No. 87-359 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

VERNON WESTLAKE, Personal Representative 

of the Estate of HARRY D.R. LARSON, Deceased, 

Plaintiff and Appellant, 

-vsCHARLES R. OSBORNE and LOIS MARIE OSBORNE, 

Husband and Wife, and DENNIS HARDIN, 

Defendants, Respondents and 

Cross-Appellants. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

McKinley Anderson, Bozeman, Montana 

H. A. Bolinger, Jr., Bozeman, Montana 

For Respondent: 

Greg Morgan, Bozeman, Montana 

- -- - - -- 

Submitted on Briefs: Nov. 19, 1987 

Decided: February 16, 1988 

Filed : FEB 1 6 1988 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Vernon Westlake appeals an Eighteenth Judicial District 

Court judgment awarding damages and attorneys' fees to the 

Osbornes. The facts surrounding Westlake's initial complaint 

are more fully set forth in Westlake v. Osborne (Mont. 1986), 

713 P.2d 548, 43 St.Rep. 200. In the first appeal of this 

case, this Court affirmed the District Court's grant of 

partial summary judgment to the Osbornes on Westlake's 

complaint. 

This appeal concerns the District Court's judgment on 

the Osbornes' remaining counterclaims. The District Court 

found Westlake individually liable pursuant to 5 72-3-612, 

MCA, and as personal representative of the estate, for 

unlawfully withholding possession of real property and 

awarded $8,265 in lost rental income to the Osbornes. The 

District Court also awarded $4,058.78 in costs and attorneys' 

fees pursuant to a clause contained in the original contract 

for sale. Westlake appeals the District Court judgment and 

the Osbornes cross-appeal. We affirm. 

The facts pertinent to this appeal are undisputed. 

Before his death, Harry Larson sold his house to the 

Osbornes. The Osbornes paid some money down with the balance 

to be paid in monthly installments over a thirty-six month 

period. The Osbornes in turn leased the premises back to 

Larson. Larson's lease payments satisfied the Osbornes' 

monthly installment payments. The balance of the purchase 

price was to be deemed satisfied in the event Larson died 

before the end of the thirty-six month period. Larson died 

eight months after the transaction was closed. Westlake, as 

personal representative of Larson's estate, immediately took 
possession of the property after Larson's death and denied 

access to the Osbornes. 

Westlake brought this action on behalf of the estate of 

Harry Larson to set aside the contract of sale, deed and 

lease-back based on allegations of fraud, misrepresentation, 

undue influence, and unconscionability. The Osbornes 

counterclaimed for attorneys' fees and for lost rent during 

the period they were denied possession of their property. 

The Osbornes' counterclaim alleged that Westlake was liable 

as an individual and as personal representative of the 

estate. Westlake completely distributed the estate's assets 

despite the existence of the counterclaims. 

In this appeal regarding the Osbornes' counterclaims, 

Westlake raises the following issues for our review: 

1. Did the District Court err in not dismissing the 

Osbornes' counterclaims on the basis that this Court's 

previous ruling in Westlake v. Osborne (Mont. 1986), 713 P.2d 

548, 43 St.Rep. 200, rendered such counterclaims res 

judicata? 

2. Did the District Court err in holding Westlake 

personally liable for his acts as the personal representative 

of the estate of Harry D. Larson? 

3. Did the District Court err in awarding attorneys' 

fees to the Osbornes? 

4. Is there substantial credible evidence to support 

the Osbornes' action for unlawful detainer? 

The Osbornes cross-appeal and raise two issues: 

5. Did the District Court err in refusing to treble 

damages? 

6. Did the District Court err in computing attorneys' 

fees? 

Westlake first contends that the Osbornes ' 

counterclaims were rendered res judicata by our holding in 
Westlake v. Osborne (Mont. 1986), 713 P.2d 548, 43 St.Rep. 

200. We note that it was Westlake who moved the District 

Court to certify the partial summary judgment as a final 

judgment so he could pursue the first appeal to this Court. 

Thereafter, the Osbornes filed a memorandum to request that 

the District Court certify the partial summary judgment 

pursuant to Rule 54(b), M.R.Civ.P., so Westlake could appeal. 

The District Court certified the partial summary judgment as 

final and specifically retained jurisdiction of the Osbornes' 

counterclaims pending the outcome of the first appeal. 

Westlake appealed and our review was limited to the question 

of whether the District Court erred in granting the motions 

for partial summary judgment. We affirmed the District Court 

and did not address the merits of the Osbornes' counterclaims 

at that time. 

Westlake now claims that because the first appeal was 

premature, the counterclaims were rendered res judicata by 

our decision in Westlake, supra. Westlake's argument is 

without merit. In Roy v. Neibauer (1980), 188 Mont. 81, 86, 

610 P.2d 1185, 1189, we stated that "Rule 54(b) [M.R.Civ.P.] 

requires that before a certification be made the trial court 

must find that there be 'no just reason for delay."' The 

District Court expressly and carefully considered our 

decision in Roy, the factors contained therein, found no just 

reason for delay, and concluded that Rule 54(b) certification 

was proper. Certification was not contested by either of the 

parties or by this Court. 

The District Court specifically retained jurisdiction 

of the counterclaims pending the first appeal. The partial 

summary judgment was properly certified for appeal and our 

decision in Westlake did not consider the merits of the 

Osbornes' counterclaims. The counterclaims were not, 
therefore, res judicata and the District Court did not err in 

denying Westlake's motion to dismiss. 

The second issue presented for our review concerns 

Westlake's individual liability for his actions as personal 

representative of the estate. Westlake first argues that he 

was not properly joined in this action in an individual 

capacity. The Osbornes counterclaimed against Westlake both 

individually and as personal representative. Westlake 

answered the counterclaim and alleged that he was not liable 

in his individual capacity. It was not until trial of the 

counterclaims that Westlake's counsel moved for dismissal of 

claims against him in an individual capacity. The Osbornes' 

attorney, though not conceding that it was necessary, also 

moved that Westlake be joined in his individual capacity, 

The District Court took both motions under advisement and 

eventually entered judgment against Westlake as an individual 

and as personal representative of the estate. 

Joinder of parties under Rule 21, M.R.Civ.P., is 

discretionary with the district court. State ex rel. 

Stenberg v. Nelson (1971), 157 Mont. 310, 486 P.2d 870. We 

will not reverse the District Court's decision to join 

Westlake in his individual capacity absent a clear showing of 

an abuse of discretion. Our review of the District Court's 

decision to join Westlake as an individual is governed by the 

liberal standards applicable to amendments under Rule 15, 

M.R.Civ,P. White v. Lobdell (Mont. 1984), 678 P.2d 637, 

641, 41 St.Rep. 346, 351. 

It is clear to this Court that Westlake was on notice 

from the counterclaim that the Osbornes sought to hold him 

individually liable. The action against Westlake as an 

individual arose from the same occurrences as did the action 

against the estate. The District Court did not abuse its 
discretion in allowing Westlake to be joined in his 

individual capacity during trial. 

Westlake also contests his individual liability by 

asserting that the requirments of § 72-3-612, MCA, have not 

been met. Section 72-3-612(2), MCA, provides as follows: 

A personal representative is individually 

liable for obligations arising from 

ownership or control of the estate for 

torts committed in the course of 

administration of the estate only if he 

is personally at fault. 

Westlake does not cite any authority to support his position 

but merely contends that he has done nothing which would 

warrant individual liability. 

Westlake apparently overlooks his actions in wrongfully 

withholding possession of the Osbornesl property for over 

twenty-nine months. That these actions constitute a tort for 

which Westlake is personally at fault cannot be seriously 

disputed. The Osbornes were entitled to possession of the 

property upon Harry Larson's death. We previously determined 

that the Osbornes did not improperly acquire the property 

through fraud, undue influence, or unconscionability. 

Westlake, supra. The record reveals substantial credible 

evidence to support the District Court's decision to hold 

Westlake individually liable. 

Westlake's third contention of error is that attorneys' 

fees are not recoverable in this suit. In his original 

complaint, Westlake alleged that he was entitled to 

attorneys1 fees pursuant to the following clause contained in 

the contract for sale, deed and lease-back: 

8. Enforcement. In the event either 

party shall bring legal proceedings to 

enforce any obligations hereunder or for 

the breach thereof, the prevailing party 

shall be entitled to recover attorneys' 
fees and costs paid or incurred therein 

in good faith. 

In the complaint, Westlake sought to have the deed declared 

null and void and to set the deed aside. The Osbornes 

counterclaimed for unlawful withholding of the property and 

for attorneys' fees and costs pursuant to the same contract 

clause. Westlake now claims that he brought an action in 

tort and that this is not a contract action for which 

attorneys' fees are recoverable. 

Westlake's argument regarding attorneys' fees is 

similar to the argument presented by the appellants in Winer 

v. Jonal Corporation (1376), 169 Mont. 247, 250, 545 P.2d 

1094, 1096. Plaintiffs in Winer brought an action to recover 

damages and to rescind a contract based on allegations of 

fraud and conspiracy. Plaintiffs also claimed attorneys' 

fees pursuant to a contract clause. The District Court ruled 

in favor of the defendants and awarded attorneys' fees 

pursuant to the contract clause. Plaintiffs appealed to this 

Court and alleged that they brought an action in tort based 

on allegations of fraud under which an award of attorneys' 

fees was not authorized. This Court found no merit to this 

argument and affirmed the award of attorneys' fees. Winer, 

545 P.2d at 1097. 

Westlake's complaint, the subject of the first appeal, 

alleges claims in contract to rescind the deed and in tort 

for damages. The basis for both actions is the Osbornes' 

alleged misrepresentations, fraud and undue influence. Such 

alleged behavior, although not present in the instant case, 

may give rise to an action either in tort or in contract. 

Farnsworth, in his treatise on contract law, explains the 

similarities and differences between the two actions as 

follows : 
In a system of contract law based on 

supposedly informed assent, it is in the 

interest of society as well as of the 

parties to discourage misleading conduct 

in the bargaining process. To this end 

both tort and contract law provide 

remedies for misrepresentation. The 

relevant rules of tort law trace their 

origins to the common law action of 

deceit. They allow the recipient of the 

misrepresentation to recover from its 

maker damages that, at their most 

generous, are based on the value that the 

bargain would have had to the recipient 

had it been as represented. Most of the 

relevant rules of contract law are 

derived from the action for recision that 

was originally brought in equity. They 

allow the recipient of the 

misrepresentation to undo the transaction 

by avoiding it, and they seek to restore 

the parties to the positions in which 

they found themselves before they made 

the agreement. In contrast to tort 

rules, they ask only what types of 

behavior are not tolerable as a basis of 

a bargain, not what types are actionable 

in damages. 

E. Farnsworth, Contracts, § 4.9 at 232-233 (1982). 

Westlake's allegations of fraud and misrepresentation sound 

both in tort and in contract. Having sought to rescind the 

contract for sale, deed, and lease-back, Westlake cannot now 

claim that this is not an action in contract. Attorneys' 

fees and costs were properly awarded pursuant to the contract 

clause regarding such expenses. Winer, 545 P.2d at 1096. 

Westlake's final issue pertains to the Osbornes' 

counterclaim for Westlake's unlawful withholding of the 

property for twenty-nine months. In his opening brief, 

Westlake characterizes the Osbornes' action as one for 

unlawful detainer under 5 70-27-108, MCA, and argues that he 

was not given notice as required by that statute and by 
70-27-104, MCA. However, the Osbornes' counterclaim 

characterizes the action as one for unlawful possession and 

recovery of rent. The District Court's findings of fact and 

conclusions of law similarly describe the relief granted 

under the counterclaim. 

Although counsel for both parties confused the matter 

by referring to unlawful detainer and forcible detainer 

interchangeably throughout the litigation, it is clear that 

the District Court disregarded these misnomers and awarded 

judgment to the Osbornes on a theory of wrongful occupation 

of real property. The measure of damages for an action for 

wrongful occupation includes "the value of the use of the 

property for the time of such occupation . . . " -- in this 

case, lost rent. Section 27-1-318, MCA. 

The Osbornes' answer and counterclaims were filed more 

than four years before this appeal was filed. It is entirely 

too late to argue the form of the counterclaim on this 

appeal. Issues raised for the first time on appeal will not 

be considered. Shaffer v. Champion Home Builders Co. (Mont. 

1987) P.2d -1 - , 44 St.Rep. 2196, 2199. 

The final two issues in this appeal are raised by the 

Osbornes. The Osbornes first contend that the District Court 

erred in refusing to award treble damages in this case. On 

the basis of that argument, the Osbornes go on to argue in 

their second issue that the award of attorneys' fees should 

be raised to reflect the trebling of damages. The Osbornes' 

argument on the first issue must fail because damages may not 

be trebled absent statutory authority. Section 27-1-318, 

MCA, only authorizes an award of lost rent in this case. 

There is no statutory authority for treble damages under the 

facts as presented. 

The Osbornes argue that S 70-27-205(2), MCA, authorizes 

an award of treble damages in an action for forcible 
detainer. As previously mentioned, the District Court did 

not award judgment to the Osbornes under the forcible 

detainer statute. Accordingly, we hold that $ 70-27-205(2), 

MCA, does not apply and the District Court did not err in 

refusing to treble damages. Because of the disposition of 

the Osbornes' first issue, we need not address the Osbornes' 

second issue regarding reconsideration of the attorneys' fees 

award. 

The Osbornes' counterclaims were not rendered res 

judicata by our decision in the first appeal of this case. 

Judgment on these counterclaims, including an award of 

attorneys' fees and costs, was properly rendered against 

Westlake as an individual and as personal representative of 

the estate of Harry D. Larson. In addition, damage cannot be 

trebled under the facts and law of this case. 

Affirmed. /' 

Justice ' i 

We concur: 

ief 'Justice 

Justices