Filed: Apr. 24, 2017
Latest Update: Apr. 24, 2017
Summary: FINAL PRETRIAL ORDER SAM E. HADDON , District Judge . Pursuant to Fed. Civ. P. 16 and L.R. 16.4, the parties hereby submit this Final Pretrial Order: I. Nature of the Action Plaintiff Flagstone Development ("Flagstone"), through its principal Lawrence "Larry" Heath ("Heath") (collectively "Flagstone/Heath" or "buyer") entered into a Buy/Sell Agreement with Defendant Rocky Mountain Timberlands, LLC, and its principals Wayne and Justin Joyner (collectively "RMT/Joyner" or "seller") in May o
Summary: FINAL PRETRIAL ORDER SAM E. HADDON , District Judge . Pursuant to Fed. Civ. P. 16 and L.R. 16.4, the parties hereby submit this Final Pretrial Order: I. Nature of the Action Plaintiff Flagstone Development ("Flagstone"), through its principal Lawrence "Larry" Heath ("Heath") (collectively "Flagstone/Heath" or "buyer") entered into a Buy/Sell Agreement with Defendant Rocky Mountain Timberlands, LLC, and its principals Wayne and Justin Joyner (collectively "RMT/Joyner" or "seller") in May of..
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FINAL PRETRIAL ORDER
SAM E. HADDON, District Judge.
Pursuant to Fed. Civ. P. 16 and L.R. 16.4, the parties hereby submit this Final Pretrial Order:
I. Nature of the Action
Plaintiff Flagstone Development ("Flagstone"), through its principal Lawrence "Larry" Heath ("Heath") (collectively "Flagstone/Heath" or "buyer") entered into a Buy/Sell Agreement with Defendant Rocky Mountain Timberlands, LLC, and its principals Wayne and Justin Joyner (collectively "RMT/Joyner" or "seller") in May of 2007 to purchase approximately 13,000 acres of real property in Musselshell County. The Seller was contractually obligated to assist Flagstone in subdividing the property so that it could be developed. Flagstone claims to be damaged by RMT's breach of the contract during a time that they were supposed to be acting as joint developers of the subject property. RMT previously asserted that its conduct was justified because the contract was abandoned. The jury in Phase One of this trial rejected that argument. This trial is to determine whether RMT breached the Buy/Sell Agreement.
II. Jurisdiction and Venue.
The basis for jurisdiction and venue in this District Court is diversity jurisdiction under Title 28, U.S.C. § 1332, because the amount in controversy exceeded $75,000 and Plaintiffs and Defendants are citizens of different states. Venue is proper in the Billings Division as the land in question is located in Musselshell County.
III. Jury or Non Jury
Both parties have demanded a jury trial.
IV. Agreed Facts
1. Appellant Flagstone Development ("Flagstone"), through its principal Lawrence "Larry" Heath ("Heath") (collectively "Flagstone/Heath" or "buyer") entered into a Buy/Sell Agreement with defendant Rocky Mountain Timberlands, LLC through its principals Wayne and Justin Joyner (collectively "RMT/Joyner" or "seller") in May of 2007 to purchase approximately 13,000 acres of real property in Musselshell County (the "Transaction").
2. The Parties agree that Exhibit 1 is the Buy/Sell Agreement.
3. American Title & Escrow ("AT&E") was the escrow company selected to close the Transaction and to hold the development funds that Flagstone/Heath was contractually obligated to contribute the co-development.
4. Before the Transaction closed, RMT/Joyner caused the property to be sold to a new buyer Nicolas Powers ("Powers").
V. Elements of Liability
The Court has determined that the only issue to be litigated in this phase of the trial is RMT's liability for breach of contract. The elements of a claim for breach of contract are as follows:
Count 1: Breach of Contract
1) Existence of a contract (Exhibit 1)
2) Breach of a material term of the contract
3) Damages
The existence of a contract is stipulated. This phase of the trial is to determine whether RMT breached a material term of the contract. Plaintiff contends at this phase of the trial that each and all of the actions below constitute breach of the Buy/Sell Agreement:
— Breach of the seller's obligation to put the subject property through subdivision process using the regulations of the State of Montana and Musselshell County in 20+ acre parcels.
— Secretly working to undermine the "mutually determined" subdivision layout as required by the terms of Exhibit 1.
— Breach of the obligation to construct roads by the Seller's in-house contractor in an amount not to exceed $35,000.00 per mile.
— Failure to provide a 10 day notice to cure under the terms of the contract in lieu of the Notice of Termination (Exhibit 2).
— Interfering with Heath's contractual obligation to obtain financing.
— Secretly selling the Property to Powers while under contract on the same land with Flagstone. Evidence of such sale and concealment included the following
• Instructing American Title's Jen Smith to conceal from Flagstone the sale of 30 Mile Ranch to third party Powers, and agreeing to indemnify American Title from damages therefrom;
• Justin Joyner and Wayne Marchwick's decision to "give Mr. Heath the impression that all is well and keep him satisfied with limited contact."
• Misleading Flagstone into believing that RMT was moving forward with the subdivision application;
• Sending a false "Termination Notice" purporting to terminate the Buy/Sell for the failure to pay subdivision filing fees when no such plat application had ever been submitted;
• Failing to obtain "Release of the Heath Contract" as required by the Powers Buy Sell Agreement.
VI. Relief Sought
1. A finding of breach of contract by the jury.
VII. Legal Issues
Plaintiff objected to the bifurcation of liability and damages, dismissal of Wayne and Justin Joyner and dismissal of tort claims and reserves all rights associated with those claims as set forth in the Second Amended Complaint and prior briefing.
VIII. Dismissals
For purposes of the trial in this matter, the following parties have been dismissed:
1. Larry Heath;
2. Wayne Joyner;
3. Justin Joyner;
4. Wayne Marchwick;
5. Jennifer Smith;
6. American Title and Escrow, a Montana corporation;
7. First American Title Company, a California corporation;
8. Developer Finance Corporation, a Massachusetts corporation;
9. Nicolas Powers, III, aka Nicholas D. Powers;
10. Jake Korell; Landmark of Billings, Inc., a Montana corporation;
11. Jon Ussin; U Bar S Real Estate, a Montana corporation.
IX. Use of Discovery Documents (Including Testimony from Phase 1)
Except as set forth in the excerpts of deposition and on the exhibit list, the parties do not anticipate using any further discovery documents except for impeachment. Plaintiff reserves the right to use the trial testimony of Wayne Joyner and Jen Smith and the deposition testimony of Justin Joyner and Jen Smith if they cannot be produced for trial.
In exchange for a mutual promise to produce Wayne Joyner and Larry Heath for all phases of trial, the parties shall use their respective depositions for impeachment and not in their cases in chief. Should the parties fail to appear, the opposing party may introduce evidence through depositions or prior trial testimony of the non-appearing party.
X. Estimate of Trial Time
Plaintiff bears the burden of proof as to liability for breach of contract.
1. Plaintiff estimates 2 trial days for its case-in-chief.
2. Defendant estimates 1 trial day for their case-in-chief.
XI. Supersession.
This Order supersedes the pleadings in this matter.
PLAINTIFF'S EXHIBITS-WILL
OFFER
Case Name: Flagstone v. Joyner, et al.
