IN THE SUPREME COURT OF THE STATE OF MONTANA 

ARNIE HOVE, 

plaintiff, Respondent 

and Cross-Appellant, 

CLINTON MULLTN, JR.; MULLIN TRUCKING, INC., 

a Montana Corporation; A & C SOARING EAGLE tr,C. z: (: 

,< <.-:ii- -"-\*@* TRUCKING, INC. , a Montana Corporation; q .\ ., .;~$?y -- 

CLINTON MULLIN, SR., and MONA MULLIN, *t$4 F;. dt" (b:d@ "!??* 1 

Defendants and Appellants. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable Richard G. Phillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

James L. Norris, Attorney at Law, Bismarck, 

North Dakota 

For Respondent: 

Mark D. Parker, Attorney at Law, Billings, 

Montana 

Submitted on Briefs: November 21, 1996 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

Clinton Mullin, Jr. (Clint Jr.), Mullin Trucking, Inc. (Mullin 

Trucking), A & C Soaring Eagle Trucking, Inc. (A & C), Clinton 

Mullin, Sr. (Clint Sr.) and Mona Mullin (Mona) (collectively, the 

defendants) appeal from the judgment entered by the Seventh 

Judicial District Court, Richland County, on its Findings of Fact, 

Conclusions of Law and Judgment and from the court's earlier grant 

of summary judgment to Arnie A. Hove (Hove) on two of their 

counterclaims. We affirm on the appeal. 

Hove cross-appeals from the judgment entered on the District 

Court's Findings of Fact, Conclusions of Law and Judgment. We 

affirm in part, reverse in part and remand on the cross-appeal. 

The defendants raise the following issues on appeal: 

1. Did the District Court err in granting Hove's motion for 

summary judgment on two of the defendants' counterclaims? 

2. Did the District Court err in its Findings of Fact and 

Conclusions of Law? 

Hove raises the following issues on cross-appeal: 

3. Is Hove entitled to treble damages? 

4. Did the District Court abuse its discretion in failing to 
award Hove attorney fees pursuant to the premises lease? 

5. Did the District Court err in awarding Mullin Trucking 

damages for Hove's cancellation of the truck lease? 

This case arose out of certain business dealings between 

Hove, a Montana attorney, and the defendants. It began in March of 

1994, when Hove filed a complaint for possession and defaulted 

lease amounts. In his complaint, Hove alleged that he owned 

certain real property (the premises) in Richland County, Montana, 

for the use of which he and Mullin Trucking had entered into a 

month-to-month lease for a 5-year period in May of 1993. According 

to the complaint, Mullin Trucking thereafter transferred its 

property and interests to A & C and/or Clint Sr. and Mona, all of 

whom came to occupy the leased premises as Mullin Trucking's 

successors and assigns. 

The defendants allegedly defaulted on the rent, security 

deposit and taxes provisions of the lease over a nine-month period; 

Hove pleaded the total amount of the default at the time the 

complaint was filed as $14,379.01. Hove alleged that he had given 

the defendants notice to quit and that they were unlawfully 

detaining the premises. He prayed for a judgment of possession; 

rent, taxes and security deposit owed; costs incurred; and other 

proper relief. 

In their amended answer, the defendants admitted that Mullin 

Trucking signed a document purporting to lease the premises, 

affirmatively alleged that only Mullin Trucking and A & C were 

occupying the premises, admitted that they had been served with 

notice to quit the premises on March 15, 1994, and denied most of 

3 
the rest of Hove's allegations. The defendants also alleged that 

Hove was the attorney for each of them at all pertinent times and 

asserted primarily legal malpractice counterclaims against him. 

Hove filed an early motion for summary judgment relating to 

the defendants' counterclaims and the District Court denied it. 

Hove subsequently filed another motion for summary judgment--on 

different grounds--on all of the defendants' counterclaims. In 

pertinent part, the District Court granted summary judgment to Hove 

on Clint Jr.'s malpractice counterclaim which asserted that Hove 

breached his professional duty by informing law enforcement 

authorities that Clint Jr. might be in possession of stolen 

snowmobiles (the snowmobile claim). The court also granted Hove 

summary judgment on the counterclaim which asserted that Hove 

allowed a $148,000 judgment to be entered against Clint Jr. when 

the debt was only $80,000 (the First United Bank claim). 

The parties conducted discovery and filed additional motions. 

An extensive pretrial order was filed, by which time the parties' 

contentions had been revised significantly. 

The District Court held a bench trial on March 18 and 19, 

1996, and, thereafter, filed its findings, conclusions and 

judgment. Briefly stated, the District Court's judgment awarded 

Hove $16,800 against Mullin Trucking for unpaid rent under the 

premises lease, awarded Mullin Trucking $14,988 against Hove for 

expenditures and expenses relating to Hove's cancellation of a 

truck lease, and determined that there was no prevailing party in 

the action and each party should bear its own costs. The court 

dismissed the parties' remaining claims. The defendants appeal and 

4 
Hove cross-appeals. 

1. Did the District Court err in granting Hove's motion 

for summary judgment on two of the defendants' 

counterclaims? 

STANDARD OF REVIEW 

Summary judgment is proper when no genuine issues of material 

fact exist and the moving party is entitled to judgment as a matter 

of law. Rule 56(c), M.R.Civ.P. We review a district court's grant 

or denial of a motion for summary judgment de novo, using the same 

criteria used by that court. Jarrett v. Valley Park, Inc. (Mont. 

1996), 922 P.2d 485, 487, 53 St.Rep. 671, 672 (citation omitted). 

DISCUSSION 

a. The snowmobile counterclaim 

Clint Jr. asserted a legal malpractice counterclaim against 

Hove based on Rule 1.6 (a) , Montana Rules of Professional Conduct 

(M.R.Pr0f.C.) , which prohibits a lawyer from revealing information 

relating to representation of a client unless the client consents. 

The essence of the counterclaim was that Hove breached this duty of 

confidentiality when he reported to law enforcement authorities in 

February of 1994 that he thought Clint Jr. was in possession of 

stolen snowmobiles. 

In moving for summary judgment on this counterclaim, Hove 

submitted his affidavit stating that Clint Jr. had told many people 

the snowmobiles had been stolen in North Dakota, that he was not 

Clint Jr.'s attorney with regard to the snowmobile matter and that 

he had not advised Clint Jr. in that regard. Therefore, according 

5 
to Hove, he did not breach his Rule 1.6(a) duty of confidentiality 

as a matter of law. 

The District Court relied on Clint Jr.'s deposition testimony 

in concluding that no breach of the duty of confidentiality 

occurred as a matter of law and in granting Hove's motion for 

summary judgment on that counterclaim. In his deposition, Clint 

Jr. testified that he did not seek Hove's legal advice with respect 

to the snowmobiles or any legal issues surrounding the snowmobiles. 

He also testified affirmatively that he never talked to Hove about 

the snowmobiles and did not confide anything he knew about the 

snowmobiles to Hove. We conclude, as did the District Court, that 

"there can be no violation of a confidence which did not exist." 

Clint Jr. does not contend on appeal, and did not contend in 

the District Court, that his deposition testimony was 

mischaracterized or mistaken. Nor did he make any effort to 

correct or amend his deposition testimony in this regard. 

Instead, Clint Jr. relies on the affidavit of attorney Steve 

Moses, the defendants' former counsel in this action who became 

their expert witness on the legal malpractice claims. With regard 

to the snowmobile claim, Moses made numerous statements of "fact" 

purportedly taken from affidavits filed by Hove in the criminal 

proceeding against Clint Jr. Hove allegedly stated in those 

affidavits that his actions regarding the snowmobiles arose from 

statements made to him by his clients. Moses opined that Hove's 

actions relating to the snowmobiles constituted a breach of the 

attorney-client privilege. 

Clint Jr. cites to no authority under which an expert witness 

6 
can create a genuine issue of material fact at odds with the sworn 

factual statement of the real party in interest he represents on 

the core fact forming the basis for a malpractice claim. Nor are 

we aware of any such authority. 

