Kunst v. Pass

• Citation: 288 Mont. 264,957 P.2d 1,1998 MT 71
• Decision Date: 31 March 1998
• Docket Number: No. 97-168,97-168
• Parties: Denise KUNST and Charla Erpenbach, Plaintiffs and Appellants, v. Charles B. PASS and Shirley A. Pass, Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 1

957 P.2d 1

1998 MT 71

Denise KUNST and Charla Erpenbach, Plaintiffs and Appellants, v. Charles B. PASS and Shirley A. Pass, Defendants and Respondents.

No. 97-168.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 1997.

Decided March 31, 1998.

Michael J. San Souci, Bozeman, for Appellant.

Steve Reida, Landoe, Brown, Planalp, Braaksma & Reida, Bozeman, for Respondent.

HUNT, Justice.

¶1 Plaintiffs Denise Kunst (Kunst) and Charla Erpenbach (Erpenbach)(collectively "Plaintiffs") appeal from the order of the District Court for the Eighteenth Judicial District, Gallatin County, denying their post-trial motion for attorney's fees and costs. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

¶2 The issues raised on appeal are as follows:

¶3 1. Did the District Court err in denying Plaintiffs' bill of costs as untimely?

¶4 2. Did the District Court err in denying Plaintiffs' request for attorney's fees?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Erpenbach, a tenant, and Kunst, her overnight guest, suffered carbon monoxide poisoning due to a furnace leak while staying at an apartment rented from Defendants Charles Pass and Shirley Pass. Plaintiffs filed a four-count complaint against Defendants. The caption of the first count alleged general negligence, and paragraph seven of that count stated that Plaintiffs were bringing that claim pursuant to § 27-1-701, MCA, and the Residential Landlord and Tenant Act, § 70-24-303(1)(d), MCA (the "Act"). The second count alleged breach of warranty of habitability and the third count alleged strict liability. Both of those counts also referenced the Residential Landlord and Tenant Act, § 70-24-303, et seq., MCA. Finally, the fourth count alleged res ipsa loquitur. While that count did not reference the Act, it incorporated by reference every allegation contained within the first three counts. Among the various damages requested, Plaintiffs requested costs of the suit and any other relief the court deemed just and proper.

¶6 The case proceeded to a jury trial on August 20, 1996. After the presentation of the evidence, the Plaintiffs moved for a directed verdict on the liability issue pursuant to the Act. The presiding District Court Judge Larry Moran granted their motion and held that the jury would consider only the amount of damages to be assessed. At that same hearing, the Plaintiffs also requested costs and attorney's fees pursuant to the Residential Landlord and Tenant Act. However, the court reserved its decision on the applicability of that Act and the attorney's fees issue until the conclusion of the trial.

¶7 The jury returned a verdict for Plaintiffs on August 22, 1996, awarding them each $5,000 in damages. Plaintiffs filed a post-trial motion for attorney's fees and costs on September 10, 1996. On that same date, the District Court formally entered judgment in the case. Subsequently, on December 6, 1996, the District Court held a hearing on the issue of costs and attorney's fees, and took the matter under advisement.

¶8 Before he had decided Plaintiffs' motion, District Court Judge Moran retired on December 31, 1996. The case was thus reassigned to District Court Judge Mike Salvagni, who reheard the motion on February 14, 1997. On March 21, 1997, the court issued an order denying Plaintiffs' request for both costs and attorney's fees. It held that Plaintiffs' motion for costs was untimely pursuant to § 25-10-501, MCA. The court also held that the request for attorney's fees was untimely, because Plaintiffs had not placed Defendants on notice of a claim for attorney's fees until after the court directed a liability verdict. Finally, it held that the Residential Landlord and Tenant Act did not apply, because the Plaintiffs had not limited their cause of action to a violation of that statute, and Plaintiffs had prevailed in the directed verdict solely under the general theory of negligence. Plaintiffs appeal.

ISSUE ONE

¶9 Did the District Court err in denying Plaintiffs' bill of costs as untimely?

¶10 We review a district court's conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶11 The law requires a prevailing party to file the bill of costs within five days after the jury renders its verdict. Section 25-10-501, MCA, states:

Bill of costs. The party in whose favor judgment is rendered and who claims his costs must deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party, his attorney or agent, or the clerk of his attorney, stating that to the best of his knowledge and belief the items are correct and that the disbursements have been necessarily incurred in the action or proceeding.

¶12 In this case, the jury verdict was signed and filed on August 22, 1996. Plaintiffs filed their motion to tax costs with a memorandum of costs nineteen days later on September 10, 1996. Even allowing Plaintiffs two additional days for the weekend and three additional days for mailing, the Plaintiffs failed to file their bill of costs within five days of the jury verdict. The District Court thus properly denied Plaintiffs' bill of costs as untimely.

¶13 Plaintiffs argue that at the August 22, 1996 hearing where the court granted Plaintiffs a directed verdict, District Court Judge Moran also granted them an extension of the five-day time limit when it ordered that their bill of costs should be filed within twenty days after the conclusion of trial. But the transcript of the hearing contains no discussion about an enlargement of the time for filing the bill of costs, and the record does not reflect that such an order was ever entered. At the December 6, 1996 hearing on the motion for attorney's fees, Judge Moran himself did not specifically recall ever making such an order, although he conceded that it "sounds like something the Court would do," and stated that he was "not going to dispute" that he gave the Plaintiffs twenty days to file that document.

¶14 Notwithstanding the court's concession that it might have allowed the Plaintiffs an additional twenty days, the bill of costs is untimely. The five-day time limit provided for in the statute is mandatory: a party "must" file a memorandum of costs within five days after the verdict is entered. Section 25-10-501, MCA. Plaintiffs were thus tardy in filing that document.

¶15 Plaintiffs next contend that the five-day limit did not begin to run until the District Court entered the judgment on September 10, 1996. Because they filed their bill of costs that same day, they maintain that they were thus well within the statutory time period. But it is well-settled that where a case involves a jury trial, as opposed to a bench trial, the time period begins to run on the day following the jury verdict and not on the entry of the judgment. R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278 ¶16 Plaintiffs maintain that this case should be treated as a bench trial for purposes of computing the time limitations, because the District Court granted Plaintiffs a directed verdict on the liability issue. Even so, however, the case still involved a jury trial and the jury rendered a verdict on the damages issue. When the court granted the directed verdict, it did not serve as the trier of fact, but instead directed liability as a matter of law.

                288-89, 777 P.2d 338, 344.   In Grover, this Court noted that in a bench trial, the judge has more latitude than a jury as to when it will render its decision.  In such a case, the time period is computed from the day the court enters its judgment, and not when the court orally announces its decision.  The oral announcement of a decision, which may be subject to changes when the court finally enters the judgment, is not comparable to the jury rendering its verdict.  Thus, in a jury trial, the time limit begins to run on the day after the jury enters its verdict.  Grover, 238 Mont. at 288-89, 777 P.2d at 344.   See also Rocky Mountain Enterprises, Inc. v. Pierce Flooring Carpet Barn (1997), --- Mont. ----, ----, 951 P.2d 1326, 1337, 54 St.Rep. 1410, 1417 ("[T]o claim costs under § 25-10-501, MCA, the plaintiffs had five days from the date of the jury verdict to file and serve upon the adverse party a verified memorandum of costs.")
                

¶17 We hold that the District Court did not err in denying Plaintiffs' bill of costs as untimely.

ISSUE TWO

¶18 Did the District Court err in denying Plaintiffs' request for attorney's fees?

¶19 As previously stated, the standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. Carbon County, 271 Mont. at 469, 898 P.2d at 686.

¶20 In denying the Plaintiffs' motion for attorney's fees, the District Court stated that the Defendants' "liability was limited to the general theory of negligence as Judge Moran concluded." After considering the allegations of the complaint, the directed verdict, and the jury verdict on damages, the court reasoned that Plaintiffs prevailed solely under a general theory of negligence and not under the Residential Landlord and Tenant Act, § 70-24-101, MCA, et seq. It thus concluded that the attorney fees provision of that Act did not apply and denied Plaintiffs' motion.

¶21 We do not agree. In rendering the directed verdict, Judge Moran did not conclude that "liability was limited to the general theory of negligence." Instead, he specifically left open the question as to whether the Residential Landlord and Tenant Act applied, and if so, whether Plaintiffs were entitled to attorney's fees under...