ENGEL v WAGNER
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No. 96-357 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997 JOSEPH C. ENGEL, Plaintiff, Respondent, Counterclaim Defendant, and Cross-Appellant, v. DARLENE WAGNER, a/k/a DARLENE FRANSSON, Defendant, Counterclaimant, and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable C. B. McNeil, Judge presiding. COUNSEL OF RECORD: For Appellant: Anne Biby and Sean Hinchey; Bottomly Law Offices; Kalispell, For Montana Respondent: James C. Bartlett; Hash, O'Brien & Bartlett; Kalispell, Montana Submitted on Briefs: Decided: Filed: January March 16, 25, 1997 1997 Justice Terry N. Trieweiler Pursuant to 1995 Internal cited result to I, Paragraph 3(c), Rules, Operating with the the Section as precedent document delivered and shall the Clerk State of Reporter the Court. Supreme decision shall by its Supreme Court Publishing of Montana following be published the opinion filing Court not as a public and by a report Company and be West of its Publishing Company. Joseph in the C. Engel District Flathead Darlene any of against of fiduciary to trial, District Court attorney-client his the District Court fiduciary Court awarded Wagner Wagner appeals and Engel We affirm District Court ruled in for as ruled After damages cross-appeals part, further Wagner raises of a matter reverse had breached Engel's breach proceedings the 2 following law, it trial, in judgment. there dismissed counterclaims. Engel the and granted summary a non-jury for alleged Court Accordingly, that to lawsuit and judgment part, and consistent opinion. On appeal, entitled malpractice, partial that, he was a prior District misrepresentation duties. Court. for relationship. and during in that was not duties, of malpractice District counterclaimed the the Wagner Wagner cross-motions Wagner's judgment to decide he obtained parties' no Judicial Court and that the was and District Prior Engel, Wagner, Eleventh breach For a declaratory Homes. Log contract, of the for proceeds misrepresentation. several the attorney, settlement Glacier breach for He asked Wagner's the a complaint Court County. not filed issues: For a contract the District of of contract. the District remand to with the this 1. Did judgment the District Court to Engel regarding 2. Did the 3. Did attorney recovery from Glacier Did sanctions the District Court discovery conversations On cross-appeal, Did the relationship to award duties? when it from issue? declined held that Wagner's err when it Engel is of the share held abuses in a prior Court 1. summary Log Homes? Did the District breached err entirely tape-recorded granted when it and costs Log Homes belong 5. it of fiduciary Court fees awarded for Glacier err breach the District to 4. Court Engel's entitled when the attorney-client District Wagner damages for err to Engel, err Engel raises lawsuit excluded District of the parties? issues: err Court against evidence the following District the the attorney? when it between that held Court when it that Engel awarded Wagner a contract? Did 2. prejudgment the Wagner's when it interest? Did the District 3. err claim of champerty Court err is void because against when it declined public policy to hold that on the grounds and maintenance? FACTUAL BACKGROUND Darlene Wagner and William joint business time in the promotion Inc. agreed enterprises 1980s. in the Flathead One of their joint and sale of log homes manufactured Shrewsbury that Shrewsbury Valley for ventures a period involved of the by Glacier Log Homes, the owner of Glacier and Buck Foster, Shrewsbury were engaged in various Log Homes, would receive 3 a ten percent commission for the log homes which Wagner's contributions, rights to to collect the falling of through his efforts. assigned As a result in writing, the with commissions. Glacier to her, of Log Homes and Shrewsbury the between arose the sold Shrewsbury one-half A dispute regard were commissions. After commissions they initiated When Wagner learned that a Shrewsbury time, because his original In January, met with and fee contingency party to standing to to adequately agreement agreement. 2, which against to Glacier and Wagner, after Engel one-third contingency fee) and states, in After incurred witness relevant attorney (such fees), part, from to She the case. into a signatory formally that her did documented expenses, necessary 4 to made a not rights have were of be split out The his entered the equally attorney contract into attorney deposition expenses an underlying between fees expressly as follows: fees, as travel documented a Shrewsbury. and Wagner takes costs. At Engel. entered she proceeds Log Homes are Shrewsbury that but Engel, the Homes. attorney, about was not her assignment that provides new Joseph and was not lawsuit, Shrewsbury, a they Wagner advised the by the 1991, and agreement Engel a party locate information Shrewsbury retainer protected On July lawsuit retainer Log Shrewsbury. attorney with had a problems. Wagner contacted lawsuit. be to had health him Glacier she contacted Wagner contacted fee the asked and Shrewsbury against lawsuit, provided Engel contingency the Wagner lawsuit attorney 1990, him Ultimately, the of them, attempted out. Shrewsbury owed to unsuccessfully expenses costs and for William (a and Darlene Wagner, the balance of the Shrewsbury At the recovery in whatever form shall be split in half. time Mr. Engel receives his fees and expenses, he shall have authority to pay Darlene Wagner directly her portion (50%) and William Shrewsbury his portion (50%). Darlene Wagner will be paid directly by Joseph Engel from the recovery without the recovery first going to William Shrewsbury for distribution. The contract also from $1,500, Glacier to Log trial, Homes that testify. in the to date, settlement at order to an additional repay the her for a Shrewsbury of paid all of discovery 1992. from abuses. However, shortly to travel to Montana to settled the case. The $1,300 in Homes cash; also and (2) to Engel paid a log the sanctions. Engel Shrewsbury's Shrewsbury sanctions Engel 1992, Glacier for for on May 4, (1) settlement, $8,700 refused included: awarded recovered of commence $27,247. previously After amount on May 1, package valued Engel to receive successfully Shrewsbury Therefore, amount is in share, Engel was scheduled home Wagner debt. Prior before that Shrewsbury's preexisting Trial specifies received interest $5,000. Wagner an in did assignment the not case. receive from In return, any of the and demanded her proceeds. Wagner share of the negotiate subsequently proceeds. to any that of judgment in settlement which his settlement Wagner As a result, Wagner was not the of the However, a resolution. a declaratory decide learned he client proceeds. 5 and Engel Engel asked filed the and that Wagner were unable a complaint District she was not counterclaimed Court to for to entitled and alleged breach malpractice, parties District filed Court attorney-client also judgment Wagner's and breach of After fiduciary for duties, by duties. it is the plus $1,300 as sum of cash that because attorney fees, the Court to judgment. there was District Court her granted breach summary of contract counterclaims. the of District Court contract, but When the District that the [the .'I log $8,700 sanctions it should not be included for the Court form Glacier at the District Court made the $27,247 the designated settlement following findings: 12. That pursuant to [Engel's] contingent fee agreement with Shrewsbury, [Engell is entitled to one-third of the amount of Shrewsbury's recovery [$28,547.00] which is the $9,515.00 and costs sum of advanced in the sum of $1,000.00. 13. That pursuant to the July 2, 1991 agreement between [Wagner] and Shrewsbury, [Engel] is entitled to [Engel], first deduct his attorney fee and costs owed by Shrewsbury in the total amount of $10,515.00 from the total recovery of $28,547.00 for Shrewsbury from Glacier Log Homes, resulting in net proceeds of $18,032.00 to be divided and paid according to the July 2, 1991 agreement. 6 Log specifically had been in his calculated home valued award Wagner in whatever in The District the damages Court "recovery attorney $28,547.00 no awarded amount. As a result, no misrepresentation and regard Shrewsbury's payment] law basis, District with determined [Engell Home case the breach fiduciary obtained the summary of malpractice trial, Engel's partial a matter On that duties a nonjury damages, as behalf fiduciary Wagner's found of for as Furthermore, on Wagner's of that relationship. counterclaims. damages breach cross-motions held dismissed breach contract, and misrepresentation. Both The of 14. is entitled to 50% of said sum, or That [Wagner] $9,016.00, plus the sum of $1,500.00 as provided in said agreement, for a total of $10,516.00 which should have been paid by [Engel] to [Wagner] within a reasonable time after the settlement of the Glacier Log Homes lawsuit May 1, 1992. Wagner District appeals and Engel cross-appeals the judgment of the by 56(c), Court. STANDARDS OF REVIEW Rulings on M.R.Civ.P., summary which judgment provides, in are governed relevant Rule part: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The purpose of economy through the summary judgment is controversy it is 896, is to D'Ayostino well facts which encourage trial judicial trial; however, a genuine if (1980), the 190, offered the moving as a matter absence (lPPO), the that Interstate of of factual 189 Mont. genuine 284, 288, prove All proof must reasonable be resolved 7 must that To do this, it factual issues. 442, party 784 must factual Bank of Missoula 191. law. 435, nonmoving a party any genuine 240 Mont. motion, demonstrate O'Bagy v. First the that a judgment Swanson To defeat from for Reaves v. Reinbold show a complete v. 785 P.2d to any unnecessary a substitute established to 924. 46, not of is 898 entitled required judgment elimination exists. 615 P.2d It summary (1990), inferences in issue favor that of P.2d set is 919, forth exists. 241 Mont. 44, may be drawn the nonmoving D'Agostino, party. if Additionally, 240 there summary judgment (1989), 238 Mont. to review the is Union Coal When we review standard of Dairies v. review is whether (1995), Knight Did Engel the District regarding the The District was never basis, the the judgment Court when it first a fact 320, granted exists basis. as at 680, fact, the erroneous. 904, summary 906. judgment of in law, motion that the summary that of delineates On that for summary issue. there therefore, "[Engel] time." relationship for to issue? Engel's a question 8 898 P.2d 888 P.2d any point proposition, then v. clearly a matter on appeal motion She County of relationship that, is 469, granted attorney-client Engel's as a general 324, of 1 granted and standard Carbon 459, not When we the are that, contends relationship case-by-case the law, findings when it [Wagner] Court however, asserts, client for to material erred ruled attorney pertaining of err necessary is findings attorney-client District Wagner, issues Court were review. court's ISSUE Clark it correct. 271 Mont. 269 Mont. v. the which of of are those 924. of Whitehawk standards a district at propriety issues conclusions (1995), the Therefore, conclusions Co. P.2d 486-87. involves applicable those 484, rulings. court's whether Reserve 686. 776 P.2d judgment a district review be denied. should appeal other 784 regarding 18, this delineate 442, it 14, by summary at any doubt motion, Additionally, resolved is Mont. are genuine District Court judgment. Wagner whether fact to the an attorneybe decided following on six factors which she maintains determination as to whether (1) the consulting (2) the fact existence party of to the attorney; relationship the in a particular six-factor provides effective After test aforementioned erred of is of confidential reasonable of the belief of the that fact when it granted Court's misrepresentation, we conclude with regard relationship dismissal and punitive to on Engel's that it there each are of the the District behalf with issue. as a result of that we hold that summary judgment that we conclude while case. Accordingly, we conclude depend on Furthermore, case. record, factors. necessarily exhaustive, in this to the attorney-client District by the Whether an attorney-client that not material six Furthermore, (3) the the existence case will of guidance a review issues or services; (4) payment who asserts party's exists: advice; or disbursal assertions. and circumstances Wagner's legal parties; (5) the receipt Wagner's exists facts gives advice a by the attorney. We agree with regard between and (6) the consulting she was represented Court actually when making relationship to seek legal to or from the person relationship; genuine intent the attorney a contract be considered an attorney-client party's that information the should of our holding Wagner's damages counterclaims the malpractice, must also be reversed. ISSUE 2 Did the District damages for Engel's Court breach err when it of fiduciary 9 declined duties? to award Wagner Prior to trial, Wagner's behalf fiduciary the the District with duties District regard to her but granted breach of After counterclaims. Court contract, Court awarded summary a non-jury her for her dismissed damages breach of on and breach contract judgment of trial, however, Engel's breach fiduciary of duties counterclaim. Wagner On appeal, it dismissed Engel's the her breach summary Court judgment had, in fact, Court's law Wagner breach, she well of had there liability causing 446 52, At prove District Engel's to P.2d the a "law damages for that its prior of harm legal that, not of v. Negaard not of the damages. that but Feda It for only defendant he did as a result require by that and that however, damages, duty is every imposes proximately 152 Mont. (1968), 439-40. the opportunity close of that she contract, but as duties compensable does concluded of At established The ruling, recovery Wagner had the Court compensable her reversed fiduciary legally plaintiff." damages. breach when she asserts ruling to prove any be 436, judgment duties. obligation a breach trial, her those that injury 47, erred award and improperly owed Wagner suffered must for to Court Specifically, summary Engel her established injury duties. arbitrarily breached relieve District ruling. of a matter the and failed fiduciary The District as that counterclaim of District contends the result that of 10 to all was the submit evidence, entitled she did Engel's evidence not however, to the damages for suffer breach and to any legally of fiduciary duties. It was, dismiss therefore, Wagner's breach Accordingly, it declined duties of and instead that the her for the District to attorney Glacier fees Court Court Engel's Court to did not breach err of when fiduciary counterclaim. 3 err when it from and costs District counterclaim. District Wagner damages dismissed the duties ISSUE Did for fiduciary we hold to award proper held Wagner's that share Engel of the is entitled recovery from Log Homes? When damages, the it District held Court calculated and awarded Wagner's that: [Engel] is entitled to first deduct his attorney fee and owed by Shrewsbury in the total amount of costs $10,515.00 from the total recovery of $28,547.00 for Shrewsbury from Glacier Log Homes, resulting in net proceeds of $18,032.00 to be divided and paid according to the July 2, 1991 agreement. On appeal, it held share that of expressly Engel was not the rendered an subsequently relationship, deduct his if District fees Specifically, Engel to Wagner's "first its fee when his from her that when the attorney deduct it that summary is Wagner's established relationship. we conclude and costs fee and asserts prior erred judgment ruling attorney. on remand determined Court she we recognize attorney-client attorney the attorney to contradicted outset, moot that entitled allowed it At fact, is contends recovery. Court costs," that Engel the District Wagner that that and there Engel costs." 11 argument that However, was is The not still an be was, in it is there even if attorney-client entitled parties' could to July 2, "first 1991, contract expressly attornev fees, balance of in documented the (Emphasis states, recovery added.) relevant attornev form pursuant Therefore, share of fees first we hold Accordingly, it determined from recovery that of to that the is Engel share Wagner's is . incurred shall to "After follows: the be split parties' the in contract, be calculated half." deducted. are the as exoenses whatever in Wagner's part, entitled the District Court to after attorney recovery from Glacier did Engel's not err fees when and costs Log Homes. ISSUE 4 Did the awarded Court discovery for District abuses Homes belong entirely When the that the to District in $28,547.00 [the payment]." The District the sanctions $8,700 designated amount of as log award Glacier sanctions Glacier damages, obtained by Log Home case at it against Wagner's $27,247 plus specifically fees, the Log attorney? form against that lawsuit calculated Court held concluded Glacier should the as sum of $1,300 that Log Homes be cash because included not held [Engel] is the it had been in the "recovery." determined Wagner that amount of award is a part contends the "recovery." therefore, the home valued attorney On appeal, it Engel, the it a prior whatever in attorney when in Court "recovery Shrewsbury's err it that sanctions the should Specifically, of should the District not Court be she asserts "recovery be distributed in whatever accordingly. 12 erred included that form" when in the and the $8,700 that, We recognize against Glacier fact, that that, Log Homes in designate fact when the District designation, the underlying them as "attorney is not dispositive the fees." of this sanctions Court awarded lawsuit, However, issue sanctions it did, we conclude and that, award does not belong despite entirely in that that to the attorney. We agree Hamilton v. with Ford Motor that case, that an attorney addition the court of provided the the court the (D. C. Cir. D. C. Circuit 1980), recognized seek that compensation in the contract contract." 1959), Comm'n (Iowa Court 745. 636 F.2d "[ilt In is elementary from the client . . . [is] in and to be covered 636 F.2d at 748 265 F.2d 377; Carmichael 1974), in between the attorney Hamilton, (Il. C. Cir. Highway of [A]11 compensation In re Laughlin State Co. initially . . terms reasoning may not to that the client the the by (citing v. Iowa Ultimately, 219 N.W. 2d 658). held: [Albsent a provision in the [attorney-client] contract allocating Rule 37(b) [discovery abuse sanctions] awards of attorney's fees, the plain terms of the Retainer Agreement in this case provide that the one-third contingency fee is the sole source of compensation for the attorneys. Hamilton, 636 F.2d at 748. With Homes, With regard Shrewsbury regard to to the underlying and Engel Engel's entered compensation, lawsuit into their against Glacier a retainer agreement. agreement stated follows: is One-third (33%) of the amount recovered settled without the necessity of trial; 13 if Log the case as Forty percent (40%) of the amount recovered upon of this case; Fifty percent (50%) of the amount recovered after a successful trial verdict and the case is appealed and upheld on appeal. trial Their agreement percentage of exception court limited by of this deduction of of 2, Engel the the a part settlement 1991, expressly settlement the District Court calculates required of Accordingly, the be distributed enforces the we hold sanctions pursuant terms award to that the from the the terms contract. 14 on the Engel (the sanctions award of award between Homes. the paid of a Engel--on the Shrewsbury, recovery, and whether Concomitantly, July Wagner by Furthermore, Wagner, sanctions whatever based is and therefore, into by which by the principles not sanctions dispersement to in and recovery into $8,700 recovery and, compensation." the amount include the "the or other the to "balance entered an and fees. $8,700 Log a compensation $8,700 entered Glacier requires suit, excluded package contract the Shrewsbury's behalf--and from and of the to provide the Engel's costs that to client), of appropriate not agreement recipient follows Homes is Shrewsbury's July proper that (the attorney and designated pursuant retainer Shrewsbury necessarily Glacier part the the the does as sanctions Therefore, of case, It we conclude terms is it recovered Hamilton, to recovered. fees. the attorney), after amounts in compensation amount attorney delineated facts any for as limits 2, is 1991, when contract entitled, award as it is of the when it part form." District Court settlement of the erred amount parties' which July 2, is to 1991, ISSUE Did the District tape-recorded Court standard of 388, is The test for abuse injustice." Tanner 913 P.2d relating to the v. 641, the of of the 707, Prior conversations showing Wagner The material of are substantial that "left review trial 275 Mont. we note to 862 P.2d the in (1996), evidence its conscientious resulting Inc. subject Wagner Engel only recorded the in 255 Mont. 414, questions to (1992), several and herself conversations tapes sound the 364, case 370-71, were on her without transcribed telephone answering Engel's and copies machine. knowledge or provided to were discovery. trial, the a quote that read court, trial, the during record of 247, "whether employment the abused 243, is reason ruling, court 261 Mont. Additionally, Mason v. Ditzel between recorded At trial evidentiary Island, of parties? discretion of evidence 712. to consent. Dream 651. abuse." 842 P.2d bounds admissibility discretion manifest (19931, of excluded district without arbitrarily or exceeded Engel whether Cady judgment She the it court's v. acted 430, the Hislop 390. court when a district review discretion. err between conversations When we review 5 District taken [Engel] the and quote, stated Court directly has from allowed the not told the counsel for Engel the following 15 Wagner tapes read "for truth." the After moved to grounds to for strike his into purpose counsel the the of for quoted objection: "Objection. exactly Move to granted that Wagner contends Engel's motion the evidence was illegally several court purposes. On that this "that time, be used for the Right After District Court's agreed with counsel fact, fact, constitute offered valid Accordingly, discretion evidence for law context, for we issue that however, impeachment a ruling, at may MCA, and Constitution preclude we conclude that Wagner's Court proffered purposes, the was not based on the District merely evidence and did was not, in evidence. the District Engel's § l-3-208, the evidence impeachment of the tape-recorded she cites evidence. Rather, impeachment granted that in Montana's Engel that for evidence maintains to exclude we hold that when it in the criminal it purposes." of the record, arguments. position, of the taped conversations obtained decision policy in contained her obtained hand, a review of which, on the other such public not, support she requests of illegally when even if or other the admission erred impeachment purposes the transcriptions of Privacy Court motion. for impeachment Engel, the District Engel's she asserts of illegally basis, granted That's Specifically, decisions the admission impeachment. strike. is admissible In not Court that to obtained. federal uphold That's The District what he said." On appeal, it Strike. Court did not abuse its to strike motion telephone and excluded conversations. CROSS-APPEALISSUE 1 Did the District Court err when it contract? 16 held that Engel breached a Engel, July 2, which Shrewsbury, Engel was lawsuit against Court to determined contract Wagner described which 1991, and with distribute Glacier that as After Engel's breach the of Engel determined essence, in respective fully that he asserts judgment rights The binding. It of the its damages for is Court 1991, contract. 2, that for until July 2, Wagner was valid entitled to to form" fifty against that Engel 1992; and, cash the rights 1991, legally unambiguous Glacier of terms the the case and a log net Homes. Log as we previously payment were contract and percent settled the contract. the pursuant In determine those of erred a declaratory Court be a breach that, a $10,000 rights Court Engel she with against held, that home valued at $27,000. District contract, that District District and undisputed The respective and the breached Wagner complaint and that found found included approximately District accordance the July his not Log Homes on May 1, settlement which could whatever is the parties, Wagner it in in underlying the Engel on manner the trial, awarded that the Shrewsbury, in Glacier the further Furthermore, have Court contract, "recovery to Wagner contends he filed there Engel, of law Court to of District between of he breached that order determined Prior contract the proceeds a matter District a contract. On cross-appeal, when it the to compensate trial, into particularity Log Homes. when he failed terms. entered is is entitled. of the parties correctly obligated have now been established concluded to that, disperse to Therefore, 17 whether pursuant Wagner Engel the to their money breached to the contract is is, at entitled, share this pursuant of the net Although, it point in to the recovery contract, against as previously calculated the irrelevant; time, amount Glacier the the amount of District did not when it his contract and that the judgment of err the Wagner the District entitled CROSS-APPEAL Did the District Court err in percent erred when form" whatever damages, and, we hold that Engel to damages. is Wagner fifty Court determined Court her District Wagner's is way, Log Homes. "recovery concomitantly, Court to receive stated, of either that the breached Accordingly, affirmed. ISSUE when it 2 awarded Wagner prejudgment interest? When damages, ten the it percent settled the District also Court per annum case against it awarded asserts that, be awarded Court its In Montana, 5 27-l-211, May 1, Glacier is 21, breach interest of at date contract the rate of on which Engel Court erred Log Homes. prejudgment interest Wagner 1992--the contends February from entered from Wagner if prejudgment Engel On cross-appeal, when her awarded awarded to that the interest be awarded 1996--the date District from at May 1, all, it on which 1992. should the He only District order. the MCA, which right to provides prejudgment interest is governed as follows: Right to Interest. Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day except during such time as the debtor is prevented by law or by the act of the creditor from paying the debt. 18 by We have the terms already of the concluded parties' July breach of damages for that settled the underlying therefore, that and Furthermore, and proceeds at certain. it awarded 1991, agreement that Furthermore, was Accordingly, when that failure therefore, breach. Wagner Engel's 2, lawsuit 1992, contract that the to was in we hold that the share District Wagner's of the claim champerty The as is void err because court or maintenance that when against that Engel of that date. the settlement of being Court from did May 1, made not err 1992. 3 it declined public neither to policy addressed issues. However, Wagner's entire claim public Specifically, policy for he alleges underlying lawsuit to the witness; ISSUE to hold on the that grounds and maintenance? against support interest Court District champerty contends District prejudgment a entitled on sum capable CROSS-APPEAL Did Wagner with Log Homes on May 1, occurred her which is undisputed Glacier breach entitled time, is comply constituted Wagner it against to and against lawsuit; (3) The definition that is a stranger of is fail to maintenance because and who was not Log Homes: being (1) compensated the is analyzed the on cross-appeal, champerty Wagner, Glacier (2) should nor Engel it is maintenance. a party to contributed for her the money role lawsuit. as follows: [Mlaintenance involves the act of improperly, for the purpose of stirring up litigation and strife, encouraging others either to bring actions or to make defenses that they have no right to make. In any event, maintenance is an officious intermeddling in a suit which in no way belongs to the intermeddler by maintaining or assisting either party to the action, with money or otherwise, to 19 void as a prosecute or defend it. In other words it is intermeddling in a suit by a stranger, one having privity or concern in the subject matter and standing no relation of duty to the suitor. 14 Am. Jur. 2d Champerty The definition Champerty bargain by a portion successful champertor expense. 14 Am. Jur In the of 2d Champerty v. 2d 819, 825, doctrine in modern as now of interest." Taft the which with persuasive. Missouri "has takes or this assigned have, or rule Court record, honestly believed that to Wagner the rights Homes; and the of Shrewsbury's Wagner Furthermore, and that we hold testified that to lawsuit that lawsuit the was District 20 "[tlhe who doctrine interfere they to its in have, reasoning we conclude she had, the one-half right underlying the prior to and mellowed believe and find the example, that an 825. of For that those 1975), concluded tempered honestly at Schnabel Log Accordingly, the (MO. App. Appeals hold a review litigation. attorney of on to least at Inc. of After had, Glacier Co., been narrowed, 525 S.W.Zd the § 3 (1964). Court went out they Schnabel, We agree as follows: Broadcasting The court practiced in is and Maintenance champerty times." litigation basis champerty 5 2 (1964). is a species of maintenance. It is . . . a a champertor with a plaintiff or defendant for of the matter involved in a suit in case of a termination of the action, which the undertakes to maintain or carry on at his own Schnabel 525 S.W. and Maintenance the no in those the from formed not the Log Homes. Engel her did in Shrewsbury Glacier protecting Court Wagner commissions believed be an interest commissions against she that litigation of to was her interests. err when it failed to declare Wagner's claim void for champerty and maintenance. The judgment and of the District affirmed part, proceedings in consistent and with Court the this opinion. We Concur: Justices case / 21 is hereby is reversed remanded for in part further March 25, 1997 CERTIFICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail, prepaid, to the following named: Sean Hinchey, Esq. Bottomly Law Offices P.O. Box 1976 Kalispell, MT 59903-1976 James C. Bartlett, Esq. Hash, O Brien & Bartlett P.O. Box 1178 Kalispell, MT 59903-1178 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
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