Case Number: CV-08-100-BLG-RFC
Date
Exhibit Def. Date Date Date Refused/
# Description Bates# Objection Offered Reserved Admitted Withdrawn
1 Flagstone/RMT AC&B
Contract dated 5196-5209
5/25/07
2 Notice of Termination RMT
of Contract for 2981-2982
Default dated 4/3/08
3 Email from Joyner to RMT
Heath dated 8/24/7 0071
4 Email from J.Joyner to RMT
Heath dated 8/26/07 0078
5 Email from Heath to
J.Joyner dated RMT
8/26/07 0082
6 Email from Joyner to RMT
Heath dated 8/27/07 0279
7 Email from Heath to RMT
Joyner dated 9/4/07 0379
8 Email from Heath to RMT
Joyner dated 9/21/07 0555
9 Email from Heath to RMT
Joyner dated 10/2/07 0596
10 Email from Joyner to RMT
Heath dated 10/8/07 0871
12 Email from Joyner to RMT
King dated 4/7/08 0944
13 Email from King to RMT
Joyner dated 3/25/8 0986
14 Email from Marchwick
to J. Joyner dated RMT
3/8/08 0994
16 Email from Marchwick
to Griffith, et al dated RMT
3/12/08 0998
18 Email from Marchwick
to Griffith, et al. dated RMT
1/31/08 1057
19 Email from J. Joyner
to King, et al dated RMT
1/15/08 1075
20 Email from Marchwick
to Joyners dated RMT
1/15/08 1082
21 Email from W. Joyner RMT
to J. Joyner, et al. 1092
dated 1/14/08
23 Email from W. Joyner
to Griffith et al dated RMT
12/11/07 1112
24 Email from W. Joyner
to Griffith, et al. dated RMT
12/6/07 1117
25 Email from Marchwick
to Joyner, et al dated RMT
12/3/07 1130
26 Email from Cossitt to
W. Joyner, et al dated RMT
11/28/07 1139
27 Email from W. Joyner
to Cossitt, et al. dated RMT
11/27/07 1140
28 Email from Joyner to RMT
King dated 5/21/07 1345
29 Email from Joyner to
Thurston dated RMT
1/15/08 1085
30 Email from Smith to RMT
Joyner dated 3/20/08 1937
31 Email from Joyner to
Tollefson dated RMT
10/15/07 2245
32 Email from Joyner to RMT
Berry dated 10/23/07 2248
33 Email from Joyner to
Marchwick dated RMT
10/24/07 2251
34 Email from Joyner to RMT
King dated 11/30/07 2295
35 Email from Joyner to RMT
King dated 11/27 /07 2297
40 Email from J. Joyner
to Spray dated RMT
1/15/08 2481
42 Email from J. Joyner
to O'Neil dated RMT
1/8/08 2492
43 Email from J. Joyner
to Griffith, et al dated RMT
12/11/08 3347
44 Letter from
Marchwick to Mang RMT
dated 12/19/07 3678
45 Email from J. Joyner
to W. Joyner dated RMT
2/9/09 4986
46 Email from J. Joyner RMT
to King dated 5104
11/10/08
47 Email from W. Joyner
to Heath dated AC&B
9/20/07 1780
48 Email String from
W.Joyner to Heath AC&B
dated 9/20/07 1825
49 Email from W. Joyner
to Heath dated AG&B
9/20/07 1828
50 Email from Joyner to AC&B
Heath dated 9/22/07 1923
51 Email from W. Joyner
to Heath dated AC&B
9/23/07 1925
52 Email from Joyner to AC&B
Heath dated 9/23/07 1938
53 Email from Joyner to AC&B
Heath dated 10/01/07 2077
54 Email from Joyner to AC&B
Heath dated 10/01/07 2079
55 Email from Heath to
Joyner dated AC&B
10/01/07 2081
56 Email from Joyner to AC&B
Heath dated 10/3/07 2124
57 Email from Joyner to AC&B
Heath dated 10/08/07 2230
58 Email from Heath to AC&B
King dated 12/11/07 3567
RMT
60 Powers Buy/Sell 1929-1934
(Executed)
64 Email from Heath to
Tollefson dated AC&B
4/2/08 4683
65 Email from Marchwick AC&B
to Heath dated 4/7/08 4740
66 Email from Marchwick AC&B
to Heath dated 4/8/08 4794
69 Email from J. Joyner
to King et al dated RMT
3/24/08 1898
70 Cash Flow Model 30 0024-0027 Foundation
Mile Ranch
72 Email from Heath to AC&B
Smith dated 12/14/07 3608
AC&B
73 Email from Joyner to 8764-8765
Smith dated 2/12/08
74 Email from Smith to AC&B
Joyner dated 3/31/08 8854
AC&B
75 Powers Buy Sell 9040-9314
Agreement
76 Indemnity Agreement AC&B
9313-9314
77 Email String from Jen AC&B
Smith dated 4/4/08 12954-12961
81 Email from Smith to AC&B
Karell dated 4/3/08 8549
83 Email from Marchwick AC&B
to Heath dated 1/9/08 3762
84 Email from Joyner to AC&B Objection
Heath dated 9/2007 1807 801
85 Email from Heath to AC&B
Joyner dated 2/9/08 4077
88 CAD Maps and Boards 3131A
31350
3038A
3053A
3059A
90 Email from Darwin to AC&B
Puccio dated 1/9/08 3761
92 Email from King to
Heath dated AC&B Objection
92 12/11/2007 3566 801
101 Email from Heath to AC&B Objection
Joyner dated 8/26/07 898 801
102 Email from Tollefson AC&B Objection
to Heath dated 9/1/07 1086 801
106 Email from Heath to
Joyner dated 9/8/07 2331A
110 Emails beginning
January 21, 2008
111 Email From Wayne
Joyner to Jeff King RMT
dated October 3, 2007 2242 No objection
114 Email from Wayne
Joyner to Jeff King RMT
dated June 25, 2007 2207 No objection
115 Email from Wayne
Joyner to Jeff King RMT
dated May 21, 2007 1345 No objection
116 Email from Justin
Joyner to Jeff King
dated November 10, RMT
2008 5104 No objection
117 Email from Justin
Joyner to Jeff King RMT
dated November 10, 5106 No objection
2008
118 Email from Wayne
Joyner to Jim
Thurston dated AC&B
January 15, 2008 11994 No objection
119 Email string to/from
Wayne Joyner and Jeff
King dated April 7, AC&B
2008 11964 No objection
120 Email string to/from
Wayne Joyner and Jeff
King dated April 9, AC&B
2008 11958 No objection
121 Email from Jeff King to
Justin Joyner dated AC&B
March 14, 2008 11954 No objection
122 Email string to/from
Wayne Joyner and Jeff
King dated March 10, AC&B
2008 11953 No objection
123 Email string to/from
Wayne Joyner and Jeff
King dated June 21, AC&B
2007 11912 No objection
124 Email from Larry
Heath to Jeff King
dated December 6, AC&B
2007 11982 No objection
125 Email string to/from
Alanah Griffith and
Wayne and Justin
Joyner dated AC&B Objection
November 2, 2007 11885-86 801
127 Email string to/from
Wayne Joyner and Jeff
King dated May 31, AC&B
2007 11881 No objection
128 Email from Wayne Objection parol
Joyner to Jeff King AC&B evidence
dated May 23, 2007 11867 rule
129 Email from Larry
Heath to Jeff King AC&B
dated January 4, 2008 11817 No objection
132 Email from Larry
Heath to Wayne M Objection
dated March 28, 2008 801
133 Email from Larry
Heath to Jen Smith Objection
133 dated April 4, 2008 801
134 Email string to/from Objection
Larry Heath and 801
Wayne Marchwick
dated April 7, 2008
AC&B
30 Mile Investment 5914-5934 Objection
136 Prospectus 401,801
Email from Heath to
Joyner dated October AC&B Objection
137 2,2007 2086 401,801
Email from Larry
Heath to Jen Smith AC&B Objection
138 dated April 7, 2008 4727 801
Email from Heath to
Joyner dated August RMT
139 24,2007 0071 No objection
Email String to/from
Heath and Wayne and
Justin Joyner datd RMT
140 August 25, 2007 0075-79 No objection
Email from Heath to
Joyner dated August RMT
142 26,2007 0082 No objection
PLAINTIFF'S WITNESS LIST-WILL
CALL
Case Name: Flagstone v. Joyner, et al.
