NO. 95-013 

IN THE SUPREME COURT OF THE STATE OF MONTANa 

1995 

FERGUS FARMING PARTNERSHIP, 

Plaintiff and Appellant, 

FIRST CONTINENTAL CORPORATION, 

a Montana corporation, et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles F. Moses; Moses Law Firm, 

Billings, Montana 

For Respondents: 

Norman L. Newhall; Linnell, Newhall & Martin, 

Great Falls, Montana 

Filed: 

Submitted on Briefs: June 15, 1995 

Decided: July 6, 1995 
Justice Karla M. Gray delivered the Opinion of the Court 

Fergus Farming Partnership appeals from the judgment entered 

on findings of fact and conclusions of law by the Tenth Judicial 

District Court, Fergus County, and from the court's order denying 

its post-judgment motions. We affirm. 

We restate the issues on appeal as follows: 

1. Are certain of the District Court's findings of fact 

clearly erroneous? 

2. Did the District Court err in concluding that First 

Continental Corporation is the real party in interest? 

3. Did the District Court err in concluding that First 

Continental Corporation is entitled to recover attorney fees? 

FACTUAL AND PROCEDURAL BACKGROUND 

This case centers on an agreement in the nature of a contract 

for deed (Contract) and a lease (Lease). The convoluted facts are 

set forth in an abbreviated and simplified manner to set the stage 

for our analysis of the relatively narrow issues raised in this 

appeal. 

The Contract was entered into in 1979 between Fox Grain & 

Cattle Company (Fox Grain) as seller, and First Continental 

Corporation (FCC) as buyer, for the sale and purchase of real 

property (the property) located in Fergus County, Montana. The 

Contract provided that, in the event of assignment by FCC, FCC 

would remain liable for performance. 

In 1987, FCC assigned all of its right, title and interest in 
the Contract to numerous farming partnerships formed by John Parker 

and Marvin Brown, including Fergus Farming Partnership (FFP). The 

assignee farming partnerships, including FFP, assigned their 

interests in the Contract to Ron Miller (Miller). Miller 

subsequently assigned his interest in the Contract to Agri-West, 

Inc . , now known as WEZCO (WEZCO) . 

Shortly after FCC assigned its interest in the Contract, it 

executed a lease (Lease) of the real property, subject to the 

Contract, to FFP. FFP took possession of the property as 1-essee 

and hired Top Gun, Inc. (Top Gun) to perform custom farming 

services. FCC subsequently assigned its interest in the Lease to 

Miller. 

FCC did not make the annual payment due under the Contract on 

May 15, 1988. Fox Grain sent a notice of default to FCC, the 

assignee farming partnerships and Miller, the partnerships' 

assignee. Pursuant to the notice of default, Fox Grain evicted FFP 

and took possession of the property in July of 1988. 

Fox Grain filed an action against FCC, FFP and the other 

farming partnerships, John Parker and Ron Miller. It sought to 

enjoin the defendants from selling or encumbering the growing crops 

on the property and to clear title to the property by an order 

declaring it to be the owner by reason of FCC's breach of the 

Contract. The various defendants filed numerous counterclaims and 

cross-claims. FFP cross-claimed against FCC and Miller, alleging 

breach of the Lease's covenant of peaceful possession. FCC denied 

the claims against it by FFP and, as Top Gun's assignee, alleged a 
counter cross-claim against FFP for the amounts due on Top Gun's 

custom farming service contract. 

All claims involving Fox Grain, the original plaintiff in what 

had become a complex series of claims among and between the 

parties, settled prior to trial. The cross-claims of John Parker 

and FFP against FCC, Miller and WE2CO for breach of the Lease, and 

FCC's counter cross-claim against FFP regarding the Top Gun 

contract, were tried to the court. 

The District Court entered extensive findings of fact, 

conclusions of law and an order in favor of FCC on FFP's claims 

against it and also on its counter cross-claim against FFP. The 

court concluded that the Lease terminated by its terms at the end 

of 1988 and was not enforceable thereafter. It also concluded 

that, although FCC breached the Lease's covenant of peaceful 

possession when Fox Grain repossessed the property in July of 1988, 

the breach did not damage FFP because the repossession saved FFP 

from losses which exceeded damages recoverable against FCC for the 

breach. The court awarded FCC $81,834.43 on its claim against FFP 

on the Top Gun account, plus interest thereon, and attorney fees. 

Judgment subsequently was entered for FCC against FFP in the 

total amount of $ 153,632.10. FFP's post- judgment motions to alter 

or amend, for a new trial, and for amendment of findings of fact 

and conclusions of law were denied. FFP appeals. 

STANDARDS OF REVIEW 

Our standard in reviewing a district court's findings of fact 

is whether those findings are clearly erroneous. Rule 52(a), 
M.R.Civ.P. Findings are clearly erroneous if they are not 

supported by substantial credible evidence; in the event findings 

are supported by such evidence, they may still be clearly erroneous 

if the district court misapprehended the effect of the evidence or 

if this Court is left with the definite and firm conviction that a 

mistake has been committed. Y A Bar Livestock Co. v. Harkness 

(Mont. 1994), 887 P.2d 1211, 1213, 51 St.Rep. 1517, 1519 (citation 

omitted). 

We review a district court's conclusions of law to determine 

whether they are correct. Steiner v. Dep't of Highways (Mont. 

1994), 887 P.2d 1228, 1232, 51 St.Rep. 1496, 1499 (citation 

omitted). 

1. Are certain of the District Court's findings of fact 

clearly erroneous? 

FFP challenges certain of the District Court's findings of 

fact and, assuming that they are erroneous, presents a plethora of 

law which it asserts would apply if the facts were found in FFP's 

favor. Because we conclude that the challenged findings of fact 

are not clearly erroneous, we do not address the legal arguments 

associated with the challenged findings. 

a. Is the District Court's Finding of Fact No. 20 

supported by substantial credible evidence? 

Finding of Fact No. 20 states: 

The lease of the Property from FCC to FFP provided, among 

other matters, that the Lease is "subject to the property 

qualifying for the ASCS government program." The parties 

to the Lease knew, understood and intended that the term 

"qualifying for the ASCS government program" meant that 

the partnership must qualify for multi-person 

determination under the ASCS government program. 
FFP contends that the court's interpretation of the quoted Lease 

language is erroneous. It asserts that the Lease language is clear 

and unambiguous in its meaning that the parties intended merely 

that the property itself must qualify for farm subsidy programs, 

rather than that FFP, the farming partnership, must qualify for the 

multi-person determination. 

The record establishes the existence of more than one "ASCS 

government program," thus rendering the language of the Lease 

ambiguous here. As a result, the District Court properly 

considered the parties' intent with regard to the quoted Lease 

language and entered the challenged Finding of Fact. 

The record is replete with evidence supporting the court's 

finding regarding the parties' intent. That evidence includes the 

testimony of Marvin Brown--who, with John Parker, formed the 

farming partnerships--that neither the farms nor the leases were 

economically viable unless the farming partnerships qualified for 

multi-person participation in the farm program and that such 

qualification was a condition to the validity of the leases. 

Parker also testified that achieving multi-person determination was 

necessary for the farms to be viable. We conclude that substantial 

credible evidence supports the District Court's Finding of Fact No. 

b. Is the District Court's Finding of Fact No. 32 

supported by substantial credible evidence? 

The Lease between FCC and FFP provided that FFP would notify 

FCC by February 1, 1988, if it was unable to obtain crop financing 

for the 1989 crop; in that eventuality, "LESSOR and LESSEE agree to 

6 
cancel" the Lease in 1988, with FFP remaining liable for the land 

rent on October 1, 1988. In conjunction with these Lease 

provisions, the District Court's Finding of Fact No. 32 states that 

"As clearly indicated by the foregoing, FFP did not obtain crop 

financing for the 1989 crop by February 1, 1988." This Finding is 

the basis of the court's conclusion that the Lease terminated by 

its terms at the end of 1988. 

FFP contends that the Finding is not supported by substantial 

evidence. Its argument, however, relates to a different question; 

namely, whether FFP actually needed the crop financing required by 

the Lease. That question is irrelevant in determining whether FFP 

complied with the Lease provision that it have 1989 crop financing 

in place by February 1, 1988. 

The record contains substantial evidence that financing for 

the 1989 crop was not timely obtained. Indeed, an April, 1988, 

letter from John Parker reflects that FFP was still attempting to 

obtain financing for the expenses necessary to harvest the 1988 

crop. We conclude that substantial credible evidence supports the 

District Court's Finding of Fact No. 32. 

c. Are the District Court's Findings of Fact No. 49 

through No. 51 supported by substantial credible 

evidence? 

The challenged Findings determine that FFP would have 

experienced a net loss in 1988 of $140,743.04 (income minus costs 

and expenses) if Fox Grain had not repossessed the property due to 

FCC's default under the Contract and that its loss as of the time 

of repossession was $33,607.01; therefore, the repossession--rather 
than causing FFP damages--actually saved it from greater losses. 

These Findings relate to whether FFP proved its entitlement to 

damages for FCC's breach of the Lease when 5 27-1-303, MCA, 

generally limits recovery for the breach of an obligation to the 

amount the nonbreaching party could have gained by full performance 

of the obligation by both sides. 

k'FP advances evidence of record pursuant to which the court 

could have determined that certain of FFP's expenses were less than 

those found, and aggregated, by the court'to determine the amount 

of losses FFP would have experienced absent Fox Grain's 

repossession. It also argues that evidence supported its claim 

that FFP would have shown a profit for 1988. 

