NO. 93-457 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

HALL & HALL, INC. a, 

Montana Corporation, 

Plaintiff and Appellant, 

HENRY B. HYDE and FRANCIS B. 

BESSENYEY, as co-executors of 

the Estate of Margit S. Bessenyey 

and the ESTATE OF MhRGIT S. 

BESSENYEY, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey H. Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rodney T. Hartman, Herndon, Hartman, Sweeney & 

Halverson, Billings, Montana 

For Respondent: 

Patrick G. Frank and W. Carl Mendenhall, Worden, 

Thane & Haines, Missoula, Montana 

Submitted on Briefs: January 7, 1994 

MAR 2 2 1994 Decided: March 22, 1994 -J C-; Filed: c*,,:! -.> ,; ,;J,: 

CLERK 0:; st:!.: . . ~\:, ;L ,::.:~i.:~+~ Si'41"~ OF ii,~~,,.~;~~~~, 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal by Hall & Hall, Inc. (Hall & Hall) from an 

order of the District Court of the Twenty-First Judicial District, 

Ravalli County, which granted summary judgment to defendants. We 

affirm. 

The issue presented for our review is whether the District 

Court properly granted defendants1 motion for summary judgment. 

The facts underlying this action are as follows: Margit S. 

Bessenyey died in 1984, leaving a considerable estate, part of 

which included property in Ravalli County, Montana. The Ravalli 

County property included one piece of property known as the "Bitter 

Root Stock Farm" (Stock Farm) constituting approximately 19,097 

acres and another piece of property known as the "Brick Barn," a 

smaller parcel. This action concerns the real estate commission 

paid to Hall & Hall following the sale of the Stock Farm to Harold 

Mildenberger and his son Bradley Mildenberger. 

Francis B. Bessenyey (Bessenyey) was Margit S. Bessenyeyls 

stepson and is co-executor of her estate along with Henry B. Hyde, 

a New York attorney. Bessenyey was also a neighbor and long-time 

friend of Harold Mildenberger. Harold Mildenberger stated in his 

affidavit that in late 1984, after the death of Margit Bessenyey, 

he discussed purchasing some or all of her estate's property in 

Ravalli County. He again approached Bessenyey in early 1985 and 

yet another time in August of 1986 about purchasing property of the 

Margit S. Bessenyey estate (the Estate). Each time, Bessenyey 

responded that the Estate was not in a position to consider a sale 

2 
at that time. 

The affidavits of Francis Bessenyey and Harold Mildenberger 

state that they were friends and neighbors for many years. Harold 

Mildenberger purchased the land his home is built on from Margit S. 

Bessenyey in 1979. Roy Rose, the manager of the Stock Farm, also 

testified by deposition that he was aware of an approximate thirtyyear friendship between Francis Bessenyey and Harold Mildenberger. 

Throughout the years, these two friends and other members of their 

families were involved in various real estate transactions and 

discussions over other possible sales of real property. 

Clearly, the sale of the Stock Farm--the subject of this 

action--did not occur in isolation and must be viewed in light of 

this longstanding relationship between the Mildenbergers and the 

Bessenyeys. As an example, in June and July of 1989, the Estate 

and the Mildenberger family were involved in a series of 

transactions whereby the Estate conveyed forty acres in Ravalli 

County to Mrs. Harold Mildenberger in exchange for an easement 

granted by Harold Mildenberger to the Estate to run pipe over the 

Mildenbergers' property to irrigate Estate property. 

Bessenyey stated in his affidavit that it became apparent in 

late 1989 that the Estate would have to sell some or all of its 

Ravalli County real estate holdings to settle the estate's tax 

liabilities and to provide for specific bequests to legatees. Both 

Harold Mildenberger and Bessenyey stated that they also discussed 

a possible sale of an 80-acre parcel but that they did not reach an 

agreement in regard to that property. 
In early March of 1990, Bessenyey met with Harold Mildenberger 

and advised him of the intended sale of the Stock Farm. Although 

Mildenberger remained interested in purchasing the property, he 

indicated that he was not financially able to do so at that time as 

his money was tied up with a deal he was working on in Russia. 

Both Bessenyey and Harold Mildenberger stated in their affidavits 

that they agreed to and in fact did stay in touch with one another 

concerning the sale of the Stock Farm, which was ultimately sold to 

Harold and Bradley Mildenberger in 1992. 

In April of 1990, after Harold Mildenberger indicated he would 

not then be able to obtain financing to purchase the property, Hyde 

and Bessenyey, as co-executors of the estate, entered into an 

agreement appointing Hall & Hall as the Estate's "exclusive agentN 

for selling the Stock Farm and the Brick Barn properties. The 

agreement provided for a four percent commission for a sale to a 

purchascr procured "by or through" Hall & Hall. However, the 

listing agreement also provided the following reservation: 

7. Owner reserves the riqht LO sell to any purchaser 

not ~roduced by or through [Hall & Hal_ll, is (sic) 

aaents sub or co-brokers. without beina liable for the 

payment of a commission or fee to [Hall i Hall] except as 

set forth in this paragraph 7. 

(a) If Owner sells the Propertv to any of the 

individuals/entities set forth in Exhibit H annexed 

hereto, pursuant to a contract entered into within six 

(6) months of the date [Hall & Hall] delivers fifteen 

brochures to Owner pursuant to paragraph 3, Owner shall 

pav to [Hall & Hall1 a fee equal to one half of one 

percent (.5%) of the sales price. 

(b) If Owner sells the Propertv to a purchaser (other 

than one set forth in Schedule H pursuant to a contract 

entered into within the time limit set forth in naraaranh - 3--& 

7 (a)) not produced by or through [Hall & ~ali], Owner 
shall pay to lHall & Halll a fee equal to one and one 

half percent (1.5%) of the sales rice less the amount 

expended by Owner for advertisina and brochures pursuant 

to Paraaraph 3. 

(c) The parties acknowledge the possibility of a dispute 

as to whether or not a purchaser was produced by Owner or 

by or through [Hall & Hall]. Therefore, the parties will 

endeavor to keep each other informed as to any 

communications or negotiations concerning the Property. . . . Further, Owner agrees to keep [Hall & Hall] advised 

as to any independent (i.e. non-broker) inquiries 

concerning the property. 

(d) Except for those prospective purchasers set forth in 

Schedule H, Owner agrees not to actively solicit offers 

for the Property. 

(e) Owner shall consult with [Hall & Hall] on a regular 

basis with regard to any negotiations for a sale of the 

Property to any of those persons set forth in Schedule H 

or to any purchaser not produced by or through [Hall & 

Hall J . 

(f) It shall be a rebuttable presumption that any 

prospective purchaser who in the contract of sale, 

warrants and represents that such purchaser (i) did not 

contact any broker in connection with the sale of the 

Property, and (ii) did not learn about the availability 

of the Property throuqh any promotional efforts of [Hall 

& Halll and who indemnifies Owner with respect to any 

breach of such a representation, is not a purchaser 

produced by or throuqh [Hall & Halll and the provisions 

of this paragraph 7 shall apply with respect to the 

commission to be paid to [Hall & Hall]. . . . It is 

understood and agreed that in connection with any sale to 

the individuals/entities set forth in Exhibit H, such a 

purchaser will be deemed to be produced by Owner . . . . (Emphasis supplied.) 

On October 1, 1992, the date of closing the sale to Harold and 

Bradley Mildenberger, the Estate paid Hall & Hall $83,705.35. This 

amount represented one and one half percent of the sales price less 

$23,544.65 in advertising expenses previously paid to Hall & Hall 

by the Estate. The Estate paid the one and one half percent 

commission to Hall & Hall based on its position that the buyers 
were not "produced by or through" Hall & Hall as required by the 

contract which would allow them a higher commission. 

The Estate contends that the Mildenbergers were neither found 

by nor introduced to the estate by Hall & Hall and, therefore, Hall 

& Hall was not the "procuring cause" of the sale. Harold 

Mildenberger's affidavit states that Francis Bessenyey's original 

offers to sell estate property came at a time when he was 

financially unable to purchase the property and that his subsequent 

purchase of the property came at a time when his financial position 

had changed. The affidavits of both Mildenbergers state that they 

are willing to sign a document to comply with Paragraph 7(f) 

stating they did not learn about the property through any 

promotional effort of Hall & Hall, did not contact any broker in 

connection with the sale and that they are willing to indemnify the 

Estate in the context of that paragraph. 

In contrast, Hall & Hall claims to have been the "procuring 

cause" of the sale and, therefore, that the four percent commission 

should have been paid to them--a difference of $178,750. According 

to Hall & Hall, since the affidavits of the parties directly 

contradict each other, a jury should determine which version of the 

facts is more credible. Hall & Hall argues that it transformed 

Harold Mildenberger from a mere friend of Francis Bessenyey into a 

serious player who eventually bought the property. It further 

argues that the District Court improperly chose between competing 

versions of fact. 

Under Rule 56 (c) , M.R. Civ. P., the issues before a district 
court on a summary judgment motion are (1) whether there is any 

genuine issue of material fact in the case, and (2) if not, whether 

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

Cereck v. Albertsonls, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 

509, 510. The District Court concluded that there were no material 

factual issues and granted summary judgment to defendants on the 

basis that Hall & Hall was not the "procuring cause" of the sale. 

This Court's standard of review of a summary judgment ruling 

is the same as that of a district court. We determine whether the 

record discloses genuine issues of material fact, and, if not, 

whether the moving party is entitled to judgment as a matter of 

law. Rule 56(c), M.R.Civ.P.; Knight v. City of Missoula (1992), 

252 Mont. 232, 243, 827 P.2d 1270, 1276-77. Further, a party 

opposing summary judgment is to be indulged to the extent of all 

inferences which may reasonably be drawn from the record. Jenkins 

v. Hillard (1982), 199 Mont. 1, 5, 647 P.2d 354, 356. 

Thus, our review must initially determine whether there are 

any genuine issues of material fact here. Hall & Hall contend that 

the record, in the form of Roy Rose's deposition testimony, 

establishes that there was a team effort being exerted by Hall & 

Hall, the Estate, and Roy Rose to bring about a sale to the 

Mildenbergers. Hall & Hall further contends that the absence of 

Mildenberger's name on Exhibit "H" is further proof that Hall & 

Hall was the "procuring cause" of the sale. 

There is no conflict in the record that Roy Rose, as manager 

of the Stock Farm and himself a real estate agent, worked together 
with Hall & Hall and the co-executors in an effort to effect a sale 

to the Mildenbergers. However, the uncontradicted evidence in the 

affidavits of Harold Mildenberger and Francis Bessenyey indicates 

that the two long-time friends had discussed a sale of the property 

years before the Estate entered into the agreement between Hall & 

Hall. Mildenberger stated that he initially approached Bessenyey 

as early as 1984 about buying the property from the Estate, but 

that the Estate was not in a position at that time to sell. Later, 

when the Estate was in a position to sell the property, Francis 

Bessenyey first contacted his long-time friend Harold Mildenberger, 

but Mildenberger could not come up with the necessary financing at 

that time. 

It was only after Bessenyey determined that his friend Harold 

Mildenberger could not then purchase the property that the Estate 

decided to list the property with a real estate agent. ~xhibit 

"H," appended to the agreement between the Estate and Hall & Hall, 

is a short list of potential buyers identified by the Estate. 

Under the terms of the agreement, if the Estate sold to one of 

those buyers within six months of the date Hall & Hall delivered a 

copy of the brochure to the Estate, Hall & Hall would receive only 

a commission of one half percent. If such a buyer later was 

procured by the estate, the commission paid to Hall & Hall would 

still be substantial at one and one half percent. The most likely 

inference to be made from the failure to list Mildenberger on 

Exhibit "H" is that the Estate did not believe Mildenberger could 

come up with the necessary financing within six months. Clearly, 
Hall & Hall did not bring the parties together, when the historical 

backdrop of this case is reviewed. 

Francis Bessenyey and Harold Mildenberger subsequently 

negotiated the terms of the sale directly between themselves over 

a number of weeks in 1992 and Mildenberger sent an offer directly 

to Bessenyey. These facts are not disputed by Hall & Hall and Hall 

& Hall has not identified any other material facts which are in 

dispute. We conclude that Hall & Hall has failed to come forward 

with any genuine issues of material fact which would preclude 

summary judgment . 

The question then becomes whether Hall & Hall was the 

"procuring cause" of the sale under Montana law. In its order 

granting summary judgment to defendants, the District Court stated: 

Both Harold and Bradley Mildenberger have stated in their 

affidavits that their knowledge of the availability of 

the Stock Farm for sale did not in any way come from Hall 

& Hall, any advertising due for the estate by Hall & 

Hall, any promotional efforts of Hall & Hall, nor from 

any brochure prepared by Hall & Hall. . . . 

In Lane v. Smith (l992), 255 Mont. 218, 841 P.2d 1143, we 

discussed the "procuring causen doctrine in the context of an 

exclusive listing agreement. We pointed out that the doctrine is 

not confined to non-exclusive listing agreements, but applies in 

a11 situations unless the parties agree otherwise in the listing 

contract. Lane, 841 P.2d at 1147. We stated: 

The procuring cause doctrine permits a broker to show 

that his or her part of the contract was performed and 

that the principal reaped a benefit from the efforts. D. 

Burke, Jr., The Law of Real Estate Brokers, 3 3.4 (1992). 

Lane, 841 P.2d at 1146-47. The listing contract here does not 
contain an agreement to preclude application of the doctrine; thus, 

we must ascertain whether the District Court correctly determined 

whether Hall & Hall was not a "procuring causeu of the sale of the 

Stock Farm. Further, as also noted by the District Court, the 

agreement here was an exclusive asency agreement, not an exclusive 

right to sell agreement. The Estate reserved certain rights in the 

agreement as provided in detail above. 

One of these rights expressly reserved by the Estate was the 

right to sell the property directly to a buyer who was "not 

produced by or through Hall & Hall." In such a case, Hall & Hall 

would still receive a commission, but the percentage would be one 

and one half percent of the selling price rather that the four 

percent of the selling price provided for if Hall & Hall procured 

the purchaser. The District Court concluded that this language was 

essentially the same as the procuring cause doctrine, and that 

under previous Montana cases, Hall & Hall had to establish that it 

found and introduced the Mildenbergers to the Estate, that the 

parties were brought together by Hall & Hall and that the sale 

resulted. See, e.q., Barrett v. Ballard (1980), 191 Mont. 39, 47, 

622 P.2d 180, 185; Flinders v. Gilbert (1963), 141 Mont 442, 448, 

378 P.2d 385, 388; and Shober v. Blackford (1912), 46 Mont. 194, 

208-09, 127 P. 329, 332. 

The District Court then concluded that the undisputed facts 

showed that Hall & Hall was not responsible for finding, 

introducing or bringing the parties together, and further, that the 

undisputed facts showed that Hall & Hall's actions were not even a 
cause of the sale, let alone the procuring cause. 

The record supports these conclusions made by the District 

Court. Harold Mildenberger already knew of the availability of the 

Stock Farm before Hall & Hall signed the agreement with the Estate. 

His knowledge arose from his longstanding relationship with Francis 

Bessenyey and his conversations with him. In order for Hall & Hall 

to recover the full four percent commission under the procuring 

cause doctrine, Hall & Hall must have been, at a minimum, 

responsible for bringing the buyer and seller together. Barrett, 

622 P.2d at 186. There is nothing in the record to support even an 

inkling that the Mildenbergers were produced by or through Hall & 

Hall. 

