author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

text:
    CONSTANTINE PROTO, Plaintiff and Appellant, v. MISSOULA COUNTY, a political subdivision of the State of Montana, Defendant and Respondent.
    No. 87-457.
    Submitted on Briefs Jan. 14, 1988.
    Decided Feb. 11, 1988.
    Rehearing Denied March 4, 1988.
    749 P.2d 1094.
    Terry G. Sehestedt, Missoula, for plaintiff and appellant.
    Robert Deschamps, III, Co. Atty., Joan Newman, Deputy Co. Atty., Missoula, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Fourth Judicial District, Missoula County, State of Montana. The appeal is from a motion to dismiss the complaint under Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which relief could be granted. Following briefing and oral argument, the District Court granted the motion dismissing the complaint with prejudice. Appellant now appeals. We affirm.

On January 21, 1987, pursuant to a writ of execution issued by the Missoula County Justice Court, the Missoula County Sheriff conducted a Sheriff’s sale as a result of a judgment against the appellant, Constantine Proto (Proto). The Sheriff properly levied on Proto’s property, consisting of one mink coat and one red fox coat. The Sheriff posted the legally required notice of sale pursuant to Section 25-13-701, MCA. According to that statute, no indication as to form of payment is required. At the sale, the Deputy Sheriff announced that only cash would be accepted from any successful bidder and that personal checks would not be accepted.

At the January 21, 1987 sale, bids were received and accepted in the amount of $550 for the mink coat and $600 for the red fox coat. However, the successful bidders attempted to pay by check, and the checks were refused by the officer conducting the sale. The coats were then resold with the mink selling for $200 and the red fox selling for $500. This time payment was tendered in cash.

Proto alleges that he was damaged by the requirement that cash only would be accepted because bidders were not allowed to leave and obtain cash. Therefore, his coats were sold for an amount which was considerably less than their true value.

Proto raises one issue for our review: Does the complaint herein state a claim for which relief may be granted?

Respondent, Missoula County, states the issue differently: Did the District Court correctly dismiss the complaint with prejudice because there was no breach of duty by the Sheriff’s Deputy in the conduct of the execution sale of personal property for cash and thus no legal basis for the claims made?

Proto argues that the standard test for the sufficiency of a complaint against a motion to dismiss is set forth by the United States Supreme Court in Conley v. Gibson (1957), 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84:

“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

This Court has repeatedly endorsed the same test. See, Busch v. Kammerer (1982), 200 Mont. 130, 132, 649 P.2d 1339, 1340. Proto argues that the County’s motion to dismiss pursuant to Rule 12(b)(6), has the effect of admitting all well pleaded allegations of the complaint.

Proto, in his first count, has alleged that the Sheriff, in acting as described, failed to sell the coats to the highest bidder as required by Section 25-13-704(1), MCA to Proto’s detriment. Count two notes that the combined market value of the coats was $6,500 and that the restriction on the mode of payment, particularly in that it was only announced at the time of the sale, had a “chilling effect” on the bidding resulting in the sale of the property for a grossly deficient price. The second count simply presents an alternative way of measuring Proto’s damages, an issue not before this Court. The real meat of the issue is whether or not the Sheriff was justified in refusing to accept payment by check.

Sections 25-13-704(1) and 25-13-708, MCA are the primary code sections involved herein. Section 25-13-704, MCA, provides:

“(1) All sales of property under execution must be made at auction to the highest bidder, between the hours of 9 a.m. and 5 p.m. After sufficient property has been sold to satisfy the execution, no more can be sold. Neither the officer holding the execution nor his deputy can become a purchaser or be interested in any purchase at such sale.
“(2) When the sale is of personal property capable of manual delivery, it must be within view of those who attend the sede eind be sold in such parcels as are likely to bring the highest price; and when the sale is of real property consisting of several known lots or parcels, they must be sold separately, or when a portion of such real property is claimed by a third person and he requires it to be sold separately, such portion must be thus sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold when such property consists of several known lots or parcels or of articles which can be sold to advantage separately, and the sheriff must follow such directions.”

Proto argues that the officer conducting the execution sale violated the requirement of Section 25-13-704, MCA, in that he failed to sell the coats to the highest bidder.

This ties in with Section 25-13-708, MCA, and it provides:

“When the purchaser of any personal property capable of manual delivery pays the purchase money, the officer making the sale must deliver to the purchaser the property and, if desired, execute and deliver to him a certificate of the sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied.” (Emphasis added.)

We agree that the problem revolves around what is meant by the words “purchase money.” Proto contends it means the officer must take checks and the County takes the position that the Sheriff or his Deputy cannot take checks. It is Proto’s position that the section simply means that the purchaser must pay for the item(s) by any customary means, before taking delivery. Proto admits that the meaning of “money” includes legal tender currency, but that his dictionary defines “money” to include checks and other customary means of exchange.

Absent a statute authorizing it, the sheriff may not accept credit or anything other than cash. See, 86 A.L.R.2d 292, 293. The terms of a judicial sale are prescribed by our statute to which the decree of sale must conform. While some courts have recognized a limited exception in which the judgment creditor consents to a bid paid by check, the general rule is that the execution officer is bound to accept only cash for the bid, as our statute requires. For the exception see, Metz v. Hicklin (1928), 126 Kan. 516 268 P. 823. Compare, O’Malley v. McMullen (Fla. App. 1974), 294 So.2d 379.

We believe the intent of the legislature regarding the type of payment at a personal property execution sale is clear from the reading of our statute which states payment must be by “purchase money.”

Proto cites Sherlock v. Vinson (1931), 90 Mont. 235, 1 P.2d 71, as supporting his position on what is money and what can be accepted at an execution sale. However, this proposition was not at issue in Sherlock. The case is distinguishable from the present case on both the facts and the law. In Sherlock the sheriff accepted a check for payment and the buyer stopped payment the next day. The sheriff then sued the repudiating buyer. It seems to us that the result and the principles in Sherlock are more persuasive to the County’s position, than to Proto’s position.

We find no merit to Proto’s argument that since there is a statutory duty to sell at a public auction to the highest bidder, the Sheriff has a duty to accept any medium of payment that is tendered. The duty to sell to the highest bidder in no way restricts the Sheriffs authority to announce what medium of payment will be accepted. See, Section 25-13-708, MCA.

In addition, Section 25-13-704, MCA, which requires public auction to the highest bidder, is a procedural statute prescribing the hours of sale and prohibiting the execution officer or deputy from becoming a purchaser. The statute really concerns itself with the method of the auction sale and not with the terms of the sale.

Additionally, Proto argues that the Sheriff has a duty at an execution sale to obtain a fair market value for the property. If he does not do so, he creates a “chilling” affect on bidding. We find no legal basis for such an argument. Also, Proto conceded in his brief that there was not a requirement that the Sheriff obtain full market value at the execution sale. This concession alone requires the dismissal of the complaint in its entirety because the sole claim of relief was for the amount based on a fair market value of the goods.

We find no validity to Proto’s suggestion that the Uniform Commercial Code creates a duty by the execution officer to accept any medium of payment tendered. Nor do we find any authority that the Uniform Commercial Code is applicable to execution sales. The procedural authority and duty of the execution officers is set forth in our statutes addressing execution of judgment.

The order of the District Court dismissing the complaint is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and McDONOUGH concur.

MR. JUSTICE SHEEHY,

dissenting:

Section 25-13-708, MCA, contemplates that the actual cash may not necessarily be collected at the moment of sale. The section obviously empowers the officer to hold the personal property until he receives the cash. Thus the officer could take a check and hold the property until the check cleared the bank. In these days of checks and balances in business as in government, checks have become an accepted medium of exchange. The result here may have been a higher bid if checks were accepted. I dissent.


source: Caselaw Access Project

author: MR. JUSTICE WEBER MR. JUSTICE HUNT,

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HUGH THURMAN WHITE, Defendant and Appellant.
    No. 87-309.
    Submitted on Briefs Oct. 22. 1987.
    Decided Feb. 16, 1988.
    750 P.2d 440.
    William Boggs, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Betty T. Wing, Deputy, Missoula, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. White pled guilty in the District Court for the Fourth Judicial District, Missoula County, to a charge of felony theft. In this appeal, he challenges the jurisdiction of the State of Montana. We affirm.

The issue is whether the District Court had jurisdiction over the offense.

Mr. White worked for Mr. Rang, a Montana businessman, as a long distance truck driver. The parties stipulated to the following facts with respect to the issue of jurisdiction:

“That when Mr. White took possession of Mr. Rang’s truck and left the state of Montana, he did so with authorization to do so — namely, he was employed by Mr. Rang, and he was supposed to drive his truck; that the way he left the state of Montana with the truck, that he had at that time no criminal intent; that subsequent to Mr. White’s leaving Montana in early 1984 with the truck, that he was never again in Montana with the truck; that at some point in the late spring of 1984, by long distance telephone, Mr. Rang communicated to Mr. White his lack of authority to continue driving the truck; and that Mr. White thereafter used, concealed, or abandoned the truck in such a manner as to deprive the owner of the property; and that he did this at least in the states of Kentucky and Texas and possibly other states.”

Mr. White was arrested on this charge in Kentucky in April 1985. He originally pled innocent, and moved to dismiss on the basis that the Montana court had no jurisdiction. His motion was denied. After one day of trial, Mr. White changed his plea to guilty. After he was sentenced, he filed a motion to reconsider the adverse ruling on jurisdiction. That motion was also denied.

Did the District Court have jurisdiction over the offense?

Section 46-2-101, MCA, sets forth the scope of Montana courts’ jurisdiction:

“A person is subject to prosecution in this state for an offense which he commits while either within or outside the state by his own conduct or that of another for which he is legally accountable if:
“(a) the offense is committed either wholly or partly within the state;
“(b) the conduct outside the state constitutes an attempt to commit an offense within the state and an act in furtherance of the offense occurs in the state; or
“(c) the conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense under the laws of this state and such other jurisdiction.
“(2) An offense is committed partly within this state if either the conduct which is an element of the offense or the result which is an element occurs within the state. In homicide, the ‘result’ is either the physical contact which causes death or the death itself, and if the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.
“(3) An offense which is based on an omission to perform a duty imposed by the law of this state is committed within the state, regardless of the location of the offender at the time of the omission.
“(4) This state includes the land and water and the air space above such land and water with respect to which the state has legislative jurisdiction.”

This statute extends Montana’s jurisdiction to crimes which would not in the past have been within the State’s jurisdiction. For example, Section 46-2-101(2), MCA, allows Montana to prosecute a homicide if a body is found within Montana, regardless of where the homicide occurred. We must keep this broad assertion of jurisdiction in mind as we analyze the present case.

Section 45-6-301, MCA, defines the crime of theft. Subsection (1) provides:

“A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.”

The charge against Mr. White in the information was phrased in the language of Section 45-6-301(l)(b), MCA.

Mr. White argues that the State of Montana does not have jurisdiction to charge him with theft because none of the elements of the crime occurred in the state. He cites Illinois cases in support of his position.

Although the source of Montana’s theft statute is the Illinois theft statute, Ill.Rev.Stat. ch. 38, paragraph 16-1, Montana’s statute has been modified significantly from the Illinois statute. The Illinois statute does not contain a subsection like Section 45-6-301(l)(b), MCA. In the absence of the statutory provision under which Mr. White was charged, Illinois’ interpretation of its statute is not relevant.

Mr. White also points out that the Commission Comments to Section 45-6-301(1), MCA, state “only two elements must be proved under this subsection, a knowing exertion of control and a purpose to deprive . . . .” We conclude that while this statement may be true for parts (a) and (c) of subsection (1), the language of part (b) requires that the owner must be deprived of his property before a charge of theft will stand. Mr. Rang’s truck was delivered to Mr. White in Montana with the understanding that it was to be returned to Mr. Rang in Montana. We conclude that the failure to return the truck resulted in Mr. Rang being deprived of his property in Montana. Under Section 46-2-101(2), MCA, Montana has jurisdiction over an offense if the result which is an element of the offense occurred in Montana. We hold that the Montana court had jurisdiction over the charge of theft against Mr. White.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and GULBRANDSON concur.

MR. JUSTICE HUNT,

dissenting:

I find it difficult to follow the reasoning of the majority opinion in holding that the language contained in the Montana theft statute gives Montana jurisdiction over White’s actions. Section 45-6-301(b), MCA, requires that a person “purposely or knowingly obtains or exerts unauthorized control over property” and . . uses, conceals, or abandons the property in such a manner as to deprive the owner of the property.”

The stipulated facts, as quoted by the majority, state that White had no intent to deprive Rang of his property at any time while in the State of Montana. This agreement as to the facts removes White from the long arm jurisdiction statute upon which the State and the majority rely. Section 46-2-101(1)(a), MCA, states:

“A person is subject to prosecution in this state for an offense which he commits while either within or outside the state by his own conduct ... if:
“(a) the offense is committed either wholly or partly within the state; . . .”

There is no evidence to contradict the finding of fact that White never used, concealed nor abandoned the truck in such a manner as to deprive Rang of his property while in Montana.

The State asserts, and the majority agrees that the result of Rang being deprived while in Montana is an element of theft, Section 45-6-301(l)(b), MCA, and therefore brings him under Section 46-2-101(2), MCA:

“An offense is committed partly within this state if either the conduct or the result which is an element occurs within the state.”

The majority opinion states that “[t]he Illinois statute does not contain a subsection like Section 45-6-301(l)(b), MCA. Illinois’ interpretation of her statute does not bind us in this case.”

Section 45-6-301(1) (b) states:

“A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property.” Section 16-1 of the Illinois criminal statute states:
“Theft. A person commits theft when he knowingly:
“(a) Obtains or exerts unauthorized control over property of the owner; or
“(b) Obtains by deception control over property of the owner; or
“(c) Obtains by threat control over property of the owner; or
“(d) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen, and
“(1) Intends to deprive the owner permanently of the use or benefit of the property; or
“(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
“(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.

Section 16-1 does not have the same format as Section 45-6-301, but as I read it, the critical language is virtually identical.

Regardless of whether the theft statutes of Illinois and Montana merit comparable interpretation, the long-arm jurisdiction statutes from the two states are identical. When considering the construction of a statute which is adopted from another jurisdiction, this Court is not bound by the construction or interpretation placed upon it by the other jurisdiction. Edgar v. Hunt (Mont. 1985), [218 Mont. 30,] 706 P.2d 120, 122; Lawrence v. Harvey (Mont. 1980), 186 Mont. 314, 607 P.2d 551, 556. This Court will, however, carefully consider the construction of that statute placed on it by the highest court in the state from which it was adopted. State v. Murphey (1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105.

The Illinois case most relevant to the case at bar with respect to the issue of jurisdiction is People v. Holt (1982), 91 Ill.2d 480, 64 Ill. Dec. 550, 440 N.E.2d 102. In Holt, the defendant kidnaped a woman in Illinois, drove her to Wisconsin where she was raped and murdered. Citing Section 1-5 of the Illinois criminal code, which is identical to Montana’s criminal jurisdiction statute, the Illinois court stated that:

“Not every element of an offense supports jurisdiction. Some elements, while essential in the sense of necessary, are not the essence of the crime ....
“Section 1-5 does not declare that any element of the offense will support jurisdiction. The language is ‘the conduct which is an element of the offense, or the result which is such an element . . . .’ The ‘element’ phrases do not expand jurisdiction but limit it. The proper meaning is that ‘the conduct’ is enough only if it is an element of the offense; similarly, if the offense is defined solely in terms of conduct without regard to any result, there is no jurisdiction based on where the conduct causes harm.”

64 Ill.Dec. at 553, 440 N.E.2d at 105.

Montana does not have jurisdiction to prosecute White unless we find that the result of deprivation is an element of the crime of theft.

An Illinois case which discusses the Illinois theft statute is People v. Nunn (1965) 63 Ill.App.2d 465, 212 N.E.2d 342:

“A person who ‘knowingly obtains or exerts unauthorized control over property of the owner’ is the statutory description of a thief, provided only that his act is accompanied by the requisite mental state.” (Emphasis added.)

212 N.E.2d at 344.

Whether interpreting Illinois or Montana statutes, the elements constituting theft are elements of conduct and a dual mental state, not result. The defendant must purposely or knowingly act in a way which he knows will, or probably will, deprive another of their property. The result of actual deprivation to a victim is not delineated by the statute. Even if, arguendo, the result of deprivation was an element of theft, the deprivation in this case occurred in states other than Montana. The deprivation occurred in the states in which White exerted unauthorized control of Rang’s truck while having the proper mental state of intent to deprive.

The majority’s last paragraph is very troublesome to me. It says that because White picked up Rang’s truck in Montana, with the understanding that it would be returned to Montana, the State of Montana therefor has jurisdiction over White’s charge of theft regardless of where the theft occurred.

Nowhere in the language of Montana’s theft or long arm jurisdiction statutes is there even an allusion to a delivery of goods in one jurisdiction which are later stolen in another jurisdiction. Although there was never any intent by White to deprive Rang of his property while in Montana, the majority apparently interprets the statutes as saying that because he lawfully received the truck in Montana, but failed to return it to Montana, he can be tried in Montana for a theft which occurred totally outside of Montana’s borders.

There is no case on point in Montana which deals with this situation. A search of the various state laws which dealt with similar problems reveals one case directly on point from Colorado; People v. Tinkle (Colo. App. 1985), 714 P.2d 919. Tinkle was convicted of theft in Colorado. The evidence showed that Tinkle entered into an agreement with a man from Colorado which provided that Tinkle take the man’s merchandise to Texas to sell at rodeos. Tinkle was to share in the profits. After several failed attempts to sell the merchandise in Texas as planned, Tinkle resorted to selling the total inventory in Arizona, but kept all proceeds from the sale. The Colorado Court of Appeals reversed Tinkle’s conviction, stating:

“The critical elements here are defendant’s intent to deprive and the location where his control over (victims) merchandise was no longer authorized. Even with the evidence considered in the light most favorable to the prosecution, all inferences point to defendant exercising authorized control in Colorado, and not formulating any wrongful intent until he was out of this State. (Cites omitted.) Under these circumstances, jurisdiction for prosecution of the theft charge was not established, and defendant’s motion for judgment of acquittal should have been granted.” (Emphasis added.)

714 P.2d at 921.

I agree with the reasoning of the Colorado Court. The fact that a victim in Montana was deprived of his property is not enough to qualify as the commission of an offense “partly within” the State of Montana. Jurisdiction is proper in “the location where (White’s) control over (the truck) was no longer authorized.” Consequently, I would hold that the State of Montana does not have jurisdiction to prosecute defendant White under the present law.

MR. JUSTICES SHEEHY and McDONOUGH concur in the foregoing dissent.


author: MR. JUSTICE GULBRANDSON

text:
    VERNON WESTLAKE, Personal Representative of the Estate of Harry D.R. Larson, deceased, Plaintiff and Appellant, v. CHARLES R. OSBORNE and Lois Marie Osborne, Husband and Wife, and Dennis Hardin, Defendants, Respondents and Cross-Appellants.
    No. 87-359.
    Submitted on Briefs Nov. 19, 1987.
    Decided Feb. 16, 1988.
    Rehearing Denied March 22, 1988.
    750 P.2d 444.

      McKinley Anderson, Bozeman, H.A. Bolinger, Jr., Bozeman, for plaintiff and appellant.
    Greg Morgan, Bozeman, for defendants, respondents and cross-appellants.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Vernon Westlake appeals an Eighteenth Judicial District Court judgment awarding damages and attorneys’ fees to the Osbornes. The facts surrounding Westlake’s initial complaint are more fully set forth in Westlake v. Osborne (Mont. 1986), [220 Mont. 91,] 713 P.2d 548, 43 St.Rep. 200. In the first appeal of this case, this Court affirmed the District Court’s grant of partial summary judgment to the Osbornes on Westlake’s complaint.

This appeal concerns the District Court’s judgment on the Osbornes’ remaining counterclaims. The District Court found Westlake individually liable pursuant to Section 72-3-612, MCA, and as personal representative of the estate, for unlawfully withholding possession of real property and awarded $8,265 in lost rental income to the Osbornes. The District Court also awarded $4,058.78 in costs and attorneys’ fees pursuant to a clause contained in the original contract for sale. Westlake appeals the District Court judgment and the Osbornes cross-appeal. We affirm.

The facts pertinent to this appeal are undisputed. Before his death, Harry Larson sold his house to the Osbornes. The Osbornes paid some money down with the balance to be paid in monthly installments over a thirty-six month period. The Osbornes in turn leased the premises back to Larson. Larson’s lease payments satisfied the Osbornes’ monthly installment payments. The balance of the purchase price was to be deemed satisfied in the event Larson died before the end of the thirty-six month period. Larson died eight months after the transaction was closed. Westlake, as personal representative of Larson’s estate, immediately took possession of the property after Larson’s death and denied access to the Osbornes.

Westlake brought this action on behalf of the estate of Harry Larson to set aside the contract of sale, deed and lease-back based on allegations of fraud, misrepresentation, undue influence, and unconscionability. The Osbornes counterclaimed for attorneys’ fees and for lost rent during the period they were denied possession of their property. The Osbornes’ counterclaim alleged that Westlake was liable as an individual and as personal representative of the estate. Westlake completely distributed the estate’s assets despite the existence of the counterclaims.

In this appeal regarding the Osbornes’ counterclaims, Westlake raises the following issues for our review:

1. Did the District Court err in not dismissing the Osbornes’ counterclaims on the basis that this Court’s previous ruling in Westlake v. Osborne (Mont. 1986), [220 Mont. 91,] 713 P.2d 548, 43 St.Rep. 200, rendered such counterclaims res judicata?

2. Did the District Court err in holding Westlake personally liable for his acts as the personal representative of the estate of Harry D. Larson?

3. Did the District Court err in awarding attorneys’ fees to the Osbornes?

4. Is there substantial credible evidence to support the Osbornes’ action for unlawful detainer?

The Osbornes’ cross-appeal and raise two issues:

5. Did the District Court err in refusing to treble damages?

6. Did the District Court err in computing attorneys’ fees?

Westlake first contends that the Osbornes’ counterclaims were rendered res judicata by our holding in Westlake v. Osborne (Mont. 1986), [220 Mont. 91,] 713 P.2d 548, 43 St.Rep. 200. We note that it was Westlake who moved the District Court to certify the partial summary judgment as a final judgment so he could pursue the first appeal to this Court. Thereafter, the Osbornes filed a memorandum to request that the District Court certify the partial summary judgment pursuant to Rule 54(b), M.R.Civ.P., so Westlake could appeal. The District Court certified the partial summary judgment as final and specifically retained jurisdiction of the Osbornes’ counterclaims pending the outcome of the first appeal. Westlake appealed and our review was limited to the question of whether the District Court erred in granting the motions for partial summary judgment. We affirmed the District Court and did not address the merits of the Osbornes’ counterclaims at that time.

Westlake now claims that because the first appeal was premature, the counterclaims were rendered res judicata by our decision in Westlake, supra. Westlake’s argument is without merit. In Roy v. Neibauer (1980), 188 Mont. 81, 86, 610 P.2d 1185, 1189, we stated that “Rule 54(b) [M.R.Civ.P.] requires that before a certification be made the trial court must find that there be ‘no just reason for delay.’ ” The District Court expressly and carefully considered our decision in Roy, the factors contained therein, found no just reason for delay, and concluded that Rule 54(b) certification was proper. Certification was not contested by either of the parties or by this Court.

The District Court specifically retained jurisdiction of the counterclaims pending the first appeal. The partial summary judgment was properly certified for appeal and our decision in Westlake did not consider the merits of the Osbornes’ counterclaims. The counterclaims were not, therefore, res judicata and the District Court did not err in denying Westlake’s motion to dismiss.

The second issue presented for our review concerns Westlake’s individual liability for his actions as personal representative of the estate. Westlake first argues that he was not properly joined in this action in an individual capacity. The Osbornes counterclaimed against Westlake both individually and as personal representative. Westlake answered the counterclaim and alleged that he was not liable in his individual capacity. It was not until trial of the counterclaims that Westlake’s counsel moved for dismissal of claims against him in an individual capacity. The Osbornes’ attorney, though not conceding that it was necessary, also moved that Westlake be joined in his individual capacity. The District Court took both motions under advisement and eventually entered judgment against West-lake as an individual and as personal representative of the estate.

Joinder of parties under Rule 21, M.R.Civ.P., is discretionary with the district court. State ex rel. Stenberg v. Nelson (1971), 157 Mont. 310, 486 P.2d 870. We will not reverse the District Court’s decision to join Westlake in his individual capacity absent a clear showing of an abuse of discretion. Our review of the District Court’s decision to join Westlake as an individual is governed by the liberal standards applicable to amendments under Rule 15, M.R.Civ.P. White v. Lobdell (Mont. 1984), [208 Mont. 295,] 678 P.2d 637, 641, 41 St.Rep. 346, 351.

It is clear to this Court that Westlake was on notice from the counterclaim that the Osbornes sought to hold him individually liable. The action against Westlake as an individual arose from the same occurrences as did the action against the estate. The District Court did not abuse its discretion in allowing Westlake to be joined in his individual capacity during trial.

Westlake also contests his individual liability by asserting that the requirements of Section 72-3-612, MCA, have not been met. Section 72-3-612(2), MCA, provides as follows:

“A personal representative is individually liable for obligations arising from ownership or control of the estate for torts committed in the course of administration of the estate only if he is personally at fault.”

Westlake does not cite any authority to support his position but merely contends that he has done nothing which would warrant individual liability.

Westlake apparently overlooks his actions in wrongfully withholding possession of the Osbornes’ property for over twenty-nine months. That these actions constitute a tort for which Westlake is personally at fault cannot be seriously disputed. The Osbornes were entitled to possession of the property upon Harry Larson’s death. We previously determined that the Osbornes did not improperly acquire the property through fraud, undue influence, or unconscionability. Westlake, supra. The record reveals substantial credible evidence to support the District Court’s decision to hold Westlake individually liable.

Westlake’s third contention of error is that attorneys’ fees are not recoverable in this suit. In his original complaint, Westlake alleged that he was entitled to attorneys’ fees pursuant to the following clause contained in the contract for sale, deed and lease-back:

“8. Enforcement. In the event either party shall bring legal proceedings to enforce any obligations hereunder or for the breach thereof, the prevailing party shall be entitled to recover attorneys’ fees and costs paid or incurred therein in good faith.”

In the complaint, Westlake sought to have the deed declared null and void and to set the deed aside. The Osbornes counterclaimed for unlawful withholding of the property and for attorneys’ fees and costs pursuant to the same contract clause. Westlake now claims that he brought an action in tort and that this is not a contract action for which attorneys’ fees are recoverable.

Westlake’s argument regarding attorneys’ fees is similar to the argument presented by the appellants in Winer v. Jonal Corporation (1976), 169 Mont. 247, 250, 545 P.2d 1094, 1096. Plaintiffs in Winer brought an action to recover damages and to rescind a contract based on allegations of fraud and conspiracy. Plaintiffs also claimed attorneys’ fees pursuant to a contract clause. The District Court ruled in favor of the defendants and awarded attorneys’ fees pursuant to the contract clause. Plaintiffs appealed to this Court and alleged that they brought an action in tort based on allegations of fraud under which an award of attorneys’ fees was not authorized. This Court found no merit to this argument and affirmed the award of attorneys’ fees. Winer, 545 P.2d at 1097.

Westlake’s complaint, the subject of the first appeal, alleges claims in contract to rescind the deed and in tort for damages. The basis for both actions is the Osbornes’ alleged misrepresentations, fraud and undue influence. Such alleged behavior, although not present in the instant case, may give rise to an action either in tort or in contract. Farnsworth, in his treatise on contract law, explains the similarities and differences between the two actions as follows:

“In a system of contract law based on supposedly informed assent, it is in the interest of society as well as of the parties to discourage misleading conduct in the bargaining process. To this end both tort and contract law provide remedies for misrepresentation. The relevant rules of tort law trace their origins to the common law action of deceit. They allow the recipient of the misrepresentation to recover from its maker damages that, at their most generous, are based on the value that the bargain would have had to the recipient had it been as represented. Most of the relevant rules of contract law are derived from the action for rescission that was originally brought in equity. They allow the recipient of the misrepresentation to undo the transaction by avoiding it, and they seek to restore the parties to the positions in which they found themselves before they made the agreement. In contrast to tort rules, they ask only what types of behavior are not tolerable as a basis of a bargain, not what types are actionable in damages.”

E. Farnsworth, Contracts, Section 4.9 at 232-233 (1982). Westlake’s allegations of fraud and misrepresentation sound both in tort and in contract. Having sought to rescind the contract for sale, deed, and lease-back, Westlake cannot now claim that this is not an action in contract. Attorneys’ fees and costs were properly awarded pursuant to the contract clause regarding such expenses. Winer, 545 P.2d at 1096.

Westlake’s final issue pertains to the Osbornes’ counterclaim for Westlake’s unlawful withholding of the property for twenty-nine months. In his opening brief, Westlake characterizes the Osbornes’ action as one for unlawful detainer under Section 70-27-108, MCA, and argues that he was not given notice as required by that statute and by Section 70-27-104, MCA. However, the Osbornes’ counterclaim characterizes the action as one for unlawful possession and recovery of rent. The District Court’s findings of fact and conclusions of law similarly describe the relief granted under the counterclaim.

Although counsel for both parties confused the matter by referring to unlawful detainer and forcible detainer interchangeably throughout the litigation, it is clear that the District Court disregarded these misnomers and awarded judgment to the Osbornes on a theory of wrongful occupation of real property. The measure of damages for an action for wrongful occupation includes “the value of the use of the property for the time of such occupation ...” — in this case, lost rent. Section 27-1-318, MCA.

The Osbornes’ answer and counterclaims were filed more than four years before this appeal was filed. It is entirely too late to argue the form of the counterclaim on this appeal. Issues raised for the first time on appeal will not be considered. Schaffer v. Champion Home Builders Co. (Mont. 1987), [229 Mont. 533,] 747 P.2d 872, 44 St.Rep. 2196, 2199.

The final two issues in this appeal are raised by the Osbornes. The Osbornes first contend that the District Court erred in refusing to award treble damages in this case. On the basis of that argument, the Osbornes go on to argue in their second issue that the award of attorneys’ fees should be raised to reflect the trebling of damages. The Osbornes’ argument on the first issue must fail because damages may not be trebled absent statutory authority. Section 27-1-318, MCA, only authorizes an award of lost rent in this case. There is no statutory authority fo» treble damages under the facts as presented.

The Osbornes argue that Section 70-27-205(2), MCA, authorizes an award of treble damages in an action for forcible detainer. As previously mentioned, the District Court did not award judgment to the Osbornes under the forcible detainer statute. Accordingly, we hold that Section 70-27-205(2), MCA, does not apply and the District Court did not err in refusing to treble damages. Because of the disposition of the Osbornes’ first issue, we need not address the Osbornes’ second issue regarding reconsideration of the attorneys’ fees award.

The Osbornes’ counterclaims were not rendered res judicata by our decision in the first appeal of this case. Judgment on these counterclaims, including an award of attorneys’ fees and costs, was properly rendered against Westlake as an individual and as personal representative of the estate of Harry D. Larson. In addition, damage cannot be trebled under the facts and law of this case.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and McDONOUGH concur.


author: MR. JUSTICE HARRISON

text:
    FRED W. MAJERS and Cecila Majers, Donald R. Abrahamson and Louine E. Abrahamson, Thomas Tillman and Thomas Orcutt, Plaintiffs and Respondents, v. The SHINING MOUNTAINS, a California limited partnership, Defendant and Appellant.
    No. 87-362.
    Submitted Jan. 6, 1988.
    Decided Feb. 16, 1988.
    750 P.2d 449.

      Landoe, Brown, Planalp, Kommers & Johnstone, Steve Reida argued, Bozeman, Jones & Hoffman, Chester Lloyd Jones argued, Virginia City, for defendant and appellant.
    Poore, Roth & Robinson, C. Richard Anderson argued, and John P. Davis argued, Butte, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant-Shining Mountains appeals from a District Court decision requiring it to provide and construct roadways throughout a subdivision located in Madison County and to pay reasonable attorney’s fees to plaintiffs. We affirm and remand with instructions.

This appeal comes from a Madison County bench trial before the Honorable Frank M. Davis, which was concluded September 30, 1986. Defendant, “The Shining Mountains,” a California limited partnership, is the owner-developer of property known as the “Shining Mountains Subdivision” located in Madison County, Montana. A dispute arose between defendant and individuals purchasing parcels within the subdivision as to the extent and nature of defendant’s commitment to construct roadways within the subdivision. The plaintiff-landowners filed suit alleging defendant represented that roadways would be provided as part of the development and constructed by defendant.

This Court previously reversed a partial summary judgment in favor of plaintiffs. Majers v. Shining Mountains (Mont. 1986), [219 Mont. 366,] 711 P.2d 1375, 43 St.Rep. 16 (holding that a genuine issue of fact remained in determining what representations were made by defendant to plaintiffs as to the construction of roadways, and that roadway easement designations on the plat maps did not alone create a promise to construct roads). Following a subsequent trial, the District Court concluded that defendant was obligated to provide and construct roadways as designated in its recorded plats of the subdivision, and that the roads comply with the minimum requirements of local subdivision specifications. The District Court found that defendant had represented during sales campaigns that it would construct the roads and that defendant acknowledged this obligation by beginning “a program of road and improvement construction in accordance with the designations thereof in the recorded plats.” Plaintiffs were awarded attorney’s fees in the amount of $26,000.

Four issues are raised for our consideration on appeal:

(1) Did the District Court properly order specific performance?

(2) Did the District Court award excessive attorney’s fees?

(3) Are the plaintiffs entitled to an additional award of attorney’s fees incurred in responding to the present appeal?

(4) Was the plaintiffs’ action barred by the statute of limitations?

We will consider each issue separately. First, however, we must note that the standard of review on appeal is that the District Court’s findings of fact will not be disturbed unless clearly erroneous. Rule 52(a), M.R.Civ.P. Further, this Court has made the following statement which is applicable under these circumstances:

“In a nonjury trial, the credibility of witnesses and the weight of their testimony are matters for the District Court to determine. The sufficiency of the evidence must be reviewed from the perspective most favorable to the prevailing party. The District Court’s findings and judgment are presumed correct and will not be overturned unless the appellant meets the burden of proving with a preponderance of evidence that they are wrong. Merely showing the evidence establishes reasonable grounds for reaching a different conclusion is insufficient to reverse the District Court findings. Lumby v. Doetch (1979), 183 Mont. 427, 431, 600 P.2d 200, 202.”

Frank L. Pirtz Const. v. Hardin Town Pump (Mont. 1984), [214 Mont. 131,] 692 P.2d 460, 462, 41 St.Rep. 2366, 2368.

I. DID THE DISTRICT COURT PROPERLY ORDER SPECIFIC PERFORMANCE?

Defendant agrees it is obligated to construct some roadways, but argues the District Court order is excessive because it requires the construction of all roadways designated on the subdivision plat. Defendant contends that potential buyers were informed that roads would be constructed as they were needed, and when the buyer determined he was ready to build. Defendant alleges “there is no evidence in the record that Shining Mountains promised to build all the roads listed on the plat.” Defendant relies upon the previous appeal in this matter, where it was held that the designation of roadways on the subdivision plat does not alone obligate the subdivider to construct roadways. Majers, 711 P.2d at 1378, 43 St.Rep. at 20. Instead, the obligation depends upon the actual representations made by the seller to the buyer. Defendant contends that the evidence does not sufficiently demonstrate a promise to construct the entire network of roadways.

In the previous appeal in this case, we reversed a partial summary judgment in favor of the plaintiffs and stated:

“[I]t is the use made of the plat in inducing the purchasers . . . which gives rise to the legally enforceable right in the individual purchasers, and such is not dependent upon a dedication to public use, or upon the filing or recording of the plat.” [Citing, Ute Park Summer Homes Ass’n v. Maxwell Land Gr. Co. (N.M. 1967), 427 P.2d 249, 253.] Similarly here, the purchasers acquired an easement for the designated use. Whether there is any legally enforceable right to have the roads constructed depends not on the designation in the plats but on the use of those plats in inducing purchases. The instruments alone do not give rise to a promise to open or construct the roads. Factual issues remain on the use made of the plats and what representations were made in the sale of lots. We therefore reverse the order granting partial summary judgment for respondents and remand for further proceedings.” (Emphasis added.)

Majers, 711 P.2d at 1378, 43 St.Rep. at 20. Following a subsequent bench trial, the District Court found sufficient evidence to demonstrate that defendant’s sales agents had made actual representations throughout the sales campaign that roads would be constructed and provided by defendant. This finding is supported by substantial credible evidence and we therefore affirm the finding.

The trial testimony consistently indicates that the defendant’s sales agents referred to the plats of the subdivision when making a sales presentation to a potential buyer. Those plats clearly set forth a roadway system. The use of the plats suggest that the potential buyers would be purchasing land in a subdivision with a developed system of roadways, and not an isolated piece of real property. Defendant actually admits that once a land buyer decides to construct a residence, defendant is responsible for constructing a road to that plot of land. The trial testimony sufficiently demonstrates that the buyers were partially induced to make purchases because a roadway system would be provided by the seller. Substantial credible evidence supports this conclusion, and we therefore refuse to hold that the District Court’s decision is clearly erroneous.

Defendant contests the award of specific performance and states this is an inappropriate remedy because the obligations of the parties under the contracts are not sufficiently ascertainable. “Specific performance is an equitable remedy which compels the performance of a contract in the precise terms agreed on.” Seifert v. Seifert (1977), 173 Mont. 501, 504, 568 P.2d 155, 156. Specific performance is not appropriate if the terms of the contract are not sufficiently certain so as to make the precise act which is to be done clearly ascertainable. Section 27-1-412(5), MCA. In other words, a contract will not be specifically enforced unless the terms of the contract are sufficiently definite. This Court has also noted however, that absolute certainty in every detail is not necessarily required:

“[I]t is well settled that absolute certainty in every detail is not a prerequisite for specific performance. Gropp v. Lotton (1972), 160 Mont. 415, 503 P.2d 661; Steen v. Rustad (1957), 132 Mont. 96, 313 P.2d 1014. Those matters which are collateral or which go to the performance of the contract are not essential and need not be expressed in the contract. Steen v. Rustad, supra; Johnson v. Elliot (1950), 123 Mont. 597, 218 P.2d 703.”

Keaster v. Bozik (Mont. 1981), [_ Mont. _,] 623 P.2d 1376, 1381, 38 St.Rep. 194, 201. Additionally, we must note that specific performance is an equitable remedy:

“[T]he foundation of a suit for performance of a contract is that, by compelling the parties to do the very things they agreed to do, more complete and perfect justice is attained than by giving damages for breach of a contract. Specific performance is purely an equitable remedy; presenting a purely equitable controversy and is governed by equitable principles. 81 C.J.S. Specific Performance Section 1, p. 408. See also: State ex rel. Victor’s Inc. v. District Court, [169 Mont. 110], 545 P.2d 1098, 33 St.Rep. 23, 27.
“In 81 C.J.S. Specific Performance Section 3, p. 411, it is stated:
“ ‘. . . specific performance will be ordered only on equitable grounds in view of all the conditions surrounding the particular case. * * *
“ ‘A bill in equity for specific performance is an appeal to the conscience of the court, and generally, in such a proceeding, the inquiry must be whether, in equity and good conscience, the court should specifically enforce the contract. Accordingly, specific performance will be granted when it is apparent from a view of all the circumstances of the particular case that it will serve the ends of justice, and it will be withheld when, from a like view, it appears that it will produce hardships or injustice to either party * * *.’ ” (Emphasis in original.)

Seifert, 173 Mont. at 504, 568 P.2d at 156, 157.

In view of the facts of this case and the general rules governing specific performance, we find the District Court order is correct. The plats designate the route, location, and width of the roadways in question. The only item not specifically designated is the type or nature of the roadways. Therefore, we find that the obligations generated by the sales contracts are sufficiently definite. Additionally, the actual construction of roadways is the proper equitable remedy.

Defendant contests the portion of the District Court order requiring that the roads meet the minimum requirements of the Madison County subdivision regulations. Since no such minimum requirements existed when plaintiffs purchased their lots, defendant contends it is unfair to apply the requirements at a future time. Defendant alleges the new requirements will result in a cost increase exceeding $500,000.

The record demonstrates that defendant has attempted to satisfy its obligations by constructing certain dirt roadways that are impassable during large portions of any given year. It would certainly not be equitable to allow defendant to escape its obligation by constructing roads which are rendered basically useless during significant portions of the year. The roadways must be of sufficient quality to provide reasonable access during the entire year. Both parties had an opportunity at trial to present a plan which would provide reasonable year-round access. Plaintiffs presented the Madison County subdivision regulations as containing a reasonable standard for the roadways. The District Court chose to accept those standards as reasonable, and we see no reason to reject this decision.

Defendant finally states that the District Court decision benefits 200 lot owners that are not parties to the action, and has the effect of treating the dispute as a class action suit. Defendant concludes this is not an appropriate case for a class action suit because recovery depends upon representations made to each individual buyer. Additionally, a similar case was previously denied class action status. We reject defendant’s contention because the completion of the roadway system within the subdivision benefits each of the plaintiffs. Although others will certainly benefit even though they are not parties to this lawsuit, this consideration is not controlling. Each plaintiff has a vested interest in having the subdivision roadway network completed. We hold the District Court properly awarded specific performance.

II. DID THE DISTRICT COURT AWARD EXCESSIVE ATTORNEY’S FEES?

Defendant agrees that an award of attorney’s fees is appropriate because the sales contracts and Montana law provide for such fees. However, defendant states the award of $26,000 is excessive. Defendant explains that plaintiffs lost the first appeal in this case and that resulting attorney’s fees from that appeal should not be paid by defendant. Additionally, defendant alleges a large portion of the plaintiffs’ attorney’s fees were paid for by a third party, and that other portions of plaintiffs’ attorney’s fees were generated as a result of a separate case.

In determining what constitutes “reasonable attorney’s fees,” this Court has stated that the following factors should be considered as guidelines: (1) the amount and character of the services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or the value of the property to be affected; (5) the professional skill and experience called for; (6) the character and standing in their profession of the attorneys; and (7) the result secured by the services of the attorneys. See, Carkeek v. Ayer (1980), 188 Mont. 345, 347, 613 P.2d 1013, 1015; First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 429, 430, 547 P.2d 1328, 1332; Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 119, 120, 541 P.2d 56, 59; and, Forrester and MacGinnis v. B. & M. Co. (1904), 29 Mont. 397, 409, 74 P. 1088, 1093. Determining what constitutes reasonable attorney’s fees is a discretionary task for the District Court, and this Court will not disturb its judgment in the absence of an abuse of that discretion. Talmage v. Gruss (1983), 202 Mont. 410, 412, 658 P.2d 419, 420 (citing, Carkeek, 188 Mont. at 347, 348, 613 P.2d at 1015).

The District Court specifically stated in its order dated May 4, 1987, that it considered plaintiffs’ itemized statements, the supporting affidavits, and the general and local standards and criteria for the fixing of attorney’s fees. The District Court actually reduced the amount of attorney’s fees requested by the plaintiff from $29,575.07 to $26,000. After reviewing the plaintiffs’ supporting affidavits and statements, the guidelines for determining reasonable attorney’s fees, and the District Court order, we find no abuse of discretion and affirm the award of attorney’s fees.

Defendant also objects to the award of attorney’s fees on the contentions that the fees have already been advanced by a third party and that a significant portion of the fees were generated due to a separate but similar case. Defendant cites no authority which prohibits a third party from advancing such fees for plaintiffs. Defendant does cite First National Bank of Great Falls v. Llera (1978), 176 Mont. 481, 487, 580 P.2d 100, 104, for the proposition that only parties with a contractual right to attorney’s fees may receive an award for those fees pursuant to the contract. In this case, however, the plaintiffs are parties to the sales contracts and therefore may receive attorney’s fees based on that contract. This is not altered merely because a third party advanced the fees. Additionally, there is no indication that the attorney’s fees were incurred due to another case. Instead, it appears that plaintiffs have become genuinely obligated to pay significant amounts in attorney’s fees as a result of pursuing this action. The District Court determined a reasonable amount for these services and we hold there is substantial evidence to make such a determination.

III. ARE THE PLAINTIFF/RESPONDENTS ENTITLED TO AN ADDITIONAL AWARD OF ATTORNEY’S FEES INCURRED IN RESPONDING TO THIS APPEAL?

Plaintiffs contend that if they prevail on this appeal, they are entitled to additional reasonable attorney’s fees incurred due to this appeal. The claim for attorney’s fees is based on an attorney’s fee clause in the contract for sale which provides that the seller (defendant) is entitled to reasonable attorney’s fees generated by any subsequent litigation. Due to the clause, the buyers (plaintiffs) obtained the same right to claim attorney’s fees. Section 28-3-704, MCA. The clause specifically states it applies to any legal action instituted in any court. As the prevailing party on appeal, plaintiffs are entitled to reasonable attorney’s fees. We hold this is consistent with previous cases discussing similar issues. See, In re Marriage of Bolstad (1983), 203 Mont. 131, 135, 660 P.2d 95, 97.

IV. WAS THE PLAINTIFF’S ACTION BARRED BY THE STATUTE OF LIMITATIONS?

Defendant contends the applicable statute of limitations for this case is five years, despite this Court’s decision which applied an eight year statute of limitations. Majers, 711 P.2d at 1378, 1379, 43 St.Rep. at 20, 21. Defendant reasons that since the claim depends upon the oral representations made to the buyers, the claim is one based on a contract not founded upon a written instrument and the applicable statute of limitations is five years. See, Section 27-2-202(2), MCA. Defendant urges this Court to reevaluate the prior decision in this case. After reviewing this issue, we see no reason to reverse our prior decision regarding the statute of limitations.

In conclusion, we affirm the District Court on all issues. We remand for the purpose of determining reasonable attorney’s fees incurred by plaintiffs on this appeal. Further, we direct the District Court to reestablish a date for the completion of the roadways, as well as other improvements including the artificial lake as stated in the District Court’s final judgment, as set forth on the plats of the subdivision and in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON, HUNT and McDONOUGH concur.


author: MR. JUSTICE McDONOUGH

text:
    EUGENE T. OLMSTEAD, Personal Representative of the Estate of Ione Olmstead, Deceased, Plaintiff and Appellant, v. STEVEN E. HUBERT, Defendant and Third-Party Defendant. MILBANK MUTUAL INSURANCE COMPANY, Intervenor, Third-Party Plaintiff and Respondent, v. UNITED PACIFIC INSURANCE COMPANY, Third-Party Defendant and Appellant.
    No. 87-278.
    Submitted on Briefs Nov. 13, 1987.
    Decided Feb. 18, 1988.
    Rehearing Denied April 5, 1988.
    751 P.2d 160.

      Murphy, Robinson, Heckathorn & Phillips; I. James Heckathorn, Murray, Kaufman, Vidal & Gordon; James E. Vidal, Kalispell, for plaintiff and appellant.
    Warden, Christiansen, Johnson & Berg; Gary R. Christiansen, M. Dean Jellison, Kalispell, for intervenor, third-party plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiff was involved in a four vehicle accident. Two vehicles were insured, one was uninsured. Olmstead settled with the insured drivers and brought an action against the third, Steven E. Hubert, to establish liability in order to recover on his uninsured motorist coverage. The District Court, Eleventh Judicial District, Flathead County, Montana entered summary judgment against Olmstead holding that Hubert was not an uninsured motorist. We affirm.

The four vehicles involved in this accident were insured as follows:

Hansen, Vehicle No. 1, United Pacific

Hubert, Vehicle No. 2, no insurance

Olmstead, Vehicle No. 3, Milbank

Schwartz, Vehicle No. 4, United Pacific

Hansen’s vehicle went off icy U.S. Highway 93 at night. Hubert stopped to help and attached a chain between the two vehicles. Olmsteads’ vehicle was proceeding south when it struck the Hubert vehicle. The Schwartz vehicle was also proceeding south when it struck the Olmstead vehicle, which again struck the Hubert vehicle. Eugene Olmstead and his wife, lone, were both injured. Olmstead settled with United Pacific, relative to Hansen and Schwartz, and reserved claims against Hubert. Olmstead made a claim under his uninsured motorist coverage. Milbank refused to provide coverage, asserting that Hansen was “using” the Hubert vehicle because of the towing and the Hansen vehicle was insured so Hubert was not an uninsured motorist. The District Court agreed. The issues on appeal are: 1) whether the vehicle operated by Steven E. Hubert was an uninsured vehicle on the date in question; and 2) does Hansen’s insurer owe Hubert a duty to defend?

Olmstead contends that Hubert was uninsured because he had no insurance for the operation of his own vehicle or his use of Hansen’s vehicle, Olmstead argues that the mere fact that Hansen purchased insurance to cover himself in the use of any automobile does not insulate Hubert as the owner and operator of an uninsured motor vehicle, from his own negligence and liability.

Section 33-23-201, MCA, governs uninsured motorist coverage:

(1) No motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle may be delivered or issued for delivery in this state, with respect to any motor vehicle registered and principally garaged in this state, unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in 61-6-103, under provisions filed with and approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom, caused by an accident arising out of the operation or use of such vehicle. An uninsured motor vehicle is a land motor vehicle, neither the ownership, nor the maintenance, nor the use of which is insured or bonded for bodily injury liability at the time of the accident.”

Here we have an uninsured motor vehicle towing an insured motor vehicle. The towing of one vehicle by another falls under the definition of use. “When the accident at issue occurred, ABT Towing and Jarvis were towing the insured auto, and were therefore ‘using’ the auto in such a fashion as to invoke coverage. Under similar circumstances, a clear majority of jurisdictions find that a ‘use’ is occurring and that liability coverage applies.” Westfield Ins. v. Aetna Life & Casualty Co. (1987), 153 Ariz. 564, 739 P.2d 218, 220.

The Hansen vehicle was using the Hubert vehicle. Section 33-23-201, MCA, provides that an uninsured motor vehicle is one the use of which is not insured at the time of the accident. Hansen’s use of Hubert’s vehicle was covered by his insurance issued by United Pacific. The policy provided “We will pay damages for which any insured person is legally liable . . . arising out of the ownership, maintenance or use of a private passenger car .... Insured person as used in this part means: 2. Any person using your insured car.” Hubert does not qualify as an uninsured motorist because the use of his vehicle was insured by Hansen’s policy.

Hansen’s policy with United Pacific provides coverage for “any person using your insured car”. The policy provides “We will pay damages for which any insured person is legally liable .... We will defend any claim or suit asking for these damages . . . Hubert was using Hansen’s automobile, so in accordance with the policy language United Pacific owes a duty to defend. Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE HUNT

text:
    RONALD L. BURGESS, John L. Lake, Jr., and Nick Mallas, Plaintiffs and Appellants, v. ROBERT SHIPLET, Jacqueline Shiplet, Tami Shiplet and First Bank of Livingston, or any other person known or unknown, claiming any interest in the property described herein, Defendants and Respondents.
    No. 87-443.
    Submitted on Briefs Jan. 14, 1988.
    Decided Feb. 18, 1988.
    750 P.2d 460.

      Knuchel & McGregor, Karl Knuchel, Livingston, for plaintiifs and appellants.
    Moore, Rice, O’Connell & Refling, Perry J. Moore, Bozeman, Huppert & Swindlehurst, Arnold Huppert, Jr., Livingston, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This contract dispute is appealed to this Court from the Sixth Judicial District, Park County. Ronald Burgess, John Lake and Nick Mallas appeal the judgment of the District Court which treated purchase of land from appellants, under a contract for deed, as a mortgage. The appellants also allege error by the court in failing to award them reasonable attorney fees and damages.

We reverse and remand to the District Court.

The issues presented are as follows:

1. Did the District Court err in treating a contract for deed as an equitable mortgage?

2. Is the anti-forfeiture statute, Section 28-1-104, MCA applicable?

3. Did the District Court err in finding that appellants also breached the contract, thereby diminishing respondents obligations under the contract?

4. Did the District Court err in failing to award attorney’s fees to appellants?

5. Did the District Court err in failing to award damages?

Respondents Robert, Jacqueline and Tami Shiplet purchased land from Shields River Bench, a partnership owned by appellants. The first tract was purchased by Robert and Jacqueline Shiplet in 1980 for $110,000. They paid $21,500 down with annual payments of $12,017. The second tract was purchased by Robert, Jacqueline and Tami (daughter) Shiplet in 1981 for $110,000. They paid $10,000 down with annual payments of $13, 575. The respondents have been in possession of both tracts of land since the dates of closing on the sales. The last payment made on the 1980 contract was on May 11, 1984. The last payment made on the 1981 contract was June 27, 1983.

Appellants unsuccessfully attempted to serve default notices on the respondents, first by certified mail, then by service by the Park County SherifF. However, respondents refused to accept the notices. Finally, after the appellants filed suit, the court ordered the respondent’s attorney to accept all default notices on behalf of the Shiplets. Notices of default and continuing default were then served on the Shiplets’ attorney on July 1, 1986, and September 3, 1986.

For the purposes of trial, the two causes of action, one on each contract, were consolidated. The Shiplets counterclaimed with allegations of breach of contract because appellants failed to control noxious weeds on their property; failed to establish a homeowner’s association in the proposed subdivision where Shiplets purchased their land; and failed to buy gravel from the Shiplets in lieu of an annual payment under their contract.

After a bench trial, the District Court made findings of fact and conclusions of law and entered judgment against the respondents for default on the contracts for deed. The court also found that the appellants breached the contracts for not fulfilling the protective covenants and for violating their statutory obligation to control noxious weeds on their property. The court then granted the respondents one year right of redemption on the contracts beginning June 24, 1987.

Appellants contend that the District Court erred by treating the contract for deed as a mortgage.

Subsequent to the District Court’s findings of fact and conclusions of law in the case now before us, this Court, in December 1987, held that “(a) contract for deed is not the same legal concept as a mortgage under Montana law.” Aveco Properties, Inc. v. Nicholson (Mont. 1987), [229 Mont. 417,] 747 P.2d 1358, 44 St.Rep. 2098, 2102. See also Glacier Campground v. Wild Rivers, Inc. (1979), 182 Mont. 389, 597 P.2d 689, (a contract for deed and a mortgage are “distinct legal creatures.”)

When a purchaser enters into a contract for deed with a seller, he or she runs the risk of defaulting on the required payments and facing the consequences of losing the property along with forfeiting the amount already paid. If this produces a harsh or unwanted result, it is for the legislature to remedy and not the job of this court to change the plain meaning of the contract.

In the case before us, the contract for deed provides that upon their default buyers have 30 days in which to correct the default or sellers are entitled to demand, within 30 days, full payment of the unpaid balance of the purchase price plus accrued interest. If the buyer fails to pay the total unpaid balance in 30 days, the agreement terminates and the property is returned to seller.

The District Court found that respondents/buyers defaulted on both contracts which they had with appellants/sellers. The default provisions under the contract for deed spells out the remedies available to appellants. Respondents cannot look to mortgage law for alternative remedies but must accept the remedies set forth in their contract with appellants. We reverse on the first issue.

The District Court concluded that the anti-forfeiture statute, Section 28-1-104, MCA, does not apply to these facts, but then for “equitable” reasons refused to award appellants the amount already paid by respondents and return the land to appellants. Section 28-1-104, MCA, applies only when the party exposed to forfeiture has offered the entire outstanding balance as full compensation on the contract. Eigeman v. Miller (Mont. 1987), [229 Mont. 28,] 745 P.2d 320, 323, 44 St.Rep. 1752, 1755. The Shiplets have not offered the unpaid balance nor any amount as compensation for these contracts. The antiforfeiture statute therefore does not apply.

Respondents had paid a total of $65,357.49 principal on the combined contracts when they stopped making payments. However, they still owed $154,642.51 on the principal plus accrued interest. Respondents lived on the property, farmed the land and kept all income from it since 1980 on one parcel and since 1981 on the other. They have continued to possess, enjoy and reap the benefits from the property without making any payments on it since June, 1983, on the first contract and May, 1984, on the second contract. Appellants, on the other hand, have been denied either payments on or possession of the property while still being responsible for their own payment obligations for the same land. We hold that the District Court was correct in its refusal to apply Section 28-1-104, MCA. However, the court should have awarded forfeiture of the amount already paid by the Shiplets to appellants.

Appellants argue that it was error for the District Court to circumvent the agreement between the parties, with respect to the default clause, for the reasons that appellants failed to control noxious weeds on their property and breached the protective covenants contained in the contract.

The record shows that there were noxious weeds on appellants’ land which adjoins the land purchased by respondents. While Section 7-22-2116, MCA, provides that “[i]t is unlawful for any person to permit any noxious weed to propagate or go to seed on his land, . . .” the failure of appellants to control the weeds is not sufficient to forgive payment on the contract by respondents for the purchase of land. Violations of Section 7-22-2116, MCA, are dealt with in Sections 7-22-2117 and 2123, MCA, by allowing for fines to be assessed against the person who commits the misdemeanor offense and is convicted of allowing noxious weeds to propagate on his property. We hold that appellants did not breach the contract by failing to control the noxious weeds on the land.

Furthermore, it is not sufficient to forgive payments due under the contract because of appellant’s failure to create a' homeowners association in the subdivision where respondents purchased property. The protective covenants contained in the contracts for deed require that a homeowner’s association be formed “at such time as fifty one (51%) percent of the tracts in the subdivision have been sold or by,-, 19_, whichever shall occur first.”

At the time of filing the contract for deed with the Clerk and Recorder on June 18, 1980, the blanks in the protective covenant were not filled in. The record does not indicate there was any deadline or intention to establish one. What is clear from the record is that 51% of the tracts were not sold at the date of respondent’s default. There was, therefore, no breach by appellants. Furthermore, enforcement of the covenants was outlined in the contract. Remedies include damages and/or injunctions against violators. The provision does not declare the entire contract terminated in the event of a covenant violation, as it does for a default on payments. No notice was ever given by the respondents to the appellants that they considered the failure to establish the homeowners association a violation of the contract. We hold that the appellants did not breach the contract.

The District Court did not award attorney fees because “each party is in default.” Since we held that appellants were not in default, they are entitled to attorney fees from the Shiplets pursuant to the parties’ agreement. The contract provides for reasonable attorney fees to the prevailing party in the event an action is brought to enforce the terms of the contract. We remand to the District Court to make findings and award reasonable attorney fees to appellants.

The District Court found that the appellants were not entitled to damages for respondents default on the contract. However, Section 27-1-311, MCA, allows for damages arising from the breach of a contract. We remand to the District Court to determine what, if any, damages appellants may be entitled to under that statute as a result of Shiplet’s breach.

Reversed and remanded to the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.