                                                                                             May 28 2008


                                           DA 07-0065

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 183



MARK G. WEST and LEAH J. JEDINY,

              Plaintiffs, Counterclaim Defendants
              and Appellees,

         v.

THE CLUB AT SPANISH PEAKS, L.L.C.,

              Defendant, Counterclaim Plaintiff
              and Appellant.



APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DV 2004-669
                       Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Stephen R. Brown, Lucy T. France, Garlington, Lohn & Robinson, PLLP,
                       Missoula, Montana

                For Appellee:

                       Robert K. Baldwin, Trent M. Gardner, Goetz, Gallik & Baldwin, P.C.,
                       Bozeman, Montana



                                                    Submitted on Briefs: February 13, 2008

                                                               Decided: May 28, 2008


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     The Club at Spanish Peaks, L.L.C. (Spanish Peaks), appeals from several rulings

and orders issued prior to, during, and after a jury trial held before the District Court in

the Eighteenth Judicial District, Gallatin County. This jury trial resulted in a judgment

for appellees Mark G. West (West) and Leah J. Jediny (Jediny) exceeding one million

dollars inclusive of interest, statutory penalties for violation of § 39-3-204(1), MCA, and

attorney’s fees. We affirm in part, reverse in part, and remand for further proceedings.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     Spanish Peaks is a Montana limited liability company which developed a resort

(Spanish Peaks Resort) in Big Sky, Montana. Spanish Peaks Resort is a residential resort

community which operates as a club, meaning that persons who purchase property in the

resort area must also purchase a club membership. Spanish Peaks is affiliated with a

separate company, known as Spanish Peaks Holdings, L.L.C. (Holdings), which actually

owns the real property comprising the Spanish Peaks Resort area.

¶3     West began his employment with Spanish Peaks on December 1, 2003, as the vice

president of sales and marketing. In this position, West was responsible for working with

local and regional real estate brokerage firms to promote and sell lots and “built

products” (i.e., homes, cabins, condominiums, or townhomes) in the Spanish Peaks

Resort, and another resort known as Lone Moose Meadows. Prior to his employment

with Spanish Peaks, West executed two employment contracts, one on November 17,

2003, and one on November 24, 2003. The contracts are nearly identical. Both cover a




                                             2
wide range of subjects pertaining to West’s employment with Spanish Peaks, including a

job description, compensation, and provisions regarding his potential termination.

¶4     Paragraph 8 of both versions of the contract covers the issue of West’s

compensation and contains the following identical provisions:

       8.1 Base Compensation. In consideration of services rendered by
       Employee to Resort, Resort shall pay Employee a base salary of $175,000
       per year, payable biweekly through twenty-six pay periods commencing in
       early December 2003, pro rata to the commencement date of December 1,
       2003 (“Base Compensation”). Base compensation during the first
       extension shall increase to $210,000 per year. Base compensation during
       the second extension shall increase to $225,000 per year.

       ....

       8.3 Commission Compensation. Employee shall earn Commission
       Compensation as an override on sales closed on the following products:
            a. 1.0% commission on all lot/homesite sales within the Spanish
            Peaks Resort or the Lone Moose Resort Meadows (LMM) projects.
            b. 0.5% commission on all built product (homes, cabins,
            condominiums, townhomes etc) within the Spanish Peaks or Lone
            Moose Meadows projects.

       8.4 Spanish Peaks Resort Lot.

              8.4.1 Lot Discount. Resort agrees to offer a lot within the Spanish
       Peaks Resort Project (in either Estates or Resort) for sale to Employee at a
       25% discount from the then current list price (“Lot Discount”). Title to
       the Lot shall be conveyed subject to usual restrictions, covenants,
       easements and other typical matters of record against the Lot, and if
       Employee chooses to avail himself of the Company mortgage, that lot
       shall be subject to a mortgage in favor of Resort.

¶5     Moreover, both agreements contain termination clauses. Paragraph 13 of both

contracts reads as follows:

       13. Termination for Cause. The employment of Employee by Resort
       may be terminated immediately in the sole discretion of Resort upon the
       occurrence of any of the following causes:


                                            3
       ....

       13.2 In the event Employee shall be guilty of fraud, dishonesty, or any
       other act of misconduct in the performance of employee’s duties on behalf
       of Resort.

¶6     Paragraph 14 of one of the contracts reads as follows:

       14. Termination With Notice. This Agreement may also be terminated
       by either party without cause, upon 120 days’ written notice to the other,
       in which case the termination shall be effective at the end of the 120 days’
       notification period.

Significantly, paragraph 14 of the other contract reads as follows, with the additional

language in italics:

       14. Termination With Notice. This Agreement may also be terminated
       by either party without cause, upon 120 days’ written notice to the other,
       in which case the termination shall be effective at the end of the 120 days’
       notification period. Any outstanding commissions and bonuses due at time
       of termination shall be paid to the Employee in accordance with the
       closing schedule of associated properties without deduction or penalty of
       any kind except for normal payroll deductions and taxes within [a] 30 day
       period after closing of the sales.

West claims this additional language was inserted as a result of negotiations between he

and Spanish Peaks. In any event, the District Court determined that the employment

contract includes the additional sentence of paragraph 14 from the second contract, and

the parties do not dispute this determination on appeal. Moreover, both agreements are

identical with respect to other provisions key to this case, namely paragraph 17, entitled

“Proration of Base Compensation,” and paragraph 22, “Entire Agreement,” which are

reproduced in full below. Thus, although there were two separate employment contracts,




                                            4
we will simply refer to both of these contracts as the Employment Agreement throughout

this Opinion.

¶7     In early 2004, an individual named Wayne Lee purchased Lot 84 in the Spanish

Peaks Resort and a club membership in Spanish Peaks. West and Spanish Peaks differ

on what transpired next. According to West, Lee became unhappy with the Spanish

Peaks Resort and wished to sell Lot 84. West claims that he assisted Lee in getting

Spanish Peaks to purchase the lot, but that Spanish Peaks would not pay Lee for the lot

until it had a third-party buyer. A buyer was found, but the deal fell through. West

claims that Lee then approached him about personally buying Lot 84. West thought this

was a perfect solution to Lee’s dilemma because he and Jediny (his fiancé at the time but

now his wife) were in the process of purchasing Lot 85 under the terms of paragraph

8.4.1. Jediny eventually purchased Lot 84 from Lee.

¶8     According to West, he fully apprised executives from Spanish Peaks of this real

estate transaction. However, Spanish Peaks disagrees. It claims that the Lees entered

into a contract with Holdings, whereby Holdings agreed to repurchase Lot 84 at the

original price of $330,000.00, with the closing contingent upon Holdings entering into an

agreement to sell Lot 84 to another buyer. Spanish Peaks claims that West wrote a

contract for Jediny to purchase Lot 84 without its knowledge, and in spite of the

repurchase contract already executed between Holdings and Lee. Spanish Peaks claims

that under West’s leadership it continued to include Lot 84 in its sales portfolio, and that

West continued to advocate its sale even though he and Jediny would have been the only

parties to benefit from the transaction. Moreover, Spanish Peaks continued to list Lot 84


                                             5
at a purchase price of $395,000.00; thus, upon its sale, Jediny and West would stand to

immediately gain a profit of more than $60,000.00.

¶9    Spanish Peaks asserts that it discovered the existence of the Jediny-Lee contract to

purchase Lot 84 for the first time in early November of 2004. After this transaction was

discovered, Spanish Peaks claims that West made efforts to seize and shred the original

buy-back contract between Holdings and Lee, and that he also tried to delete scanned

versions of the contract from the Spanish Peaks’ computer system.

¶10   At a meeting on November 8, 2004, Spanish Peaks confronted West about his

actions, and presented him with a confidential separation agreement and general release

(Separation Agreement). The Separation Agreement stated, among other things, that

West would voluntarily resign his position, convey Lot 84 to Spanish Peaks, agree not to

sue Spanish Peaks, and that, as consideration for the Separation Agreement, Spanish

Peaks would forego its right to recoup what it claimed were $5,000.00 in damages as a

result of West’s actions. The Separation Agreement stated that, upon its acceptance by

West, no further amounts would be due or owed from Spanish Peaks to West for, or in

any way relating to or connected with, West’s employment with Spanish Peaks.

Moreover, i t stated its acceptance by West would “satisfy all sums which might

otherwise be due you from [Spanish Peaks], including, without limitation, any real estate

or membership benefits and any commission or bonus payments . . . .” West refused to

accept the Separation Agreement.       As a result, Spanish Peaks terminated West’s

employment for what i t claimed were his fraudulent and dishonest actions in




                                           6
misappropriating a real estate profit from Spanish Peaks and misleading Spanish Peaks

about his actions.

¶11    West claims that his actions were above board and that his firing was simply a

pretext so that Spanish Peaks would not have to pay him hundreds of thousands of dollars

in “trailing commissions”; i.e., commissions for sales that West had arranged, but that

had not yet closed. West claims he was lured into the November 8 meeting under false

pretenses, given a “pre-drafted take-it-or-leave it release” in an effort to intimidate him

into releasing all claims against Spanish Peaks, and then fired.

¶12    On November 26, 2004, West filed suit against Spanish Peaks in District Court,

with Judge Holly Brown initially presiding. In Count I of his complaint, West sought a

declaration that Spanish Peaks was required, under the terms of the Employment

Agreement, to make bonus payments to West for commissions on executed sales and

purchase agreements which were in place when West was terminated, but had not yet

closed. Count II asserted breach of contract and breach of the covenant of good faith and

fair dealing claims for Spanish Peaks’ failure to pay him for commissions on sales which

had closed since his termination. Count III asserted a claim seeking damages, penalties,

and attorney’s fees for alleged violations of the Montana Wage Protection Act, Title 39,

Chapter 3, MCA (Wage Act).

¶13    Spanish Peaks answered on December 27, 2004, and filed a number of

counterclaims, including breach of the Employment Agreement and covenant of good

faith and fair dealing, breach of fiduciary duty, fraud, interference with contractual

relations, intentional interference with prospective economic advantage, and negligent


                                             7
misrepresentation. Subsequently, on February 8, 2005, Spanish Peaks filed a notice of lis

pendens in the District Court with respect to Lot 84. The ostensible reason for this filing

was that West had committed constructive fraud and interference with Spanish Peaks’

contractual relations and prospective economic advantage by facilitating the sale of Lot

84 when Spanish Peaks had a contractual interest in the purchase of that lot.

¶14    On April 28, 2005, West sought and was granted leave to amend his original

complaint. The amended complaint added Jediny as a plaintiff to the suit, and seven new

counts to the complaint itself. Among those new counts were the following: actual

fraud/negligent misrepresentation (Count IV); breach of the Employment Agreement and

the covenant of good faith and fair dealing (Count V); slander of title (Count VI); breach

of contract to purchase Lot 85 at a price substantially below market value (Count VII);

negligence (Count VIII); intentional interference with prospective economic advantage

(Count IX); and punitive damages (Count X).         In particular, Count VI alleged that

Spanish Peaks improperly filed a lis pendens against Lot 84, and that Jediny suffered

special damages as a result of its filing. Count VII alleged that West and Jediny had a

contract to purchase Lot 85 under the terms of West’s Employment Agreement at a

below market price, that Spanish Peaks breached the Employment Agreement by failing

to perform by its terms, and that West and Jediny were entitled to damages equal to the

difference between the market value of Lot 85 and its price under the terms of the

Employment Agreement.

¶15    As proceedings continued in the District Court, a number of motions were filed

and argued by both parties. On November 7, 2005, West and Jediny filed a motion for


                                            8
partial summary judgment seeking a declaration that the Employment Agreement was

ambiguous as a matter of law. Furthermore, West asked that the Employment Agreement

be construed against Spanish Peaks, requiring it to pay West “trailing commissions”—

i.e., bonuses for sales which West earned but which did not close until after his

termination. West and Jediny also sought partial summary judgment on Counts VI, VIII,

and IX of their amended complaint, and partial summary judgment on all of Spanish

Peaks’ counterclaims. That same day, Spanish Peaks filed a motion for partial summary

judgment seeking to dismiss West’s declaratory judgment action with respect to Count I

of his original complaint. Arguments on these motions were heard before Judge Holly

Brown on February 2, 2006.

¶16    The District Court granted in part and denied in part West’s summary judgment

motion, and denied in full Spanish Peaks’ motion. On Count I, Judge Holly Brown found

that the Employment Agreement was susceptible to two reasonable interpretations on the

issue of whether West was entitled to trailing commissions for sales that he had

facilitated prior to his termination, but which did not close until after he was fired. Thus,

she ruled the Employment Agreement was ambiguous as a matter of law. Consequently,

she construed the Employment Agreement against Spanish Peaks and ordered that the

intent of the parties on the issue of trailing commissions would be decided by a jury.

¶17    With respect to Counts VI, VIII, and IX, the District Court concluded as a matter

of law that Spanish Peaks’ filing of the lis pendens on Lot 84 was not authorized under

§ 70-19-102, MCA. The District Court noted that while several of Spanish Peaks’

counterclaims arose out of Jediny’s purchase of Lot 84, none of those claims affected the


                                             9
title or right of possession to Lot 84, nor did Spanish Peaks seek title to or possession of

the lot. Therefore, the District Court concluded as a matter of law that Spanish Peaks’

action constituted slander of title as alleged in Count VI, and consequently granted

summary judgment on Count VIII (negligence) and Count IX (intentional interference

with prospective economic advantage), since both of those claims were premised on the

allegation that Spanish Peaks’ lis pendens on Lot 84 was unauthorized. Additionally, the

District Court dismissed all of Spanish Peaks’ counterclaims. Spanish Peaks does not

appeal this dismissal.

¶18    On September 5, 2006, Judge Holly Brown recused herself from the case, and

Judge John Brown assumed jurisdiction over the proceedings. A jury trial began on

October 16, 2006, and concluded with a verdict from the jury on October 27, 2006.

¶19    During the course of the trial, Judge John Brown made a number of rulings which

Spanish Peaks now appeals.       The first was a ruling which allowed the Separation

Agreement to be admitted into evidence. Prior to trial, Spanish Peaks had unsuccessfully

sought to exclude the admission of this evidence on the grounds that it was an offer of

compromise, and thus inadmissible under M. R. Evid. 408. When West then offered the

Separation Agreement at trial, Spanish Peaks renewed its objection. The District Court

overruled the objection and allowed the Separation Agreement to be admitted on the

grounds that it was offered not to prove Spanish Peaks’ liability but rather “for another

purpose” under M. R. Evid. 408—namely, to demonstrate that West’s firing was

pretextual. Spanish Peaks then moved for a cautionary jury instruction to the effect that

the jury should not infer from the Separation Agreement’s admission that Spanish Peaks


                                            10
was in any way culpable. The District Court denied the motion and deferred ruling on

jury instructions until a later time. Spanish Peaks also asked that West be prevented from

arguing that the Separation Agreement should be construed as indicating that Spanish

Peaks did something wrong or was culpable. This motion was denied as well, the

District Court stating that West would be allowed to argue that his firing was a pretext.

¶20    The second ruling now at issue was an October 19, 2006 ruling imposing

sanctions against Spanish Peaks under M. R. Civ. P. 37.           During discovery, West

submitted Interrogatory No. 10 to Spanish Peaks, which reads as follows:

       INTERROGATORY NO. 10: Please state the amount of compensation
       that Spanish Peaks would have had to pay to Mr. West for sales that were
       scheduled for closings as of the time of Mr. West’s termination, had Mr.
       West not been terminated.

¶21    In response, Spanish Peaks provided a spreadsheet which contained real estate

phase descriptions, lot numbers, actual closing dates, prices and the dates of purchase and

sales agreements.    Spanish Peaks later filed a supplementary response in which it

objected to the interrogatory on the grounds that it was “vague, overly broad or general,

ambiguous, confusing and unintelligible, or argumentative in its present form.” Without

waiving these objections, Spanish Peaks further stated that it had already provided this

information in response to a previous production request by West.

¶22    Believing Spanish Peaks had not provided the requested answer in these

responses, West moved for sanctions against Spanish Peaks on November 7, 2005,

seeking to preclude Spanish Peaks from disputing at trial West’s evidence concerning the

amount of the trailing commissions due to him under the Employment Agreement. West



                                            11
argued that the information produced by Spanish Peaks was not sufficient because it

failed to provide a specific calculation of the outstanding trailing commissions potentially

owed to him. That same day, West also filed a motion in limine seeking the same

sanctions.   Spanish Peaks opposed both motions, arguing that i t had supplied the

requested information and that sanctions were not warranted.

¶23    On July 31, 2006, Judge Holly Brown issued an order on the motions, stating that

she had “no way to know” whether Spanish Peaks was actually withholding information

on this issue, but emphasizing that “Spanish Peaks must comply with and continually

supplement Plaintiffs’ discovery requests.” Accordingly, Judge Holly Brown ordered

that “[t]o the extent it has not yet done so, the Court hereby orders Spanish Peaks to

supply the requested report within ten (10) days of the date of this Order.” Spanish Peaks

subsequently transmitted additional sales reports to West on August 10, 2006.

¶24    At the end of the third day of trial, when West objected to the admission of some

sales traffic reports by Spanish Peaks, this issue resurfaced. West argued that although

Spanish Peaks had provided him with additional information related to its sales, it still

had not provided him with a specific calculation of the compensation it believed would

be owed to him should the jury find that Spanish Peaks breached the Employment

Agreement. West argued that, as a sanction, Spanish Peaks should be prevented from

disputing any calculations he might offer on the amount of damages owed.

¶25    Outside the presence of the jury, West argued that it was prejudicial to him to be

in the midst of trial and still not know what Spanish Peaks believed the measure of

damages should be nor how Spanish Peaks would arrive at such a figure. Spanish Peaks


                                            12
argued that it had supplied all the data West needed to make his calculations and that it

was simple math for him to come up with a figure of damages. Based on the data, West

had previously submitted a figure of damages in the amount of $464,924.59. Spanish

Peaks responded that it would argue the amount of damages was either zero or a number

less than $464,924.59, but it refused to give a specific figure, or state how it would arrive

at its calculation, maintaining that the jury would be able to weigh the evidence before it

and appropriately calculate a damages figure.        Having to disclose such a figure in

advance, Spanish Peaks argued, would force it to telegraph its closing arguments on this

issue.

¶26      Judge John Brown disagreed with Spanish Peaks and granted West’s motions for

sanctions under M. R. Civ. P. 37(b)(2). He ruled that as a result of its failure to respond

to Interrogatory No. 10 with a specific damage figure, Spanish Peaks would be limited to

arguing either that damages were $0.00 or $464,942.59, the figure provided by West.

¶27      A third issue on appeal arises from the District Court’s denial of Spanish Peak’s

motion for a directed verdict. After West rested, Spanish Peaks moved for a directed

verdict on Count VII of West’s complaint which alleged breach of a contract to allow

him to purchase Lot 85 at a discount. (See ¶ 4). Prior to his termination, West had

elected to purchase Lot 85 under the terms of his Employment Agreement and had

entered into a contract with Holdings to purchase it. The District Court deferred its

ruling until Spanish Peaks had an opportunity to file briefs on the motion. Two days

later, Spanish Peaks filed those briefs, in which it argued that West failed to point to any

communication from Spanish Peaks stating that he could not close on Lot 85, and further


                                             13
that West had not yet even purchased Lot 85 or been unsuccessful in obtaining financing

from Spanish Peaks under the terms of his Employment Agreement. The District Court

denied the motion.

¶28    Spanish Peaks filed a post-trial motion under M. R. Civ. P. 50 for judgment as a

matter of law, arguing that its motion for a directed verdict should have been granted. It

maintained that because Holdings, not Spanish Peaks, was the contracting party with

West for the sale of Lot 85, there was no legal basis for a jury to find that it had breached

the contract. The District Court, however, denied this motion as well, concluding that

Spanish Peaks was prevented from asserting this argument due to pretrial rulings which

forbade it from doing so.1

¶29    A fourth ruling on appeal stems from the decision by the District Court during trial

to limit the testimony of a witness proffered by Spanish Peaks, Martha Johnson

(Johnson). During its case-in-chief, Spanish Peaks attempted to elicit testimony from

Johnson, a local real estate broker, about her experience with the custom and practice in

Montana concerning payments of “trailing commissions.” West objected that Johnson’s

testimony on this subject should not be allowed because it was not based on facts

pertaining to this case, and, further, that she was an undisclosed expert witness. The

District Court sustained West’s objection and did not allow Johnson to testify because




1
  On October 16, 2006, Judge John Brown granted West’s motion to strike a contention which
Spanish Peaks wanted to add to the pretrial order to the effect that West and Jediny had a
contract to purchase Lot 85 with Holdings, not Spanish Peaks. Spanish Peaks has not appealed
this ruling.

                                             14
she was an undisclosed expert and because her testimony was irrelevant since she was

not an employee of Spanish Peaks.

¶30   On October 27, 2006, the jury returned a verdict in this matter. Although the

special verdict form contained a total of twenty-four questions, we will recite only the

jury’s findings on those issues which are the focus of the present appeal. The jury found

that Spanish Peaks breached the Employment Agreement by refusing to pay West

bonuses and commissions he had earned at the time of his termination. As a result, West

was awarded damages of $464,942.59. The jury further found that Spanish Peaks’ filing

of the lis pendens on Lot 84 caused damage to Jediny in the amount of $154,937.50. The

jury also found that Spanish Peaks breached the contract which would have allowed West

to purchase Lot 85, and that West’s damages as a result of this breach were $85,000.00.

¶31   After the jury returned its verdict, the District Court then addressed West’s claims

for wages and penalties under the Wage Act, as the parties had previously stipulated that

the District Court would decide this issue. West maintained that the trailing commissions

or bonuses he was entitled to under his Employment Agreement constituted wages within

the meaning of the Wage Act, and that since he had earned those payments and Spanish

Peaks improperly withheld them, he was entitled to statutory damages. The District

Court agreed with West, and concluded in its order dated December 6, 2006, that, based

on the jury’s determination that Spanish Peaks had breached the Employment

Agreement, West was entitled to a statutory penalty—over and above the $464,924.59 in

bonuses and accrued interest on that sum—in the amount of $255,718.42. In addition to

awarding a statutory penalty under the Wage Act, the District Court also held that West


                                           15
was entitled to recover costs and attorney’s fees. The District Court subsequently entered

a judgment on December 19, 2006.

¶32    Finally, on February 22, 2007, the District Court issued an order for attorney’s

fees and costs. It awarded costs to West and Jediny in the amount of $20,137.19.

Additionally, the District Court awarded attorney’s fees to West in the amount of

$358,580.54, based on a 40% contingent fee arrangement between West and his

attorneys. The District Court based this figure on the following awards: (1) $464,942.59

in unpaid wages to West; (2) $252,718.42 penalty on the unpaid wages under the Wage

Act; (3) $61,624.35 prejudgment interest on the unpaid wages; (4) $29,166.00 in

damages for West’s wrongful termination; and (5) $85,000.00 in damages for Spanish

Peaks’ breach of its contract to allow West to purchase Lot 85. The District Court

awarded these fees based on the fee-shifting clause contained in the Employment

Agreement, as well as the attorney’s fees provision of the Wage Act at § 39-3-214(2),

MCA.

¶33    Spanish Peaks now timely appeals the District Court’s grant of summary

judgment, the aforementioned trial rulings of the District Court, the order granting

penalties in favor of West under the Wage Act, and the District Court’s award of

attorney’s fees.

                                        ISSUES

¶34    We state the issues on appeal as follows:

¶35    Issue One: Did the District Court err in concluding the Employment Agreement

was ambiguous?


                                            16
¶36    Issue Two: Did the District Court err in concluding that Spanish Peaks’ filing of

the lis pendens on Lot 84 was not authorized under § 70-19-102, MCA?

¶37    Issue Three:     Did the District Court abuse its discretion by allowing the

admission of the Separation Agreement?

¶38    Issue Four: Did the District Court abuse its discretion in imposing sanctions

against Spanish Peaks by limiting its presentation of evidence and argument on the issue

of damages for breach of the Employment Agreement?

¶39    Issue Five: Did the District Court err in denying Spanish Peaks’ motion for a

directed verdict and post-trial motion for judgment as a matter of law on the claim that it

breached an agreement to allow West to purchase Lot 85?

¶40    Issue Six: Did the District Court abuse its discretion by limiting the testimony of

Johnson on the custom and practice in Montana of paying trailing commissions after an

employee’s termination?

¶41    Issue Seven: Did the District Court err in ordering penalties in favor of West for

Spanish Peaks’ alleged violation of the Wage Act?

¶42    Issue Eight: Did the District Court abuse its discretion in ordering attorney’s

fees to West in the amount of $358,580.54?

                              STANDARDS OF REVIEW

¶43    We review appeals from a district court’s grant of summary judgment de novo,

applying the standards established in M. R. Civ. P. 56(c), meaning the moving party must

establish there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Flathead Citizens for Quality Growth, Inc. v.


                                             17
Flathead Co. Bd. Of Adjustment, 2008 MT 1, ¶ 31, 341 Mont. 1, ¶ 31, 175 P.3d 282, ¶ 31

(quotations and citations omitted). Once this burden has been satisfied, the non-moving

party may raise a genuine issue of material fact by presenting substantial evidence

essential to one or more elements in the case. Flathead Citizens, ¶ 31. Moreover, a

district court’s conclusions of law are reviewed for correctness. Flathead Citizens, ¶ 31.

¶44    Evidentiary rulings by a district court are reviewed for an abuse of discretion.

Faulconbridge v. State, 2006 MT 198, ¶ 22, 333 Mont. 186, ¶ 22, 142 P.3d 777, ¶ 22.

Similarly, we review a district court’s decision to impose sanctions under M. R. Civ. P.

37 for an abuse of discretion. Schuff v. Jackson, 2008 MT 81, ¶ 15, 342 Mont. 156, ¶ 15,

179 P.3d 1169, ¶ 15. A district court’s determination of attorney’s fees is also reviewed

for an abuse of discretion. Donnes v. Orlando, 221 Mont. 356, 361-62, 720 P.2d 233,

237 (1986). When reviewing for an abuse of discretion, “[w]e consider whether the trial

court in the exercise of its discretion acted arbitrarily without the employment of

conscientious judgment or exceeded the bounds of reason, in view of all the

circumstances, ignoring recognized principles resulting in substantial injustice.” Schuff,

¶ 15 (quotation omitted).

¶45    A district court’s decision to deny a motion for a judgment as a matter of law,

however, we review de novo. State v. Marler, 2008 MT 13, ¶ 20, 341 Mont. 120, ¶ 20,

176 P.3d 1010, ¶ 20. “Judgment as a matter of law is properly granted only when there is

a complete absence of any evidence which would justify submitting an issue to a jury and

all such evidence and any legitimate inferences that might be drawn from that evidence

must be considered in the light most favorable to the party opposing the motion.”


                                            18
Bevacqua v. Union Pacific R.R. Co., 1998 MT 120, ¶ 46, 289 Mont. 36, ¶ 46, 960 P.2d

273, ¶ 46.

                                       DISCUSSION

¶46       Issue One: Did the District Court err in concluding the Employment Agreement
          was ambiguous?

¶47       The Employment Agreement between West and Spanish Peaks contained two

termination clauses. Under paragraph 14, either party could terminate the Employment

Agreement without cause upon 120 days notice. Paragraph 14 also specifically stated

that if either party terminates with notice, “[a]ny outstanding commissions and bonuses

due at [the] time of termination shall be paid to the Employee in accordance with the

closing schedule of associated properties without deduction or penalty of any kind except

for normal payroll deductions and taxes within [a] 30 day period after closing of the

sales.”

¶48       Paragraph 8 of the Employment Agreement describes how West is to be

compensated with respect to his base salary and commissions on sales closed. (See ¶ 4.)

Paragraph 13 is silent on the issue of whether West would receive outstanding bonuses,

or “trailing commissions,” on sales he earned, but which had not yet closed, in the event

he was terminated for cause. (See ¶ 5.) Additionally, the Employment Agreement

contains the following paragraphs:

          17. Proration of Base Compensation. Upon termination of employment,
          the compensation payable to Employee pursuant to paragraph 8 shall be
          pro rated to the effective date of such termination and shall be payable on
          the first day of the month following such termination date, provided that
          [sic] if Employee is terminated under paragraph 13, for cause, or
          Employee terminates under paragraph 14 without the required notice.


                                              19
        22. Entire Agreement. This Agreement constitutes a full and final
        expression by the parties and supercedes all prior oral or written
        negotiations and agreements. This Agreement may be modified only by a
        writing signed by both parties.

¶49     In her grant of summary judgment on July 31, 2006, Judge Holly Brown

concluded that the Employment Agreement was subject to more than one reasonable

interpretation on the issue of whether West should receive trailing commissions, and thus

was ambiguous as a matter of law. The District Court concluded that while paragraph 17

requires West’s compensation to be prorated to the date of his termination if fired for

cause under paragraph 13, or if terminated with notice under paragraph 14, it does not

address compensation for trailing commissions in the event West was terminated without

cause. Furthermore, paragraph 17 provides that if West is terminated under paragraph

13, he is to be compensated pursuant to paragraph 8. Paragraph 8.1 addresses West’s

“Base    Compensation,”      while   paragraph    8.3   addresses   West’s    “Commission

Compensation.” (See ¶ 4). In other words, although paragraph 17 itself only refers to

“Base Compensation,” by incorporating the provisions of paragraph 8.3 which addresses

West’s “Commission Compensation,” it is unclear whether West would be entitled only

to base compensation under paragraph 17, or to both base and commission compensation

as discussed in paragraph 8.

¶50     Moreover, the District Court noted that paragraph 8.3 itself gives rise to additional

interpretation questions. For instance, while it states that West will earn a commission on

sales “closed,” the precise meaning of the term “closed” is not defined in the contract.

As stated by Judge Holly Brown, “[t]his could either mean that West ‘earned’ a


                                             20
commission upon making a sale, with commission to be paid when the sale closed, or

that he ‘earned’ the commission when the sale closed and would be paid at that time. A

salesperson generally ‘earns’ a commission when the salesperson makes the sale, even

though payment of commission may not occur until title is transferred or the purchase

price is paid.”

¶51    Complicating the matter was the explicit reference in paragraph 14 to the fact that

West would be entitled to receive “outstanding commissions and bonuses” which were

“due” at the time of the termination “in accordance with the closing schedule” of such

properties, the implication being that commissions are considered to be “due” when

“earned,” with payment at a later date simply being a function of the nature of real estate

transactions and the fact that actual closings occur at a later date. Thus, Judge Holly

Brown concluded as follows:

               According to paragraph 14, commissions are “due” at the time of
        termination regardless of whether the sales had closed. Paragraph 14
        indicates the parties intended commissions to be paid if termination was
        with notice, even for sales that had not yet closed. Paragraph 13 is not as
        clear. Paragraph 13 provides that West “earns” a commission on “sales
        closed,” but it does not define these terms. Thus, there are two reasonable
        interpretations of this contract.

¶52    Accordingly, because of these contract ambiguities, the District Court construed

the clauses in question against Spanish Peaks, the drafter, and ordered that the jury would

decide the parties’ intent with respect to the issue of whether West was entitled to trailing

commissions.

¶53    Spanish Peaks argues that the District Court erred in concluding that the

Employment Agreement was ambiguous. We disagree. Whether an ambiguity exists in a


                                             21
contract presents a question of law. Eschenbacher v. Anderson, 2001 MT 206, ¶ 21, 306

Mont. 321, ¶ 21, 34 P.3d 87, ¶ 21. “An ambiguity exists where the language of a

contract, as a whole, reasonably is subject to two different interpretations.” Wurl v.

Polson Sch. Dist. No. 23, 2006 MT 8, ¶ 17, 330 Mont. 282, ¶ 17, 127 P.3d 436, ¶ 17. If a

contract is found to be ambiguous, it is to be interpreted “most strongly” against the party

who drafted it. Eschenbacher, ¶ 24. Moreover, “when a contract term is ambiguous,

interpretation of the term involves determining a question of fact regarding the intent of

the parties to the contract.” Wurl, ¶ 17.

¶54    Based upon the foregoing contract analysis and law, the District Court did not err

in concluding that the Employment Agreement was ambiguous on the issue of whether

West would be paid trailing commissions or bonuses if he was terminated for cause under

paragraph 13. Thus, the District Court did not err in ordering that the parties’ intent on

this issue be submitted to the jury.

¶55    Issue Two: Did the District Court err in concluding that Spanish Peaks’ filing of
       the lis pendens on Lot 84 was not authorized under § 70-19-102, MCA?

¶56    As explained above, the District Court concluded that Spanish Peaks’ filing of a

lis pendens on Lot 84 was improper and unprivileged as a matter of law. The District

Court noted that a plaintiff or defendant may file a notice of lis pendens in “an action

affecting the title or right of possession of real property,” under § 70-19-102, MCA, and

further noted that under Paulson v. Lee, 229 Mont. 164, 745 P.2d 359 (1987), a person

filing a lis pendens not need show an actual claim to title or possession in order to file

such an action. However, the District Court concluded that, although several of Spanish



                                            22
Peaks’ counterclaims arose out of Jediny’s purchase of Lot 84, none of those

counterclaims affected the title or right of possession of Lot 84 and, further, Spanish

Peaks did not seek title to or possession of this lot. Thus, she concluded that the filing of

the lis pendens was improper under § 70-19-102, MCA, and granted West’s motion for

summary judgment on Counts VI, VIII, and IX. The District Court ultimately took

judicial notice of the fact that Spanish Peaks’ lis pendens rendered title to Lot 84

unmarketable and instructed the jury accordingly.

¶57    On appeal, Spanish Peaks maintains the District Court erred because the privilege

to file a lis pendens is broadly construed under Paulson, and because a judgment on its

claims against West, if successful, would affect the title to or interest in Lot 84. Spanish

Peaks maintains this argument is supported by its counterclaim and jury demand wherein

it claimed as damages “lost business opportunities and revenues,” as well as “such other

and further relief as the Court deems just and appropriate.” At a minimum, Spanish

Peaks claims, West’s interest in Lot 84 raised an issue of fact which should have

precluded summary judgment.

¶58    Furthermore, Spanish Peaks disputes the propriety of the jury instruction given by

the District Court on this issue.      In particular, Spanish Peaks maintains that the

conclusion that the lis pendens made the title to Lot 84 “unmarketable” was nothing more

than a “thinly veiled legal conclusion,” essentially directed the jury to accept, without any

evidence, that Jediny was damaged by the lis pendens, and unduly restricted the jury to

determining only an award of damages. In response, West argues that under Paulson the

filing of a lis pendens requires that the underlying claim affect title or possession of real


                                             23
property, and that this element was lacking here.        Further, West maintains that the

District Court properly instructed the jury on this issue. West argues that, by definition, a

lis pendens renders title unmarketable, that the question of marketability of title is a

question of law, and that M. R. Evid. 202 expressly allows for judicial notice of law.

¶59    Whether title is marketable is a question of law for the court. Maloney v. Heer,

257 Mont. 500, 507, 850 P.2d 957, 961 (1993).              As we have stated previously,

“marketable title is one of such character as assures to the purchaser the quiet and

peaceable enjoyment of the property and one which is free from encumbrances.” First

Mont. Title Co. of Billings v. North Point Square Assn., 240 Mont. 33, 37-38, 782 P.2d

376, 379 (1989) (quoting Ogg v. Herman, 71 Mont. 10, 15-16, 227 P. 476, 477 (1924)).

While our case law has not squarely addressed this issue, we have implicitly recognized

that a lis pendens casts a “cloud on title” which impairs the ability to sell the property to

others. See Public Lands Access Assn. v. Jones, 2008 MT 12, ¶ 15, 341 Mont. 111, ¶ 15,

176 P.3d 1005, ¶ 15 (citing Leisnoi, Inc. v. United States, 170 F.3d 1188 (9th Cir. 1999));

see also, Reilly v. Farm Credit Bank of Spokane, 261 Mont. 532, 534, 863 P.2d 420, 422

(1993).

¶60    In Paulson, we held that § 70-19-102, MCA, “demands only that the action affect

title or right of possession of real property.” Paulson, 229 Mont. at 167, 745 P.2d at 361.

In that case, we upheld the filing of a lis pendens against a parcel of property because the

underlying action sought the imposition of limits upon the owner’s right to construct a

residence on his property. We held that such rights “are incidents of the owner’s title.

Although the present litigation does not seek to change ownership in any way, it does


                                             24
involve a determination of certain rights incident to ownership and in that sense affects

title to real property.” Paulson, 229 Mont. at 168, 745 P.2d at 361 (quotation omitted).

¶61    Spanish Peaks argues that its claims affect the title to Lot 84 because it sought as

damages “lost business opportunities and revenues,” as well as “such other and further

relief as the Court deems appropriate and just.” However, this is an insufficient basis

upon which to assert a lis pendens. See 54 C.J.S. Lis Pendens § 11, 508-09 (West 2005)

(filing of lis pendens not appropriate in action for money damages or general debt unless

claimant has actual lien or interest in subject property). Courts generally reject the notion

that a lis pendens is appropriate in cases where no specific relief is sought which affects

in some way the title, possession, use, or incidents of real property. “[A] lis pendens is

not a tool for a litigant to secure a potential money judgment by tying up a debtor’s real

property.” Farris v. Advantage Capital Corp., 170 P.3d 250, 252 (Ariz. 2007); Salstrom

v. Starke, 670 P.2d 809, 811 (Colo. App. 1983) (lis pendens improper when filing party

had no interest in the property and filed the lis pendens solely to prevent sale of property

to another party); Lewis v. Super. Ct., 37 Cal. Rptr. 2d 63, 73 (Cal. App. 2 Dist 1994)

(noting that lis pendens actions classically concern real property disputes and rejecting

use of lis pendens when underlying actions seek only money damages).

¶62    While Spanish Peaks asserts that a general, boilerplate claim for damages renders

the filing of a lis pendens proper simply because a property transfer gave rise to several

of its counterclaims, the fact remains that none of its counterclaims sought to affect the

possession of, title to, or any interest in, Lot 84. Thus, the District Court did not err in




                                             25
holding that the filing of the lis pendens was improper, and granting summary judgment

to West on Counts VI, VIII, and IX of its amended complaint.

¶63    Moreover, the District Court correctly instructed the jury on this issue. Spanish

Peaks acknowledges that the question of marketability is a question of law for the court,

but claims that the District Court erred in taking judicial notice that the lis pendens

rendered Lot 84 unmarketable because M. R. Evid. 201 only allows judicial notice of

facts. Yet, as West points out, M. R. Evid. 202 allows the District Court to take judicial

notice of the law. As we stated in In re K.C.H., 2003 MT 125, 316 Mont. 13, 68 P.3d

788, “Rule 202(b)(6), M. R. Evid., permits a court to take judicial notice of law,

including the ‘[r]ecords of any court of this state . . . .’ ” In re K.C.H., ¶ 15. The

summary judgment order issued by Judge Holly Brown on July 31, 2006, wherein she

determined as a matter of law that the filing of the lis pendens rendered Lot 84

unmarketable, constitutes such a court record. Although Judge John Brown took notice

of Lot 84’s unmarketable title as a question of fact under M. R. Evid. 201, as West points

out, he should have taken judicial notice of Lot 84’s unmarketable title as a matter of law

under M. R. Evid. 202. Since the question of marketability of title to Lot 84 was

determined as a legal matter by Judge Holly Brown in her grant of summary judgment,

Judge John Brown was bound to instruct the jury accordingly.          Thus, although the

District Court employed the wrong reasoning, it reached the correct result and did not err.

State v. Case, 2007 MT 161, ¶ 40, 338 Mont. 87, ¶ 40, 162 P.3d 849, ¶ 40.

¶64    Issue Three: Did the District Court abuse its discretion by allowing the
       admission of the Separation Agreement?



                                            26
¶65    During trial, the District Court admitted the Separation Agreement into evidence

over Spanish Peaks’ objection. Spanish Peaks argues the admission of the Separation

Agreement was an abuse of discretion, and that this evidence should have been excluded

under M. R. Evid. 408 which prohibits the introduction of offers of compromise. Spanish

Peaks notes that it filed several motions in limine to keep the Separation Agreement out

of evidence and also sought a cautionary jury instruction, all of which were denied by the

District Court.

¶66    West argues the admission of the Separation Agreement was not an abuse of

discretion for several reasons. First, West asserts that before Rule 408 can apply, there

must be a “dispute” between the parties and in this case there was no dispute when the

Separation Agreement was presented to West, as there had been no prior discussions

between him and Spanish Peaks on the issues covered in the Separation Agreement.

Second, Rule 408 does not require the exclusion of an offer of compromise when offered

for another purpose. In this case, the Separation Agreement was admitted in support of

his theory that his firing was a pretext so that Spanish Peaks could avoid paying him

outstanding trailing commissions. Moreover, West notes that the Separation Agreement

was also introduced to rebut a claim by an executive from Spanish Peaks that West’s

shredding of documents was a key factor in his termination, and to also rebut Spanish

Peaks’ claim that West could still purchase Lot 85. Accordingly, West maintains that the

Separation Agreement was admitted for “another purpose” under M. R. Evid. 408 and

that the District Court did not abuse its discretion in admitting it.

¶67    M. R. Evid. 408 reads as follows:


                                              27
       Rule 408. Compromise and offers to compromise.
       Evidence of (1) furnishing or offering or promising to furnish, or (2)
       accepting or offering or promising to accept, a valuable consideration in
       compromising or attempting to compromise a claim which was disputed as
       to either validity or amount is not admissible to prove liability for or
       invalidity of the claim or its amount. Evidence of conduct or statements
       made in compromise negotiations is likewise not admissible. This rule
       does not require exclusion of any evidence otherwise discoverable merely
       because it is presented in the course of compromise negotiations. This
       rule also does not require exclusion when the evidence is offered for
       another purpose, such as proving bias or prejudice of a witness,
       negativing a contention of undue delay, or proving an effort to obstruct a
       criminal investigation or prosecution. (Emphasis added.)

¶68    As the last sentence of Rule 408 makes clear, offers of compromise are admissible

when offered not to prove liability or invalidity of a claim or its amount, but rather for

“another purpose.” In In re Estate of Stuckey, 2004 MT 279, 323 Mont. 241, 100 P.3d

114, we upheld the admission of a letter which reflected “conduct or statements made in

compromise negotiations” when the letter was being offered as evidence to demonstrate

the assumptions under which parties were negotiating. Stuckey, ¶¶ 66-68. In Kiely

Const., L.L.C., v. City of Red Lodge, 2002 MT 241, 312 Mont. 52, 57 P.3d 836, we

upheld the admission of evidence from settlement negotiations because such evidence

was not being offered to prove liability or the validity of a claim, but instead to prove that

a municipal entity had acted arbitrarily and capriciously in attaching conditions to a

subdivision improvement agreement. Kiely, ¶ 95; see also Kaeding v. W. R. Grace &

Co.—Conn., 1998 MT 160, ¶ 30, 289 Mont. 343, ¶ 30, 961 P.2d 1256, ¶ 30 (letter offered

in the context of settlement negotiations admissible under Rule 408 because offered to

show plaintiff’s knowledge of his claim against W. R. Grace); Kestell v. Heritage Health

Care Corp., 259 Mont. 518, 528, 858 P.2d 3, 9 (1993) (proposed release form admissible


                                             28
under Rule 408 because offered to show the employer did not intend to find employee

another position).

¶69    In this case, the District Court stated clearly that it was allowing the Separation

Agreement into evidence to support West’s argument that his firing was pretextual. It

was not offered in order to prove Spanish Peaks’ liability or the invalidity of the claim.

Thus, the District Court did not abuse its discretion in admitting it under Rule 408.

¶70    Issue Four: Did the District Court abuse its discretion in imposing sanctions
       against Spanish Peaks by limiting its presentation of evidence and argument on
       the issue of damages for breach of the Employment Agreement?

¶71    As noted above, Judge John Brown imposed sanctions against Spanish Peaks

under M. R. Civ. P. 37. The sanctions imposed by the District Court prevented Spanish

Peaks from disputing the figure of damages presented by West on his breach of contract

claims in the event the jury determined that Spanish Peaks breached the Employment

Agreement. As a result of this ruling, Spanish Peaks could only argue that damages were

either zero or the $464,952.59 figure provided by West.

¶72    As noted above, Spanish Peaks had been ordered more than once to supply

information in response to Interrogatory No. 10, by setting forth its calculation of what

compensation would have been owed to West had he not been terminated. At trial, West

complained that Spanish Peaks had failed to provide an actual figure of damages which

he could challenge in presenting his case. In response, Spanish Peaks argued that it had

provided all the information necessary to make the calculations, and that it could not

provide an alternative figure other than zero, although it intimated that the jury might be

able to arrive at a different damages figure based on the evidence before it.


                                            29
¶73   The District Court concluded that if Spanish Peaks intended to present its own

calculations to the jury, it should provide that information to West as requested. On the

third day of trial, the District Court specifically instructed Spanish Peaks to provide an

alternative figure to West by the following day. Spanish Peaks did not comply with this

order. Therefore, the District Court imposed a sanction under Rule 37, limiting Spanish

Peaks’ ability to dispute the $464,952.59 figure presented by West.

¶74   We review the imposition of sanctions for an abuse of discretion and generally

defer to the judgment of the district courts on the appropriateness of sanctions.

Richardson v. State, 2006 MT 43, ¶ 21, 331 Mont. 231, ¶ 21, 130 P.3d 634, ¶ 21. Under

the circumstances presented here, we cannot conclude that the District Court abused its

discretion in imposing this sanction against Spanish Peaks.

¶75   Issue Five: Did the District Court err in denying Spanish Peaks’ motion for a
      directed verdict and post-trial motion for judgment as a matter of law on the claim
      that it breached an agreement to allow West to purchase Lot 85?

¶76   On October 24, 2006, Spanish Peaks moved for a directed verdict on West’s claim

that i t breached an agreement to allow West to purchase Lot 85.          Spanish Peaks

maintained that West had presented no evidence in its case-in-chief to support this claim.

The District Court denied the motion. After trial, Spanish Peaks moved for judgment as a

matter of law on this claim under M. R. Civ. P. 50. It argued that it could not have

breached a contract to sell Lot 85 to West because Holdings, and not Spanish Peaks, was

the actual party to the contract and West had never amended his complaint to include

Holdings as a party-defendant.




                                           30
¶77    In response, West pointed out that at trial, Spanish Peaks argued that a directed

verdict was proper because West failed to present sufficient evidence; it did not argue, as

it did post-trial, on the grounds that Holdings, not Spanish Peaks, was a party to the

contract. West argued that the plain language of M. R. Civ. P. 50(b) requires that the

renewed motion must be based on the same legal questions as the initial motion.

Additionally, West argued that Spanish Peaks was improperly focusing its argument on

the wrong contract. West alleged that the contract breached by Spanish Peaks was the

Employment Agreement, which gave West the option to purchase a discount lot in the

Spanish Peaks Resort, and not the actual purchase and sale agreement with Holdings.

¶78    The District Court denied Spanish Peaks’ post-trial motion, finding that it was

simply an attempt to use a “back door approach” to have it reconsider its earlier rulings

preventing Spanish Peaks from arguing it was not a party to the contract. Moreover, the

District Court found the jury’s verdict was supported by sufficient evidence, that there

was no substantial conflict in that evidence, and that the issue was properly submitted to

the jury.

¶79    On appeal, Spanish Peaks argues that West and Jediny entered into a contract to

purchase Lot 85 with Holdings, and that it was not party to that contract. In addition to

other arguments, it also maintains that no evidence was adduced at trial which shows that

it made any communications to West that he could not close on Lot 85, or that it took

steps to prevent the sale.

¶80    In response, West argues that the Employment Agreement contained a separate

promise to allow him to purchase Lot 85 which was not related to the contract between he


                                            31
and Holdings, and that the jury properly found that Spanish Peaks breached it. West

points to specific testimony from Spanish Peaks’ executives to the effect that West could

no longer purchase Lot 85 because he had been fired. Additionally, West points to other

evidence in the record supporting the jury’s verdict, including emails sent between

Spanish Peaks’ executives stating that West could not close on the sale of Lot 85 to West

and that the deal to purchase Lot 85 was “off.”

¶81   We review the denial of a motion for judgment as a matter of law de novo.

Marler, ¶ 20. Here, the jury found that Spanish Peaks breached the contract which would

allow West to purchase a lot at a discount. Prior to his termination, West had identified

the lot and entered into a contract to purchase it with Holdings. West argued that Spanish

Peaks breached the contract to allow him to purchase Lot 85. The jury agreed, and its

decision was supported by credible evidence. Thus, the District Court did not err in

allowing this issue to be submitted to the jury and denying Spanish Peaks’ post-trial

motion.

¶82   Issue Six: Did the District Court abuse its discretion by limiting the testimony of
      Johnson on the custom in Montana of paying trailing commissions after an
      employee’s termination?

¶83   At trial, Spanish Peaks sought to introduce the testimony of Martha Johnson, a

local real estate agent, on the custom and practice of paying trailing commissions in

Montana on real estate transactions. West objected to her testimony on the grounds that

she was giving undisclosed expert testimony, and not evidence based upon her personal

knowledge as required under M. R. Evid. 701. Further, West argued that her testimony

was irrelevant because she had no personal experience working for Spanish Peaks. The


                                            32
District Court sustained West’s objection and prohibited Johnson from testifying on this

topic.

¶84      Spanish Peaks argues the District Court abused its discretion in prohibiting

Johnson’s testimony. Spanish Peaks insists that her testimony was relevant because it

addressed West’s claim that he was owed bonuses or commissions, and that an expert

disclosure was not required in her case because Johnson would be giving lay testimony

under M. R. Evid. 701. We disagree. As is clear from the record, Johnson’s testimony

was not based upon her personal experience working for Spanish Peaks, but instead upon

her training and general experience working in the industry. In this regard, the facts of

this case are distinguishable from the sole case upon which Spanish Peaks relies, Mydlarz

v. Palmer/Duncan Const. Co., 209 Mont. 325, 682 P.2d 695 (1984). In that case, we

found that the district court improperly excluded the lay opinion of a former construction

company employee who sought to give testimony on the safety of a workplace. Mydlarz,

209 Mont. at 343, 682 P.2d at 704-05. There, however, the witness had actually worked

for the same company performing the same job as the injured claimant, and thus could

give testimony about the safety of workplace conditions there based upon his actual

perceptions as required under M. R. Evid. 701. Mydlarz, 209 Mont. at 343, 682 P.2d at

704-05. By contrast, Johnson had never worked for Spanish Peaks, and therefore her

proposed testimony would be based not on personal knowledge, but rather industry

standards. As such, her testimony should have been disclosed as M. R. Evid. 702 expert

testimony. Because it was not, the District Court did not abuse its discretion in excluding

the evidence.


                                            33
¶85   Issue Seven: Did the District Court err in ordering penalties in favor of West for
      Spanish Peaks’ alleged violation of the Wage Act?

¶86   After the jury returned a verdict in favor of West, finding that Spanish Peaks had

breached the Employment Agreement, the District Court addressed the issue of whether

West was entitled to penalties under the Wage Act. The District Court concluded that

West was entitled to statutory penalties under § 39-3-204(1), MCA, which reads, in part,

as follows:

       [E]very employer of labor in the state of Montana shall pay to each
       employee the wages earned by the employee in lawful money of the
       United States or checks on banks convertible into cash on demand at the
       full face value of the checks, and a person for whom labor has been
       performed may not withhold from any employee any wages earned or
       unpaid for a longer period than 10 business days after the wages are due
       and payable.

¶87   As noted by the District Court, § 39-3-206(1), MCA, provides for penalties against

an employer “who fails to pay an employee as provided in this part or who violates any

other provision of this part . . . .” The District Court concluded that the bonuses or

trailing commissions which the jury determined Spanish Peaks owed to West were

considered wages under the Wage Act, thus entitling West to a statutory penalty. The

District Court distinguished Delaware v. K-Decorators, Inc., 1999 MT 13, 293 Mont. 97,

973 P.2d 818, where we held that commissions which become “due” after an employee is

terminated cannot be subject to statutory penalties under the Wage Act, on the grounds

that Delaware interpreted a different section of the Wage Act, § 39-3-205(1), MCA.

Delaware, ¶¶ 39-40.     The District Court concluded penalties were warranted here




                                          34
because West simply sought the penalty based on the wrongful withholding of his

commissions under § 39-3-204(1), MCA.

¶88    Spanish Peaks maintains the District Court erred in its conclusion, and argues that

its analysis of the Wage Act is incorrect. Spanish Peaks notes that the plain language of

§ 39-3-204, MCA, states that it applies to “employees,” and not to former employees.

Former employees, Spanish Peaks maintains, are covered under § 39-3-205(1), MCA,

which states in part that:    “[w]hen an employee separates from the employ of any

employer, all the unpaid wages of the employee are due and payable on the next regular

payday for the pay period during which the employee was separated from employment or

15 days from the date of separation from employment . . . .” Because we held in

Delaware that this section of the Wage Act did not apply to future bonuses, Spanish

Peaks argues that allowing West to recover would essentially overrule Delaware and

would constitute a misreading and misapplication of §§ 39-3-204 and 205, MCA, of the

Wage Act. We agree.

¶89    In construing and applying statutes, we first look to the plain language of the

statute to determine legislative intent. Delaware, ¶ 30. “If the legislature’s intent can be

determined by the plain language of the words used, we may not go further and apply

other means of interpretation.” Delaware, ¶ 30. Moreover, “in construing a statute, ‘the

office of the judge is simply to ascertain and declare what is in terms or in substance

contained therein, not to insert what has been omitted or to omi t what has been

inserted.’ ” Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 115, 303 Mont. 274, ¶ 115,

16 P.3d 1002, ¶ 115 (quoting Section 1-2-101, MCA).


                                            35
¶90    In this case, the District Court’s construction and application of the statute is not

supported by the plain language of the Wage Act. In the first instance we note that the

term “employee,” as used in the Wage Act, is specifically defined as follows:

“ ‘Employee’ includes any person who works for another for hire.” Section 39-3-201(4),

MCA. Thus, the Wage Act refers to persons who are actually working for an employer,

not former employees.      Section 39-3-204, MCA, states that an employer shall pay

employees “wages earned” and that “a person for whom labor has been performed may

not withhold from any employee any wages earned or unpaid for a longer period than 10

business days after the wages are due and payable.” Based on the plain language of the

statute, § 39-3-204, MCA, applies only to current, not former, employees.

¶91    As a result, we cannot say that § 39-3-204, MCA, covers West’s claims for owed

commissions in this case. Given that his commissions did not actually come due to West

until he was no longer working for Spanish Peaks, these commissions, while certainly

recoverable under his breach of contract claims, were not covered under § 39-3-204,

MCA, of the Wage Act. West’s trailing commissions became “due and payable” after the

sales on those properties and/or built products closed. However, at the time these sales

closed he was no longer an employee of Spanish Peaks. Thus, he was not covered under

the Wage Act.

¶92    We hold that § 39-3-204, MCA, does not allow a former employee to recover a

penalty under the Wage Act for wages unless those wages were “due and payable” while

that person was still an employee. Thus, we reverse the District Court’s grant of statutory

penalties to West under the Wage Act.


                                            36
¶93    Issue Eight: Did the District Court abuse its discretion in ordering attorney’s
       fees to West in the amount of $358,580.54?

¶94    By an order dated February 22, 2007, the District Court awarded attorney’s fees to

West in the amount of $358,580.54 based on a 40% contingency fee arrangement

between West and his attorneys. Spanish Peaks challenges the award of attorney’s fees

in several respects. First, Spanish Peaks argues that the District Court erred in awarding

attorney’s fees based on the contingent fee arrangement because the fee-shifting

provision in the Employment Agreement stated that attorney’s fees for a prevailing party

were limited to “reasonable” fees “actually incurred.” Spanish Peaks argues that the only

fees “actually incurred” are those as reflected in hourly billing statements submitted by

West’s attorneys. Thus, only hourly fees, not the 40% contingent fee arrangement, are

permitted under the Employee Agreement.

¶95    The District Court concluded that the Employment Agreement says nothing

pertaining to either hourly or contingent fee agreements, and that the contingent fees were

“actually incurred.” We agree. Because the Employment Agreement was silent on this

subject, and since both hourly and contingent fee arrangements are appropriate methods

of billing, the District Court did not err in concluding that the contingent fees were the

fees “actually incurred” under the fee-shifting provision in the Employment Agreement.

¶96    Spanish Peaks also argues it was improper for the District Court to award a

contingent fee based on damages from Spanish Peaks’ breach of the Employment

Agreement allowing West to purchase Lot 85. However, as correctly noted by the

District Court, it was proper to award fees based on these damages because the jury found



                                            37
that Spanish Peaks breached the contract which would allow him to purchase Lot 85, and

not the contract for sale between West and Holdings.

¶97   Spanish Peaks further argues that the District Court abused its discretion in

applying the eight factors necessary to award attorney’s fees as set forth in Stimac v.

State, 248 Mont. 412, 812 P.2d 1246 (1991). Those factors are as follows:

       1. The novelty and difficulty of the legal and factual issues involved;
       2. The time and labor required to perform the legal service properly;
       3. The character and importance of the litigation;
       4. The result secured by the attorney;
       5. The experience, skill, and reputation of the attorney;
       6. The fees customarily charged for similar legal services at the time and
          place where the services were rendered;
       7. The ability of the client to pay for the legal services rendered; and
       8. The risk of no recovery.

Stimac, 248 Mont. at 417, 812 P.2d at 1249.

In particular, Spanish Peaks argues that the District Court erred in concluding that the

case presented any “novel or difficult” legal issues under factor number (1). Spanish

Peaks notes that West’s own expert testified that there was not anything particularly

novel about the case from a legal perspective. Second, Spanish Peaks argues that the

District Court erroneously relied on factor (7) when in fact there was no competent

evidence to support findings that West and Jediny could not pay attorney’s fees. In this

connection, Spanish Peaks points out that West and Jediny did not appear at an

evidentiary hearing on fees, only submitted an affidavit, and generally provided no

evidence to prove that they could not pay attorney’s fees. Spanish Peaks relies on our

opinion in James Talcott Const., Inc. v. P & D Land Enterprises, 2006 MT 188, 333

Mont. 107, 141 P.3d 1200, for the proposition that West bears the burden of proving that


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an award of attorney’s fees is based on “competent evidence.” Third, Spanish Peaks

argues that the District Court erred in its analysis of factor (8) under Weinberg v. Farmers

State Bank of Worden, 231 Mont. 10, 752 P.2d 719 (1988), because there was no risk in

this case due to the presence of the fee-shifting provision in the Employment Agreement.

¶98    Because the award of attorney’s fees was calculated in part upon the award of

statutory penalties under the Wage Act, the award of attorney’s fees must be remanded to

the District Court for recalculation.     Nonetheless, we will address Spanish Peaks’

remaining fee arguments in the interests of judicial efficiency.

¶99    With respect to its challenge under factor (8), we agree with the District Court that

Spanish Peaks has simply misread our precedent in Weinberg. It is true that in Weinberg

we stated that the “factor of risk which prompts courts to approve contingent fees . . . is

not contemplated in those cases involving statutory or contractual provisions for attorney

fees.” Weinberg, 231 Mont. at 35-36, 752 P.2d at 735. However, we went on to say that

“a contingent fee contract does not bind a district court in determining a proper amount of

attorney fees to be awarded . . . .” Weinberg, 231 Mont. at 36, 752 P.2d at 735 (emphasis

added). We did not say in Weinberg that fee-shifting provisions prohibit an award of

contingent fees, as Spanish Peaks argues.         Thus, the District Court did not err in

concluding that factor (8) supported an award of fees based on the contingency

agreement.

¶100 With regard to factor (1), novelty or difficulty of the case, Spanish Peaks focuses

solely on the legal issues involved in the case, disregarding that factor (1) encompasses

both legal and factual novelty or difficulty. The extensive and voluminous record in this


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case, coupled with the fact that the trial lasted over ten days, demonstrates the factual

complexities of this case, irrespective of whether the case presented novel legal issues of

first impression. Thus, the District Court did not abuse its discretion in concluding this

factor weighed in favor of an award of contingent fees.

¶101 Respecting factor (7), we agree with West that the affidavits submitted at the

evidentiary hearing on fees were properly considered under M. R. Evid. 43(e) in light of

the fact that Spanish Peaks did not object to their admission. The District Court stated in

its order that “[t]he Plaintiffs . . . submitted sworn affidavits that they could not afford to

pay the hourly fees, which exceeded $20,000.00 in some months and approached

$100,000.00 for the two months surrounding trial.           Spanish Peaks did not present

evidence to contradict the Plaintiffs’ Affidavits.” On appeal, Spanish Peaks points to no

evidence demonstrating that the factual findings in support of this conclusion were

clearly erroneous or that the District Court committed an abuse of discretion in finding

this factor weighed in favor of West.

                                      CONCLUSION

¶102 We affirm the District Court’s orders of summary judgment determining that the

Employment Agreement was ambiguous, and that the filing of the lis pendens was

improper and not privileged. We also affirm the following District Court rulings during

trial: (1) the admission of the Separation Agreement; (2) the sanctions against Spanish

Peaks under M. R. Civ. P. 37 on the issue of damages; (3) the denial of Spanish Peaks’

motion for judgment as a matter of law, as well as subsequent post-trial motions on

West’s claim for a breach of contract with respect to Lot 85; and (4) the District Court’s


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decision to prohibit Johnson from testifying on the practice and custom of paying trailing

commissions in Montana. In sum, we affirm on Issues One through Six.

¶103 However, under Issue Seven we reverse the District Court’s order granting West

penalties for violation of § 39-3-204, MCA. We hold that § 39-3-204, MCA, does not

allow an employee to recover a penalty under the Wage Act for wages unless those

wages were “due and payable” while that person was still an employee—i.e., actually

working for an employer. Additionally, we reverse the District Court’s February 22,

2007 calculation of attorney’s fees as discussed herein under Issue Eight, and remand this

issue for further proceedings consistent with this Opinion.



                                                        /S/ PATRICIA COTTER



We concur:


/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE




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