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: 

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# -41977 ',?

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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 inMissoula County, Montana. On October 29, 1970, she listed thisproperty for salewith Trail Realty owned by defendants Bryce C. and Bette J. Putnam. Defendants prepared a listing agreement for the property using a standard form listingcontract which plaintiff signed. Defendants later decided topurchase plaintiff's property for themselves. On January 18, 1971, defendant Bryce C, Putnam executed a promissory note inpart payment, payable toGeraldine T. Engebretson for $3,000 at8 percent interest due in one year. Plaintiff signed a warranty deed whereby she did "grant, bargain, selland convey" her property to the Putnams. By the

same deed Engebretson convenanted that she would: 

# "*** forever

### WARRANT and DEFEND allright, title and interest in and to the said premises and the quiet and peaceable possession thereof unto the [Putnams]

# **

# * against allacts and deeds of [Engebretson] and alland 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 firstmortgage in favor of theMissoula FirstFederal Building & Loan Association, which mortgage the Putnams agreed to assume and pay according to its terms. Atthe time Engebretson soldher property to the Putnams, itwas subject to the liens of Special Improvement DistrictNo. 296 for engineering fees and Special Improvement District No. 304for sewer. Prior to the execution of thewarranty deed, plaintiff had paid allmatured special improvement district installsreats, however $1,244 inunmatured installments remained tobe paid. The listingagreement 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 laterpaid the $1,244 to release the special improvement district liens from the property. Ascompensation 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. InMay 1972, they offered topay Engebretson an amount less than the $3,000 plus interest then due. She refused toaccept the lesser amount. 

### On June 2, 1972, Engebretson fileda complaint against Bryce Putnam alleging Putnam executed the promissory note; thathe failed topay thenote upon maturity; and that the note provided for a reasonable attorney fee in case of suit to recover it. She prayed forjudgment 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 alsomoved tojoin hiswife 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 estatebroker; that shehad listedher realproperty with him for sale; that atthe time plaintiff listedher real property with the defendants and atthe 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 thebasis of the pleadings, the exhibits thereto, and the memoranda of law submitted by the parties, the District Court granted summaryjudgment 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 ingranting 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 summaryjudgment procedure 

### is to encourage judicial economy through the elimination of unnecessary trial, Mont

# . delay and expense. Bonawitz v. Bourke, 

## ,567 P.2d 32, 33, 34 St.Rep. 638, 640 (1977); Guthrie v. Dept. of Social & Mont

# . Rehabilitative Services, 

## ,563 P.2d 555, St.Rep. 255, 257 (1977). Summaryjudgment 

### isnot a substitute for trial, however, and is inappropriate when genuine issues of material fact remain tobe 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 summaryjudgment or require a trialrests in the sound discretionof the court even though the movant may have made out a case for summary judgment. 6Pt. 2Moore'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 summaryjudgment, the court should deny it. Fulton v. Clark, 167Mont. 399, 403, 538 P.2d 1371, 1373 (1975); Kober & Kyriss v. Billings Deaconess Hospital, 148Mont. 

### 117, 122, 123, 417 P.2d 476, 479 (1966). During oral argument on appeal, certain factswere brought to light making it apparent that genuine issues of material fact remained tobe litigated. Summarizing from the pleadings and oral argument, plaintiff's allegations are: (a) that plaintiff listedher property with the defendant realtors for sale, thus creating a principal/agent relationshipbetween plaintiff and defendants atthe time of the listing; (b) that defendants prepared both the listingagreement and, after they decided to purchase the property themselves, the warranty deed; and (c) that a t a l ltimes defendants knew of the unmatured special improvement district installments, yet no mention was made of them in thewarranty deed. The pretrial proceedings leftundecided such issues as: 1. Did the principaI/agent relationship between plaintiff and defendants stillexist atthe 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 summaryjudgment is usually inappropriatewhere the intent of the contracting parties

### is an important consideration. Fultonv. Clark, supra; Kober & 

### Kyriss v. Billings Deaconess Hospital, supra. Because this and other questions heretofore mentioned remain at issue,we hold summary judgmentwas improperly granted in this case. Because this casemust be remanded,we feel some direction to the District Court on 

### the remaining two issues is appropriate. The first issue in essence iswhether 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 assessmentwas 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 uponwhich 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 onlyway in which the lien createdby the assessment canbe extinguished is by payment of the assessment including allpenalties, costs and interest. Section 11-2229, 

### R.C.M. 1947. Clarkv. Demers, 78Mont. 287, 254 

### P. 162 (1927) and State

ex rel. Malott v. Board of Commissioners,89Mont. 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 uponmaturity of the installments. Clark 

### and Malott are distinguishable from the instant case in that they dealtwith irrigation district assessments rather than special improvement district assessments. Both kinds of assess-ments are statutorilycontrolled; 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 firstpass a resolution of intent and give public notice .thereof. After the protest time has elapsed, the councilmust 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 shallassess the cost of- the improvements against the property owners who

are subject tothe assessment. Section 11-2214, R.C.M. 1947. By a separate resolution, the council levies and assesses a tax upon alltaxable 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 tobe made, and the datewhen it becomes delinquent. The assessment may be paid inequal annual installments spread

over a termnot exceeding twenty years. Section 11-2222, R.C.M. 1947.The statuteunder which irrigationdistrict assessments in Clarkwere 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 lienupon the land and the lienwould attach "as of the firstMonday of March of that year". Laws of Montana 1921, Ch. 153, 522 (repealed 1929).The statutory schemes for special improvement districts and for irrigation districtsthus differed intwo important ways: (1) the entirecost of the special improvement district 

### ismade inone determination and assessed accoedingly, whereas the irrigation districtassessment 

### is determined yearly and the amount of the yearly assessment fluctuates according tothe 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 allliens upon realproperty, Therefore, a liencreated by a. special improvement district assessment 

### isan encumbrance upon the property which dates from the passage of the resolution creating the assessment. The remaining issue involveswhat evidence is sufficient to support an award of attorney fees. The promissory note upon which plaintiff sued provided forrecovery of a reasonable attorney fee incase suitwas brought to recover on the note, The only eddenceplaintiff presented toestablisha reasonable attorney feewas a copy of her retainer agreement with her attorney. Thiswas a contingent fee agreement authorizing her attorney to retain one-third of any monies received ascompensation forhis services. On the basis of this agreement alone, the court awarded plaintiff $1,450 asa reasonable attorney fee. We disapprove of an award of attorney feesbased on this type of documentation. We have previously approved guidelines for such an award. Crncevich v. Georgetown Recreation Corp., 168Mont. 113, 541P.2d 56 (1975). Thosezguidelines,which

### enumerated the items to be considered inmaking an award, include: 

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# * * * the amount and character of the services rendered, the labor, time,and trouble involved, the character and importance of the litigation in which the serviceswere rendered, the amount of money or the value of property to be affected, the professional skilland experience called for, the character and standing in the profession of the attorneys.

# ** *The result securedby the services of the attorneysmay be consideredas an important element in determining theirvalue

# ." 168Mont

# . 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 inaccordancewith the guidelines enumerated in Crncevich. The cause is reversed and remandedwith instructions to proceed in accordancewith this Opinion.

Justice