No. 89-124
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
JAMES HAUGEN,
Plaintiff and Respondent,
-vs-
RICHARD W. NELSON and JOAN A. NELSON,
..
husband and wife,
Defendants and Appellants.
APPEAL FROM: ~istrictCourt of the Seventh Judicial district.^%
In and for the County of Richland c v'
The Honorable H. R. Obert, Judge presiding. 3
COUNSEL OF RECORD:
For Appellant:
~hillipN. Carter, Koch & Carter, ~ i d n e y ,Montana
For Respondent:
Peter 0 Maltese, Sidney, Montana
.
- - --
Submitted on Briefs: August 24, 1989
Decided: November 21, 1989
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.
On July 28, 1988, the defendants filed a motion for
attorney fees in the District Court, Seventh ~udicial
District, Richland County. The District Court denied
defendants' motion for attorney fees. The defendants
appealed the District Court order. We affirm.
The sole issue on appeal is:
Did the District Court err in refusing to award to
defendants their reasonable attorney fees incurred in
defending the plaintiff's claim made against them.
The plaintiff, James Haugen (Haugen), initiated this
suit in District Court to obtain a money judgment based on a
promissory note against the defendants Richard W. and Joan A.
Nelson (the Nelsons). Defendants in their answer claimed a
set-off against Haugen and asserted a counterclaim contending
they were entitled to reimbursement for certain partnership
debts and expenses.
Both parties asserted claims for attorney fees in their
pleadings. The parties' claims for attorney fees were based
on the following paragraph in the promissory note:
... In case suit or action is instituted to
collect this note, or any portion thereof, we
promise to pay such additional sums that the court
may adjudge reasonable as attorney fees in suit or
action.
On May 19, 1988, the trial was commenced in District
Court. Following the trial, the Nelsons' attorney made his
motion for dismissal of Haugen's case under Rule 41(b),
M.R.civ.P. On June 1, 1988, the District Court entered its
findings of fact, conclusions of law and order in this
action. The order dismissed Haugen's complaint and the
counterclaim of the Nelsons. The District Court made no
mention of the Nelsons claim for attorney fees incurred in
connection with Haugen's claim.
The Clerk of the District Court mailed notice of entry
of judgment to counsel for both parties on June 2, 1988.
Subsequently, Haugen submitted a motion for a new trial or
amendment of the order. The District Court denied this
motion on July 6, 1988. Before the denial, however, the
Nelsons' attorney, on June 14, 1988, mailed his notice of
entry of judgment, with attached copy of the ~istrictCourt's
June 1, 1988 order to Haugen's attorney.
On July 28, 1988, nearly six weeks after mailing notice
of entry of judgment, the Nelsons filed their motion for
attorney fees. On August 4, 1988, before the motion for
attorney fees could be heard, Haugen filed his notice of
appeal. Haugen failed to follow through on his appeal, and
on December 12, 1988, Haugen filed his own motion to dismiss
his notice of appeal.
ina ally, on January 3, 1989, the ~istrictCourt heard
the Nelsons' motion for attorney fees. The ~istrictCourt
denied the Nelsons' motions stating the following reason:
The defendants' motion for attorneys fees, filed on
July 28, 1988 is denied for the reasons that it was
not filed within 10 days after service of the
notice of entry of judgment which was June 14,
1988. his was required by rule 59(g), M.R.Civ.P.
Further, the Court had every intention of
dismissing ALL CLAIMS OF ALL PARTIES in its order
of June 1, 1988; this in the interest of justice.
Did the District Court err in refusing to award to
defendants their reasonable attorney fees incurred in
defending against the plaintiff's claim made against them?
The general rule regarding the award of attorney fees
provides that attorney fees are awardable only where a
statute or contract provides for the recovery. Northwestern
Nat. Bank v. Weaver-Maxwell (1986), 224 Mont. 33, 44, 729
p.2d 1258, 1264; Sliters v. Lee (19821, 197 M0n-t. 182,
183-184, 641 P.2d 475, 476. The parties' promissory note
agreement provided for reasonable attorney fees in actions
for its enforcement. Section 28-3-704, MCA, makes the right
to attorney fees reciprocal.
The defendants argue, § 28-3-704, MCA, and this Court's
holdings in Northwestern - - and
Nat. Bank liters dictate that
the ~istrict Court award them attorney fees as the prevailing
party.
However, the District Court denied the defendants'
attorney fees for the reason that the defendants failed to
comply with Rule 59(g), M.R.civ.P., as follows:
A motion to alter or amend the judgment shall be
served no later than 10 days after the service of
notice of entry of the judgment and may be combined
with a motion for a new trial herein
provided.. ..
Rule 54 (a), M.R.Civ.P. defines judqment as "the final
determination of the rights of the parties in an action or
proceeding and as used in these rules includes a decree and
any order from which an appeal lies . . ."
In its order dated June 1, 1989, the District Court
dismissed Haugen's complaint and the Nelsons counterclaim.
The District Court did not award attorney fees to either
party. The Nelsons argue that the District Court's order of
June 1, 1989 is interlocutory because it does not expressly
award or deny attorney fees. We find no merit with this
assertion. Under Rule 54 (a), M. R.civ.P., the court's order
was a final determination of the rights of the parties, and
thus a judgment. Even the Nelsons themselves deemed the
District Court's order a final judgment by virtue of the fact
that their attorney filed notice of entry of judgment on June
14, 1988 with the District Court. The word "judgment" is
blazed across the caption of the instrument filed by the
Nelsons.
The Nelsons1 efforts for relief from judgment came in
the form of a motion for attorney fees which they filed 45
days after service of notice of entry of judgment. This
Court in In re Marriage of McDonald (1979), 183 Mont. 312,
599 P.2d 356, 358, held Rule 59(g), M.R.civ.P. applies to
motions for attorney fees. In denying the petitioners
request for attorney fees, this Court in McDonald stated the
following:
Rule 59 (g), M0nt.R.Civ.P. provides: "A motion to
alter or amend the judgment shall be served no
later than 10 days after the service of the notice
of the entry of judgment ... " This rule applies
to petitions for costs and attorney fees filed
after entry of judgment. (Citations omitted. )
Proper application of the rules clearly prohibit
granting of the request for relief to the mother in
this case.
Notice of entry of the ~istrict Court order
required both parties to bear their own costs and
attorney fees which was served on the father on
December 30, 1977. Having failed to file the
petition for costs and attorney fees within ten
days of service, the District Court was without
jurisdiction to give the mother the requested
relief.
Since the Nelsons failed to file the motion 10 days
after the service of the notice of the entry of judgment,
their motion was untimely and the District Court was without
jurisdiction to grant attorney fees.
Next, the Nelsons argue that they have been deprived of
due process. The Nelsons contend that they were given no
opportunity to present evidence as to attorney fees at the
time of the hearing. The Nelsons and their attorney had
ample opportunity to present evidence at the hearing
regarding attorney fees. The Nelsons were given the
opportunity to testify to attorney fees, but chose not to
partake in the trial which led to the June 1, 1988 order of
the District Court. The Nelsons failed to attend the trial.
We find no deprivation of defendants' due process in this
case.
Furthermore, after reviewing the record, we find
attorney fees are not appropriate due to the excessive
dilatory tactics of both parties. Haugen's attorney filed
his complaint on June 8, 1982, and served defendant on July
27, 1982. Then Haugen's attorney simply slept on his claim.
in ally, after receiving two notices from the Clerk of the
~istrictCourt, Haugen, on January 9, 1987, filed a motion
for scheduling. The District Court set the trial for October
20, 1987, but the trial was further delayed by Haugen's
attorney's repeated continuances until May 19, 1988. ~ustice
should be administered economically, efficiently, and
expeditiously. Baruch v. ~ i b l i n (Fla. 1935), 164 So. 831,
833. A seven year delay, due solely to attorneys, is a far
cry from the proper administration of justice.
The Nelsons also played a role in prolonging the
administration of justice in this case. The Nelsons, like
Haugen, failed to pursue any action in this case until 1987.
When the case finally came to trial on May 19, 1988, the
Nelsons failed to attend the trial or offer any testimony on
their behalf. The record here is one of both attorneys
bickering among themselves at every level of this action.
The evidence in the record supports the District Court's
denial of any motion for attorney fees.
The Nelsons' motion for attorney fees constituted a
motion to amend a judgment. The defendants failed to file a
timely motion under Rule 59 (g), M.R.civ.P. and therefore the
~istrict Court properly denied their motion for attorney
fees. Furthermore, we find attorney fees are not appropriate
in view of the excessive dilatory tactics by both parties.
.-&
We affirm the ~ i s t r i c tCourt's holfiin$
J
--_
, 1
Justlce
,a
We Concur: A
, fl* %
9 hief Justlce