JMH Land Development Company LLC, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1111

JMH Land Development Company LLC,
Respondent,

vs.

Siegle Family Limited Partnership,
Appellant.

Filed February 21, 2023
Affirmed in part, reversed in part, and remanded
Ross, Judge

Carver County District Court
File No. 10-CV-21-211

Kevin R. Coan, Anju Suresh, Hinshaw & Culbertson LLP, Minneapolis, Minnesota (for
respondent)

Patrick J. Neaton, Michael L. Puklich, Neaton & Puklich, PLLP, Chanhassen, Minnesota
(for appellant)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Larkin, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
This is a breach-of-contract dispute between the seller and buyer of unimproved
land for residential development. A family partnership (the appellant) owning land partially
inside and partially outside a city’s border sold land inside the border to prior developers
for a planned multiphase residential development project and, 15 years later, sold land
mostly outside the border to a different developer (the respondent current developer). The
2
developer that bought the city land 15 years earlier had signed a contract with the city,
agreeing to pay the city one-third the city’s cost for a $750,000 road project and
representing that the remainder would be paid through special assessments against the
remainder of the multiphase development project. But the family was not a party to that
contract. When the city learned about the family’s planned sale of the noncity land and the
current buyer-developer’s application to annex that land into the city, the city demanded
that the family pay what the prior developer had promised. The family refused. Based on a
clause in the family and current developer’s purchase agreement requiring the famil y to
pay any special assessment and prior-development costs, the current developer sued the
family for breach of contract and obtained a summary-judgment order requiring the family
to pay the road-project costs. We reverse in part because the developer did not produce
evidence undisputedly establishing that the city has any claim that would constitute a
“special assessment” or “cost” against the property as those terms are contemplated in the
purchase agreement. We affirm in part because the undisputed facts foreclose the family’s
counterclaim alleging that the developer delayed sending the family an environmental
report in bad faith. We remand the case for further district court proceedings.
FACTS
We derive the following facts from the parties’ summary-judgment submissions.
Some of these facts rest directly on the undisputed documentary and testimonial evidence
and some are reasonable inferences we draw from gaps in the record, favorable to the
appellant as the nonmoving party. We surmise that appellant Sie gle Family Limited
Partnership has owned a large swath of rural land in Carver County— partly inside the City
3
of Waconia and partly outside the city in the Township of Waconia—since 1999. The
record implies that the family made a series of real-estate deals to sell segments of the land
to different developers who each intended to complete one phase in a multiphase residential
development project and who separately contracted with the city to do so. The Siegle
family, the developers, and the city (which is not a party in this litigation) share a common
interest in the city’s annexing the noncity land, connecting the eventual residential lots to
city services and substantially increasing the property value. The record suggests that the
family initially sold some of the land to Plowshares Development Inc. and that in 2005
Plowshares in turn entered into an agreement with the city to complete the first phase of
the development project. At about the same time, the city undertook a substantial road-
construction project, part of which included converting a traditional intersection into a
roundabout near the development at a cost of $750,000.
The Plowshares 2005 “Developers Agreement” is the first in a series of documents
from which we trace the history of the city’s attempt to recoup its roundabout-construction
costs and from which we develop our imprecise understanding of property ownership.
Ownership of the land covered by the 2005 Developers Agreement is not clear from the
record. Although the family appears to suggest that it owned the land when the agreement
was signed, the agreement refers to Plowshares as “fee owner” of the covered property.
The agreement read together with other evidence in the record leads us to suppose that the
family sold Plowshares land within the city for residential development while the family
retained its ownership of the unimproved noncity land. That 2005 agreement obligated
Plowshares to pay the city $250,000 for the roundabout project, but it also contemplated
4
“future phases” of the development and asserted that the $500,00 0 balance would be
assessed by the city “to the remainder of the . . . development.”
The following year, the city entered into a development agreement with a different
developer, Centex Real Estate Corporation, for an addition to the development identified
in the 2005 Developers Agreement with Plowshares. This 2006 agreement with Centex
restated the “remaining cost of $500,000” for the roundabout construction and again
indicated that this cost would be recovered by the city’s assessing the eventual lots in the
“future phases” of the broader development. The 2006 Centex agreement likewise
identifies Centex as “fee owner” of the property subject to the agreement.
The city entered into another agreement regarding the roundabout costs in 2008—
the “Agreement Regarding Cost of Road Improvements.” This agreement with another
entity, Corona Waterford LLC, identified Corona as the contractual successor entity to both
Plowshares and Centex, recognized that the city had consented to the 2005 Plowshares
agreement and the 2006 Centex agreement being assigned to Corona, and indicated that
Corona and the city had reached an agreement “as to how and when Corona will pay the
proportionate share of the Road Improvement Costs that are allocable to [Corona’s]
Property.” The 2008 agreement obligated Corona to pay $96,317 as its share of costs for
the roundabout. This reduced the $500,000 balance on the city’s costs to $403,683.
Two events in 2010 also bear on the city’s effort to recoup its roundabout costs. In
April Corona quitclaimed back to the family land that was subject to the development
agreements. And two months later, the city and Corona formally acknowledged that the
5
2005 Developers Agreement “no longer affects” the city parcels, meaning that no
obligation under that agreement “shall pass to any . . . future owner of” it.
Then came the contract disputed in this case. Ten years after the city acknowledged
that the city parcels were no longer affected by the 2005 Developers Agreement, the family
and respondent JMH Land Development Company LLC entered into a 2020 purchase
agreement that included those city parcels. The family agreed to sell about 100 acres to
JMH for $6,200,000. Those acres include six contiguous parcels—three small parcels
inside the city and three much larger parcels just outside the city in the township. The
purchase agreement made the sale contingent on the city’s annexation of the township lots
and included the following provision (which is the focus of this case), obligating the family
to pay levied and pending special assessments and costs against the property:
16. CLOSING PRORATION.
. . .
(b) Assessments. On or before the Closing Date, Seller shall
pay (i) all special assessments levied or pending against the
Property . . . and (ii) all pending, known or identified
assessments and/or fees and costs related to the development
of the Property or the construction of any public
improvements, including, but not limited to any roadways,
highways or accessways, adjacent to or servicing the Property
and the development of the Property prior to Effective Date,
whether or not then due or assessed.

After the Siegle family and JMH executed the purchase agreement but before they
closed on the deal, the city indicated that it planned to collect the remaining $403,683 of
its $750,000 expenditure for the 2006 roundabout project. Not referencing its 2010
acknowledgment that the three city parcels could not be liable under the 2005 Plowshares
6
agreement, the city identified those three parcels as the obligor properties for $403,683 in
a September 2020 “Special Assessment Search.”
The family promptly objected to the city’s attempt to assess any of the family’s
remaining property for the city’s roundabout costs. The family’s attorney wrote the city’s
attorney, stating, “[I]t has come as quite a shock to the Siegle family that the City of
Waconia is now seeking to assess the Siegle family’s land under . . . a Development
Agreement that is more than 15 years old and [to] which none of the Siegle [family] were
a party.” Regarding the city parcels, the family’s attorney highlighted the city’s 2010
express acknowledgment that those parcels had no further obligation to repay the city any
costs. Regarding the township parcels, he stressed that the family was not a party to the
2005 development agreement between Plowshares and the city and rejected as false the
city’s assumption that Plowshares had entered into that agreement acting on the family’s
authority. The city’s attorney responded, acknowledging that the city’s claimed special
assessment against the city parcels was invalid and promising to have “the reference to a
$403,683 special assessment” removed. But he asserted that the city “reserves all rights it
may have under [the Minnesota special-assessment statute] to seek reimbursement at a later
date” by assessing the township parcels, presumably after annexation.
A three-spark flashpoint then ignited the current litigation. First, the city’s attorney
implied that the city would hold its annexation approval hostage until it received the
$403,683 balance of the roundabout costs: “At this point, the City needs to evaluate . . .
whether the City can financially support annexation of the Township Parcels if it does not
receive the funds at issue . . . .” Next, JMH sent the family a notice of default under the
7
parties’ purchase agreement and the family’s attorney informed JMH’s attorney that the
city had no legal claim to a special assessment against any of the purchase- agreement
property: “[T]he City is acknowledging that it is releasing whatever assessments it had
against [the city parcels], and, of course, there are no assessments against the parcels in
Waconia Township.” And finally, aware that the city was planning to condition annexation
on payment of the $403,683 and jeopardize the deal, JMH’s attorney advised the family’s
attorney that JMH deemed the family in default unless the family pays the city: “Seller has
the sole obligation under the Agreement to pay the Prior Development Assessment in the
amount required by the City.”
JMH sued the family in March 2021 for breach of contract. The parties had
anticipated closing in April 2021. To salvage the deal, JMH entered into a “Settlement
Agreement” with the city. In that agreement, the city reduced its $403,683 claim to
$343,683 and conditioned its annexation approval of the township parcels on receiving the
$343,683. The parties closed on the property in May 2021. JMH paid the city the $343,683
and moved for summary judgment on its breach-of-contract claim to recover that amount
from the family. The family filed a counterclaim, alleging that JMH’s failure to deliver an
environmental report for two-and-a-half months after it received the report was in bad faith
and caused the family to incur additional costs.
The district court granted summary judgment for JMH on its breach-of-contract
claim and correspondingly ordered the family to pay JMH $343,683 in damages and
$93,976.97 in costs and attorney fees. It also dismissed the family’s counterclaim.
This appeal follows.
8
DECISION
The Siegle family argues on appeal that the district court should not have granted
summary judgment to JMH on JMH’s breach-of-contract claim or on the family’s
counterclaim alleging breach of the implied covenant of good faith and fair dealing. The
family correspondingly challenges the district court’s award of costs and attorney fees. We
address each argument in turn.
I
We must decide whether the district court appropriately granted summary judgment
favoring JMH. A district court shall grant summary judgment when there is no genuine
issue as to any material fact of the claim and judgment as a matter of law is proper. Minn.
R. Civ. P. 56.01. We review a grant of summary judgment to determine de novo whether
genuine issues of material fact exist and whether the district court erred in applying the
law. Montemayor v. Sebright Prod., Inc., 898 N.W.2d 623, 628 (Minn. 2017). We
undertake our de novo review based on the record viewed in the light most favorable to the
nonmoving party. Henson v. Uptown Drink, LLC, 922 N.W.2d 185, 190 (Minn. 2019). The
record as it regards property ownership, the variously described parcels subject to the
different agreements with different developers, and the full relationship between
developers and the family is sketchy. Recognizing that a more developed record in a
different procedural setting might lead to fact findings that differ from our understanding
of these things, at this stage we have filled in missing parts by drawing reasonable
inferences favoring the family, and in doing so we conclude that summary judgment
favoring JMH cannot stand.
9
Based on the purchase agreement’s assignment of payment obligations, summary
judgment favoring JMH is appropriate only if the payment the city demanded fits any of
the several categories the purchase agreement identifies as seller obligations. We must
therefore decide whether the undisputed facts establish that the alleged duty to pay qualifies
as a levied special assessment against the property, a pending special assessment against
the property, or a fee or cost against the property “related to the development of the
Property or the construction of any public improvements.”
A. The City’s Demand is not a Levied Special Assessment
The record does not establish that the city’s demand for payment qualifies as a levied
special assessment. The district court seems to have accepted the existence of a levied
assessment by the city against the family’s property. It did so by treating as binding the
city’s September 2020 report, which had identified the family’s three city parcels as subject
to a $403,683 levied special assessment. But it rejected the family’s primary contention
that the city’s reported special assessment was erroneous and without any legal ef fect,
reasoning that this case “is not about determining whether the ‘special assessment’ was
properly . . . assessed by the City” because no one “has challenged the legitimacy of the
assessment by including the City in this or another action.” On that rationale, the district
court concluded simply that the purchase agreement plainly required the family “to pay the
assessment” listed in the city’s report. The district court did not say why the city must be a
party for the family to challenge the breach-of-contract allegation that a special assessment
(as that term is contemplated in the purchase agreement) in fact burdens the property.
Because the operative provision of the purchase agreement implicitly requires the family
10
to pay the listed presale obligations to the governmental entity entitled to payment, JMH
can prevail on its claim only by proving governmental entitlement. And the existence of
that entitlement is a matter of law and fact in this case regardless of whether the city is a
party.
The law and facts as presented at summary judgment do not support the conclusion
that the city is entitled to payment by a levied special assessment against the family’s
property. Regarding the law, the city’s authority to assess the family’s property with the
duty to pay is limited. Municipalities generally “have no inherent powers and possess only
such powers as are expressly conferred by statute or implied as necessary in aid of those
powers which have been expressly conferred.” State v. Kuhlman, 729 N.W.2d 577, 580
(Minn. 2007) (quotation omitted). The constitution allows the legislature to authorize cities
“to levy and collect assessments for local improvements upon property benefited” by the
improvements. Minn. Const. art. X, § 1. The legislature so authorizes statutory cities, like
the City of Waconia, to levy assessments against improved property in a specific process
outlined in Minnesota Statutes chapter 429. Minn. Stat. § 429.111 (2022). So we look to
the record for evidence that the city followed that process here.
The record includes no evidence indicating that the city completed a special
assessment process before indicating in September 2020 that the family’s city parcels were
subject to a special assessment. And if the city did not comply with the statutory scheme,
no levied assessment exists under the purchase agreement as a matter of law. An
assessment denotes the city’s legal right to collect the claimed amount as established
through the appropriate statutory procedure. See Minn. Stat. § 429.061, subds. 1, 2 (2022)
11
(“[T]he council shall determine by resolution . . . the amount to be assessed . . . . The
assessment . . . shall be a lien upon all private and public property included therein, from
the date of the resolution adopting the assessment.”) (emphasis added). If no resolution is
adopted under section 429.061, no valid lien exists, even when contracting parties agree to
the assessment and waive hearing and notice rights. See Metro. Airports Comm’ ns v.
Bearman, 716 N.W.2d 403, 405 (Minn. App. 2006), rev. denied (Sept. 19, 2006). The
record does not indicate whether the city followed the statutory procedure to make the
purported assessment. Lacking evidence that the city followed the statutory procedure, we
cannot affirm summary judgment based on the existence of a special assessment levied
against the family parcels.
In addition to lacking evidence that the city engaged in the required procedure, the
record includes evidence contradicting the existence of a levied assessment against the
property. In contrast to the September 2020 report that the district court relied on in
granting summary judgment to JMH, in 2010, the city appeared to formally acknowledge
that the parcels identified in that so-called special assessment could never be subject to a
special assessment for the prior roundabout construction. And in January 2021, the city’s
attorney expressly “agree[d] [that] the three City Parcels have been released” from any
liability and promised to take steps “to remove the reference to a $403,683 special
assessment from any future reports.” Given the unchallenged evidence that the city
unambiguously disclaimed the existence of the purported “special assessment” reported in
September 2020, that assessment cannot form the basis of the family’s liability to JMH to
12
repay the city’s roundabout costs. S ummary judgment therefore cannot rest on the
September 2020 special-assessment report.
The record contains an additional, new report of a levied special assessment, but it
too fails to constitute a special assessment within the meaning of the purchase agreement.
After the city threatened not to approve the annexation application for the township parcels
unless it was paid the balance of its roundabout costs, shortly before this litigation JMH
and the city executed their “Settlement Agreement” in which JMH assured the city that it
would be paid $343,683 at closing. JMH also agreed that, if the city was not paid that
amount at closing, the city would initiate a special-assessment process to which JMH
would consent without any substantive or procedural objection. After garnering that
agreement from JMH, the city then listed the family’s township parcels as subject to a
levied special assessment in the amount of $343,683. But for two reasons, JMH cannot, by
virtue of simply entering into a contract to which the family is not a party, manufacture the
kind of special-assessment obligation contemplated in the purchase agreement. The first
reason is that the purchase agreement, like all contracts, includes each party’s covenant of
good faith and fair dealing. In re Hennepin Cnty. 1986 Recycling Bond Litig., 540 N.W.2d
494, 502 (Minn. 1995). This duty prevents either from unjustifiably hindering the other
contracting party’s performance of the contract. Id. A party’s contracting with a nonparty
so as to burden the other party with an obligation that otherwise would not exist would
violate that covenant. The second reason is that the newly levied special assessment against
the township parcels identifies JMH’s deal with the city as the true basis, stating, “Type of
Improvement: . . . PAYABLE TO CITY UPON SALE – DUE AT CLOSING ON
13
DEFERRED SPECIAL ASSESSMENTS *PLEASE SEE ATTACHED SETTLEMENT
AGREEMENT.” We emphasize that JMH has not argued that this later special-assessment
report supports summary judgment, and we address the report only to cover any potentially
relevant evidence we have found in the record.
