No. 94-249

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

MARK C. EATINGER, individually and as

Personal Representative of the Estate

of Ruth Eatinger, deceased, BETH ANN

HENDERSON, and JULIE SILVAN,

Plaintiffs and Respondents,

v.

ROBERT L. JOHNSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert L. Johnson (Pro Se) and

Monte Boettger, Attorneys at Law,

Lewistown, Montana

For Respondents:

Torger S. Oaas, Attorney at Law,

Lewistown, Montana

Submitted on Briefs: December 8, 1994

Decided: December 22, 1994

Filed:

Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.

Plaintiffs Mark C. Eatinger, Beth Ann Henderson, and Julie

Silvan filed a complaint in the District Court for the Tenth

Judicial District in Fergus County in which Robert L. Johnson is

named as the defendant. The plaintiffs alleged that they sustained

damages as a result of Johnson's conversion of settlement proceeds

which belonged to them. A jury returned a verdict in the

plaintiffs favor and awarded $17,702.96 as damages. Johnson

appeals from the judgment entered pursuant to the jury's verdict.

We affirm the judgment of the District Court.

The issues on appeal are:

1. Did the District Court err when it denied Johnson's motion

for summary judgment?

2 . Did the District Court abuse its discretion when it

refused to delay trial of the conversion claim until the Probate

Court decided the amount of Johnson's fee?

3 . Did the District Court err when it did not instruct the

jury that an attorney has a right to retain possession of a

client's money until he or she is paid for services rendered?

4. Did the District Court abuse its discretion when it

refused to grant Johnson's motion for a directed verdict?

FACTUAL BACKGROUND

In May of 1989, Ruth Eatinger died after she was hit by a

pickup truck while crossing the street in Lewistown, Montana. She

was survived by plaintiffs Mark C. Eatinger, Beth Ann Henderson,
and Julie Silvan. Mark Eatinger was named the personal

representative of the estate.

The plaintiffs hired attorney Robert L. Johnson to probate

Ruth's estate and to pursue wrongful death and survival claims

against the driver of the vehicle that struck Ruth. There was no

written fee agreement entered into by the parties.

The parties presented contradictory evidence of their

agreement. The plaintiffs claim that they agreed to pay Johnson

the statutorily determined fee for his probate services, but that

he was not to be paid an additional amount for settling the tort

claims. Johnson agrees that he was to receive the statutory fee

for his probate work, but contends that Mrs. Eatinger's survivors

agreed to pay him a percentage of the tort recovery.

Beth and Julie testified that they became dissatisfied with

Johnson and sought advice from a different attorney whom they hired

to pursue the tort claims. Testimony and evidence indicated that

Mark phoned Johnson on January 17, 1990, to terminate his services.

Johnson denied he was terminated at that time, but his letter to

Mark, dated January 23, 1990, confirms a conversation on

January 17, 1990, during which Mark informed him that the

plaintiffs were retaining another attorney. Evidence indicated

that by January 18, 1990, Johnson was offered $95,000 to settle the

tort claims, and that he later received a draft for that amount

which was made payable to the Estate of Ruth Eatinger, and to

Johnson, as the attorney for the estate.
The plaintiffs were surprised when they discovered that

Johnson received the settlement draft because they had hired

another attorney to pursue the claims. Following this discovery,

Beth hand-delivered a letter to Johnson instructing him not to cash

the settlement draft, even though Mark had already endorsed it,

because the plaintiffs' position was that he was no longer their

attorney. By letter, dated January 31, 1990, Johnson responded

that if he received the draft he would endorse it, cash it, and

place the proceeds in a trust account.

Mark also called Johnson and requested that he not negotiate

the settlement draft. Johnson again responded by letter dated

February 1, 1990, and acknowledged Mark's preference that Johnson

do nothing with the insurance money, but stated that he had put the

money in a trust account.

On that same date, Johnson cashed the check, placed the

proceeds in a trust account, and withdrew $2500 from the account

and placed it in his general account. There was evidence that this

money was used to pay his office expenses. Johnson testified that

he withdrew this money to protect the Eatinger estate by paying its

creditors. However, there was a separate estate account to pay

creditors.

Bank records also indicate that on March 6 and 7, 1990,

Johnson withdrew an additional $7000 to, at least in part, cover

two checks he wrote to himself from his general office account.

Without these withdrawals, bank records show that there would have

been insufficient funds in Johnson's account to cover checks he had

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written. Later records establish that Johnson withdrew $2,851.53

earned as interest on the amount remaining in the trust account.

The plaintiffs did not consent to Johnson's disposition of the

settlement proceeds. In February 1990, they hired Tim O'Hare to

represent them in the probate proceeding. O'Hare testified that he

called Johnson and demanded the settlement money in February, but

that Johnson refused to tender it. Johnson denied these

conversations. O'Hare eventually received the funds, but Johnson

asserted a lien on $10,000 to secure payment of his probate fee,

and did not turn over the interest. Later, the Probate Court

decided Johnson was entitled to $5000 as fees for probate services.

After plaintiffs hired yet another attorney to file suit

against Johnson for conversion, Johnson petitioned the Probate

Court to determine the remainder of his fee. The Probate Court

deferred to the District Court as the proper forum for resolution

of the conversion claim and the related attorney fee issue. The

case was tried twice; both times a mistrial resulted. Before the

third trial, Johnson moved for summary judgment and his motion was

denied.

Johnson's testified that he believed he was entitled to a fee

from the settlement proceeds. He claimed that he also had a right

to assert control over additional money because he had an

attorney's lien against the settlement to pay for his probate

services. Johnson claims that the plaintiffs disputed the

appropriate use of the settlement money and, perceiving a conflict,

he decided to put the money in a trust account. He claims that he

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then withdrew from the probate proceeding because he was also a

creditor of the estate. The jury did not accept Johnson's defenses

and rendered a verdict in favor of the plaintiffs. The jury also

awarded plaintiffs compensatory damages, punitive damages, and

costs.

ISSUE 1

Did the District Court err when it denied Johnson's motion for

summary judgment?

Our standard of review of a district court's summary judgment

ruling is identical to the trial court's. Cooper v. Sisters of Charity

(1994) I 875 P.2d 352, 353, 51 St. Rep. 484, 485. We, therefore,

review a summary judgment decision denovo and summary judgment is

only proper 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; Spain-Morrow Ranch, Inc. v. West (19941, 264 Mont.

441, 444, 872 P.2d 330, 331-32.

We have recognized that a claim for conversion must satisfy

the following elements: ownership of property, a right of

possession, unauthorized dominion over that property by another,

and damages that result. Lanev. Dunkle (1988), 231 Mont. 365, 368,

753 P.2d 321, 323.

Johnson argues that the pleadings and supporting documents

establish that he had a right to the money he retained, based on

the parties' agreement and the fact that he settled the case

pursuant to their request. He also contends that the plaintiffs

6
could not establish the elements of ownership and damage essential

to a claim for conversion. We conclude that his arguments are

without merit.

Ownership of proceeds from settlement of wrongful death or

survival claims belongs to the heirs or the estate respectively.

Swansonv. ChampionIntl. Corp. (1982), 197 Mont. 509, 515-18, 646 P.2d

1166, 1169-71. The $95,000 settlement draft in this case was paid

to settle claims against the insured driver in exchange for his

release from claims for wrongful death and personal injury. The

draft was made payable to the Eatinger estate, and to Robert

Johnson as the attorney. However, plaintiffs offered evidence that

there was no agreement to pay Johnson any fee from these proceeds.

The plaintiffs claim that the money, therefore, belonged to them or

the estate, not Robert Johnson. Likewise, the plaintiffs claim

that they, not Johnson, are entitled to the interest that accrued

on the settlement proceeds. See 45 Am. Jur. 2d Interest and Usury § 39

(1969). The plaintiffs introduced sufficient evidence in support

of their claims to create a factual issue regarding ownership.

Therefore, summary judgment for Johnson was correctly denied.

Second, Johnson argues that the Eatinger estate suffered no

damage because it ultimately received the amount to which, in

retrospect, it was entitled. The plaintiffs contend that the fact

that Johnson withdrew funds without consent is sufficient to

establish damages. We agree with the plaintiffs.
Johnson withdrew $9500 in February and March 1990, and

interest in the amount of $2853.51 in October 1990.

Sections 27-l-201 and -202, MCA, provide that detriment is a

loss suffered in person or property and that everyone who suffers

detriment from another's wrongful acts is entitled to damages.

Further, 5 27-l-320, MCA, provides, in relevant part, that

detriment caused by the wrongful conversion of personal property is

presumed to be the value of the property at the time of conversion,

plus interest from that time and a fair compensation for the time

and money expended to pursue recovery of the property. Therefore,

in conversion claims, damages are presumed once the other elements

are established.

Johnson also claims that plaintiffs had no right to the

settlement proceeds because they had not yet signed release

agreements. However, this argument ignores the facts in this case.

The check was made payable to Ruth Eatinger's estate. The heirs of

the estate and its personal representative told Johnson not to cash

the check. Nonetheless, Johnson cashed the check and deposited the

proceeds in a trust account. He then withdrew money from that

account. If an executed release was a prerequisite to use of the

settlement proceeds, certainly Johnson was no more entitled to its

use than the heirs. Furthermore, we have previously recognized

that signing a release is not necessary where parties indicate an

intent to settle a claim and the check endorsed states that it is

for a full and final settlement. SeeBoyerv.Ettelman (1989), 235 Mont.

323, 327-28, 767 F.2d 324, 327.

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The plaintiffs' intent was to settle their claims for

95 percent of the policy limits, which they understood was $95,000.

That purpose was accomplished when the settlement draft was

tendered and Mark Eatinger endorsed it. The draft stated that it

was for a full and final settlement. The fact that a release was

not signed until later is irrelevant to the facts of this case.

For these reasons, Johnson was not entitled to judgment as a

matter of law, and the District Court did not err when it denied

his motion for summary judgment.

ISSUE 2

Did the District Court abuse its d

delay trial of the conversion claim unt

the amount of Johnson's fee?

.iscretion when it refused to

il the Probate Court decided

Our standard of review of a district court order related to

trial administration is whether the district court abused its

discretion. MontanaRailLinkv. Byard (1993), 260 Mont. 331, 337, 860

P.2d 121, 125. Johnson requested that the District Court stay

proceedings in the conversion claim pending a final determination

by the Probate Court regarding attorney fees.

The Probate Court had jurisdiction over and decided the amount

of Johnson's fees for probate of the Eatinger estate. The Probate

Court Judge testified at trial that that court did not have

jurisdiction to decide the attorney fee related to the tort claim.

In an order entered November 30, 1994, which we judicially notice,

the Probate Court noted that Johnson himself previously argued that

the Probate Court lacked jurisdiction over the tort claim fee

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dispute. That court also decided that Johnson was estopped from

asserting a contrary position in the probate proceedings. We

conclude that the District Court did not abuse its discretion when

it refused to stay proceedings in this case.

ISSUE 3

Did the District Court err when it did not instruct the jury

that an attorney has a right to retain possession of a client's

money until he or she is paid for services rendered?

On appeal, we review jury instructions as a whole and in light

of the evidence presented at trial. Pipe Indus. Ins. Fund v. Consolidated Pipe

TradesTrust (1988), 233 Mont. 162, 166, 760 P.2d 711, 715.

Johnson argues that the focal point of his defense was that he

had asserted an attorney's retaining lien, and that even though the

only instruction he offered related to an attorney's charging lien

authorized by 5 37-61-420, MCA, the District Court erred by giving

the charging lien instruction instead of a retaining lien

instruction.

Rule 51, M.R.Civ.P., states, in relevant part, that "[nlo

party may assign as error the failure to instruct on any point of

law unless that party offers an instruction thereon." We have held

that a party is barred from challenging on appeal a court's refusal

to give an instruction if the party fails to object to the

instruction when it is given. &eStutev.Smith (1986), 220 Mont. 364,

381-82, 715 P.2d 1301, 1311. This rule is particularly appropriate

10
under these circumstances where the party challenging the

instruction is the party who offered it.

When Johnson proposed the charging lien instruction, his

counsel stated that he thought the language was broad enough to

cover Johnson's defense. We will not allow Johnson to benefit from

an alleged error he created. We conclude that the District Court

did not abuse its discretion when it did not instruct the jury

regarding an attorney's retaining lien.

ISSUE 4

Did the District Court abuse its discretion when it refused to

grant Johnson's motion for a directed verdict?

A motion for a directed verdict should be granted only if no

evidence warrants submission to the jury, and all factual

inferences are viewed in a light most favorable to the party

opposing the motion. Moralli v. Lake County (1992), 255 Mont. 23, 27,

839 P.2d 1287, 1289. We affirm the District Court's denial of

Johnson's motion for a directed verdict for the same reason we

affirmed denial of his motion for summary judgment.

The judgment of the District Court is affirmed.

We concur: