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:




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (1 of 15)4/16/2007 11:37:04 AM
 96-602




                                                          __________________________________________
                                                                         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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (2 of 15)4/16/2007 11:37:04 AM
 96-602


                                            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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (3 of 15)4/16/2007 11:37:04 AM
 96-602


                                        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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (4 of 15)4/16/2007 11:37:04 AM
 96-602


                                          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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (5 of 15)4/16/2007 11:37:04 AM
 96-602


   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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (6 of 15)4/16/2007 11:37:04 AM
 96-602


          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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (7 of 15)4/16/2007 11:37:04 AM
 96-602


                                              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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (8 of 15)4/16/2007 11:37:04 AM
 96-602


    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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (9 of 15)4/16/2007 11:37:04 AM
96-602


    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.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (10 of 15)4/16/2007 11:37:04 AM
 96-602


          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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (11 of 15)4/16/2007 11:37:04 AM
 96-602


                                        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

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (12 of 15)4/16/2007 11:37:04 AM
 96-602


                              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.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (13 of 15)4/16/2007 11:37:04 AM
 96-602


       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.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (14 of 15)4/16/2007 11:37:04 AM
 96-602


   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




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-602%20Opinion.htm (15 of 15)4/16/2007 11:37:04 AM