Boyne USA, Inc. (Boyne), has filed its application for a
writ of supervisory control in a civil action currently
pending in the District Court of Madison County, Cause No.
7457, entitled The Association of Unit Owners of the Deer
Lodge Condominium, Inc., et al., v. Big Sky of Montana Real-
ty, Inc., et al. The action relates to the construction of
the Deer Lodge Condominium located at Big Sky, Montana. We
grant the application for supervisory control as to certifi-
cation of the underlying suit as a class action.
The issue is whether supervisory control is both neces-
sary and appropriate.
While we do not have an official record before us, the
facts as contained in the various briefs and memoranda are
not in dispute. Boyne is a Michigan corporation which owns
and operates Big Sky Resort at Big Sky, Montana. Boyne is
one of the defendants in Cause No. 7457 brought by the The
Association of Unit Owners of the Deer Lodge Condominium,
Inc. (Association). The plaintiffs in that cause are the
Association and the Board of Directors of the Association.
The case arose out of the construction and reconstruction of
two buildings called Deer Lodge Condominium, located at Big
Sky Resort. The buildings were completed in 1975 by Inland
Construction Company. Defendant Lloyd W. Darg and Associates
was construction engineer, and defendant Douglas A. Moe,
Architects, Inc., was the architect. Big Sky of Montana,
Inc. (Big Sky) sold units in the buildings during 1974 and
1975. Big Sky itself was owned by Chrysler Realty Corpora-
tion (Chrysler) and a number of other shareholders. In May
1976, the shareholders of Big Sky formed Big Sky of Montana
Realty, Inc. (Realty), as a subsidiary of Big Sky. In June
1976, the shareholders sold the resort operations to Boyne.
Prior to closing that sale, Big Sky transferred the operating
assets, including various real estate condominiums and devel-
opments, to Realty, whose shares were then distributed to the
shareholders who in turn transferred the shares of Big Sky to
Boyne. After the sale, Realty owned the unsold interest in
the Deer Lodge Condominium and was the only entity that sold
inventory after that date.
In the summer of 1976, significant structural defects
were discovered in the buildings and Big Sky retained defen-
dants Morrison-Maierle, Inc., and Martell Construction to
repair them. In December 1976, after the repairs had been
completed, Boyne purchased 34 out of the 126 units in Deer
Lodge Condominium. In July 1978, Big Sky merged into Royne
and the surviving corporation was Boyne. The present lawsuit
was initiated in 1984. We are advised by the Association
that only Big Sky-Boyne, Chrysler, Realty, and
Morrison-Maierle, Inc., remain as defendants.
The amended complaint is very long. In pertinent part
it alleges that on or about April 1, 1976, Realty and Big Sky
informed the Association there were significant structural
and safety deficiencies in the Deer Lodge Condominium and
thereafter attempted to make the necessary corrections and
repairs. The complaint contains extensive general allega-
tions of defects in framing, supports, foundations, and other
essential elements of construction. The complaint alleges
that the engineer and architect for the Association deter-
mined that the condominium buildings were unsafe for habita-
tion. The buildings have been vacated and the Association
has been advised that the cost of making the buildings habit-
able would be $6,318,000 and alternatively that the reduction
in value is $10,000,000. They allege that the value of the
loss of use of the buildings was $3,500,000; the cost of
storage of various furnishings and equipment was $150,000;
and that emergency repairs of $50,000 were required. The
complaint then further alleges the right of recovery under
various theories. The theories include express warranty,
implied warranty, breach of contract, negligence, strict
liability, fraud and violation of the breach of the implied
covenant of good faith and fair dealing, deceptive business
practices, promissory estoppel, negligent supervision, breach
of the implied warranty of habitability, and a separate claim
against Morrision-Maierle, Inc. The damages sought are the
above described amounts together with punitive damages in the
amount of $25,000,000 and treble damages under 5 30-14-133,
MCA, together with reasonable attorney fees.
Plaintiffs did not take any action to certify the claim
as a class action suit under Rule 23, M.R.Civ.P. The Associ-
ation, which owns one of the 126 units, asserts the claims on
its own behalf and on the behalf of the owners of the remain-
ing 125 units. The Association contends that it has the
right to present the claims on behalf of the individual unit
owners, including Boyne. Boyne moved to segregate its claim
and align itself as a party plaintiff so it could prosecute
its claim in its own name. Boyne's motion was denied. All
of the defendants moved for summary judgment based in part
upon statutes of limitation. The motions of defendants Lloyd
W. Darg and Associates and Douglas A. Moe, Architects, Inc.,
were granted. The District Court ruled that the plaintiffs
had knowledge of the claims no later than September 1976.
Boyne sought to be dismissed on the same basis but that
motion was denied. Chrysler moved to dismiss for failure to
join necessary parties and lack of a real party in interest
and that motion was denied.
In its petition for supervisory control, Boyne requests
that its motion to segregate and align be granted. It also
asks that its motion for summary judgment be granted based
upon non-disparate application of the statute of limitations.