February 16 2010
DA 09-0096
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 35
LINDA PRESCOTT,
Plaintiff and Appellant,
v.
INNOVATIVE RESOURCE GROUP, LLC.,
a foreign limited liability company, d/b/a
APS HEALTHCARE MIDWEST,
Defendant and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 2008-0014
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Penelope S. Strong, Attorney at Law, Billings, Montana
For Appellee:
Steven J. Lehman, Christopher C. Stoneback, Crowley Fleck PLLP,
Billings, Montana
Submitted on Briefs: January 27, 2010
Decided: February 16, 2010
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Linda Prescott (Prescott) sued her former employer, APS Healthcare Midwest
(APS), for wrongful discharge. Following a trial, the jury delivered a verdict for APS.
APS sought attorney fees and costs. The Thirteenth Judicial District Court held a hearing
on fees and costs, at the conclusion of which it granted APS’s motion. Prescott appeals
this ruling. We affirm.
ISSUES
¶2 Prescott presents the following issues on appeal.
¶3 Should this Court review the designated errors in this case pursuant to the “plain
error rule” of M. R. Evid. 103(d)?
¶4 Did the District Court err by granting Prescott’s former counsel’s motion to
withdraw, given she had not consented to such withdrawal and opposing counsel had not
provided the required notice?
¶5 Does § 39-2-915, MCA, violate the Montana Constitution’s guarantees of access
to the courts and a jury trial?
¶6 Does § 39-2-915, MCA, violate the equal protection clause of Section 4, Article II
of the Montana Constitution?
¶7 Did the District Court err by failing to make findings of fact and conclusions of
law as to the award of attorney fees and costs?
FACTUAL AND PROCEDURAL BACKGROUND
¶8 In January 2008, Linda Prescott, who was represented by Attorney Beiswanger at
the time, sued her former employer, APS, for wrongful discharge. She sought lost wages,
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earnings, and benefits, as well as other relief deemed just and proper by the District
Court. APS responded that Prescott’s discharge was justified. Subsequently, APS
offered to submit the matter to binding arbitration. The letter to Prescott extending this
offer indicated that if arbitration was refused, APS would seek attorney fees in
accordance with § 39-2-915, MCA, in the event it prevailed at trial. The record does not
include Prescott’s response to the letter, but it is apparent arbitration did not occur and a
jury trial was held in November 2008. At the conclusion of the trial, the jury delivered a
verdict in favor of APS. Shortly thereafter APS submitted its Bill of Costs and
Attorney’s Fees, seeking to recover both. On November 24, 2008, Prescott moved the
court to tax the costs incurred in the action rather than award the costs claimed by APS.
¶9 The District Court set a hearing on costs for January 2, 2009. In the meantime,
Prescott’s counsel moved to withdraw as counsel for Prescott. The court rescheduled the
cost hearing for January 16, and indicated Beiswanger’s withdrawal motion would be
taken up at that hearing. On January 16, the court stated at the outset of the hearing that
the withdrawal motion would be addressed; however, the court never addressed it. The
hearing was devoted exclusively to the issue of fees and costs. At the conclusion of the
hearing, the District Court granted APS’s motion for fees and costs. Beiswanger acted as
counsel for Prescott throughout the hearing.
¶10 On January 20, the court issued its judgment and awarded $33,919.94 to APS in
fees and costs. It also issued an order granting Beiswanger’s motion to withdraw as of
January 16 at 5:00 p.m., stating that Prescott “in open Court” advised that she consented
to the motion of her attorney. On February 17, 2009, Prescott, representing herself, filed
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a Notice of Appeal of the court’s Final Judgment awarding costs and fees to APS. On
March 23, 2009, Attorney Strong filed a Notice of Appearance on behalf of Prescott and
represents Prescott in this appeal.
DISCUSSION
¶11 Prescott argues on appeal that § 39-2-915, MCA, is unconstitutional because it
violates certain constitutional rights, specifically her right to access the courts, her right
to a jury trial and her right to equal protection. Section 39-2-915, MCA, which is
contained in the chapter addressing wrongful discharge from employment, provides: “A
party who makes a valid offer to arbitrate that is not accepted by the other party and who
prevails in an action under this part is entitled as an element of costs to reasonable
attorney fees incurred subsequent to the date of the offer.” Prescott acknowledges that
she did not challenge the constitutionality of this statute in the District Court but urges us
to review it nonetheless pursuant to the “plain error rule” in M. R. Evid. 103(d), because
her substantial rights are affected.
¶12 APS responds that Prescott knew from the beginning of the District Court
proceeding that APS would seek fees and costs under § 39-2-915, MCA, and never raised
a constitutionality issue before the District Court. Therefore, in accordance with our
established caselaw, she cannot raise the issue for the first time on appeal. Moreover,
APS claims Prescott did not provide the constitutional challenge notice to the District
Court or to the Montana Attorney General as required by M. R. Civ. P. 24(d).
¶13 APS also asserts that we should not invoke the plain error doctrine to consider the
constitutionality of the challenged statute. It maintains that this is not an “exceptional
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case” warranting application of the doctrine because, despite Prescott’s assertion to the
contrary, her substantial rights were not affected. APS declares that Prescott, while
represented by counsel, had early notice of APS’s intention to seek fees under
§ 39-2-915, MCA, and she had “her day in court” at the fees and costs hearing. APS
insists that our refusal to review the alleged errors will not result in “a manifest
miscarriage of justice” or “compromise the integrity of the judicial process.” As such,
APS argues that we should not address Prescott’s constitutional issues.
¶14 It is indisputable that Prescott did not raise any constitutional challenge before the
District Court nor, as a result, did she provide the requisite notice to the court and the
Attorney General. We have held on numerous occasions that we will not put a district
court in error for failing to address an issue or an argument that was not made before it.
Signal Perfection, Ltd. v. Rocky Mt. Bank - Billings, 2009 MT 365, ¶ 13, 353 Mont. 237,
___ P.3d. ___ (citation omitted). Moreover, while Prescott submits numerous conclusory
statements about becoming a “judgment debtor” to APS, she fails to develop an adequate
factual record upon which we can rely in reviewing application of the statute to her case
under the plain error doctrine. For these reasons, we decline to address Prescott’s
constitutional challenges to § 39-2-915, MCA.
¶15 Prescott also argues that the District Court failed to make factual findings and
conclusions of law pertaining to the award of fees and costs. For one thing, she opines
that the record contains no evidence that she refused APS’s offered arbitration nor did the
District Court make a specific finding that she did so. She claims that a refusal of an
offer of arbitration is an “essential component of an award of attorneys fees pursuant to
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Sec. 39-2-915, M.C.A.,” and without an express finding of refusal, the court abused its
discretion in awarding fees. In addition, she argues that the court’s order awarding fees is
inadequate.
¶16 We review a district court’s grant or denial of attorney fees and costs for an abuse
of discretion. Trustees of Indiana University v. Buxbaum, 2003 MT 97, ¶ 15, 315 Mont.
210, 69 P.3d 663. We acknowledge that the court’s written order awarding costs and fees
to APS consisted of a single sentence. We note however that during the cost and fees
hearing, the court addressed on the record each of the factors set forth in Plath v.
Schonrock, 2003 MT 21, ¶ 36, 314 Mont. 101, 64 P.3d 984, in determining the
reasonableness of attorney fees. While it is the better practice for a court to set forth this
analysis and evaluation in its order awarding fees, we do not conclude that the court’s
failure to include this evaluation in its written order was an abuse of discretion justifying
reversal of the court’s order.
¶17 As to Prescott’s argument that the court failed to make a specific finding that she
refused the offer of arbitration, we conclude that such is implicit given the fact that the
offered arbitration never took place, the matter proceeded to trial, and there was no
motion made by Prescott to strike the prayer for fees presented pursuant to the statute.
Nor does Prescott assert on appeal that she actually agreed to arbitrate in response to
APS’s offer. We therefore decline to set aside the court’s order of fees on this basis.
¶18 Lastly, Prescott submits that she was prejudiced by her counsel’s withdrawal and
APS’s failure to provide notice to her as required by Uniform District Court Rule 10
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(Rule 10), as she may have otherwise pursued the prospect of filing post-trial motions.
Rule 10(b)(2) specifically requires:
When the attorney representing a party to an action . . . withdraws . . . that
party, before any further proceedings are had against him must be given
notice by any adverse party [of]: (2) [t]he date of the trial or of the next
hearing or action required in the case . . . .
¶19 It is undisputed that APS did not provide Rule 10 notice to Prescott after the
District Court’s January 20 order granting Beiswanger’s request to withdraw as counsel
for Prescott. However, by the time the court granted Beiswanger’s motion, the case was
essentially over. There were no “further proceedings” to be had against Prescott in the
matter, as the jury trial was concluded as was the hearing on costs and fees. By its terms,
Rule 10 does not obligate the adverse party to advise his opponent regarding the option or
possibility of pursuing post-trial proceedings in the district court. While we do not
condone the failure by APS to abide by Rule 10, we conclude that under these
circumstances, such failure does not require that we reverse the District Court’s decision.
CONCLUSION
¶20 For the foregoing reasons, we affirm the District Court’s award of reasonable costs
and fees to APS.
/S/ PATRICIA O. COTTER
We concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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