Moreover, Clint Jr. concedes that factual information in an 

affidavit submitted in support of, or opposition to, a motion for 

summary judgment must be admissible in evidence. See Rule 56(e), 

M.R.Civ.P. ; Carelli v. Hall (Mont. l996), 926 P.2d 756, 760, 53 

St.Rep. 1116, 1117 (citation omitted). Notwithstanding Moses' 

affirmation that his affidavit was made on personal knowledge, it 

is clear from his reliance on the alleged Hove affidavits in the 

criminal proceeding that he did not have personal knowledge of 

Hove's actions which precipitated the snowmobile-related charges 

against Clint Jr. Thus, the Rule 56(e) requirement that an 

affidavit show affirmatively that the affiant is competent to 

testify to the matters stated was not met here. Nor were sworn or 

certified copies of the affidavits from the criminal proceeding to 

which Moses referred in his affidavit attached as required by Rule 

56 (e) , M.R.Civ.P. 

It is true, as Clint Jr. argues, that Rule 703, M.R.Evid., 

permits an expert's opinion to be based on facts "made known to the 

expert at or before the hearing," and that such facts "need not be 

admissible in evidence." The evidentiary rule facilitates the 

presentation of expert opinions; it does not, however, permit an 

expert witness, in the summary judgment context, to create a 

material factual issue on the basis of "facts" not otherwise 

admissible through his testimony. Here, Clint Jr.'s own deposition 

7 
testimony negated the fact of any confidence between himself and 

Hove regarding the snowmobiles and Moses' expert witness affidavit 

regarding a contrary "fact" was not admissible to create a genuine 

issue of fact. 

We agree with the District Court's assessment that the present 

case presents the "curious situation" of Clint Jr. suing Hove for 

divulging confidential information which Clint Jr. swears he did 

not communicate to Hove. We hold that the District Court did not 

err in granting Hove's motion for summary judgment on the 

snowmobile counterclaim. 

b. The First United Bank counterclaim 

The District Court also granted summary judgment to Hove on a 

llcounterclaim" relating to Hove's defense of Clint Jr. in a debt 

action against him by the First United Bank of Sidney. This 

counterclaim was not specifically pleaded by the defendants, but it 

and other general and vague references to legal malpractice were 

mentioned by Clint Jr. in his deposition in the context of Hove 

allegedly mishandling various matters for the Mullin defendants. 

In moving for summary judgment on the First United Bank 

matter, Hove essentially contended that Clint Jr. had not come 

forward with anything concrete in the way of a counterclaim. In 

responding to the motion, counsel for the defendants relied 

primarily on Clint Jr.'s deposition statements that he hired Hove 

to handle his defense of a claim by First United Bank and that Hove 

"allowedu the Bank to obtain a judgment of $148,000 when Clint Jr. 

"did not believe" he owed that amount. Clint Jr. also relied again 

on the Moses affidavit. 

8 
As it had with regard to the snowmobile claim, the District 

Court focused on Clint Jr.'s deposition testimony. That testimony 

established that Clint Jr. was not seeking damages via counterclaim 

in the present case for Hove's actions or inactions with regard to 

the First United Bank case. When asked specifically, "So this 

lawsuit has nothing to do with the United Bank of Sidney case?" 

Clint Jr. responded "That's correct." While Clint Jr.'s counsel 

contended during the summary judgment proceedings that Clint Jr.'s 

deposition testimony was mistaken, counsel's arguments do not 

establish facts; nor did Clint Jr. submit an affidavit or otherwise 

attempt to correct any allegedly mistaken deposition testimony. We 

conclude, as did the District Court, that no evidence of record 

contradicts Clint Jr.'s sworn testimony that he was not pursuing a 

counterclaim in this case regarding Hove's handling of the First 

United Bank action. Therefore, no genuine issue of material fact 

existed. 

On appeal, Clint Jr. contends that the Moses affidavit raised 

sufficient factual issues to preclude summary judgment. Moses' 

statements in this regard were that Clint Jr. and Mullin Trucking 

owed approximately $80,000 to First United Bank and that Hove 

allowed judgment to be entered for an amount in excess of $148,000. 

We observe, as we did above, that Moses stated no basis for his 

purported personal knowledge of these matters. Indeed, the 

statements are in the nature of conclusory statements lacking in 

factual foundation or personal knowledge. Conclusory statements 

are insufficient to establish the existence of a genuine issue of 

material fact. Matter of Estate of Lien (1995), 270 Mont. 295, 

9 
298, 892 P.2d 530, 532 (citation omitted). 

Moreover, even if accepted--and admissible--as fact, Moses' 

statements do not controvert Clint Jr.'s sworn testimony that he 

was not seeking anything in this case relating to Hove's handling 

of the First United Bank action. An expert witness may opine that 

professional negligence was committed; he cannot, however, assert 

a leqal malpractice claim on behalf of a client who has testified 

under oath that no such claim is being pursued. We hold that the 

District Court did not err in granting Hove's motion for summary 

judgment on the First United Bank counterclaim. 

2. Did the District Court err in its Findings of Fact 

and Conclusions of Law? 

STANDARD OF REVIEW 

We review a district court's findings of fact to determine 

whether they are clearly erroneous. Rule 52(a), M.R.Civ.P. Under 

our three-part clearly erroneous test, we first determine whether 

the court's findings are supported by substantial credible 

evidence; if so, the findings still may be clearly erroneous if the 

court misapprehended the effect of the evidence or we are left with 

the definite and firm conviction that a mistake has been committed. 

Daines v. Knight (l995), 269 Mont. 320, 325, 888 P.2d 904, 906 

(citations omitted). In this regard, it is within the province of 

the trier of fact to weigh the evidence and determine the 

credibility of witnesses, and we will not substitute our judgment 

for that of the factfinder on such matters. Topco, Inc. v. State, 

Department of Highways (19961, 275 Mont. 352, 362, 912 P.2d 805, 
811 (citation omitted). We review a district court's conclusions 

of law to determine whether they are correct. Daines, 888 P.2d at 

906. 

It is appropriate to begin our discussion with general 

observations about the defendants' brief on this issue, which 

apparently is intended to relate to both their defenses to Hove's 

claim against them and their counterclaims against Hove. We say 

"apparently" because their discussion of this issue is a confused 

intermixture of largely conclusory statements which neither 

challenges specific findings by the District Court under this 

Court's standard of review nor advances legal analysis directed at 

establishing error in the District Court's conclusions of law. 

Moreover, the 30-page statement of "facts" with which the 

defendants open their brief, and to which numerous references are 

made in their discussion of this issue, does not contain facts; it 

merely reiterates at length the trial testimony of the defendants 

and the witnesses who testified on their behalf. 

At the outset of their discussion of whether the District 

Court erred in its findings and conclusions, the defendants cite to 

In the Matter of Bretz (1975), 168 Mont. 23, 542 P.2d 1227, for the 

proposition that an attorney entering into business transactions 

with a client must show "by clear and satisfactory evidence" that 

the client had all the information and advice necessary to 

comprehend and understand the details of the business arrangement 

and that no undue influence or unfairness occurred. The defendants 

then merely state that the court failed to consider this law. 

We note that Bretz was not a legal malpractice case. It was 

11 
before this Court on review of a disciplinary proceeding before the 

Court's Commission on Practice. Bretz, 542 P.2d at 1228. The 

defendants cite to no authority under which principles set forth in 

a disciplinary proceeding necessarily are applicable in a legal 

malpractice case. 

Even assuming arguendo that Bretz is applicable here, however, 

it does not aid the defendants. While the defendants correctly 

restate certain language from Bretz, the language they rely on is 

only a partial statement of the Bretz principle. Accepted as a 

controlling principle, the language on which the defendants rely 

would effectively eliminate a plaintiff's burden of proving a legal 

malpractice claim based on business dealings between an attorney 

and a client and shift that burden to the attorney to disprove the 

claim. 

Stated in its entirety, the Bretz principle provides that 

" [wlhen the evidence reflects, as it does in this case, that an 

attorney has seemingly profited at the expense of his clients," the 

attorney must show--by clear and satisfactory evidence--both the 

absence of undue influence or unfairness and that the client had 

all the necessary information and advice to comprehend and 

understand the details of their business arrangement. Bretz, 542 

P.2d at 1245. Thus, where applicable, Bretz is clear that an 

attorney's obligation to come forward with clear and satisfactory 

evidence arises only where a factfinder has determined that the 

attorney profited at the client's expense. 

The defendants fail to apply this principle to either the 

record before us or the District Court's findings and conclusions. 

12 
Here, the District Court did not make such a finding and the 

defendants do not cite to evidence of record which would have 

mandated a finding that Hove profited from either the premises 

lease or the other business dealings underpinning the defendants' 

counterclaims against him. In any event, the record does not 

suggest such profit by Hove at the expense of his clients. 

The defendants also cite to Daniels v. Paddock (1965), 145 

Mont. 207, 221, 399 P.2d 740, 747, for the principle that "where an 

attorney deals with his client for the former's benefit, the 

transaction . . . is presumptively invalid on the ground of 

constructive fraud, and that this presumption can be overcome only 

by the clearest and most satisfactory evidence." Again, however, 

the defendants fail to establish--and the District Court did not 

find--that Hove's transactions with the defendants benefited Hove. 

The defendants then state that their 30-page Statement of 

Facts "establish[es] that the District Court's decision in 

upholding the lease for Hove and in not holding for appellants is 

clearly erroneous." They make similar conclusory statements 

regarding their other claims and generally request that this Court 

consider their 30-page Statement of Facts and references to the 

transcript and exhibits "in order to determine how strong 

appellants' evidence is." 

In these regards, we need only reiterate that our standard in 

reviewing a district court's findings of fact is whether those 

standards are clearly erroneous; the first prong of the "clearly 

erroneousu test is whether substantial credible evidence supports 

the findings. Daines, 888 P.2d at 906. Our standard is not 

13 
whether evidence supports findings different from those made by the 

district court. See Caekaert v. State Compensation Mutual Ins. 

Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498 (citation 

omitted) . Thus, contrary to the defendants' suggestion, it is 

clear that the mere recitation of evidence supporting their 

positions does not "establish" that the District Court's findings 

are clearly erroneous. 

Moreover, it is within the province of the trier of fact to 

weigh conflicting evidence, and we will not substitute our judgment 

for that of the factfinder in such matters. Topco, 912 P.2d at 

811. Thus, while we have reviewed the record, we reject the 

defendants' request that we "determine how strong their evidence 

is." To do so would improperly intrude this Court into the 

province of the trier of fact in contravention of our wellestablished standards. 

The remainder of the defendants' discussion under this issue 

centers on their contention that Hove failed to establish his 

claims, and defend against theirs, by the "clearest and most 

satisfactory evidence." While we have concluded above that this 

portion of the Bretz principle does not come into play here, we 

address this portion of the defendants' discussion briefly, noting 

that the defendants advance neither a definition of the "clearest 

and most satisfactory evidencen standard nor an analysis of how 

that standard applies to this Court's review of a district court's 

findings of fact. 

For purposes of this case, and absent any definition offered 

by the defendants, we equate the "clearest and most satisfactory 

14 
evidence" standard to the "clear and convincing evidence" standard. 

[Cllear and convincing proof is simply a requirement that 

a preponderance of the evidence be definite, clear, and 

convincing, or that a particular issue must be clearly 

established by a preponderance of the evidence or by a 

clear preponderance of proof. This requirement does not 

call for unanswerable or conclusive evidence. The 

quality of proof, to be clear and convincing, is 

somewhere between the rule in ordinary civil cases and 

the requirement of criminal procedure--that is, it must 

be more than a mere preponderance but not beyond a 

reasonable doubt. 

Matter of J.L. (Mont. 1996), 922 P.2d 459, 462, 53 St.Rep. 649, 651 

(citations omitted). Even where applicable, however, the clear and 

convincing burden of proof does not mandate a finding against the 

party carrying that burden merely because conflicting evidence 

exists. Matter of J.L., 922 P.2d at 462. Thus, the defendants' 

reliance on that standard is to no avail here on a stand-alone 

basis. 

