No. 85-23
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
DANIEL BREESE and CHRISTINE M.
BREESE,
Plaintiffs and Respondents,
STEEL MOUNTAIN ENTERPRISES, INC.,
a Montana corporation, BRYAN K.
STAHLBERG and ELAINE E. STAHLBERG,
Husband and Wife, d/b/a THE SPORTSMAN
BAR AND CAFE,
Defendants and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman
argued, Kalispell, Montana
For Respondent:
Keller & German; Brenda Nordlund and Ann German
argued, Kalispell, Montana
Submitted: January 16, 1986
Decided: April 1, 1986
APR 1. 1986
Filed:
& d ~
-
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Christine Breese and Daniel Breese (plaintiffs), wife
and husband, filed separate employment discrimination actions
in Flathead County District Court alleging violations of the
Montana Human Rights Act (Act). The cases were consolidated
and tried to a six-person jury which rendered a verdict in
favor of Steele Mountain Enterprises, Inc. (Steele Mountain).
Judgment was entered for Steele Mountain. Plaintiffs moved
for a new trial, claiming that the relief sought under the
Act was equitable in nature and the case should have been
tried to a judge rather than a jury. The District Court
granted a new trial. Steele Mountain appeals. We reverse.
We conclude that the following two issues are
determinative:
1. Did the District Court err in granting plaintiffs"
motion for a new trial?
2. Did the District Court err in denying defendants'
motion for attorney fees?
Christine Breese began working at The Sportsman Bar and
Cafe in July 1981. Daniel Breese began working at The
Sportsman Bar and Cafe on November 1, 1-981. Christine worked
various jobs including waitress, dishwasher, and cook.
Daniel worked as a janitor. Both Daniel and Christine were
fired from The Sportsman Bar and Cafe on November 18, 1981.
Christine Breese contends she was fired for being preg-
nant. Daniel Breese maintains he was fired for being the
husband of Christine Breese. Steele Mountain contends they
were fired for poor job performance and taking food from the
restaurant without permission.
In November 1983, plaintiffs filed separate employment
discrimination complaints against Steele Mountain and Bryan
Stahlberg and Elaine Stahlberg d/b/a The Sportsman Bar and
Cafe. Initially, no demand was made for jury trial. In May
1984, citing Rule 39(b) M.R.Civ.P., Steele Mountain moved for
trial by jury. The motion was granted, and the matter tried
to a six-person jury which rendered a verdict in favor of
Steele Mountain.
After judgment was entered and notice of entry of judg-
ment mailed, plaintiffs moved for a new trial. Later, Steele
Mountain moved for an award of attorney fees. The District
Court granted plaintiffs' motion for a new trial and denied
Steele Mountain's motion for an award of attorney fees.
Did the District Court err in granting plaintiffs'
motion for a new trial?
Fol-lowing jury trial, plaintiffs moved for a new trial.
First, they contended the court abused its discretion in
granting a late request for a jury trial. Second, they
argued an action filed under the Act is equitable in nature
and requires trial to a judge rather than a jury.
The District Court granted plaintiffs' motion for a new
trial, ruling in pertinent part:
An action brought under title 49, chapter
2 is equitable in nature, and is akin to
an action brought under Title VII of the
Federal Civil Rights Act of 1964. Be-
cause of the equitable nature of the
action, there is no right to a tria.1 by
iury in a federal Title VII suit.
It was error to allow a jury trial in
this matter, and the error has substan-
tially prejudiced the Plaintiffs' case.
Plaintiffs' motion for a new, non-jury
trial is GRANTED (citations omitted).
Plaintiffs contend that the only damages sought were
back pay and reinstatement. By analogy to Title VII, plain-
tiffs maintain these dama.ges are by nature equitable and
properly tried to the court rather than a jury. Plaintiffs
urge the Court to find a violation of the Act to be a purely
equitable claim. Steele Mountain contends that plaintiffs
sought other dama.ges that were of a legal nature besides
reinstatement and back pay.
The record discloses that plaintiffs submitted evidence
of damages other than reinstatement and back pay. Under
Instruction 6, the measure of damages was "the amount wkich
will compensate for all the detriment proximately caused
thereby . . . whether it could have been anticipated or not."
Likewise, Instructions 10 and 11 provided that if the jury
found plaintiffs were terminated unlawfully, or that the
defendants engaged in discriminatory practices as alleged,
then the jury could award damages in a sum "which would
rectify any harm, pecuniary or otherwise. . ." The Court has
held that the law of the case is established by the jury
instructions:
[B]y their failure to object to instruc-
tions . .. in the trial court, plain-
tiffs assented to the rules of law
therein announced and on appeal to this
court they will not be heard to urge a
theory in conflict therewith. Wallace v.
Weaver, 47 Mont. 437, 133 P. 1099. The
theory upon which the case wa.s tried in
the district court with the acquienscence
of the parties is binding upon them here.
Pappas v. Braithwaite (1945), 117 Mont. 569, 577, 162 ~ . 2 d
212, 215. In closing argument which followed the above
described law of the case, plaintiffs' counsel pointed out
that the plaintiffs lost their car and suffered anxiety and
emotional stress from which the jury could award an adequate
figure to compensate the plaintiffs, to make them whole, and
to rectify the harm caused by the illegal action.
We therefore conclude that in the present case, a claim
for relief under the Act and a legal claim for damages as a
result of unlawful discharge were tried in a single proceed-
ing. Assuming only for purposes of argument that
reinstatement and back pay are equitable claims, plaintiffs
presented both legal and equitable claims to the jury, each
claim arising out of common fact issues. In a similar pro-
ceeding in Lincoln v. Board of Regents of Univ. System (11th
Cir. 1983), 697 F.2d 928, 934, cert. denied, 464 U.S. 826
(1983), the Circuit Court ruled on the effect of trying
equitable and legal causes of action arising out of a common
fact issue and stated:
An action for reinstatement and back pay
under Title VII is by nature equitable
and entails no rights under the seventh
amendment. An action for damages under
S 1981, however, is by nature legal and
must be tried by a jury on demand. When
legal and equitable actions are tried
together, the right to a jury in the
legal action encompasses the issues
common to both. When a party has the
right to a jury trial on an issue in-
volved in a legal claim, the judge is of
course bound by the jury's determination
of that issue as it affects his disposi-
tion of an accompanying equitable claim
.
(citations omitted)
We approve and adopt the reasoning contained in the above
quotation from Lincoln.
In the present case, plaintiffs tried to a jury claims
under the Act as well as claims which are legal in nature.
Steele Mountain was entitled to have a jury determine whether
or not the plaintiffs suffered damages for emotional dis-
tress. We hold that the right to a jury trial in the present
action encompassed both the claims under the Act and the
legal claims for damages, and that the trial judge was bound
by the jury's determination of facts on all issues. We hold
that the District Court erred. in granting a new trial and
remand the case to the District Court with instructions to
reinstate the jury verdict and enter judgment in accordance
with that verdict.
Did the District Court err in denying defendants' motion
for attorney fees?
Section 4 9 - 2 - 5 0 9 ( 3 ) , MCA, provides that the court may in
its discretion allow the prevailing party reasonable attorney
fees. Steele Mountain contends attorney fees should have
been awarded because plaintiffs' case was frivolous and
factual.1~baseless. In denying attorney fees, the District
Court ruled:
[A]n award of attorney fees under this
statute is whol1.y discretionary. Attor-
ney fees are rarely awarded to a prevail-
ing party defendant. Where the suit
successfully defended was frivolous or
factually baseless, attorney fees may be
allowed to a prevailing Defendant. This
is not true of the case at bar.
Our review of the record establishes that the District
Ccurt did not abuse its discretion in denying attorney fees
to Steele Mountain. We will not substitute our discretion
for that of the District Court. We affirm the denial of
attorney fees.
We reverse and. remand with specific instructions that
the jury verdict be reinstated, and judgment entered in
accordance with this opinion.
We Concur: -.&
.