No. 93-104
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
RAY D. GANDY and NORMA L. GANDY,
Plaintiffs, Appellants,
and Cross-Respondents,
V.
JANET E. ESCHLER, individually, and
LORI L. ESCHLER and BURKE ESCHLER,
Personal Representatives of the
Estate of JAMES P. ESCHLER,
Defendants, Respondents,
and Cross-Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Kenneth E. O'Brien, Hash, O'Brien & Bartlett,
Kalispell, Montana
For Respondents:
Donald Harris and Steven R. Milch, Crowley,
Haughey, Hanson, Toole & Dietrich, Billings,
Montana (Janet Eschler);
Jerome Cate, Cate Law Firm, Whitefish,
Montana (Estate of James P. Eschler
Submitted on Briefs: June 10, 1993
Decided: November 2, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellants Ray and Norma Gandy appeal from an order of the
Thirteenth Judicial District Court, Yellowstone County, granting
partial summary judgment to respondents Janet, Lori, and Burke
Eschler, personal representatives of the Estate of James P.
Eschler. The order denied Gandys' claim that the Eschlers
specifically perform on a contract for deed for real property
located in Yellowstone County. Gandys also contest the amount of
award for attorney fees. Eschlers cross-appeal on the award of
attorney fees.
We affirm.
Appellants present one issue on appeal which we rephrase as
follows:
1. Did the District Court err in granting partial summary
judgment when it ruled that Gandys were not entitled to specific
performance?
Eschlers cross-appeal with the following issue:
2. Did the District Court err in granting attorney fees to
Gandys when they did not prevail on the motion for partial summary
judgment?
Appellants also appeal the amount of attorney fees.
On December 22, 1977, William and Sally Fried entered into a
contract for deed with Richard and Jeannie Martin for rental
property located in Yellowstone County. The parties placed the
contract in escrow.
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on September 29, 1983, Martins sold the same property to James
and Janet Eschler using a contract for deed. The purchase price of
the contract was $315,000, which included a $50,000 down payment.
On the date of execution, Martins placed a warranty deed in escrow.
Eschlers purchased subject to the December 22, 1977, underlying
contract, but did not assume the contract.
On October 4, 1984, Martins assigned their sellers' interest
in the 1983 contract to a party known as Avrill. On December 12,
1985, Avrill assigned his seller's interest to Gandys for $80,000.
In June 1987, Eschlers notified Gandys that no further monthly
payments would be made upon the contract. At that time, Eschlers
had made all payments when due. On July 6, 1987, Eschlers notified
Gandys that they would furnish a quitclaim deed in return for a
release from further obligation.
From August 1987, until March 1988, the parties attempted to
negotiate a resolution to the problem. On March 30, 1988, the
parties entered into a written agreement wherein Eschlers agreed to
pay $20,000, with interest, to Gandys for satisfaction of Gandys'
claim for the balance due and owing under the September 29, 1983,
agreement. At the time the parties entered into the second
agreement, Frieds gave both parties notice of default and
repossessed the real estate in December 1987.
Eschlers did not make timely payments and defaulted on the
March 30, 1988, agreement. On April 24, 1991, Gandys initiated
this action under the March 30, 1988, agreement seeking the
underlying contract price of $258,640, plus interest, or in the
alternative, Gandys sought $20,000 from the breach of the March 30,
1988, contract. On May 27, 1992, Eschlers filed a motion for
partial summary judgment on the basis that Gandys' claim for
specific performance failed as a matter of law. On August 6, 1992,
the District Court granted Eschlers' motion for partial summary
judgment. On August 17, 1992, Eschlers filed an offer of judgment
for $20,000, which included all costs incurred at that time.
Gandys did not respond to the offer, but instead filed a motion for
reconsideration. On December 23, 1992, Eschlers filed a motion for
entry of judgment on the balance remaining on the 1988 contract,
which the District Court granted. The court entered judgment in
favor of Gandys for $15,757.53 and $1,200.00 in attorney fees.
Gandys appeal the judgment of the District Court.
Did the District Court err in granting partial summary
judgment when it ruled that Gandys were not entitled to specific
performance?
When determining whether a district court erred on a motion
for summary judgment, our standard of review is the same as that of
the district court. It is proper for the district court to grant
summary judgment when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.
Rule 56(c), M.R.Civ.P. The court may examine the pleadings,
depositions, answers to interrogatories, and admissions in the
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record to establish facts to determine if the applicable law
warrants the granting of summary judgment. Kondelik v. First
Fidelity (Mont. 1993), 857 P.2d 687, 692, 50 St. Rep. 874, 876-77.
Gandys contend that the District Court should have allowed
them to sue for the balance of the purchase price of the underlying
contract because it was Eschlers who defaulted and prevented Gandys
from vesting Escblers with title. In essence, Gandys argue that
persons who prevent the performance of the terms of the contract
cannot avail themselves of the nonperformance which their actions
have prevented.
We have stated that:
A request for a money judgment for the balance of the
purchase price which may be awarded in an action at law
has been deemed identical to a decree of specific
performance, which requires the buyer to pay the balance
of the purchase price. That being so, once the buyers
have paid the money judgment, the seller must convey
title to the property. Such would be required if the
decree were of specific performance; and since the money
judgment has been deemed identical to a decree for
specific performance, the money judgment carries with it
the same requirement that the seller perform. [Citation
omitted].
Glacier Campground v. Wild Rivers, Inc. (1979) I 184 Mont. 543,
560-61, 597 P.2d 689, 699.
To obtain specific performance, both parties must be able to
perform their obligations of the contract. Section 27-1-414, MCA.
Here, for Gandys to succeed on their claim for specific performance
they must be able to convey title of the Yellowstone County land to
Eschlers.
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Gandys maintain that they are not required to perform their
end of the 1983 contract because Paragraph 4 of the March 30, 1988,
contract releases and discharges them from performing any
obligation resulting from the September 29, 1983, agreement.
Gandys also contend that Paragraph 5 of the March 30, 1988,
contract allows them to sue for the full balance of the purchase
price of the underlying contract.
Paragraph 4 states:
ESCHLERS hereby release and forever discharge GANDYS
from the performance or non-performance of any duties or
obligations, as well as any and all other liabilities
resulting from, arising out of, or in any way associated
with said agreement dated September 29, 1983.
When determining the intention of the parties, we look to the
contract as a whole to determine its meaning and not be bound by a
single provision or expression. St. Paul Fire & Marine Ins. Co. v.
Cumiskey (1983), 204 Mont. 350, 363, 665 P.2d 223, 229.
The contract contains mutual release language. Paragraph 3
discharges Eschlers from their obligation only upon the payment of
the $20,000. Paragraph 3 states:
Upon compliance of Paragraph 1, above, by payment in
full sum of Twenty Thousand Dollars ($20,000.00), plus
interest, GANDYS hereby release and forever discharge
ESCHLERS from the performance or non-performance of any
duties or obligations, as well as any and all other
liabilities resulting from, arising out of, or in any way
associated with said agreement dated September 29, 1983.
Upon reading Paragraph 3 with Paragraph 4, it becomes clear
that the parties mutually agreed to release each other from their
respective obligations under the September 29, 1983, contract.
Accordingly, Gandys are still required to convey title of the
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Yellowstone County property when suing for the balance of the
purchase price of the underlying contract. Gandys cannot compel
specific performance because they no longer have title to the land.
Our analysis does not stop here. Assuming arguendo that if
the District Court compelled Eschlers to specifically perform under
the contract, Gandys would receive the full purchase price for the
land, Martins would have title to the land, and Eschlers would be
left with nothing. We will not compel specific performance when it
becomes oppressive upon the party required to specifically perform.
Section 27-1-413, MCA. Under these circumstances, enforcing
specific performance would operate harshly against Eschlers. We
hold that the District Court did not err in granting summary
judgment.
II.
Did the District Court err in granting attorney fees to Gandys
when they did not prevail on the motion for partial summary
judgment?
Paragraph 6 of the March 30, 1988, contract provides for the
following:
In the event that either party shall institute legal
action for the enforcement of any right, obligation,
provision or covenant of this agreement, they shall be
entitled to a reasonable attorney's fee in addition to
costs of suit.
The right to attorney fees is reciprocal to all parties to the
contract in any action based on the contract, despite which party
initiates the action. Carey v. Wallner (1986), 223 Mont. 260, 267,
725 P.2d 557, 562: § 28-3-704, MCA. The prevailing party suing
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under the contract has the right to attorney fees. Section
28-3-704, MCA.
Eschlers claim that they are the prevailing party because they
have successfully defended against Gandys' specific performance
claim. In addition, Eschlers filed a motion for summary judgment
for the unpaid portion of the $20,000 obligation. Gandys did not
oppose the motion and the District Court granted summary judgment.
When Eschlers filed their answer and motion to dismiss to
Gandys' amended complaint and their motion for partial summary
judgment, along with the briefs submitted, they stated that Gandys
should take nothing by way of their complaint. Gandys, in addition
to their specific performance claim, requested a judgment for "such
other sum as the Court may conclude resulted from the Defendant's
breach of the March 30, 1988, Agreement." This is presumably the
unpaid portion of the $20,000. The court granted summary judgment
for the requested amount. We hold that since Gandys prevailed in
obtaining a judgment for the unpaid portion of the March 30, 1988,
contract then the District Court did not err in granting attorney
fees.
Finally, Gandys complain that the District Court erred in the
amount of attorney fees that it granted. Gandys offer no authority
for this proposition.
The district court has discretion to determine the amount of
attorney fees. Stewart v. Casey (1979), 182 Mont. 185, 193, 595
P.2d 1176, 1181. We will not overturn a district court's decision
absent an abuse of discretion. Gandys' attorney filed an affidavit
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stating that attorney fees amounted to $2762 when working for 27
hours at a rate of $85 an hour from the time the action commenced
until August 17, 1.992, and adding an additional 5.5 hours for work
performed after August 17, 1992. On August 17, 1992, Eschlers
filed an offer of judgment for $20,000. The District Court
determined that the request for attorney fees was not reasonable
and awarded $1200 in fees.
Apparently, the court concluded that Gandys had an early
opportunity to settle the claim for $20,000, but created delay. In
the partial summary judgment order, the court stated that it would
be inclined to grant summary judgment for Gandys on their claim for
breach of the March 30, 1988, contract. Eschlers filed an offer of
judgment of $20,000 after the court granted partial summary
judgment. Gandys did not accept the offer and the court entered a
judgment for less than the offer. Rule 68, M.R.Civ.P. The court
stressed that there was a change of venue, Gandys amended their
complaint, and Gandys requested a motion to reconsider the partial
summary judgment. We hold that the District Court did not abuse
its discretion when it determined the amount of attorney fees.
We affirm.
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We concur:
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