                                No. 8 6 - 5 0 1
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987




A. KENDRICK SMITH, MAX A. HANSEN,
and W.G. GILBERT, JR.,
                 Plaintiffs, Counter-Defendants
                 and Respondents,
         -vs-
CLINTON J. HOWERY and JACQUELINE
J. HOWERY,
              Defendants, Counter-Claimants and
              Appellants.



APPEAL FROM:     District Court of the Fifth Judicial District,
                 In and for the County of Beaverhead,
                 The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Robert T. Cummins, Helena, Montana
         For Respondent:
                 Schultz, Davis & Warren; Carl M. Davis, Dillon,
                 Montana
                 Garlington, Lohn & Robinson; Sherman V. Lohn,
                 Missoula, Montana


                                    Submitted on Briefs: April 17, 1 9 8 7
                                       Decided: June 25, 1987

Filed:   JUN 2 5 1987



                                    Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

       This appeal arises from a summary judgment granted
plaintiffs by the District Court of the Fifth Judicial
District in and for Beaverhead County. We affirm.
       This appeal is but the latest in a series of actions
arising from a condemnation proceeding initiated in 1979. In
February of 1979, the State of Montana filed in Beaverhead
County an action to condemn .76 of an acre of property
belonging to Clinton and Jacqueline Howery.     The State and
the Howerys had been unable to agree on compensation so the
suit was filed and the Howerys hired to represent them
attorneys Kendrick Smith, Max Hansen and W. G. Gilbert, Jr.
 (hereinafter "Attorneys"). The Howerys eventually obtained a
jury award in the amount of $243,475.00, a judgment affirmed
by this Court in State By and Through the Dept. of Highways
v. Howery (1983), 204 Mont. 417, 664 P.2d 1387.
       Following that appeal, the Howerys and the Attorneys
began negotiations to settle the issue of attorneys' fees.
The Attorneys had undertaken this case upon a contingent fee
arrangement, but the parties were in dispute whether the
Attorneys were entitled to their proportional share of the
pre- and post-judgment interest, costs and other fees
recovered in addition to the judgment award.
      After the parties were unable to reach an agreement,
the Attorneys filed a complaint on July 26, 1983, alleging
breach of contract and seeking payment for services rendered.
An amended complaint was filed the next day.
      On October 24, 1983, the District Court granted the
Attorneys permission to file a second amended complaint.
That complaint added a second count alleging a breach by the
Howerys of the implied covenant of good faith and fair
dealing.
      The Howerys responded with an answer, counterclaim and
demand for jury trial. It is this counterclaim which is the
subject of the present appeal.    In it, the Howerys alleged
the Attorneys breached the fiduciary duty owed their clients,
breached the implied covenant of good faith and fair dealing
and committed fraud.
      On January 16, 1984, the Attorneys filed a motion for
summary judgment on Count I of their second amended complaint
which the District Court granted on May 14, 1984. The court
found the terms of the fee contract clear, certain and
unambiguous and the amount due the Attorneys fixed and not
ambiguous in any way.    We upheld that summary judgment in
Smith v. Howery (Mont. 1985), 701 P.2d 1381, 42 St.Rep. 995.
 (Smith I).    We too found the fee contract "clear and
unambiguous." Smith I, 701 P.2d at 1383.
       The Attorneys next filed a motion for summary judgment
on the Howery's counterclaim.     The District Court granted
this motion on August 25, 1986.      Following a Rule 54(b),
M.R.Civ.P.,   certification, the Howerys filed this appeal
                                  1
contesting this summary judgment.
      A motion for summary judgment should be granted
            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




1    Following the District Court's order granting summary
     judgment on the issues raised by the counterclaim, the
     Attorneys moved to dismiss Count I1 of their second
     amended complaint.   The District Court dismissed this
     count on October 21, 1986.
           party is entitled to a judgment as a
           matter of law.
Rule 56 (c), M.R.Civ.P.
       As noted, the Howerys base their counterclaim on three
legal theories: violation of the fiduciary relationship,
breach of the implied covenant of good faith and fair dealing
and fraud. However, it appears that all these theories are
based upon the same factual allegation--the alleged failure
of the Attorneys to advise the Howerys that the written
contingent fee contract included a proportionate amount of
any interest awarded on the judgment.      We agree with the
District Court's conclusion that any such failure would be
insufficient in law to support any of the claims made by the
Howerys.
       The Howerys further argue that their affidavit filed in
opposition to the Attorneys' motion for summary judgment in
this case raises a genuine issue as to material facts. We
note that this affidavit is nearly identical to the Howerys'
affidavit filed in Smith I which was found insufficient to
establish any material fact issue requiring trial. While we
recognize that the two affidavits were filed in conjunction
with two separate and distinct legal claims, we again find
that the affidavit does not establish any material factual
issue.
       Finally, the Howerys argue there cannot be summary
judgment in any case containing an allegation of fraud.
Citing § 28-2-404, MCA, and numerous state cases, the Howerys
note that actual fraud is a question of fact and contend that
summary judgment is therefore inappropriate.
       In Campbell v. Campbell (Mont. 1986), 725 P.2d 207,
209, 43 St.Rep. 1584, 1587, we determined the invalidity of
any such inference by stating:
          Section 28-2-404, MCA, states: "Fraud is
          either actual or constructive.    Actual
          fraud is always a question of fact."
          This statute does not preclude summary
          judgment where there is no evidence
          supporting a claim of fraud.   [Citation
          omitted. ]       Under    Rule    5 6 (c),
          Mont.R.Civ.P.,   summary  judgment was
          appropriate in this case.
      As noted, the only factual issues claimed are
insufficient to support the allegations of fraud.
      The summary judgment issued by the District Court to
the Attorneys is therefore affirmed.
