Gandy v. Eschler

                             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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