LONE MOOSE MEADOWS, LLC, Plaintiff, Counter-Claim Defendant and Appellant,
BOYNE USA, INC., a Michigan corporation, d/b/a Big Sky Ski & Summer Resort, Defendant, Counter-Claimant and Appellee,
Submitted on Briefs: April 26, 2017
FROM: District Court of the Fifth Judicial District, In and
For the County of Madison, Cause No. DV-29-09-104 Honorable
Loren Tucker, Presiding Judge.
Appellant: Quentin M. Rhoades, Robert Erickson, Rhoades
Siefert & Erickson, PLLC, Missoula, Montana
Appellee: David M. Wagner, Griffin B. Stevens, Crowley Fleck
PLLP, Bozeman, Montana
McGrath Chief Justice.
Lone Moose Meadows, LLC appeals from a summary judgment
ruling in favor of Boyne USA, Inc. We affirm.
We restate the issue on appeal as follows:
Did the District Court properly allow Boyne to pursue
successive claims for breach of contract?
AND PROCEDURAL BACKGROUND
Lone Moose Meadows, LLC (LMM) and Boyne USA, Inc. (Boyne) are
corporations operating in Big Sky, Montana. Boyne is the
owner and operator of Big Sky Resort. LMM is a housing
development at the base of Big Sky Resort. In 2002, the
parties entered into an operations agreement where LMM would
construct a ski lift and pay Boyne to operate it. LMM agreed
to pay annual maintenance and operating expenses, as well as
a $50, 000 yearly depreciation expense. The agreement stated
"[LMM] shall not be required to pay any depreciation
dollar component of the operating expenses until the
2002-2003 ski season" and "replacement lifts will
be constructed and owned by Boyne." In December 2002,
Boyne sent LMM a notice of lift operation expenses for the
2002-2003 ski season, which included $50, 000 for
depreciation expenses. LMM refused to pay, stating it was not
required to pay depreciation expenses until Boyne owned the
ski lift. Despite non-payment, Boyne continued operating the
ski lift, electing to treat the contract as continuing.
In February 2008, Boyne filed suit for breach of contract.
Boyne asserted LMM failed to make depreciation payments and
demanded payment under the contract for the seven years of
past due payments: 2002-03, 2003-04, 2004-05, 2005-06,
2006-07, 2007-08, 2008-09. LMM contended it was not obligated
to make depreciation payments until Boyne owned the lift. The
District Court granted summary judgment in favor of Boyne,
concluding LMM was obligated to pay $50, 000 annually
beginning with the 2002-03 ski season. LMM appealed. This
Court upheld the District Court's ruling (Boyne
I). In October 2012, the District Court
entered a restated judgment against LMM for seven years of
depreciation expenses plus costs, fees, and interest. LMM
paid $634, 328.19 to Boyne, satisfying the judgment.
In December 2009, while the above appeal was pending, LMM
filed an action against Boyne alleging it had engaged in
wrongful collection efforts with respect to the first
judgment. Boyne counterclaimed for breach of
contract asserting LMM now owed depreciation expenses for the
2009-10, 2010-11, 2011-12 ski seasons. Boyne's
counterclaim also included claims for abuse of process,
malicious prosecution, and punitive damages, as well as a
third-party claim against LMM's owner James Dolan, Sr.
The parties settled these claims. LMM voluntarily moved to
dismiss the wrongful collection claim and the District Court
dismissed it. The only remaining issue was Boyne's breach
of contract counterclaim. Boyne moved for summary judgment.
In October 2015, the District Court held a hearing on
Boyne's summary judgment motion. LMM agreed it had not
made any payments, but argued that this breach of contract
claim was barred under the doctrine of claim preclusion, thus
eliminating Boyne's entitlement to a new judgment. The
District Court granted Boyne's summary judgment motion.
The District Court found that the second suit arose from
facts not in existence at the time of the first suit and that
Boyne had the right to maintain successive actions for each
new breach of the contract as they arose. Boyne was not
required to sue for future payments even though LMM's
breach was material, and the District Court held LMM's
refusal to pay depreciation costs did not amount to
anticipatory repudiation of the terms of the agreement. On
October 7, 2015, the District Court entered judgment in favor
of Boyne for $150, 000, plus fees and interest. LMM appeals.