Moreover, it is clear that even where the clear and convincing 

standard applies to a district court charged with making findings 

of fact, that trial level standard does not affect our clearly 

erroneous standard in reviewing such findings of fact. Matter of 

J.L., 922 P.2d at 462 (citation omitted). To hold otherwise would 

result in this Court improperly substituting its judgment for that 

of the factfinder on matters relating to the weight of the evidence 

and the credibility of witnesses. See Matter of J.L., 922 P.2d at 

The above discussion brings us to the only questions properly 

before us in this issue; namely, whether the District court's 

findings of fact are clearly erroneous and whether its conclusions 

of law are correct. See Daines, 888 P.2d at 906. The defendants 
do not challenge any finding of fact as being unsupported by 

substantial evidence or, except as discussed above, otherwise 

clearly erroneous. Accordingly, we conclude that the District 

Court's findings relating to the defendants' appeal are not clearly 

erroneous. Similarly, with regard to the conclusions of law 

adverse to them, the defendants have not established any error by 

the court. We hold, therefore, that the District Court did not err 

in interpreting the law with respect to matters encompassed within 

the defendants' appeal. 

3. Is Hove entitled to treble damages? 

As the first issue in his cross-appeal, Hove contends that he 

was entitled to treble damages pursuant to § 70-27-205(2), MCA, 

upon the District Court's finding and judgment that he was entitled 

to unpaid rent from Mullin Trucking. He argues that the entry of 

treble damages is a mere ministerial act under the facts of this 

case. We disagree. 

Section 70-27-205(2), MCA, provides that, in the event of an 

unlawful detainer alleged in the complaint and proved at trial, the 

finder of fact must determine the amount of any related rent due. 

In addition, judgment must be entered against a defendant guilty of 

the unlawful detainer for three times the amount of the rent found 

due. Section 70-27-205(2), MCA. 

Here, as noted above, Hove's complaint alleged defaulted rent 

payments under the premises lease and unlawful detainer. The 

District Court determined that the premises lease was valid, found 

that rent was due--and not paid--after the first two months of the 

lease, and entered judgment in Hove's favor for the amount of rent 

16 
not paid by Mullin Trucking for the months it occupied the leased 

premises. The court did not, however, make a finding or 

corresponding conclusion that Mullin Trucking was guilty of 

unlawful detainer as defined in 5 70-27-108, MCA. 

Treble damages are mandatory under § 70-27-205(2), MCA, only 

where a defendant is determined to be guilty of unlawful detainer. 

No such determination was made in this case and Hove has not 

appealed the District Court's failure to do so. Therefore, we 

conclude that Hove is not entitled to treble damages. 

4. Did the District Court abuse its discretion in 

failing to award Hove attorney fees pursuant to the 

premises lease? 

Since he prevailed on the premises lease issue, Hove argues 

that the District Court abused its discretion in determining that 

no party should be deemed a prevailing party in the action and each 

party should bear its own costs, and in denying him attorney fees 

to which he was entitled pursuant to the terms of the lease. We 

disagree. 

We note, at the outset, that Hove's complaint in this case 

does not contain a claim for attorney fees under the premises 

lease. Indeed, no claim for attorney fees is stated in the 

complaint. 

Hove contends that he preserved the issue of entitlement to 

attorney fees under the premises lease in the pretrial order. We 

have scrutinized the extensive pretrial order entered in this case, 

however, and located no assertion of entitlement to attorney fees 

under the premises lease. The only assertion by Hove in the 

pretrial order which relates to his asserted entitlement to 
attorney fees is as follows: 

Hove is entitled to rent pursuant to the terms of the 

lease and all remedies available under Section 70-27-201 

et seq. M.C.A. including attorney's fees, treble damages 

and costs. 

This contention asserts entitlement to rent under the premises 

lease; it does not assert entitlement to attorney fees thereunder. 

Attorney fees, and other entitlements, are asserted only pursuant 

to statute. 

Hove also relies on Bell v. Richards (1987), 228 Mont. 215, 

741 P.2d 788. His reliance is misplaced. 

In w, plaintiffs sued to be excused from obligations under 

a contractual land sale and to be reimbursed for amounts already 

paid to defendants under the contract. The contract contained a 

prevailing party attorney fees provision. Ultimately, the district 

court dismissed plaintiffs' complaint with prejudice and awarded 

defendants costs. Bell, 741 P.2d at 789. The court subsequently 

denied defendants' motion to alter or amend to include attorney 

fees, concluding that defendants' failure to include a claim for 

attorney fees in the pretrial order constituted abandonment of such 

a claim and that no evidence relative to fees was introduced at 

trial under which Rule 15 (b) , M.R.Civ. P., would come into play. 

Bell, 741 P.2d at 790. 

We reversed the district court on appeal. We relied, in 

pertinent part, on the parties' mutual contractual agreement that 

the prevailing party in any action relating to the contract would 

be entitled to attorney fees and plaintiffs' inclusion of the issue 

in the pretrial order. -, Bell 741 P.2d at 790-91. Because 
entitlement to attorney fees was vested in the prevailing party by 

contract, plaintiffs claimed attorney fees under the contract, and 

g 28-3-704, MCA, makes attorney fees reciprocal, we concluded that 

defendants did not abandon their right to attorney fees by failing 

to include such a claim under defendants' contentions in the 

pretrial order. Bell, 741 P.2d at 790-91. 

The present case is distinguishable from Bell. First, the 

premises lease did not contain a prevailing party attorney fees 

provision; Section Eleven of the premises lease provided that the 

lessee would indemnify the lessor against expenses, including 

attorney fees, arising out of a failure by lessee to perform any of 

the terms of the lease. Second, Hove was the only party who could 

have initially asserted a claim to attorney fees under this lease 

provision in the pretrial order, and he did not do so. Thus, &JJ 

does not support Hove's position here. 

Moreover, we distinguished &JJ in Naftco Leasing Ltd. v. 

Finalco, Inc. (1992), 254 Mont. 89, 835 P.2d 728, on facts nearly 

identical to those presently before us. There, plaintiffs appealed 

from the district court's adverse ruling in their action to reform 

lease contracts and from the award of attorney fees to defendant. 

Naftco, 835 P.2d at 729-30. We reversed on the attorney fees issue 

on the basis that the pretrial order contained no reference to 

attorney fees and the lease contracts did not contain a prevailing 

party attorney fees provision. Indeed, the Naftco contracts 

contained a provision substantially similar to that contained in 

the premises lease at issue in the present case. Naftco, 835 P.2d 

at 732. We expressly determined that "Bell is not authority for 

19 
allowing the defendant to collect attorney fees in the present 

case." Naftco, 835 P.2d at 732. We reach the same conclusion 

here. 

As a final matter, we observe that Hove did not assert 

entitlement to attorney fees under the premises lease at any stage 

of the proceedings before the District Court. As noted above, 

neither his complaint nor the pretrial order contains such a claim. 

His brief and proposed findings of fact and conclusions of law 

filed after trial also are devoid of any reference to such an 

entitlement to attorney fees. Nor did he move the District Court 

to alter or amend its findings, conclusions and judgment in this 

regard. 

We hold that the District Court did not err in failing to 

award Hove attorney fees under the premises lease. 

5. Did the District Court err in awarding Mullin 

Trucking damages for Hove's cancellation of the 

truck lease? 

As part of the business dealings between Hove and the 

defendants, Hove made a down payment on a 1993 Volvo truck. A oneparagraph contract between Hove and Clint Jr. indicated that the 

truck ultimately was to be sold to Mullin Trucking and that, in the 

interim, Mullin Trucking would lease the truck. No written lease 

agreement was ever executed with regard to this transaction and the 

District Court found that the original contract was devoid of any 

detail as to the terms and conditions of such a truck lease. The 

court concluded that Hove violated his obligation as an attorney in 

entering into business dealings with his clients in this regard 

without providing a clear written contract specifying the terms of 
the lease. 

