No. 82-460
I N THE SURPEME COURT OF THE STATE OF MONTANA
1983
GENE COOK AND FRED BELL, d/b/a
COOK-BELL REAL ESTATE,
P l a i n t i f f s and R e s p o n d e n t s ,
EDWARD J. HARRINGTON a n d MARCELLE
D. HARRINGTON,
D e f e n d a n t s and A p p e l l a n t s .
Appeal from: D i s t r i c t C o u r t of t h e X i g h t e e n t h J u d - i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G a l l a t i n , T h e : I o n o r a b l e
Joseph B. G a r y , Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For Appellant:
G r e g o r y 0. M o r g a n , Bozeman, Montana
For Respondent:
Kirwan & B a r r e t t ; S t e p h e n M. Earrett, Bozeman,
Montana
S u b m i t t e d on B r i e f s : January 2 0 , 1 9 8 3
Decided: April 21, 1983
4p R 2 1,1983
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Cou.rt .
The defendants, Edward J. and Marce1l.e D. Harrington,
the prevailing parties in trial court, appeal an order of the
Gallatin County District Court denying their post-summary
judgment motion for attorney fees based on a real estate
buy-sell agreement which provided that the prevailing party
in an action commenced on the contract would be entitled to
recover attorney fees. The trial court erroneously applied
the bill of costs statute (section 25-10-501, MCA) and ruled
that the time for claiming attorney fees had expired.
Harringtons contend that in essence they moved to amend the
judgment, and because a notice of entry of judgment had never
been filed, their motion for attorney fees was timely. We
vacate the trial court's order and remand the case for the
setting of a reasonable attorney fee.
The procedure of the case places the issue in context.
On September 4, 1979, Harringtons signed a contract for the
purchase of a tract of land from Cook and Bell, d/b/a
Cook-Bell Real Estate. This contract provided for a
reasonable attorney fee to the prevailing party in an action
commenced on the contract.
On October 27, 1980, Cook and Bell filed a complaint in
trial court alleging that under the written contract and
various oral agreements Harringtons had agreed to pay a real
estate commission to Cook and Bell and that Harringtons had
failed to pay the agreed commission. Based on the written
contract, the prayer for relief also asked that Harringtons
pay a reasonable attorney fee.
Harringtons answered the complaint by denying the
existence of any written agreement to pay a commission.
Section 28-2-903(1) (e), MCA, requires that an agreement to
pay a commission must be in writing. Based on the written
contract, Harringtons also counterclaimed for an attorney
fee.
The trial court granted summary judgment to Harringtons
on the real estate commission issue, holding that written
evidence of an agreement to pay a commission did not exist.
In the order granting the summary judgment the trial court
failed to rule in the attorney fee issue. The order stated:
"Pursuant to the above and foregoing, IT IS HEREBY
ORDERED that summary judgment is hereby entered on
behalf of the defendants [Harringtons] and
defendants [Harringtons] shall have their costs in
the sum of $
"Dated this 30th day of September, 1-981-."
No notice of entry of this summary judgment has ever been
filed.
More than four months later, on February 11, 1982,
Harringtons filed a motion to set an attorney fee in the
amount of $1,226.64, and noticed it up for a hearing. The
trial court held a hearing on February 22, 1982 and took the
matter under advisement for approximately seven months.
On September 9, 1982, the trial court denied
Harringtons' motion for attorney fees because it had not been
filed within five days of the entry of the judgment. The
court relied on section 25-10-501, MCA, which provides that
"[tlhe party in whose favor judgment is rendered and who
claims his costs must deliver to the clerk and serve upon the
adverse party, within 5 days after the verdict or notice of
the decision of the court ... a memorandum of the items of
his costs . . ." This statute, however, does not apply to
attorney fees.
Title 25, Chapter 10 of the Montana Code Annotated deals
with the imposition and allowance of costs. Recoverable
costs are listed in section 25-10-201, MCA, and do not
include attorney fees. With certain limited exceptions, we
have held that list to be exclusive. Masonovich v. School
Dist. No. 1 (1978), 178 Mont. 138, 582 P.2d 1234. Attorney
fees are not one of those exceptions.
Cook. and Bell have agreed in their brief that
Harringtons' motion for attorney fees was essentially a
motion to amend the judgment. Rule 59 (g), M.R.Civ.P.,
controls the timely filing of a motion to amend a judgment.
It provides that " [a] motion to alter or amend the judgment
shall be served not later than 10 days after the notice of
the entry of the judgment. . ." Because no notice of entry
of judgment has ever been filed in this case, the time for
filing a motion to amend the judgment had not expired.
Therefore, Harringtons ' motion for attorney fees was timely
and the trial court should have considered it on its merits.
We vacate the trial court's order denying the motion for
attorney fees and remand the case to the trial court to
determine a reasonable attorney fee.
W e Concur:
Chief Jusk-#ke
Justices