Engebretson v. Putnam

Citation34 St.Rep. 1241,571 P.2d 368,174 Mont. 409
Decision Date04 November 1977
Docket NumberNo. 13679,13679
PartiesGeraldine T. ENGEBRETSON, Plaintiff and Respondent, v. Bryce C. PUTNAM and Betty J. Putnam, Defendants, Counter-claimants and Appellants.
CourtUnited States State Supreme Court of Montana

Boone, Karlberg & Haddon, Sam E. Haddon (argued), Missoula, for defendants, counter-claimants and appellants.

Skelton & Knight, Robert R. Skelton (argued), Missoula, for plaintiff and respondent.

HASWELL, Justice.

Defendants appeal from a summary judgment granted to plaintiff by the District Court, Missoula County, in her suit on a promissory note.

Plaintiff Geraldine T. Engebretson was the owner of certain real property located in Missoula County, Montana. On October 29, 1970, she listed this property for sale with Trail Realty owned by defendants Bryce C. and Bette J. Putnam. Defendants prepared a listing agreement for the property using a standard form listing contract which plaintiff signed.

Defendants later decided to purchase plaintiff's property for themselves. On January 18, 1971, defendant Bryce C. Putnam executed a promissory note in part payment, payable to Geraldine T. Engebretson for $3,000 at 8 percent interest due in one year.

Plaintiff signed a warranty deed whereby she did "grant, bargain, sell and convey" her property to the Putnams. By the same deed Engebretson covenanted that she would:

" * * * forever WARRANT and DEFEND all right, title and interest in and to the said premises and the quiet and peaceable possession thereof unto the (Putnams) * * * against all acts and deeds of (Engebretson) and all and every person and persons whomsoever lawfully claiming or to claim the same." (Bracketed material paraphrased.)

The warranty deed stated Engebretson's grant was subject to a first mortgage in favor of the Missoula First Federal Building & Loan Association, which mortgage the Putnams agreed to assume and pay according to its terms.

At the time Engebretson sold her property to the Putnams, it was subject to the liens of Special Improvement District No. 296 for engineering fees and Special Improvement District No. 304 for sewer. Prior to the execution of the warranty deed, plaintiff had paid all matured special improvement district installments, however $1,244 in unmatured installments remained to be paid. The listing agreement which defendants prepared for plaintiff indicated the property was subject to an annual special improvement district payment of $21.50 for sewer installation. The warranty deed made no provision for the assumption of or proration of the unmatured payments by either party. Defendants later paid the $1,244 to release the special improvement district liens from the property.

As compensation for paying these installments, Putnams claimed a setoff against the amount owing on the $3,000 promissory note Bryce Putnam signed. Consequently, when the note matured on January 18, 1972, Putnams did not make any payment toward the amount due. In May 1972, they offered to pay Engebretson an amount less than the $3,000 plus interest then due. She refused to accept the lesser amount.

On June 2, 1972, Engebretson filed a complaint against Bryce Putnam alleging Putnam executed the promissory note; that he failed to pay the note upon maturity; and that the note provided for a reasonable attorney fee in case of suit to recover it. She prayed for judgment for $3,000, interest and a reasonable attorney fee.

Putnam filed an answer admitting the existence of the note and that he had made no payment on it, but alleging, as a defense, that the amount due on the note was subject to a setoff for the special improvement district installments he had paid. He counterclaimed for a setoff of $1,244 and for a reasonable attorney fee. He also moved to join his wife as a defendant and counter-claimant in the action.

Plaintiff filed a reply to defendants' counterclaim alleging, among other things, that Bryce Putnam was a real estate broker; that she had listed her real property with him for sale; that at the time plaintiff listed her real property with the defendants and at the time she sold the property to them, they knew of the unmatured special improvement district installments previously assessed on the property.

Each side moved for summary judgment. On the basis of the pleadings, the exhibits thereto, and the memoranda of law submitted by the parties, the District Court granted summary judgment in plaintiff's favor and awarded her $1,450 in attorney fees. Defendants appealed.

Three issues developed on appeal:

1. Did the District Court err in granting summary judgment?

2. Did the District Court err in denying defendants' counterclaim?

3. Did the District Court err in awarding plaintiff attorney fees in the amount of $1,450.

The purpose of the summary judgment procedure is to encourage judicial economy through the elimination of unnecessary trial, delay and expense. Bonawitz v. Bourke, Mont., 567 P.2d 32, 33, 34 St.Rep. 638, 640 (1977); Guthrie v. Dept. of Social & Rehabilitative Services, Mont., 563 P.2d 555, 556, 34 St.Rep. 255, 257 (1977). Summary judgment is not a substitute for trial, however, and is inappropriate when genuine issues of material fact remain to be litigated. Rule 56(c), M.R.Civ.P.; Duncan v. Rockwell Manufacturing Co., Mont., 567 P.2d 936, 938, 34 St.Rep. 821, 823 (1977).

Additionally, whether a court should grant a motion for summary judgment or require a trial rests in the sound discretion of the court even though the movant may have made out a case for summary judgment. 6 Pt. 2 Moore's Federal Practice P 56.15(6); John Blair & Co. v. Walton, 47 F.R.D. 196 (1969). If there is any doubt as to the propriety of a motion for summary judgment, the court should deny it. Fulton v. Clark, 167 Mont. 399, 403, 538 P.2d 1371, 1373 (1975); Kober & Kyriss v. Billings Deaconess Hospital,148 Mont. 117, 122, 123, 417 P.2d 476, 479 (1966).

During oral argument on appeal, certain facts were brought to light making it apparent that genuine issues of material fact remained to be litigated. Summarizing from the pleadings and oral argument, plaintiff's allegations are: (a) that plaintiff listed her property with the defendant realtors for sale, thus creating a principal/agent relationship between plaintiff and defendants at the time of the listing; (b) that defendants prepared both the listing agreement and, after they decided to purchase the property themselves, the warranty deed; and (c) that at all times defendants knew of the unmatured special improvement district installments, yet no mention was made of them in the warranty deed. The pretrial proceedings left undecided such issues as:

1. Did the principal/agent relationship between plaintiff and defendants still exist at the time plaintiff sold her property to defendants?

2. What was the intent of the parties regarding payment of the unmatured special improvement district installments?

3. Did defendants breach any fiduciary duty they may have owed plaintiff?

This Court has previously held that summary judgment is usually inappropriate where the intent of the contracting parties is an important consideration. Fulton v. Clark, supra; Kober & Kyriss v. Billings Deaconess Hospital, supra. Because this and other questions heretofore mentioned remain at issue, we hold summary judgment was improperly granted in this case.

Because this case must be remanded, we feel some direction to the District Court on the remaining two issues is appropriate.

The first issue in essence is whether unmatured installments of a special improvement district assessment constitute an encumbrance upon the real property upon which they are assessed from the date the special improvement district assessment was levied, or from the date the...

To continue reading

Request your trial
12 cases
  • Weinberg v. Farmers State Bank of Worden
    • United States
    • Montana Supreme Court
    • April 4, 1988
    ... ... This was established in Engelbretson v. Putnam (1977), 174 Mont. 409, 416, 571 P.2d ... Page 735 ... 368, 372. Instead, Engelbretson directed that attorney fees be fixed in accordance with ... ...
  • Carter v. Montana Dept. of Transp.
    • United States
    • Montana Supreme Court
    • November 13, 1995
    ...use summary judgment to encourage judicial economy through the elimination of unnecessary trial, delay and expense. Engebretson v. Putnam (1977), 174 Mont. 409, 571 P.2d 368. The District Court granted summary judgment in favor of the defendant for lack of the requisite standing to bring su......
  • State, By and Through State Highway Commission v. Marsh, 13599
    • United States
    • Montana Supreme Court
    • January 20, 1978
    ...the reasonableness of an attorney fee. Olson v. Carter (1977), Mont., 572 P.2d 1238, 34 St.Rep. 1539, 1543; Engebretson v. Putnam (1977), Mont., 571 P.2d 368, 34 St.Rep. 1241, 1247. An award of attorney fees must be based on a hearing allowing for oral testimony, the introduction of exhibit......
  • Waxman Industries, Inc. v. Trustco Development Co., 1-383A76
    • United States
    • Indiana Appellate Court
    • October 25, 1983
    ...even been consulted concerning the arrangement. Such a result finds support in at least two other jurisdictions. In Engebretson v. Putnam, (1977) 174 Mont. 409, 571 P.2d 368, and Olson v. Carter, (1977), 175 Mont. 105, 572 P.2d 1238, both winning parties had entered into contingent fee arra......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT