No. 84-539 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

A. KENDRICK SMITH; MAX A. HANSEN, 

and W. G. GILBERT, JR., 

Plaintiffs and Respondents, 

CLINTON L. HOWERY and 

JACQUELINE J. HOWERY, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Robert T. Cumrnins, Helena, Montana 

For Respondents : 

Schulz, Davis & Warren, Dillon, Montana 

Garlington, Lohn & Robinson, Missoula, Montana 

Submitted on Briefs: May 9, 1985 

Decided: July 2, 1985 

Filed: _i[jt 2 4585 

d 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Clinton and Jacqueline Howery (Howerys) appeal the May 

14, 1984, order of the Fifth Judicial District Court granting 

respondent attorneys, Kendrick Smith, Max Hansen and W.G. 

Gilbert, Jr.'s motion for summary judgment. We affirm the 

order granting summary judgment. 

In February of 1979, the State of Montana filed an 

action in Beaverhead County seeking to condemn .76 of an acre 

of Howerys' land for highway purposes. The State and Howerys 

were unable to agree on compensation. The Howerys therefore 

hired the respondents to represent them in the condemnation 

action. 

The written retainer agreement executed by Howerys on 

March 21, 1979, contains the following provisions regarding 

costs and attorneys fees: 

"1. You are to pay us all of our reasonable expenses which we will try to keep to a minimum, and 

these will be payable to us, no matter what the 

outcome of the case. . . . 

"2. The fees for our services will be on a contingent fee basis, and you have agreed to pay us 

33-1/3% of the recovery by judgment or compromise 

(and you would have to fully agree to any compromise before it would be effective). In the event 

there is an appeal in the case by either side, the 

fee would be raised to 40% of the amount of recovery. There will be only one fee as between the two 

law firms." 

The Howerys recovered $315,284.03 from the State: 

$243,475.00 for total damages; $42,958.33 for interest on 

those damages from the date of taking; and $28,850.70 for 

costs and attorneys' fees. The State paid the entire judgment prior to appealing to this Court. We affirmed that 

judgment in State of Montana v. Howery (Mont. 1983), 664 P.2d 

1387, 40 St.Rep. 975. Howerys were further awarded 

$8,427.19, $8,220.00 of which was attorneys' fees, for the 

State's appeal. 
While the appeal was pending in this Court, $303,109.03 

of the $315,284.03 was placed in three certificates of deposit jointly held in the names of attorney Max Hansen and the 

Howerys. The remaining $12,175.00 was paid directly to 

respondent attorneys for their costs and witness fees. The 

certificates of deposit earned post-judgment interest totalling $40,458.38. 

Following the State's unsuccessful appeal, the Howerys 

and respondents began negotiations to settle the attorneys' 

fees due and owing to the respondents. The parties were 

unable to reach agreement and respondents filed a complaint 

July 26, 1983, seeking $143,329.68 for work performed and 

services rendered. An amended complaint seeking the same 

amount was filed the next day. 

Permission to file a second amended complaint was granted respondents on October 24, 1983. That complaint reduced 

the demand for attorneys' fees to $130,717.60 and added a 

second count, alleging a breach by Howerys of an implied 

covenant of fair dealing with the attorneys and requesting 

exemplary damages of $50,000.00. 

On November 18, 1983, Howerys filed an answer, counterclaim and demand for jury trial. Howerys summarily denied 

all the allegations contained in each count of respondents' 

complaint. Their counterclaim alleged, among other things, a 

breach of the attorneys' obligation to deal fairly with them 

and violation of the fiduciary relationship between Howerys 

and the attorneys. 

On January 16, 1984, respondents filed a motion for 

summary judgment on Count I of the second amended complaint. 

The motion was accompanied by an affidavit of attorney Max 

Hansen setting forth pertinent details and requesting 

$129,866.34 for work performed and services rendered pursuant 
to respondents1 contract with Howerys. Clinton Howery filed 

an affidavit in opposition to the motion for summary judgment 

on February 6, 1984. 

A hearing was held May 4, 1984, and an order granting 

respondents ' motion for summary judgment was issued May 1 6, 

1.984. The trial judge awarded respondents $129,866.34, 

stating that no affirmative defense to Count I had been pled, 

and, that: 

"Count I is based upon a written agreement between 

the parties, a Judgment rendered by the District 

Court of the Fifth Judicial District of the State 

of Montana and an affirmance by the Montana Supreme 

Court, all of which are clear, certain and unambiguous. No extrinsic or par01 evidence is needed or 

admissible to explain any of the clear terms and 

provisions of the written agreement. There are no 

genuine issues as to any material facts, and it is 

the duty of this Court to apply the language of the 

agreement as written. The amount due and owing 

from defendants to plaintiffs is fixed and is not 

ambiguous in any way. . . ." 

Count I1 of respondent's complaint and Howerys' counterclaim 

are still pending. 

Following a Rule 54 (b) , M.R.Civ.P., certification, 

Howerys filed this appeal, raising the following issue: 

"Whether the District Court erred in granting the 

plaintiffs' motion for summary iudgment on Count I 

of the second amended complaint and determining 

under Rule 56 (c) , M.R.Civ.P., that the plaintiffs 

showed that there was no genuine issue as to any 

material fact and that they were entitled to judgment as a matter of law?" 

A motion for summary judgment should be granted "if the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, 

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. l1 Rule 56 (c) , M.R.Civ.P. We have frequently 

stated the rule: 

"It is well established that a party moving for 

summary judgment has the burden of showing a complete absence of any genuine issue as to all facts 

deemed material in light of the substantive principles that entitle that party to a judgment as a 
matter of law. (citations omitted). . . I' Cereck 

v, Albertson's Inc. (1981), 195 Mont. 409, 411, 637 

P.2d 509, 511. 

We agree with the determination of the trial court that 

respondents have met this burden. 

The contract between the parties is clear and unambiguous. It mandates that respondents shall receive 40% of any 

recovery on appeal. When an attorney enters into a contingent fee arrangement based on a percentage of the judgment or 

award recovered by the client and the total amount recovered 

includes interest, the attorney is entitled not only to a 

percentage of the actual damages recovered, but also to a 

percentage of the pre-judgment and post-judgment interest 

recovered. See In re Edgecornbe Road (N.Y.App.Div. 1908), 128 

App.Div. 432, 112 N.Y.S. 845, regarding pre-judgment interest 

and Matter of Innkeepers of New Castle, Inc. ( 7 t h C i r . 1982), 

671 F.2d 221, regarding post-judgment interest. 

Respondent Max Hansen's affidavit requesting $129,866.34 

is consistent with the contract between respondents and 

Howerys and with the law. The $129,866.34 represents 40% of 

the actual damages ($243,475 x .40 = $97,390) and 40% of the 

pre-judgment interest ($42,958.33 x .40 = $17,183.33) or 

$114,573.33, together with 37.79937% of the post-judgment 

interest ($40,458.38 x .3779937 = $15,293.01) . Respondents 

were properly awarded 37.79937% of the post-judgment interest 

because only 37.79937% of the money deposited in the certificates of deposit was theirs ($114,573.33/$303,109.03 = 

37.79937%). 

The amounts previously requested by respondents resulted 

from improper calculations and not from an ambiguous contract, as Howerys contend. The initial request was for 40% 

of the entire award, costs and interest. That request failed 

to consider that respondents had already been directly paid 
their actual costs, pursuant to the contract. The amount 

requested in the second amended complaint failed to consider 

that only 37.79973% of the money in the certificates of 

deposit belonged to respondents. The contract is clear. The 

respondents are entitled to $129,866.34. 

Next, the Howerys allege that their counterclaim should 

also be treated as an affirmative defense to the allegations 

in Count I of respondents' complaint and that the counterclaim, when treated as an affirmative defense, raises issues 

of material fact, thus foreclosing a summary judgment determination. We agree that under our liberal pleading rules, 

the counterclaim can be treated as an affirmative defense. 

Rule 8(c), M.R.Civ.P. However, the counterclaim/affirmative 

defense does not foreclose a summary judgment determination 

on Count I. 

The primary allegations contained within the counterclaim involve the breach of the fiduciary relationship between the attorneys and their clients and the breach of the 

obligation of good faith and fair dealing owed by the attorneys to their clients. These allegations are separate and 

distinct from the present issue, whether the attorneys' fees 

contract is clear and unambiguous. 

Finally, we will not consider Howerys' contention that 

the contract does not reflect the terms mutually agreed upon 

by the parties as that allegation depends entirely on evidence extrinsic to the contract. 

" 'The principle is well-established and of general 

application, subject to certain exceptions, that 

when a contract -- has been reduced to writing the 

contentsofh -- writing cannot be added to, contradicted, altered, or varied byyrol or extrinsic 

evidence, and that such writing supersedes all oral 

negotiations concerning its matter which preceded, 

accompanied, or led up to its execution. This was 

the <ule at common law, and has been embodied in 

the statute law of this state.' (Emphasis in 

original.) 
"Section 28-2-905, MCA, provides that when the 

terms of an agreement have been reduced to writing 

by the parties, it is to be considered as containing all the terms, and there can be no evidence of 

the terms of the agreement other than the contents 

of the writing except when a mistake or an imperfection of the writing, is at issue, or when the 

validity of the agreement is the fact in dispute." 

Perez-Lizano v. Ayers (Mont. 1985), 695 P.2d 467, 

470, 42 St.Rep. 208, 212-213, citing West River 

Equipment Co. v. Holzworth Construction Co. (1959) , 134 Mont. 582, 588, 335 P.2d 298, 302. 

The decision of the trial court judge is affirmed. 

hief Justice