NO. 83-560
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
JACK HUGO PARCEL,
Plaintiff and Appellant,
-vs-
MERLIN W. MYERS, et. ax.,
Defendants and Respondents.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark L. Stermitz, Stanford, Montana
For Respondents:
William E. Berger, Lewistown, Montana
Hauge, Ober & Brown, Havre, Montana
Submitted on Briefs: Nov. 29, 1984
Decided: December 28, 1984
Filed: DEC 2 t? 1984
Clerk
Mr. Justice Frank B. Morrison, Jr. , delivered the Opinion of
the Court.
Parcel appeals from that portion of the judgment entered
by the District Court of the Tenth Judicial District denying
him an award for costs and attorney fees.
Appellant, Jack Hugo Parcel, filed a complaint on Febru-
ary 2, 1981, requesting reformation of a contract for deed
for his purchase of real estate and also asserting claims of
fraud and negligent misrepresentation against the Plyers,
sellers, and William Smith and Ronald F. Rastin, surveyors
responsible for the subject defective legal description.
Parcel claimed $10,000 in damages and $25,000 in punitive
damages under his fraud claim. Bastin and Smith filed a
motion to dismiss the fraud claim against them. The trial
court dismissed appellant's action against the surveyors with
prejudice when appellant failed to respond to this motion to
dismiss. Myers answered, counterclaimed and cross-claimed
against Bastin and Smith for indemnity. All motions to
dismiss and notions for summary judgment filed by respondents
and third party defendants were denied.
The action was tried to the court on January 31, 1983.
Findings, conclusions and judgment thereon were filed on
December 13, 1983. The district judge reformed the contract
for deed in the amount of $1,500, denied all other claims
against Myers, ordered all parties responsible for costs and
attorney fees, but failed to rule on the third party action.
Parcel appeals only on the issue of attorney fees and costs.
Jack Parcel purchased a parcel of real estate from
Merlin and Marcia Myers on or about July 9, 1979. The buy-
sell agreement described the property as "Merlin W. Myers
home consisting of house, shop and 11.57 acres more or less
immediately west of Lewistown." Negotiations on the purchase
price and the conditions of the buildings required three
buy-sell agreements to be drafted before the final contract
for deed was executed in August 1979. No purchase price per
acre was ever the subject of negotiations nor were per acre
terms printed on the face of the final buy-sell agreement or
the resultant contract for deed.
Parcel required that Myers have a new certificate of
survey prepared and recorded within a reasonable time after
the closing of the transaction. Parcel's requirement of a
survey as condition of the sale, was to assure him that Myers
had clear title and ownership of the property within the
fences which were represented to Parcel as the boundaries of
the land he was purchasing. Smith completed the survey a few
days prior to the signing of the contract for deed. Since
Smith was unlicensed, Bastin certified the survey legally
correct in all respects. Parcel confirmed that the descrip-
tion on the survey matched the legal description on the
contract for deed prior to closing the sale. The survey
indicated that the property contained 11.46 acres instead of
the 11.57 acres represented on the buy-sell document. Parcel
consummated the land purchase despite this .ll-acre
deficiency.
Parcel was first alerted to a problem in the legal
description of his property in the fall of 1980 when he
received his tax statement which represented his ownership of
slightly more than 12 acres. After investigation, he discov-
ered the certificate of survey drafted by Smith and certified
by Bastin was in error. Description of the property on the
defective survey commenced at the edge of the county road
(the southern boundary) which was 30 feet north of the true
point of beginning, the center line of the county right-of-
way. The actual measurements conformed to the true
boundaries of the property had the proper starting point been
referenced. The result is that a strip of land thirty feet
wide and approximately seven hundred feet long was included
on the northern edge of the property, to which Myers did not
have title and could not convey. Bastin did not supervise
Smith's field work, nor did he confirm the accuracy of the
survey prior to his certification.
Minus that area reserved for the right-of-way, the area
within the fence contained 10.86 acres. Parcel filed an
action to have the contract for deed reformed so as to repre-
sent the proper legal description of the land he purchased
and show a reduction of the sales price to reflect the de-
crease in acreage. Parcel filed claims against both Myers
and the surveyors, Bastin and Smith, for negligent misrepre-
sentation of the total acreage. The district judge denied
Parcel1s damage claims, but reduced the sales price $1,500.
All parties were responsible for individual costs and attor-
ney's fees.
The issue on appeal is whether it was an a-buse of dis-
cretion for the District Court to order each party to bear
his own costs and attorney fees.
Appellant claims a statutory right to costs pursuant to
$$ 25-10-101(3) and ( 5 ) , MCA, since the case involves title to
real property which resulted in an award of $1,500. We
disagree. The specific language of the statute provides:
"When costs allowed, of course, to plaintiff.
Costs are allowed, of course, to the plaintiff upon
- judgment - - favor in the following cases:
a in his
" (3) in an action for the recovery of money or
damages, exclusive of interest, when plaintiff
recovers over $50;
" (5) in an action which involves the title or
possession or right of possession of real estate
. . ." (emphasis added)
In this case, the "judgment in his favor" was a $1.,500
reformation of the contract purchase price, and not an action
involving the title to the property subject to the contract
or a damage action.
Appellant correctly argues that allocation of costs are
left to the discretion of the District Court in those actions
not mentioned in § 25-10-101, MCA. An award of costs in an
action to reform a contract is discretionary. We find no
abuse of the District Court's discretion to order all parties
responsible for their own costs and attorney's fees.
Appellant fortifies his argument with the contention
that since he is the prevailing party, costs and attorneys
fees are recoverable. The general rule in Montana is that
absent a statutory or contractua.1 provision, attorney fees
are not recoverable. Sliters v. Lee (1982), 197 Mont. 182,
641 P.2d. 475. Furthermore, this Court recently held that
there is no prevailing party where both parties gain a victo-
ry but also suffer a loss. Knudsen v. Taylor (19841, 685
P.2d 354, 357, 41 St.Rep. 1490, 1493. Parcel prevailed on
reformation of contract but lost on all other allegations
against Myer and the surveyors. Likewise, Myer won on the
fraud and negligent misrepresentation actions against him,
and concurrently lost on the issue of reduction of the pur-
chase price. The trial court's order that each party bear
his own costs and attorney's fees was proper.
The District Court did not make a ruling on the third
party action and there is no judgment for this Court to
review. We remand for a hearing to determine the liability
of third party defendant to third party plaintiff.
Judgment o f t h e D i s t r i c t C o u r t r e f o r m i n g p u r c h a s e p r i c e
by a $ 1 , 5 0 0 r e d u c t i o n and o r d e r i n g a l l p a r t i e s t o b e a r c o s t s
and a t t o r n e y ' s f e e s i s affirmed. L i a b i l i t y of t h i r d party
d e f e n d a n t i s rema.nded f o r d e t e r
W e concur: