First National Bank v. Beckstrom

651 P.2d 45, 200 Mont. 323, 1982 Mont. LEXIS 960
CourtMontana Supreme Court
DecidedSeptember 23, 1982
DocketNo. 81-348
StatusPublished
Cited by1 cases

This text of 651 P.2d 45 (First National Bank v. Beckstrom) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank v. Beckstrom, 651 P.2d 45, 200 Mont. 323, 1982 Mont. LEXIS 960 (Mo. 1982).

Opinions

MR. JUSTICE WEBER

delivered the opinion of the Court.

The Beckstroms appeal from the Lincoln County District Court award of costs and attorney fees to the First National Bank in the bank’s action to recover a deficiency on a promissory note.

The bank sued the Beckstroms to recover a deficiency owed on a promissory note. The Beckstroms made, and the bank accepted, an offer of judgment against the Beckstroms in the amount of $27,569.20. The offer of judgment also admitted the Beckstroms’ liability for “costs of collection, including reasonable attorney fees” but reserved any admission as to the exact amount of costs and attorney fees. Agreement could not be reached between the parties as to the allowable costs and attorney fees, and on May 26, 1981, the District Court issued findings of fact, conclusions of law and judgment awarding the bank $5,000 in attorney fees, and collection costs which included a $200 attachment bond premium paid by the bank. From this judgment the Beckstroms appeal. We affirm.

The Beckstroms first contend that the trial court erred in awarding $5,000 to the bank as reasonable attorney fees. Second, the Beckstroms contest the trial court’s taxing the cost of an attachment bond.

The Beckstroms defaulted on a promissory note dated December 3,1976. The bank and John Beckstrom negotiated a new note and executed a security agreement on May 25, 1978. This note provided that the debtor would be liable for collection costs, including reasonable attorney fees, upon default. (Mrs. Beckstrom did not sign this note or security agreement.) Mr. Beckstrom defaulted on this second note, [325]*325and the bank repossessed and sold the security to recover the $53,799.20 balance owing on the note. The sale left a deficiency of $28,779.20 with interest running as of August 15, 1980. The bank retained the services of David Harman, a Libby attorney, to collect the deficiency. Suit was filed against the Beckstroms on September 26, 1980. Harman and the bank entered into a contingent fee contract which would allow Harman to keep 33 1/3 percent of the amount collected, if collection was made before trial.

The Beckstrom’s answer contained three defenses which necessitated some degree of research and investigation by Harman. The bank then filed a series of motions of judgment on the pleadings, partial summary judgment, and motion in limine.

The bank, through attorney Harman, discovered that the Beckstroms owned unmortgaged land which could provide a corpus from which the deficiency could be satisfied. Upon learning of a possible attempt by the Beckstroms to transfer some property to third persons in order to hinder creditors, the attorney for the bank decided to attach the unmortgaged real property. Section 27-18-204, MCA, requires an attaching plaintiff to provide at least two court approved sureties before it allows attachment. The bank agreed to act as its own surety, and also purchased another surety bond for $200 to satisfy section 27-18-204, MCA. The attachment was contested by the Beckstroms, which required additional work on the part of Harman to defend the writ of attachment.

After obtaining a new attorney, the Beckstroms made their offer of judgment which was accepted by the bank, reserving only the issue of costs and attorney fees. The trial court, after an evidentiary hearing, allowed $5,000 in attorney fees to Harman, and also allowed the $200 attachment bond premium to be assessed as costs against the Beckstroms.

COSTS OF ATTACHMENT BOND

The Beckstroms contend that because attachment was [326]*326merely one possible legal option available to the bank, and not an absolute necessity, the cost of obtaining the attachment bond is not chargeable to them. We disagree.

Under the terms of the promissory note, as well as the offer of judgment, the Beckstroms are liable for the “costs of collection.” This phrase includes only those costs which were reasonably and necessarily incurred by the bank. The bank pursued the attachment only after learning of certain transfers of real property by the Beckstroms. The bank’s attorney then felt that attachment was necessary to safeguard the interest of his client. This was not done as a mere convenience, rather, it was necessary to secure collection. There is no evidence of overreaching or harassment by the bank. In purchasing an attachment bond, the bank was merely complying with the express terms of section 27-18-204, MCA. We affirm the trial court’s determination that the cost of the attachment bond was chargeable to the Beckstroms.

AWARD OF ATTORNEY FEES

The Beckstroms contend that many of the fifty hours claimed by the bank’s attorney were unnecessary, and were incurred only because of the bank’s “sloppy” banking practices. We find no merit in this contention. The Beckstroms chose to raise certain defenses when sued by the bank. This required the attorney for the bank to spend many hours investigating and researching the validity of the defenses. Only when the case was ready for trial did the Beckstroms abandon the defenses by offering judgment against themselves. There is no basis therefore for the Beckstrom’s assertion that many of the hours claimed by the bank’s attorney were unnecessary.

The Beckstroms also contend that the trial court abused its discretion in awarding $5,000 as reasonable attorney fees because there was no substantial evidence to indicate that such an amount was reasonable. We disagree.

We have repeatedly stated what circumstances are to be considered in awarding reasonable attorney fees;

[327]*327“ ‘The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time, and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of property to be affected, the professional skill and experience called for, the character and standing in the profession of the attorneys. * * The result secured by the services of the attorneys may be considered as an important element in determining their value.’ ” Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 119-120, 541 P.2d 56, 59.

The findings of fact and conclusions of the District Court based upon trial without a jury contain the following findings of fact with regard to attorney fees:

“6. Plaintiff has hired David W. Harman, of Libby, Montana, to represent them in this cause. The note in question provides that the Defendants will pay reasonable attorney’s fees. In this regard, the Court finds:

“a. That the Plaintiff and Mr. Harman made a contingent fee agreement which is not binding on the Court but is indication of the agreement between the Parties.

“b. That to the time of hearing hereof, the Plaintiff’s counsel had expended at least fifty (50) hours of time and it is likely that continued effort will be needed herein.

“c. That the Defendant’s action have raised a number of rather unique questions of law into this proceeding, namely the status of a homestead exemption, the motion to dissolve attachment, the transfer of assets to third persons and the question of whether collection costs include the surety bond.

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Bluebook (online)
651 P.2d 45, 200 Mont. 323, 1982 Mont. LEXIS 960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-beckstrom-mont-1982.