Kadillak v. Montana Dept. of State Lands

• Decision Date: 26 April 1982
• Docket Number: No. 81-254,81-254
• Citation: 39 St.Rep. 773,198 Mont. 70,643 P.2d 1178
• Court: Montana Supreme Court
• Parties: George and Marie KADILLAK, husband & wife, et al., Plaintiffs and Appellants, v. MONTANA DEPARTMENT OF STATE LANDS, Defendant and Respondent.

Page 1178

643 P.2d 1178

198 Mont. 70

George and Marie KADILLAK, husband & wife, et al Plaintiffs and Appellants, v. MONTANA DEPARTMENT OF STATE LANDS, Defendant and Respondent.

No. 81-254.

Supreme Court of Montana.

Submitted Jan. 15, 1982.

Decided April 26, 1982.

McGarvey, Lence & Heberling, Jon L. Heberling, argued, Kalispell, for plaintiffs and appellants.

John F. North, Dept. of State Lands, Helena, for defendant and respondent.

HASWELL, Chief Justice.

In a prior decision this Court remanded this case to the Silver Bow District Court for an evidentiary hearing on attorney fees. The District Court awarded the fees based on Montana's writ of mandate statute. The plaintiffs appeal the award of attorney fees and costs.

The original case, Kadillak v. Anaconda Co. (1979), Mont., 602 P.2d 147, 36 St.Rep. 1820, involved an appeal from a District Court order denying plaintiffs relief on their complaint against the Anaconda Company and various state agencies relating to the establishment and operation of a waste dump near the plaintiffs' residences in Butte, Montana. This Court granted the plaintiffs a writ of mandate against the Department of State Lands (State Lands), enjoined the Anaconda Company from using the waste dump until a valid permit was obtained, and remanded the case for a determination of attorney fees pursuant to the writ of mandate statute.

An evidentiary hearing on attorney fees was held on June 3, 1980. At the hearing plaintiffs' attorney, Jon Heberling, requested fees for 90% of the total hours spent on the case, the number of hours he claimed were attributable to the mandamus action against State Lands. He contended that in order to prevail on the mandamus issue it was necessary to provide proof of irreparable injury, proof of the equities involved in the case, proof of standing, and proof to meet the defense of substantial compliance with the permit requirements.

Clayton Herron, an experienced trial attorney, testified for the defendants. He had not been involved in the actual trial of the case but had been asked by the defendants to review the trial record and to give an opinion as to what he considered to be a reasonable number of hours to have spent on the mandamus issue. Mr. Herron noted that out of numerous causes of action pleaded against six defendants, the plaintiffs prevailed against only one defendant and only on the ground that the permit application was inadequate. Because so many issues had been raised and so much evidence presented, he stated that in his opinion the only productive way to fix a reasonable attorney fee award was to estimate the number of hours it would have taken to bring to trial and appeal the mandamus issue. Based on his own experience he estimated that 130 hours would have been needed at the trial court level and 40 to 50 hours on appeal.

After the hearing, the District Court judge awarded plaintiffs $11,300 in attorney fees and $7,924.39 in costs. In his memorandum opinion the judge stated that under the language of the mandamus statute the award of attorney fees was to be based solely on the number of hours spent by the attorney on the mandamus issue and not the total number of hours involved in the case. He stated that it was not possible to isolate or clearly distinguish the elements of the mandamus issue and that the elements of pleading and proof in the case were so intertwined and convoluted that no rational allocation of attorney effort could be made. Therefore he based the award of attorney fees on the number of hours Mr. Herron estimated as reasonable for the mandamus issue. However, because he determined that the case had been complex, the litigation important, the skill of the attorneys of a high order, and the desired result had been obtained, the judge awarded the attorney fees at a higher rate per hour than was recommended by Mr. Herron.

Costs were awarded only for the items specifically listed in section 25-10-201, MCA. The District Court judge stated that he knew of no realistic formula for segregating the costs for the mandamus issue and therefore awarded plaintiffs the total costs incurred in the case for the items listed in the statute. However he denied the plaintiffs' request for prejudgment interest on the attorney fees and costs.

The plaintiffs raise the following issues in this appeal:

1. Did the District Court err in its determination of reasonable attorney fees?

2. Is prejudgment interest allowable on attorney fees awarded under the mandamus statute?

3. Did the District Court err in refusing to award as "damages" within the meaning of section 27-26-402, MCA, certain litigation expenses?

4. Did the District Court err in refusing to award as costs under section 25-10-201(9), MCA, certain litigation expenses?

The first issue deals with attorney fees. Section 27-26-402, MCA, provides in part:

"If judgment is given for the (writ of mandate) applicant:

"(1) he may recover the damages which he has sustained ... together with costs ..."

Reasonable attorney fees are damages within the meaning of this statute. State v. District Court (1953), 127 Mont. 32, 256 P.2d 1076; State v. Batani (1936), 103 Mont. 353, 62 P.2d 565. The District Court correctly concluded that this statute provides only for an award of attorney fees for the number of hours spent by the attorney on the mandamus issue.

The District Court determined that the elements of pleading and proof were so intertwined and convoluted in this case that no rational allocation of attorney effort on the mandamus issue could be made based on the trial record. Therefore the award was based on Mr. Herron's estimate of the number of hours required to prevail on the mandamus issue. The plaintiffs contend that it was improper for the District Court to base the award on Mr. Herron's estimate rather than on the scope of evidence reasonably admissible in the case.

In response to plaintiffs' contention we note first that it is within the discretion of the District Court judge to determine reasonable attorney fees and his determination will not be interfered with unless an abuse of discretion is shown. Glick v. State, Montana Department of Institutions (1974), 165 Mont. 307, 528 P.2d 686; Luebben v. Metlen (1940), 110 Mont. 350, 100 P.2d 935. We find no abuse of discretion here.

The original trial in this case lasted for thirteen days and involved six defendants and fourteen separate counts ranging from counts in nuisance and trespass to alleged violations of the Montana Environmental Policy Act, the 1972 Montana Constitution, the Hard Rock Mining Act, the Water Pollution Control Act and the Clean Air Act. The case was complex and involved numerous issues other than the mandamus issue upon which the plaintiffs ultimately prevailed on appeal. Since the attorney fee award is to be based only on the hours spent by the attorney on the mandamus issue and since the elements of proof in the case were so intertwined, the District Court judge did not abuse his discretion in basing the award on the estimate given by an experienced trial attorney as to the number of hours necessary to prevail on the mandamus issue.

The plaintiffs argue that the judge erred as a matter of law in failing to base the award of attorney fees on evidence reasonably admissible on the mandamus issue, including proof related to standing, irreparable injury, the equities in the case, and the permit requirements. There is no merit to this argument. Proof of irreparable injury is not required in a writ of mandamus action and the amount of time Mr. Herron estimated as reasonable to prevail on the mandamus issue was sufficient to allow the parties to present evidence related to the other areas of proof.

Guidelines have been established by this Court for determining reasonable attorney fees.

" ' "The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of property to be affected, the professional skill and experience called for, the character and standing in their profession of the attorneys... The result secured by the services of the attorneys may be considered as an important element in determining their value." ' " First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 429-430, 547 P.2d 1328, 1332.

These guidelines were considered by the District Court judge when he determined the rate per hour upon which to base the fee award. We find no error with either the method used by the District Court judge for determining reasonable attorney fees or with the amount awarded.

The second issue deals with the denial of prejudgment interest on the award of attorney fees. The District Court concluded that there is no authority in Montana's statutes or case law for the award of interest on attorney fees prior to judgment. The plaintiffs contend that the District Court erred as a matter of law in reaching this conclusion.

Two Montana statutes specifically deal with the awarding of interest to persons entitled to recover damages, sections 27-1-211 and 27-1-212, MCA. In this case the award of attorney fees is an award of "damages" under section 27-26-402, MCA. Therefore it is necessary to determine whether either of the interest statutes authorizes an award of prejudgment interest in this case.

Section 27-1-211, MCA, provides:

"Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover ... is vested in him upon a particular day is entitled also to recover interest thereon...