Springer v. Becker

96-602

No. 96-602

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

MIKE SPRINGER,

Plaintiff, Respondent
and
Cross-
Appellant,
vs.

JASON BECKER, a police officer
for
the City of Bozeman; CITY OF
BOZEMAN,
as a political subdivision of the State of
Montana,

Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Barry G. OþConnell, Moore, OþConnell & Refling, Bozeman, Montana

For Respondent:

Nathan J. Hoines, Great Falls, Montana

Submitted on Briefs: March 6, 1997

Decided:
Filed:

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__________________________________________
Clerk

Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from certain judgments entered by the Eighteenth Judicial
District
Court, Gallatin County. On June 26, 1996, the District Court granted Plaintiff
Springer
(Springer) summary judgment on issues involving the City of Bozeman's liability to
Springer for damages. On July 11, 1996, the District Court entered judgment on a
jury
verdict for damages in Springer's favor and awarded Springer costs. From these
judgments, Defendants appeal and Springer cross appeals. We affirm in part, reverse
in
part and remand for further proceedings consistent with this Opinion.
We address the following issues raised on appeal:
1. Did the District Court err in granting Springer's motion for summary judgment?

2. Did the District Court abuse its discretion in awarding certain costs to
Springer?

We also address the following issue raised on cross appeal:

3. Did the District Court abuse its discretion in failing to award Springer
attorney fees
and costs pursuant to Rule 37(c), M.R.Civ.P., for proving requests for admissions
that
Defendants denied?
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Mike Springer (Springer) owned a 1968 Volkswagen van in September
1992 which he parked on the 2000 block of South Rouse in Bozeman, Montana. On
September 24, 1992, Parking Control Officer Bill McManis (McManis), placed a "Notice
of Abandoned Vehicle" on Springer's van which specified a tow date of September 25,
1992. Springer observed this notice and on September 25, 1992, prior to his van
being
towed, Springer moved his van from the east side of the street to the west side of
the
street. On September 28, 1992, Springer's van was towed. Subsequently, Police
Officer Jason Becker signed a Gallatin County Junk Vehicle Release form and
Springer's
van was destroyed. Springer was never notified that his van had been towed.
Springer brought this action against Defendants Jason Becker and the City of
Bozeman (collectively, the City) to recover damages for destruction of his 1968
Volkswagen van. The City first brought a motion for summary judgment which the
District Court denied. Subsequently, Springer filed a motion for summary judgment
which the District Court granted on June 26, 1996. The District Court held that
Springer's van was not a junk vehicle as defined by 75-10-501(4), MCA (1991), nor
was the van an abandoned vehicle as defined by 61-12-401(1), MCA (1991). On June
27, 1996, a jury trial was held on the issue of damages and a verdict of $1,500.00

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was
returned in Springer's favor. On July 11, 1996, the District Court entered judgment
for
Springer in the amount of $1,500.00 in damages plus $1,636.32 in costs. The City
appeals both the court's June 26, 1996 Order granting Springer summary judgment and
the court's July 11, 1996 Judgment in favor of Springer. Springer cross appeals
raising
the issue of whether the District Court abused its discretion by failing to award him
attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P. We affirm in part,
reverse
in part and remand for further proceedings consistent with this Opinion.
DISCUSSION
1. Did the District Court err in granting Springer's motion for summary
judgment?
After a hearing on Springer's motion for summary judgment, the District Court
determined that no genuine issues of material fact were in dispute and concluded that
Springer's van was not a junk vehicle pursuant to 75-10-501(4), MCA (1991), and was
not an abandoned vehicle pursuant to 61-12-401(1), MCA (1991). The District Court,
therefore, held that the City did not take reasonable efforts to notify Springer
after his
vehicle had been towed, pursuant to 61-12-402, MCA (1991). Accordingly, the
District Court granted Springer summary judgment.
Summary judgment is proper when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We
review a district court's grant of a motion for summary judgment de novo and apply
the
same criteria under Rule 56(c), M.R.Civ.P., as did the district court. DeVoe v.
State
(Mont. 1997), 935 P.2d 256, 262, 54 St.Rep. 207, 211. The moving party carries the
initial burden of establishing the absence of any genuine issues of material fact and
entitlement to judgment as a matter of law. DeVoe, 935 P.2d at 262 (citing Carelli
v.
Hall (1996), 279 Mont. 202, 207, 926 P.2d 756, 759). If the moving party satisfies
its
initial burden, the burden then shifts to the party opposing summary judgment to
present
evidence raising a genuine issue of material fact. DeVoe, 935 P.2d at 263 (citation
omitted). "Material issues of fact are identified by looking to the substantive law
governing the proceedings." DeVoe, 935 P.2d at 263 (citation omitted).
Section 75-10-501(4), MCA (1991), defines a "junk vehicle" as a "discarded,
ruined, wrecked, or dismantled motor vehicle, including component parts, which is not
lawfully and validly licensed and remains inoperative or incapable of being driven."
Pursuant to 61-12-401(1), MCA (1991), before a vehicle can be taken into custody,
whether it is designated as a "junk vehicle" or not, it must have been abandoned for
more
than five days on a city street. Furthermore, 61-12-402, MCA (1991), requires
that
when a vehicle is taken into custody, notice must be given to the registered owner
of the
vehicle concerning the location of the vehicle by a registered or certified letter
mailed,
at least 30 days before the vehicle is sold, to the latest address shown in the

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records of
the office of the department of justice, return receipt requested and postage
prepaid.
However, an exception to this notice requirement provides that a vehicle found by law
enforcement officials to be a "junk vehicle" as defined by 75-10-501, MCA, and
certified as having an appraised value of $100 or less, as determined by the
Department
of Revenue, may be directly submitted for disposal without notice and without a
required
holding period. Section 61-12-402(6), MCA (1991).
The City, based on the above statutory sections, argues that summary judgment
was not proper in this case because genuine issues of material fact existed.
Specifically,
the City argues that the District Court ignored the uncontroverted affidavits of Bill
McManis and Arletta Derleth which stated that Springer's 1968 Volkswagen van had been
parked on a city street for more than five days; had expired license plates; had
structural
damage and lacked windshield wipers; and had an assessed value of less than $100.00.
The City asserts that based on these affidavits, the issues of whether Springer's
van was
a "junk vehicle" and whether the City properly disposed of Springer's van should have
been presented to a jury, and, therefore, we should reverse the District Court's
Order
granting Springer summary judgment.
Springer responds that we should affirm the District Court's Order granting his
motion for summary judgment because the City has failed to raise any genuine issues
of
material fact. First, Springer argues that the City failed to argue that a genuine
issue of
material fact existed as to the third requirement of 75-10-501(4), MCA (1991),
which
provides that before a vehicle can be classified as a junk vehicle, it has to remain
"inoperative or incapable of being driven." Springer asserts that the undisputed and
uncontroverted evidence shows that his van was operable and capable of being driven
because he had moved his van from the east side of the street to the west side of the
street before it was towed and destroyed. Springer, therefore, contends that
because all
three elements of 75-10-501(4), MCA (1991), were not satisfied, his van could not
be
classified as a junk vehicle.
Second, Springer argues that the City failed to argue that a genuine issue of
material fact existed as to whether Springer's van was an abandoned vehicle pursuant
to
61-12-401(1), MCA (1991). Springer again asserts that it is an uncontroverted
fact that
after he observed the "Notice of Abandoned Vehicle," but before the City towed his
van,
he moved his van from the east side of the street to the west side of the street.
Furthermore, Springer points out that McManis admitted in his deposition that he had
no
personal knowledge concerning the length of time that Springer's van had been parked
on the street and that he did not believe that Springer's van was an abandoned

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vehicle.
Therefore, Springer contends that, based upon these uncontroverted facts alone, his
van
could not be classified as an abandoned vehicle under 61-12-401(1), MCA (1991).
Finally, relying on Dagel v. City of Great Falls (1991), 250 Mont. 224, 819 P.2d 186,
Springer argues that the City should be equitably estopped from arguing that
Springer's
van was an abandoned vehicle based on the actions of McManis and the City's violation
of their policy concerning abandoned vehicles.
It is important to first note that the transcript of the June 24, 1996 summary
judgment hearing is not included in the record provided to this Court on appeal. The
City, as appellant, had a duty under Rule 9(a), M.R.App.P., to provide this Court
with
a record sufficient to enable us to rule upon the issues raised. While it would be
appropriate to dismiss this appeal for the City's failure to provide this Court with
a
sufficient record, dismissal need not be automatic in every instance where a party
fails
to strictly follow the Rules of Appellate Procedure. Williams v. Rigler (1988), 234
Mont. 161, 163, 761 P.2d 833, 834. Here, while the lack of a summary judgment
hearing transcript limits our review of this issue, any detriment inures to the
City, not
Springer. Therefore, we will address the issues raised by the City.
We agree with Springer that the City failed to present an argument concerning
the
third requirement of 75-10-501(4), MCA (1991), and, thereby, failed to raise a
genuine
issue of material fact concerning the classification of Springer's van as a junk
vehicle.
From the record provided this Court, we note that it is uncontroverted that Springer
moved his van from the east side of the street to the west side of the street before
the
City towed and destroyed his van. Additionally, McManis acknowledged in his
deposition that prior to having Springer's van towed and impounded, he did not know
if
the van was capable of being operated and driven. Consequently, we conclude that the
undisputed and uncontroverted facts show that Springer's van was operable and capable
of being driven prior to the time the City had Springer's van towed and destroyed.
Accordingly, we hold that the District Court correctly determined that Springer's
van was
not a junk vehicle as defined by 75-10-501(4), MCA (1991).
Next, pursuant to 61-12-401(1), MCA (1991), before a vehicle can be taken into
custody, whether it is a junk vehicle or not, it must have been abandoned for more
than
five days on a city street. We again agree with Springer that the City has failed
to raise
any genuine issues of material fact concerning this issue. The record shows that
after
observing the "Notice of Abandoned Vehicle" placed on his van by McManis on
September 24, 1992, Springer moved his van to the opposite side of the street the
next
day. Furthermore, McManis admitted in his deposition that he had no personal

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knowledge of how long Springer's vehicle had been parked on the city street and he
further admitted that he did not believe that the van was an abandoned vehicle, but
rather
that the vehicle was a junk vehicle. Based on these uncontroverted facts, we hold
that
the District Court correctly concluded that Springer's van was not an abandoned
vehicle
pursuant to 61-12-401(1), MCA (1991).
We conclude that the record provided to us contains no evidence raising a
genuine
issue of material fact as to whether Springer's van was a junk or abandoned
vehicle. On
that basis, we further conclude that Springer was entitled to summary judgment as a
matter of law. Accordingly, we affirm the District Court's Order granting Springer
summary judgment, wherein the District Court ruled that Springer's van was not a junk
vehicle pursuant to 75-10-501(4), MCA (1991), and was not an abandoned vehicle
pursuant to 61-12-401(1), MCA (1991), and, therefore, concluded that the City did
not
take reasonable efforts to notify Springer after his vehicle had been towed,
pursuant to
61-12-402, MCA (1991). Consequently, based on this holding, we do not reach
Springer's claim that the City was estopped from arguing that Springer's van was an
abandoned vehicle.
2. Did the District Court abuse its discretion in awarding certain costs to
Springer?
In its order granting Springer's motion for summary judgment, the District Court
scheduled a jury trial to hear the issue of damages. After this trial, the jury
awarded
Springer $1,500.00 in damages. Thereafter, pursuant to 25-10-201, MCA, Springer
filed a "Bill of Costs" with the District Court in the amount of $1,636.32.
Subsequently,
the District Court entered judgment awarding Springer $1,500.00 in damages and
$1,636.32 in costs.
Section 25-10-201, MCA, provides:
A party to whom costs are awarded in an action is entitled to include in his
bill of costs his necessary disbursements, as follows:

(1) the legal fees of witnesses, including mileage, or referees and
other officers;
(2) the expenses of taking depositions;
(3) the legal fees for publication when publication is directed;
(4) the legal fees paid for filing and recording papers and certified
copies thereof necessarily used in the action or on the trial;
(5) the legal fees paid stenographers for per diem or for
copies;
(6) the reasonable expenses of printing papers for a hearing when
required by a rule of court;
(7) the reasonable expenses of making transcript for the supreme
court;
(8) the reasonable expenses for making a map or maps if required
and necessary to be used on trial or hearing; and
(9) such other reasonable and necessary expenses as are taxable

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according to the course and practice of the court or by express provision of
law.
While the trial court has broad authority in taxing costs, Cash v. Otis
Elevator Co.
(1984), 210 Mont. 319, 333, 684 P.2d 1041, 1048, not every litigation expense is
recoverable, Luppold v. Lewis (1977), 172 Mont. 280, 292, 563 P.2d 538, 545. Rather,
þ[o]nly those costs delineated in 25-10-201, MCA, may be charged to the opposing
party unless the item of expense is taken out of 25-10-201, MCA, by a more
specialized statute, by stipulation of the parties or by rule of court." Thayer v.
Hicks
(1990), 243 Mont. 138, 158, 793 P.2d 784, 796-97 (citing Luppold, 563 P.2d at 545).
Here, because neither of the parties argue that the disputed costs are controlled by
a more
specific statute, stipulation of the parties or a rule of court, 25-10-201, MCA,
controls
this issue. We review the District Court's award of costs to determine whether the
District Court abused its discretion. Gilluly v. Miller (1995), 270 Mont. 272, 274,
891
P.2d 1147, 1148.
The City argues that the District Court abused its discretion when it awarded
Springer $1,636.32 because most of the costs identified in Springer's "Bill of
Costs" do
not fall within 25-10-201, MCA. In fact, the City argues that only $175.00 for
filing
fees is allowable. First, the City argues that Springer's request for costs of 509
photocopies ($127.25) along with costs for facsimile transmittals ($17.00) and costs
for
copies of juror questionnaires ($2.10) is not allowable under 25-10-201, MCA.
Specifically, the City relies on Thayer, 793 P.2d at 798, to assert that the
District Court's
discretion should be limited to allowing only the costs incurred in constructing
exhibits
admitted at trial and that because only two exhibits were used at trial, Springer's
request
for costs of 509 photocopies is not appropriate. Furthermore, the City argues that
costs
for facsimile transmittals and copies of juror questionnaires are not necessary
litigation
expenses, and, therefore, should not be allowed.
Springer responds that all of the photocopy costs were reasonable and necessary
expenses allowed for by 25-10-201(9), MCA. Furthermore, Springer asserts that the
District Court is in the best position to make a determination of what costs are
taxable
according to the course and practice of the court. Additionally, Springer suggests
that
we follow the lead of the federal court system wherein photocopying costs are
allowable
pursuant to 28 U.S.C. 1920 (1991).
Next, the City argues that Springer's request for costs of postage ($27.80) and
UPS charges ($11.25) should not be allowed because theses costs also are not
necessary
litigation expenses pursuant to 25-10-201(9), MCA. Additionally, the City argues

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that
the cost identified as a "Service Fee" ($230.00) should not be allowed because it is
not
an identified allowable cost, nor is it reasonable or necessary. Furthermore, the
City
argues that the imposition of long distance telephone charges ($33.67) is erroneous
because, in Thayer, this Court held "[t]elephone charges, however, may not be taxed
as
costs under any circumstances." Thayer, 793 P.2d at 798.
Springer responds that this Court should not follow the attempt in Thayer to
limit
the District Court's discretion in awarding costs, but, rather, we should return to
giving
the District Court broad discretion under 25-10-201(9), MCA, to determine whether
these costs are taxable according to the course and practice of the court. Springer,
relying on Luebben v. Metlen (1940), 110 Mont. 350, 100 P.2d 935, further argues that
only if we affirm the District Court's award of costs will he be indemnified against
the
expense of asserting his right to be compensated for the City's wrongdoing in
destroying
his property.
Finally, the City again relies on Thayer and argues that Springer's claim for
deposition costs ($454.25) is not allowable because the depositions were not used at
trial.
Moreover, the City asserts that Springer's request for $558.00 to cover his counsel's
mileage expenses for five separate trips from Great Falls to Bozeman is not a
statutorily
identified allowable cost. Springer responds that while the depositions were not
used at
trial, they were filed with the court and used by both parties in their motions for
summary judgment, and, therefore, these deposition costs are allowable.
Additionally,
Springer asserts that his counsel's mileage expenses were allowable because they were
reasonable and necessary litigation expenses.We hold, as a general proposition,
that a party ultimately prevailing on summary judgment is entitled to the same
allowable
costs as if the case had been disposed of at trial. See e.g. Fisher v. State Farm
Ins. Cos.
(Mont. 1997), ___ P.2d ___, ___, 54 St.Rep. 151, 152 (explaining that costs for
depositions used by the court in a dispositive summary judgment motion are
allowable).
Consequently, here, because Springer prevailed both on summary judgment and at trial
for damages, he is entitled to recover any costs which he incurred in either
proceeding,
as allowed by 25-10-101 and 25-10-201, MCA. Accordingly, to determine whether
the District Court abused its discretion in awarding all of Springer's claimed
costs, we
will consider the law as it applies to each of the disputed costs in turn.
In Thayer, we limited the broad discretion of the District Court under 25-10-
201(9), MCA, by holding that a District Court should allow only those photocopying
costs which were incurred in constructing exhibits admitted at trial. Thayer, 793
P.2d

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at 798. Additionally, as the City correctly argues, we also held in Thayer that
"[t]elephone charges . . . may not be taxed as costs under any circumstances."
Thayer,
793 P.2d at 798. However, we note that the additional disputed costs for postage,
UPS
charges and a "Service Fee" are not specifically disallowed by Thayer or by statute,
and,
therefore, the awarding of these costs is properly left to the broad discretion of
the
District Court under 25-10-201(9), MCA, to determine whether these costs are
"reasonable and necessary expenses . . . according to the course and practice of the
court
. . .."
Furthermore, we recently reiterated the rule that deposition costs are
recoverable
not only for depositions used at trial, but for depositions filed with the district
court and
used by the court in a dispositive summary judgment motion. Fisher, 54 St.Rep. at
152
(citing Roy v. Neibauer (1981), 191 Mont. 224, 227-28, 623 P.2d 555, 557). However,
in Thayer, when considering the expenses associated with the audio-visual depositions
used, we limited the allowable costs for audio-visual or tape recorded depositions
to only
those expenses incurred in recording, transcribing and editing the depositions.
Thayer,
793 P.2d at 798. We further explained that "airfares, hotel bills, rental car
expenses and
other incidental costs incurred in obtaining depositions" were not allowable costs.
Thayer, 793 P.2d at 798. In the case at bar, it appears that the depositions were
recorded
stenographically. Despite the different recording method used here, the rule
established
in Thayer still applies. That is, only those deposition expenses incurred in
recording,
transcribing and editing the depositions are allowable; any incidental costs
incurred are
not allowable costs. See Thayer, 793 P.2d at 798.
Finally, we note that while 25-10-201(1), MCA, specifically allows for witness
mileage, the statute is silent as to whether counsel's mileage is also allowable.
Consequently, like the costs for postage, UPS charges, and "service fees," the award
of
counsel's mileage costs is left to the broad discretion of the District Court to
determine
whether these costs are "reasonable and necessary expenses . . . according to the
course
and practice of the court . . .." However, as we explained previously, any part of
Springer's counsel's mileage costs incurred when obtaining depositions are considered
incidental costs which are not allowed. Thayer, 793 P.2d at 798.
Based on the foregoing, we affirm the District Court's award of $175.00 in
filing
fees because these costs were not disputed. However, we reverse the District Court's
award of $33.67 for Springer's long distance telephone calls. Furthermore, we remand

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with instructions that the District Court determine what costs for photocopies
(including
the facsimile transmittals and copies for juror questionnaires) were expended on
exhibits
admitted at trial, and, therefore what photocopying costs are allowable.
Additionally, on
remand, the District Court must determine if the costs for postage, UPS charges, a
"Service Fee," and counsel's mileage are allowable pursuant to 25-10-201(9), MCA.
Finally, on remand, the District Court must determine whether it relied on the
depositions
of Springer, Bill McManis, James L. Conner and Jason Becker when it granted Springer
summary judgment. Moreover, the District Court must determine what portion of the
deposition expenses were incurred in recording, transcribing and editing the
depositions,
and, therefore, what deposition costs are allowable.
3. Did the District Court abuse its discretion in failing to award Springer
attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P., for proving requests for
admissions that the City denied?
On October 6, 1995, Springer served the City with Interrogatories, Requests for
Production and Requests for Admission, to which the City responded. On October 18,
1995, Springer served the City with Amended Requests for Admission, to which the
City
again responded. Springer asserts that the City denied Requests for Admission Nos.
9,
11, 12, and 22, which Springer later proved to be true through deposition testimony
and
which the District Court accepted as uncontroverted facts in granting Springer
summary
judgment. As a result, Springer asserts that he incurred attorney fees and costs.
Springer explains that he filed an Affidavit of Attorney Fees in the amount of
$2,187.00
pursuant to Rule 37(c), M.R.Civ.P., but did not list any costs with this Affidavit
because
he had previously submitted his "Bill of Costs" to the District Court pursuant to
25-10-
201, MCA. Consequently, on cross appeal, Springer contends that he is entitled to
attorney fees under Rule 37(c), M.R.Civ.P. The City responds that Springer is not
entitled to attorney fees because the City properly responded to all of Springer's
Requests
for Admission.
Rule 37(c), M.R.Civ.P., provides:
If a party fails to admit the genuineness of any document or the truth of any
matter as requested under Rule 36, and if the party requesting the
admissions thereafter proves the genuineness of the document or the truth
of the matter, the requesting party may apply to the court for an order
requiring the other party to pay the reasonable expenses incurred in making
that proof, including reasonable attorney's fees. The court shall make the
order unless it finds that (1) the request was held objectionable pursuant to
Rule 36(a), or (2) the admission sought was of no substantial importance,
or (3) the party failing to admit had reasonable ground to believe that the
party might prevail on the matter, or (4) there was other good reason for
the failure to admit.

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Springer argues that he proved the truth of the following requests for admission
through deposition testimony:
REQUEST FOR ADMISSION NO. 9: Admit that document 1 is
a notice of abandoned vehicle that was placed on plaintiff's 1968
volkswagen van on September 24, 1992.
RESPONSE: Deny.

REQUEST FOR ADMISSION NO. 11: Admit that the notice of
abandoned vehicle contains a tow date of September 25, 1992.
RESPONSE: It would appear that Document #1 which was attached
to Plaintiff's amended Request for Admission contains a handwritten entry,
the author of which is unknown, of "tow date of 09/25/92."

REQUEST FOR ADMISSION NO. 12: Admit that Officer Jason
Becker or any other Bozeman City Police Officer did not notify Plaintiff
before having his vehicle towed.
RESPONSE: Deny.

REQUEST FOR ADMISSION NO. 22: Admit that on September
28, 1992, Plaintiff's 1968 Volkswagen van was capable of being driven.
RESPONSE: Deny.
Upon review of the District Court record, it does not appear that the District
Court
addressed Springer's request for attorney fees pursuant to Rule 37(c), M.R.Civ.P.,
in its
findings of fact and conclusions of law entered June 26, 1996, or in any other
separate
order.
Nevertheless, after reviewing the deposition testimony taken by Springer and filed
with
the District Court, we conclude as a matter of law that Springer proved the truth of
Requests for Admission Nos. 9, 12 and 22, which Bozeman denied. Specifically,
McManis testified in his deposition that he placed a Notice of Abandoned Vehicle on
Springer's van on September 24, 1992 (see Request for Admission No. 9). Further,
McManis testified that he did not send Springer a certified letter notifying him
that his
van had been towed but rather only attempted to contact Springer by telephone (see
Request for Admission No. 12). Finally, McManis testified that prior to having
Springer's van towed, he did not know if the van was capable of being driven or
operated, whereas, Springer's undisputed deposition testimony explains that he drove
his
van to the opposite side of the street before Bozeman towed and destroyed it (see
Request
for Admission No. 22). Furthermore, we conclude as a matter of law that none of the
exceptions of Rule 37(c), M.R.Civ.P., preclude the District Court from awarding
Springer reasonable attorney fees.
However, we disagree with Springer that Bozeman's response to Request for
Admission No. 11 constitutes a denial. Rather, we conclude that Bozeman's response
was an admission, and, therefore, Springer is not entitled to reasonable expenses or
attorney fees under Rule 37(c), M.R.Civ.P., for proving the truth of Request for
Admission No. 11.
Consequently, we hold that the District Court abused its discretion when it

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failed
to award Springer attorney fees for proving the truth of Requests for Admission Nos.
9,
12 and 22, which Bozeman denied. Accordingly, we remand this issue to the District
Court for calculation of the amount of reasonable attorney fees to which Springer is
entitled and entry of an appropriate order.
In conclusion, we affirm the District Court's Order granting Springer summary
judgment. However, we reverse that part of the District Court's July 11, 1996
Judgment
awarding Springer costs for long distance telephone calls. Additionally, we remand
for
recomputation the issue of whether the remaining disputed costs awarded to Springer
in
the District Court's July 11, 1996 Judgment are allowable costs under 25-10-201,
MCA. Finally, we remand for calculation of the amount of attorney fees to which
Springer is entitled pursuant to Rule 37(c), M.R.Civ.P.
Affirmed in part, reversed in part and remanded for further proceedings
consistent
with this Opinion.

/S/ JAMES C. NELSON

We concur:

/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER

Justice Karla M. Gray, concurring in part and dissenting in part.
I concur in the Court's opinion on issues one and two and respectfully dissent
on
issue three, which relates to attorney fees under Rule 37(c), M.R.Civ.P. My concerns
about issue three are both procedural and substantive.
At the outset, I observe that neither the Affidavit for Attorney Fees
referenced by
the Court, nor any motion in support of which such an affidavit properly could be
filed,
is of record in this case. While Springer attaches a copy of the Affidavit to his
brief on
cross-appeal in this Court, that copy does not reflect a "filed" date and, indeed,
the
Affidavit is neither physically contained in the District Court record nor
referenced in the
Case Register which accompanies that record. Even assuming that an affidavit is
sufficient in and of itself to serve as a motion or official request to a district
court for
action, an assumption with which I would not agree since Rule 37(c), M.R.Civ.P.,
requires a party to "apply to the court for an order," it is my view that a district
court
cannot properly be held in error in failing to award relief--here, attorney fees--
which is

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not requested on the record.
I note in this regard that the City did file a response in the District Court to
Springer's "request" for attorney fees, and it may be that the parties, at least,
operated
under the joint misunderstanding that the "request" had been filed. Notwithstanding
the
parties' implicit agreement to address a matter not of record, however, it is my
view that
we perform a disservice to district courts when we "reverse" them on matters never,
in
fact, presented to them for resolution. Surely it must remain counsel's duty to
ensure that
matters intended to be filed are actually filed and made part of the record.
Even assuming arguendo, however, that a motion for attorney fees under Rule
37(c), M.R.Civ.P., and supporting affidavit were of record in this case, I would not
address the issue here. Springer was the prevailing party in the action and it was
Springer's "motion" for attorney fees which arguably had not been addressed before
the
District Court entered judgment in the case. Instead of bringing the "motion" to the
District Court's attention for determination either prior to, or soon after, the
judgment
was entered, Springer simply went ahead and served notice of entry of judgment,
thereby
beginning the running of the time during which the City could file its notice of
appeal.

Springer then filed a cross-appeal, arguing that the District Court abused its
discretion in failing to award him attorney fees pursuant to Rule 37(c), M.R.Civ.
P. This
Court addresses that issue on the merits. I would not, since Springer did not
provide the
District Court with an opportunity to determine the matter. At the very most, I
would
remand this issue to the District Court for purposes of clarifying the record and
addressing the "motion" on its merits. In my view, it simply is not our role to
address
an issue on appeal which has not been properly presented to the district court for
resolution. Furthermore, to hold that a district court abused its discretion in
failing to
award attorney fees under circumstances such as those before us here is simply
unfair to
the District Court.
Finally, I disagree with the Court's substantive resolution of the attorney fee
issue
regarding Requests for Admission Nos. 9 and 12. I will address each in turn under
the
three-step process set forth in Rule 37(c), M.R.Civ.P., which requires
determinations that
1) there was a failure to admit; 2) the requesting party later proved the truth of
the
matter; and 3) none of the four extenuating circumstances exists which might "excuse"
the failure to admit.

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Request for Admission No. 9 asked for an admission that "document 1 is a notice
of abandoned vehicle that was placed on plaintiff's 1968 [V]olkswagen van. . . ."
The
City denied. In fact, "document 1" was not the notice which was placed on Springer's
vehicle; it was a copy of that notice. Thus, while the City's denial was somewhat
technical, it was a proper denial. Nor did Springer later prove that "document 1"
was
the actual notice placed on Springer's van. McManis' deposition testimony that he
placed
"a Notice of Abandoned Vehicle" on Springer's van--on which the Court relies as
"proof"
that "document 1" was the actual notice--proves nothing of the sort.
Moreover, while it is clear that the first portions of Rule 37(c), M.R.Civ.P.,
are
not met with regard to the City's denial of Request for Admission No. 9, it is my
view
that the Court also errs in concluding that none of the extenuating circumstances
which
might excuse any improper denial was satisfied. Specifically, the second extenuating
circumstance listed in Rule 37(c) is that "the admission sought was of no substantial
importance" and that circumstance certainly applies to Request for Admission No. 9.
In
response to Request for Admission No. 1 in the same set of discovery from Springer,
the
City admitted that "on or about September 24, 1992, a Notice of Abandoned Vehicle was
placed on Plaintiff's 1968

Volkswagen van." In addition, the subsequent Final Pretrial Order in the case, filed
January 31, 1996, stated as an "AGREED UPON FACT" "[t]hat on or about September
24, 1992, a Notice of Abandoned Vehicle was placed on the Plaintiff's van." The
McManis deposition was not taken until May 21, 1996, months after it was agreed by
all
parties that a notice of abandoned vehicle was placed on Springer's vehicle on or
about
September 24, 1992. Thus, even assuming that the City had improperly denied Request
for Admission No. 9 and that Springer had later proved the truth of the matter via
McManis' deposition, the "admission sought was of no substantial importance" under
Rule 37(c), since it had been admitted and, indeed, incorporated into the
controlling Final
Pretrial Order. I would conclude that Springer is not entitled to attorney fees
with regard
to Request for Admission No. 9.
I would reach the same result on Request for Admission No. 12. The request was
to admit that no City police officer notified Springer "before having his vehicle
towed."
The City denied. In fact, the September 24, 1992, notice of abandoned vehicle
contained
a tow date of September 25, 1992. In my view, that notice was notice to Springer
prior
to towing his vehicle and, therefore, the City properly denied Request for Admission
No.

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12. In this regard, the Court again refers, in my view erroneously, to McManis'
deposition. There, McManis testified that he did not send Springer a certified
letter
notifying him that his van "had been towed," but merely attempted to contact Springer
by telephone. That testimony goes to post-towing events and not to the pre-towing
notice
to which Request for Admission No. 12 relates.
In summary, I would not address this cross-appeal issue. If addressing it, I
would
conclude, as does the Court, that Springer is not entitled to attorney fees with
regard to
Request for Admission No. 11 and is entitled to attorney fees with regard to Request
for
Admission No. 22. I disagree with the Court that Springer is entitled to fees
relating to
Requests for Admission Nos. 9 and 12. As a result, I would hold that Springer is
entitled
to fees with regard to only one of the four Requests for Admission for which such
fees
are sought.

/S/ KARLA M. GRAY

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