Fulton v. Clark

Decision Date06 August 1975
Docket NumberNo. 12989,12989
Citation538 P.2d 1371,167 Mont. 399,32 St.Rep. 808
PartiesJohn E. FULTON et al., Plaintiffs and Respondents, v. Spence CLARK and James A. Collier, Defendants and Appellants.
CourtMontana Supreme Court

Tipp & Hoven, Missoula, Vernon Hoven, appeared, Missoula, Frederick S. Prince, Jr., argued, Salt Lake City, Utah, for defendants and appellants.

Garlington, Lohn & Robinson, Missoula, Lawrence F. Daly, argued, and Sherman V. Lohn, appeared, Missoula, for plaintiffs and respondents.

HASWELL, Justice.

Defendant General Partners appeal from a summary judgment granted plaintiff Limited Partners in an action for declaratory judgment. The district court of Missoula County held that the General Partners are not entitled as a matter of law to a $60,000 fee for services rendered in renovating and improving the Holiday Village Shopping Center. The district court granted a personal judgment in favor of the Limited Partners against one of the General Partners, Spence Clark.

Plaintiffs John F. Fulton, Harold C. Schwartz and Deloit R. Wolfe entered into a limited partnership agreement on April 1, 1968, with General Partners Spence Clark and James A. Collier, doing business as Financial Management Service, covering operation of the Holiday Village Shopping Center in Missoula, Montana. The briefs indicate that Spence Clark has since succeeded to the interest of James A. Collier.

Under the terms of the limited partnership agreement, the General Partners were responsible for the management of the shopping center; the Limited Partners had no right to participate in the management of the business.

The General Partners received a 5% capital interest as consideration for the assumption of the responsibilities of managing and operating the partnership properties and the liability assumed. All losses in excess of the capital accounts of the limited partnership were the sole liability of the General Partners. In addition, Paragraph 11(a) of the limited partnership agreement provides:

'* * * The General Partners shall receive a reasonable management fee for services actually rendered by them * * *.'

During the life of the partnership Clark paid himself an annual management fee equaling 5% of the gross proceeds of the partnership properties. These payments are not in dispute.

In 1971, Clark determined the gross and net rentals of the business could be substantially increased by building a new store in the shopping center for Albertson's grocery and leasing the old Albertson's space to Skagg's Drug Center. From 1971 through 1973, Clark worked at putting this plan into effect. He negotiated new leases with Albertson's and Skagg's; supervised and coordinated the design and construction of the new facilities; refinanced the existing first mortgage; and, obtained financing for the new construction project. Clark's efforts resulted in increasing the gross rentals from $1,685,000 to $2,700,000.

As compensation for these services performed from 1971 through 1973, Clark paid himself a management fee of $60,000. This fee was in addition to the fee of 5% of the partnership's gross proceeds which he charged annually for normal management duties.

Plaintiffs objected to the $60,000 fee and filed a complaint for declaratory judgment asking the district court to construe the terms of the limited partnership agreement and to order Clark to return the $60,000. Plaintiffs claimed the defendant's course of conduct since 1968 of charging only a 5% management fee limited the fee that could be charged to 5% of the gross rentals.

Defendant answered by claiming that all fees received were reasonable for services actually rendered and that there was no agreement oral or written, express or implied, limiting the management fees to 5% of the gross rentals.

On December 30, 1974, the district court granted plaintiffs summary judgment, finding that Clark was not entitled to a fee for services rendered relating to long term renovation and improvement of the Holiday Village Shopping Center. The judgment is a personal judgment in favor of plaintiffs against Clark.

The controlling issue on appeal is whether or not summary judgment for plaintiffs was error. We hold it was, vacate the judgment, and remand to the district court for trial.

Rule 56(c), M.R.Civ.P., states that summary judgment shall be rendered only if:

'* * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

The question to be decided on a motion for summary judgment is whether there is a genuine issue of material fact and not how that issue should be determined; the hearing on the motion is not a trial. Matteucci's Super Save v. Hustad Corp., 158 Mont. 311, 491 P.2d 705.

The party moving for summary judgment has the burden of establishing the absence of any issue of material fact. Beierle v. Taylor,164 Mont. 436, 524 P.2d 783.

In Kober & Kyriss v. Stewart, 148 Mont. 117, 121, 417 P.2d 476, this Court cited 6 Moore's Federal Practice, Para. 56.15(3):

"The courts hold the movant to a strict standard. To satisfy his burden the...

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18 cases
  • Anaconda Co. v. General Acc. Fire & Life Assur. Corp., Ltd.
    • United States
    • Montana Supreme Court
    • September 29, 1980
    ...genuine issue of material fact and not how that issue should be determined; the hearing on the motion is not a trial. Fulton v. Clark (1975), 167 Mont. 399, 538 P.2d 1371; Matteucci's Super Save Drug v. Hustad Corporation (1971), 158 Mont. 311, 491 P.2d The party moving for summary judgment......
  • Reagan v. Union Oil Co. of California
    • United States
    • Montana Supreme Court
    • January 23, 1984
    ...summary judgment is usually inappropriate where the intent of the contracting party is an important consideration. Fulton v. Clark (1975), 167 Mont. 399, 538 P.2d 1371; Kober, The language of the division orders, which is part of the District Court record, raise a doubt as to the propriety ......
  • Meuse-Rhine-Ijssel Cattle Breeders of Canada Ltd. v. Y-Tex Corp., MEUSE-RHINE-IJSSEL
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    • Wyoming Supreme Court
    • February 8, 1979
    ...of a written instrument, there arises an issue of fact to be litigated and summary judgment is inappropriate. Fulton v. Clark, 1975, 167 Mont. 399, 538 P.2d 1371, 1374; Robert v. E. C. Milstead Ranching, Inc., Tex.Civ.App.1971, 469 S.W.2d 429, 431; Westchester Fire Ins. Co. v. In-Sink-Erato......
  • Engebretson v. Putnam
    • United States
    • Montana Supreme Court
    • November 4, 1977
    ...(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 During oral argument on app......
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