Barbier v. Burns: Dual Amendment Pathways in LLC Operating Agreements and Limits on Hybrid Witness Compensation under Montana Rule 45

I. Introduction

Barbier v. Burns, 2025 MT ___, is a significant decision of the Montana Supreme Court that clarifies three important areas of Montana law:

How courts interpret multiple amendment provisions in a limited liability company (LLC) operating agreement, including the relationship between unanimous written consent and supermajority voting clauses.
When an LLC itself must be joined as a party—particularly as a defendant—in member litigation seeking declaratory or derivative relief affecting the entity’s existence and governance.
The scope of a district court’s authority to award non-statutory fees to a non-party “hybrid” witness under M. R. Civ. P. 45 and the witness fee statutes.

The dispute arose within the Burns family over the governance and duration of the H.W. Burns Family LLC, a family entity formed in 1994 as a term LLC scheduled to dissolve no later than December 31, 2024. In 2015, following one member’s withdrawal, the remaining members voted—over appellant Lindsay Burns Barbier’s objection—to convert the LLC into a perpetual entity and filed Articles of Amendment to that effect. Years later, Lindsay sued her brother, Cameron Burns, and sought a judicial declaration that the 2015 vote was invalid and that the LLC must dissolve in 2024.

The Montana Supreme Court’s opinion, authored by Justice Bidegaray, addresses:

The correct interpretation of the 2004 Operating Agreement (OA) and whether it permitted amendment of the LLC’s term by a 67% supermajority rather than unanimous written consent.
Whether the district court properly required joinder of the LLC as a defendant to Lindsay’s claims.
Whether the court had authority to order Lindsay to pay $4,410 in “professional” and attorney fees to a non-party hybrid witness, Kim Bennett, for deposition testimony.

The Court affirms the summary judgment for Cameron and the LLC on the contract issues and the joinder ruling, but reverses the witness-fee order. The opinion thus shapes Montana LLC practice and civil procedure in meaningful ways.

II. Factual and Procedural Background

A. Formation and Structure of the H.W. Burns Family LLC

In 1994, siblings Lindsay, Cameron, and Seth Burns, together with their father, Horatio, formed the H.W. Burns Family LLC as a Montana term LLC, with a maximum life ending December 31, 2024 (¶ 2).

In 2004, they adopted a new Operating Agreement (OA) that:

Reaffirmed that the LLC was a “term company” to dissolve no later than December 31, 2024 (OA § 1.d).
Contained a supermajority voting provision, OA § 6.k, under which no member (alone or together) could take certain enumerated actions—including amending the OA,¹ amending the Articles of Organization, and waiving the right to wind up the company—without approval of members owning at least 67% of the “Ownership Percentages.”
Also contained a unanimous written consent provision, OA § 13.j, stating that “[t]he Members may amend this Agreement . . . upon execution of a written amendment signed by all of the Members.”
Provided that a “Member” must not be “dissociated from” the LLC (OA § 2.e) and that a “Member ceases to be a Member” upon the LLC’s receiving notice of the member’s express will to withdraw (OA § 9.a.i).
Defined “Ownership Percentage” as “a Member’s designated share of the profits, losses and distributions of the LLC” (OA § 2.i) (emphasis added).

¹ “The amendment of the operating agreement under 35‑8‑109” (OA § 6.k.i).

B. Seth’s Withdrawal and the 2015 Vote to Convert the LLC to Perpetual Duration

In July 2015, Seth provided written notice of his intent to withdraw as a member. Under the OA and Montana’s LLC Act, this dissociated him as a member, ending his governance rights but leaving him with an economic interest pending a buyout (¶¶ 23–25).

Before completing Seth’s buyout, the remaining members—Horatio, Cameron, and Lindsay—met on November 14, 2015, and voted on whether to extend the LLC’s term from 2024 to perpetual. The minutes state (¶ 4):

A motion was made by Horatio to extend the life of The LLC from 2024 to perpetual with no expiration. Cameron seconded. Horatio voted Yes, Cameron voted Yes, Lindsay voted No.

On November 17, 2015, Articles of Amendment were filed with the Secretary of State converting the LLC to a perpetual term (¶ 4).

C. Litigation and Procedural Posture

Horatio died in 2018, and Cameron became personal representative of his estate, thereby controlling Horatio’s LLC interest (¶ 5).

In December 2021, Lindsay filed suit against Cameron, in his individual capacity, asserting both:

Individual claims on behalf of herself and her minor children, and
Derivative claims on behalf of the LLC,

seeking, among other things, declaratory relief that:

OA § 13.j required unanimous member consent for any amendment; and
The 2015 vote—taken over her objection—was ineffective to convert the LLC to perpetual duration (¶ 5).

She also asserted claims for breach of contract and specific performance, which ultimately were mooted by the summary-judgment ruling and are not at issue on appeal (¶ 7 n.1).

After the district court denied Cameron’s motion to dismiss the derivative claims, Cameron moved to join the LLC as a defendant. Over Lindsay’s timeliness and burden objections, the district court ordered joinder under § 27‑8‑301, MCA, and M. R. Civ. P. 19; once joined, the LLC filed an answer and a counterclaim seeking a declaratory judgment that its term was perpetual (¶ 7).

During discovery, Lindsay deposed Kim Bennett, a former appraiser for the LLC whom both sides listed as a potential “hybrid witness” (a fact witness with expert-like testimony). Lindsay subpoenaed Bennett and tendered the statutory $10 witness fee. After the deposition, Bennett petitioned the court for $4,410 in “professional” and attorney fees; the district court ordered Lindsay to pay, and she appealed (¶ 8).

Both sides moved for summary judgment on the OA and the LLC’s term status. The district court granted summary judgment for Cameron and the LLC, holding that:

The OA unambiguously provided for alternative methods of amendment that did not conflict.
Seth’s withdrawal in July 2015 eliminated his membership and voting rights, so his distribution interest did not count toward the § 6.k 67% voting threshold.
The November 2015 vote validly converted the LLC to a perpetual-term entity (¶ 10).

Lindsay appealed:

The summary judgment on the OA interpretation and conversion vote.
The order requiring joinder of the LLC as a defendant.
The order requiring her to pay Bennett’s requested fees (¶ 1).

III. Summary of the Supreme Court’s Decision

A. Holdings in Brief

Operating Agreement interpretation and conversion vote (Issue 1):
- The 2004 OA is unambiguous and provides two complementary pathways for amendment:
  - A 67% “supermajority” vote of members under OA § 6.k.i; and
  - Unanimous written consent under OA § 13.j.
- Section 13.j is permissive, not mandatory; it is a “consensus shortcut” that does not displace § 6.k.i (¶¶ 19–21).
- Because Seth dissociated as a member in July 2015, his interest did not count toward the 67% voting denominator in November 2015; Horatio and Cameron together held over 67% of then-existing “Ownership Percentages” (¶¶ 23–25 & n.5).
- The November 2015 vote, followed by filing Articles of Amendment, validly converted the LLC to a perpetual-term entity (¶¶ 26–29).
Joinder of the LLC as a defendant (Issue 2):
- The LLC was a necessary party under M. R. Civ. P. 19 and § 27‑8‑301, MCA, because the action sought declaratory relief regarding the LLC’s dissolution and rights (¶¶ 32–35).
- As a separate legal entity distinct from its members, the LLC’s interests could not be fully adjudicated or bound absent its joinder; aligning it as a defendant was proper (¶¶ 34–35).
- The timing and potential cost burden did not amount to an abuse of discretion (¶ 36).
Hybrid witness compensation and Rule 45 (Issue 3):
- The Montana Rules of Appellate Procedure did not require service of the notice of appeal on non-party witness Bennett; appellate jurisdiction was properly invoked (¶¶ 38–40).
- Under §§ 26‑2‑501, ‑507, MCA and M. R. Civ. P. 45, absent an agreement or a pre-deposition court order conditioning compliance on higher compensation, a non-party witness is only entitled to the statutory witness fee (currently $10 per day plus mileage) (¶ 41).
- Rule 45’s protections (quash, modify, or condition subpoena) are prospective and must be invoked “on timely motion” before compliance; courts lack authority to award substantial post-hoc “professional” and attorney fees under the generalized “avoid undue burden” language of Rule 45(d)(1) (¶¶ 41–44).
- The district court therefore abused its discretion in ordering Lindsay to pay $4,410; the Supreme Court reverses that order and remands with instructions to limit Bennett’s compensation to the statutory witness fee absent party agreement (¶¶ 44–45).

B. Disposition

The Court:

Affirms the district court’s summary judgment that the LLC is a perpetual-term entity and its joinder order.
Reverses the order requiring Lindsay to pay Bennett’s professional and attorney fees and remands with instructions limiting Bennett’s compensation to statutory witness fees unless otherwise agreed (¶ 45).

IV. Detailed Analysis

IV.A. Contract Interpretation and LLC Amendment Mechanics

1. The Competing Provisions: OA §§ 6.k.i and 13.j

The core interpretive problem was how to reconcile two OA provisions:

Section 6.k.i: No member may take specified actions, including amending the OA or the Articles of Organization, without approval of members owning at least 67% of the “Ownership Percentages.”
Section 13.j: “The Members may amend this Agreement . . . upon execution of a written amendment signed by all of the Members.”

Lindsay argued these provisions were contradictory: § 6.k.i allowed amendment by a 67% supermajority, while § 13.j required unanimous written consent. Because both spoke to “amendment of the OA,” she contended there was an ambiguity that must be resolved with extrinsic evidence, which she claimed supported unanimity as the controlling rule (¶ 16).

Cameron and the LLC countered that the provisions could be harmonized: § 13.j is permissive (“may”) and simply provides an optional shortcut (unanimous written consent without a meeting) while § 6.k.i is the general mechanism for amendments when unanimity is lacking.

2. Montana Contract-Interpretation Principles and Precedents

The Court applied Montana contract law, including:

Statutory rules (¶ 17):
- § 28‑3‑301, MCA: contracts must be interpreted to give effect to the parties’ mutual intention at the time of contracting.
- § 28‑3‑303, MCA & § 28‑3‑401, MCA: that intention is ascertained from the writing alone if possible; clear and explicit language governs.
- § 28‑3‑201, MCA & § 28‑3‑202, MCA: contracts must be read as a whole, with all parts harmonized if reasonably practicable.
- § 28‑3‑503, MCA: provisions inconsistent with the contract’s general nature or primary intent are to be rejected.
Key cases cited:
- Eschenbacher v. Anderson, 2001 MT 206, ¶ 21, 306 Mont. 321, 34 P.3d 87 (interpretation and existence of ambiguity are questions of law, reviewed de novo) (¶ 12).
- Gabert v. Seaman, 2025 MT 198, ¶ 12, 424 Mont. 9, 574 P.3d 920 (same standard; also cited for objective test for ambiguity and that mere disagreement does not create ambiguity) (¶¶ 12, 18).
- Krajacich v. Great Falls Clinic, LLP, 2012 MT 82, ¶ 13, 364 Mont. 455, 276 P.3d 922 (contracts must be read as a whole; inconsistent terms with primary intention are rejected) (¶¶ 17, 27).
- Czajkowski v. Meyers, 2007 MT 292, ¶ 21, 339 Mont. 503, 172 P.3d 94 (unambiguous language must be applied as written) (¶ 18).
- Morely v. Morely, 2022 MT 12, ¶ 26, 407 Mont. 241, 502 P.3d 666 (plain text controls where unambiguous) (¶ 18).
- Reihl v. Cambridge Court GF, LLC, 2010 MT 28, ¶ 26, 355 Mont. 161, 226 P.3d 581 (ambiguity exists only when contract, viewed as a whole, is reasonably susceptible to at least two conflicting meanings) (¶ 18).
- Corporate Air v. Edwards Jet Ctr. Mont. Inc., 2008 MT 283, ¶¶ 30–32, 345 Mont. 336, 190 P.3d 1111 (if ambiguous, intent becomes a fact question and extrinsic evidence may be used) (¶ 18).
- Watters v. City of Billings, 2019 MT 255, ¶ 22, 397 Mont. 428, 451 P.3d 60 (even when extrinsic evidence is allowed, contract language remains the most important evidence of intention) (¶¶ 18, 20).
- Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 20, 338 Mont. 41, 164 P.3d 851 (conflicting interpretations by parties or their attorneys do not, by themselves, establish ambiguity) (¶ 20).
- Dover Ranch v. County of Yellowstone, 187 Mont. 276, 283, 609 P.2d 711, 714 (1980) (ordinary meaning of “may” is permissive) and Kageco Orchards, LLC v. DOT, 2023 MT 71, ¶ 23, 412 Mont. 45, 528 P.3d 1097 (use of “may” denotes discretion) (¶ 19 & n.3).

Applying these authorities, the Court concluded there was no ambiguity.

3. “May” as Permissive and the Concept of Dual Pathways

The Court held that OA § 13.j’s use of “may” is crucial. Rather than mandating unanimity as the only amendment mechanism, § 13.j authorizes an optional method:

“[T]he 2004 OA unambiguously provides two valid and complementary pathways for amendment. OA § 6.k.i provides for amendment of the OA by a 67% voting majority of members. OA § 13.j provides that the OA ‘may’ be amended ‘upon execution of a written amendment signed by all of the Members.’” (¶ 19)

Harmonizing the provisions:

If the members unanimously agree, they may bypass a formal vote/meeting by executing a unanimous written amendment (consensus shortcut).
If there is no unanimity, the general rule is that a 67% supermajority, under § 6.k.i, may approve amendments.

The OA’s § 7.b—allowing member actions by unanimous written resolutions without a meeting—reinforces this reading, further indicating that the OA contemplates informal unanimous-written-consent procedures as alternatives, not as exclusive requirements (¶ 19 n.2).

Lindsay’s interpretation—reading § 13.j as requiring unanimity for all amendments—would effectively nullify § 6.k’s 67% provision. Under Montana contract rules, an interpretation that renders an entire section inoperative is disfavored; the Court rejects that approach as impermissible (¶ 19).

4. Interaction with the Statutory Default Rule, § 35‑8‑307(3), MCA

The Court situates the OA within the framework of the Montana LLC Act, particularly § 35‑8‑307(3), MCA, which provides that certain actions—such as amending the operating agreement, amending the articles of organization, and waiving the right to wind up the business—require unanimous member consent unless the OA “provides otherwise” (¶ 19 & n.4).

Key point:

“OA § 6.k, mirroring § 35‑8‑307(3), expressly ‘provides otherwise,’ i.e., that amendment of the OA and Articles of Organization, and waiver of the right to wind-up the LLC, is to be accomplished by a 67% majority vote.” (¶ 19)

Thus:

The statutory default of unanimity yields to the contractually specified 67% supermajority in § 6.k.
Section 13.j, far from reinstating the statutory default as a mandatory rule, is merely a permissive alternative consistent with, not contrary to, § 6.k.

Because the OA “provides otherwise,” the statutory unanimity requirement does not control.

5. No Ambiguity and Limited Role of Extrinsic Evidence

Given the harmonious reading of §§ 6.k.i and 13.j, the Court holds the OA is not ambiguous (¶ 20). Therefore, extrinsic evidence—such as post-2015 emails from the LLC’s attorney suggesting the vote had not properly amended the OA—cannot be used to alter the plain language:

“[A] lawyer’s email description of the 2015 amendment process cannot override the OA’s express text or lend interpretive meaning when the writing speaks for itself.” (¶ 20)

Even if considered, such communications do not create ambiguity; under Mary J. Baker, disagreement among parties or their attorneys is not proof of ambiguity (¶ 20).

6. Dissociation and the 67% Voting Threshold

The second interpretive issue concerns how to calculate the “67% Ownership Percentages” required for the supermajority vote in November 2015—specifically, whether Seth’s interest should be included in the denominator after he gave notice of withdrawal.

The OA and Montana’s LLC statutes distinguish between:

Membership/governance rights, held by “Members” who are not dissociated; and
Economic/distributional rights, which can be held by dissociated members or transferees.

Under the OA:

“Member” means one who is admitted and not dissociated (OA § 2.e).
A “Member ceases to be a Member” upon notice of an express will to withdraw (OA § 9.a.i).
“Ownership Percentage” for voting under § 6.k.i is defined as “a Member’s” share of profits, losses, and distributions (emphasis added) (OA § 2.i).

Under the statutes:

§ 35‑8‑102(21), MCA: member is a person “who has not dissociated” from the LLC (¶ 24).
§ 35‑8‑803(1)(a), MCA: dissociation occurs on the company’s notice of the member’s express will to withdraw (¶ 24).
§ 35‑8‑805(2)(a), MCA: upon dissociation, the member’s right to participate in management and conduct of the business terminates, and the person is treated as a transferee of a member—essentially holding only economic rights (¶ 24).
§ 35‑8‑707, MCA: governs rights of a transferee.

The Court emphasizes that “Ownership Percentage” for voting purposes includes only the shares of current Members, not dissociated transferees (¶ 23). Once Seth dissociated in July 2015, he ceased to be a Member, lost voting rights, and his interest was to be treated solely as an economic, distributional interest (¶ 25).

Practically, this means:

The denominator for the 67% calculation in November 2015 consisted only of the Ownership Percentages of the then-existing Members (Horatio, Cameron, Lindsay, and Lindsay’s children, depending on how they held interests), excluding Seth’s distribution interest.
Horatio and Cameron’s combined 57.15% interest constituted 70% of those remaining Member Ownership Percentages; therefore, their votes met the 67% threshold (¶ 25 & n.5).

The Court rejects Lindsay’s argument, which would have given a non-member transferee an effective veto power by including Seth’s distributional interest in the voting denominator—contrary to the OA and statutory design (¶ 22).

7. Effectiveness of the November 2015 Vote and Articles of Amendment

The Court then considers whether the November 14 vote, memorialized in minutes, together with the November 17 Articles of Amendment, sufficed to amend the OA’s term provision (OA § 1.d), even though a formal written amendment to the OA itself was never executed.

The OA does not expressly require a separate written instrument to implement amendments approved by a § 6.k vote (¶ 26). The Court reasons:

The members properly invoked § 6.k.i by voting with the requisite supermajority to “extend the life of the LLC from 2024 to perpetual with no expiration.”
The minutes and the subsequent Articles filing “in context, were sufficient” to implement that amendment (¶ 26).
Montana law does not require an additional, superfluous written OA amendment where the OA already authorizes amendment by supermajority and the voted change is implemented in the Articles (¶ 27).

Lindsay argued that the Articles govern only as to the State, whereas the OA controls among members, invoking § 35‑8‑202(3), MCA (operating agreement controls over conflicting articles as between members). The Court acknowledges this framework but finds no conflict:

“[T]he November 2015 vote and resulting amendment to the Articles are consistent with the OA because § 1.d and § 6.k contemplate that the members may, by the specified supermajority, extend or continue the LLC’s business beyond the original 2024 term.” (¶ 28)

The Articles amendment therefore implements the members’ internal agreement rather than contradicting it. Any textual disharmony (OA still reciting “dissolve by 2024”) is resolved by contract interpretation under Krajacich: terms inconsistent with the primary intent (here, the validly adopted perpetual term) are to be rejected (¶ 27).

The Court’s bottom line:

“We hold that, on this record and the OA’s text, the District Court correctly concluded that the November 2015 vote validly exercised the OA’s § 6.k authority and effectively amended the LLC term. Accordingly, the court correctly granted summary judgment to Cameron and the LLC that the LLC is a perpetual-term entity.” (¶ 29)

8. Observations and Drafting Lessons

The opinion provides practical guidance for LLC drafters and litigators:

Including both a supermajority amendment clause and a unanimous written consent clause is not inherently conflicting; courts will strive to harmonize and give effect to both.
The word “may” will ordinarily be treated as permissive. If parties intend unanimity to be the only method for certain amendments, the agreement should say “shall only be amended by” unanimous written consent and should reconcile that with any other voting provision.
Clarity about the effect of dissociation on voting calculations is crucial. This case underscores that voting thresholds are computed only among current members, not transferees or dissociated former members.
Substance prevails over form: if the OA authorizes amendment by vote and that vote is properly taken and publicly reflected by Articles of Amendment, a missing formal OA “paper” amendment will not necessarily invalidate the change.

IV.B. Required Joinder of the LLC as a Defendant

1. Rule 19, Rule 21, and the Declaratory Judgments Act

The joinder issue turns on M. R. Civ. P. 19 and 21 and Montana’s Uniform Declaratory Judgments Act (UDJA), § 27‑8‑301, MCA.

Under Rule 19(a):

“A party must be joined in an action, if feasible, if in that person’s absence, the court cannot accord complete relief among existing parties.” (¶ 32)

Rule 21 allows courts to “add or drop a party” at any time “on just terms” (¶ 32).

The UDJA further provides that in a declaratory-judgment action:

“All persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties.” § 27‑8‑301, MCA (¶¶ 32, 34).

The Court also invokes precedents emphasizing liberal joinder:

Mohl v. Johnson, 275 Mont. 167, 911 P.2d 217 (1996): Rule 19(a) defines “indispensable party” (¶ 32).
Village Bank v. Cloutier, 249 Mont. 25, 813 P.2d 971 (1991): Joinder is to be liberally used to ensure that “persons materially interested” are heard and a complete disposition can be made (¶ 32).
Ioerger v. Reiner, 2005 MT 155, 327 Mont. 424, 114 P.3d 1028: Rule 19 is grounded in due-process considerations of notice and the right to be heard (¶ 34).

2. Derivative-Style Suits and the Entity as a Necessary Party

Lindsay’s suit had a significant derivative component: she sought relief “on behalf of the LLC” and to force its dissolution in December 2024 (¶¶ 5, 34). The Court notes that Montana’s LLC Act expressly contemplates suits “by or against an LLC in its own name,” including derivative suits by members when those with authority refuse or are unlikely to bring the action (¶ 33; §§ 35‑8‑1101, ‑1104, MCA).

In such suits, classic corporate-derivative principles apply:

Hanrahan v. Andersen, 108 Mont. 218, 90 P.2d 494 (1949): In suits brought for the benefit of a company, the entity is a necessary party, either as plaintiff or defendant (¶ 33).
Kleinschmidt v. American Min. Co. Ltd., 49 Mont. 7, 139 P. 785 (1914): In shareholder suits against a director for the company’s benefit, the entity must be joined (¶ 33).
Ross v. Bernhard, 396 U.S. 531 (1970) and Davenport v. Dows, 85 U.S. 626 (1873): In derivative actions, the claim belongs to the entity; the entity is the real party in interest and is bound by the result (¶ 33 & n.8).

The Court distills three reasons, drawn from Hanrahan and related authority, for requiring the entity’s joinder in derivative-style suits (¶ 33):

The plaintiff’s rights are dependent on establishing the entity’s rights.
The judgment should bind the entity and conclude the matter from further litigation.
The entity is entitled to notice and an opportunity to represent its own interests.

3. The LLC as a Distinct Legal Person and Necessary Party

The Court underscores that an LLC is a separate legal entity from its members:

Sagorin v. Sunrise Heating & Cooling, LLC, 2022 MT 58, ¶ 11, 408 Mont. 119, 506 P.3d 1028; and
Noble v. Farmers Union Trading Co., 123 Mont. 518, 216 P.2d 925 (1950) (corporations as distinct legal entities) (¶ 34).

Even though Lindsay and Cameron, in their personal capacities, together owned all LLC interests, that did not make the entity’s joinder unnecessary. The LLC’s interests—particularly its continued existence versus dissolution—would be “affected by the declaration” under § 27‑8‑301, MCA (¶ 34).

Without the LLC as a named party:

The court could not grant “complete relief” among those whose rights are in issue.
Any judgment might not bind the LLC itself, inviting future litigation and raising due process concerns (¶¶ 34–35).

Aligning the LLC as a defendant was appropriate where management (Cameron) opposed the relief sought by a minority member (Lindsay). Once joined, the LLC:

Actively opposed Lindsay’s requested dissolution.
Counterclaimed for a declaratory judgment that its term was perpetual (¶ 35).

This alignment ensured the LLC’s “separate legal interests—distinct from any Member’s—were represented and bound” (¶ 35).

4. Timeliness and Burden Arguments

Lindsay argued that the motion to join the LLC was untimely under the scheduling order and that joinder would burden her financially, because as a member she would indirectly finance the defense of her own lawsuit (¶ 31).

The Court rejects both contentions:

Neither Rule 19 nor § 27‑8‑301, MCA, contains a time limit for joining necessary parties; Rule 19 joinder is not waived by a case schedule when required to do justice (¶ 36).
The district court mitigated potential “double payment” by limiting the LLC’s recoverable costs; this careful balancing fell within its broad discretion (¶ 36).

Thus, requiring joinder of the LLC as a defendant was not an abuse of discretion (¶¶ 35–36).

IV.C. Limits on Hybrid Witness Compensation under Rule 45

1. Appellate Jurisdiction and Service of Notice of Appeal

Cameron and the LLC first argued that the Supreme Court lacked jurisdiction to review the fee award because Bennett had not been served with the notice of appeal (¶ 38).

The Court clarifies:

Under the Montana Rules of Appellate Procedure, a timely notice of appeal filed with the Supreme Court invokes appellate jurisdiction (M. R. App. P. 4(2)(a)–(c); In re M.L.Y., 201 Mont. 467, 655 P.2d 499 (1982)) (¶ 39).
A copy of the notice must be served on “all parties” (M. R. App. P. 4(2)(a)), but Bennett was not a party in the district court or on appeal; she was a non-party witness (¶ 39–40).

The Court distinguishes earlier cases under repealed statutes that had required service of the notice of appeal on all “adverse parties,” noting those rules derived from the 1889 Constitution and no longer govern after the 1972 Constitution and the adoption of the current Rules of Appellate Procedure (¶ 40 & n.12–14). Consequently, appellate jurisdiction existed, and the Court proceeds to the merits of the fee issue (¶ 40).

2. Statutory Witness Fee and Goodover

Montana law fixes a baseline statutory witness fee and mileage allowance:

§ 26‑2‑501(1), MCA and § 26‑2‑507, MCA govern compensation for witnesses, including depositions.
M. R. Civ. P. 45(b) incorporates this statutory witness fee—$10 per day plus mileage (¶ 41).

The Court invokes Goodover v. Lindey’s, 255 Mont. 430, 843 P.2d 765 (1992), for the principle that courts are not authorized to award costs beyond what the statute permits (¶ 41). Absent an agreement or specific statutory/rule-based authority, compensation is limited to the statutory amount.

3. Rule 45’s Structure: Prospective Protection, Not Post-Hoc Fee Shifting

Rule 45 provides the mechanism for protecting non-parties from undue burdens imposed by subpoenas:

Rule 45(d)(1): The serving party must “take reasonable steps to avoid imposing undue burden or expense” on the subpoenaed person.
Rule 45(d)(3)(A)(iv): The court must quash or modify a subpoena that, on timely motion, “subjects a person to undue burden.”
Rule 45(d)(3)(B)(ii): The court may quash or modify a subpoena requiring disclosure of an unretained expert’s opinions based on work not requested by a party.
Rule 45(d)(3)(C)(ii): As an alternative to quashing or modifying, the court may order compliance on condition that the serving party ensures “reasonable compensation” for the subpoenaed person (¶¶ 41–42).

The Court emphasizes the prospective nature of these protections:

“Rule 45’s protective mechanisms are prospective and therefore must be invoked prior to compliance. A court cannot quash, modify, or condition compliance unless ‘on timely motion.’” (¶ 43)

In the case at hand:

Lindsay subpoenaed Bennett and tendered the statutory witness fee ($10).
Bennett, through counsel, cooperated in scheduling and then appeared for and completed the deposition.
Bennett did not move to quash, modify, or condition the subpoena before the deposition. Only afterward did she request $4,410 in professional and attorney fees (¶ 8, ¶ 43).

The district court nevertheless ordered Lindsay to pay, relying on the general duty under Rule 45(d)(1) to avoid imposing “undue burden or expense.”

The Supreme Court holds this was error:

“On these facts, awarding $4,410 post-hoc under Rule 45(d)(1)’s generalized ‘avoid undue burden’ language clashes with the structure and requirements of Rule 45(d)(3). It also risks asymmetry: although both parties designate a hybrid witness, only the serving party pays to develop the other’s rebuttal evidence.” (¶ 43)

The proper course, if a non-party believes compliance is unduly burdensome or seeks higher expert-level compensation, is to move under Rule 45(d)(3) before the deposition and, where appropriate, seek an order conditioning compliance on “reasonable compensation” under Rule 45(d)(3)(C)(ii) (¶ 44).

4. Holding and Practical Consequences

Because Bennett did not make a timely pre-deposition motion, and no order conditionally requiring reasonable compensation was entered, the district court lacked authority to award the requested fees after the fact. The Supreme Court therefore:

Holds that the district court abused its discretion in ordering Lindsay to pay $4,410 (¶ 44).
Reverses the fee award and remands with instructions to limit Bennett’s compensation to the statutory witness fee absent a party agreement to the contrary (¶ 44–45).

The opinion sends a clear message for Montana civil practice:

Non-party hybrid or unretained experts who want compensation beyond the statutory fee must proactively seek relief under Rule 45(d)(3) before the deposition.
Serving parties should anticipate this possibility, consider negotiating compensation, and be prepared to respond to or initiate Rule 45 motions where necessary.
Courts cannot use Rule 45(d)(1)’s general “undue burden” language to retroactively impose substantial expert or attorney-fee awards for a deposition that proceeded without protective motion practice.

V. Complex Concepts Simplified

1. Term LLC vs. Perpetual LLC

An LLC can be formed for:

a term—a fixed duration ending on a specific date (here, no later than December 31, 2024); or
a perpetual duration—with no fixed end date.

A term LLC ordinarily dissolves automatically at the end of its term unless the operating agreement or applicable law permits and the members validly approve an extension or conversion to perpetual duration. In Barbier, the Court holds that the members lawfully converted the LLC to a perpetual entity via the 2015 vote.

2. Supermajority Vote vs. Unanimous Written Consent

LLC operating agreements often specify:

Supermajority vote: e.g., approval by at least 67% of ownership interests for major decisions (amending the OA or Articles, waiving dissolution rights).
Unanimous written consent: all members sign a written document approving an action, often in lieu of a meeting.

Barbier clarifies that when an OA uses “may” in describing unanimous written consent, courts will treat it as an optional method, not necessarily the exclusive means of amendment—especially where a supermajority mechanism also exists.

3. Dissociation vs. Economic Rights

A member can dissociate from an LLC (for example, by giving notice of withdrawal). After dissociation:

The person is no longer a member—they lose governance and voting rights.
They may continue to hold an economic interest—a right to distributions or buyout value.

Barbier underscores that “Ownership Percentages” for voting are measured only among current members; including dissociated transferees in the voting denominator is improper.

4. Derivative Actions and Necessary Parties

A derivative action is a suit where a member (or shareholder) sues to enforce rights belonging to the entity itself, typically because management refuses to act. The recovery (if any) belongs to the entity, not the suing individual.

Because the entity’s rights are at stake and any judgment will bind the entity, it is a necessary party—it must be named in the suit (either as plaintiff or defendant) so it has notice and can be bound by the result.

5. Hybrid Witnesses and Unretained Experts

A hybrid witness is a fact witness who also offers opinion testimony drawing on specialized knowledge—such as a treating physician or, in this case, a former appraiser. They are not fully retained experts but may provide expert-type opinions.

Rule 45 treats “unretained experts” (those not hired by a party) with some protective leeway: courts can quash or modify subpoenas or condition compliance on reasonable compensation. However, this protection must be sought before the deposition via a timely motion.

VI. Broader Impact on Montana Law and Practice

1. LLC Governance and Drafting

Barbier v. Burns provides roadmap-level guidance for drafting and litigating LLC operating agreements in Montana:

Multi-path amendment clauses: Courts will strive to give effect to both supermajority-vote and unanimous-written-consent provisions where possible; overlapping language does not automatically produce ambiguity.
Statutory default displacement: Explicit OA provisions (here, a 67% supermajority) will override statutory default rules (unanimity) where the statute allows the OA to “provide otherwise.”
Membership vs. economic interest: Voting and other governance thresholds should be drafted with awareness that dissociation strips membership and voting rights; only current members count for supermajority calculations.
Term to perpetual conversions: The case confirms that a properly authorized member vote, reflected in Articles of Amendment, can effectively convert a term LLC to perpetual status even if the OA’s text is not separately redlined at the same moment—so long as the OA itself authorized the vote.

2. Joinder Doctrine in Business-Entity Litigation

The decision reinforces a strong joinder rule in Montana derivative-style litigation:

Where an action seeks declaratory relief or other remedies that directly affect an LLC’s rights or existence—particularly dissolution questions—the LLC is a necessary party under Rule 19 and § 27‑8‑301, MCA.
Entity alignment as a defendant is appropriate when the plaintiff member’s claims are adverse to management and the entity’s apparent litigation position.
Courts are encouraged to use Rule 21 flexibly to add necessary parties “at any time” to ensure due process and finality, even if doing so complicates cost allocation.

3. Civil Procedure: Rule 45 and Witness Fees

On the procedural side, Barbier sets a clear limit:

Absent agreement or a pre-deposition court order under Rule 45(d)(3)(C)(ii), non-party witnesses are limited to statutory witness fees and mileage.
Courts may NOT rely on the general “undue burden” language of Rule 45(d)(1) to impose substantial, post-hoc professional or attorney-fee awards for deposition attendance.
Practitioners on both sides must treat Rule 45’s protective mechanisms as front-end tools; any dispute over burden or compensation must be raised and resolved before the deposition goes forward.

This is likely to influence litigation strategy, encouraging:

More frequent pre-deposition negotiations over hybrid witness compensation.
Proactive Rule 45(d)(3) motions by non-party professionals whose time is sought.
Careful cost–benefit analysis when deciding whether to subpoena third-party professionals who may later seek compensation.

VII. Conclusion

Barbier v. Burns is a comprehensive decision at the intersection of LLC governance, declaratory/derivative litigation, and civil procedure. The Court:

Affirms that an LLC Operating Agreement can validly provide both a supermajority amendment mechanism and an optional unanimous-written-consent pathway, with the former displacing statutory unanimity defaults where expressly invoked.
Clarifies that dissociated members lose their voting rights and are excluded from supermajority calculations, even if they retain economic interests.
Confirms that LLCs are separate legal persons and necessary parties in litigation that seeks to define or terminate their rights or existence, thereby reinforcing joinder and due process principles.
Sets a significant procedural precedent limiting post-hoc awards of professional and attorney fees to non-party hybrid witnesses, insisting that any enhanced compensation be pursued prospectively under Rule 45’s protective framework.

Collectively, these holdings provide clarity and predictability for Montana practitioners in structuring LLC agreements, planning internal governance actions, and conducting discovery. The case stands as a leading authority on:

Interpreting overlapping amendment provisions in operating agreements;
Determining who counts toward supermajority thresholds in LLC voting;
Identifying and joining necessary parties in entity-related declaratory and derivative actions; and
Managing and compensating hybrid and unretained expert witnesses under Rule 45.

For lawyers advising closely held entities and for litigators navigating internal disputes and complex discovery, Barbier v. Burns will be a central reference point in Montana jurisprudence.