No. 87-362 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

FRED W. MAGERS and CECILA MAGERS, 

DONALD R. ABRAHAMSON and LOUINE W. 

ABRAHAMSON, THOMAS TILLMAN and THOMAS 

ORCUTT , Plaintiffs and Respondents, 

-vsTHE SHINING MOUNTAINS, a California limited 

partnership, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Landoe, Brown, Planalp, Komrners & Johnstone; Steve 

Reida argued, Bozeman, Montana 

Jones & Hoffman; Chester Lloyd Jones argued, Virginia 

City, Montana 

For Respondent: 

Poore, Roth & Robinson; C. Richard Anderson argued and 

John P. Davis argued, Butte, Montana 

Submitted: January 6, 1988 

Decided: February 16, 1988 

*4 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant-Shining Mountains appeals from a District 

Court decision requiring it to provide and construct roadways 

throughout a subdivision located in Madison County and to pay 

reasonable attorney's fees to plaintiffs. We affirm and 

remand with instructions. 

This appeal comes from a Madison County bench trial 

before the Honorable Frank M. Davis, which was concluded 

September 30, 1986. Defendant, "The Shining Mountains," a 

California limited partnership, is the owner-developer of 

property known as the "Shining Mountains Subdivision" located 

in Madison County, Montana. A dispute arose between 

defendant and individuals purchasing parcels within the 

subdivision as to the extent and nature of defendant's 

commitment to construct roadways within the subdivision. The 

plaintiff-landowners filed suit alleging defendant 

represented that roadways would be provided as part of the 

development and constructed by defendant.. 

This Court previously reversed a partial summary 

judgment in favor of plaintiffs. Magers v. Shining Mountains 

(Mont. 1986), 711 P.2d 1375, 43 St.Rep. 16 (holding that a 

genuine issue of fact remained in determining what 

representations were made by defendant to plaintiffs as to 

the construction of roadways, and that roadway easement 

designations on the plat maps did not alone create a promise 

to construct roads). Following a subsequent trial, the 

District Court concluded that defendant was obligated to 

provide and construct roadways as designated in its recorded 

plats of the subdivision, and that the roads comply with the 

minimum requirements of local subdivision specifications. 

The District Court found that defendant had represented 
during sales campaigns that it would construct the roads and 

that defendant acknowledged this obligation by beginning "a 

program of road and improvement construction in accordance 

with the designations thereof in the recorded plats." 

Plaintiffs were awarded attorney' s fees in the amount of 

Four issues are raised for our consideration on appeal: 

(1) Did the District Court properly order specific 

performance? 

(2) Did the District Court award excessive attorney's 

fees? 

(3) Are the plaintiffs entitled to an additional award 

of attorney's fees incurred in responding to the present 

appeal? 

(4) Was the plaintiffs' action barred by the statute 

of limitations? 

We will consider each issue separately. First, 

however, we must note that the standard of review on appeal 

is that the District Court's findings of fact will not be 

disturbed unless clearly erroneous. Rule 52 (a) , M. R. Civ. P. 

Further, this Court has made the following statement which is 

applicable under these circumstances: 

In a nonjury trial, the credibility of 

witnesses and the weight of their 

testimony are matters for the District 

Court to determine. The sufficiency of 

the evidence must be reviewed from the 

perspective most favorable to the 

prevailing party. The District Court's 

findings and judgment are presumed 

correct and will not be overturned unless 

the appellant meets the burden of proving 

with a preponderance of evidence that 

they are wrong. Merely showing the 

evidence establishes reasonable grounds 

for reaching a different conclusion is 

insufficient to reverse the District 
Court findings. Lumby v. Doetch (1979), 

183 Mont. 427, 431, 600 P.2d 200, 202. 

Frank L. Pirtz Const. v. Hardin Town Pump (Mont. 1984), 692 

P.2d 460, 462, 41 St.Rep. 2366, 2368. 

I. DID THE DISTRICT COURT PROPERLY ORDER SPECLFIC 

PERFORMANCE? 

Defendant agrees it is obligated to construct some 

roadways, but argues the District Court order is excessi~re 

because it requires the construction of all roadways 

designated on the subdivision plat. Defendant contends that 

potential buyers were informed that roads would be 

constructed as they were needed, and when the buyer 

determined he was ready to build. Defendant alleges "there 

is no evidence in the record that Shining Mountains promised 

to build all the roads listed on the plat." Defendant relies 

upon the previous appeal in this matter, where it was held 

that the designation of roadways on the subdivision plat does 

not alone obligate the subdivider to construct roadways. 

Magers, 711 P.2d at 1378, 43 St.Rep. at 20. Instead, the 

obligation depends upon the actual representations made by 

the seller to the buyer. Defendant contends that the 

evidence does not sufficiently demonstrate a promise to 

construct the entire network of roadways. 

In the previous appeal in this case, we reversed a 

partial summary judgment in favor of the plaintiffs and 

stated: 

" [Ilt is the use made of the plat in 

inducing the purchasers . . . which 

gives rise to the legally enforceable 

right in the individual purchasers, and 

such is not dependent upon a dedication 

to public use, or upon the filing or 

recording of the plat. " [Citing, Ute 

Park Summer Homes Ass'n v. Maxwell Land 
Gr. Co. (N.M. 1967), 427 P.2d 249, 253.j 

Similarly here, the purchasers acquired 

an easement for the designated use. 

Whether there is any legally enforceable 

riaht to have the roads' constructed 

depends --- not on the designation -- in the 

plats but on the use of those plats in 

inducing purchases. The instrumen= 

alone do not crive rise to a promise - tn -- 

~~en or construct the roads. ~actux 

issues remain on the use made of the 

plats and what representations were made 

in the sale of lots. We therefore 

reverse the order granting partial 

summary judgment for respondents and 

remand for further proceedings. 

(Emphasis added.) 

Magers, 711 P.2d at 1378, 43 St.Rep. at 20. Following a 

subsequent bench trial, the District Court found sufficient 

evidence to demonstrate that defendant's sales agents had 

made actual representations throughout the sales campaign 

that roads would be constructed and provided by defendant. 

This finding is supported by substantial credible evidence 

and we therefore affirm the finding. 

The trial testimony consistently indicates that the 

defendant's sales agents referred to the plats of the 

subdivision when making a sales presentation to a potential 

buyer. Those plats clearly set forth a roadway system. The 

use of the plats suggest that the potential buyers would be 

purchasing land in a subdivision with a developed system of 

roadways, and not an isolated piece of real property. 

Defendant actually admits that once a land buyer decides to 

construct a residence, defendant is responsible for 

constructing a road to that plot of land. The trial 

testimony sufficiently demonstrates that the buyers were 

partially induced to make purchases because a roadway system 

would be provided by the seller. Substanti-a1 credible 
evidence supports this conclusion, and we therefore refuse to 

hold that the District Court's decision is clearly erroneous. 

Defendant contests the award of specific performance 

and states this is an inappropriate remedy because the 

obligations of the parties under the contracts are not 

sufficiently ascertainable. "Specific performance is an 

equitable remedy which compels the performance of a contract 

in the precise terms agreed on. " Seifert v. Seifert (1977) , 

173 Mont. 501, 504, 568 P.2d 155, 156. Specific performance 

is not appropriate if the terms of the contract are not 

sufficiently certain so as to make the precise act which is 

to be done clearly ascertainable. Section 27-1-412(5), MCA. 

In other words, a contract will not be specifically enforced 

unless the terms of the contract are sufficiently definite. 

This Court has also noted however, that absolute certainty in 

every detail is not necessarily required: 

[Ilt is well settled that absolute 

certainty in every detail is not a 

prerequisite for specific performance. 

Gropp v. Lotton (1972), 160 Mont. 415, 

503 P.2d 661; Steen v. Rustad (1957), 132 

Mont. 96, 313 P.2d 1014. Those matters 

which are collateral or which go to the 

performance of the contract are not 

essential and need not be expressed in 

the contract. Steen v. Rustad, supra; 

Johnson v. Elliot (1950), 123 Mont. 597, 

218 P.2d 703. 

Keaster v. Bozik (Mont. 1981), 623 P.2d 1376, 1381, 38 

St.Rep. 194, 201. Additionally, we must note that specific 

performance is an equitable remedy: 

[Tlhe foundation of a suit for 

performance of a contract is that, by 

compelling the parties to do the very 

things they agreed to do, more complete 

and perfect justice is attained than by 

giving damages for breach of a contract. 

Specific performance is purely an 
equitable remedy; presenting a purely 

equitable controversy and is governed by 

equitable principles. 81 C.J.S. Specific 

Performance S 1 p. 408. See also: 

State ex rel. Victor's Inc. v. District 

Court, Mont., 545 P.2d 1098, 33 St.Rep. 

23, 27. 

In 81 C.J.S. Specific Performance 5 3, p. 

411, it is stated: 

"* * * specific performance will be 

ordered only on equitable grounds -- in view 

--- of the conditions surrounding the 

particular case. * * * 

"A - bill - in equity for specific - 

performance - is - an appeal - to - the 

conscience -- of the court, and generally, 

--- in such a proceeding, the inquiry -- 

must be 

whether. '-- in eauitv and aood conscience. 

the court should specifically enforce the 

contract. Accordingly, specific 

performance & will be sranted < when it is 

apparent from a view of all the 

circumstances of the particular case that 

it will serve the ends of justice, and it 

will be withheld when, from a like view, 

it appears that it will produce hardships 

or injustice to either party * * *." 

(Emphasis in original.) 

Seifert, 173 Mont. at 504, 568 P.2d at 156, 157. 

In view of the facts of this case and the general rules 

governing specific performance, we find the District Court 

order is correct. The plats designate the route, location, 

and width of the roadways in question. The only item not. 

specifically designated is the type or nature of the 

roadways. Therefore, we find that the obligations generated 

by the sales contracts are sufficiently definite. 

Additionally, the actual construction of roadways is the 

proper equitabl-e remedy. 
Defendant contests the portion of the District Court 

order requiring that the roads meet the minimum requirements 

of the Madison County subdivision regulations. Since no such 

minimum requirements existed when plaintiffs purchased their 

lots, defendant contends it is unfair to apply the 

requirements at a future time. Defendant alleges the new 

requirements will result in a cost increase exceeding 

$500,000. 

The record demonstrates that defendant has attempted to 

satisfy its obligations by constructing certain dirt roadways 

that are impassable during large portions of any given year. 

It would certainly not be equitable to allow defendant to 

escape its obligation by constructing roads which are 

rendered basically useless during significant portions of the 

year. The roadways must be of sufficient quality to provide 

reasonable access during the entire year. Both parties had 

an opportunity at trial to present a plan which would provide 

reasonable year-round access. Plaintiffs presented the 

Madison County subdivision regulations as containing a 

reasonable standard for the roadways. The District Court 

chose to accept those standards as reasonable, and we see no 

reason to reject this decision. 

Defendant finally states that the District Court 

decision benefits 200 lot owners that are not parties to the 

action, and has the effect of treating the dispute as a class 

action suit. Defendant concludes this is not an appropriate 

case for a class action suit because recovery depends upon 

representations made to each individual buyer. Additionally, 

a similar case was previously denied class action status. We 

reject defendant's contention because the completion of the 

roadway system within the subdivision benefits each of the 

plaintiffs. Although others will certainly benefit even 

though they are not parties to this lawsuit, this 
consideration is not controlling. Each plaintiff has a 

vested interest in having the subdivision roadway network 

completed. We hold the District Court properly awarded 

specific performance. 

11. DID THE DISTRICT COURT AWARD EXCESSIVE ATTORNEY'S FEES? 

Defendant agrees that an award of attorney's fees is 

appropriate because the sales contracts and Montana law 

provide for such fees. However, defendant states the award 

of $26,000 is excessive. Defendant explains that plaintiffs 

lost the first appeal in this case and that resulting 

attorney's fees from that appeal should not be paid by 

defendant. Additionally, defendant alleges a large portion 

of the plaintiffs' attorney's fees were paid for by a third 

party, and that other portions of plaintiffs' attorney's fees 

were generated as a result of a separate case. 

In determining what constitutes "reasonable attorney's 

fees," this Court has stated that the following factors 

should be considered as guidelines: (1) the amount and 

character of the services rendered; (2) the labor, time, and 

trouble involved; (3) the character and importance of the 

litigation in which the services were rendered; (4) the 

amount of money or the value of the property to be affected; 

(5) the professional skill and experience called for; (6) 

the character and standing in their profession of the 

attorneys; and (7) the result secured by the services of the 

attorneys. See, Carkeek v. Ayer (1980) , 188 Mont. 345, 347, 

613 P.2d 1013, 1015; First Security Bank of Bozeman v. 

Tholkes (1976), 169 Mont. 422, 429, 430, 547 P.2d 1328, 1332; 

Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 

113, 119, 120, 541 P.2d 56, 59; and, Forrester and MacGinnis 

v. B. & M. Co. (1904), 29 Mont. 397, 409, 74 P. 1088, 1093. 

Determining what constitutes reasonable attorney 's fees is a 
discretionary task for the District Court, and this Court 

will not disturb its judgment in the absence of an abuse of 

that discretion. Talmage v. Gruss (1983), 202 Mont. 410, 

412, 658 P.2d 419, 420 (citing, Carkeek, 188 Mont. at 347, 

348, 613 P.2d at 1015). 

The District Court specifically stated in its order 

dated May 4, 1987, that it considered plaintiffs' itemized 

statements, the supporting affidavits, and the general and 

local standards and criteria for the fixing of attorney's 

fees. The District Court actually reduced the amount of 

attorney's fees requested by the plaintiff from $29,575.07 to 

$26,000. After reviewing the plaintiffs' supporting 

affidavits and statements, the guidelines for determining 

reasonable attorney's fees, and the District Court order, we 

find no abuse of discretion and affirm the award of 

attorney's fees. 

Defendant also objects to the award of attorney's fees 

on the contentions that the fees have already been advanced 

by a third party and that a significant portion of the fees 

were generated due to a separate but similar case. Defendant 

cites no authority which prohibits a third party from 

advancing such fees for plaintiffs. Defendant does cite 

First National Bank of Great Falls v. Llera (1978), 176 Mont. 

481, 487, 580 P.2d 100, 104, for the proposition that only 

parties with a contractual right to attorney's fees may 

receive an award for those fees pursuant to the contract. In 

this case, however, the plaintiffs are parties to the sales 

contracts and therefore may receive attorney's fees based on 

that contract. This is not altered merely because a third 

party advanced the fees. Additionally, there is no 

indication that the attorney's fees were incurred due to 

another case. Instead, it appears that plaintiffs have 

become genuinely obligated to pay significant amounts in 
attorney's fees as a result of pursuing this action. The 

District Court determined a reasonable amount for these 

services and we hold there is substantial evidence to make 

such a determination. 

111. ARE THE PLAINTIFF/RESPONDENTS ENTITLED TO AN ADDITIONAL 

AWARD OF ATTORNEY'S FEES INCURRED IN RESPONDING TO THIS 

APPEAL? 

Plaintiffs contend that if they prevail on this appeal, 

they are entitled to additional reasonable attorney's fees 

incurred due to this appeal. The claim for attorney's fees 

is based on an attorney's fee clause in the contract for sale 

which provides that the seller (defendant) is entitled to 

reasonable attorney's fees generated by any subsequent 

litigation. Due to the clause, the buyers (plaintiffs) 

obtained the same right to claim attorney's fees. Section. 

28-3-704, MCA. The clause specifically states it applies to 

any legal action instituted in any court. As the prevailing 

party on appeal, plaintiffs are entitled to reasonable 

attorney's fees. We hold this is consistent with previous 

cases discussing similar issues. See, In re Marriage of 

Rolstad (1983), 203 Mont. 131, 135, 660 P.2d 95, 97. 

IV. WAS THE PLAINTIFF'S ACTION BARRED BY THE STATUTE OF 

LIMITATIONS? 

Defendant contends the applicable statute of 

limitations for this case is five years, despite this Court's 

decision which applied an eight year statute of limitations. 

Magers, 711 P.2d at 1378, 1379, 43 St.Rep. at 20, 21. 

Defendant reasons that since the claim depends upon the oral 

representations made to the buyers, the claim is one based on 

a contract. not founded upon a written instrument and the 

applicable statute of limitations is five years. See, 
5 27-2-202(2), MCA. Defendant urges this Court to reevaluate 

the prior decision in this case. After reviewing this issue, 

we see no reason to reverse our prior decision regarding the 

statute of limitations. 

In conclusion, we affirm the District Court on all 

issues. We remand for the purpose of determining reasonable 

attorney's fees incurred by plaintiffs on this appeal. 

Further, we direct the District Court to reestablish a date 

for the completion of the roadways, as well as other 

improvements including the artificial lake as stated in the 

District Court's final judgment, as set forth on the plats of 

the subdivision and in accordance with this opinion. 

We concur: -4 

Justices