Nonetheless, Hall & Hall claims to have worked together with 

Roy Rose in keeping Harold Mildenberger informed of all activity 

and interest which occurred or was generated during the time the 

property was listed with it up until the sale. As part of its 

agreement with the Estate, Hall & Hall was active in advertising 

and attempting to procure a buyer for the property. Its efforts in 

keeping Harold Mildenbergerrs interest peaked in the property do 

not indicate that it considered itself the procuring cause. Hall 

& Hall wanted to effect a sale. For a property advertised at over 

$10 million which eventually sold for $7,150,000, even a sale to 

Mildenberger generated a considerable commission for the broker 

here at the one and one half percent rate. As noted by the 

~istrict Court, "it seems clear that this transaction would have 

taken place without any of the efforts attributable to Hall & 
Hall. 'I 

Roy Rose had a contract with the Estate to manage the Stock 

Farm and also initially had a 90-day exclusive listing contract 

should the Estate wish to sell the property. From his testimony in 

his deposition, this listing contract could have "muddied the 

waters" as far as a future sale was concerned. Therefore, as part 

of the deal arranged with Hall & Hall, Rose negotiated an agreement 

with Hall & Hall for ten percent of Hall & Hall's commission in 

exchange for giving up his 90-day listing. The Estate also paid 

Rose a considerable amount ($500,000) to relinquish Rose's 90-day 

exclusive listing so that it could enter into the agreement with 

Hall & Hall. 

Rose testified that he was in fact aware of the longstanding 

relationship between Francis Bessenyey and Harold Mildenberger. 

Although Roy Rose had numerous contacts with the Mildenbergers 

while he was the property manager of the Stock Farm, Harold 

Mildenberger's name was omitted from Exhibit "HI1 and Hall & Hall 

occasionally listed Mildenberger on their reports to the Estate, we 

conclude that these facts are not sufficient to demonstrate that 

Hall & Hall was the procuring cause of the sale to the 

Mildenbergers. 

In addition to these facts, we note also that there were other 

interactions which transpired between the Estate and the 

Mildenbergers during the duration of Hall & Hall's agency 

agreement. Some of these resulted in real property transactions. 

Hall & Hall agents attended an annual party given by Bessenyey 
in Hamilton for social and business acquaintances shortly after the 

beginning of their agreement with the Estate. Harold Mildenberger 

was present at this social gathering. Douglas Hart of Hall & Hall 

stated in his affidavit that he identified Mildenberger as a 

potential buyer at that time and that Hall & Hall mailed a copy of 

their brochure to Mildenberger. This mailing of a copy of the 

brochure, however, was in connection with a possible listing of 

Mildenberger's property in eastern Montana. In addition to this 

contact, another representative of Hall & Hall spoke once with 

Mildenberger over the telephone: at that time Mildenberger advised 

him that he was not in a position to purchase the property, just as 

he had done when first approached by Bessenyey when the Estate 

decided to sell the property in 1990. We conclude that the direct 

contacts between Hall & Hall and Harold Mildenberger are 

inconsequential and irrelevant in this case. We further conclude 

that Hall & Hall was not the procuring cause of the sale of the 

Stock Farm to the Mildenbergers. 

We hold the District Court properly granted summary judgment 

to the defendants. 

Af firmed. 

.Lzvv\/ 

March 22, 1994 

CERTIFICATE OF SERVICE 

I hereby 'certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Rodney T. Hartman, Esq. 

Herndon, Hartman, Sweeney & Halverson, P.C. 

P.O. Box 80270 

Billings, MT 59108-0270 

Patrick G. Frank and W. Carl Mendenhall 

Worden, Thane & Haines, P.C. 

P.O. Box 4747 

Missoula, MT 59806 

ED SMITH 

CLERK OF THE SUPREME COURT 

STA- OF YONTANA 

BY: 

Depu 

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