B. The City’s Demand is not a Pending Special Assessment
The record also does not establish that the city’s demand for payment qualifies as a
pending special assessment. Neither the purchase agreement nor the assessment statute
defines “pending,” and the parties offer no definition. The district court, quoting a JMH
executive, appears to have adopted the idea that a “pending” special assessment is an
anticipated assessment that “is ‘buried in the City’s paperwork.’” We believe that the
statutory assessment process combined with customary development-contract terms better
informs our understanding of what the contract means by “pending special assessment.”
By contrast to the meaning of a levied assessment, which indicates the end of a
municipality’s legislative process for imposing a special assessment, a “pending”
assessment would indicate the beginning of that process. Although the statute also does not
directly define “levied,” it requires a city council to adopt a proposed assessment by
resolution, and it speaks of that adopting resolution as “the resolution levying the
assessment.” Minn. Stat. § 429.061, subd. 2 (emphasis added). Before that adoption
resolution occurs, the council must calculate the amount of the contemplated assessment,
the assessment roll must be filed with the clerk for public review, and then notice of the
proposed assessment must be mailed to the property owner informing the owner that the
city council will meet to consider the proposed assessment at a specified date, time, and
14
location, among other things. Id., subd. 1. Reading the contractual term in the context of
the statutory framework for special assessments, we believe that a special assessment
becomes “pending” on at least two occasions. It becomes pending when the city council
by resolution “publish[es] notice that the council will meet to consider the proposed
assessment.” Id. And because a city and an affected landowner might preliminarily agree
to a proposed assessment amount by contract in a development agreement, we believe that
a special assessment also becomes “pending” upon such an agreement.
Applying that understanding of “pending” here, the evidence presented by the
parties with their summary-judgment pleadings fails to establish that any special
assessment was pending against the family’s property before closing. The record includes
no evidence indicating that the city ever initiated a formal special-assessment process
through the city council. And the record includes no evidence that the family entered into
any contract with the city for any purpose, let alone to agree that its property is subject to
special assessment by the city.
C. The City’s Demand is not a Cost Ascribable to the Property
We similarly conclude that the undisputed evidence does not establish that JMH is
entitled to judgment as a matter of law on the theory that the city’s claim to recover its
costs for constructing the roundabout constitutes a cost against the property “related to the
development of the Property or the construction of any public improvements.” Without
question, the city’s claim represents a “cost” related to the construction of a public
improvement—the city’s 2006 roundabout construction. But the 2020 purchase
agreement’s framing of the seller’s duty to pay for governmental projects as a “cost”
15
implicitly refers to a cost attributable to the property, not just any cost to the city. That is,
to constitute a cost the buyer can require the seller to pay under the purchase agreement, it
must be a cost for which the city has an enforceable legal claim against the seller by virtue
of the seller’s property ownership.
JMH attempts to link the family’s parcels in 2020 to the 2005 Plowshares agreement
through a chain of agreements that supposedly binds the family’s parcels to the duty the
Plowshares agreement purported to create in 2005. JMH accurately observes that the 2005
city–Plowshares agreement highlights the city’s expectation that it will be reimbursed its
cost of the roundabout through assessment against future development; that the 2006 city–
Centex agreement also highlights the city’s expectation that the city will be reimbursed its
cost of the roundabout through assessment against future development; that the 2008 city–
Corona agreement identifies Corona as a successor to the Plowshares and Centex
agreements and likewise highlights the city’s expectation that it will be reimbursed its cost
of the roundabout through assessment against future development; and that the 2010
Corona–Siegle Family limited warranty deed quitclaimed some of Corona’s property back
to the family specifically subject to the 2008 city–Corona agreement and that the agreement
refers to a “levy of private charge or assessment.” The chain is almost compelling, but it
seems to include a critical break.
What JMH does not discuss, and the district court’s summary-judgment order does
not address, is language in the 2008 city–Corona agreement that, on its face, appears to
contradict the theory that Corona’s deed subjected the family property to a duty to pay the
city’s roundabout costs. In that 2008 agreement, the city and Corona agreed that Corona
16
owned “certain real property” outside the city in the township, that Corona planned to
further develop that property and seek to have it annexed into the city, that the city
constructed a roundabout and incurred costs allocable to that property, that Corona must
pay $96,317 for its share of the roundabout costs for its prior development of part of that
property, but that (and here’s the critical break) “in regard to” that property, “The City
agrees that . . . no additional assessment or costs will be imposed for the [roundabout].”
Corona’s conveyance of this same property, which apparently included some or all the
family’s township property, back to the family therefore did not carry with it the duty to
pay any “additional assessment or cost” for the roundabout.
We add that we reach this conclusion notwithstanding a line in the 2008 city–Corona
agreement that declares, “[N]othing herein shall be construed as preventing the City from
assessing other properties for [the city’s roundabout] Costs, including those portions [of
township property] that are not part of [the Corona property] . . . .” This line cannot
effectively alter the conclusion that the agreement released any duty to pay future
assessments. It is long settled that “[a] deed of quitclaim and release shall be sufficient to
pass all the estate which the grantor could convey by a deed of bargain and sale.” Minn.
Stat. § 507.06 (2022). The supreme court has elaborated that a quitclaim deed “passes only
the estate which the grantor could lawfully convey.” Laymon v. Minn. Premier Props., LLC,
913 N.W.2d 449, 451 n.2 (Minn. 2018) (quoting Everest v. Ferris, 16 Minn. 26, 32 (1870)).
When Corona quitclaimed its property interest to the family in 2010, the family therefore
received the Corona property with all encumbrances attached to that property, not with any
additional encumbrances on neighboring property, even though the encumbrance language
17
in the deed ostensibly suggests this extension expressly and by referencing the 2008 city–
Corona agreement.
We hold that the record includes insufficient support to determine as a matter of law
that the city’s roundabout cost is a “cost” against the property that the family had a duty to
pay. The record lacks evidence that the family contracted with the city to require the
family’s township parcels to pay the roundabout costs. It lacks evidence that any of the
contracting parties acted on the family’s authority when purportedly obligating the family’s
township parcels to pay those costs. And it includes evidence that the city expressly agreed
that Corona’s property (later conveyed back to the family) could not be assessed any
additional cost for the roundabout.
In sum, although a more complete record might prompt a different conclusion, the
current record does not support summary judgment on JMH’s claim that the family
breached the purchase agreement by refusing to pay the city, or reimburse JMH, to cover
the city’s 2006 roundabout-construction cost. The undisputed facts do not establish that the
city’s claim qualified as a levied special assessment against the property, a pending special
assessment against the property, or a cost against the property related to the property’s
development or the construction of any public improvement developing the property.
II
The Siegle family contends that a genuine issue of material fact also prevents
summary judgment on its counterclaim that JMH breached the implied covenant of good
faith and fair dealing. The purchase agreement permitted JMH to retain the services of
engineering firms to environmentally inspect the property and required the family to
18
remediate environmental problems. The family alleges that JMH received an engineering
report detailing environmental concerns in early December 2020, but that JMH did not
provide the r eport until late February 2021, when ground conditions were less favorable
for the remediation project, requiring the family to incur an additional $2,600 in
remediation costs. This delay “in and of itself,” argues the family, evidences bad faith and
unfair dealing. The argument is not compelling.
It is true that e very Minnesota contract includes an implied covenant of good faith
and fair dealing, meaning that one party cannot “unjustifiably hinder” the other party’s
performance. In re Hennepin Cnty. 1986 Recycling Bond Litig., 540 N.W.2d at 502
(quotation omitted). But a claim of bad faith requires evidence that the accused party
refused to fulfill a duty or contractual obligation based on an ulterior motive, not based on
simply a mistake or negligence. Sterling Cap. Advisors, Inc. v. Herzog, 575 N.W.2d 121,
125 (Minn. App. 199 8). The purchase agreement does not specify any period for the
disclosure, and even if it did, the family identifies no evidence that an improper motive
inspired JMH’s alleged more than two-month delay in providing the report. Because the
family offered no proof of bad faith, we affirm the district court’s grant of summary
judgment on the family’s counterclaim.
III
The family challenges the district court’s decision ordering it to pay litigation costs
and attorney fees. The parties’ purchase agreement imposes the duty to pay costs and
attorney fees on the losing party in breach-of-contract litigation:
19
If either Buyer or Seller commences an action against the other
to enforce any of the terms of this Agreement or because of the
breach by the other party of any of the terms hereof, the losing
or defaulting party shall pay to the prevailing party reasonable
attorneys’ fees, costs and expenses incurred in connection with
the prosecution or defense of such an action.

Because t he district court awarded attorney fees based on JMH’s summary-judgment
victory and we have in part reversed that decision, we also reverse the district court’s award
of costs and attorney fees to JMH.
Affirmed in part, reversed in part, and remanded.