96-485
Nos. 96-485 and 96-486
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
WALLACE E. SMALL and
ANNELL SMALL,
Plaintiffs and Respondents,
v.
H. KERRY GOOD, III, and
STACY B. GOOD,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District, In and for the County
of
Missoula, the Honorable Douglas G. Harkin, Judge Presiding.
COUNSEL OF RECORD:
For Appellants:
Henry K. Good III, and Stacy B. Good (pro se), Swan Valley, Montana
For Respondent:
Kathleen O'Rourke-Mullins, Polson, Montana
Submitted on Briefs: June 12, 1997
Decided: August 12, 1997
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
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Kerry and Stacy Good appeal from the findings, conclusions, and order of the
Fourth Judicial District Court, Missoula County, quieting title to Wallace and Annell
Smallþs property and awarding the Smalls attorney fees and costs. We affirm in part
and
reverse in part.
The Goods raise the following claims as issues on appeal:
1. The Goods no longer have access for year-round services which they
enjoyed from 1979 to 1996.
2. The District Court doubted that the Goods used the road between 1980 and
1993.
3. The District Court unconstitutionally took the easement.
4. The District Court erred when it awarded attorney fees and costs.
BACKGROUND
In 1979, Henry and Jeanne Good (Goods, Sr.) sold property located along
Lindberg Lake, Missoula County, Montana, to their son, H. Kerry Good, III, and his
wife, Stacy. The Goods, Sr., historically used the "brown road" to access their
property. The Goods, Sr., retained an adjoining lot, which the Smalls purchased in
1980.
At about the same time, the Smalls constructed the "purple road" to access their
lot. The
area currently in dispute, the "red road," lies between a parking lot on the Smallsþ
property and the boundary between the Smallsþ and the Goodsþ lots.
Before 1980, guests of the Goods, Sr., parked north of the red road, which
resembled a wide forest path, and walked on it to access the residence of the Goods,
Sr.
When the Goods, Sr., conveyed their lot to the Goods, the deed included "an easement
for ingress and egress over existing roads." In 1993, the Goods began to travel
over the
red road and their use became noticeable to the Smalls. The Smalls sued to quiet
title.
The Goods counterclaimed to quiet title and asserted as an affirmative defense that
they
had established an easement either by grant or prescription.
At trial, Jeanne Good testified the red road was not an existing road in 1979.
The
Smalls testified they never observed the Goods traveling over the red road in their
vehicles before 1993. The District Court concluded that the red road did not exist
as an
access to the Goods' residence in 1979, and it was not conveyed to them as an
easement
by grant. The court also concluded that the Goods had not traveled along the red
road
long enough or in such a manner to establish a prescriptive easement. The court
quieted
title in favor of the Smalls and awarded them attorney fees and costs.
The Goods appeal.
DISCUSSION
1. The Goods no longer have access for year-round services which they
enjoyed from 1989 to 1996.
2. The District Court doubted that the Goods used the road between 1980 and
1993.
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We consolidate these two issues and treat them as an argument that the District
Courtþs findings are not supported by the evidence. This Court reviews a district
courtþs
findings of fact to determine whether they are clearly erroneous. Amerimont, Inc. v.
Gannett (1996), 278 Mont. 314, 318, 924 P.2d 1326, 1329. We determine whether a
finding is clearly erroneous by using the three-part test set forth in Interstate
Production
Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The DeSaye test
requires a review of the record to determine whether the findings are supported by
substantial evidence; to determine whether the district court misapprehended the
effect
of the evidence; and to determine whether a review of the record leaves this Court
with
a firm conviction that a mistake has been made. DeSaye, 820 P.2d at 1287.
The Goods argue that the District Court erred because it accepted the Smallsþ
version of the facts rather than their own. In nonjury trials, witness credibility
and the
weight of their testimony is a matter properly left to the discretion of the
district court.
Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357. Jeanne Good
was clear that, when the Goods, Sr., sold their property to the Goods, the conveyance
included existing roads. In 1979, the red road was not an existing road.
After a thorough review of the trial record, we conclude there is sufficient
evidence to support the courtþs findings and that evidence has not been
misapprehended;
nor do we have any conviction that a mistake has been made. We hold that the
District
Courtþs findings are not clearly erroneous.
3. The District Court unconstitutionally took the easement.
The Goods argue the District Court unconstitutionally took their property
because
the court did not find an easement in their favor. They provide no authority for
their
argument. An appellant carries the burden of establishing error by the trial court.
Moreover, Rule 23, M.R.App.P., requires the appellant to cite authority which
supports
the position being advanced on appeal. The Goods have failed to do so. We decline
to
further address this issue on appeal.
4. Did the District Court err when it awarded attorney fees and costs?
The Goods argue that the District Courtþs award of attorney fees is beyond the
scope of that allowed by law or equity. The Smalls respond that they were the
prevailing
party, the District Court did not abuse its discretion, and the Goods did not frame
the
award of attorney fees and costs as an issue for appeal.
The record reveals that the Goods raised the issue of attorney fees in their
motion
for a new trial. Because the issue was raised in a motion presented to and ruled on
by
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the District Court, we conclude that it is properly before us on appeal. See Hughes
v.
Blankenship (1994), 266 Mont. 150, 156, 879 P.2d 685, 688.
A. Attorney fees.
In its findings, conclusions, and order, the District Court relied on Martin v.
Randono (1981), 191 Mont. 266, 623 P.2d 959, and Foy v. Anderson (1978), 176 Mont.
507, 580 P.2d 114, which permit a court, through its equity power, to award attorney
fees to make a totally innocent party whole. After receiving an affidavit of
attorney fees
and costs, the District Court ordered the Goods to pay the Smalls $8,536 in attorney
fees
and $759 in costs.
In Randono, plaintiffs, as the party in possession of real property, sued to
quiet
title. The defendants prevailed on their counterclaim and requested attorney fees
pursuant
to 27-1-318, MCA. We affirmed the district courtþs refusal to award attorney fees
stating:
We turn now to defendantsþ claim for attorney fees. The general
rule is that in absence of statute or contract, attorney fees will not be
awarded. Bitney v. School Dist. No. 44 (1975), 167 Mont. 129, 535 P.2d
1273; Nikles v. Barnes (1969), 153 Mont. 113, 454 P.2d 608.
Defendants contend that attorney fees should be construed as ". .
. costs, if any, of recovering the possession [of real property]," pursuant to
section 27-1-318, MCA, or in the alternative such fees should be awarded
pursuant to the equitable principle espoused in Foy v. Anderson (1978), 176
Mont. 507, 580 P.2d 114. We decline to follow either contention in this
case.
The rule is well established in Montana. The statutory term "costs"
does not include attorney fees. Higgins v. Montana Hotel Corp. (1979),
[181 Mont. 149] 592 P.2d 930.
. . . .
As in Russell Rlty. Co., supra, this Court finds no abuse of
discretion by the lower court in not awarding attorney fees to the defen-
dants.
Randono, 623 P.2d at 962.
This Court affirmed the trial courtþs decision not to award attorney fees,
emphasizing that attorney fees may be awarded only in "some isolated cases."
Randono,
623 P.2d at 962. Furthermore, the Court explained that the statutory term "costs"
in
27-1-318, MCA, does not include attorney fees. Randono, 623 P.2d at 962. We
conclude that the District Courtþs reliance on Randono to make an equitable award of
attorney fees is misguided.
In Foy, Eggan and Foy were passengers in a car driven by Gilreath and struck by
Anderson. Eggan sustained minor injuries, but never presented or contemplated a
claim
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for damages against Anderson. Farmers Insurance Exchange, Andersonþs insurer,
refused coverage and would not defend the actions which Foy and Gilreath brought
against Anderson. Anderson filed a declaratory action against Farmers, its agent,
the
State Department of Highways, and Eggan as third parties, alleging wrongfully and
without legal basis that the State and Eggan had asserted claims against him.
We held that, because Eggan asserted no claim against Anderson and was forced
to hire an attorney to argue her motion to dismiss through no fault of her own, she
would
not be made whole without an award of attorney fees. Foy, 580 P.2d at 117. Foy is a
narrow exception and applies only where the action into which the prevailing party
has
been forced is utterly without merit or frivolous. Goodover v. Lindeyþs Inc.
(1992), 255
Mont. 430, 447, 843 P.2d 765, 776, citing State ex rel. Wilson v. Dept. of Natural
Resources (1982), 199 Mont. 189, 202, 648 P.2d 766, 772.
"This Court has consistently adhered to the principle that in the absence of
some
special agreement between the parties or statutory authorization attorney's fees are
not
recoverable by the successful litigant." Nickles v. Barnes (1969), 153 Mont. 113,
119-
20, 454 P.2d 608, 611-12, citing Kintner v. Harr (1965), 146 Mont. 461, 408 P.2d
487.
The Smalls present neither a statutory nor a contractual basis for an award of their
attorney fees. Therefore, we proceed to determine whether an exception applies.
This Court has infrequently invoked the equitable exception to the general rule
which prohibits an award of attorney fees absent a contract or statute. See Foy,
580 P.2d
114; Holmstrom Land Co. v. Hunter (1979), 182 Mont. 43, 48-49, 595 P.2d 360, 363;
Stickney v. State, County of Missoula (1981), 195 Mont. 415, 418, 636 P.2d 860, 862.
These cases share unique fact situations where a party was forced into a frivolous
lawsuit
and had to incur attorney fees to dismiss the claim.
The Smallsþ position as plaintiffs is entirely different from the third-party
defendantþs position in Foy. The Smalls retained an attorney to commence a quiet
title
action against the Goods. The Smalls were not forced to hire an attorney to help
them
defend against wholly meritless litigation initiated by another party as in Foy.
The Smalls
freely chose to hire an attorney to begin a legal action against the Goods. Foy is
clearly
distinguishable on these facts and is not controlling here. We hold that the
District Court
erred in awarding attorney fees to the Smalls.
We note that in cases of egregious violation or abuse of rules or procedure,
district
courts possess the authority to consider appropriate sanctions. Rule 11, M.R.Civ.P.,
provides in relevant part:
If a pleading, motion, or other paper is signed in violation of this rule, the
court, upon motion or upon its own initiative, shall impose upon the person
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who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the pleading, motion,
or other paper, including a reasonable attorneyþs fee. [Emphasis supplied.]
Rule 54(d), M.R.Civ.P., provides courts the authority to impose costs. It states:
Except when express provision therefor is made either in a statute of the
state of Montana or in these rules, costs shall be allowed as of course to the
prevailing party unless the court otherwise directs; . . . .
In citing these rules, we express no opinion as to their applicability to the
facts of
this case. Rather, we note them as authority for a district court to impose costs
and
sanctions which may arise under the unique facts of a case.
B. Costs.
The District Court ordered the Goods to pay $759 in costs associated with
witnesses, copies, photographs, and filing fees. Section 25-10-201, MCA, provides
which costs a party may include in his bill of costs:
(1) the legal fees of witnesses, including mileage, or referees and
other officers;
(2) the expenses of taking depositions;
(3) the legal fees for publications 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 a 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
according to the course and practice of the court or by express provision of
law.
The costs ordered by the District Court are allowable pursuant to 25-10-201,
MCA. We hold that the District Court did not err when it awarded the Smalls $759 in
costs. Affirmed on Issues 1 through 3 and the award of costs; reversed on the
award of attorney fees.
/S/ J. A. TURNAGE
We concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM REGNIER
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