DA 14-0520

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 142

VICTOR WORLEDGE, MATTHEW HALL, 

LYNNE KELLY, and MICHAEL BARTHOLIC,

and all others similarly situated,

 Plaintiffs and Appellees,

 v.

RIVERSTONE RESIDENTIAL GROUP, LLC, 

HSC REAL ESTATE, INC., CREEKSIDE ICG

APARTMENT PORTFOLIO III, LLC, NW 

APARTMENT PORTFOLIO II WILDFLOWER,

LLC, NW APARTMENT PORTFOLIO II

SHILOH GLEN, LLC, and 4000 MULLAN 

ROAD LLC, 

 Defendants and Appellants.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV 13-658

Honorable Karen S. Townsend, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

David M. McLean, Christy S. McCann, Browning, Kaleczyc, Berry &

Hoven, P.C., Missoula, Montana 

(for Creekside ICG Apartment Portfolio III, LLC, NW Apartment 

Portfolio II Wildflower, LLC, and NW Apartment Portfolio II Shiloh Glen, 

LLC)

W. Scott Mitchell, Michael P. Manning, Holland & Hart, LLP, 

Billings, Montana 

(for Riverstone Residential Group, LLC and HSC Real Estate, Inc.)

Perry J. Schneider, Hannah Stone, Milodragovich, Dale & Steinbrenner, 

P.C., Missoula, Montana 

(for 4000 Mullan Road, LLC)

May 26 2015

Case Number: DA 14-0520
2

For Appellees:

Christopher W. Froines, Froines Law Office, Inc., Missoula, Montana

Submitted on Briefs: March 25, 2015

 Decided: May 26, 2015

Filed:

__________________________________________

Clerk
3

Justice Beth Baker delivered the Opinion of the Court. 

¶1 Appellants Riverstone Residential Group, LLC (Riverstone), HSC Real Estate, 

Inc. (HSC), Creekside ICG Apartment Portfolio III, LLC (Creekside), NW Apartment 

Portfolio II Wildflower, LLC (Wildflower), NW Apartment Portfolio II Shiloh Glen, 

LLC (Shiloh Glen), and 4000 Mullan Road, LLC (Mullan) appeal a Fourth Judicial 

District Court, Missoula County, order certifying as a class action claims against them by 

named Plaintiffs Victor Worledge, Ana Vlahovich, and Lynne Kelly.

1

 We restate the

issues on appeal as follows:

1. Whether the District Court abused its discretion by admitting new evidence 

submitted with Plaintiffs’ reply brief. 

2. Whether the District Court abused its discretion in determining that the 

proposed class satisfied M. R. Civ. P. 23(a)’s prerequisites to class certification.

3. Whether the District Court abused its discretion by certifying the class under 

M. R. Civ. P. 23(b)(3).

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Appellants Creekside, Wildflower, Shiloh Glen, and Mullan (collectively, 

“Owners”) are owners of multi-unit apartment buildings located in Montana: Creekside, 

Wildflower, and Mullan own apartment complexes in Missoula, and Shiloh Glen owns an

apartment complex in Billings. Appellant Riverstone and its predecessor, HSC

(collectively, “Riverstone”), are property management companies that collectively 

 

1 Vlahovich was dismissed, and Plaintiffs Matthew Hall and Michael Bartholic were added, in 

the Second Amended Complaint. 
4

managed Owners’ apartment complexes during times relevant to the complaint. 

Appellees are current or former tenants of Owners’ apartment complexes who signed 

leases for those apartments through Riverstone: Worledge resides at Creekside, Kelly 

resides at Wildflower, and Vlahovich formerly resided at Creekside. 

¶4 On June 11, 2013, Worledge, Vlahovich, and Kelly filed a complaint on behalf of 

themselves and other unnamed plaintiffs (collectively, “Tenants”) who entered into rental 

agreements with Riverstone to rent apartments at Owners’ apartment complexes. On 

October 21, Tenants filed a First Amended Complaint, Statement of Class Action, and 

Jury Demand. Tenants’ First Amended Complaint alleged that rental agreements at all 

four apartment complexes were almost identical and contained provisions that violated

the Montana Residential Landlord and Tenant Act (Landlord-Tenant Act), §§ 70-24-101 

through 442, MCA, and the Montana Security Deposit Act (Security Deposit Act), 

§§ 70-25-101 through 206, MCA. To support these allegations, Tenants filed as exhibits 

several of the named parties’ leases with Riverstone. Between November 2013 and 

February 2014, Riverstone and Owners filed their answers to the complaint. 

¶5 On March 13, 2014, Tenants moved to certify a class action under M. R. Civ. 

P. 23. Tenants alleged that the following provisions included in Riverstone leases are 

prohibited by law: cancellation fees and liquidated damages clauses; provisions requiring 

the complete forfeiture of security deposits instead of qualified deductions; provisions 

requiring payment of non-refundable fees; provisions requiring non-refundable pet 

deposits; provisions exonerating Riverstone and Owners from any risk associated with 
5

Tenants’ loss of personal property; provisions requiring Tenants to pay all of Owners’ 

and Riverstone’s attorney’s fees, regardless of fault; and provisions requiring Tenants to 

indemnify Riverstone and Owners for any injuries to guests. 

¶6 Under the Landlord-Tenant Act, 

A rental agreement may not provide that a party: (1) agrees to waive or 

forego rights or remedies under [the Landlord-Tenant Act]; (2) authorizes 

any person to confess judgment on a claim arising out of the rental 

agreement; or (3) agrees to the exculpation or limitation of liability 

resulting from the other party’s purposeful misconduct or negligence to 

indemnify the other party for the liability or the costs or attorney’s fees 

connected therewith.

Section 70-24-202, MCA. Provisions prohibited under § 70-24-202 are unenforceable,

and, “If a party purposefully uses a rental agreement containing provisions known by the 

party to be prohibited, the other party may recover, in addition to . . . actual damages, an 

amount up to 3 months’ periodic rent.” Section 70-24-403, MCA. The Security Deposit 

Act contains a list of deductions that a landlord may make from a tenant’s security 

deposit and provides, “A person may not deduct or withhold from the security deposit 

any amount for purposes other than those set forth [in that list].” Section 75-25-201, 

MCA.

¶7 Tenants sought class certification under M. R. Civ. P. 23(b)(3). Rule 23(a) sets 

forth four threshold requirements to class certification: numerosity, commonality, 

typicality, and adequate representation. M. R. Civ. P. 23(a). Rule 23(b)(3) requires a 

court to find that “the questions of law or fact common to the class members predominate 

over any questions affecting only individual members, and that a class action is superior 
6

to other available methods for fairly and efficiently adjudicating the controversy.” M. R. 

Civ. P. 23(b)(3). Thus, Rule 23(b)(3) adds two requirements—predominance and 

superiority—to the prerequisites under Rule 23(a).

¶8 In their motion to certify, in addition to the named parties’ Riverstone leases, 

Tenants filed as exhibits four letters from Riverstone to residents of each apartment 

complex. The letters, dated May 1 and May 3, 2013, purported to change certain 

provisions of the Riverstone leases to “better comply with Montana Law.” The letters 

were written on Mullan, Shiloh Glen, Wildflower, and Creekside letterhead and were 

signed “Mullan Reserve Management,” “Shiloh Glen Management,” “Wildflower 

Management,” and “Creekside Apartments Management,” respectively. Otherwise, the

letters were substantively identical.

¶9 In their responses to Tenants’ motion to certify, Riverstone and Owners argued 

that Tenants had not submitted sufficient evidence to meet their burden of proof and thus 

had not met any of the Rule 23 requirements. Riverstone and Owners argued that, among 

other issues, Tenants did not submit evidence to support their claim that there were over

1,000 class members (numerosity); Tenants did not prove that class members had 

substantially similar lease agreements (commonality); the named plaintiffs could not

represent tenants for apartment complexes where they had never lived (typicality and 

adequate representation); and the court could not resolve whether Riverstone and Owners 

violated the Security Deposit Act without performing an individual analysis for each 

class member (predominance). 
7

¶10 On April 11, 2014, Tenants filed a motion to amend their first amended complaint 

by removing Vlahovich and adding named Plaintiffs Hall, a former resident at Mullan, 

and Bartholic, a former resident at Shiloh Glen. Also on April 11, Tenants filed a reply 

brief regarding their motion to certify, attaching four additional exhibits—Exhibits H, I,

J, and K—to rebut Owners’ and Riverstone’s assertions that Tenants did not meet the 

Rule 23 requirements. Exhibit H was a spreadsheet identifying each potential class 

member, his or her move-in and move-out dates, the name of the apartment complex in 

which he or she resided, and which of the seven allegedly prohibited provisions his or her 

lease contained. Exhibit I was an affidavit by Susan Mayer, president and CEO of 

Litigation Abstract, Inc., the company that generated the spreadsheet. Exhibit J was an 

affidavit by attorney Klaus Sitte, testifying to the legislative intent of the committee, of 

which he was a member, that drafted the Landlord-Tenant Act. Exhibit K consisted of

several filings in lawsuits brought by Owners against Tenants in which Owners sought to

enforce allegedly prohibited attorney’s fees provisions in the leases. 

¶11 Riverstone and Owners opposed Tenants’ motion to amend and moved to strike 

Tenants’ Exhibits H, I, J, and K, arguing that the exhibits presented new, inadmissible 

evidence that Tenants could not present for the first time in a reply brief. Riverstone and 

Owners noted that courts are hesitant to admit such evidence because it deprives the 

opposing party of an opportunity to respond. On June 11, 2014, the District Court denied
8

the motions to strike, finding the exhibits admissible.2 The court reasoned that, though 

parties may not include new arguments in a reply brief, Tenants merely had submitted 

new evidence in direct rebuttal to Riverstone’s and Owners’ response briefs. 

Additionally, the court allowed Riverstone and Owners fourteen days to file sur-replies, 

supplemental briefing, or supporting evidence to address Tenants’ new exhibits, and 

twenty-one days to request further hearings. On June 25, 2014, Riverstone and Owners 

all filed sur-replies. Neither Riverstone nor Owners requested hearings or additional 

time. 

¶12 On July 30, 2014, the District Court issued a memorandum and order granting 

Tenants’ motion for class certification. The court defined the class as follows:

All persons who had apartment rental agreements with Riverstone 

Residential Group, or its predecessor, acting as agents for apartment owners 

Creekside, Wildflower, Shiloh Glen, and 4000 Mullan Road apartments 

between June 11, 2011, to present, where the rental agreements contained 

illegal rental provisions in violation of the Montana Residential Landlord 

Tenant Act and/or the Montana Security Deposit Act.

On the same day, the court issued an order granting Tenants’ motion to amend their first 

amended complaint. The court determined that whether Tenants could add new named 

plaintiffs did not impact class certification because the court had certified the class based 

on Tenants’ first amended complaint, which satisfied Rule 23 without naming a plaintiff 

that was a resident of either Mullan or Shiloh Glen. In spite of making this 

 

2 However, the District Court explained in its certification order that it would not consider the 

Sitte affidavit because “Sitte is an attorney and his affidavit essentially provides his 

interpretation of the Landlord Tenant Act and legislative intent.” This ruling is not challenged 

on appeal.
9

determination, the court noted that adding two new plaintiffs did not prejudice Riverstone 

or Owners because Tenants did not assert any new legal theory, there was no dispositive 

motion pending, Tenants did not act in bad faith, and the amendments were submitted 

before the deadline set by a joint scheduling order. 

¶13 Riverstone and Owners appeal the District Court’s class certification. 

STANDARDS OF REVIEW

¶14 “Trial courts have the broadest discretion when deciding whether to certify a 

class,” Sieglock v. Burlington N. & Santa Fe Ry. Co., 2003 MT 355, ¶ 8, 319 Mont. 8, 81 

P.3d 495, because they are in the “best position to consider the most fair and efficient 

procedure for conducting any given litigation,” Chipman v. Nw. Healthcare Corp., 2012 

MT 242, ¶ 17, 366 Mont. 450, 288 P.3d 193. Accordingly, we will not upset the District 

Court’s decision to certify a class unless we determine that the court abused its discretion. 

Mattson v. Mont. Power Co., 2012 MT 318, ¶ 17, 368 Mont. 1, 291 P.3d 1209. A court 

abuses its discretion when it acts “arbitrarily without conscientious judgment or exceed[s] 

the bounds of reason.” Mattson, ¶ 17. “To the extent that the ruling on a Rule 23 

requirement is supported by a finding of fact, that finding . . . is reviewed under the 

‘clearly erroneous’ standard.” Mattson, ¶ 17 (quoting Miles v. Merrill Lynch & Co., 471 

F.3d 24, 40-41 (2d Cir. 2006) (internal quotation marks omitted)). Rulings on issues of 

law are reviewed de novo. Mattson, ¶ 17 (citing Miles, 471 F.3d at 40-41). 
10

DISCUSSION

¶15 1. Whether the District Court abused its discretion in admitting new evidence

submitted with Plaintiffs’ reply brief.

¶16 Riverstone and Owners argue that the District Court abused its discretion by 

considering material first submitted with Tenants’ reply brief. We have held many times 

that we “will not address the merits of an issue presented for the first time in a reply 

brief.” State v. Makarchuk, 2009 MT 82, ¶ 19, 349 Mont. 507, 204 P.3d 1213 (quoting

Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14 P.3d 499) (emphasis added and 

internal quotation marks omitted). However, we have not addressed a case where, as 

here, a plaintiff presents new evidence in response to a defendant’s challenge that the

plaintiff has not met her evidentiary burden. 

¶17 Courts that strike new evidence offered for the first time in a plaintiff’s reply brief 

are typically driven by fairness to the parties, reasoning that admitting such evidence

“deprives a defendant of an opportunity to meaningfully respond.” Bennett v. Sprint 

Nextel Corp., No. 09-2122-EFM, 2013 U.S. Dist. LEXIS 41161, at *6-7 (D. Kan. 

Mar. 25, 2013); see also Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273 n.3 (9th Cir. 1993)

(striking new evidence presented in a reply brief after the defendant argued that “the new 

information was outside the record and that including it in a reply brief deprived the 

[defendant] of an opportunity to respond”); In re Taco Bell Wage & Hour Actions, 

No. 1:07-cv-01314-OWW-DLB, 2011 U.S. Dist. LEXIS 109169, at *19 (E.D. Cal.

Sept. 26, 2011) (“New evidence or analysis presented for the first time in a reply will not 

be considered.”) (citations omitted). Courts also have stricken new evidence offered in a 
11

reply brief when it was available to the plaintiff before she submitted a motion to certify. 

See Armstrong v. Genesh, Inc., No. 11-1161-CM, 2011 U.S. Dist. LEXIS 142722, at *2 

(D. Kan. Dec. 12, 2011) (noting, “The court could consider the newly-submitted evidence 

and give defendant an opportunity to respond, but the court believes this measure is 

unnecessary”); Lang v. Kan. City Power & Light Co., 199 F.R.D. 640, 651 (W.D. Mo. 

2001) (granting a defendant’s motion to strike expert testimony offered in a reply brief 

when the plaintiffs, in interrogatories and in discussions with the court, had indicated that 

they would not use expert testimony). 

¶18 Neither of these concerns applies to the evidence at issue here: Tenants did not 

have access to the spreadsheet and testimony providing its foundation before submitting 

their motion to certify, and the District Court gave Riverstone and Owners an opportunity 

to file sur-replies and to request a hearing. Riverstone and Owners argue that the District 

Court abused its discretion by admitting the new evidence without allowing them an 

opportunity to conduct discovery regarding that evidence or to obtain an expert of their 

own, and that fourteen days was insufficient time to file a sur-reply. However, 

Riverstone and Owners filed sur-replies without ever requesting additional time or 

hearings, and agreed that they had had a sufficient opportunity to respond. 

¶19 In its order denying the Defendants’ motions to strike, the District Court pointed 

out that, if it granted the motions, it could deny Tenants’ motion to certify without 

prejudice because the motions to strike were based on lack of evidence, rather than a

failed legal argument. Accordingly, the court concluded, “The only result of Defendants’ 
12

tactical maneuver here would be to delay these proceedings by several months, multiply 

fees on both sides, and make this Court revisit the exact issues that are currently before it 

with the same or similar evidence.” The court determined that, because it gave

Riverstone and Owners an opportunity to respond and to request additional hearings, 

Riverstone and Owners would not be prejudiced by the new evidence.

¶20 The District Court preempted concerns about accepting the new evidence by 

allowing Riverstone and Owners the opportunity to file sur-replies and to request further 

hearings. Although Riverstone and Owners argue that they were unable to rebut Mayer’s 

statement that Tenants’ damages are easy to ascertain, Riverstone and Owners have not 

demonstrated what they would have gained from additional discovery on the contents of 

the spreadsheets that may have affected the class certification ruling. Tenants do not seek 

actual damages, but seek only the statutory damages available under § 70-24-403, MCA. 

Tenants claim that Riverstone’s inclusion, rather than enforcement, of allegedly 

prohibited provisions in Riverstone leases violated the Landlord-Tenant Act and the 

Security Deposit Act. Further, Riverstone’s form letter to residents of all four apartment 

complexes purporting to eliminate the allegedly prohibited lease provisions implicitly 

acknowledges that those provisions are easily identified and uniform across all 

Riverstone leases. The court did not act arbitrarily, without conscientious judgment, or 

exceed the bounds of reason by admitting Tenants’ evidence in these circumstances. The 

District Court did not abuse its discretion in denying Riverstone’s and Owners’ motions 

to strike. 
13

¶21 2. Whether the District Court abused its discretion in determining that the 

proposed class satisfied M. R. Civ. P. 23(a)’s prerequisites to class certification.

¶22 Class actions are “an exception to the usual rule that litigation is conducted by and 

on behalf of the individual named parties only.” Mattson, ¶ 18 (quoting Califano v. 

Yamasaki, 442 U.S. 682, 700-01, 99 S. Ct. 2545, 2557 (1979)). “Departure from the 

usual rule is justified if the class representative is part of the class and has the same 

interest and injury as the class members.” Sangwin v. State, 2013 MT 373, ¶ 12, 373 

Mont. 131, 315 P.3d 279 (citation omitted). Discussed above, Rule 23 of the Montana 

Rules of Civil Procedure governs class certification in Montana.

¶23 Under Rule 23(a) the party seeking certification must establish that the class meets 

the requirements of numerosity, commonality, typicality, and adequate representation. 

Chipman, ¶ 43. A district court may certify a class only if it is satisfied, after conducting 

a “rigorous analysis,” that each of these requirements is met. Chipman, ¶ 44 (citations 

omitted). Conducting a “rigorous analysis” may entail analyzing some merits issues, but 

only to the extent that those issues are relevant to determining whether the Rule 23 

requirements are satisfied. Chipman, ¶ 44.

¶24 Riverstone and Owners dispute the District Court’s determination that the 

proposed class satisfied Rule 23(a)’s commonality, typicality, and adequate 

representation standards; they do not dispute numerosity. 

A. Commonality

¶25 To meet the commonality requirement, Tenants must show that “there are 

questions of law or fact common to the class.” M. R. Civ. P. 23(a)(2). Historically, 
14

Montana followed federal jurisprudence imposing a “relatively low,” easily satisfied

burden on plaintiffs to prove commonality. Chipman, ¶ 47. That standard required

plaintiffs to demonstrate a “common nucleus of operative facts”—that “a single issue was 

common to all class members, regardless of differences among the class.” Chipman, ¶ 47 

(internal quotations and citations omitted). However, in Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. ___, 131 S. Ct. 2541 (2011), the U.S. Supreme Court “significantly tightened” 

the federal commonality requirement. Sangwin, ¶ 18 (quoting Chipman, ¶ 47). Under 

Wal-Mart, claims by class members and their representatives “must depend upon a 

common contention of such a nature that it is capable of classwide resolution—which 

means that determination of its truth or falsity will resolve an issue that is central to the 

validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at ___, 131 S. Ct.

at 2545. 

¶26 The District Court determined that the class in this case satisfied Rule 23(a)(2)’s

commonality requirement even under Wal-Mart’s more stringent standard because the 

validity of the prospective class members’ claims hinged on a single issue: whether 

Tenants all had leases through Riverstone that contained at least one prohibited provision 

entitling them to statutory damages under Montana law. In reaching its decision, the 

court conducted a rigorous analysis of the facts and relied on our recent precedent 

construing the commonality requirement.

¶27 In Chipman, we considered a district court’s certification of a class of employees 

who sued their employers, a parent healthcare company and its subsidiaries, over benefit 
15

buy-back programs. Chipman, ¶¶ 5-6. Although the employers contended that each 

employee had different circumstances requiring a fact-specific, individual analysis, the 

district court found that the employers implemented a uniform buy-back policy with 

respect to all employees. Chipman, ¶¶ 51-52. We affirmed, recognizing that although 

dissimilarities within the proposed class existed, “common facts connect all class 

members in relation to the ultimate resolution” of the dispute. Chipman, ¶ 52 (“A court’s 

determination of whether a standardized group contract exists and the legal obligations of 

the parties will generate common answers applicable to all class members.”). 

¶28 Like the plaintiffs in Chipman, Tenants allege that Riverstone and Owners 

participated in a “uniform course of conduct” that was prohibited by Montana law. 

Although Riverstone and Owners contend that not every prospective class member’s 

lease had the same allegedly prohibited provisions, the District Court pointed out:

Defendants considered the leases so similar that a uniform letter was sent to 

all ‘residents’ at each of the four buildings . . . purportedly striking certain 

provisions from the leases, stating that provisions would not be enforced, or 

unilaterally changing the language of the contracts. The letters 

acknowledged that there were differences in the leases, but implied that the 

single generic letter was sufficient to address any of the problems in lease 

language.

¶29 Riverstone and Owners do not dispute that all of the leases for the putative class 

members contained at least one of the seven challenged provisions.3 Because Tenants’ 

allegations concern the general business practice of Riverstone and Owners to use leases 

with allegedly prohibited provisions, the court determined that slight differences in the 

 

3 Moreover, a review of Tenants’ spreadsheet indicates that the majority of Riverstone leases 

contained several of the allegedly prohibited lease provisions.
16

leases did not preclude commonality. Following our reasoning in Chipman, we agree

that, although “[d]issimilarities within the proposed class exist, . . . common facts connect 

all class members in relation to the ultimate resolution of this dispute.” Chipman, ¶ 52. 

Determining in a class-wide proceeding whether the standard form leases used by 

Riverstone violate the Landlord-Tenant Act will “generate common answers apt to drive 

the resolution of the litigation.” Chipman, ¶ 48 (quoting Wal-Mart, 564 U.S. at ___, 131 

S. Ct. at 2551) (emphasis removed). Further, Tenants are not requesting actual damages, 

but only those set pursuant to the statutory formula, which the District Court noted easily 

could be calculated based on each class member’s monthly rent. That Tenants did not all 

pay the same amount of rent is not an obstacle to this determination. Such individualized 

damage inquiries generally do not preclude class certification. See Mattson, ¶ 38 

(citations omitted).

¶30 The District Court also rejected Riverstone’s and Owners’ argument that Tenants’ 

Security Deposit Act claims rendered the class inappropriate. The court reasoned that, 

although enforcement of the security deposits provisions determines whether a landlord 

has violated the Act, Tenants’ filings in this case concerned only the inclusion of 

allegedly unlawful provisions in the leases, not specific wrongful deductions from 

security deposits. Riverstone argues that Tenants impermissibly attempted to bootstrap 

their Security Deposit Act claims into the rental agreement prohibitions of the 

Landlord-Tenant Act. Riverstone faults the District Court for failing to analyze whether 

the mere inclusion of provisions in a lease that could authorize deductions in violation of 
17

the Security Deposit Act is a violation of the Landlord-Tenant Act. The Tenants’ First 

Amended Complaint seeks a declaratory ruling that leases with the allegedly prohibited 

provisions are unenforceable. Whether a lease may violate the Security Deposit Act 

without an attempt to enforce an allegedly prohibited provision is an issue of law at the 

heart of the Tenants’ complaint. Likewise, the issue whether the inclusion of certain 

security deposit provisions in violation of the Security Deposit Act violates the 

Landlord-Tenant Act is an issue of law that can be decided by a court at one time for all 

class members. Accordingly, the District Court correctly concluded that it was 

inappropriate to rule on those issues at the certification stage. 

¶31 Additionally, the fact that not all class members have Security Deposit Act claims 

does not preclude class certification. As with provisions that allegedly violate the 

Landlord-Tenant Act, certain leases contained certain of the allegedly prohibited 

provisions while others did not, but the slight differences between leases do not preclude 

commonality on the issue whether the provisions violate Montana law. 

¶32 Finally, Owners contend that the District Court’s use of an “and/or” clause in its 

definition—“All persons who had apartment rental agreements . . . contain[ing] illegal 

rental provisions in violation of the [Landlord-Tenant Act] and/or the [Security Deposit 

Act]”—renders the class “so amorphous and diverse, it cannot be reasonably clear that 

the proposed class members have all suffered a constitutional or statutory violation.” 

(quoting Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980)). Owners assert that 

this ambiguity necessitates an impermissible determination on the merits. We disagree. 
18

The District Court’s class definition clearly encompasses persons who had a lease 

through Riverstone that contained at least one provision in violation of Montana statutory 

law. The court’s use of “and/or” under these circumstances does not invalidate its 

certification of a class because, although some leases allegedly violate the 

Landlord-Tenant Act, some allegedly violate the Security Deposit Act, and some 

allegedly violate both Acts, an individual lease need contain only one of the challenged 

provisions in order to fall under the class definition. Although there may be 

dissimilarities as to which of the seven allegedly prohibited provisions each lease 

contains, Riverstone’s use of a form letter to all tenants acknowledges that the provisions 

easily are identified in Riverstone’s standard form leases. As in Chipman, the 

common issue—whether Riverstone leases contained provisions in violation of Montana 

law—connects all members in relation to the ultimate resolution of the dispute. 

¶33 The proposed class satisfies Rule 23(a)(2)’s commonality requirement under the 

more stringent Wal-Mart standard. All class members are connected by the existence of 

allegedly prohibited provisions in their leases with Owners through Riverstone. The 

District Court, after conducting a thorough analysis of the facts and circumstances of this 

case, did not abuse its discretion in determining that Tenants’ proposed class met Rule 

23(a)(2)’s commonality requirement. 

B. Typicality

¶34 Mullan argues that the District Court erred in certifying a class against it when 

there was no relationship between Mullan and any of the named plaintiffs. Under M. R. 
19

Civ. P. 23(a)(3), “the claims or defenses of the representative parties [must be] typical of 

the claims or defenses of the class.” Typicality, which “tends to merge” with 

commonality, Sangwin ¶ 21 (citation omitted), is “designed to ensure that the named 

representatives’ interests are aligned with the class’s interests, the rationale being that a 

named plaintiff who vigorously pursues his or her own interests will necessarily advance 

the interests of the class.” Diaz v. Blue Cross & Blue Shield, 2011 MT 322, ¶ 35, 363 

Mont. 151, 267 P.3d 756 (citations and quotation marks omitted). Typicality is not a 

demanding standard: it is met if a named plaintiff’s claim “stems from the same event, 

practice, or course of conduct that forms the basis of the class claims and is based upon 

the same legal or remedial theory.” Sangwin, ¶ 21 (quoting Diaz, ¶ 35) (emphasis 

removed and internal quotation marks omitted). “The event, practice, or course of 

conduct need not be identical.” Sangwin, ¶ 21 (citing Diaz, ¶ 35). 

¶35 Generally, typicality “prevents plaintiffs from bringing a class action against 

defendants with whom they have not had any dealings.” Sangwin, ¶ 21 (citation 

omitted). However, an exception to this general rule occurs in “instances in which all 

defendants are juridically related in a manner that suggests a single resolution of the 

dispute will be expeditious.” Murer v. Mont. State Comp. Mut. Ins. Fund, 257 Mont. 

434, 438-39, 849 P.2d 1036, 1039 (1993) (citing La Mar v. H & B Novelty and Loan Co., 

489 F.2d 461, 465 (9th Cir. 1973)). In Chipman, we noted that courts have applied this 

“juridical link doctrine” to “circumstances in which ‘all the defendants took part in a 

similar scheme that was sustained either by a contract or conspiracy, or was mandated by 
20

a uniform state rule,’ such that it was ‘appropriate to join as defendants even parties with 

whom the named class representative did not have direct contact.’” Chipman, ¶ 40 

(quoting Payton v. Cnty. of Kane, 308 F.3d 673, 679 (7th Cir. 2002) (emphasis in 

original)) (citing Moore v. Comfed Sav. Bank, 908 F.2d 834, 838-39 (11th Cir. 1990); 

Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423-24 (6th Cir. 1998)). We further 

noted that “many courts have applied the juridical link doctrine to allow a plaintiff to join 

additional defendants with identical obligations under a contract.” Chipman, ¶ 40 (citing

Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 746 N.E.2d 522, 530 (Mass. 2001); In re 

Activision Sec. Litigation, 621 F. Supp. 415, 432 (N.D. Cal. 1985)).

¶36 Considering sample leases from each apartment complex, the District Court 

determined that leases for apartments at Shiloh Glen and Mullan were substantially 

similar to leases for apartments at Wildflower and Creekside, so that class members who 

resided in those complexes would have the same claims as the named plaintiffs. The 

contractual relationship between Owners and Riverstone, and their use of common leases,

thus constituted the juridical link between Owners and the named plaintiffs, whether or 

not the named plaintiffs resided in a particular owner’s complex. Mullan contends that 

Tenants have not met the typicality requirement because prospective class members that 

resided in Mullan would have different claims or defenses requiring an individual factual

analysis for each complex, especially given that Mullan was not in operation until 2012. 

Despite this contention, Riverstone and Owners have not shown why the common class 

question—whether certain lease provisions violated Montana law—would not be 
21

answerable on a class-wide basis. The named parties share this common question with 

current and former residents of Shiloh Glen and Mullan, even if the named parties never 

resided in those complexes. Mullan further contends that “each owner had a separate 

relationship with Riverstone” warranting an individual factual analysis. However, the 

District Court determined that Owners all used similar leases through Riverstone, and 

that Riverstone served as a property manager for all four apartment complexes; none of 

the Appellants have rebutted these determinations. 

¶37 Moreover, in its July 30, 2014 order granting Tenants’ motion to amend their first 

amended complaint, the District Court allowed Tenants to add former residents of Mullan 

and Shiloh Glen as named plaintiffs. The court concluded that Riverstone and Owners 

would suffer no prejudice because the addition was not necessary to its ruling on class 

certification. We have observed that “class action certification orders ‘are not frozen 

once made,’” and that a district court has broad discretion to alter or amend such orders 

“based on the circumstances developing as the case unfolds.” Diaz v. State, 2013 MT 

219, ¶ 28, 371 Mont. 214, 308 P.3d 38 (quoting Amgen Inc. v. Conn. Ret. Plans & Trust 

Funds, ___ U.S. ___, ____, 133 S. Ct. 1184, 1202 n.9 (2013)). The addition of new class 

representatives ameliorated Mullan’s concerns. Tenants’ failure to include residents from 

all four complexes in their initial or first amended complaints does not defeat the 

propriety of class certification.

¶38 The District Court concluded that Owners’ use of the Riverstone leases constituted 

an event, practice, or course of conduct that the class representatives share with the class.
22

The District Court did not act unreasonably in making this determination; its findings of 

fact were not clearly erroneous, and its conclusions of law were correct. The District 

Court did not abuse its discretion in determining that Tenants satisfied Rule 23(a)(3)’s

typicality requirement.

C. Adequate representation

¶39 “Adequate representation requires that the named representatives’ attorney is 

qualified, competent, and able to conduct the litigation, and that the named 

representatives’ interests are not antagonistic to the class interests.” Sangwin, ¶ 27 (citing 

Chipman, ¶ 57). The parties do not dispute that Tenants’ attorneys are qualified to bring 

this action. Rather, Riverstone contends that the named parties do not adequately 

represent the interests of the class, claiming that the named parties do not have Security 

Deposit Act claims because Riverstone has not yet deducted any amount from their 

security deposits. As discussed earlier, Tenants seek a ruling that certain provisions of 

the Riverstone leases violated the Security Deposit Act and are thus unenforceable.

Because that remedy does not depend on a determination that a deduction from a security 

deposit has been made, Tenants’ interests in resolving this issue are not antagonistic to 

the class interests. Tenants also claim entitlement to statutory damages due to the 

Defendants’ “knowing inclusion” of prohibited lease provisions. Whether they are 

entitled to that remedy for their Security Deposit Act claims is an issue of law appropriate 

for resolution on a class-wide basis, even if the class representatives do not share 
23

identical provisions in their leases with all members of the class. The District Court did 

not abuse its discretion in determining that Tenants adequately can represent the class. 

¶40 3. Whether the District Court abused its discretion by certifying the class under 

M. R. Civ. P. 23(b)(3).

¶41 “Once the Rule 23(a) prerequisites are satisfied, the analysis shifts to Rule 23(b), 

which sets forth additional requirements depending on the type of class action sought.” 

Mattson, ¶ 17. Tenants sought class certification under M. R. Civ. P. 23(b)(3). 

Accordingly, Tenants were required to show that the class met Rule 23(b)(3)’s

predominance and superiority requirements—that “the questions of law or fact common 

to the class members predominate over any questions affecting only individual members, 

and that a class action is superior to other available methods for fairly and efficiently 

adjudicating the controversy.” M. R. Civ. P. 23(b)(3). Rule 23(b)(3) further states,

The matters pertinent to the[se] findings include: (A) the class members’ 

interests in individually controlling the prosecution or defense of separate 

actions; (B) the extent and nature of any litigation concerning the 

controversy already begun by or against class members; (C) the desirability 

or undesirability of concentrating the litigation of the claims in the 

particular forum; and (D) the likely difficulties in managing a class action.

M. R. Civ. P. 23(b)(3).

¶42 We have recognized that “class determination is appropriate when the class

members’ claims ‘depend on a common contention that is capable of classwide 

resolution.’” Sangwin, ¶ 37 (quoting Chipman, ¶ 48). In Sangwin, we held that the 

question the district court certified—whether the State breached health insurance 

contracts with plaintiffs by denying insurance claims—did not meet Rule 23(b)(3)’s 
24

predominance requirement. In reaching that decision, we noted that the plaintiffs 

conceded that determining whether an individual’s claims were properly denied

necessitated an individual assessment of each claim and its underlying documentation

before the plaintiffs could establish liability. Sangwin, ¶ 36. Because common issues did 

not predominate over the individual circumstances giving rise to denial of individual 

insurance claims, the question certified was “incapable of being resolved on a classwide 

basis.” Sangwin, ¶ 37. 

¶43 In this case, the District Court concluded that Tenants met the Rule 23(b)(3) 

predominance and superiority requirements. The court noted that the circumstances in 

Sangwin were different from the circumstances in this case because, here, the question is 

whether the lease agreements contained prohibited provisions, not whether the allegedly 

prohibited provisions were wrongfully enforced. The District Court thoroughly 

considered each pertinent issue listed in Rule 23(b)(3), finding that: (1) because each 

individual plaintiff’s claim was small, it was “reasonable to expect that the individual 

plaintiffs would want to pool their resources in pursuing a claim;” (2) there was no 

pending or prior litigation on this issue by or against class members; (3) it was desirable

to concentrate the litigation of the claims in one forum “to conserve judicial resources 

and avoid disparate results and potentially over 800 different lawsuits based on the same 

or similar leases and same legal theories;” and (4) it likely would not be difficult to 

manage the class action.
25

¶44 Riverstone and Owners assert that the District Court abused its discretion by 

certifying a class that does not meet the requirements of predominance or superiority. 

According to Riverstone, individual questions regarding damages and individual 

questions regarding separate defenses available to each defendant predominate over any 

common questions. Riverstone bases much of its argument that Tenants cannot meet the 

predominance requirement on its contention that Tenants’ Security Deposit Act claims 

require individual analysis. We already have concluded that the Security Deposit Act

claims do not require individual factual analysis. We apply the same reasoning to the 

predominance requirement. Tenants allege that the inclusion of certain provisions in the 

Riverstone leases itself violated the Security Deposit Act; they do not allege that 

Riverstone has enforced those provisions in violation of the Security Deposit Act. 

Therefore, Tenants’ inclusion of prospective class members with Security Deposit Act

claims does not preclude Tenants from meeting the predominance requirement. 

¶45 Riverstone also contends that Tenants cannot meet the predominance requirement 

for Tenants’ Landlord-Tenant Act claims because the Landlord-Tenant Act gives courts 

discretion to award damages on a case-by-case basis. See § 70-24-403(2), MCA (“If a 

party purposefully uses a rental agreement containing provisions known by the party to 

be prohibited, the other party may recover, in addition to . . . actual damages, an amount 

up to 3 months’ periodic rent.” (emphasis added)). Individual damages calculations 

typically do not defeat a finding that common issues predominate. 2 William 

B. Rubenstein, Alba Conte & Herbert Newberg, Newberg on Class Actions § 4:54, 
26

206-09 (5th ed. 2011); see also Sangwin, ¶ 37; McDonald v. Washington, 261 Mont. 392, 

403-04, 862 P.2d 1150, 1157 (1993) (holding that, although damages calculations 

required each member of a class individually to prove a quantity of gasoline purchased at 

supracompetitive prices and the prices paid, this did not preclude class determination 

because the common issues that determined liability predominated). 

¶46 In Mattson, we determined that a class met the predominance requirement even 

when class members’ individual damages calculations varied significantly due to the 

widely varying characteristics of the class members’ damaged shoreline properties. 

Mattson, ¶¶ 40-41. We noted, “The only individual questions in this lawsuit relate to the 

amount of damages,” which “does not negate class certification as to liability.” Mattson,

¶ 41 (emphasis in original). As previously stated, Tenants allege that each class 

member’s claim requires one common question to be answered: whether Montana law 

prohibited certain provisions in the Riverstone leases. This is a common question of law 

that can be decided by a district court at one time, avoiding hundreds of individual trials. 

Tenants demonstrated the ease of determining whether any individual class member’s 

lease contains a prohibited provision through their spreadsheet consolidating the 

approximately 800 leases and identifying which of the allegedly prohibited provisions 

each lease contained. Tenants’ claims for damages pursuant to a statutory formula—up 

to three months’ rent—present a stronger case for predominance than did the Mattson

class members’ claims because the circumstances in Mattson required an in-depth 
27

individual analysis of the wide-ranging characteristics and value of each damaged 

shoreline property. 

¶47 Mullan asserts that Tenants have not met predominance because, in order to be 

liable under the Landlord-Tenant Act, a party must “purposefully” use a rental agreement 

with prohibited provisions. Section 70-24-403(2), MCA. Mullan contends that the 

District Court did not consider the fact that each of the Owners may have an individual 

defense. Specifically, Mullan asserts that its liability hinges on individual factual 

analyses to determine whether a purported class member was an actual tenant of Mullan 

and whether his or her tenancy coincided with a period in which the lease agreement 

contained prohibited provisions. According to Mullan, these individual issues “clearly 

predominate” over the common question whether the Riverstone leases contained 

prohibited provisions. We disagree. As discussed above, Tenants’ spreadsheet 

demonstrates a simple method of ascertaining the answers to both of these questions. 

Extensive individual inquiries analyzing time periods during which Tenants resided in a 

particular apartment complex and whether a particular lease contained a particular 

provision will not be necessary. Accordingly, the District Court’s findings of fact were 

not clearly erroneous, its legal conclusions were correct, and it did not abuse its discretion 

in determining that a common question predominates over the individual questions in this 

case.

¶48 Riverstone and Owners contend that class adjudication is inferior to other 

available methods for fairly and efficiently adjudicating the controversy. The District 
28

Court rejected these arguments, concluding that the simplest way to determine whether 

provisions in the Riverstone leases violated Montana law would be to consider the seven 

provisions in one single trial, rather than holding over 800 individual trials. The District 

Court did not abuse its discretion in making this determination. Individual tenants likely 

could not afford to bring separate claims for what is an alleged illegality in a standard 

lease form widely used by Riverstone. By contrast, as the District Court noted, a class 

action would save the resources of the courts and parties by permitting a common 

question of whether Riverstone leases contained prohibited provisions to be litigated in 

an economical fashion.

CONCLUSION

¶49 We affirm the District Court’s decision and order.

/S/ BETH BAKER

We concur: 

/S/ JAMES JEREMIAH SHEA

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT

/S/ JIM RICE