No. 8 6 - 2 1 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
JEFF D. LAUDERDALE and MARLENE
V. LAUDERDALE,
Plaintiffs and Appellants.
H. T. GRAUMAN and AVIS M. GRAUMAN,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leaphart Law Firm; W. William Leaphart, Helena,
Montana
For Respondent:
Poore, Roth & Robinson; Robert C. Brown, Butte,
Montana
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Submitted on Briefs: August 7, 1 9 8 6
Decided: October 2, 1986
Filed: oc%2 A 3986
Z~UP~L
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Jeff and Marlene Lauderdale appeal from that portion of
the March 26, 1986, judgment and memorandum of the Fifth
Judicial District Court which orders Lauderdales to pay H.T
and Avis Grauman $12,000 for attorneys' fees incurred in this
suit. We affirm the decision of the trial judge.
Lauderdales purchased Jefferson Valley Grain Company
from Graumans by contract for deed executed April 1, 1974.
On March 22, 1983, after paying more than 80% of the contract
price to Graumans, Lauderdales filed suit against Graumans
for breach of contract. Specifically, Lauderdales alleged
Graumans acted fraudulently in the sale of their business by
failing to disclose that the rear fifteen feet of the
building was not on deeded property.
Graumans filed their answer, counterclaim and a
third-party complaint on May 26, 1983. The third-party
complaint was eventually dismissed and is not at issue here.
Graumans' counterclaim alleges breach of contract by
Lauderdales and requests dismissal of Lauderdales' complaint,
compensatory damages, specific performance, punitive damages,
costs and attorneys' fees. Specifically, Graumans allege
Lauderdales breached the contract by failing to operate the
business in the same manner as Graumans and by failing to
provide proof of payment of taxes and insurance premiums to
the escrow agent.
Lauderdales and Graumans each filed motions for summary
judgment in January of 1984. Following briefing and oral
argument, the trial judge denied both motions.
In October of 1984, Lauderdales made their final payment
under the contract for deed. Trial commenced January 22,
1986. On that day, Graumans agreed to dismiss their
counterclaim, stating that it had been rendered moot when the
contract for deed was paid in full and the escrow account
closed.
Following trial, the jury found in favor of Graumans.
Graumans then filed a memorandum of costs and a motion for
determination and assessment of attorneys' fees based on the
following provision in the contract for deed:
In any litigation arising out of this agreement,
the successful litigants shall be entitled to
receive from the other parties, in addition to the
costs and disbursements provided for by statute, a
reasonable attorney's fee as fixed by the Court.
Graumans requested $17,895.67 in attorneys' fees and $343.70
in costs. Lauderdales objected, alleging there was no
"successful party" in the litigation. The issue was briefed
and a hearing held. Thereafter, the trial judge found
Graumans to be the "successful litigants" or "prevailing
party." They were awarded $12,000 in attorneys' fees and the
costs they had requested.
On appeal, Lauderdales again contend there was no
"successfu1 litigant." Lauderdales argue they became the
prevailing party on Graumans' counterclaim when the Graumans
voluntarily dismissed it. Thus, since both parties won and
lost on claims arising out of the litigation, there was no
prevailing party and the parties are responsible for their
own attorneys' fees.
We agree with Lauderdales' assertion that there are
cases where, at the close of all litigation, there is no
actual "prevailing party. " " [TIhere is no prevailing party
where both parties gain a victory but also suffer a loss."
Parcel v. Myers (Mont. 1984), 697 P.2d 89, 91-92, 41 St.Rep.
2426, 2429, citing Knudsen v. Taylor (Mont. 1984), 685 P.2d
354, 357, 41 St.Rep. 1490, 1493.
However, the case before us is not of that nature.
Graumans have suffered no trial loss. They dismissed their
counterclaim because it was rendered moot. This is clearly
distinguishable from a situation where the jury found against
Graumans on the counterclaim. Because Graumans are the
prevailing party, they were properly awarded attorneys' fees.
Jordan v. Elizabethan Manor (1979), 181 Mont. 424, 434, 593
P.2d 1049, 1055.
Finally, Graumans request attorneys' fees incurred as a
result of this appeal. Where an award of attorneys' fees is
based on a contract, the award includes attorneys' fees
generated on appeal. Diehl and Associates v. Houtchens
(1979), 180 Mont. 48, 53, 588 P.2d 1014, 1017. The District
Court judge is ordered to determine the reasonable attorneys'
fees due Graumans.
Affirmed and remanded.
44,
We Concur:
Chief Justice