No. 85-395
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
FRANK DONNES ,
Plaintiff and Respondent,
GEORGE ORLANDO, Personal Representative
of the Estate of FRANK DONNES, Deceased,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Treasure,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly & Halverson, P.C.; Sheehy, Prindle & Finn,
Patrick R. Sheehy, Billings, Nontana
For Respondent:
Russell K. Fillner, Billings, Montana
Submitted on Briefs: Feb. 26, 1986
Decided: June 4, 1986
Filed: JUN 4 - 1986
Clerk
Mr. Justice William E. Hunt, Sr., delivered. the Opinion of
the Court.
Donnes brought this action in the Treasure County
District Court against the estate of his uncle on his claim
for services rendered and material furnished. Orlando, as
personal represen-tativeof the estate, answered and filed two
counterclaims alleging loans from decedent to Donnes.
Following a nonjury trial, the District Court ruled that
Donnes was not entitled to compensation for work done from
October 20, 1978 through August 18, 1982 because this work
was a gratuity from Donnes to his uncle. The District Court
further held that Donnes was entitled to foreclosure of his
mechanics' lien in the amount of $20,685.00 for a rip rap
project performed from September 3, 1982 through November 9,
1982, and costs, attorney fees, and interest as provided by
law. Orlando received judgment on his counterclaim in the
amount of $1,554.00.
Shortly thereafter, jurisdiction of Treasure County was
transferred from the Thirteenth to the Sixteenth Judicial
District. A hearing was held before the new District Court
judge concerning attorney fees. The District Court awarded
Donnes attorney fees for foreclosure of the lien in the
amount of $7,455.00 plus costs.
Orlando appeals the judgment, and Donnes cross-appeals
that part of the judgment denying his claim against Orlando.
We affirm.
The issues raised by Orlando are:
1. Whether the District Court erred in awarding Donnes
$20,685.00 for the rip rap project?
2. Whether the findings of the District Court are
adequate and support the court's decision?
3. Whether the District Court erred in awarding Donnes'
attorney fees?
Donnes raises the following issue on cross-appeal:
Whether the District Court erred in denying Donnes' claim for
work done prior to the rip rap job?
Donnes is a contractor primarily engaged in earth
moving. His uncle, Frank, owned a farm situated on the Big
Horn River. Donnes' father died when he was nine years old.
Donnes developed a close relationship with his uncle. The
two visited one another once or twice a week and telephoned
in between. Donnes and his uncle assisted each other in
their respective businesses--the uncle by driving pickups on
occasion, visiting job sites with lunches and other supplies,
and assisting Donnes financially by making him loans and
maintaining funds in their joint names. Donnes assisted his
uncle in repairing fence, gathering cattle, fixing water
wells, shingling the roof, and generally assisting the uncle
whenever requested. These were friendly exchanges of
services between relatives for which neither expected
compensation and for which no claim is made.
Additionally, however, the uncle allowed Donnes to store
equipment on the ranch and use the ranch shop and tools to
maintain and repair his equipment as need arose. Donnes
performed work on the ranch involving dozing, trenching and
ditch cleaning without any express understanding as to
payment other than that the uncle would "make it worthwhile."
As a result, Donnes kept no records of dates, hours,
equipment used, or materials provided, and neither prepared
nor submitted any bills (with two or three exceptions) to his
uncle.
In addition to this work, Donnes agreed to perform some
rip rap work along the bank of the Big Horn where it was
eroding and endangering an irrigation pipe line. Donnes
began the project on September 3, 1982. On September 9,
1982, the uncle was found murdered on his ranch. Donnes
completed the rip rap project on November 9, 1982. Following
denial by the estate of his claims, Donnes filed this action
in District Court.
The first issue raised. by Orlando is whether the
District Court erred in awarding Donnes $20,685.00 for the
rip rap project? Orlando claims that the uncle did not agree
to pay Donnes $20,685.00 for the project. Instead, he
agreed to pay only $25.00 per lineal foot for a total of
$6,700.00. This contention is based on the fact that the
uncle applied to the Agricultural Soil and Conservation
Service (ASCS) for cost sharing for the rip rap project
knowing that the ASCS limit for such projects was $25.00 per
lineal foot. Donnes contends that his uncle agreed to pay
him $20,685.00 for the project.
As we have stated in the past, the judgment of the trial
court is presumed to be correct and this Court will draw
every legitimate inference to support that presumption.
Findings will not be overturned unless there is a clear
preponderance of the evidence against them, recognizing that
evidence may be weak or conflicting yet still support the
findings. Jensen v. Jensen (Mont. 1981), 629 ~ . 2 d765, 38
St.Rep. 1109.
There is substantial credible evidence to support the
District Court's decision to award Donnes $20,685.00 for the
rip rap job, and we will not overturn that decision on
appeal. Donnes testified that he discussed the rip rap
project with his uncle in August 1982. Donnes informed his
uncle that he had bid a similar job for Montana Power Company
at $20,685.00, and that his uncle's job would be about the
same price. The District Court found that the cost of the
Montana Power Company project was established by competitive
bidding, and at the time of Donnes' discussions with his
uncle, it was assumed the uncle's job was comparable and
would not cost any more than the company project. Orlando's
contention that the uncle's application for ASCS cost sharing
proves that he agreed to pay only $6,700 is insufficient to
warrant reversing the District Court. The uncle failed to
complete the necessary steps for cost sharing by not
obtaining a Federal Corps of Engineer 404 permit. We will
not reverse the District Court absent a clear preponderance
of the evidence against them. No such preponderance exists
in this case.
The second issue raised by Orlando is whether the
findings of the District Court are adequate and support the
court's decision? Orlando cites In re the Marriage of Wilmot
(1982), 199 Mont. 477, 649 P.2d 1295, to support his
contention that the court's findings were fatally deficient.
In Wilmot, we remanded the case because the District Court's
findings were conflicting and contradictory, with numerous
references to evidence without any indication of the weight
given that evidence. Orlando argues the findings in this
case are equally deficient--that the findings merely restate
the parties' contentions and evidence with no indication of
the weight it attached to the evidence, or how the trial
court came the ultimate finding that the uncle agreed
pay Donnes $20,685.00.
We do not agree. In Jensen, 631 P.2d 700, 703, we
stated:
Our ultimate test for adequacy of findings of fact
is whether they are sufficiently comprehensive and
pertinent to the issues to provide a basis for
decision, and whether they are supported by the
evidence presented.
The findings in Wilmot were contradictory and provided no
basis for review. In this case, while some of the findings
restate the contentions of the parties, the findings are not
contradictory, are supported by the evidence, and provide a
basis for review. The District Court found, supported by
substantial credible evidence, that Donnes and his uncle
discussed the rip rap project, and that the uncle agreed to
pay Donnes the same price as the Montana Power Company
project. The court stated in finding no. 37:
[Tlhe evidence does support the conclusion that the
cost of the Montana Power Company project had been
established by competitive bidding and, that at the
time of [Donnes'] discussions with his uncle, it
was assumed that the uncle's job would be
comparable and would not be billed by [Donnes] to
his uncle at any higher price.
The District Court was faced with conflicting evidence and
resolved the conflict in favor of Donnes. That is the duty
of the District Court, and we do not agree that the findings
were so inadequate as to require remand.
Orlando further contends that because the findings do
not meet the adequacy test found in Jensen, as they are
neither sufficiently comprehensive nor pertinent to the issue
to provide a rational basis for decision, then this Court is
free to analyze the facts and apply the law without remand.
Since we have concluded that the findings are adequate to
support the decision, we need not address this issue.
The final issue raised by Orlando is whether the
District Court erred in awarding Donnes his attorney fees?
We note initially that the determination of attorney fees is
largely discretionary with the District Court, and we will
not disturb its judgment in the absence of an abuse of that
discretion. Collins Agency v. Hagerott (Mont. 1984), 684
P.2d 487, 41 St.Rep. 1375; Carkeek v. Ayer (19801, 188 Mont.
345, 613 P.2d 1013. Orlando contends that the award of
attorney fees in this case was improper based on four points.
First, he claims that Judge Coate abused his discretion by
awarding fees in a case he did not try because he could not
know all of the circumstances surrounding the underlying
foreclosure action. Judge Coate stated in his memo opinion
and order:
When considering the question of reasonable
attorney fees, the presiding trial judge is
certainly in the best position to make that
determination.
However, Judge Coate also pointed out that the parties had
two months following the judgment and prior to the change in
jurisdiction to bring the matter of attorney fees before the
judge who presided over the foreclosure action. Neither side
did, and on January 7, 1985, jurisdiction of Treasure County
was transferred from the Thirteenth to the Sixteenth Judicial
District.
A judge's jurisdiction over a case is a matter of law,
and Judge Coate obtained jurisdiction over this case as a
matter of law on January 7, 1985. While it is preferable
that the presiding trial judge consider the question of
attorney fees, it is not mandatory. We do not agree that
Judge Coate abused his discretion by determining Donnes'
attorney fees.
Second, Orlando contends it was not reasonable for the
District Court to grant Donnes' entire attorney fees when
only part of the attorney's time was spent on the lien
foreclosure. In this case, the estate filed a counterclaim
against Donnes and it is impossible to segregate the
attorney's time between foreclosure of the mechanic's lien
and. defense of the counterclaim. As Judge Coate stated:
Each case must be decided on its own facts and the
Court cannot say that attorney fees should be
limited to a certain percentage of the lien that
was found to exist ... Defendant does not attack
counsel's hourly rate nor the number of hours
counsel spent on this case.
We have stated that where an attorney's time cannot be
clearly segregated, he is entitled to a reasonable fee for
the case. St. Paul Fire and Marine Insurance Co. v. Cumiskey
(Mont. 1983), 665 P.2d 223, 40 St.Rep. 891. The ~istrict
Court found that $75.00 an hour was a reasonable fee, and
that 99.4 hours was a reasonable amount of time for this
case. We agree.
Orlando's third argument is that attorney fees were
improper where the judgment Donnes received was less than
half of what he asked for. This is incorrect. Judge Coate
stated:
Counsel cannot be denied their fee simply because a
Large recovery was not obtained.
The fact that Plaintiff did not receive all that he
was seeking does not prove that counsel is not
entitled to a just fee.
In Schillinger v. Brewer (Mont. 19851, 697 P.2d 919, 42
St.Rep. 408, plaintiff sought to enforce his mechanic's lien.
The District Court found for plaintiff with an offset for the
defendant that reduced the judgment below the amount of
defendant's last offer. We reversed the District Court's
award of attorney fees to defendant a.nd remanded the case for
a determination of attorney fees for plaintiff. We reasoned
that the plaintiff, in establishing his lien, was entitled to
attorney fees for the entire action in the District Court.
In this case, Donnes established. his lien. Section
71-3-124, MCA, mandates an award of attorney fees. The fact
that Donnes did not receive the entire amount of his claim
does not alter this result. The award of attorney fees was
proper.
The fourth argument is that the District Court erred in
awarding attorney fees for time spent collecting attorney
fees. While this argument may be correct, it does not apply
in this case. We held in Ring v. Hoselton (1982), 197 Mont.
414, 643 P.2d 1165, that a judgment is not final until all
the issues have been determined including the determination
of attorney fees. Here, the eight hours spent by Donnes'
counsel at the hearing before Judge Coate were spent
determining attorney fees, not collecting those fees. Time
spent determining attorney fees is as much a part of the case
as establishing the lien. We hold that the District Court
did not abuse its discretion by awarding Donnes attorney fees
in the amount of $7,455.00.
Turning now to the issue raised by Donnes on
cross-appeal, Donnes contends that the District Court erred
in denying his claim for work done prior to the rip rap
project . The work occurred from 1978 through 1982, and
consisted of dozing, trenching, backhoe work, gradin.g, and
the like. The District Court found that Donnes and his uncle
were so close a presumption arose that this work was
performed gratuitously. There is substantial credible
evidence to support this finding and we will not disturb it
on appeal. The District Court stated in finding no. 9:
[Donnes] testified that he was very close to his
uncle. [Donnes'] father died when he was only 9
years of age. From the time [Donnes] was 15 years
of age to the time of the death of his uncle, their
relationship grew to the point where [Donnes] felt
that his uncle would "give him anything" and do
anything for him. Likewise, [Donnes] felt the same
way toward his uncle.
The court further noted that Donnes spent several summers on
his uncle's ranch helping with work. Although Donnes and his
uncle lived 60 miles apart during the period in question,
they "were in practically continuous communication--by visits
one from the other once or twice a week, and by telephone
calls in between." Additionally, Donnes and his uncle helped
each other in their respective businesses, and the uncle
allowed Donnes "to store his equipment on the ranch and use
the ranch shop and tools to maintain and repair his equipment
as the occasion arose."
The District Court acknowledged that generally the
relationship between uncle and nephew is insufficient to
raise a presumption of gratuity.
However, in this case, the evidence clearly shows
that a very close family relationship did, in fact,
exist, as a consequence of the death of the
nephew's father, resulting in the nephew and uncle
living together at times and thereafter working
together in a continuous relationship. Their
relationship was much closer than that of the usual
uncle and nephew situation.
The record supports the finding that the close family
relationship between Donnes and his uncle raises a
presumption that the work in question was performed
gratuitously. Once the presumption is applied, it is the
burden of the party seeking compensation to overcome that
presumption. Shurrum v. Watts (Idaho 1 9 5 8 ) , 324 ~ . 2 d380,
385. Donnes failed to carry this burden. The District Court
found that Donnes performed the work in question:
Wgthout there being any express understa-ndingas to
payment to [Donnes], other than that the uncle
would "make j t worthwhile," and [Donnes' 1 feeling
.
that this meant he would end up receiving either
money or a part of the ranch at sometime in the
future.
This evidence is insufficient to justify an express or
implied agreement that Donnes would be paid for his work.
Finally, Donnes argues that the issue of presumption of
gratuity should have been raised by Orlando in his pleadings
as an affirmative defense, and not raised in the final
post-trial brief. This is correct. However, we have long
held that pleadings will be deemed amended to conform to
proof received without objection. Franck v. Hudson (1962),
1-40 Mont. 480, 373 P.2d 951; Joy v. Little (1958), 134 Mont.
82, 328 P.2d 636. In this case, Donnes raised the issue of
the closeness of the family relationship during trial without
the necessity of Orlando raising it as an affirmative
defense. He testified as to their relationship, and the fact
that they often helped each other with no expectation of
compensation. Orlando availed himself of the defense without
the necessity of pleading it affirmatively. Therefore,
Donnes' argument must fail.
For the reasons stated above, we affirm the District
Court in all respects.
We Concur: