concurring in part and dissenting in part:
I concur in affirming the judgment of the District Court on the first issue.
I dissent from the award of attorney fees for the reasons stated in my dissent in Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114, 117.
An award of attorney fees under the guise of making the prevailing party whole is applicable to any case; permits such an award in the absence of statute or contract; and constitutes a clear example of judicial legislation. Where neither the legislature nor the parties have provided for such an award, I would abstain from granting it.