No. 13679 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

GERALDINE T. ENGEBRETSON, 

Plaintiff and Respondent, 

BRYCE C. PUTNAM and BETTE J. PUTNAM, 

Defendants, Counter-claimants and 

Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant: 

Boone, Karlberg and Haddon, Missoula, Montana 

Sam E. Haddon argued, Missoula, Montana 

For Respondent : 

Skelton and Knight, Missoula, Montana 

Robert Skelton argued, Missoula, Montana 

Submitted: September 29, 1977 

Decided: WGV - 4 1977 

' ,? -- U 

Filed: IVC, -, , 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

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 convenanted 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 installsreats, 

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 counterclaimant 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 

unnsatured special improvement district installments previonaiy 

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. Def endant s 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, Mon t . , 563 P.2d 555, 

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 156.15[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 a t a l l 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 principaI/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 individual installments of the assessment 

mature. 

By statute, a special improvement district assessment "shall 

constitute a lien upon and against the property upon which such 

assessment is made and levied" and the assessment attaches as a 

lien to the property assessed "from and after the date of the 

passage of the resolution levying such assessment * * *." Section 

11-2229, R.C.M. 1947. The only way in which the lien created by 

the assessment can be extinguished is by payment of the assessment 

including all penalties, costs and interest. Section 11-2229, 

R.C.M. 1947. 

Clark v. Demers, 78 Mont. 287, 254 P. 162 (1927) and State 

ex rel. Malott v. Board of Commissioners, 89 Mont. 37, 296 P. 1 

(1931), relied on by plaintiff, do not stand for the proposition 

that special improvement district assessment installments become 

liens upon the property assessed only upon maturity of the installments. Clark and Malott are distinguishable from the instant case 

in that they dealt with irrigation district assessments rather 

than special improvement district assessments. Both kinds of assess- 
ments are statutorily controlled; thus, one must look to the 

statutes creating them to determine the time the lien of assessment attaches. 

The statutory provisions regarding special improvement districts are set out in sections 11-2201 through 11-2288, R.C.M. 

1947. To create a special improvement district, the city council 

must first pass a resolution of intent and give public notice 

.thereof. After the protest time has elapsed, the council must 

pass a resolution actually creating the special improvement 

district. Section 11-2207, R.C.M. 1947. 

The council then determines the entire cost of the proposed 

improvements and establishes a method by thich it shall assess 

the cost of- the improvements against the property owners who 

are subject to the assessment. Section 11-2214, R.C.M. 1947. 

By a separate resolution, the council levies and assesses a 

tax upon all taxable property in the special improvement district. This resolution contains a description of each lot and 

parcel of land with the name of the owner if known, the amount 

of each payment to be made, and the date when it becomes delinquent. 

The assessment may be paid in equal annual installments spread 

over a term not exceeding twenty years. Section 11-2222, R.C.M. 

1947. 

The statute under which irrigation district assessments in 

Clark were made, provided that the board of directors of each 

irrigation district should make a yearly determination of the 

total amount of money needed for that year for the administrative 

expenses of the district. The board would then levy a proportionate 

amount of the yearly cost against each landowner in the district. 

The tax thus determined would become a lien upon the land and 

the lien would attach "as of the first Monday of March of that 

year". Laws of Montana 1921, Ch. 153, 522 (repealed 1929). 
The statutory schemes for special improvement districts 

and for irrigation districts thus differed in two important 

ways: (1) the entire cost of the special improvement district 

is made in one determination and assessed accoedingly, whereas 

the irrigation district assessment is determined yearly and the 

amount of the yearly assessment fluctuates according to the 

needs of the district; and (2) the specific statutory times at 

which the ass-nts attach to the property as liens, i.e., the 

assessment 

date of the resolution levying the special improvement district/ 

versus "the first ~&da~ of March of [each] year." 

Section 67-1617, R.C.M. 1947, provides that the term 

"encumbrances" includes taxes, assessments, and all liens upon 

real property, Therefore, a lien created by a. special improvement district assessment is an encumbrance upon the property 

which dates from the passage of the resolution creating the 

assessment. 

The remaining issue involves what evidence is sufficient 

to support an award of attorney fees. The promissory note upon 

which plaintiff sued provided for recovery of a reasonable 

attorney fee in case suit was brought to recover on the note, 

The only eddence plaintiff presented to establish a reasonable 

attorney fee was a copy of her retainer agreement with her 

attorney. This was a contingent fee agreement authorizing her 

attorney to retain one-third of any monies received as compensation for his services. On the basis of this agreement alone, 

the court awarded plaintiff $1,450 as a reasonable attorney fee. 

We disapprove of an award of attorney fees based on this 

type of documentation. We have previously approved guidelines 

for such an award. Crncevich v. Georgetown Recreation Corp., 

168 Mont. 113, 541 P.2d 56 (1975). Those zguidelines, which 
enumerated the items to be considered in making an award, include: 

" * * * 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 property to be affected, the 

professional skill and experience called for, the 

character and standing in the profession of the 

attorneys. * * * The result secured by the services 

of the attorneys may be considered as an important 

element in determining their value ." 168 Mont . 119,120. 

The retainer agreement between plaintiff and her attorney 

does not conform to the above requirements. The result of the 

negotiations between an attorney and his client as to their 

fee agreement is not controlling in fixing a reasonable attorney 

fee to assess against the opposing party. Such an award must 

be determined in accordance with the guidelines enumerated in 

Crncevich. 

The cause is reversed and remanded with instructions to 

proceed in accordance with this Opinion. 

Justice