschenbacher supports the proposition that a

party may bring an action to enforce a contract if the other party has anticipatorily breached.”

Appellants claim that Boyne would receive a windfall if Boyne were not required to perform

fully Boyne’s contractual duties before bringing this action for specific performance.

Appellants dismiss the notion that SPD’s “so-called anticipatory breach somehow excused

Boyne’s further performance under the Agreement.”

¶59    Appellants highlight one sentence from Eschenbacher for the proposition that Boyne

must perform fully Boyne’s contractual duties before it requests specific performance.

“Before a party may require another party to perform under an obligation, the requesting

party must fulfill all conditions precedent required of the requesting party.” Eschenbacher,

¶ 35. The following two sentences of Eschenbacher clearly indicate that Boyne did not need

to perform fully before it could seek specific performance in light of Appellants’ anticipatory

breach of the contract. Eschenbacher, ¶ 35. Eschenbacher emphasizes that the law does not

require a party to an agreement to perform a useless act: “If a party to a contract repudiates

his contractual duty prior to his obligation to perform, the other party may enforce the



                                              20
obligation without performing or offering to perform any of her obligations.” Eschenbacher,

¶ 35.

¶60     Boyne may bring its action for specific performance of the Peak Agreement even

though Boyne has not yet fulfilled its last contractual obligation to pay SPD for the Lone

Peak property. Eschenbacher, ¶ 40. We do not require Boyne first to perform the useless act

of paying SPD when SPD already anticipatorily has breached the Peak Agreement.

Eschenbacher, ¶ 35. The District Court properly applied the law of anticipatory breach.

3. value of the Lone Peak property

¶61     Appellants further argue against specific performance due to the lack of a price term

specified in the contract. The Peak Agreement required Boyne to pay SPD for half of the

value of the Lone Peak property. The Peak Agreement provides that Boyne will pay “the

appraised value of the [Lone Peak] Property in the Swap” of land between the U.S. and BLS.

The Peak Agreement estimates that the cost will be approximately $800 per acre.

¶62     The Gallatin Land Consolidation Act of 1998 required that the U.S. exchange land for

“equal value.” This requirement forced the U.S. to ascertain the appraised value of the Lone

Peak property before the U.S. could “swap” the Lone Peak property with BLS. This land

swap ultimately occurred and the final appraised value was determined. The price per acre

does not appear to have been a question at trial. Neither party introduced direct evidence of

the appraised value. Sufficient circumstantial evidence in the record establishes, however,

that the final appraised value was $800 per acre.

¶63     Only one witness, Brian Wheeler (Wheeler), the director of real estate and

development for Big Sky Resort, testified directly about the value per acre of the property.
                                             21
Appellants asked Wheeler if he had “an understanding about the amount Boyne would have

had to pay in 1998 dollars under [the Peak Agreement]?” Wheeler responded, “[i]t would be

seven acres, just seven and a half, acres times $800.” Appellants asked no additional

questions to suggest that Wheeler incorrectly had stated the value per acre of the Lone Peak

property. Appellants introduced no evidence at trial to suggest that the final appraised value

of the property was anything other than $800 per acre.

4. specific performance

¶64    Specific performance constitutes an equitable remedy within the discretion of the

district court. Larson v. Undem, 246 Mont. 336, 342, 805 P.2d 1318, 1323. Specific

performance may be necessary when pecuniary compensation for a defendant’s failure to

perform pursuant to the terms of a contract fails to afford adequate relief. Section 27-1-

411(2), MCA. A court presumes that the breach of the contract cannot be relieved

adequately by pecuniary compensation for contracts that involve the sale of land. Section

27-1-419, MCA.

¶65    Boyne had fulfilled its obligation to transfer 25 acres of property and stood ready to

pay SPD for the Lone Peak property. All parties understood that Boyne would pay $800 per

acre for half of the Lone Peak property. The presumption in favor of specific performance

applies to Boyne’s claim under these facts. Section 27-1-419, MCA.

C. LMH to Transfer Lone Peak Property

¶66    The District Court ordered LMH to transfer title of the Lone Peak property to Boyne.

The court may require the successor in interest to title to perform specifically the obligation

of its predecessor if a successor was not a purchaser in good faith for value. Section 27-1-
                                              22
421, MCA. “[O]ne who acquires or purchases property, knowing that the property is subject

to a contract to be sold to another, may be compelled to perform the contract in the same

manner and to the same extent as his grantor would have been liable to do had the grantor

not made the transfer to him.” Naylor v. Hall, 201 Mont. 59, 68, 651 P.2d 1010, 1015

(1982). Appellants argue, “there is no evidence in the record to establish that LMH was not

a purchaser of the property in good faith.”

¶67    Dolan, the same person who manages SPD, manages LMH. LMH acquired the Lone

Peak property with full knowledge that the Peak Agreement required the conveyance of the

property to Boyne. Further, Boyne had recorded a lis pendens on the property. SPD also

transferred the property after Boyne had filed this lawsuit. The record supports the District

Court’s finding that LMH failed to qualify as a purchaser in good faith. LMH remains liable

to perform the Peak Agreement in the same manner and under the same terms that SPD was

required to perform. Naylor, 201 Mont. at 68, 651 P.2d at 1015.

D. The District Court’s Deduction of $6,188 from Boyne’s Damage Award

¶68    The District Court deducted $6,188 from Boyne’s compensatory damage award to

account for Boyne’s contractual obligation to pay SPD for half of the Lone Peak property.

Appellants deride this “post-hoc attempt to satisfy [Boyne’s obligation to pay] by including

it as an arbitrary setoff.” Eschenbacher confirms that SPD’s anticipatory breach of the Peak

Agreement relieved Boyne of its obligation to pay before it filed this action. The District

Court’s grant of specific performance now requires Boyne to perform fully Boyne’s

obligation to pay for half of the Lone Peak property. Nothing arbitrary attaches to the

District Court’s decision to set off this amount from Boyne’s compensatory damage award.
                                              23
¶69   Appellants next argue that the District Court improperly valued the Lone Peak

property. The District Court directed Boyne to subtract $6,188 from Boyne’s damage award.

The survey established that the Lone Peak property comprised 15.47 acres. The value of the

Lone Peak property was determined to be $800 per acre. The District Court simply divided

the 15.47 acres in half, and then multiplied the resulting 7.735 acres by $800. The court

reached a final figure of $6,188. All of the evidence in the record indicated that the

appropriate value of the property was $800 per acre. Appellants offer no evidence that the

value of the property was anything other than $800 per acre.

¶70   Appellants further argue that the District Court improperly deducted this $6,188 in

equal shares from each of Appellants’ damages. Appellants argue in effect, that this

deduction means that Boyne only paid SPD $3,094—half of the amount required under the

Peak Agreement—and in turn, Appellants argue that Boyne paid $3,094 to LMH, even

though LMH has no right to payment under the Peak Agreement. We agree with Appellants

that it would be improper to require Boyne to pay LMH, a party with no rights under the

Peak Agreement. Boyne must fulfill its contractual obligation by deducting the full $6,188

purchase price from the damage award assessed against SPD.

E. Prescriptive Easement

¶71   The District Court’s order grants Boyne both an easement over the Lone Peak

property and ownership of the Lone Peak property.          Appellants cite this apparent

inconsistency as further evidence of the District Court’s “irredeemably contradictory”

judgment. Boyne sought outright ownership of the Lone Peak property through its claim for



                                           24
specific performance. Boyne also sought, in the alternative, an easement over the property

so that Boyne could continue to use the Lone Peak property as part of Big Sky Resort.

¶72    The jury found that Boyne was entitled to an easement over the property. The District

Court separately determined that Boyne was entitled to specific performance and therefore

legal ownership of the Lone Peak property. The District Court’s order provided that Boyne

was entitled both to an easement and to ownership of the property. The District Court

appropriately specified alternative relief in the event that this Court could have reversed the

District Court’s conclusion that Boyne was entitled to specific performance.

¶73    An easement holder’s acquisition of legal ownership of the servient land extinguishes

the easement associated with that parcel. Tungsten Holdings v. Olson, 2002 MT 158, ¶ 19,

310 Mont. 374, 50 P.3d 1086; § 70-17-105, MCA. Boyne’s acquisition of legal ownership

over the Lone Peak property will extinguish Boyne’s easement on the same parcel and

therefore eliminate any “irredeemable contradictions” in the court’s judgment. Tungsten

Holdings, ¶ 19.

¶74    2. Whether the jury erroneously awarded compensatory damages to Boyne.

¶75    The jury found that SPD and LMH each had deceived Boyne and that each had

abused the legal process. The jury awarded Boyne $300,000 from SPD and $300,000 from

LMH.

A. Abuse of the Legal Process

¶76    The tort of abuse of the legal process first requires proof of an ulterior purpose, and

second, a willful act in the use of the process not proper in the regular conduct of the

proceeding. Brault v. Smith, 209 Mont. 21, 28-29, 679 P.2d 236, 240 (1984). A decision to
                                              25
press a valid legal claim to its regular conclusion, even with an ulterior motive, fails by itself

to constitute abuse of process. Brault, 209 Mont. at 29, 679 P.2d at 240. The party alleging

abuse of process must prove that the other party attempted to use the process to coerce the

plaintiff to do some collateral thing that he legally and regularly could not be compelled to

do. Brault, 209 Mont. at 29, 679 P.2d at 240.

¶77      Boyne alleged at trial that Appellants had abused the legal process through their filing

of a frivolous counterclaim against Boyne that forced Boyne to defend itself for two and a

half years. Appellants dropped this counterclaim the last business day before the start of the

trial.

¶78      Appellants counterclaimed that Boyne had rescinded the Peak Agreement by

transferring to SPH the 25 acres that Boyne was required to transfer under the Peak

Agreement and the Southfork Agreement. Boyne argues that Appellants knew this claim to

be frivolous in light of the fact that Appellants were asserting a contrary claim in a different

lawsuit at the same time that Appellants made a claim for rescission for failure of

consideration.

¶79      SPH, an entity owned by SPD, claimed in a lawsuit filed in the 18th Judicial District,

Gallatin County, Spanish Peaks Holding, LLC v. Boyne, USA, Cause No. DV 06-570A, that

Boyne had transferred all of its rights and obligations under the Southfork Agreement to

SPH. This alleged transfer would mean that SPH no longer would be required to pay Boyne

override fees for the property in Spanish Peaks Resort that would benefit from the ski in/ski

out access to Big Sky Resort. This transfer of rights also would mean that Boyne no longer



                                               26
had an obligation to transfer 25 acres to anyone. SPH further argued, in the Gallatin County

action, that Boyne had failed to fulfill its obligation to transfer the 25 acres to SPH.

¶80    Boyne highlights the incompatibility of these three claims: (1) that Boyne was

required to transfer the 25 acres to SPD; (2) that Boyne was required to transfer the same 25

acres to SPH; or (3) that Boyne was not required to transfer the 25 acres to anyone, because

Boyne already had assigned all of its rights and obligations under the Southfork Agreement

to SPH. Boyne argued at trial that the inconsistency of these three claims demonstrated

abuse of the legal process.

¶81    Boyne further argued that Appellants had filed this legal claim for the ulterior purpose

of convincing Boyne to do something Boyne was not otherwise required to do. Appellants

sought to compel Boyne to transfer an additional 25 acres of property to Appellants before

Boyne could receive the Lone Peak property. Appellants further sought to convince Boyne

to modify or eliminate the override fees that the Southfork Agreement provided to Boyne.

¶82    Appellants defend this apparent duplicity on the basis that LMH was not a party to the

action when SPD filed its allegedly frivolous counter-claim against Boyne. Boyne added

LMH as a party in August 2009. Appellants filed their dubious counterclaim in September

2009. Appellants listed LMH as a party on their counterclaim. LMH participated in any

abuse of the legal process perpetrated by Appellants.

B. Deceit

¶83    Boyne further alleged that Appellants had deceived Boyne. A deceit involves a

suggestion of a fact that is not true by one who does not believe that it is true. Section 27-1-



                                              27
712, MCA. One who willfully deceives another with intent to induce that party to alter his

position is liable for any damage that party suffers. Section 27-1-712, MCA.

¶84    Between 2002, when Boyne transferred the 25 acres to SPH, and 2005, when SPD

informed Boyne that Boyne had breached the Southfork Agreement, Dolan and Doyle made

numerous statements to Boyne to imply that Boyne had not breached the Southfork

Agreement.

¶85    SPD asked Boyne in 2003 to help SPD in a different lawsuit over the Lone Peak

property. The U.S. had transferred 0.16 acres of the Lone Peak property to Moonlight Basin.

SPD wanted to correct this mistake. SPD worked with Boyne to litigate this matter against

the U.S. Boyne’s assistance in this matter caused Boyne to believe that Dolan and Blixseth

intended to transfer the Lone Peak property to Boyne after the U.S. had issued a patent.

¶86    Dolan and Blixseth sought to purchase Big Sky Resort from Boyne in 2003. Dolan

drafted and signed a letter that set forth the terms of a potential sale. Dolan addressed the

Lone Peak property. Dolan wrote that this property would “inure to the benefit of the owner

of the Big Sky Resort.”

¶87    Boyne requested the Lone Peak property, other than the 0.16 acres, in 2004. SPD’s

counsel, Doyle, responded that SPD could not yet transfer the property. Doyle cited the fact

that the U.S. would not issue a patent for the property until the conclusion of the litigation

over the 0.16 acres. Doyle made no mention that Boyne would not receive the Lone Peak

property due to Boyne’s breach of the Southfork Agreement.

¶88    Doyle simultaneously worked with Boyne to upgrade the Southern Comfort chairlift

at Big Sky Resort. The Southfork Agreement required Boyne to pay for the upgrade. Boyne
                                             28
also worked with SPH to determine from which lots Boyne would receive an override fee for

the ski in/ski out access to Big Sky Resort. The Southfork Agreement entitled Boyne to

these override fees. No one—not Blixseth, not Dolan, not Doyle, not anyone from SPD or

SPH—ever suggested to Boyne that Boyne had breached the Southfork Agreement. Dolan

ultimately conceded at trial that his implications to Boyne that the Southfork Agreement was

still in good standing amounted to a false representation. Dolan further conceded that it

would have been “prudent” to have disclosed Dolan’s position that Boyne had breached the

Southfork Agreement.

¶89    Appellants argue that LMH could not have deceived Boyne because LMH did not

exist until after the lawsuit was filed. Appellants further argue that all of the allegedly

deceitful activities occurred between 2002 to 2005. The jury found that LMH had deceived

Boyne. We do not need to resolve whether the jury properly found that LMH had deceived

Boyne because substantial evidence of damages exist from LMH’s abuse of the legal process

against Boyne. The jury awarded $300,000 either for LMH’s abuse or deceit.

C. Damages

¶90    Appellants do not argue that they did not abuse the legal process or that they had a

legitimate purpose for filing their frivolous counter-claim. Appellants also do not deny that

SPD’s actions deceived Boyne. Appellants instead argue that Boyne suffered only nominal

damages from any abuse of the legal process or deceit. Appellants argue that no evidence in

the record supports the jury’s award of compensatory damages for either abuse of the legal

process or deceit. Appellants claim that the jury could have awarded nominal damages, at

most, for Boyne’s two tort claims, rather than a total of $600,000.
                                             29
¶91    Boyne argued to the jury that Appellants used the Lone Peak property as an asset to

leverage Boyne on numerous matters, both related and unrelated to this litigation. The jury

learned that Boyne and Dolan, through Dolan’s various entities, had numerous contracts.

Boyne argued that Dolan and Dolan’s entities obtained favorable treatment on these other

contracts by leading Boyne to believe that Boyne was in compliance with the Southfork

Agreement between 2002 to 2005. Boyne further argued to the jury that Dolan and Dolan’s

entities had damaged Boyne after the litigation began by creating additional uncertainties in

Boyne’s business operations as a result of Appellants’ abusive counterclaim.

¶92    The jury learned about Dolan’s 2004 “Christmas List” email to Boyne. Dolan

requested renegotiation of a number of contracts between Boyne and Dolan’s entities in this

email. Dolan requested that Boyne renegotiate a contract with Lone Moose Meadows that

had made Boyne the exclusive rental manager for condominiums. Dolan wanted to discuss

Boyne’s operation of Big Sky Resort’s Southern Comfort chairlift, including hours, opening

and closing dates, and other matters that would benefit Dolan’s entities. Dolan wanted to

renegotiate the Purchase and Sale Agreement of 2002, which permitted only Boyne to

operate ski rentals, ski repair, restaurants, and bars on the property. Dolan requested special

lift line access for Dolan’s ski instructors and guides, as well as season passes for Spanish

Peaks Resort and Lone Moose Mountain staff. Dolan further requested advertising signs for

Dolan’s condominiums and properties throughout Big Sky Resort.

¶93    Dolan admitted at trial that he sought to modify multiple contracts that Dolan had

with Boyne. Dolan claimed that he had taken a “holistic approach” in an effort to modify

multiple agreements at once. Boyne argued that Dolan instead sought to leverage the
                                              30
promise of the Lone Peak property against Boyne to extract concessions in these other

contracts.

¶94    The jury learned that Boyne had spent $3 million to upgrade the Southern Comfort

chairlift needed to facilitate the ski in/ski out access to Big Sky Resort as part of the

Southfork Agreement with SPH. Boyne had disagreed with SPH about the timing of the

upgrade, but ultimately had upgraded the Southern Comfort lift earlier than required under

the Southfork Agreement. Boyne argued at trial that SPH, an entity owned by SPD, had

induced Boyne to upgrade the Southern Comfort lift earlier by implying that the Southfork

Agreement was still in good standing.

¶95    The Southfork Agreement also entitled Boyne to override fees for properties that SPH

sold with ski in/ski out access to Big Sky Resort’s chairlifts. The jury learned at trial that

SPH had sold almost $83.5 million worth of property at Spanish Peaks Resort, but had not

yet paid any override fees to Boyne.

¶96    Boyne also argued to the jury that SPD’s failure to fulfill its obligation under the Peak

Agreement had cost Boyne the opportunity to have held title to the property from 2004 to the

date of the 2011 trial. LMH contributed to this damage to Boyne by its “purchase” of the

property from SPD. Boyne could have transferred, leased, mortgaged, or sold the property

according to its own wishes during those eight years. SPD’s actions prevented Boyne from

taking any of these steps. SPD “sold” the property to LMH for $250,000 during that time

period. Boyne argued that this sale demonstrated that Boyne could have sold the property

for $250,000 if Boyne had obtained title to the property.



                                              31
¶97    The jury further learned that Dolan had attempted to interfere with Boyne’s ability to

obtain financing after Boyne filed this action. Boyne contacted CNL Lifestyle Properties,

Inc. (CNL) to obtain a loan. Dolan contacted CNL’s president to inform CNL’s president

that Dolan, rather than Boyne, owned the Lone Peak property. Dolan further told CNL’s

president that Dolan’s ownership of the land could be a problem for CNL.

¶98    Appellants urge this Court to review the jury’s award of damages on Boyne’s tort

claims of abuse of the legal process and deceit. Appellants characterize all of Boyne’s

damages as “speculative” and argue for application of the Court’s analysis of contract

damages in Watson v. West, 2009 MT 342, ¶ 34, 353 Mont. 120, 218 P.3d 1227. We instead

will review the jury’s damage award under our tort jurisprudence in light of the fact that the

jury awarded $600,000 to Boyne for its tort claims.

¶99    We determine whether substantial credible evidence supports a jury’s verdict.

Substantial credible evidence comprises evidence that a reasonable mind might accept as

adequate to support a conclusion. We view the evidence in the light most favorable to the

prevailing party. Seltzer, ¶ 94. We afford the prevailing party any reasonable inference that

can be drawn from the facts. The evidence will be considered substantial even if this Court

views it as inherently weak and conflicting and somewhat less than a preponderance.

Substantial evidence must consist of more than a mere scintilla of evidence, however, and it

must rise above the level of trifling or frivolous. Seltzer, ¶ 94.

¶100 This Court will not substitute its judgment for the jury’s judgment unless the amount

awarded is so grossly out of proportion to the injury as to shock the conscience. Frisnegger

v. Gibson, 183 Mont. 57, 67, 598 P.2d 574, 580 (1979). The jury learned of Appellants’
                                              32
numerous efforts to leverage Boyne on a variety of issues. For example, Boyne spent $3

million to upgrade the Southern Comfort chairlift on an expedited basis due to Appellants’

machinations over the Lone Peak property. Boyne could have performed the upgrade

according to the original schedule and used the money for other purposes in the interim.

Appellants failed to pay any override frees to Boyne on the ski in/ski out property despite

having sold approximately $83.5 million of property at Spanish Peaks Resort. Boyne’s

delayed receipt of these override fees-- to which the Southfork Agreement entitled it -- cost

Boyne the use of these override funds for a substantial period of time. We affirmed a jury’s

award of damages for lost investment value of funds that occurred due to a party’s delay in

Kiely Constr. L.L.C. v. City of Red Lodge, 2002 MT 241, ¶¶ 104, 106, 312 Mont. 52, 57 P.3d

836. We also affirmed the jury’s award of lost future investment value due to the

defendant’s delay. Kiely, ¶¶ 104, 106. Some of Boyne’s damages mirror the type of

damages that we affirmed in Kiely.

¶101 The jury awarded Boyne $300,000 in damages from SPD and $300,000 in damages

from LMH for the related torts of abuse of the legal process and deceit committed by

Appellants. Boyne presented evidence to the jury of substantial damages arising from

Appellants’ abuse of the legal process and from SPD’s deceit of Boyne. Nothing shocks the

conscience regarding the jury’s award of $600,000 for Appellant’s well cataloged abuses of

the legal process and deceit. Frisnegger, 183 Mont. at 67, 598 P.2d at 580. We decline to

disturb the jury’s damage award.

¶102 3. Whether the District Court properly awarded legal fees to Boyne pursuant to the

terms of the contract.
                                             33
¶103 The District Court awarded $176,834 in attorney fees to Boyne pursuant to a

provision in the Peak Agreement that provided attorney fees to the prevailing party.

Appellants ignore this clear statement and implicitly argue that no contractual provision

addresses attorney fees: “[w]ithout an explicit entitlement to fees . . . fees are not available.”

Appellants cite Blue Ridge Homes, Inc. v. Thein, 2008 MT 264, ¶ 78, 345 Mont. 125, 191

P.3d 374, for the proposition that a court may award fees “only where a statute or contract

provides for their recovery.”

¶104 The Peak Agreement contains an express provision related to fees. The Peak

Agreement could not be more clear: “[i]n the event either party to this agreement finds it

necessary to bring an action at law . . . to enforce any of the terms, conditions or covenants

hereof . . . the party prevailing in such action or other proceedings shall be paid all

reasonable attorney’s fees by the other party.”

¶105 Boyne submitted a claim for fees as directed by the District Court’s judgment. Boyne

failed to title its motion “Motion for Attorney Fees,” however, as Appellants claim M. R.

Civ. P. 54(d)(2)(A) requires. Boyne filed a motion entitled “Proposed Findings and

Conclusions and a Statement of Attorney’s fees.” Boyne’s motion set forth the amount of

fees that Boyne sought and the basis for these fees. Boyne cites Moody v. Northland Royalty

Co., 286 Mont. 89, 95, 951 P.2d 18, 22 (1997), for the proposition that the substance of the

document, rather than the caption should control. Boyne’s submission requested attorney

fees and detailed the amount of fees sought.

¶106 Nothing in M. R. Civ. P. 54(d)(2)(A), required Boyne to file a separate motion titled

“motion for fees” when the Peak Agreement provided for fees to the prevailing party and
                                               34
when the District Court directed Boyne to submit a claim for fees. Appellants’ argument

borders on frivolous. See M. R. App. P. 19(5). This Court generally has held that for

purposes of characterizing post-judgment orders, “the substance, not the caption, of the

document controls.” Moody, 286 Mont. at 95, 951 P.2d at 22. “We shall look to the

substance of a motion, not just its title, to identify what motion has been presented.” Miller

v. Herbert, 272 Mont. 132, 136, 900 P.2d 273, 275 (1995). Boyne’s motion sufficiently put

Appellants on notice that Boyne sought attorney fees in the amount described in the motion.

¶107 Appellants next insist that the District Court did not issue a valid fee award. The

District Court issued its judgment on December 5, 2011. The District Court’s judgment

instructed Boyne to submit a statement of the amount of attorney fees sought within ten days.

The District Court further provided that Boyne’s claimed fee amount would be

“incorporated into this Judgment as if fully set forth herein” if Appellants did not object to

the attorney fees within ten days.

¶108 Boyne submitted its motion on December 12, 2011, with the amount of its claimed

attorney fees. Appellants did not object to the amount of attorney fees or request a hearing

within ten days. More than three weeks later, on January 3, 2012, Boyne submitted a

Statement of Amount of Attorney’s Fees to be Incorporated into Judgment. The court

incorporated the fees into the judgment.

¶109 Appellants argue that they have not had an opportunity to contest the amount of fees.

Boyne submitted its request for fees as the District Court ordered on December 12, 2011, and

the District Court incorporated these fees into the judgment on January 3, 2012. Appellants

finally filed a motion to contest Boyne’s attorney fees on January 10, 2012. Appellants did
                                             35
not object to the reasonableness, or to the amount of the fees, within the 10-day period.

Appellants did not seek a hearing on the amount of fees within the 10-day period.

Appellants’ failure to make a timely objection when given the opportunity waives their right

to object for the first time on appeal. Entriken v. Motor Coach Fed. Credit Union, 256 Mont.

85, 94, 845 P.2d 93, 98 (1992).

¶110 4. Whether Boyne is entitled to legal fees on appeal.

¶111 Boyne argues that the Peak Agreement entitles it to fees on appeal. We agree. A

contractual provision that provides for attorney fees includes attorney fees for appeal. In re

Estate of Burrell, 2010 MT 280, ¶ 41, 358 Mont. 460, 245 P.3d 1106 (citing Boyne USA, Inc.

v. Lone Moose Meadows, LLC, 2010 MT 133, ¶ 26, 356 Mont. 408, 235 P.3d 1269).

Boyne’s status as the prevailing party entitles it to attorney fees reasonably incurred in

enforcing the Peak Agreement on appeal.           We remand to the District Court for a

determination of reasonable attorney fees incurred on appeal.

                                      CONCLUSION

¶112 Our legal system provides a mechanism to resolve disputes between parties. Our

review of the record convinces the Court that Appellants elected to use every procedural

mechanism of our legal system to evade its contractual obligations, obfuscate, manufacture

disputes, and leverage its business position in a duplicitous manner.

¶113 Appellants operated in this manner throughout the protracted period of negotiations

with Boyne from the execution of the Peak Agreement in 1998 through Boyne’s decision to

file this action in 2008. Boyne had to litigate every major contract that it had entered with

Appellants and their related entities. The bankruptcy proceedings in In re Yellowstone Mt.
                                             36
Club, LLC, 436 B.R. 598 (2010), confirm that Appellants and their agents “do business” in

this manner generally.

¶114 Appellants continued this course of conduct through this litigation in the District

Court. Appellants claimed that SPD was the appropriate party to receive the 25 acres from

Boyne under the Southfork Agreement despite the Assignment and Assumption document

and Dolan’s admission at trial that SPD had conveyed this right to SPH. Appellants urged

the jury to ignore the Assignment and Assumption document that clearly specified this

transfer of rights. Appellants filed a frivolous counterclaim that they dropped the final

business day before the trial. Appellants asserted a position in this litigation, that Boyne had

failed to transfer land to SPD, that was directly contrary to the position that Appellants had

asserted in a different lawsuit in Gallatin County. Appellants further claimed that Boyne had

“sold” SPH the 25 acres when Boyne actually had transferred the 25 acres as part of a larger

land transaction to help SPH evade subdivision review.

¶115 Of greater concern to this Court is the fact that Appellants have elected to continue

with this course of conduct on appeal. Appellants’ challenge to Boyne’s claim for fees based

on Boyne’s failure to caption its motion to the District Court as a request for fees

underscores the baseless nature of their claims. Appellants further do not challenge on

appeal the fact that they abused the legal process and committed deceit. As the record

demonstrates, Appellants do not challenge these rulings with good reason. Appellants

instead argue on appeal that their admitted abuse of the legal process and their admitted

deceit caused no damages to Boyne. We cannot agree.

¶116 Affirmed.
                                              37
                              /S/ Brian Morris


We Concur:

/S/ Michael E Wheat
/S/ Patricia O. Cotter
/S/ Beth Baker
/S/ Jim Rice




                         38