Case CV-08-100-BLG-RFC
Number:
City& Manner of Expert? Depa. Excerpt/
Number Name State Presentation Rep. Date Summary Objections
1 Wayne Bozeman, MT In Person
Joyner
2 Larry Heath Billings, MT In Person
3 Justin Bozeman, MT In Person
Joyner
4 Rick Sidwell Billings, MT In Person
5 Jennifer Billings, MT In person; P:L-P:L
Smith unless 9:12-9:18
unavailable then 10:24-11:8
by video 21:2-21:4
deposition as 78-11-91:22
follows 92:16-94:12
96:4-100:6
112:4-114:4 (112-137):
114:12-117:14 Relevance;
118:17-119:6 constitutes
125:2-129:6 mention of
129:23-131:6 Insurance
133:20-134:12
137:10-137:23
153:25-158:7
159:14-160:21 Hearsay;
speculative
170:1-171:6 Prejudicial
and
confusing
172:19-173:20 Relevance
174:21-175:2
DEFENDANTS' EXHIBIT LIST-WILL OFFER (except where indicated)
Case Name: Flagstone Development, LLC v. Joyner, et al.
Case No.: CV 08-100-BLG-SEH
No. Description Plaintiff's Date Date Date Date
Objection Offered Admitted Refused Reserved
501 E-mail from Jeff King to Larry Heath, dated May 31, 2007
502 E-mail from Jeff King to Larry Heath, dated August 27, 2007
503 E-mail from Jeff King to Larry Heath, dated October 16, 2007
504 E-mail from Larry Heath to Jennifer Smith, dated April 4, 2008
505 E-mail from Larry Heath to Wayne M., dated March 3, 2008
506 E-mail from Larry Heath to Bryan Hall, dated April 2, 2008 Ev. Rule 408/
Relevance
507 E-mail from Lee Hanley to Larry Heath, dated March 31, 2008 Ev. Rule 408/
Relevance
508 E-mail from William Cleverly to Larry Heath, dated April 1, Ev. Rule 408/
2008 Relevance
509 Correspondence from Gregory McGill, dated January 31, 2008
510 Article, '30-Mile' subdivision to impact Shepherd School
511 Correspondence from Alanah Griffith to Gregory McGill, dated
April 3, 2008
512 Settlement Statement
513 30 Mile Ranch Investment Prospectus (offered for a limited
purpose)
514 E-mail from Wayne M. to Larry Heath, dated February 15, 2008
516 Correspondence from Gregory McGill to Alanah Griffith, dated Ev. Rule 408/
February 23, 2009 Relevance
517 E-mail from Larry Heath to Jennifer Smith, dated April 4, 2008
518 E-mail from Larry Heath to Greg McGill, dated January 22,
2008
519 E-mail from Larry Heath to Jeff King, dated February 13, 2008 Ev. Rule 408/
Relevance
520 E-mail from Wayne M. to Larry Heath, dated March 9, 2008
521 E-mail from Wayne M. to Larry Heath, dated March 3, 2008 Hearsay
522 E-mail from Larry Heath to Wayne Joyner, dated August 28,
2007
523 E-mail from Larry Heath to Sidwell Land, dated October 29,
2007
524 E-mail from Hans Stoll to Larry Heath, dated November 6,
2007
525 E-mail from Larry Heath
526 E-mail from Wayne M. to Larry Heath, dated March 3, 2008 Hearsay
527 E-mail from Wayne M. to Larry Heath, dated March 28, 2008 Hearsay
528 E-mail from Wayne M. to Larry Heath, dated April 7, 2008 Hearsay
DEFENDANTS' WITNESS LIST-WILL CALL
Case Name: Flagstone Development, LLC v. Joyner, et al.
Case No.: CV 08-100-BLG-SEH
No. Description City/State Manner of Presentation Expert?/ Excerpts Objections
Report Date
1 Wayne Joyner Bozeman, MT in person no none
2 Justin Joyner Bozeman, MT in person no none
3
DEFENDANTS' WITNESS LIST-MAY CALL
Case Name: Flagstone Development, LLC v. Joyner, et al.
Case No.: CV 08-100-BLG-SEH
No. Description City/State Manner of Presentation Expert?/ Excerpts Objections
Report Date
1 Jake Korell Billings, MT in person no none
2 Jon Ussin Billings, MT in person no none
3 Jeff King Williamstown, MA no none
4 Jennifer Smith Billings, MT in person no none
