Dr. James Mungas v. Great F , 2009 MT 426 ( 2009 )

December 15 2009
DA 09-0046
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 426DR. JAMES MUNGAS, DR. MICHAEL DUBE, DR. JAMES
ENGLISH, DR. THOMAS KEY, DR. DALE MORTENSON,
DR. GRANT HARRER, and DR. GERALD SPENCER
(“INDEPENDENT DOCTORS”),
Plaintiffs and Appellees,
v.
GREAT FALLS CLINIC, LLP,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADV 06-187
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert B. Pfennigs; Axilon Law Group, PLLC, Great Falls, Montana
T. Thomas Singer; Jardine, Stephenson, Blewett & Weaver, P.C.,
Billings, Montana
For Appellees:
Michael D. Cok, Theodore R. Dunn; Cok Wheat & Kinzler,
Bozeman, Montana
Submitted on Briefs: September 3, 2009
Decided: December 15, 2009
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 The Eighth Judicial District Court, Cascade County, granted summary judgment in
favor of the Appellees, who are physicians and former partners in the Great Falls Clinic
(Clinic). The District Court concluded that a portion of the Clinic partnership agreements
is void under § 28-2-703, MCA, as a restraint upon exercising a lawful profession and
granted summary judgment in favor of the Appellees. The Clinic appeals.
¶2 The facts which relate to the positions of Doctors Mungas, Dube, Mortenson,
Harrer and Spencer differ from those relating to Doctors English and Key. The issues
presented are:
¶3 Issue 1: Did the District Court err in not dismissing the claims of Doctors
Mungas, Dube, Mortenson, Harrer and Spencer, because the Clinic’s obligations to them
have been satisfied?
¶4 Issue 2: Is the claim of Dr. English barred by the provisions of § 35-10-619(9),
MCA, a statute of limitation in Montana’s version of the Revised Uniform Partnership
Act?
¶5 Issue 3: Did the District Court err in holding that the goodwill exception to the
prohibition against contracts restraining trade does not apply?
¶6 Issue 4: Did the District Court err in concluding that the provision of the Clinic’s
partnership agreements providing for forfeiture by a dissociating partner who practices in
the Great Falls area is void as a matter of law?
¶7 Issue 5: Did the District Court err in awarding attorney fees?
2
BACKGROUND
¶8 The Great Falls Clinic is a medical partnership that has been operating in Great
Falls since 1916. Over the years, the partners in the Clinic have practiced under various
partnership agreements. The 2001 and 2004 partnership agreements are pertinent to this
case. The 2001 partnership agreement contains the following provision entitled
“Covenant Not To Compete”:
Each Partner agrees that he or she will not, for a period of three years
following his or her voluntary withdrawal from the Partnership, enter into
or engage in the practice of medicine in the county of the principal place of
his or her practice and in any contiguous county thereof, directly or
indirectly, as owner, sole proprietor, partner, shareholder, member,
employee, consultant, or in any other capacity. In the event said Partner
violates this covenant such partner shall forfeit the accounts receivable of
his or her capital account referred to in Article 6.1(b)ii and all interest
whatsoever in the MontanaCare capital account referred to in Article
6.1(b)iii. 1
The partnership agreement also provides that if a partner leaves the Clinic and is not in
full compliance with the partnership agreement or is expelled, he or she suffers the same
forfeitures. A dissociating partner is paid, over time, his share of the operational profits,
capital contributions to the investment and equipment fund, stock, the actual value of
their equity interest in the Clinic, and his interest in other entities in which the Clinic may
have participated, regardless of his reason for leaving.
¶9 The 2004 partnership agreement changed the title of the covenant not to compete
provision to “Competing After Withdrawal or Retirement.” The 2001 and 2004
covenants restricting a departing partner’s practice differed only in that a partner
1
MontanaCare is a subsidiary partnership of the Clinic.
3
choosing to practice in Great Falls and the surrounding area within three years of
separation would forfeit his interest in the Great Falls Surgery Center (a new subsidiary),
in addition to the forfeitures listed under the 2001 partnership agreement.
¶10 All of the Appellees were parties to either the 2001 or 2004 partnership
agreements and all of them were aware of the noncompetition covenants. The record
shows that none of the Appellees voiced an objection to the noncompetition covenants
during any partnership meetings or at any other time before they left the Clinic.
¶11 Upon their separation from the Clinic, each of the Appellees was asked to sign a
separation agreement. Doctors Mungas, Mortenson, Dube, Harrer and Spencer signed
such an agreement. The separation agreements signed by these Appellees itemized the
amounts paid to them (profits, stock, partnership interest, etc.) and stated,
Both parties agree that the following amounts represent all remaining
interest of [the doctor], his heirs, representatives and assigns, in the
Partnership and its assets and that payment of the same as herinafter set
forth by the GREAT FALLS CLINIC, LLP to [the doctor] shall fully
account to him and them for all amounts owing to or to become owing to
him by the GREAT FALLS CLINIC, LLP by reason of his Partnership
interest.
¶12 Dr. English separated from the Clinic in September 2004. The Clinic sent him a
separation agreement but he refused to sign it. When English notified the Clinic he was
leaving the partnership, he requested that his MontanaCare account and accounts
receivable be paid to him because, in addition to practicing in Great Falls, he would be
practicing outside the geographic area delineated in the noncompetition covenant. The
Clinic denied his request. English received a check and a statement of distribution from
the Clinic.
4
¶13 Dr. Key did not sign a separation agreement, as well. He received a proposed
separation agreement several months after he left the Clinic in November 2005. Key
understood the proposed agreement was a statement of what he should anticipate
receiving with his separation from the Clinic. He stated in his deposition he did not sign
the separation agreement because he believed the forfeiture clause drives doctors out of
the community and because doctors who have contributed through earnest hard work
should not be penalized financially for a decision that they change their lives and change
their practices. Key further expressed dissatisfaction with the Clinic’s calculation of the
amount he was to receive because, although his day-to-day practice was steady, the
accounting of his production fluctuated.
¶14 From the record, it appears that in February 2006, Key received a check from the
Clinic accompanied by a letter explaining that the amount of his separation payments had
been miscalculated. Key has received and accepted monthly payments of $1,294.48 for
his interest in the Clinic.
¶15 In February 2006, the Appellees filed this action and made several claims.
However, by the time of the final pretrial conference only two claims remained: (1) the
prayer for a declaratory judgment that the portion of the partnership agreements reducing
the buyouts for former partners competing in Great Falls was void, and (2) the claim for
recovery of the amounts forfeited under the provisions.
¶16 In the District Court, the Appellees asserted that the provision of the partnership
agreements reducing payments to them was void as a matter of law because they are
prohibited restraints on the ability to practice their profession under § 28-2-703, MCA.
5
They further argued that the forfeiture portion of the partnership agreements are
unreasonable because they are arbitrary and the forfeitures are not related to a legitimate
business interest, as required by Dobbins, Deguire & Tucker, P.C. v. Rutherford,
MacDonald & Olson, 218 Mont. 392, 708 P.2d 577 (1985).
¶17 The Clinic responded that the forfeiture provision of the partnership agreements
was not void under § 28-2-703, MCA, because the reduction in payments to departing
physicians fall within the exception for sale of goodwill, as is provided in § 28-2-704,
MCA. At a hearing on pending motions, the Clinic also argued that Doctors Mungas,
Dube, Mortenson, Harrer and Spencer may not recover any additional amounts because
they reached an accord with the Clinic which had been satisfied. The Clinic also argued
that the forfeiture provision of the partnership agreements was reasonable as a matter of
law and therefore, the claims of the Appellees must be dismissed.
¶18 The District Court determined, as a matter of law, that the Appellees are entitled to
recover the amounts they forfeited under the noncompetition covenants because neither
exception provided in §§ 28-2-704 and -705, MCA, applied, thus the covenants
constituted an unenforceable restraint on trade under § 28-2-703, MCA. The District
Court also held that no waiver existed and the statute of limitations did not apply. The
District Court then calculated the amount owed by the Clinic to the Appellees and entered
judgment in their favor for such amounts, plus attorney fees.
STANDARD OF REVIEW
¶19 We review a district court’s rulings on summary judgment de novo, applying the
same criteria as the district court under M. R. Civ. P. 56. Paull v. Park County, 2009 MT
6
321, ¶ 17, 352 Mont. 465, --- P.3d ---. We review the conclusions of law upon which the
district court bases its decision to grant or deny summary judgment to determine if they
are correct. Apple Park, L.L.C. v. Apple Park Condominiums, L.L.C., 2008 MT 284, ¶
12, 345 Mont. 359, 192 P.3d 232.
DISCUSSION
¶20 Issue 1: Did the District Court err in not dismissing the claims of Doctors
Mungas, Dube, Mortenson, Harrer and Spencer, because the Clinic’s obligations to them
have been satisfied?
¶21 Section 28-2-703, MCA, provides:
Any contract by which anyone is restrained from exercising a lawful
profession, trade, or business of any kind, otherwise than is provided for by
28-2-704 or 28-2-705, is to that extent void.
¶22 The exception to § 28-2-703, MCA, provided in § 28-2-704, MCA, concerning the
sale of goodwill is discussed in Issue 3 below. The exception to § 28-2-703, MCA,
provided for in § 28-2-705, MCA, concerning dissolved partnerships, is not applicable as
the Clinic partnership has not been dissolved.2
¶23 The Clinic, citing § 28-1-1403, MCA, asserts that the five doctors who signed
separation agreements—Mungas, Mortenson, Dube, Harrer and Spencer—may not
recover further payments. Section 28-1-1403, MCA, provides:
2
A limited liability partnership is included in the term “partnership.” Section 35-10-
102(5)(b), MCA. A partnership continues after dissolution until the winding up of its
business is completed, at which time the partnership terminates. Section 35-10-602,
MCA.
7
Part performance of an obligation, either before or after a breach thereof,
when expressly accepted by the creditor in writing in satisfaction or
rendered in pursuance of an agreement in writing for that purpose, though
without any new consideration, extinguishes the obligation.
If the forfeiture provision of the partnership agreements in question is void under § 28-2-
703, MCA, then in law, it is the same thing as if this provision had never existed. School
Dist. No. 1 of Silver Bow Co. v. Driscoll, 176 Mont. 555, 563-64, 568 P.2d 149, 154
(1977) (citing Lowery v. Garfield Co., 122 Mont. 571, 584, 208 P.2d 478, 485 (1949)).
Assuming, arguendo, that the forfeiture provision of the partnership agreements never
existed, the record is clear that the creditors—Mungas, Mortenson, Dube, Harrer and
Spencer—would have been due an amount greater than that paid to them for their
partnership interests. However, they expressly accepted payments representing a reduced
amount of profits, stock, and partnership interest and signed written separation
agreements which clearly state that the payments called for by these agreements
constitute the full amount the Clinic is going to pay. Thus, pursuant to § 28-1-1403,
MCA, any obligation of the Clinic to pay more to Mungas, Mortenson, Dube, Harrer and
Spencer is extinguished. The summary judgment of the District Court in favor of these
five Appellees must be reversed and their claims dismissed.
¶24 Because Doctors English and Key did not sign separation agreements, § 28-1-
1403, MCA, does not apply to them. The Clinic does not argue that the claims of English
and Key are extinguished by an accord and satisfaction or by the provisions of § 28-1-
1403, MCA.
8
¶25 Issue 2: Is the claim of Dr. English barred by the provisions of § 35-10-619(9),
MCA, a statute of limitation in Montana’s version of the Revised Uniform Partnership
Act?
¶26 Dr. English withdrew from the Clinic on September 17, 2004. Near that time, the
Clinic offered to pay the amount due to English under the partnership agreement. The
Clinic claims that by the time this action was commenced in February 2006, English’s
claim was time barred as he did not file a complaint within 120 days of the time the
Clinic offered to pay him. The statutes concerning the time within which English was
required to bring this action are complicated.
¶27 Section 35-10-409, MCA, provides in pertinent part:
(2) A partner may maintain an action against the partnership or another
partner for legal or equitable relief, including an accounting as to
partnership business, to enforce:
. . .
(b) a right under this chapter, including the partner’s:
. . .
(ii) right on dissociation to have the partner’s interest in the partnership
purchased pursuant to 35-10-619 or enforce any other right under 35-10-
616 through 35-10-623;
. . .
(3) The accrual of and any time limitation on a right of action for a remedy
under this section is governed by other law. A right to an accounting upon
a dissolution and winding up does not revive a claim barred by law.
¶28 Section 35-10-618(1), MCA, provides:
If a partner’s dissociation results in a dissolution and winding up of the
partnership business, 35-10-602, 35-10-609, and 35-10-624 through 35-10-
629 apply; otherwise 35-10-619 through 35-10-623 apply.
9
¶29 Section 35-10-619(2) through (8), MCA, direct how a court determines the
amount a dissociating partner is paid when, as in this case, his dissociation does not result
in the dissolution and winding up of the partnership business. These subsections do not,
however, refer to a calculation that is made under a partnership agreement. Then, § 35-
10-619(9), MCA, provides:
A dissociated partner may maintain an action against the partnership,
pursuant to 35-10-409(2)(b)(ii), to determine the buyout price of that
partner’s interest, any offsets under subsection (3), or other terms of the
obligation to purchase. The action must be commenced within 120 days
after the partnership has tendered payment or an offer to pay or within 1
year after written demand for payment if no payment or offer to pay is
tendered. The court shall determine the buyout price of the dissociated
partner’s interest, any offset due under subsection (3), and accrued interest,
and enter judgment for any additional payment or refund. If deferred
payment is authorized under subsection (8), the court shall also determine
the security for payment and other terms of the obligation to purchase. The
court may assess reasonable attorney fees and the fees and expenses of
appraisers or other experts for a party to the action, in amounts the court
finds equitable, against a party that the court finds acted arbitrarily,
vexatiously, or not in good faith. The finding may be based on the
partnership’s failure to tender payment or an offer to pay or to comply with
the requirements of subsection (7).
¶30 As noted above, § 35-10-409(b)(2)(ii), MCA, provides that a dissociating partner,
such as English, may maintain an action against a partnership, such as the Clinic, to
enforce his right to have his interest in the partnership purchased pursuant to § 35-10-
619, MCA. Section 35-10-619, MCA, subparagraphs (2) through (8), provide how the
amount due is to be determined by a court. Subsection (9) of § 35-10-619, MCA, states
that an action to determine how much is owed must be commenced within 120 days of
the time the partnership has tendered payment or an offer to pay. However, it is uncertain
whether the 120-day period within which to commence an action contained subsection
10
(9) includes a case such as this, where the amount due is determined by reference to a
partnership agreement, or whether the 120-day limitation only applies where no
partnership agreement exists and a court must set the amount of the payment. The
uncertainty is compounded by § 35-10-409(3), MCA, that provides the time limitation on
a right of action is governed by other law, without stating whether “other law” includes §
35-10-619(9), MCA, or requires a reference to periods of limitation found outside of the
Revised Uniform Partnership Act.
¶31 The 120-day period of limitation in § 35-10-619(9), MCA, could logically apply.
The Appellees, in essence, bring this action to determine the buyout price of their
partnership interest. On the other hand, it is also logical to interpret § 35-10-619(9),
MCA, to say that the 120-day limitation period only applies to an action where a court
must set a buyout price as provided in § 35-10-619(2) through (8), MCA, without
reference to a controlling partnership agreement. It is also logical to interpret § 35-10-
409(3), MCA, to provide that the time within which an action must be commenced must
be found in law other than § 35-10-619(9), MCA.
¶32 Where a substantial question exists regarding which limiting statute should apply,
a district court should, in accordance with public policy, resolve the doubt in favor of a
statute containing the longer limitation. Kearney v. KXLF Communications, Inc., 263
Mont. 407, 413, 869 P.2d 772, 775 (1994); Demarest v. Broadhurst, 2004 MT 147, ¶ 13,
321 Mont. 470, 92 P.3d 1168. Resolving the doubt about whether the 120-day limitation
on bringing this action contained in § 35-10-619(9), MCA, bars English’s claim in favor
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of a longer period of limitation, we conclude the District Court did not err in holding that
the claim of English is not time barred.
¶33 Issue 3: Did the District Court err in holding that the goodwill exception to the
prohibition against contracts restricting the ability to engage in a lawful profession does
not apply?
¶34 Section 28-2-704(1), MCA, provides an exception to the prohibition of restraints
on trade:
One who sells the goodwill of a business may agree with the buyer to
refrain from carrying on a similar business within the areas provided in
subsection (2) so long as the buyer or any person deriving title to the
goodwill from him carries on a like business therein.
¶35 The Clinic argues that the forfeiture provision in the partnership agreements
constitutes the sale of the goodwill of a business, and therefore fall within § 28-2-704,
MCA. However, in interpreting § 28-2-704(1), MCA, this Court has held that a sale is a
contract by which, for a pecuniary consideration called a price, one transfers to another
an interest in property. Section 30-11-101, MCA; see Western Montana Clinic v.
Jacobson, 169 Mont. 44, 51, 544 P.2d 807, 811 (1976). In this instance, there is no
payment or agreement to pay a pecuniary consideration in exchange for the transfer to
another of an interest in property. There is no “sale” of property. Section 28-2-704(1),
MCA, the sale of goodwill exception to the prohibition on contracts in restraint of trade,
does not apply to the partnership agreements at issue in this case.
12
¶36 Issue 4: Did the District Court err in concluding that the provision of the Clinic
partnership agreements, which provide for forfeiture by a dissociating partner who
practices in the Great Falls area, is void as a matter of law?
¶37 As noted above in ¶ 21, § 28-2-703, MCA, provides that a contract which is
determined to unreasonably restrain trade “is to that extent void.” Section 28-2-604,
MCA, titled “when contract partially void,” provides that a contract with several distinct
objects of which one is lawful and one is unlawful, the contract is void as to the latter and
valid as to the rest. Therefore, the noncompetition covenant in the Clinic partnership
agreements would be severable from the remainder of the agreement should a
determination be made that it is unlawful.
¶38 In interpreting § 28-2-703, MCA, this Court held in J.T. Miller Co. v. Madel, 176
Mont. 49, 55, 575 P.2d 1321, 1324 (1978), that a noncompetition contract which
completely barred an insurance salesman from selling insurance in Montana for five
years after he left an insurance company was void. Later in Dobbins, the Court held that
the holding in Madel applied only to those cases in which a covenant not to compete is, in
effect, an absolute prohibition upon a person’s right to engage in his business. Dobbins,
218 Mont. at 395-96, 708 P.2d at 579. The restriction at question in Dobbins did not bar
the dissociating partners from practicing their professions in the vicinity, but rather
required that if they did so and represented clients of their former firm within one year of
their dissociation, they must pay their former partnership an amount calculated under the
agreement. Dobbins, 218 Mont. at 396, 708 P.2d at 579. Under those circumstances, the
13
Court held that the restraint on trade provision of the partnership agreement was not void
under § 28-2-703, MCA. Dobbins, 218 Mont. at 397, 708 P.2d at 580.
¶39 The Dobbins Court concluded that in those instances where a contract contains a
restraint on a person’s ability to practice their profession, but such restraint is not an
absolute prohibition, a factual determination must be made as to whether the covenant not
to compete is reasonable. Dobbins, 218 Mont. at 396, 708 P.2d at 579. The Court
adopted the following three-part rule to be applied in determining whether a covenant is a
reasonable restraint under § 28-2-703, MCA: (1) the covenant should be limited in
operation either as to time or place; (2) the covenant should be based on some good
consideration; and (3) the covenant should afford a reasonable protection for and not
impose an unreasonable burden upon the employer, the employee or the public. Dobbins,
218 Mont. at 397, 708 P.2d at 580. This interpretation of § 28-2-703, MCA, has been
consistently followed. Access Organics, Inc. v. Hernandez, 2008 MT 4, ¶¶ 16-27, 341
Mont. 73, 175 P.3d 899; Montana Mountain Products v. Curl, 2005 MT 102, ¶¶ 11-17,
327 Mont. 7, 112 P.3d 979; Daniels v. Thomas, Dean & Hoskins, Inc., 246 Mont. 125,
144, 804 P.2d 359, 370-71 (1990); and State Medical Oxygen and Supply, Inc. v.
American Medical Oxygen Co., 240 Mont. 70, 74-75, 782 P.2d 1272, 1274-75 (1989).
¶40 In this case, unlike Madel and like Dobbins, the noncompetition covenant in
question is not an absolute prohibition on the right of English and Key to engage in their
professions. But because they have chosen to practice in the proscribed area, the
partnership agreements provide that they will not be paid as much. Still, they are entitled
to receive a substantial amount of money for their partnership interests in the Clinic.
14
Thus, the District Court erred in granting summary judgment in favor of English and
Key. The question of whether the covenants not to compete are reasonable must be
remanded for trial.
¶41 Issue 5: Did the District Court err in awarding attorney fees?
¶42 A district court’s underlying decision as to whether legal authority exists to award
attorney fees is a conclusion of law which this Court reviews to determine if the district
court’s interpretation of the law is correct. Trustees of Indiana Univ. v. Buxbaum, 2003
MT 97, ¶ 15, 315 Mont. 210, 69 P.3d 663; Braach v. Graybeal, 1999 MT 234, ¶ 6, 296
Mont. 138, 988 P.2d 761. A district court’s grant or denial of attorney fees is a
discretionary ruling which this Court reviews for abuse of discretion. Buxbaum, ¶ 15.
¶43 Generally, Montana follows the American Rule that a party in a civil action is not
entitled attorney fees absent a specific contractual or statutory provision. Buxbaum, ¶ 19.
The Clinic partnership agreements do not contain language regarding attorney fees.
However, the Appellees prayed for declaratory relief under the Uniform Declaratory
Judgments Act, §§ 27-8-101, MCA, et seq. In an action for a declaratory judgment, § 27-
8-313, MCA, may provide a statutory basis for awarding attorney fees as supplemental
relief, if such an award is determined to be necessary and proper. Martin v. SAIF Corp.,
2007 MT 234, ¶ 22, 339 Mont. 167, 167 P.3d 916; Buxbaum, ¶ 41. This Court has
adopted a “tangible parameters” test to determine whether a grant of attorney fees is
necessary and proper. Martin, ¶ 23. In this case, the District Court awarded attorney fees
to the Appellees because it concluded an award of attorney fees is necessary and proper
under § 27-8-313, MCA.
15
¶44 In Buxbaum, while the Court determined that § 27-8-313, MCA, may provide a
statutory basis for awarding attorney fees, it also recognized that simply because a party
filed an action seeking a declaratory judgment it is not automatically presumed that an
award of attorney fees is necessary and proper. Buxbaum, ¶ 45. If such were the case, an
award of fees to the prevailing party would be warranted in every garden variety
declaratory judgment action and the American Rule on attorney fees would be
eviscerated. This Court has upheld the American Rule in the face of similar concerns.
See Sampson v. National Farmers Union Prop. and Cas. Co., 2006 MT 241, ¶¶ 19-22,
333 Mont. 541, 144 P.3d 797; Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 23, 351
Mont. 464, 215 P.3d 649. In both of these instances, the Court rejected claims for an
exception to the American Rule that were more compelling than the claims for fees in
this case.
¶45 In United National Ins. Co. v. St. Paul Fire & Marine Ins. Co., 2009 MT 269, ¶
38, 352 Mont. 105, 214 P.3d 1260, this Court recently held that implicit in the
determination of whether an award of attorney fees is necessary and proper is a threshold
question of whether the equities support a grant of attorney fees. Thus, while a district
court has the discretion to award attorney fees under § 27-8-313, MCA, such fees are
only appropriate if equitable considerations support the award. This determination must
be made before a court applies the criteria of the tangible parameters test. United
National, ¶ 38.
¶46 As stated in their brief on appeal, the Appellees acknowledge they brought this
action to recover amounts withheld by the Clinic under a portion of a contract that they
16
allege is void. The true purpose of this action is to secure a judgment for money. The
partnership agreements were entered into by relatively sophisticated, well-educated, well-
informed physicians who dealt with each other on an equal footing. In this case, we have
similarly situated parties disputing whether a contract provision is void. In applying
equitable considerations to the facts of this case, the Court concludes that the equities do
not support an award of attorney fees. Because this threshold requirement is not met, we
do not reach an analysis of the tangible parameters test. Upon remand, no party may
recover attorney fees.
CONCLUSION
¶47 The summary judgment in favor of Doctors Mungas, Mortenson, Dube, Harrer and
Spencer is reversed and upon remand the District Court is directed to dismiss those
claims. The summary judgment in favor of Doctors English and Key is reversed and
their claims are remanded for trial. Upon trial, no party shall be entitled to attorney fees
under § 27-8-313, MCA.
/S/ JOHN WARNER
We concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
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