No. 92-193
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
FRANCES CAROLINE PARKER,
Plaintiff and Appellant,
-vs-
CARRIE WILMOTH ELDER, ROBERT DALTON $El' -3
AND VADA LEE DALTON,
Defendants and Respondents.
ck 3 m ; t l l
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CLERKOFSUPREMECOURT
STATE OF MONTANA
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas Y. Freeman and Natasha J. Morton, Law
Offices of Douglas Y. Freeman, Hardin, Montana
For Respondents:
James E. Torske, Attorney at Law, Hardin, Montana
Submitted on Briefs: August 6, 1992
Decided: September 3, 1992
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the ~istrictCourt of the ~hirteenth
Judicial District, County of Big Horn, State of Montana, the
Honorable G. Todd Baugh presiding. This is the second time this
mattes has been before this Court on appeal. In the original
appeal to this Court, Parker v. Elder (1988), 233 Mont, 75, 758
P.2d 292, this Court upheld the District Court's award of a
permanent injunction enjoining respondents from interfering with
appellant's use of a road that crossed respondent Carrie Wilmoth
Elder's land. The matter was returned to the District Court, which
subsequently heard testimony on the issues of appellant Frances
Parkerrsdamages and her attorney's fees of approximately $24,000.
The District Court thereafter awarded damages but denied Mrs.
Parker an award of attorney's fees. Mrs. Parker appeals the
~istrictCourt's denial of attorneyls fees. We affirm.
The sole issue before this Court is whether the prevailing
party in an injunctive action should be awarded attorney's fees, in
light of the fact that the prevailing party was forced to institute
a legal action to protect her rights from an unlawful self-help
course of conduct.
Mrs. Parker recognizes that, as a general rule, the prevailing
party in a civil action may not recover attorney's fees absent a
contractual agreement or express statutory authority. Harris v.
Baues (1988), 230 Mont. 207, 749 P.2d 1068; Martin v. Crown Life
Insurance Co. (1983), 202 Mont. 461, 658 P.2d 1099. Mrs. Parker
also recognizes that it has been well established in Montana that
2
under 5 27-1-318,
attorney's fees may not be recovered as 18costsN
MCA. Martin v . Randono (19811, 191 Mont. 266, 623 P.2d 959.
However, she notes that from time to time, this Court has created
an exception to the rule wherein the party that was successful in
a dissolved injunction was granted attorney's fees. Sheridan
Electric Co-op., Inc. v. Ferguson (L951), 124 Mont. 543, 227 P.2d
597; Boz-Lew Builders v. Smith (1977), 174 Mont. 448, 571 P.2d 389;
and Marta v. Smith (l98O), 191 Mont. 179, 622 P.2d 1011. There
have been no holdings, however, and we concur in this instance,
that where an injunction was granted attorney's fees should be
recovered.
A reading of the above-listed cases relied on by Mrs. Parker
reveals that they were cases where special circumstances existed;
that the t r i a l courts, in arriving at their decisions, took into
account the special circumstances; and that the courts based their
decisions on those special circumstances.
In the case at bar, the trial court found that no exceptional
circumstances existed to evoke a judicially created exception to
the general rule relating to attorney's fees. The court in its
findings concluded:
To impose attorney fees on a losing party as a general
rule would be a deterrent to use of the courts and could
result in denial of justice and even property damage and
personal injury.
In this case, there is nothing beyond that which the
prevailing party has in any other case to recommend an
award of attorney fees and the Court concludes that
plaintiff must bear her own attorney fees.
We note that while the District Court concluded that Mrs.
Parker suffered no actual damage, it did grant her exemplary
damages in the amount of $5,000 in addition to $850.97 in c o s t s .
I n doing so the court found that the respondents were wrong in
c l o s i n g the c o n t e s t e d road over their property but that they had
committed no crime. We find there is substantial, credible
evidence to support the District Court's findings relating to the
denial of attorney's fees under the circumstances and that those
findings are not clearly erroneous.
Affirmed.
Justices
Justice Terry N. Trieweiler dissents.
I dissent from the opinion of the majority. Section
27-19-406, MCA, provides that when an injunction is granted and
afterward dissolved, the party who was successful in having the
injunction dissolved may recover attorney fees. In this case, if
the respondents had been successful they would have been entitled
to an award of attorney fees. It makes no sense and is not
equitable that the plaintiff who was, after all, the aggrieved
party, is not entitled to the same relief.
In Foy v Anderson (l978), 176 Mont. 507, 580 P.2d 114, we held
.
that in spite of the traditional rule that a prevailing party is
not entitled to an award of attorney fees, attorney fees can be
awarded at the discretion of the trial court where it is necessary
in order to achieve an equitable result. In affirming an award of
attorney fees to the defendant in that case, we stated:
If defendant Eggan is dismissed from the case and not
awarded attorney fees, she will not be made whole or
returned to the same position as before plaintiff
Anderson attempted to bring her into the lawsuit.
Likewise, in this case, without an award of attorney fees,
plaintiff is not returned to the same position as before access to
her property was unlawfully obstructed. Furthermore, without an
award of attorney fees, she has not received the same protection
under the l a w that defendants would have received had they
prevailed i n t h i s action.
Therefore, I would reverse t h e judgment of the D i s t r i c t Court.
September 3, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Douglas Y. Freeman & Natasha J. Morton
LAW OFFICES OF DOUGLAS Y. FREEMAN
P.O. Drawer 429
Hardin, MT 59034
JAMES E. TORSKE
Attorney at Law
314 No. Custer Ave.
Hardin, MT 59034
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA