McDonald v. Washington

NO. 92-547
IN THE SUPREME COURT OF THE STATE OF MONTANA

SISTER MARY JO McDONALD, REVEREND
JOHN M. KADING, JOSEPHINE E. McWNALD
HELEN WHERRY. ORABELLE EVANS. B .
MADDEN, DALE' and SUE RAWLINGS ,
VIRGINIA WALKER, PHILOMENA
MICHALSKY, MAURICE H. ROTH, JAMES
McDQNALD, JANET R. LINDH, GERALDINE
CHRISTIAENS, JAMES and SHARON WILLIAMS,
JOHN and J.C. McELHENNY, R.A. and IRENE
BOKSICH, JAMES SHEA, BETTY L. BORCHERT,
PRISCILLA BORCHERT, RONALD and RANAE
BORCHERT, FRANCES ALTMAN, BOB MOODRY,
CHARLES E. REED, JUANITA and DAVID
MONGER, SHARON VINWW, RICHARD ALCORN,
DAN DOLAN, LYNN RECKAS, RANDY and
SHIRLEY WINSTEAD, TOM TRACY, JOE VAN HEEL,
and all others similarly situated,
Plaintiffs/Appellants,

DENNIS R = WaSHINCJTON: and THE
WATER COMPANY, a New Jersey Corporation,
Defendants/Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James H. Goetz, Goetz, Madden & Dunn, Bozeman,
Montana; Martin R Studer, Bozeman, Montana
.
For Respondent:
Ronald B. MacDonald, Datsopoulos, MacDonald & Lind,
Missoula. Montana
Submitted: September 9, 1993
,
,,
Decided: November 4, 1993
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an interlocutory appeal in a class action lawsuit from
the Second Judicial District Court, Silver Bow County. We affirm
in part and reverse in part.
The appellants are past and present "consumers" of water
provided by the Butte Water Company (BWC). The respondents are
Dennis Washington, who became the sole shareholder of BWC in 1985,
and the former owners of the BWC.
We restate the issues on appeal and cross-appeal:
I Did the District Court err in defining the class to include
.
water consumers who were billed for water service but exclude
those who were not?
2. Did the District Court err in designating this lawsuit as

a class action?
3. If this matter is classified as a class action, did the

District Court err in the construct of the Notice?
The complaint states that appellants in the present action are
residents of Butte, Montana, who rely on water from the BWC for
their residential, commercial, institutional and public usage.
Appellants claim injury from BWC's failure to provide adequate
water and service to their various locations. Such injuries
include alleged health problems associated with drinking BWC tap
water and rate increases for water which is neither clean nor
drinkable. Appellants also assert that they have increased
expenses for purchasing bottled water in lieu of drinking tap
water, increased energy bills from boiling water before use and
2
increased costs for purchasing juice, soda and other beverages as
an alternative to tap water. Additionally, increased expenses for
plumbing problems and appliance maintenance and repair due to the
high concentration of sediment in the water allegedly plaque BWCts
consumers.
The respondents, according to the complaint, are
a New Jersey Corporation with its principal place of
business in Butte, Montana, engaged in the business of
collecting, storing, purifying and transporting water to
businesses, individuals, and public and private
organizations in the City of Butte, Montana and
elsewhere. BWC is a supplier of water and operates a
public water system as defined in the Montana Public
Water Supply Act, MCA Title 75, Chapter 6, and associated
rules. ...
Defendant Dennis Washington is a resident of
Montana, and is, and was at all times relevant to this
complaint, a Director of the Butte Water Company, and its
sole shareholder.
The named appellants filed a complaint on March 5, 1990,
alleging breaches of various duties of the respondents in their
provision of water service to the appellants. Additionally, they
sought to have their lawsuit certified as a class action to include
others similarly situated. A hearing was held in the Second
District Court on February 12 and 13, 1991, and the court issued
its Findings of Fact, Conclusions of Law and Memorandum on April

In its memo, the trial court concluded that the appellantst
action met the test for certification of a class action under Rule
23, M.R.Civ.P. The memo states that the appellants provided the
following definition as the class it sought to certify:
All persons or entities who have been billed for water
service in Silver Bow County, Montana by the Butte Water
 Company for at least three consecutive months at any time
subsequent to March 5, 1987 and prior to the final
resolution of this action, and all persons residing at an
address in Silver Bow County, as of the date of this
motion [August 31, 19901, who receive Butte Water Company
service.
Following issuance of the court's order, the appellants filed a
motion to redefine the class on May 20, 1991. On August 3, 1992,
subsequent to oral argument on the motion, the trial court issued
its order denying the motion to redefine the class. The trial
court state& in its order:
The court has previously indicated that the class would
be all persons or entities who have been billed for water
services in Silver Bow County, Montana. To expand the
class to include individual members of households rather
than the person purchasing the water service is
unnecessary, overly broad, and will lead to confusion and
delay in this matter.
In the Notice of Class Action Lawsuit, dated October 13, 1992,
the trial court identified the class in the action as:
---- ner-nnc o r
All
E----.---- entities who h;r..ro been billed for water
service in Silver Bow County, Montana, by the Butte Water
Company for at least three consecutive months at any time
after March 5, 1987, and before December 31, 1991.
Upon motion of all parties, the trial court certified the Notice as
a final order adjudicating: (1) the rights of the named plaintiffs,
and the class they sought to represent, to participate in this
class action lawsuit; and (2) all of the issues raised by the
parties in motions and briefs regarding the notice to the class.
Appellants filed an appeal on October 23, 1992, and respondents
filed a cross-appeal November 6, 1992.
Our scope of review is whether the trial court's decision is
an abuse of discretion. Murer v. State Fund (1993), 50 St.Rep.
344, 345, - Mont. -, 849 P.2d 1036, 1037.

I DEFINITION OF THE CLASS
.
Appellants argue that when they filed their motion for class
certification, they proposed the following definition:
[AJllpersons or entities who have been billed for water
service in Silver Bow County, Montana by the Butte Water
Company for at least three (3) consecutive months at
anytime subsequent to March 5, 1987, and prior to final
resolution of this action, and all persons residing at an
address in Silver Bow County, as of the date of this
motion, who receive Butte Water Company water service.
The appellants further argue that in their brief in support of
their motion for class certification they described the class as
consisting of mindividuals, their de~endents,and organizations
identifiable through recordsw of BWC. (Emphasis added.) They
continue, stating that in the District Court's order of April 19,
1991, the trial court certified the class as defined by the
appellants. It found that there were "between twelve and thirteen
thousand individual hookups serving approximately 35,360

individuals as well as various public and private businesses and
governmental agencies." Although the respondents never challenged
the appellants' definition of the class nor requested that the
definition be narrowed, the trial court defined the class in its
Notice of Class Action Lawsuit to consist of only those water
consumers billed for water service in Silver Bow County. The
appellants contend that this classification narrows the definition
the court approved in its order granting appellants' motion to
certify the class and thus is clearly inconsistent.
The appellants further contend that the antiquated water
system, the poor water quality, and the many service interruptions
have caused injuries which have been faced by billed and non-billed
consumers alike. The named appellants include billed and non-
billed consumers who suffered injuries typical of the entire class
of consumers originally defined by the trial court.
The respondents counter appellants1 contention that the trial
court changed the definition of the class in its order denying the
appellants' motion to redefine the class. They state that the
orders are actually consistent because the court did not adopt the
definition urged by the appellants in their motion for class
certification. The court stated in its certification order that
"[ildentification of such members probably shall be found in
customer lists held by defendants." This definition, respondents
argue, is consistent with the order denying the motion to redefine
the class which stated that "[tlo expand the class to include
individual members of households rather than the person purchasing
the water service is unnecessary, overly broad and will lead to
confusion and delay in this matter."
Respondents further assert that the trial court refers to the
appellants as mcustomersts
and uses the term consumers in the sense
that customers are the "consumers" in the business setting.
Respondents also contend that only consumers who pay for the water
can recover for monetary damages. One would have to be a bill-
paying consumer, a customer, to have a basis to claim injuries
because of interruptions in service, damage to plumbing and
appliances and additional expenses incurred purchasing bottled
water and for boiling water.
Finally, respondents argue that the appellants themselves
defined the class as customers. In their motion for class
certification, the appellants defined the class as *la11 persons .
. . who have been billed for water service . .. & . . - who
receive Butte Water Company service." (Emphasis added.)
Therefore, to be a member of the class, a person must meet two
conditions: 1) must be billed for three consecutive months and 2)
must reside in Silver Bow County as of the date of this motion.
Additionally, respondents argue that the appellants also stated
that the class members could be identified through BWC records,
which would only consist of customers.
After a careful review of the record, we determine that the
class definition used in the notice to class, which excludes non-
billed customers, was arbitrarily changed. The complaint, the
motion to certify the class and its supporting brief, and the
transcript of the certification hearing, all allude to billed and
non-billed customers or consumers (users). It makes no sense to
exclude persons who allegedly drove to alternative water sources
for drinkable water, bought alternative beverages for consumption,
cleaned toilet bowls and tanks, suffered physical ailments and
nursed others through physical ailments stemming from use of BWC
water, from the class to be certified. /
Sister Mary Jo McDonald testified at the hearing to certify
the class that she spends $20 to $25 per month on juice and soda as
alternatives to drinking tap water. Jim McDonald testified that he
and his wife, Janet Lindh, travel to Springhill twice a month to
obtain drinking water. The complaint states that the trip to
Springhill is approximately 80 miles roundtrip. Further, Jim and
Janet both suffer from rashes after bathing and showering in BWC
water. These are all problems suffered by billed and non-billed
customers alike.
In the appellants' brief in support of its motion to certify
the class, the appellants stated that I' [t]he proposed class
consists largely of individuals, their dependents, and
organizations identifiable through records believed to be in the
possession of Defendant Butte Water Company....11 (Emphasis added.)
Defendants did not contest the definition of the class as comprised
of billed and non-billed users. In fact, their brief in opposition
to the motion to certify the class stated that:
[Tlhe Butte Water Company has 13,400 water hookups
in the vicinity of the City of Butte, servicing 35,000
individuals and 1200 organizational users. It would
appear that the size of the class would then be 36,200
individual and organizational claims.
Ultimately, the trial court ruled that a class action could be
maintained in the lawsuit in its April 19, 1991 order which stated
that the plaintiffs sought to certify as a class:
All persons or entities who have been billed for water
service in Silver Bow County, Montana by the Butte Water
Company for at least three consecutive months at any time
subsequent to March 5, 1987 and prior to the final
resolution of this action, and all persons residing at an
address in Silver Bow County, as of the date of this
motion [August 31, 12901, who receive Butte Water Company
service.
The court also stated that the class was so numerous that joinder
of all members was impracticable. It described the class as
"between twelve and thirteen thousand individual hookups serving
approximately 35,350 individuals as well as various public and
private businesses and governmental agencies ....II The class
contemplated by the appellants, respondents and the trial court
throughout all preliminary proceedings included all consumers,
customers or users of BWC water, including billed and non-billed
individuals. It was an abuse of discretion for the trial court to
change the definition, thereby excluding individuals who claim to
have suffered injuries because of BWCvs allegedly inadequate
service and poor water quality. No reasonable basis exists for
excluding persons who claim to have suffered at the hands of BWC
simply because one allegedly injured plaintiff is billed while
another, suffering the same sort of injury, is not. Therefore, the
trial court abused its discretion on this issue and we accordingly,
reverse.
11. CROSS-APPEAL - CLASS ACTION DESIGNATION
The trial court ruled that the instant case should be
designated as a class action. We agree with its determination of
this issue on the basis of our review.
"[Tlhe judgment of the trial court should be given
the greatest respect and the broadest discretion,
particularly if ...he has canvassed the factual aspects
of the litigation." This is so because the district
court is in the best position to consider the most fair
and efficient procedure for conducting any given
litigation. Such a determination by the court will not
be disturbed on appeal unless the party challenging it
can show an abuse of discretion.
Doninger v. Pacific Northwest Bell, Inc. (1977), 564 F.2d 1304,
1309. (Citations omitted.) We note that Rules 23 (a) and (b),
M.R.Civ.P., and the Federal Rules of Civil Procedure 23(a) and (b)
are identical. We therefore find cases interpreting the federal
rule to be instructive.
The respondents, however, argue that the trial court erred
when it concluded that the present lawsuit should be adjudicated as
a class action. They argue that the appellants cannot establish
the elements necessary under Rule 23(a) and (b)(3), M.R.Civ.P., to
certify a class action. The six elements include:
1. The class must be so numerous that joinder of all
members is impractical.
2. There must be questions of fact or law common to the
class.
3. The claims or defenses of the representative parties
must be typical of the claims or defenses of the proposed
class.
4 . The representative parties will fairly and adequately
protect the interest of the proposed class.
5. The questions of law or fact common to the members cf
the class predominate over questions of the individual
members.
6. The class action is superior to other methods of
adjudicating the controversy.
Rule 23 (a) and (b)(3), M.R.Civ.P.
The appellants have the burden of establishing each of the six
elements. Doninaer, 564 F.2d at 1308. We conclude that the
appellants did meet their burden of establishing the necessary
elements to certify the present case. We discuss each of the
elements in turn.
The first element requires that the class be so numerous that
joinder of all members is impracticable. Rule 23(a) (I), l4.R.Civ.P.
In the instant case, there are 12,000 to 13,000 "hookups" serving
about 35,360 persons. We agree with the trial court that
vv[p]laintiffsclearly meet the first requirement of Rule 23(a)(l)
in that the class is so numerous that joinder of all members is
impractical."
The second element requires that there be questions of law or
fact common to the class. Rule 23 (a)(2), M.R.Civ.P. We agree that
this element was also successfully established by the appellants.
Respondents argue that there is not commonality because customers
lived in different areas of Butte and their water sources may have
been different from other class members. They also contend that
customers suffered varying health effects from BWC water usage and
that water was consumed for varying amounts of time with different
reactions, so that the injuries suffered from one putative
plaintiff to another are so different that there are not sufficient
questions of law or fact common to the class. However:
Rule 23 (a)(2) does not require that every question of law
or fact be common to every member of the class. The
commonality requirement is satisfied "where the question
of law linking the class members is substantially related
to the resolution of the litigation even though the
individuals are not identically situated.". .. Courts
that have analyzed Rule 23(a)(2) have generally given it
a permissive application in a variety of substantive law
areas so that the commonality requirement is usually
found to be satisfied. (Citations omitted.)
Jordan V. County of Los Angeles (1982), 669 F.2d 1311, 1320.
In the instant case, all counts stem from the alleged failure
of BWC to provide potable water and adequate service. We agree
with the trial court which stated:
The primary cause and common theory of these claims
11
 is the same, i.e. an antiquated and poorly repaired water
system. The court also notes that the claims of the
twenty-four named plaintiffs, as well as the complaints
of the consumers (Plaintiffs' Exhibit No. 12) show a
recurrent theme of monetary damages from the consumers
having to find alternative water sources.
We note in passing, that the health advisory of August 14, 1989,
was appropriate evidence to consider in determiningthe commonality
of questions of law or fact. The advisory was sent to all persons
served by BWC and even though it was a strong recommendation and
not a mandate, it was probative as to whether the class members
shared common issues of law and fact. We note also, that Brown v.
New Orleans Public Service, Inc. (La. 1987), 506 So. 2d 621, 623,
can be distinguished because a major issue in that case involved
comparative negligence and an intervening cause - cold weather
which exacerbated the problems encountered by the plaintiffs.
The third element requires that the claims or defenses of the
representative parties are typical of the claims or defenses of the
class. Rule 23(a)(3), W.R.Civ.P. We conclude that this requisite
is established. The representative class is comprised of billed
customers as well as non-billed customers as is the entire class.
The claims of the representative class included the costs of
alternative drinking supply or sources, increased power bills from
having to boil water before consuming, increased expense to repair
plumbing problems due to the particulate matter in the water,
expenses for repair and maintenance of appliances (i.e. washing
machine), and discolored and/or foul-smelling water emitted from
the water faucets. These costs have been borne by the
representative class as well as the class at large.
12
 The typicality requirement is designed to assure
that the named representative's interests are aligned
with those of the class. Where there is such an
alignment of interests, a named plaintiff who vigorously
pursues his or her own interests will necessarily advance
the interests of the class. In this respect, the
typicality prerequisite is closely related to both the
23(a) (2) requirement that there be common questions of
law or fact and the 23(a) (4) requirement that the named
plaintiff adequately protect the interests of the class.
The named plaintiff's claim will be typical of the
class where there is a nexus between the injury suffered
by the plaintiff and the injury suffered by the class.
Thus, a named plaintiff's claim is typical if it stems
from the same event, practice, or course of conduct that
forms the basis of the class claims and is based upon the
same legal or remedial theory. (Citations omitted.)
(Emphasis added.)
Jordan, 669 F.2d at 1321. Here, the typicality requirement is met
because the injury claimed to be suffered by the named plaintiffs
is the same as that suffered by the class and all injuries stem
from the same course of conduct allegedly displayed by the
defendants: that is, negligence in its duty to provide adequate
water and service.
The respondents make an argument that a survey they conducted
indicated that the representative plaintiffs' interests were not
typical of those of the class because the majority of class members
surveyed did not wish to participate in the lawsuit. The trial
court dispensed with this argument by stating that it was skeptical
of the ability of a survey to accurately determine matters of
public opinion. It also concluded that the survey could be
intimidating to some people and may have been phrased to persuade
those surveyed to respond in a negative manner to the lawsuit. We
agree with the trial court and with the district court in Koger v.
Guarino (1976), 412 F. Supp. 1375, 1379, which stated:
 We therefore find that the fact that the class may
contain individuals who are indifferent or even opposed
to the class relief sought by the named plaintiffs does
not mean that the claims of the named plaintiffs are not
typical of those of the class or that they will not
fairly and adequately protect the interests of the class,
(Citation omitted.)
The fourth element necessary to establish a class action is
whether the representative class will fairly and adequately protect
the interest of the proposed class. Rule 23(a)(4), M.R.Civ.P.
Under Rule 23(a)(4), the named representative must
"fairly and adequately protect the interests of the
class." This requires that the named representative's
attorney be qualified, experienced, and generally capable
to conduct the litigation, and that the named
representative's interests not be antagonistic to the
interests of the class. (Citations omitted.)
Jordan, 669 F.2d at 1323. There is no dispute concerning the
expertise and qualifications of the representatives' attorneys in
this case. The question of whether the representativest interests
were antagonistic to the interests of the class was resolved in the
discussion of Rule 23 (a)(3), M.R.Civ.P., wherein we agreed with the
trial court that the survey was unreliable insofar as it attempted
to prove that most putative plaintiffs were against the lawsuit.
The representatives' interests in potable water and adequate water
service are coextensive with those of the remaining class members
and therefore we conclude that the representative plaiqtiffs would
fairly and adequately protect the interests of the class. Jordan,

The fifth requirement to establish certification as a class
action is whether questions of law or fact common to the members of
the class predominate over questions of the individual members.
Pale 23 (b)(3), M.R.Civ.P. The respondents contend that the
countless differences in damages for customers make the
certification of a class "impra~tical.~
The appellants, however,
counter that this determination revolves around issues of
liability. Damages may always differ for the members but the issue
of damages is not dispositive. Liability to all consumers is
premised on BWC1s failure to provide adequate service and quality
water. The appellants further argue that this primary issue of
liability for the entire class predominates over the individual
issues of causation and damages for class members.
With respect to the calculation of the amounts of
damages, it would he necessary for each member of the
class individually to prove the quantity of gasoline
purchased at supracompetitive prices and the prices paid.
Nevertheless, it has been commonlv recosnized that the
necessitv for calculation of damases on an individual
basis should not preclude class determination when the
common issues which determine liabilitv medominate.
(Emphasis added.) (Citations omitted.)
Bogosian v. Gulf Oil Corp. (1977), 561 F.2d 434, 456. Similarly,
the primary issue of liability here stems from BWC's failure to
provide adequate water and service to its customers, although
individual damages may vary. Therefore, the individual issues of
causation and damages should not preclude certification as a class
action. The trial court correctly determined that this necessary
element is established.
The sixth, and final element necessary to certify a class
action is whether a class action is superior to other methods of
adjudicating the controversy. Rule 23 (b) (3), M.R.Civ.P. To
determine whether a class action is superior to other methods of
adjudication, Rule 23 (b)(3) requires a consideration of four
factors, namely:
A. the interest of members of the class in individually
controlling the prosecution or defense of separate
actions;
8. the extent and nature of any litigation concerning the
controversy already commenced by or against members of
the class;
C. the desirability or undesirability of concentrating
the litigation of the claims in the particular forum;
D. the difficulties likely to be encountered in the
management of a class action.
.
Rule 23 (b)(3) ( A ) through (D)
The respondents contend that the individual questions in this
case will consume an extensive amount of time, energy and expense
yet still not give each member of the class its "day in courtw
because this case is actually many little cases which should be
brought in small claims court. The appellants counter that there
is no real alternative to a class action in this case. The

individual cases because they are so minuscule as individual
actions.
We hold that a class action is the superior method of
adjudicating this controversy. As for the first factor, any member
who wants more control in the action can enter an appearance
through their own counsel under Rule 23(c)(2), M.R.Civ.P., or opt
out of the class and intervene in the case. The second factor does
not apply because there is no evidence of any other litigation
involving members of the class although BWC has been involved in
litigation with the state and federal governments regarding water
quality. The third factor does not apply because there is no other
forum which class members have sought out in order to bring an
action against BWC.
Finally, the trial court determined that "a class action is
superior in this instance" because numerous plaintiffs have
allegedly been harmed but no one person may have been damaged to
such a degree that he may have sought to institute litigation on
his own behalf. See Green v. Wolf Corporation (1968), 406 F.2d
291, 296. We reiterate that the trial court is in the best
position to determine if the case is properly litigated as a class
action. Doninaer, 564 F.2d at 1309.
The Green court also put into perspective the need for class
actions and the type of case which is best litigated as a class
action:
Equity has long recognized that there is need for a
course which would redress wrongs otherwise unremediable
because the individual claims involved were too small, or
the claimants too ,,~aly dispersed. Moreover, early i n
the development of our civil procedures it became
apparent that judicial efficiency demanded the
elimination of multiple suits arising from the same facts
and questions of law. Hence, the wise and necessary
procedure was created by which a few representatives of
a class could sue on behalf of others similarly situated,
and be granted a judgment that would bind all. (Citation
omitted. )
-,
Green 406 F.2d at 297. In the instant case, the claims involved
would be unremediable without class action status because most are
minor in and of themselves. In addition, the many claims arise
from the same facts and questions of law. We conclude that this is
a proper case for class action certification, and we affirm the
trial court on this issue.
111. PROPER NOTICE
 As a final issue on cross-appeal, the respondents assert that
the notice given by the trial court to the class is improper. They
contend that one element of the notice is erroneous and another
essential element is entirely omitted from the notice.
First, the notice states that the members "will not be
required to pay any attorneysp fees or costs in the absence of a
monetary recovery." However, respondents assert that class members
may be liable for a portion of respondents' attorneysf fees in the
event of a loss for appellants. The respondents further contend
that since this is a contract action and the appellants have
requested attorneys' fees, the respondents, as the other party,
have the same right to recover attorneys' fees. Finally, they
state that the potential members of the class should have this
information before they decide whether they wish to participate in
the class action.
The second error in the notice, insist the respondents, is
that the District Court should have advised the potential class
members that they have the option of not participating in the class
action. Additionally, they do not have to bring their own action
against the BWC. They assert that to omit this information is
almost tantamount to encouraging the potential members of the class
to initiate an action against BWC.
Appellants counter that there was no reason to advise the
class members that they may be liable for attorneys' fees in the
event of a loss by appellants nor that they may choose to forego
participation in the class action if they so desire. Also,
appellants argue that respondents* position that it can recover
attorneys' fees because the parties have a contract relationship
which provides for reciprocal attorneys1 fees is erroneous. The
respondents base their argument on 5 28-3-704, MCA, which gives
both parties the right to recover attorneys1 fees if there is an
exvress statement in the contract which gives the parties the right
to recover attorneys' fees.
Wright v. Schock (9th Cir. 1984), 742 F.2d 541, 545, is
instructive and supports the appellants1 position that members who
remain in the class are not liable for the respondents1 attorneys*
fees, stating that "[albsent class members have no obligation to
pay attorneys* fees and litigation costs, except when they elect to
accept the benefit of the litigation." Lamb v. United Security
Life Company (S.D. Iowa 1973), 59 F.R.D. 44, 48-49, expands on this
proposition, concluding:
Upon reconsideration, this Court is of the opinion
that members of the class who do not opt out and do not
appear especially by counsel of their own selection are
not l*partiesl1 the action. Accordingly, they would not
to
be liable for any costs or expenses assessed against the
representative parties plaintiff.
Accordingly, the Court will order that the Notice to
the class contain a provision so informing all members of
the class. The Notice shall also advise all members of
the class that if any recovery should be effected for the
class, the Court may allow from such recovery
reimbursement of plaintiffs* expenses and counsel
fees....
Furthermore, the respondents1 argument that under 5 28-3-704,
MCA, the members of the class could be liable for the respondents1
attorneys1 fees because this is a contract action is misplaced.
Section 28-3-704, MCA, requires that the losing party pay
reasonable attorneys1 fees a there is an express right to recover
attorneys' fees in the contract. No evidence of an express right
in a contract was presented here. Therefore, the trial court did
not err in stating that the members "will not be required to pay
any attorneys1 fees or costs in the absence of a monetary
recovery."
Moreover, the trial court did not err in not including a
statement that members of the class could "simply choose not to
participate in any lawsuit against the Defendants." The Notice of
Class Action Lawsuit stated that:
If you opt out of the class, you will not be
entitled to share in any monetary compensation which may
ultimately be obtained. However, you mav file a separate
lawsuit against the Defendants, or you may retain our
(sic) own attorney and intervene in this lawsuit.
(Emphasis added.)
The Notice also provided a form to fill out if a person wanted to
. .
be excluded from the class. The use of the permrssrve word "may,"
and the use of the form are enough to inform potential members of
the class that they may opt out entirely if they prefer. The
Notice provided was adequate in its notification to the class as to
the rights and responsibilities of the members of the class.
Accordingly, the trial court is affirmed as to p i s issuey
AFFIRMED IN PART AND REVERSED

We Concur:
D i s t r l c t Judge, s i t t i n g i n
p l a c e of J u s t i c e K a r l a W. Gray
 November 4. 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

James H. Goetz
GOETZ, MADDEN & DUNN, P.C.
35 North Grand
Bozeman, MT 59715

MARTIN R. STUDER
Attorney at Law
12 N. Third Ave., Suite 1
Bozeman, MT 59715

Ronald M. MacDonald
DATSOPOULOS, MacDONALD, & LIND
201 West Mail,, Ctmi~di
Syuarc: Bidy.
Missoula, MT 59802

Alan L. Joscelyn
GOUGH, SHANAHAN, JOHNSON & WATERMAN
P.O. Box 1715
Helena, MT 59624-1715

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA