NO. 96-250
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
ANNETTE JONES,
Plaintiff and Appellant,
CITY OF BILLINGS, an
Incorporated Municipality,
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstoae,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
FOK Appellant:
Paul E. Toennis; Oliver, Graves, Toennis &
Gustafson, Billings, Montana
patrick E. Kenney; Kenney Law Firm,
Billings, Montana
For Respondent:
K. D. Peterson; Peterson & Schofield,
Billings, Montana
Submitted on Briefs: August 29, 1996
Decided: November 21, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Annette Jones (Jones) appeals from the order of the Thirteenth
Judicial District Court, Yellowstone County, denying her
postjudgment motion for attorney fees. We affirm.
The sole issue on appeal is whether the District Court abused
its discretion in denying Jones' motion for attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
Jones was employed by Mountain Harvest, a pizza crust factory
in Billings, Montana. On October 15, 1993, she left work in her
vehicle shortly after 3:00 p.m., accompanied by a passenger,
Anthony Payton (Payton). Jones proceeded north on South 24th
Street West. As she approached the intersection of South 24th
Street West and Monad Road, she moved her vehicle into the left
turn lane, intending to turn left and head west on Monad Road.
The intersection of South 24th Street West and Monad Road was
controlled by a so-called "lagging protected/permissiveu traffic
light. At the end of the traffic light cycle, the northbound,
eastbound and westbound lights would all be red, but the southbound
light would remain green for a preset amount of time or until
southbound traffic turning left to head east on Monad Road cleared
the intersection. The car ahead of Jones in the left turn lane
completed its turn and, while the northbound light was still green,
Jones pulled into the intersection, waiting to turn left. While
she waited for oncoming traffic to clear the intersection, the
northbound light turned yellow and then red. Seeing no southbound
traffic approaching at a distance close enough to concern her,
Jones began to clear the intersection. Her vehicle Mas struck
broadside by a car traveling south on South 24th Street West which
had proceeded through the intersection at Monad Road on a green
light.
Jones and Payton were injured in the accident and Jones'
vehicle was totaled. Jones submitted a claim to the City of
Billings (City) for damages resulting from the City's alleged
negligence in improperly timing the traffic light at the
intersection of South 24th Street West and Monad Road. The City
denied the claim and Jones filed suit. In answering the complaint,
the City denied that it was negligent and affirmatively alleged
that Jones' negligence caused her injuries and damages.
After a four-day trial, the jury found that the City
negligently established ~ n maintsjned the traffic sign&.! system at
d
t.he intersection 3.d that. its negligence was a proximate cause of
the accident. The jury also found that Jones acted negligently,
but that her negligence was not a proximate cause of the accident.
Finally, the jury awarded Jones $20,000 for the personal injuries
she sustained as a result of the accident.
The District Court entere6 judgment in Jones' favor for
$20,000,postjudgment interest and costs. Jones subsequently moved
for attorney fees and costs pursuant to S 25-10-711, MCA. The
District Court granted her notion for reasonable costs because the
City did not object, but denied the motion for attorney fees.
Jones appealed.
DISCUSSION
Did the District Court abuse its discretion in denying
Jones' motion for attorney fees?
Jones moved for attorney fees under § 25-10-711, MCA,
contending that the City's defense against her negligence claim was
frivolous or in bad faith. Section 25-10-711, MCA, provides, in
pertinent part:
(1) In any civil action brought by or against the
state, a political subdivision, or an agency of the state
or a political subdivision, the opposing party, whether
plaintiff or defendant, is entitled to . . . reasonable
attorney's fees as determined by the court if:
(a) he prevails against the state, political
subdivision, or agency; and
(b) the court finds that the claim or defense of
the state, political subdivision, or agency that brought
or defended the action was frivolous or pursued in bad
faith.
Here, Jones clearly prevailed against the City and, as a result,
she satisfied § 25-10-711(1)(a), MCA. Thus, she was entitled to
attorney fees pursuant to § 2 5 - 1 0 - 7 1 1 1 MCA, if the City's
defense was frivolous or in bad faith pursuant to § 25-10-
711 (1)(b), MCA. A claim or defense is frivolous or in bad faith
under § 25-10-711(1) , MCA, when it is "outside 'the bounds of
(b)
legitimate argument on a substantial issue on which there is a bona
fide difference of opinion."' See Armstrong v. State, Dept. of
Justice (1991), 250 Mont. 468, 469-70, 820 P.2d 1273, 1274 (quoting
Dept. of Revenue v. New Life Fellowship (1985), 217 Mont. 192, 195,
703 P.2d 860, 862; citing Albertson's Inc. v. Dept. of Business
Regulation (1979), 184 Mont. 12, 18, 601 P.2d 43, 46)
The District Court ultimately found, pursuant to § 25-10-
711(1) (b), MCA, that the City's defense was not frivolous or in bad
faith because (1) the City presented expert testimony that the
traffic signal system complied in all respects with the Manual on
Uniform Traffic Control Devices (CD Manual), which state law
required the City to follow; (2) the jury found that Jones was
negligent as the City claimed; and (3) the jury only awarded Jones
approximately one-third of the damages she sought. In essence,
these are findings of fact because they relate to matters of
record. We review a trial court's findings of fact under the
"clearly erroneous" standard, the first part of which is whether
the findings are supported by substantial evidence. Rule 52(a),
M.R.Civ.P.; Aasheim v. Reum (Mont. 1996), 922 P.2d 1167, 1169, 53
St.Rep. 771, 772 (citation omitted). Given the Armstronq test,
however, it is clear that an element of discretion remains in a
trial court's § 2 5 - 1 0 - 7 1b , MCA, determination regarding a
frivolous or bad faith defense. Thus, our usual abuse of
discretion standard for reviewing a trial court's denial of a
motion for attorney fees also applies here to the District Court's
ultimate denial of Jones' motion for attorney fees under the
statutory frivolous or bad faith standard. See McKamey v. State
(1994), 268 Mont. 137, 148, 885 P.2d 515, 522 (citing Armstronq,
820 P.2d at 1274).
Here, the City defended against Jones' negligence claim on
three bases: it was not negligent; Jones was negligent and her
negligence caused the accident; and Jones' damages were excessive
and not proximately caused by the accident. The District Court
essentially found that the City's defenses were supported at trial.
In response to Jones' claim that the City caused the accident
by negligently establishing and maintaining a mistimed traffic
light at the intersection, the City presented expert testimony that
the traffic light phasing at the intersection was safe and
conformed to the requirements of state law. The City's traffic
engineer testified that he considered such variables as the volume
of traffic on both South 24th Street West and Monad Road and the
speed limit on these streets in determining which traffic light
display would be the safest to use at the intersection. He
testified that when the traffic light phasing at the accident
intersection was modified in 1991, he reviewed and approved the
modification because it complied with the CD Manual the City was
required to follow. The City's traffic transportation engineering
consultant also testified that the traffic light phasing at the
accident intersection met the requirements of the CD Manual. In
addition, the City's traffic electrician advisor testified that,
after the 1991 modification, he monitored the intersection for
approximately six months and determined that drivers at that
intersection were not experiencing problems due to the traffic
signal phasing sequence. Thus, the District Court's finding that
the City presented evidence that it was not negligent in
establishing and maintaining the traffic signal is supported by
substantial evidence.
Jones argues that the City's defense was frivolous and in bad
faith because its expert witnesses did not claim to know the proper
method of making a left turn under the circumstances confronting
her at the accident intersection. This argument focuses, however,
on Jones' efforts at trial to bolster her claim that the City's
negligence in establishing and maintaining the traffic light caused
the accident; it does not focus on the substantiality of the
defense against negligence which the City's evidence advanced. As
a result, Jones' argument was not within the scope of the District
Court's determination of whether the City's defense was frivolous
or in bad faith. See Weber v. State (l992), 253 Mont. 148, 154-55,
831 P.2d 1359, 1363.
In addition to its evidence relating to a lack of negligence,
the City presented evidence that Jones was negligent and caused the
accident by failing to yield the right-of-way to oncoming traffic.
The investigating police officer testified that, if Jones did not
see the oncoming car which ultimately struck her vehicle, she
negligently caused the accident by turning left in front of
approaching traffic. Moreover, Jones testified that she did not
see the southbound car which struck her vehicle until seconds
before the impact and that it was her responsibility to judge
oncoming traffic to determine if it was going to stop. In
addition, one of Jones' expert witnesses testified that Jones could
not rely entirely on the northbound red light in order to complete
her left turn, but needed to observe oncoming traffic; if she
improperly judged what the oncoming traffic was going to do, then
she was responsible for the accident. Thus, substantial evidence
supported the City's position that Jones' negligence caused the
accident.
As part of its defense, the City also presented evidence that
Jones' damage claim, which included substantial lost wages, was
excessive and not proximately caused by the accident. Two of
Jones' supervisors--one from Mountain Harvest and one from a
Billings casino where she worked as a food server and bartender for
approximately eight months after leaving Mountain Harvest--
testified that they did not observe any evidence that she suffered
from physical injuries as a result of the accident. Her Mountain
Harvest supervisor also testified that Jones continued to operate
a machine on the production line and stack heavy boxes of pizza
crusts until February of 1994. Jones' own testimony was that she
left both of the jobs because of stress and a painful cervical cell
growth. Thus, substantial evidence supported the City's defense to
Jones' damage claim and, indeed, the jury ultimately awarded her
less than one-third of the amount she sought.
Jones contends that the District Court improperly relied on
the reduced award of damages as support for its finding that the
City's defense was not frivolous or in bad faith. She cites to no
authority in support of this contention, however, and we held to
the contrary in Weber. There, Weber originally valued his case at
$500,000 and later offered to settle for $170,000; the jury
ultimately awarded him $33,230. Weber, 831 P.2d at 1363. We
observed that the district court properly pointed to those figures
as demonstrating that the State's defense was not frivolous.
Weber, 831 P.2d at 1363. Here, as in w, the District Court
properly relied on the jury's reduced award of damages in
determining that the City's defense of the case was not frivolous
or in bad faith.
Finally, Jones contends that the City was aware of an
informational report, published by the Western District Institute
of Transportation Engineers, which claimed that traffic signal
phasing of the type used at the accident intersection was not
appropriate at such intersections. Jones maintains that because
the City did not implement the recommendation presented in the
report, its proper timing defense was frivolous. We observe that,
while Jones moved to admit this report into evidence at trial, the
District Court excluded it on hearsay grounds. Jones did not
appeal this evidentiary ruling. As a result, the report is not
properly before us and we decline to address Jones' argument based
thereon.
We conclude that the District Court's findings relating to the
City's defense are supported by substantial evidence and are not
otherwise clearly erroneous. Here, the City presented substantial
evidence in support of its bona fide differences of opinion with
Jones regarding the substantial issues of whose negligence caused
the accident and the amount of Jones' damages. Armstronq, 820
P.2d at 1274. Therefore, we further conclude, under the Armstronq
test, that the District Court did not abuse its discretion in
determining that the City's defense was not frivolous or in bad
faith pursuant to 5 25-10-7111 b , MCA, and, on that basis,
denying Jones' motion for attorney fees.
Jones also contends that she is entitled to attorney fees
under the private attorney general doctrine or the "justice and
equity" theory. She did not raise these theories in the District
Court and it is well-settled that we will not address on appeal
issues not presented to the district court. Tisher v. Norwest
Capital Mgt. & Trust (1993), 260 Mont. 143, 156, 859 P.2d 984, 992
(citing Duensing v. Travelers Co. (1993), 257 Mont. 376, 386, 849
P.2d 203, 209). Therefore, we decline to address Jones'
alternative theories of entitlement to attorney fees.
As a final matter, we note that the City requests attorney
fees, costs and expenses for having to defend against a frivolous
appeal. Jones responds that this matter is raised for the first
time on appeal and, therefore, that we should not address it.
Jones apparently fails to understand that a respondent's request
for fees and costs as a sanction for an appellant's frivolous
appeal can hardly be raised at any time prior to the appeal. Here,
however, the City's request consists of one sentence in the
conclusion to its brief. The City does not even cite to the rule
under which its request is made, much less provide an analysis
supporting the request under the circumstances of this case. As a
result, we will not address the City's request.
We concur: