Johnson v. Tindall, 81-54

• Citation: 195 Mont. 165,635 P.2d 266,38 St.Rep. 1763
• Decision Date: 29 October 1981
• Docket Number: No. 81-54,81-54
• Parties: Robert L. JOHNSON, Plaintiff and Respondent, v. Francis TINDALL, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 266

635 P.2d 266

195 Mont. 165

Robert L. JOHNSON, Plaintiff and Respondent, v. Francis TINDALL, Defendant and Appellant.

No. 81-54.

Supreme Court of Montana.

Submitted on Briefs July 16, 1981.

Decided Oct. 29, 1981.

Parrish, Knopp & O'Hare, Lewistown, for defendant and appellant.

Leonard McKinney, Lewistown, for plaintiff and respondent.

SHEEHY, Justice.

Attorney Robert L. Johnson brought this action in the District Court, Tenth Judicial District, Fergus County, to recover attorneys fees and costs charged to Francis Tindall for legal services. The complaint containing two separate claims was filed on December 21, 1979. On January 14, 1980, default judgment was entered against defendant Tindall. Later that day, Tindall filed a motion to dismiss, an answer, and a motion to set aside the default.

After considering the brief, affidavits and memoranda of the parties, the District Court granted defendant's motion to set aside the default, stating a denial "could be interpreted as the judicial and legal profession acting in concert against lay people."

Johnson's claims were tried to the court without a jury. Judgment in the total of $15,293.77 was entered for the plaintiff on October 30, 1980. Defendant filed a notice of appeal from that judgment on November 18, 1980 and supersedeas bond was posted by Tindall on November 21, 1980.

There are two issues for this Court:

(1) Did the trial court err by awarding Johnson attorneys fees of $10,000 and costs of $1,868 on two related cases in Missoula and Sanders Counties?

(2) Did the trial court err by awarding pre-judgment interest to Johnson on his fees and costs in those cases?

Tindall, a contractor, used Johnson's services in numerous legal matters for 15 years. Early in the lawyer-client relationship, Johnson billed Tindall for his services at the completion of each matter.

In 1977, Tindall became heavily involved in litigation which required a substantial portion of Johnson's professional time. Johnson advised Tindall by letter on September 23, 1977, that the litigation was extensive enough that he would have to bill Tindall each month for work done during the month. In the spring of 1978, he requested a $5,000 retainer for his services in connection with Tindall's litigation against Richard H. Williams and Atlas Concrete and Paving, Inc., in Missoula and Sanders Counties.

This litigation is the basis of Johnson's first claim. It arose after Clark Fork Paving, a corporation controlled by Tindall, sold approximately $250,000 worth of heavy equipment to Williams and his corporation, Atlas Concrete. Clark Fork had purchased some of the equipment from Inland Terminal Warehouse Company, a subdivision of J. R. Simplot, and approximately $45,000 was still owed on it. Tindall did not seek any legal advice on the deal, and no written agreements were made. Clark Fork turned over the equipment to Atlas along with an assignment of its rights in the Simplot contract.

When he was not paid by Atlas, Tindall employed Johnson who brought action in Sanders County, for Clark Fork against Atlas and Williams, alleging fraudulent conversion and cancellation of the assignment of Simplot's contract rights from Clark Fork to Atlas.

After Simplot sent notice of default against Atlas to Clark Fork, Johnson advised Tindall to buy Simplot's contract rights for $31,682.23. He then proceeded against Atlas and Williams in Missoula County for repossession of the equipment. The purpose of the purchase from Simplot was to cut off Atlas' right of redemption.

Johnson's second claim arose out of a collection suit brought against Tindall in Fergus County by Audit Services Company. That litigation was handled by Johnson's associate, Torger S. Oaas, who billed Tindall $4,071.14 for costs and services on the case which had been tried, but not finally determined.

On or about May 25, 1978, Tindall entered Johnson's office and gave him a check for $2,500, saying "maybe this will keep you in beans for awhile." Johnson expressed his dissatisfaction with this payment amount and applied it on account for the Audit Services case, leaving a balance there of.$1,571.14.

On May 31, 1978, Johnson prepared an itemized statement of services and expenses in the Atlas cases for the sum of $13,949.28 and sent it to Tindall. No payment had been made when, in July 1978, Johnson demanded payment and Tindall refused to pay, objecting to the size of the bill and the lack of results. The parties then agreed that Johnson's services would terminate as of August 1, 1978.

During the period of negotiations in the Atlas case, Johnson did receive an offer of settlement from Atlas, dated February 16, 1978, for $80,000, in addition to release of the nearly $32,000 that Tindall had deposited with the District Court in Missoula. That offer was not accepted by Tindall.

On Johnson's first claim, regarding legal services in the Atlas cases, the trial court awarded $10,000 in attorneys fees, reducing the $12,240 Johnson had billed Tindall. It also awarded costs of $1,868 and interest on the claim at the rate of 6 percent per annum from August 1, 1978.

On the second claim, the Audit Services case, the trial court awarded fees and costs of $1,588.74, plus interest thereon from May 1, 1978.

We affirm the findings and conclusions of the District Court and the judgment against Tindall entered thereon.

There is no dispute that Johnson spent the hours claimed on the Atlas cases. The District Court reduced the fee, which had been computed at $50 per hour partly because Tindall would need to obtain the services of other attorneys to complete the cases, and also in consideration of factors we first set out in Forrester v. Boston & M. Consol. Copper & Silver Min. Co. (1904), 29 Mont. 397, 409, 74 P. 1088, 1093:

"The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of the property to be affected, the professional skill and experience called for, the character and standing in their profession of the attorneys.... The result secured by the services of the attorneys may be considered as an important element in determining their value."...