Smith v. Howery ( 1987 )


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  •                                 No. 8 6 - 5 0 1
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    1987
    A. KENDRICK SMITH, MAX A. HANSEN,
    and W.G. GILBERT, JR.,
    Plaintiffs, Counter-Defendants
    and Respondents,
    -vs-
    CLINTON J. HOWERY and JACQUELINE
    J. HOWERY,
    Defendants, Counter-Claimants and
    Appellants.
    APPEAL FROM:     District Court of the Fifth Judicial District,
    In and for the County of Beaverhead,
    The Honorable Mark P. Sullivan, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    Robert T. Cummins, Helena, Montana
    For Respondent:
    Schultz, Davis & Warren; Carl M. Davis, Dillon,
    Montana
    Garlington, Lohn & Robinson; Sherman V. Lohn,
    Missoula, Montana
    Submitted on Briefs: April 17, 1 9 8 7
    Decided: June 25, 1987
    Filed:   JUN 2 5 1987
    Clerk
    Mr. Justice John Conway Harrison delivered the Opinion of the
    Court.
    This appeal arises from a summary judgment granted
    plaintiffs by the District Court of the Fifth Judicial
    District in and for Beaverhead County. We affirm.
    This appeal is but the latest in a series of actions
    arising from a condemnation proceeding initiated in 1979. In
    February of 1979, the State of Montana filed in Beaverhead
    County an action to condemn .76 of an acre of property
    belonging to Clinton and Jacqueline Howery.     The State and
    the Howerys had been unable to agree on compensation so the
    suit was filed and the Howerys hired to represent them
    attorneys Kendrick Smith, Max Hansen and W. G. Gilbert, Jr.
    (hereinafter "Attorneys"). The Howerys eventually obtained a
    jury award in the amount of $243,475.00, a judgment affirmed
    by this Court in State By and Through the Dept. of Highways
    v. Howery (1983), 
    204 Mont. 417
    , 
    664 P.2d 1387
    .
    Following that appeal, the Howerys and the Attorneys
    began negotiations to settle the issue of attorneys' fees.
    The Attorneys had undertaken this case upon a contingent fee
    arrangement, but the parties were in dispute whether the
    Attorneys were entitled to their proportional share of the
    pre- and post-judgment interest, costs and other fees
    recovered in addition to the judgment award.
    After the parties were unable to reach an agreement,
    the Attorneys filed a complaint on July 26, 1983, alleging
    breach of contract and seeking payment for services rendered.
    An amended complaint was filed the next day.
    On October 24, 1983, the District Court granted the
    Attorneys permission to file a second amended complaint.
    That complaint added a second count alleging a breach by the
    Howerys of the implied covenant of good faith and fair
    dealing.
    The Howerys responded with an answer, counterclaim and
    demand for jury trial. It is this counterclaim which is the
    subject of the present appeal.    In it, the Howerys alleged
    the Attorneys breached the fiduciary duty owed their clients,
    breached the implied covenant of good faith and fair dealing
    and committed fraud.
    On January 16, 1984, the Attorneys filed a motion for
    summary judgment on Count I of their second amended complaint
    which the District Court granted on May 14, 1984. The court
    found the terms of the fee contract clear, certain and
    unambiguous and the amount due the Attorneys fixed and not
    ambiguous in any way.    We upheld that summary judgment in
    Smith v. Howery (Mont. 1985), 
    701 P.2d 1381
    , 
    42 St.Rep. 995
    .
    (Smith I).    We too found the fee contract "clear and
    unambiguous." Smith I, 701 P.2d at 1383.
    The Attorneys next filed a motion for summary judgment
    on the Howery's counterclaim.     The District Court granted
    this motion on August 25, 1986.      Following a Rule 54(b),
    M.R.Civ.P.,   certification, the Howerys filed this appeal
    1
    contesting this summary judgment.
    A motion for summary judgment should be granted
    if the pleadings, depositions, answers to
    interrogatories, and admissions on file,
    together with the affidavits, if any,
    show that there is no genuine issue as to
    any material fact and that the moving
    1    Following the District Court's order granting summary
    judgment on the issues raised by the counterclaim, the
    Attorneys moved to dismiss Count I1 of their second
    amended complaint.   The District Court dismissed this
    count on October 21, 1986.
    party is entitled to a judgment as a
    matter of law.
    Rule 56 (c), M.R.Civ.P.
    As noted, the Howerys base their counterclaim on three
    legal theories: violation of the fiduciary relationship,
    breach of the implied covenant of good faith and fair dealing
    and fraud. However, it appears that all these theories are
    based upon the same factual allegation--the alleged failure
    of the Attorneys to advise the Howerys that the written
    contingent fee contract included a proportionate amount of
    any interest awarded on the judgment.      We agree with the
    District Court's conclusion that any such failure would be
    insufficient in law to support any of the claims made by the
    Howerys.
    The Howerys further argue that their affidavit filed in
    opposition to the Attorneys' motion for summary judgment in
    this case raises a genuine issue as to material facts. We
    note that this affidavit is nearly identical to the Howerys'
    affidavit filed in Smith I which was found insufficient to
    establish any material fact issue requiring trial. While we
    recognize that the two affidavits were filed in conjunction
    with two separate and distinct legal claims, we again find
    that the affidavit does not establish any material factual
    issue.
    Finally, the Howerys argue there cannot be summary
    judgment in any case containing an allegation of fraud.
    Citing § 28-2-404, MCA, and numerous state cases, the Howerys
    note that actual fraud is a question of fact and contend that
    summary judgment is therefore inappropriate.
    In Campbell v. Campbell (Mont. 1986), 
    725 P.2d 207
    ,
    209, 
    43 St.Rep. 1584
    , 1587, we determined the invalidity of
    any such inference by stating:
    Section 28-2-404, MCA, states: "Fraud is
    either actual or constructive.    Actual
    fraud is always a question of fact."
    This statute does not preclude summary
    judgment where there is no evidence
    supporting a claim of fraud.   [Citation
    omitted. ]       Under    Rule    5 6 (c),
    Mont.R.Civ.P.,   summary  judgment was
    appropriate in this case.
    As noted, the only factual issues claimed are
    insufficient to support the allegations of fraud.
    The summary judgment issued by the District Court to
    the Attorneys is therefore affirmed.
    

Document Info

Docket Number: 86-501

Judges: Harrison, Turnage, Weber, Sheehy, Gulbrandson, Hunt, McDonough

Filed Date: 6/25/1987

Precedential Status: Precedential

Modified Date: 11/11/2024