Hove subsequently terminated the truck transaction and 

"repossessed" the truck. Damages were claimed against Hove for 

loss of use, loss of profits and out-of-pocket expenses for 

licensing, insuring and outfitting the truck, as well as being 

required to go and pick up a trailer that was left in Illinois when 

Hove reacquired the truck. 

The District Court concluded that, in addition to Hove having 

failed to properly conduct the truck lease transaction at the 

outset, his method of terminating the arrangement also was improper 

and resulted in loss of equipment from the truck and loss of the 

out-of-pocket expenses incurred. Noting that the damages to which 

Clint Jr. testified were not supported by documentation, the court 

nevertheless determined that the damages did not appear to be 

speculative and that Clint Jr.'s testimony was sufficient to 

establish the damage claim. The District Court entered judgment 

relating to the truck transaction in favor of Mullin Trucking in 

the amount of $14,988 as damages for out-of-pocket expenses. 

Hove does not challenge any of the District Court's findings 

of fact relating to the truck lease transaction; nor does he 

challenge the court's conclusions of law that he violated his 

professional obligations in these regards and improperly reacquired 

the truck, resulting in the loss of out-of-pocket expenditures. In 

addition, while Hove observes that he preserved an objection to the 

foundation for Clint Jr.'s testimony relating to damages, he does 

not raise or argue--as a separate issue on cross-appeal--an abuse 

of discretion by the District Court in admitting the testimony. 

2 1 
Thus, we do not address the admissibility of Clint Jr.'s testimony 

relating to out-of-pocket expenses. 

Hove does advance two challenges to the District Court's 

actions in this regard. First, he argues that the court should not 

have accepted Clint Jr.'s testimony on damages relating to the 

truck transaction as sufficient to establish those damages. 

Second, he contends that the District Court erred in awarding the 

damages to Mullin Trucking rather than to A & C. We will address 

these arguments in turn. 

With regard to Hove's first argument, we conclude that the 

District Court did not abuse its discretion. The court rejected 

much of Clint Jr.'s damage testimony as speculative and improbable. 

It accepted other testimony, over Hove's objection, with regard to 

the out-of-pocket expenses incurred. While it is true that Clint 

Jr. did not provide documentation for these damages, and used the 

pretrial order to refresh his recollection about these amounts, he 

testified that he had provided the information to his counsel at 

the time the pretrial order was prepared. 

Hove relies on Scott v. Scott (1990), 246 Mont. 10, 803 P.2d 

620, as support for his contention that oral testimony unsupported 

by readily available documents is insufficient proof as a matter of 

law, but his reliance is misplaced. There, the parties to a 

marital dissolution disputed the valuation of an automobile 

purchased during the marriage. Scott, 803 P.2d at 624. The wife 

testified that the value was $500; the husband testified to a value 

of $1500 based on conversations he had with various automobile 

dealers. Neither party submitted written valuations and the trial 

22 
court accepted the husband's testimony. Scott, 803 P.2d at 625. 

On appeal, we observed that the trial court did not have the 

best evidence on which to base its valuation of the automobile; we 

also determined, however, that the trial court's determination of 

value would stand unless it was not supported by the record. 

Having reviewed the record, we concluded that it supported the 

trial court's finding. Scott, 803 P.2d at 625. To the extent it 

is applicable here, Scott supports the District Court's reliance on 

Clint Jr.'s testimony regarding out-of-pocket expenses relating to 

the truck transaction. Scott does not stand for the proposition 

that oral testimony unsupported by readily available documents is 

insufficient proof as a matter of law. 

With regard to Hove's second argument, we agree--as do the 

defendants--that the District Court erred in awardiny the damages 

to which Clint Jr. testified to Mullin Trucking. Clint Jr. clearly 

and repeatedly testified that the out-of-pocket expenses incurred, 

and which the court ultimately awarded as damages, were sustained 

by A & C. Thus, the record does not support the District Court's 

entry of judgment in favor of Mullin Trucking in the amount of 

$14,988 as damages relating to the truck transaction. As a result, 

it is necessary to remand for modification of the District Court's 

conclusions of law and judgment. 

Affirmed in part, reversed in part, and remanded for further 

proceedings consistent with this opinion. 
We concur: