No. 91-496 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JAMES LANE, DEANNA LANE, d/b/a REALTY WEST, 

LANE ASSOCIATES, 

Plaintiffs and Respondents, 

H. W. SMITH, JR., and ELIZABETH A. SMITH 

and EDWARD C. KIBLER and DIANNA M. KIBLER, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable James E. Purcell, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. J. "Jim1' Sewell, Jr., Smith Law Firm, Helena, 

Montana 

For Respondent: 

Douglas Buxbaum, Poore, Roth & Robinson, Butte, 

ntana 1 ii% 

?:0Vl6 1992 Submitted on Briefs: July 30, 1992 

Decided: November 16, 1992 

CIJPREME COURT !- $-. ?i%p OF MONTANA 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a judgment by the Third Judicial 

District Court, Powell County, granting plaintiffs' motion for 

partial summary judgment and denying defendants' motion for summary 

judgment. We affirm. 

The issues on appeal are: 

1. Was summary judgment appropriate where a realtor ' s 

commission was claimed? 

2. Did the District Court err in granting summary judgment to 

plaintiffs? 

3. Did the District Court err in awarding attorney's fees to 

plaintiffs? 

H.W. Smith, Jr. and Elizabeth Smith (Smiths) owned the AVOn 

Family Cafe in Avon, Montana. The Smiths wished to sell this 

property and listed it with brokers James Lane and Deanna Lane 

(Lanes) who are realtors with Realty West, Lane and Associates. 

The Listing Agreement was signed on June 20, 1986 and was to expire 

on June 20, 1987 with a 90-day grace period in which the terms were 

to be effective. Subsequently, the Lanes advertised the property 

and Edward C. and Diana M. Kibler (Kiblers) answered the ad. The 

Lanes showed the property to the Kiblers and although interested, 

the Kiblers could not afford a downpayment on the property. 

The Kiblers were, however, interested in a Lease-Purchase 

Agreement which was agreed to within the time parameters of the 

Listing Agreement on September 5, 1986, after negotiations with the 

Smiths. The Lease-Purchase Agreement, drawn up by the Lanes' 

2 
attorney and containing a provision that the Lanes receive a 

commission if the option was exercised, was effective for two years 

ending October 1, 1988. A provision in the Lease-Purchase 

Agreement also provided for a partial commission payment of $1,000. 

Such partial payment was made. The agreement provided the terms 

under which the option could be exercised, and provided for 90 

daysr notice to the lessors when the lessees decided to exercise 

the option to buy. 

The Smiths approached the Kiblers on July 3, 1988, before the 

Lease-Purchase Agreement expired, and wanted to know if the Kiblers 

intended to exercise their option. Subsequently, negotiations 

between the Smiths and Kiblers ensued and a title commitment on the 

property was issued on September 28, 1988, two days before the 

Lease-Purchase Agreement expired. The closing transaction took 

place on October 7, 1988, seven days after the expiration date 

specified in the agreement. 

The Smiths refused to pay the remaining portion of the 

broker's fee. The Lanes initiated this action on October 28, 1988. 

The parties filed cross motions for summary judgment. The court 

held a hearing on May 17, 1991 and granted summary judgment to the 

Lanes on June 3, 1991. The Smiths appeal the summary judgment 

entered against them. 

1. Was summary judgment appropriate where a realtor's 

commission was claimed? 

The Smiths argue on appeal that the District Court should not 

have considered summary judgment at all because summary judgment is 
inappropriate where determination of a realtor's commission is at 

issue. The Smiths did not argue this to the ~istrict Court. We 

will not address this issue because it was not raised at the 

District 

Warner & 

Did 

Court level. See Weaver v. Law Firm of Graybill, Ostrem, 

Crotty (1990), 246 Mont. 175, 803 P.2d 1089. 

the District Court err in granting summary judgment 

to plaintiffs? 

Our standard of review on appeal from a grant of summary 

judgment is a two-pronged determination: we consider whether there 

are genuine issues of material fact and whether the movant is 

entitled to judgment as a matter of law. Payne Realty & Housing v. 

First Security Bank of Livingston (1991), 247 Mont. 374, 807 P.2d 

177. To be successful, the movant for summary judgment must show 

clearly what the truth is. Berens v. Wilson (l99O), 246 Mont. 269, 

806 P.2d 14. Once this is done, it is incumbent on the non-moving 

party to come forward with substantial evidence demonstrating there 

are genuine issues of material fact which preclude summary 

judgment. Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 

797 P.2d 232. 

The District Court determined that the Lanes performed their 

obligation under the Listing Agreement by procuring a buyer to whom 

the property was sold or conveyed on terms acceptable to the 

Smiths. The court found no genuine issues of material fact. We 

agree. 

The undisputed material facts contained in the contracts 

involved are: the Smiths are the sellers who executed an exclusive 

4 
one-year Listing Agreement with the Lanes as their brokers on June 

20, 1986, containing the following pertinent provisions: 

In the event that [Lanes], or any other brokers 

cooperating with you, shall find a buyer ready and 

willing to enter into a deal for said price and terms, or 

such other terms and price as I may accept, or that 

during your employment you supply me the name of or place 

me in contact with a buyer to or through whom at any time 

within 90 days after termination of said employment I may 

sell or convey said property, I hereby agree to pay you 

in cash for your services a commission equal in amount to 

six percent of the above stated selling price. 

The purchasers were the Kiblers who leased the property first and 

finally exercised an option to buy the property. The LeasePurchase Agreement in which the option is contained was executed on 

September 5, 1986, within the time parameters of the Listing 

Agreement, and it contained a provision that the Lanes immediately 

receive a partial commission plus the remainder when the purchasers 

exercised their option. 

The title commitment was issued on September 28, 1988, two 

days before the Lease-Purchase Agreement expired and the 

transaction was closed on October 7, 1988, seven days after the 

expiration date of the Lease-Purchase Agreement. The terms of the 

final sale varied somewhat from the Lease-Purchase Agreement. The 

Smiths refused to pay the remainder of the commission. 

On appeal, the Smiths argue that genuine issues of material 

fact preclude summary judgment. We note that argument was not 

presented at the District Court level. Smiths argue that there is 

a question of fact as to the source from which the commission was 

to be paid. We conclude that the determination of that question is 

not required in this case. We have reviewed the record and 

5 
conclude there are no genuine issues of material fact concerning 

the contract issues which are presented by this case. 

The District Court further determined that the Lanes were 

entitled to summary judgment as a matter of law. The court 

concluded that the Lanes had performed under their Listing 

Agreement because they procured a buyer for the property on terms 

which were acceptable to the seller. Further, the court concluded 

that the date of the sale must relate back to the time the original 

option to purchase was given, which, in this case, was within the 

time frame of the Listing Agreement. The court also concluded that 

the 90-day notice provision in the Lease-Purchase Agreement was 

inserted for lessors' benefit and since the lessor negotiated the 

sale, they had notice despite the lack of a formal 90-day notice. 

The court concluded finally that because the Smiths refused to pay 

the Lanes the remainder of their commission, the Smiths had 

breached the Listing Agreement. 

Appellants contend that the Listing Agreement is an exclusive 

Listing Agreement and, therefore, 'procuring cause ' is an 

inappropriate test to use in determining whether a commission is 

due. Appellants cite Flinders v. Gilbert (1963), 141 Mont. 442, 

378 P.2d 385, for this proposition. The listing agreement in 

Flinders was a non-exclusive listing agreement where determination 

of the 'procuring cause' among many brokers was a necesasry 

determination. Respondents argue, and we agree, that Flinders does 

not hold that 'procuring cause' is only appropriate to nonexclusive listing agreements. 
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. 3.4 (1992) . The doctrine is not confined to 

consideration of non-exclusive listing agreements; it applies in 

all situations unless the parties agree otherwise in the listing 

contract. Id. 

Here, the contract contains no such prohibitive provision. 

The District Court determined that because the brokers had 

performed their contractual agreement, they were the procuring 

cause of the sale. We conclude that the brokers produced the 

Kiblers who purchasedthe property during the required period under 

the ~isting Agreement. We further conclude that the Lease-Purchase 

contained a provision granting the Lanes their commission and that 

the Kiblers bought the property. 

Other jurisdictions have used the procuring cause doctrine in 

tandem with an exclusive listing agreement. Humphrey v. Knobel 

(Nev. 1962), 369 P.2d 872; Fox. v. Stewart (I11.App. 1980), 414 

N.E.2d 881. These cases, along with recognized treatises, indicate 

that one instance in which procuring cause is appropriate is in 

regard to the change of purchase price from a listing agreement to 

final sales terms. D. Burke, Jr., Law of Real Estate Brokers, 5 

3.4 (1992). The change in the final terms of the purchase does not 

automatically eliminate the broker's commission as appellants 

contend. All that is necessary for the broker to receive his 

commission is that the seller and buyer were brought together by 
the broker: 

Where an agent contracts to furnish a purchaser for land 

at a stipulated price and such agent does furnish a 

purchaser whom the owner accepts, and in the negotiations 

of the contract the owner agrees upon and accepts a 

different price from that at which the agent was 

instructed to sell, still such agent would be entitled to 

his compensation . . . 

Barrett v. Ballard (l98O), 191 Mont. 39, 47, 622 P. 2d 180, 185; 

citing Shober v, Blackford (1912), 46 Mont. 194, 127 P. 329. Both 

parties agree that the buyer and seller were brought together by 

the ad placed by the Lanes. 

The terms of the initial contract clearly state that the Lanes 

are due a commission either on the terms listed in the agreement, 

or any other terms that the sellers accept. The sellers accepted 

the terms of the Lease-Purchase Agreement made within the time 

frame of the Listing Agreement. The sellers also accepted the 

final terms of the sales contract, agreed to within the time frame 

of the Lease-Purchase Agreement, which provided the Lanes a 

commission. 

We conclude that the Lanes met their responsibilities under 

the contract and were the procuring cause of the sale and that the 

different final contract terms do not deprive the Lanes of their 

commission, 

The District Court further concluded that the date of the sale 

must relate back to the signing of this Lease-Purchase Agreement. 

The Smiths argue that this is inappropriate--the transaction was 

closed seven days after the termination of the Lease-Purchase 

Agreement and the Lanes are not entitled to a commission. The 
Lanes argue that other jurisdictions have determined that when an 

option is exercised, the date of sale relates back to the time the 

option was given. 

The Lease-Purchase Agreement granted a commission to the Lanes 

if the Kiblers exercised their option to purchase. Basic fairness 

dictates that the date of sale relate back to the date the option 

was created in the Lease-Purchase Agreement. The payment of the 

partial commission to the Lanes demonstrates agreement between the 

parties that the Lanes were responsible for the sale to the 

Kiblers. 

Other jurisdictions have reached the same results. In a case 

almost identical to the facts before us, the California Court of 

Appeals held that the date of final sale relates back to the date 

the option was given: 

It is well established that an option is not a sale of 

property, but rather a sale of a right to purchase. The 

option becomes a contract of sale binding on both parties 

only on acceptance of the option by the optionee. This 

does not mean. however, that a new contract is in fact 

made by and at the time of the acceptance. On the 

contrary, the contract has already been made as far as 

the optionor is concerned, but is merely subiect to 

conditions which are removed by acceptance. [Emphasis 

added. ] 

Anthony v. Enzler (CA App. 1976), 132 Cal.Rptr. 553, 556. The 

court went on to hold that where options to buy property were 

granted and executed before the expiration date of the listing 

agreement, brokers were entitled to commission when the buyer 

exercised the option, even though the option was not exercised 

until after the expiration date of the listing agreement. 

Anthony, 132 Cal.Rptr. at 557. 
We conclude that when negotiated within the time parameters of 

a listing agreement, the date on which a lease-purchase agreement 

is entered into is the effective date of sale for purposes of 

determining a broker's commission. 

Appellants further argue that the Lanes are not due a 

commission because the Kiblers did not execute a notice of intent 

to buy 90 days before the exercise of the option as the contract 

requires. The court concluded that the purpose of the provision in 

the contract was to notice the lessors (Smiths), and the lack of 

notice does not affect the broker's commission. 

We conclude that the District Court was correct. The 90-day 

notice provision of the Lease-Purchase Agreement was for the 

benefit of the Smiths. See Zaniewski v. Mancinone (Conn. 1981), 

435 A.2d 50. Thus, the lack of notice does not affect the Lanes1 

commission because the Smiths knew about the sale as they alone 

negotiated the final terms of the agreement. 

Finally, we conclude that the Lanes have performed their 

duties under the ~isting Agreement by procuring a buyer on terms 

acceptable to the smiths and are entitled to their commission. We 

further conclude that by refusing to pay the remainder of the 

commission owed to the Lanes, the Smiths have materially breached 

their contract and the Lanes are entitled to judgment as a matter 

of law. 

Under these facts, we hold that the District Court did not err 

in granting summary judgment to the plaintiffs. 
Did the District Court err in awarding attorney's fees to 

the plaintiffs? 

The District Court concluded that because the Smiths had 

breached the Listing Agreement, and because the Lanes were obliged 

to enter into litigation to obtain their commission, the Lanes were 

entitled to reasonable attorney's fees according to the provision 

of the Listing Agreement. 

Attorney's fees are properly awarded only when contractually 

or statutorily provided. Ehly v. Cady (1984), 212 Mont. 82, 687 

P.2d 687. Here, the contract specifically states: 

In case of suit or action on this contract, it is agreed 

between us that the court, whether trial or appellate, 

may allow the prevailing party such sum as may be 

adjudged that party's reasonable attorney's fees. 

This language is clear and unambiguous. Where the language is 

clear, the court need only enforce the contract. Keller v. Dooling 

(1991), 248 Mont. 535, 813 P.2d 437. 

We hold that the District Court did not err in awarding 

attorney's fees to the plaintiffs. 

We Concur: 
I hereby 

named: 

November 16, 1992 

CERTIFICATE OF SERVICE 

certify that the following order was sent by United States mail, prepaid, to the following 

R.J. "Jim" Sewell, Jr. 

Smith Law Firm 

P.O. Box 604 

Helena, MT 59624 

Douglas Buxbaum 

Poore, Roth & Robinson 

1341 Harrison Ave. 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATR OF MONTANA