author: JUSTICE HUNT JUSTICE TRIEWEILER

text:
    JOSHUA SAYEGUSA, Plaintiff and Respondent, v. RANDY A. ROGERS, d/b/a BIG SKY TOPPERS, Defendant and Appellant.
    No. 92-272.
    Submitted on Briefs October 29, 1992.
    Decided February 3, 1993.
    50 St.Rep. 89.
    256 Mont. 269.
    846 P.2d 1005.
    For Appellant: Randy A. Rogers, Pro Se, Helena.
    For Respondent: Joshua Sayegusa, Pro Se, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant and appellant Randy Rogers (seller), appeals from an adverse decision of the District Court of the First Judicial District, Lewis and Clark County. Plaintiff and respondent Joshua Sayegusa, a licensed real estate broker (broker), brought suit seeking to recover a real estate broker’s commission. The District Court granted summary judgment in favor of the broker, concluding that seller was obligated to pay the commission, even though the proposed sale did not go through. Seller appeals. We affirm.

The only issue before the Court is whether the District Court erred in granting broker’s motion for summary judgment.

On March 29,1991, seller entered into an exclusive listing contract with broker to sell Big Sky Toppers and its inventory and equipment. Broker found two potential buyers of seller’s business. In April 1991, the potential buyers offered $80,000 for the business, which included certain items of inventory and equipment. The offer of $80,000 was in response to seller’s asking price. On April 20, 1991, the buyers signed an agreement to sell and purchase the business. Seller counteroffered on April 22,1992, with respect to certain terms of the agreement, and this counteroffer was accepted by the buyers on the same day.

The agreement included a closing date of May 15, 1991. Closing did not occur on May 15, 1991. Several days later, the buyers expressed concern that the inventory was less than what had been stated in the purchase and sale contract. Both parties agreed that the inventory was less and that a reduction in the price was appropriate. The parties could not agree on an appropriate reduction and the transaction never closed. Broker brought this action alleging that he was entitled to his commission even though the sale did not go through. The District Court agreed and granted summary judgment in favor of broker.

A district court judge may grant summary judgment when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.

Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. Upon reviewing a grant or denial of a motion for summary judgment, this Court applies the same standard as the district court.

The provision in the contract pertaining to the broker’s commission provides in part that:

FOR VALUE RECEIVED, you and your agents are employed to find a buyer ready and willing to purchase or exchange the property described above at the price and terms noted or at such other price and terms as I/we accept. You are authorized to accept a deposit on the purchase price. In the event I/we sell or exchange the property, or a written agreement is executed for the sale or exchange of the property during the term of this agreement, I/we agree to pay you in cash a commission equal to 10% of the selling price. [Emphasis added.]

This Court’s role in interpreting contracts is to construe the instrument according to its terms and this Court may neither insert nor omit terms to the contract. Martin v. Laurel Cable TV, Inc. (1985), 215 Mont. 229, 696 P.2d 454; Section 1-4-101, MCA. In situations in which the terms of the contract are clear and unambiguous, it is the duty of the court to enforce the contract as the parties intended. First Sec. Bank v. Vander Pas (1991), 250 Mont. 148, 818 P.2d 384.

In this case, the District Court concluded that the language of the listing agreement was clear and unambiguous as to broker’s right to his commission. Broker was entitled to a commission upon procuring a buyer “ready and willing to purchase” and who entered into a written agreement to make the purchase. The District Court found that the broker in this instance satisfied the requirements in the listing agreement. The District Court concluded that there were no genuine issues of material fact regarding this question and granted summary judgment in favor of broker. We agree with the District Court that the result is unfortunate. We also agree that the result was mandated by the clear and unambiguous language of the listing agreement and the well-established law in this area.

Seller argues that the buyers backed out of the deal through no fault on his part. Additionally, seller argues that the buyers are now in control of the premises, as well as his equipment and inventory. Seller fails to recognize, however, that the present litigation involves the listing agreement between himself and the broker. The rights or obligations of the buyers, under their contract to purchase the business, are not at issue here.

It is well-established law in Montana that a broker’s right to recover a commission is conditioned on the broker’s ability to accomplish that which he or she undertook to do in the contract of employment. Diehl and Associates, Inc. v. Houtchens (1977), 173 Mont. 372, 567 P.2d 930; First Trust Co. of Montana v. McKenna (1980), 188 Mont. 534, 614 P.2d 1027; Ehly v. Cady (1984), 212 Mont. 82, 687 P.2d 687. Pursuant to the clear and unambiguous language of the listing agreement in this case, the broker became entitled to his commission when the buyers entered into a written contract to purchase the business for the price requested by the seller. The District Court noted that:

[Seller’s] contractual obligation [under the listing agreement] overrides the unfortunate result of the buyers’ backing out of the deal through no fault of [seller]. It is one of the risks taken when entering into such a listing contract.

It is indeed unfortunate that seller is required to pay a commission even though the sale did not occur, but the language of the listing agreement and past precedent of this Court require such a result.

As a final matter, appellant points out that on June 12, 1991, respondent dismissed the complaint against codefendant Robert V. Rogers. A review of the District Court record in this action indicates that Robert V. Rogers was dismissed from the action and that he was not brought in again at a later date. Therefore, Robert V. Rogers was not a party to this caseandis not responsible for the judgment entered by the District Court against appellant Randy A. Rogers.

The decision of the District Court to grant summary judgment in favor of the broker is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I respectfully dissent from the opinion of the majority.

The listing agreement upon which the plaintiff relies is neither clear nor unambiguous and should be construed in favor of the defendant. Such a construction would also produce a more reasonable result.

For example, the plaintiff’s listing agreement provided that he was employed “to find a buyer ready and willing to purchase or exchange the property....” Did that simply mean ready and willing to sign a meaningless and unenforceable agreement to sell and purchase? Or, did it mean ready and willing to purchase the property by completing the transaction at the time set for closing? Keeping in mind that brokers in general, and this broker in particular, are to be paid a percentage of the purchase price, and that the purchase price is not realized until closing, the only reasonable interpretation of this provision is that the broker was retained to find a buyer who was ready and willing to purchase the property at the time of closing. Otherwise, the seller has realized no income with which to pay the brokerage fee and there would be no limit on the mischief that could be engaged in by real estate brokers. For example, why require that there be a buy/sell agreement before the broker’s obligation is satisfied? Why not simply require that a broker produce someone off the street who says they are “ready and willing to purchase” and leave all other considerations up to the unfortunate seller?

At best, what amounts to a “ready and willing purchaser” is ambiguous and should be construed in favor of the seller because it was the plaintiff realtor who prepared the contract and against whose interest any ambiguities must be construed.

There is a second ambiguity in the additional provision of the listing agreement that is relied upon by the majority. It is true that that agreement clearly provides that in the event a written agreement is entered into for the exchange of the property, the realtor is entitled to a commission. However, that commission is defined as ten percent of the “selling price.” "What does selling price mean? Does it mean a price that is agreed upon in a buy/sell agreement which is never performed? Or does it mean that price at which the property is actually sold? Again, considering the customary manner in which brokerage fees are paid, it makes no sense to interpret “selling price” to mean a price which is never paid. The realtor prepared and submitted the brokerage agreement and if he intended the commission to equal ten percent of the price agreed to, it would have been easy enough to make that provision clear in the agreement. It appears to me that by linking the commission to the “selling price,” it was the intention of the parties that if there was no sale there would be no commission. However, regardless of the intention of the parties, at best, the term creates an ambiguity regarding the parties’ intentions and should be construed against the realtor who prepared the contract.

Neither do I find any of the authorities relied upon by the majority to be persuasive in support of the majority’s conclusion. In fact, in Diehl and Associates, Inc. v. Houtchens (1977), 173 Mont. 372, 567 P.2d 930, this Court arrived at an opposite conclusion based upon a real estate listing agreement that included language very similar to the language included in this agreement. In First Trust Company of Montana v. McKenna (1980), 188 Mont. 534, 614 P.2d 1027, we reversed a district court judgment which awarded a commission to a real estate broker. However, that case was decided for reasons other than those discussed in this case. Finally, in Ehly v. Cady (1984), 212 Mont. 82, 687 P.2d 687, we did affirm an award to a real estate broker, even though the sale was never consummated. However, in that case, there was a specific finding that the sale was prevented by the seller’s refusal to perform according to the terms of the buy/sell agreement. In this case, there is a question of fact regarding which of the parties was responsible for the nonperformance of the agreement to sell and purchase. That issue of fact could not be decided by summary judgment.

As a result of this decision, many unsuspecting sellers of real estate will assume obligations to pay a commission where a commission was never intended, where no actual benefit was provided by the broker, and where there were no sale proceeds from which to pay the commission. This result is not only unfortunate and unfair, it is contrary to the law of contracts and poor public policy. For these reasons, I would reverse the District Court and remand this case for trial to determine which of the parties prevented the performance of the agreement to sell and purchase. If the defendant was willing to perform, but was prevented from doing so by the buyer’s refusal to honor the terms of the written agreement, then I would conclude that the plaintiff is entitled to no commission because the purchaser found by the plaintiff was not “ready and willing to purchase.” However, if the buyer was willing to complete the sale but was prevented from doing so by the seller’s refusal to comply with the terms of their written agreement, then I would conclude that the broker had performed his obligation under the fisting agreement and was entitled to his commission.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL KLINKHAMMER, Defendant and Appellant.
    No. 92-347.
    Submitted on Briefs October 14, 1992.
    Decided February 3, 1993.
    50 St.Rep. 92.
    256 Mont. 275.
    846 P.2d 1008.

      For Appellant: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena.
    For Respondent: Marc Racicot, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Robert L. Deschamps HI, Missoula County Attorney, Gary L. Henricks, Deputy County Attorney, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant and appellant, Michael Klihkhammer, appeals from the decision of the District Court of the Fourth Judicial District, Missoula County. Defendant was charged with driving under the influence of alcohol, second offense. Defendant’s motion to dismiss the charge was denied by the District Court. Following the court’s denial of his motion to dismiss, defendant entered a conditional plea of guilty to the charge. Defendant’s motion to dismiss the charge was based on his contention that his due process rights were violated in that he was not allowed to obtain an independent test to determine the amount of alcohol in his body. The State argued that he did not request such a test and that his due process rights were not violated. The District Court agreed with the State and denied defendant’s motion to dismiss. Defendant appeals. We affirm.

The only issue raised on appeal is whether the District Court was clearly erroneous in determining that defendant’s due process rights were not violated in relation to obtaining an independent test to determine the amount of alcohol concentration in his body.

In the early morning hours of June 23, 1991, defendant was stopped and arrested by a Missoula County Deputy Sheriff for driving under the influence of alcohol. Defendant was taken to the Missoula County Sheriff’s Office for processing. These proceedings were recorded by videotape.

Upon arriving at the sheriffs office, the arresting officer explained to defendant Montana’s implied consent statute found at Section 61-8-402, MCA. The officer explained that if defendant refused to submit to a test at that time to determine the concentration of alcohol in his body, the officer would be required to seize his driver’s license. Additionally, the arresting officer informed defendant that in addition to the test being offered at that time, defendant could obtain an independent test at his own expense. Defendant was reluctant to take the offered test and requested instead that a test be administered by his doctor. As the videotape recording of these proceedings indicates, defendant apparently misunderstood the implied consent law as it was explained to him and believed that he could refuse the test being offered by the officer, but still keep his license by obtaining an independent test on his own. The officer explained several times to defendant that the independent test could be obtained in addition to the offered test, but that refusal of the offered test would result in the immediate seizure of his driver’s license, regardless of any independent test defendant might later take. Once defendant understood that his refusal to take the offered test would result in the immediate seizure of his driver’s license, he consented to take the offered test.

Following the administration of the breath test by the officer, the videotape recording indicates that defendant did not request an independent test in addition to the administered test. There is no allegation that defendant requested an independent test at any time subsequent to the conclusion of the videotape recording. Defendant was released from jail on bond between 5 and 6 a.m., approximately two to three hours after taking the intoxilyzer test.

Defendant, representing himself, was found guilty by a jury in Justice Court of the offense charged. Defendant appealed to the District Court. In District Court, defendant, as he had done in Justice Court, moved to dismiss the driving under the influence charge. The basis for this motion was defendant’s contention that his due process rights had been violated when he was not given an independent test to determine the alcohol level in his body at the time of the arrest. The issue was briefed by the parties and it was stipulated that the District Court would decide the motion based on the briefs and the videotape recording. The District Court denied the defendant’s motion on the basis that defendant had not made a timely request for an independent test. Defendant then entered a conditional plea of guilty to the offense charged, pursuant to Section 46-12-204(3), MCA. Thereafter, defendant filed his notice of appeal with this Court.

Was the District Court clearly erroneous in determining that defendant’s due process rights were not violated in relation to obtaining an independent test to determine the amount of alcohol concentration in his body?

Defendant’s due process argument rests on his allegation that during his processing by the arresting officer he requested, but was not allowed to obtain, an independent test. The District Court found that defendant did not request an independent test, and therefore, his due process rights were not violated. Our standard of review of factual findings in nonjury criminal cases as to the elements of the crime charged is “whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Bower (Mont. 1992), 833 P.2d 1106, 1110, 49 St. Rep. 586, 588. However, a district court’s factual findings on other issues in criminal proceedings will be reviewed using the clearly erroneous standard. State v. Cope (1991), 250 Mont. 387, 819 P.2d 1280. The clearly erroneous standard is the appropriate standard of review in this case.

Defendant alleges that he requested an independent test at the time of his processing on the driving under the influence charge. Defendant further contends that upon his release, several hours after the test administered by the officer, it was too late for him to obtain an independent test on his own. Section 61-8-405(2), MCA, provides that in addition to the test offered to a defendant by the law enforcement officer:

The person may, at his own expense, have a physician or registered muse of his own choosing administer a test, in addition to any administered at the direction of a peace officer, for the purpose of determining any measured amount or detected presence of alcohol in the person at the time alleged, as shown by analysis of his blood, breath, or urine. The failure or inability to obtain an additional test by a person does not preclude the admissibility in evidence of the test taken at the direction of the peace officer.

This Court discussed the application of Section 61-8-405, MCA, in our recent decision in State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155. We recognized that the right to attempt to obtain exculpatory evidence is constitutionally guaranteed to criminal defendants. Swanson, 722 P.2d at 1157. When a defendant is charged with the offense of driving under the influence, this right to obtain exculpatory evidence includes the right to obtain an independent test to establish sobriety, even if the defendant has refused the test offered by a peace officer. Swanson, 722 R2d at 1157.

However, the mere fact that an independent test is not obtained is not a violation of a defendant’s due process rights. The riile set out in Swanson was clarified in State v. Peterson (1987), 227 Mont. 418, 739 P.2d 958. In Peterson, we stated that the rule adopted in Swanson only applies when “(1) the defendant has timely claimed the right to a blood test, and (2) the officer or officers do not unreasonably impede the defendant’s right to obtain a blood test.” Peterson, 739 P.2d at 961. Both criteria must be satisfied in order to support an allegation of a violation of a defendant’s due process rights. The Swanson rule will not apply if the defendant either fails to timely request the test, or the test is unavailable through no unreasonable acts of law enforcement.

The District Court Judge determined, after viewing the videotape recording, that the defendant did not timely request the right to an independent test. It is clear upon reviewing the videotape that defendant did request that a physician of his choice administer a test. However, defendant did not appear to be requesting an independent test as provided for in Section 61-8-405(2), MCA, but was instead requesting that his physician administer the test necessary under Section 61-8-402, MCA, to avoid seizure of his driver’s license. After several attempts, the officer was able to com rm mi cate to defendant that if the offered test was not taken, defendant’s driver’s license would be seized. Once defendant understood that he could not have a physician of his own choice administer the test under Section 61-8-402, MCA, he consented to take the offered test and did not request an independent test of his own.

On appeal, defendant refers in his reply brief to several statements made by the arresting officer which he argues demonstrate that a request had been made for an independent test. These statements indicate that the officer informed defendant that at his request he would be taken to the hospital for a test, or that he could phone a physician. These statements are merely a recitation of the law which the officer was required to explain to defendant. The statements only show that it was explained to defendant that an independent test would be available if he requested one. The statements do not show that defendant had in fact requested such a test. We hold that the District Court was not clearly erroneous in determining that defendant did not timely request a test, and therefore, his due process rights were not violated.

Affirmed.

JUSTICES GRAY, McDONOUGH, and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I respectfully dissent from the opinion of the majority.

After reviewing the video tape of the conversation between the defendant and the officer who administered the breathalyzer, I conclude that the District Court was clearly erroneous when it found that the defendant did not timely request an independent test to determine whether or not he was intoxicated. That recording indicates that the following conversation took place:

MR. KLINKHAMMER: You said that I could have a doctor or physician of my choice.
OFFICER TILLMAN: Yeah, (inaudible).
MR. KLINKHAMMER: (Inaudible) that — I would like to have Dr. Hoell (inaudible). He is my psychiatrist.
OFFICER TILLMAN: Okay. That’s fine. That is your test. You are allowed to have a test at your own expense like that. However, that is separate and above this one here. This is the one I’m offering you pursuant to Implied Consent.
MR. KLINKHAMMER: I thought that I had a right to any test according to that statement.
OFFICER TILLMAN: [Reading from Implied Consent form.] “In addition to any test administered at the direction of a peace officer, you may, at your own expense, have a physician or nurse of your own choosing administer a test for the purpose of determining the amount of alcohol in your blood.”
The key words there are “in addition to any test administered at the direction of a peace officer.” And pursuant to Implied Consent, to keep your driver’s license, this is the test that I am offering you right now.
MR. KLINKHAMMER: Okay. That means, though, in order — in order to — for the various tests to be valid, they must be done at the same time. Okay?
OFFICER TILLMAN: You can be taken down to the hospital, and at your own expense we’ll draw your blood after we get through here. So whatever you’d like.
MR. KLINKHAMMER: At the same time I’d like to have Dr. Hoell there.
OFFICER TILLMAN: Okay. (Inaudible) if you — if you can call Dr. Hoell, that’s fine, but right now we’re not going to do — talk about that part of it anymore. We’ll take care of that after my part of it’s over. That’s your part. [Emphasis added.]

It is clear from this conversation that the defendant requested an independent evaluation by his own physician and that he was assured by the officer who interviewed him that such an evaluation would be taken care of after the breathalyzer was administered by the officer. However, the defendant remained in the custody of the Missoula Police for two more hours and no opportunity was afforded for the independent evaluation. He was not free to check into a hospital on his own, and needed the cooperation of the police department in order to exercise his right to an independent evaluation. He requested that assistance. He was promised that assistance, but it apparently was never provided.

The facts in this case are not similar to those in State v. Clark (1988), 234 Mont. 222, 762 P.2d 853. In that case, the defendant was given an opportunity to, and did call his physician. However, during that conversation with his physician the defendant did not request an independent evaluation. In that case, the Court correctly concluded that the defendant waived the right to an independent evaluation by not requesting one at the time when it was most logical to do so.

In State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155, we recognized that the right provided for in Section 61-8-405(2), MCA, is the right to gather exculpatory evidence and is guaranteed by the due process clause of the Fifth Amendment to the United States Constitution.

Any right that rises to the level of constitutional magnitude should not depend for its enforcement on a nuance so irrelevant as the frequency with which it is asserted, nor the order in which it is asserted. Yet, that is the result of the majority’s decision.

For these reasons, and pursuant to Swanson, I would reverse the District Court.


author: JUSTICE HUNT

text:
    ROBERT TOOMBS, Plaintiff and Appellant, v. GETTER TRUCKING, INC., a Montana Corporation, Defendant and Respondent.
    No. 92-263.
    Submitted on Briefs December 3, 1992.
    Rehearing Denied February 25, 1993.
    Decided January 21, 1993.
    50 St.Rep. 39.
    256 Mont. 282.
    846 P.2d 265.
    For Plaintiff and Appellant: V. Joe Leckie, Billings.
    For Defendant and Respondent: John R. Davidson, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff and appellant Robert Toombs brought suit in the District Court of the Thirteenth Judicial District, Yellowstone County. Toombs alleged that the defendant and respondent, Getter Trucking, owed him monies under a contract entered into between the parties. The District Court granted Getter Trucking’s motion for summary judgment and this appeal followed. We affirm.

The only issue before this Court is whether the District Court erred in granting summary judgment in favor of Getter Trucking.

Getter Trucking was a common motor carrier of property under authorities issued by the Interstate Commerce Commission (ICC) and various state regulatory agencies. Getter Trucking had tariffs on file with the ICC. Federal law provides that a motor carrier providing transportation service subject to the jurisdiction of the ICC shall provide that transportation only at the rate specified for the transportation service contained in a tariff that is filed with the ICC. The requirement that a carrier must charge all customers according to the established tariffs is known as the “filed rate doctrine.”

Toombs and Getter Trucking entered into a written agreement in February 1980 whereby Toombs leased a tractor with driver to Getter Trucking. Pursuant to the contract, Toombs transported commodities under tariff on behalf of Getter Trucking. The contract provided that Toombs was to receive 67 percent of the net revenue derived by Getter Trucking. The lease agreement between the parties ran from February 27, 1980, through February 21, 1981. During the course of the relationship, Toombs did not complain that he was not being paid the correct amounts.

On December 10, 1982, Toombs brought suit alleging that he was entitled to compensation that he had not received. The District Court stated that there was no evidence presented that Toombs was not paid 67 percent of the amounts Getter Trucking billed its customers for services provided by Toombs. However, Toombs alleges that Getter Trucking charged its customers less than it was required to charge pursuant to the established tariffs. Getter Trucking denies charging less to its customers than was required by federal law. However, Getter Trucking contends that even if it did charge its customers less than required by federal law, Toombs is only entitled, pursuant to the contract, to 67 percent of the net revenue derived by the carrier, which would be the actual amounts billed to the customers. Getter Trucking argues that the contract does not require them to charge any particular rate, but simply provides that Toombs will receive 67 percent of the rate charged. Toombs argues that Getter Trucking is indeed required to charge a particular rate to customers. Toombs contends that the contract term “net revenue derived by carrier” can only mean that amount that Getter Trucking was obligated to charge under federal law.

The District Court agreed with the reasoning of Getter Trucking. The District Court determined that “net revenue derived by carrier” meant the amount billed to the customer, stating that “[i]n no way can it mean some greater amount that should have been billed by the defendant to the customer.” The District Court, therefore, did not find it necessary to make a factual finding concerning the rates Getter Trucking had actually charged its customers. The District Court stated that:

Without deciding whether or not the proper tariff rates were charged, the Court is of the view that in no event can plaintiff recover its percentage on amounts greater than amounts actually billed customers.

The District Court granted Getter Trucking’s motion for summary judgment from which Toombs now appeals.

Toombs contends that the District Court erred in granting summary judgment in favor of Getter Trucking. A District Court may grant summary judgment when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.

Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. The party moving for summary judgment has the initial burden of showing that there is a complete absence of any genuine issue of material fact. To satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Kober v. Stewart (1966), 148 Mont. 117, 417 P.2d 476. Summary judgment is never an appropriate substitute for a trial if a factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. Upon reviewing a grant or denial of a motion for summary judgment, this Court applies the same standard as the district court.

Getter Trucking concedes that it is required by federal law to charge its customers the rates specified by the applicable tariffs. However, Getter Trucking argues that the filed rate doctrine only governs the relationship between a carrier and a customer. Getter Trucking contends that the relationship in this case, which is between a carrier and third party from whom the carrier leases a motor vehicle, is governed by the contract between the two parties. The District Court agreed with Getter Trucking’s argument determining that the contract, and not the federal filed rate doctrine, governed the relationship between the parties.

The contract entered into by the parties obligated Getter Trucking to pay Toombs a certain percentage of Getter Trucking’s net revenue derived. Getter Trucking’s net revenue derived is based upon what it charged the customer. Toombs argues that since Getter Trucking was obligated by law to charge each customer a specified amount, the contractual term net revenue derived can only mean that amount which Getter Trucking was obligated by law to charge. Getter Trucking, while denying it charged less than the rates established by the tariffs, argues that the term net revenue derived means whatever rate they might decide to charge their customers, even if they are charging less than the established rates. The District Court agreed.

The District Court was correct in determining that the contract executed by the parties governs their relationship. The contract provides that Toombs shall receive a certain percentage of Getter Trucking’s net revenue. The District Court, in interpreting this term of the contract, stated that:

The contractual provision seems plain and unambiguous. In no way can it mean some greater amount that should have been billed by the defendant to the customer.

We agree with the District Court’s interpretation of the provision. Getter Trucking was obligated by federal law to charge its customers a certain rate. However, that obligation in no way created a duty to pay Toombs at any specific rate. Getter Trucking and Toombs were free to negotiate any agreement they desired. The result of the parties’ negotiations as to Toombs’ compensation is evident in the contract executed by the parties. In this instance, the parties agreed that Toombs would receive a certain percentage of Getter Trucking’s net revenue. Getter Trucking paid to Toombs the specified percentage of their net revenue. Toombs received all that he was entitled to under the contract. Toombs’ reliance on the filed rate doctrine, in an attempt to show that he should have received more compensation, is mistaken. Any obligation owed by Getter Trucking to other individuals who were not parties to the contract in question is irrelevant. The parties’ contract governs in this case and we agree with the District Court that Getter Trucking satisfied its obligations to Toombs under the terms of the contract.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, McDONOUGH and WEBER concur.


author: JUSTICE McDONOUGH JUSTICE TRIEWEILER

text:
    JOAN PLOOSTER, Claimant and Appellant, v. PIERCE PACKING COMPANY and STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Respondents.
    No. 91-551.
    Submitted on Briefs June 4, 1992.
    Decided February 2, 1993.
    50 St.Rep. 59.
    256 Mont. 287.
    846 P.2d 976.

      For Claimant and Appellant: Don EdLgar Burris, Billings.
    For Respondents and Respondents: Elizabeth A. Horsman-Wiitala, State Compensation Mutual Insurance Fund, Helena.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The claimant, Joan Plooster, filed a petition in the Workers’ Compensation Court alleging that the respondent, State Compensation Mutual Insurance Fund (State Fund), was responsible for payment of certain medical bills which it had refused to pay. Shortly before trial, the State Fund conceded liability for payment of the medical bills. At trial, the issues decided were whether claimant was entitled to a statutory penalty, attorney fees, and costs. The Honorable Nat Allen, substituting for Judge Timothy Reardon, found that respondent had acted unreasonably when it delayed payment of claimant’s medical bills and awarded attorney fees and costs. However, he found that claimant was not entitled to statutory penalty. At a subsequent hearing, the Workers’ Compensation Court found that $32 per hour was a reasonable rate for claimant’s attorney fees and entered judgment awarding fees at that rate, plus the costs incurred by claimant. From that judgment, claimant appeals. The State Fund has not appealed the trial court’s finding that it acted unreasonably, nor its conclusion that claimant is entitled to an award of attorney fees and costs. We reverse and remand for further proceedings in the Workers’ Compensation Court.

The issues are:

1. Did the Workers’ Compensation Court err when it refused to impose a penalty under Section 39-71-2907, MCA(1978), even though it found that respondent had acted unreasonably?

2. Was there substantial evidence to support the Workers’ Compensation Court’s award of attorney fees in favor of the claimant in the amount of $32 per hour?

On December 20, 1990, claimant filed her petition for hearing in the Workers’ Compensation Court. She alleged that while working for Pierce Packing Company on November 7,1978, she had fallen and injured her neck, back, and arms. Respondent, the State Fund, insured Pierce Packing against workers’ compensation claims at that time. Claimant alleged that although respondent was paying her disability benefits, it had refused to pay for certain medication which had been prescribed for her treatment. The medications included Benadryl and Vistaril which were apparently prescribed for hives and other skin disorders which resulted from anxiety attacks and were, in the opinion of her treating physician, at least partially attributable to her physical condition or her disability.

The State Fund filed an answer denying that claimant’s use of Benadryl or Vistaril were causally related to claimant’s industrial injuries and denied that she was entitled to recover attorney fees, costs, or any statutory penalty.

By June 13,1991, eight days prior to trial, the State Fund conceded liability for the payment of prescription medication and agreed to pay the bills for Benadryl and Vistaril which had been prescribed. The Workers’ Compensation Court found, and neither party disagrees, that the amount in controversy was approximately $300.

Later at trial, the only issues identified in the pretrial order were whether claimant was entitled to recover attorney fees, costs, and the statutory penalty. The only witnesses who testified were the claimant and John Gneckow, a claims examiner employed by the State Fund, who handled claimant’s claim.

On August 25, 1991, the court entered Findings of Fact and Conclusions of Law. It found that the State Fund acted unreasonably by ignoring the opinion of claimant’s treating physician, and refusing to pay for medicine which he prescribed. On that basis, it concluded that claimant was entitled to costs and a reasonable attorney fee. However, the court concluded that claimant was not entitled to the statutory penalty that can be awarded when payments have been unreasonably delayed or refused.

On September 19, 1991, the court held an additional hearing to determine what would be a reasonable attorney fee award. At that hearing, the only witness who testified was claimant’s attorney. No evidence was offered by the State Fund. As a result of that hearing, the court entered its judgment awarding attorney fees. In that judgment, the court acknowledged that claimant’s attorney’s time was worth $150 an hour, but stated that it could not award that amount “in a $300 fight.” On the other hand, the court concluded that the fee should not be the contingent fee provided for in the fee agreement entered into between claimant and her attorney because awarding that amount would make it impossible for claimants to be represented in disputes of this nature. The court found that “$32 an hour will keep the Fund’s power in check, and will at the same time not force the attorney into pro bono work.”

On appeal, claimant contends that the Workers’ Compensation Court erred by failing to award the statutory penalty, and further argues that the trial court’s award of attorney fees was unsupported by the evidence and contrary to the law.

The following standards of review apply in this case: “Findings of the Workers’ Compensation Court will not be overturned if there is substantial evidence in the record to support them.” Kraft v. Flathead Valley Labor and Contractors (1990), 243 Mont. 363, 365, 792 P.2d 1094, 1095. Conclusions of law, “whether the conclusions are made by an agency, workers’ compensation court, or trial court,” will be upheld if the tribunal’s interpretation of the law is correct. Steer, Inc. v. Dept of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The law in effect at the time of claimant’s injury establishes her substantive right to benefits under the Workers’ Compensation Act. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. The statute which provided for the imposition of a penalty at the time of claimant’s injury was Section 39-71-2907, MCA (1978). It provided as follows:

When payment of compensation has been unreasonably delayed or refused, either prior or subsequent to the issuance of an award, the full amount of the order, decision, or award may be increased by 10% of the weekly award. The question of unreasonable delay or refusal shall be determined by the workers’ compensation judge, and such a finding constitutes good cause to rescind, alter, or amend any order, decision, or award previously made in the cause for the purpose of making the increase provided herein.

We have previously held that where an insurer acts unreasonably to deny benefits to which a claimant is legally entitled, the statutory penalty should be imposed. Holton v. F.H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 267-68, 637 P.2d 10, 13. In this case, the trial court found that the State Fund acted unreasonably. That finding has not been appealed by the State Fund. Therefore, we conclude that claimant was entitled to an award of a penalty of ten percent of one weekly award as provided for in Section 39-71-2907, MCA (1978).

The State Fund conceded in its proposed findings and conclusions that claimant’s entitlement to attorney fees is based on Section 39-71-612, MCA (1978). That statute provided that:

(1) If an employer or insurer pays or tenders payment of compensation under Chapter 71 or 72 of this title, but controversy relates to the amount of compensation due and the settlement or award is greater than the amount paid or tendered by the employer or insurer, a reasonable attorney’s fee as established by the division or the workers’ compensation judge if the case has gone to hearing, based solely upon the difference between the amount settled for or awarded and the amount tendered or paid, may be awarded in addition to the amount of compensation.

There is a strong presumption in the Workers’ Compensation Court that fees awarded to a successful claimant should be in accordance with the approved contract between the attorney and his client. Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 664 P.2d 303. But,

[i]f the judge does not set a fee in accordance with the contingent fee contract, he shall state with particularity his reasons in writing, based upon strong countervailing evidence, why the contingent fee contract is not followed by him, and precisely what weight he accorded to the contingent fee contract.

Wight, 664 P.2d at 312. Whether fees are awarded based on the contingent fee agreement or on some other basis, we held that the Workers’ Compensation Court had to base the attorney fee on ten factors set forth in the Wight decision. Wight, 664 P.2d at 312. In this case, the Workers’ Compensation Judge did state with particularity his reason for awarding a fee on an hourly basis, rather than based on the contingent fee agreement. His finding that it would be unreasonable to award a fee based on the contingent fee agreement where the amount in controversy was only $300 was supported by substantial evidence and is affirmed.

However, the trial court’s finding that claimant was entitled to reimbursement for her attorney’s services at the rate of $32 per hour was not supported by substantial evidence, nor was it properly articulated based upon the applicable ten-point criteria set forth in the Wight decision. The Wight criteria are as follows:

1. The anticipated time and labor required to perform the legal service properly.
2. The novelty and difficulty of legal issues involved in the matter.
3. The fees customarily charged for similar legal services.
4. The possible total recovery if successful.
5. The time limitations imposed by the client or circumstances of the case.
6. The nature and length of the attorney-client relationship.
7. The experience, skill and reputation of the attorney.
8. The ability of the client to pay for the legal services rendered.
9. The risk of no recovery.
10. The market value of the lawyer’s services at the time and place involved.

Wight, 664 P.2d at 312.

The only evidence offered on any of the ten-point criteria was the claimant’s attorney’s testimony that his services were worth $150 an hour. State Fund’s attorney conceded that attorneys doing similar work were reimbursed at rates between $85 and $125 per hour.

However, the trial court is not constrained by only the evidence introduced in considering the ten-point criteria. A court sitting as a fact finder in the determination of reasonable attorney fees can take into consideration the facts of the services performed and attending circumstances; such as the file, transcript, and the various hearings; as well as attorney’s opinion of the value of the services. The court is also not required to lay aside its general knowledge, experience and ideas of such service and the value thereof, and it can apply such knowledge, experience and ideas in weighing the attorney’s opinion and determining reasonable fees. 7 Am.Jim.2d Attorneys at Law, Section 312, St. Louis-San Francisco Ry. v. Hurst (Ark. 1939), 129 S.W.2d 970, 975.

The trial court should articulate the evidence and its consideration of the applicable ten factors in its findings and conclusions, before awarding an amount, especially if a different amount is opined by the attorney.

For these reasons, the judgment of the Workers’ Compensation Court is reversed and remanded to trial court to award the penalty and to reconsider and enter findings and conclusions on the basis of the applicable ten factors from the evidence submitted and its general knowledge and experience.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s conclusion that this case should be reversed and remanded to the trial court for the imposition of a statutory penalty pursuant to Section 39-71-2907, MCA (1978). I also concur with the majority’s conclusion that the attorney fee award should be reversed and that this case should be remanded for further consideration of an appropriate attorney fee award with proper consideration given to the factors articulated in Wight v. Hughes Livestock Co., Inc. (1983), 204 Mont. 98, 664 P.2d 303.

However, I conclude that the trial court should have awarded fees at the only rate which was in evidence, or listed specific factors from the Wight test which were supported by evidence. On remand I would direct that it do so.

I specifically dissent from that part of the majority opinion which holds that:

The court is also not required to lay aside its general knowledge, experience and ideas of such service and the value thereof, and it can apply such knowledge, experience and ideas in weighing the attorney’s opinion and determining reasonable fees.

This part of the majority opinion gives the trier of fact authority to base his decision on his own experience rather than the evidence. This process is the antithesis of our adversary system and gives trial judges carte blanche authority to impose their own arbitrary opinions on litigants rather than binding them to decisions in conformity with the evidence presented. This result is contrary to every notion of fairness that this Court has attempted to impose over the years it has existed to review appeals.

Because of this decision, no litigant in the Workers’ Compensation Court in the future will be able to predict the outcome of any case with certainty based on the evidence that was presented. Not only is this an unfortunate result for litigants, it will present an impossible standard of review. Instead of considering whether there was substantial evidence to support the trial court’s findings of fact regarding the reasonableness of attorney fees, the new standard of review will have to be whether each of the Supreme Court Justices, as individuals, shares the same “knowledge, experience and ideas” as the finder of fact. Otherwise, it is going to be difficult to agree with that person’s findings and conclusions.

For these reasons, I concur in part and dissent in part from the majority opinion.

JUSTICE HUNT joined in the dissent of JUSTICE TRIEWEILER.