No. 89-546 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN THE MATTER OF THE ESTATE OF 

ALISON KIRK STENSON, a/k/a AL 

STENSON, 

Deceased. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gregory G. Murphy; Moulton, Bellingham, Longo & 

Mather, Billings, Montana 

1- 

1 - 

. For Respondent: 

C13 

-... - 1 

-J I W. William Leaphart, Leaphart Law Firm, Helena, 

.-I Montana 

Submitted on Briefs: April 12, 1990 

' / Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from an order by the District Court, First 

Judicial District, Lewis and Clark County, Montana, which ordered 

the personal representative of an estate to pay certain attorney 

fees. The personal representative appeals. We affirm. 

The sole issue presented for our review is whether the 

District Court erred in awarding attorney fees pursuant to 5 72- 

3-632, MCA. 

Alison Stenson died as a result of an accident at a mine owned 

by the Pegasus Gold Corporation (Pegasus). On the morning of 

November 11, 1986, Alison Stenson was working near the bucket end 

of a Caterpillar front end loader. A co-worker informed Alison 

Stenson he was going to move the bucket and proceeded to do so. 

The co-worker then found that Alison Stenson was caught between the 

bucket and the differential. The co-worker released the bucket and 

ran for help. Pegusus had an ambulance at the site but it was not 

operational. An ambulance was called from Boulder, Montana, but 

did not arrive for over an hour after the accident. Alison Stenson 

died while being transported by ambulance to the hospital. 

Physicians reported that his death was caused by blood loss, and 

that if Alison Stenson had received transfusions earlier, his 

chances of survival would have been good. 

Alison Stenson was thirty years old at the time of the 

accident, and unmarried. His father, Roger Stenson, talked to 

attorney Robert Woodahl, and the law firm of Luxan and Murf itt, and 

on November 19, 1986, signed a contingency fee agreement with Mr. 

2 
Woodahl and Luxan and Murfitt providing for an attorneys1 fee of 

one third of any settlement received from a wrongful death action. 

Roger Stenson was appointed personal representative of his sonls 

estate in December of 1986. The retained lawyers investigated, 

interviewed witnesses, and after research developed a theory of 

third party liability. In May 1987, Luxan and Murfitt presented 

a settlement brochure to Pegusus1 insurance company on the wrongful 

death claim. 

In July 1987, Roger Stenson received a questionnaire from the 

Social Security Administration concerning a claim that had been 

made for benefits. This claim was made by Rebecca Rebel Autumn 

Countryman, who claimed to be the minor daughter of the deceased, 

Alison Stenson. Mr. and Mrs. Roger Stenson informed the Social 

Security Administration and their attorneys that to their knowledge 

their son had no children, and that they did not know Rebecca 

Countryman. 

Although Luxan and Murfitt had presented the settlement 

brochure to the insurance company, they suspended further 

negotiations because of the issue as to the proper heirs to the 

estate. They then initiated an heirship or paternity proceeding. 

In September 1987, Luxan and Murfitt advised Roger Stenson by 

letter that they would be charging $85 per hour, plus costs, for 

their work in regard to the heirship matter. They advised that the 

contingency arrangement in regard to the wrongful death action 

would remain unchanged. 

By the spring of 1988, after an exhaustive investigation on 
the part of Luxan and Murfitt, and after a hearing on the matter, 

it became clear that Rebecca Countryman was in fact the daughter 

of Alison Stenson, and the court entered an order to that effect. 

On May 19, 1988, Luxan and Murfitt moved to withdraw as counsel for 

Roger Stenson, and on May 24, 1988, that order was granted by the 

court. Likewise, on June 1, 1988, Roger Stenson moved to withdraw 

as personal representative. That motion was also granted. 

On June 24, 1988, Mr. Craig Buehler, an attorney, was 

appointed successor personal representative for the estate. Mr. 

Buehler proceeded to settle the wrongful death survivorship claim 

for a structured settlement of the present value of approximately 

$300,000. Mr. Buehler initially received fees of $50,000, $300 per 

month until Rebecca becomes twenty-two, with another $50,000 to be 

paid when she becomes twenty-two. 

Luxan and Murfitt filed a creditor's claim and an attorney 

fee lien against the estate for the work they performed on behalf 

of the estate. At District Court, Luxan and Murfitt acknowledged 

that the contingency arrangement was terminated prior to 

settlement. The fees submitted, in the total amount of $36,048, 

were based upon an hourly rate and actual costs. Mr. Robert 

Woodahl submitted a statement of fees in the amount of $10,763, 

which represented 116.5 hours at $85 per hour, plus approximately 

$855 in actual costs. The firm of Luxan and Murfitt submitted a 

statement of fees in the amount of $25,284, which represented 

attorney fees billed at an average hourly rate of $75 per hour. 

The statement also included approximately $340 of itemized costs. 
As personal representative, Mr. Buehler moved to dissolve the 

lien and deny the creditor's claim. Both parties filed cross 

motions for summary judgment with supporting memorandum. The 

District Court granted summary judgment in favor of Luxan and 

Murfitt and Mr. Woodahl on the issue of entitlement. The court 

concluded there were no genuine issues of material fact as to 

whether the attorneys were entitled to some fees; however, the 

court reserved judgment on whether an award of fees should be based 

on a portion of statutorily allowable fees. The court also 

reserved judgment on the value of the services. The court further 

ordered that $50,000, which was set aside from the estate for 

attorney fees, be held in trust pending the outcome of the dispute. 

On June 15, 1989, the court held a hearing on the remaining 

attorney fee issues. At that hearing testimony was taken from Mr. 

Woodahl and two attorneys from the Luxan and Murf itt f inn. Two 

other local attorneys testified in regard to billing practices of 

law firms in the area. Additionally, Ms. Countryman, the mother 

of Rebecca Countryman, testified. 

Following the hearing and further briefing, the court issued 

its order awarding Mr. Woodahl and Luxan and Murfitt their total 

requested fees and costs in the amount of $36,048. The District 

Court concluded that the work by the attorneys was performed on 

behalf of Roger Stenson, in his capacity as personal representative 

of the estate. The District Court based its order on a finding 

that Mr. Stenson had pursued the heirship matter Itin good faith" 

as required by 5 72-3-632, MCA, and that both the wrongful death 
survivorship action and the heirship proceeding benefitted the 

estate. The court concluded that the attorney fees were 

recoverable on a quantum meruitbasis, and that attorney fees were 

also recoverable pursuant to 5 72-3-632, MCA. The court found the 

fees to be reasonable. In its order the court also took note of 

the fact that the award does not affect the beneficiary of the 

estate; rather the dispute is between attorneys in regard to who 

should receive the compensation; that Mr. Buehler has been 

handsomely rewarded for his efforts in that he has already received 

$50,000 and will receive $300 per month; and that the award will 

leave Mr. Buehler with another large fee even after paying the 

other attorneys. 

On appeal Mr. Buehler contends that under the statutes, the 

attorneys are limited to attorney fees one and one half times the 

compensation allowable to the personal representative; that there 

can be no quantum meruit because there was a contingency fee 

agreement; and that the contingency fee agreement cannot control 

because the settlement was not completed. We agree with the 

conclusion of the District Court that the award of attorney fees 

pursuant to 5 72-3-632, MCA, was proper. Section 72-3-632, MCA, 

states: 

Expenses of personal representative in estate 

litigation. If any personal representative or person 

nominated as personal representative defends or 

prosecutes any proceeding in good faith, whether 

successful or not, he is entitled to receive from the 

estate his necessary expenses and disbursements, 

including reasonable attorneys' fees incurred. 

Our standard of review on the issue of fees is stated in Matter of 
Estate of Stone (Mont. 1989), 768 P.2d 334, 336, 46 St.Rep. 134, 

The review of fees paid or taken by a personal 

representative is left to the sound discretion of the 

District Court. We will not overturn that decision 

absent a showing of abuse of discretion, and the court's 

findings of fact will be upheld unless clearly erroneous. 

(Citations omitted.) 

In Matter of Estate of Stone, the Court stated that 5 72-3- 

632, MCA, deals explicitly with litigation expenses incurred by the 

personal representative on behalf of the estate and allows for a 

reasonable attorney fee for actions maintained in good faith. The 

District Court determined that the actions had been prosecuted in 

good faith and that the fees were reasonable. After a review of 

the record, we conclude that substantial credible evidence supports 

those findings. 

Mr. Buehler in substance agrees that the legal services on the 

wrongful death claim were in good faith. He does contend that Mr. 

Stenson did not investigate the heirship issue in good faith, 

contending that Mr. Stenson knew that Rebecca Countryman was the 

daughter of Alison Stenson and therefore the sole heir of the 

estate. While there is a contradiction in the record, there 

clearly is substantial evidence from which the court could conclude 

that Mr. and Mrs. Stenson had no knowledge that Rebecca Countryman 

was their son's daughter. The fact that Mr. Stenson and Luxan and 

Murfitt discontinued settlement negotiations on the wrongful death 

action in order to investigate the paternity issue is an indication 

of good faith. Luxan and Murfitt also filed a claim with Workers' 
Compensation on behalf of Rebecca Countryman to prevent her claim 

from being time barred. We conclude there is substantial credible 

evidence supporting the findings of the District Court that the 

proceedings were brought in good faith. 

On the issue of the reasonableness of the fee, this Court has 

previously stated that "[wlith regard to legal services, a 

reasonable fee should be ascertained by considering the time spent, 

the nature of the service, and the skill and experience required.I1 

Matter of Estate of Stone, 768 P.2d at 336; see also Matter of 

Estate of Painter (Colo.App. 1977), 567 P.2d 820, on remand, 671 

P.2d 1331 (1983). Additionally, to be reasonable the fees must be 

related to services rendered to benefit the estate, rather than to 

benefit the personal interest of an administrator or estate 

counsel. Matter of Estate of Painter, 671 P.2d at 1334. 

At the hearing Patrick Hooks, an attorney in the Helena area, 

testified that he had reviewed the files and time sheets of Luxan 

and Murfitt and considered their fees to be reasonable and in 

accord with fees charged in the same geographical area. He 

testified that the wrongful death survivorship action had been 

developed upon an t'ingenious18 theory of third party liability which 

had proved very successful. He testified that the heirship 

proceeding was complicated since the putative father was deceased, 

preventing proof of paternity by the usual blood tests. Mr. Hooks 

testified that the work done by the attorneys demonstrated a high 

level of experience and skill. We conclude that substantial 

credible evidence, including detailed records of the work which was 
done, supports the reasonableness of the fees. 

The District Court also found that the work of Mr. Woodahl and 

Luxan and Murfitt benefitted the estate and its rightful heir. Had 

the wrongful death survivorship action not been successfully 

pursued, it appears that the estate of Alison Stenson would have 

consisted of a car and a motorcycle, for a total value of 

approximately $3400. The attorneys here formulated a theory 

whereby the estate was not limited to workers' compensation 

benefits as the exclusive remedy, but was able to realize a 

structured settlement of the present value of $300,000. 

Additionally, the heirship proceeding, for which the Luxan and 

Murfitt firm did extensive investigation, resulted in the 

determination of the rightful heir. We conclude that the services 

of Mr. Woodahl and the Luxan and Murfitt firm were a substantial 

benefit to the estate. 

We conclude that the District Court did not err in awarding 

attorney fees pursuant to B 72-3-632, MCA. We affirm the award of 

attorney fees by the District Court. 

We Concur: /7 
Justice John C. Sheehy did not participate.