These arguments ignore our standard of review. We do not 

examine the record to determine whether it supports findings 

different from, or contrary to, those made by the court; such an 

approach would amount to substituting our judgment for that of the 

factfinder with regard to the credibility of witnesses and the 

weight to be given to the evidence. Those assessments must remain 

firmly lodged in the province of the trier of fact. See Tonack v. 

Montana Bank of Billings (1993), 258 Mont. 247, 854 P.2d 326. 

Evidence of record estabLishes that, even if FFP had received 

the value of the 1988 crops, its costs and expenses for 1988--even 

excluding the Lease paymenE due October 1--would have exceeded its 

1988 income. Moreover, additional expenses would have been 

incurred without additional income prior to the end of 1988, 

including payment of the Top Gun account and the $104,500 October 
Lease payment. We conclude that the District Court's Findings of 

Fact No. 49 through No. 51 are supported by substantial credible 

evidence. 

d. Are the District Court's Findings of Fact No. 45 and 

No. 46 supported by substantial credible evidence? 

Findings of Fact No. 45 and No. 46 relate to FCC's counter 

cross-claim against FFP under Top Gun's assignment of its claim for 

the amount due on its custom farming service account with FFP. The 

District Court found that, after deducting certain credits and 

payments on the account, FFP owed Top Gun $81,834.43, and that Top 

Gun's claim had been assigned to FCC. 

FFP does not dispute the assignment of Top Gun's claim to FCC. 

It contends, however, that Top Gun's billing statements for 1987 

and 1988, supported by underlying documentation, establish that the 

total amount due was $35,291.82, and that no evidence supports the 

court's finding of fact in the higher amount. We disagree. 

FCC introduced evidence supporting different amounts with 

reference to the Top Gun account than those contained in FFP's 

evidence. FCC's evidence indicated that FFP owed Top Gun 

$81,834.43. 

The District Court, faced with conflicting evidence, accepted 

that offered by FCC. It was within the court's province as the 

trier of fact to do so. See Tonack, 854 P.2d at 329. We conclude 

that the District Court's Findings of Fact No. 45 and No. 46 are 

supported by substantial credible evidence. 

Having concluded that all of the Findings of Fact challenged 

by FFP are supported by substantial credible evidence, we further 

9 
conclude that the District Court did not misapprehend the effect of 

the evidence; nor are we left with a definite and firm conviction 

that a mistake has been committed. Therefore, we hold that the 

District Court's Findings of Fact are not clearly erroneous. 

2. Did the District Court err in concluding that FCC, 

rather than Ron Miller or WE2C0, is the real party in 

interest? 

This issue relates to FFP's effort to recover damages for 

breach of the Lease. Our conclusion that the District Court's 

Findings of Fact--which supported its conclusions and judgment in 

FCC's favor--are not clearly erroneous precludes any entitlement by 

FFP to damages for the breach. Thus, we need not address this 

issue. 

3. Did the District Court err in concluding that FCC is 

entitled to recover its attorney fees? 

FFP agrees that the Lease provides for the recovery of 

attorney fees; nor does it dispute that 5 28-3-704, MCA, provides 

for reciprocal attorney fees such that the prevailing party in an 

action on the Lease may recover attorney fees. FFP relies on the 

District Court's conclusion that FCC breached the lease in arguing 

that FCC cannot recover attorney fees under either the Lease or the 

statute. FFP also argues that its agreement with Top Gun, upon 

which FCC recovered damages against it, does not provide for 

attorney fees and, therefore, no attorney fees could be awarded to 

FCC for legal work associated with that portion of the case. 

FFP's arguments regarding FCC's entitlement to attorney fees 

under either the Lease or the statute ignore the fact that, while 
FCC breached the Lease, it succeeded in defending against FFP'S 

breach claim because its breach did not cause FFP any recoverable 

damages. Thus, FCC was entitled to attorney fees pursuant to the 

Lease in defending against that claim. 

With regard to attorney fees relating to FCC's claim against 

FFP on the Top Gun account, it is true that the agreement between 

Top Gun and FFP did not provide for attorney fees and, absent 

contractual or statutory authority, no such fees could be 

recovered. It is also clear, via affidavit on the fee issue, that 

FCC made a good faith attempt to include in its attorney fee 

request only those fees which it incurred in defense of FFP's 

claim. Of the $34,223.45 in total attorney fees incurred, FCC 

requested an award of $28,223.70, its counsel's estimate of fees 

related to defending against FFP's claim. Moreover, deposition 

testimony in support of the amount of fees requested by FCC 

indicated that the time expenditure in proving the Top Gun account 

"would have been very nominal compared to the balance of the 

defense of the case . . . " and, indeed, that the preparation of 

the necessary documentation and the admission of the related 

evidence at trial would have required "very little time." The 

court awarded attorney fees in the amount of $23,129.25, a 

reduction from the requested amount of approximately $5,000. 

We conclude that the District Court did not err in determining 

that FCC was entitled to attorney fees for successfully defending 

against FFP's claim. 

AFFIRMED. 
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 

Justice's /