No. 88-225
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
GREGG GLASPEY,
Plaintiff and Respondent,
-vs-
THOMAS WORKMAN, BERNADETTE WORKMAN,
and BERNADETTE'S, INC.,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Channing Hartelius; Hartelius, Ferguson & Baker,
Great Falls, Montana
For Respondent :
I
-
=
13
Elizabeth A. Rest; Lynch & Best, Great Falls, Montana
Submitted on Briefs: Aug. 26, 1988
Decided: October 27, 1988
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Thomas and Bernadette Workman appeal from an order of
the Eighth Judicial District, Cascade County, awarding
attorney's fees to respondent Glaspey in the amount of
$7,500. We affirm the District Court order and remand for an
evidentiary hearing to determine the amount of attorney's
fees incurred by Glaspey on this appeal.
The Workmans raise two issues on appeal.
1. Did the District Court err in awarding attorney's
fees incurred on appeal?
2. Did the District Court abuse its discretion by
awarding attorney's fees of $7,500 on a judgment of $1,589?
This appeal is a continuation of a wage claim action
that commenced in 1985. At that time, Glaspey won an
administrative judgment of $1,294 for wages due from
Bernadette's, Inc.
Due to Bernadette's insolvency, Glaspey's attempts to
execute on the judgment resulted in the attainment of a mere
$5.49. Glaspey then instituted suit against the Workmans and
Bernadette's, attempting to pierce the corporate veil in
order to hold the Workmans personally liable on the claim.
The District Court granted summary judgment in the amount of
$1,589 to Glaspey but refused to award attorney's fees.
Glaspey appealed the issue of attorney's fees to this
Court. In Glaspey v. Workman (Mont. 1988), 749 P.2d 1083, 45
St.Rep. 226, (Glaspey -
I), we reversed the District Court. We
held that the action to pierce the corporate veil was a
continuation of the wage claim action and, therefore, Glaspey
was entitled to attorney's fees. We remanded to the trial
court for a determination of such fees and also awarded
Glaspey his costs on appeal.
The District Court held an evidentiary hearing on the
issue of attorney's fees on March 21, 1988. During the
hearing, the District Court heard the testimony of Glaspey's
attorney as well as that of experts for both sides. In
addition, Glaspey's attorney submitted an affidavit
reflecting a total fee of $10,457 for charges incurred from
April, 1986, up to the time of the March, 1988, hearing.
On March 28, 1988, the District Court issued its
findings of fact, conclusions of law and order awarding
attorney's fees of $7,500 to Glaspey. It is from this award
that the Workmans appeal.
The Workmans first contend that the District Court
improperly included in its award those attorney's fees
incurred by Glaspey on appeal. This contention is incorrect.
We have previously recognized that an employee in a wage
claim action may receive attorney's fees on appeal. Erdman
v. C & C Sales, Inc. (1978), 176 Mont. 177, 577 P.2d 55. The
Workmans argue that such an award is discretionary and that,
furthermore, Glaspey was granted only his "costs" on appeal,
not his attorney's fees.
It is true that in Glaspey - , we awarded "costs" on
I
appeal. Glaspey - 749 P.2d at 1085, 45 St.Rep. at 228. It
I,
is also true that 25-10-201, MCA, does not include
attorney's fees on its list of allowable costs. We have
consistently held, however, that § 25-10-201, MCA, does not
apply in the presence of another statute that specifically
allows attorney's fees. Masonovich v. School Dist. No. 1
(1978), 178 Mont. 138, 140, 582 P.2d 1234, 1235; Britt v.
Cotter Butte Mines (1939), 108 Mont. 174, 179, 89 P.2d 266,
267; Gardiner v. Eclipse Grocery Co. (19251, 72 Mont. 540,
550-51, 234 P. 490, 494.
Section 39-3-214, MCA, mandates the award of attorney's
fees in a wage claim action. The pertinent parts of that
stutute provide:
(1) Whenever it is necessary for the employee to
enter or maintain a suit at law for the recovery or
collection of wages due as provided for by this
part, a resulting judgment must include a
reasonable attorney's fee in favor of thg
successful party, - - taxed - part - - costs
to be as of the
in the case.
(2) Any judgment for the plaintiff in a proceeding
pursuant to this part must include - costs
all
reasonably incurred in connection with the
proceeding, including attorneys' fees.
Section 39-3-214, MCA. (Emphasis added.)
Hence, the statute requiring attorney's fees in a wage
claim action specifically provides that costs include
attorney's fees. Our award of costs in Glaspey - therefore
I
implicitly included a grant of attorney's fees incurred on
the appeal.
The Workmans rely on Thornton v. Comrn'r of Dep't of
Labor and Industry (Mont. 1980), 621 P.2d 1062, 37 St.F.ep.
2026, for the proposition that an award of attorney's fees on
appeal is discretionary. This reliance is misplaced. In
Thornton, an employee appealed the administrative
determination of his wage claim. The District Court dismissed
the appeal and we affirmed. Because Thornton was
unsuccessful in his appeal, we denied his request for
attorney's fees incurred on appeal. Glaspey, on the other
hand, was successful in his appeal. The mandatory language
of S 39-3-214, MCA, requires that a reasonable attorney's fee
must be awarded to an employee who successfully brings an
appeal of a wage claim action.
The Workmans next contend that the District Court abused
its discretion in awarding attorney's fees of $7,500 on a
judgment of $1,598. They argue that the award was excessive
and that it was not based on competent evidence. We do not
agree.
The amount a party may be awarded in attorney's fees is
within the discretion of the District Court. Unless an abuse
of discretion is shown, an attorney's fee award that is based
on competent evidence will not be disturbed on appeal.
Magers v. The Shining Mountains (Mont. 1988), 750 P.2d 449,
453, 45 St-Rep. 283, 288.
Before granting attorney's fees, a district court must
hold an evidentiary hearing to determine the reasonableness
of the requested fees. Evidence elicited through oral
testimony, cross examination, and the introduction of
exhibits is competent evidence upon which an attorney's fee
award can be based. Audit Services, Inc. v. Haugen (1979),
181 Mont. 9, 15, 591 P.2d 1105, 1109.
Such a hearing was conducted in the instant case. The
District Court heard the testimony of experts for both sides
as well as the testimony of Glaspey's attorney. The court
also accepted an affidavit itemizing the number of hours
expended on the suit by Glaspey's counsel. Under these
circumstances the Workmans' argument that the award of
attorney's fees was not based upon competent evidence is
without foundation.
The Workmans also maintain that an attorney's fee of
$7,500 on a wage claim of less than $2,000 is unreasonable as
a matter of law. We cannot agree. An attorney's fee that
exceeds the amount in controversy is not per se excessive.
- Simkins-Hallin Lumber Co. v. Simonson (Mont. 1984), 692
See
P.2d 424, 41 St.Rep. 2305. Each case depends on its own
unique set of facts.
The relation between the amount of fees requested and
the judgment is just one of several factors a district court
should consider when making an award of attorney's fees. The
elements a district court should examine when determining the
reasonableness of an attorney's fee include the following:
(1) the amount and character of the services
rendered; (2) the labor, time, and trouble
involved; (3) the character and importance of the
litigation in which the services were rendered; (4)
the amount of money or the value of the property to
be affected; (5) the professional skill and
experience called for; (6) the character and
standing in their profession of the attorneys; and
( 7 ) the result secured by the services of the
attorneys.
Magers, 750 P.2d at 453, 45 St.Rep. at 288. If the evidence
supports these factors, we will not upset an attorney's fee
award.
There can be no doubt of the importance of the present
litigation. Glaspey had not been paid wages due and owing.
The only way he could be made whole was by pursuing action
against the Workmans personally. The legislature has
recognized the gravity of an employee's right to wages by
providing penalties against employers who fail to pay wages
due, 5 39-3-206, MCA, and by requiring an award of attorney's
fees to employees who successfully maintain suit to collect
wages, S 39-3-214, MCA.
Furthermore, this case presented more than a simple
matter of collection. Glaspey was forced to pierce the
corporate veil of Bernadette's in order to collect his claim.
The record shows that considerable time and energy was
expended toward this end. Glaspey's attorney engaged in
discovery, research and trial preparation to win a judgment
against the Workmans. Glaspey was then compelled to pursue
an appeal to this Court to secure attorney's fees that were
denied by the District Court.
The District Court judge determined the reasonableness
of the requested fees from a most advantageous position.
Having presided over the case from the initial filing of the
pleadings, he had the opportunity to observe the wrangling of
the parties throughout the suit. After an evidentiary hearing
he granted attorney's fees of $7,500, an amount that was
less than the $10,457 requested by Glaspey. We can find no
abuse of discretion under these circumstances.
Glaspey asks for damages under Rule 32, M.R.App.P.,
claiming that this appeal by the Workmans was without merit.
Although we have not agreed with the Workmans' contentions,
we cannot say that the appeal was taken without reasonable
grounds. We therefore deny Glaspey's request for damages.
Glaspey also requests attorney's fees incurred on this
appeal. In Glaspey - , we stated:
I
the legislature's intent in passing [ S 39-3-214,
MCA,] was to provide an employee who wins a
judgment for wages due against an employer a
vehicle by which to receive attorneys fees and thus
be made whole.
Glaspey -I, 749 P.2d at 1084, 45 St.Rep. at 228. That
reasoning applies here and Glaspey is entitled to attorney's
fees for this appeal.
We affirm the District Court's previous order awarding
attorney's fees to Glaspey and remand for an evidentiary
hearing on the matter of attorney's fees incurred on this