NO. 91-116
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
HAZEL FOOTTIT DUFOUR,
Plaintiff and Appellant,
-VS-
ALVIN WOLF and HELEN WOLF,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur W. Ayers; Ayers Law Office, Red Lodge,
Montana.
For Respondent:
Guy W. Rogers: Anderson, Brown, Gerbase, Cebull,
Fulton, Harmon & Ross, Billings, Montana.
Submitted on briefs: July 2, 1991
Decided: August 27, 1991
Clerk
AUL 2 I994
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff appeals from an order of the District Court for the
Thirteenth Judicial District, Carbon County, granting defendants'
motion for a directed verdict and award of attorney fees. We
affirm.
The issues before us are:
1. Did the District Court err in granting defendants' motion
for a directed verdict on the issue of breach of the "option to
purchase" the mobile home?
2. Was the award of attorney fees proper?
Plaintiff leased a portion of her land to defendants for a
mobile home site. The lease included the following "option to
purchasev1provision.
It is understood and agreed that in the event Tenants
determine to terminate this lease and sell the mobile
home unit presently located upon the property, Landlord
shall have a ten (10) day option to purchase said mobile
home unit by matching a bona fide offer. It is
understood and agreed that Tenants shall give Landlord
a ten (10) day written notice, delivered to her
personally or to her attorney, of said option. It is
further understood that said notice shall be an actual
notice.
In August 1987, after removing the mobile home from it's foundation
while in the process of moving it to their own property, defendants
sold the mobile home to the movers for $9,000.
On March 19, 1989, the present lawsuit was filed by plaintiff
against defendants alleging among other things, that defendants
breached the "option to purchase" provision of the lease agreement.
A jury trial was held. At the close of evidence, the District
2
Court granted defendants' motion for a directed verdict on the
allegation of breach of the "option to purchase" the mobile home.
The jury returned a verdict for defendants on the remaining issues
of the lawsuit. After a hearing on August 27, 1990, the court
granted defendants' request for attorney fees in the amount of
$7,141.25.
On appeal, plaintiff maintains that the court erred in
granting a directed verdict and that the attorney fees were
improper.
The well established rule regarding the granting of directed
verdicts has recently been stated in Chapel v. Allison (1990), 241
Mont. 83, 86, 785 P.2d 204, 206:
A motion for directed verdict is properly granted only
in the complete absence of any evidence to warrant
submission to the jury, and all inferences of fact must
be considered in the light most favorable to the opposing
party. [I]f the evidence viewed in a light most favorable
to plaintiff indicates reasonable men might differ as to
the conclusions drawn from the evidence, a directed
verdict is not proper. (Citations omitted).
After a complete review of the record, we conclude that the
record is void of any evidence to warrant submitting the issue
regarding the option to purchase to the jury.
The District Court entered judgment awarding defendants
$7,141.25 in attorney fees. Defendants presented the District
Court with an affidavit which set forth the amount of time and
attorney fees spent on the lawsuit and an evidentiary hearing was
held. Plaintiff presented no evidence challenging the amount or
nature of the attorney fees.
The record portrays this case as an unfortunate and bitter
3
dispute among relatives. We hold that the District Court correctly
granted defendants' motion for a directed verdict on the issue of
breach of the option to purchase the mobile home and that the
attorney fees were proper. The District Court is affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
L%Zst\ice
We Concur: 1
fLA.?WAC
Chief Justice
4
CLERK
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Arthur W. Ayers
Ayers Law Office
P.O. Box 67
Red Lodge, MT 59068
Guy W. Rogers
Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross
P.O. Box 849
Billings, MT 59103
E D SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA