No. 93-104

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

RAY D. GANDY and NORMA L. GANDY,

Plaintiffs, Appellants,

and Cross-Respondents,

V.

JANET E. ESCHLER, individually, and

LORI L. ESCHLER and BURKE ESCHLER,

Personal Representatives of the

Estate of JAMES P. ESCHLER,

Defendants, Respondents,

and Cross-Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Kenneth E. O'Brien, Hash, O'Brien & Bartlett,

Kalispell, Montana

For Respondents:

Donald Harris and Steven R. Milch, Crowley,

Haughey, Hanson, Toole & Dietrich, Billings,

Montana (Janet Eschler);

Jerome Cate, Cate Law Firm, Whitefish,

Montana (Estate of James P. Eschler

Filed:

Submitted on Briefs: June 10, 1993

Decided: November 2, 1993
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellants Ray and Norma Gandy appeal from an order of the

Thirteenth Judicial District Court, Yellowstone County, granting

partial summary judgment to respondents Janet, Lori, and Burke

Eschler, personal representatives of the Estate of James P.

Eschler. The order denied Gandys' claim that the Eschlers

specifically perform on a contract for deed for real property

located in Yellowstone County. Gandys also contest the amount of

award for attorney fees. Eschlers cross-appeal on the award of

attorney fees.

We affirm.

Appellants present one issue on appeal which we rephrase as

follows:

1 . Did the District Court err in granting partial summary

judgment when it ruled that Gandys were not entitled to specific

performance?

Eschlers cross-appeal with the following issue:

2 . Did the District Court err in granting attorney fees to

Gandys when they did not prevail on the motion for partial summary

judgment?

Appellants also appeal the amount of attorney fees.

On December 22, 1977, William and Sally Fried entered into a

contract for deed with Richard and Jeannie Martin for rental

property located in Yellowstone County. The parties placed the

contract in escrow.

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on September 29, 1983, Martins sold the same property to James

and Janet Eschler using a contract for deed. The purchase price of

the contract was $315,000, which included a $50,000 down payment.

On the date of execution, Martins placed a warranty deed in escrow.

Eschlers purchased subject to the December 22, 1977, underlying

contract, but did not assume the contract.

On October 4, 1984, Martins assigned their sellers' interest

in the 1983 contract to a party known as Avrill. On December 12,

1985, Avrill assigned his seller's interest to Gandys for $80,000.

In June 1987, Eschlers notified Gandys that no further monthly

payments would be made upon the contract. At that time, Eschlers

had made all payments when due. On July 6, 1987, Eschlers notified

Gandys that they would furnish a quitclaim deed in return for a

release from further obligation.

From August 1987, until March 1988, the parties attempted to

negotiate a resolution to the problem. On March 30, 1988, the

parties entered into a written agreement wherein Eschlers agreed to

pay $20,000, with interest, to Gandys for satisfaction of Gandys'

claim for the balance due and owing under the September 29, 1983,

agreement. At the time the parties entered into the second

agreement, Frieds gave both parties notice of default and

repossessed the real estate in December 1987.

Eschlers did not make timely payments and defaulted on the

March 30, 1988, agreement. On April 24, 1991, Gandys initiated

this action under the March 30, 1988, agreement seeking the
underlying contract price of $258,640, plus interest, or in the

alternative, Gandys sought $20,000 from the breach of the March 30,

1988, contract. On May 27, 1992, Eschlers filed a motion for

partial summary judgment on the basis that Gandys' claim for

specific performance failed as a matter of law. On August 6, 1992,

the District Court granted Eschlers' motion for partial summary

judgment. On August 17, 1992, Eschlers filed an offer of judgment

for $20,000, which included all costs incurred at that time.

Gandys did not respond to the offer, but instead filed a motion for

reconsideration. On December 23, 1992, Eschlers filed a motion for

entry of judgment on the balance remaining on the 1988 contract,

which the District Court granted. The court entered judgment in

favor of Gandys for $15,757.53 and $1,200.00 in attorney fees.

Gandys appeal the judgment of the District Court.

Did the District Court err in granting partial summary

judgment when it ruled that Gandys were not entitled to specific

performance?

When determining whether a district court erred on a motion

for summary judgment, our standard of review is the same as that of

the district court. It is proper for the district court to grant

summary judgment when there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law.

Rule 56(c), M.R.Civ.P. The court may examine the pleadings,

depositions, answers to interrogatories, and admissions in the

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record to establish facts to determine if the applicable law

warrants the granting of summary judgment. Kondelik v. First

Fidelity (Mont. 1993), 857 P.2d 687, 692, 50 St. Rep. 874, 876-77.

Gandys contend that the District Court should have allowed

them to sue for the balance of the purchase price of the underlying

contract because it was Eschlers who defaulted and prevented Gandys

from vesting Escblers with title. In essence, Gandys argue that

persons who prevent the performance of the terms of the contract

cannot avail themselves of the nonperformance which their actions

have prevented.

We have stated that:

A request for a money judgment for the balance of the

purchase price which may be awarded in an action at law

has been deemed identical to a decree of specific

performance, which requires the buyer to pay the balance

of the purchase price. That being so, once the buyers

have paid the money judgment, the seller must convey

title to the property. Such would be required if the

decree were of specific performance; and since the money

judgment has been deemed identical to a decree for

specific performance, the money judgment carries with it

the same requirement that the seller perform. [Citation

omitted].

Glacier Campground v. Wild Rivers, Inc. (1979) I 184 Mont. 543,

560-61, 597 P.2d 689, 699.

To obtain specific performance, both parties must be able to

perform their obligations of the contract. Section 27-1-414, MCA.

Here, for Gandys to succeed on their claim for specific performance

they must be able to convey title of the Yellowstone County land to

Eschlers.

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Gandys maintain that they are not required to perform their

end of the 1983 contract because Paragraph 4 of the March 30, 1988,

contract releases and discharges them from performing any

obligation resulting from the September 29, 1983, agreement.

Gandys also contend that Paragraph 5 of the March 30, 1988,

contract allows them to sue for the full balance of the purchase

price of the underlying contract.

Paragraph 4 states:

ESCHLERS hereby release and forever discharge GANDYS

from the performance or non-performance of any duties or

obligations, as well as any and all other liabilities

resulting from, arising out of, or in any way associated

with said agreement dated September 29, 1983.

When determining the intention of the parties, we look to the

contract as a whole to determine its meaning and not be bound by a

single provision or expression. St. Paul Fire & Marine Ins. Co. v.

Cumiskey (1983), 204 Mont. 350, 363, 665 P.2d 223, 229.

The contract contains mutual release language. Paragraph 3

discharges Eschlers from their obligation only upon the payment of

the $20,000. Paragraph 3 states:

Upon compliance of Paragraph 1, above, by payment in

full sum of Twenty Thousand Dollars ($20,000.00), plus

interest, GANDYS hereby release and forever discharge

ESCHLERS from the performance or non-performance of any

duties or obligations, as well as any and all other

liabilities resulting from, arising out of, or in any way

associated with said agreement dated September 29, 1983.

Upon reading Paragraph 3 with Paragraph 4, it becomes clear

that the parties mutually agreed to release each other from their

respective obligations under the September 29, 1983, contract.

Accordingly, Gandys are still required to convey title of the

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Yellowstone County property when suing for the balance of the

purchase price of the underlying contract. Gandys cannot compel

specific performance because they no longer have title to the land.

Our analysis does not stop here. Assuming arguendo that if

the District Court compelled Eschlers to specifically perform under

the contract, Gandys would receive the full purchase price for the

land, Martins would have title to the land, and Eschlers would be

left with nothing. We will not compel specific performance when it

becomes oppressive upon the party required to specifically perform.

Section 27-1-413, MCA. Under these circumstances, enforcing

specific performance would operate harshly against Eschlers. We

hold that the District Court did not err in granting summary

judgment.

II.

Did the District Court err in granting attorney fees to Gandys

when they did not prevail on the motion for partial summary

judgment?

Paragraph 6 of the March 30, 1988, contract provides for the

following:

In the event that either party shall institute legal

action for the enforcement of any right, obligation,

provision or covenant of this agreement, they shall be

entitled to a reasonable attorney's fee in addition to

costs of suit.

The right to attorney fees is reciprocal to all parties to the

contract in any action based on the contract, despite which party

initiates the action. Carey v. Wallner (1986), 223 Mont. 260, 267,

725 P.2d 557, 562: § 28-3-704, MCA. The prevailing party suing

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under the contract has the right to attorney fees. Section

28-3-704, MCA.

Eschlers claim that they are the prevailing party because they

have successfully defended against Gandys' specific performance

claim. In addition, Eschlers filed a motion for summary judgment

for the unpaid portion of the $20,000 obligation. Gandys did not

oppose the motion and the District Court granted summary judgment.

When Eschlers filed their answer and motion to dismiss to

Gandys' amended complaint and their motion for partial summary

judgment, along with the briefs submitted, they stated that Gandys

should take nothing by way of their complaint. Gandys, in addition

to their specific performance claim, requested a judgment for "such

other sum as the Court may conclude resulted from the Defendant's

breach of the March 30, 1988, Agreement." This is presumably the

unpaid portion of the $20,000. The court granted summary judgment

for the requested amount. We hold that since Gandys prevailed in

obtaining a judgment for the unpaid portion of the March 30, 1988,

contract then the District Court did not err in granting attorney

fees.

Finally, Gandys complain that the District Court erred in the

amount of attorney fees that it granted. Gandys offer no authority

for this proposition.

The district court has discretion to determine the amount of

attorney fees. Stewart v. Casey (1979), 182 Mont. 185, 193, 595

P.2d 1176, 1181. We will not overturn a district court's decision

absent an abuse of discretion. Gandys' attorney filed an affidavit

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stating that attorney fees amounted to $2762 when working for 27

hours at a rate of $85 an hour from the time the action commenced

until August 17, 1.992, and adding an additional 5.5 hours for work

performed after August 17, 1992. On August 17, 1992, Eschlers

filed an offer of judgment for $20,000. The District Court

determined that the request for attorney fees was not reasonable

and awarded $1200 in fees.

Apparently, the court concluded that Gandys had an early

opportunity to settle the claim for $20,000, but created delay. In

the partial summary judgment order, the court stated that it would

be inclined to grant summary judgment for Gandys on their claim for

breach of the March 30, 1988, contract. Eschlers filed an offer of

judgment of $20,000 after the court granted partial summary

judgment. Gandys did not accept the offer and the court entered a

judgment for less than the offer. Rule 68, M.R.Civ.P. The court

stressed that there was a change of venue, Gandys amended their

complaint, and Gandys requested a motion to reconsider the partial

summary judgment. We hold that the District Court did not abuse

its discretion when it determined the amount of attorney fees.

We affirm.

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We concur:

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