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No.

83-237

I N THE SUPREME C U T O THE STATE O M N A A O R F F OTN

1983

A A D . NICHOLSON, I N C . L N a corporation, P l a i n t i f f and Respondent,

ROSS W.

CANNON,

Defendant and A p p e l l a n t .

APPEAL FROM:

D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Lewis & C l a r k , The H o n o r a b l e Gordon B e n n e t t , J u d g e p r e s i d i n g .

COUNSEL O RECORD: F For Appellant: Edmund F. Sheehy, J r . , H e l e n a , Itontana

F o r Respondent : Gary L. D a v i s o f Luxan & M u r f i t t , H e l e n a , Montana

Submitted on B r i e f s : Decided:

O c t o b e r 6,

1983

J a n u a r y 1 2 , 1984

Filed:

Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Appellant Cannon appeals an order of the District Court awarding Nicholson $18,000 in attorney fees and $1,084.90 in costs. These amounts represent the total fees and costs due

Nicholson's attorney for litigating this matter from inception through the District Court judgment. We affirm and

remand for the determination of reasonable attorney fees and costs on appeal. Nicholson and Cannon signed an earnest money agreement for the purchase of a condominium by Cannon on November 30, 1979.
A contract for deed was executed by the parties on

March 3, 1980.

Among other provisions, the contract for deed

contained the f01-lowing terms :
(1) a provision allowing for the down payment to be

paid in installments with the final installment in the amount

(2) a provision requiring the payment of $4,500 plus interest on December 31, 1980; and (3) a provision setting the monthly payments at $389.82 commencing January 15, 1980. In addition, Cannon demanded that a "latent defects" provision be added to the contract which provides as follows: "14. If within one year from March 1, 1980, latent defects are discovered in the work and materials with respect to the real estate, premises and improvements described herein, Seller will promptly, following written notice from Purchaser, correct such defective work or materials in a good and workmanlike manner, and in accordance with current building, plumbing, and electrical codes. If Seller does not promptly remedy the latent defects, Purchaser may have the defects corrected, removed, redone or replaced, and all direct and indirect costs thereof will be paid by Seller."

Furthermore,

paragraph 8 of

t h e c o n t r a c t f o r deed p r o v i d e s

t h e following regarding a.ttorney fees: "In t h e event l e g a l a c t i o n i s necessary by e i t h e r o f t h e p a r t i e s h e r e t o t o enf o r c e t h e r i g h t s o f s a i d p a r t i e s hereund e r , it i s s p e c i f i c a l l y u n d e r s t o o d a.nd a g r e e d t h a t t h e l o s i n g p a r t y s h a l l pay t o t h e p r e v a i l i n g p a r t y reasonable a t t o r n e y s ' f e e s and a l l c o s t s i n c u r r e d i n c i d.ent t o such l e g a l a c t i o n . " Essentially, t h e purpose of t h e l i t i g a t i o n underlying

t h i s a p p e a l was t o e n a b l e Nicholson t o c o l l e c t payments due under t h e c o n t r a c t f o r deed which Cannon w i t h h e l d u n t i l such t i m e a s Nicholson c o r r e c t e d c e r t a i n " l a t e n t d e f e c t s . " The

m a t t e r was t r i e d t o a j u r y on t h e i s s u e of a d e f e c t i v e h e a t ing system, the court having already granted Nicholson's

motion f o r a d i r e c t e d v e r d i c t f o r t h e sums prayed f o r i n t h e complaint. the heating The j u r y r e t u r n e d a v e r d i c t f i n d i n g no d e f e c t i n system, and judgment was entered accordingly.

The f o l l o w i n g i s s u e s a r e r a i s e d i n t h i s a p p e a l :
1.

Did

t h e D i s t r i c t Court

err

in

awarding a t t o r n e y

f e e s and. c o s t s t o N i c h o l s o n ?
2.

Did t h e D i s t r i c t C o u r t err i n d e t e r m i n i n g N i c h o l s o n

t o be t h e p r e v a i l i n g p a r t y ? Did t h e D i s t r i c t C o u r t err i n r e o p e n i n g t h e h e a r i n g on a t t o r n e y f e e s ?
4.

Should Cannon. be o r d e r e d t o pay N i c h o l s o n ' s

fees

and c o s t s on a p p e a l ?

I

The f i r s t i s s u e r a i s e d by Cannon i s whether t h e D i s trict Court properly awarded attorney fees and costs to

Nicholson.

W e n o t e t h a t p a r a g r a p h 8 of t h e c o n t r a c t f o r deed

e x e c u t e d by b o t h p a r t i e s p r o v i d e s t h a t t h e l o s i n g p a r t y pay

the prevailing party reasonable attorney fees and al-1 costs. In order to properly determine the amount of reasonable attorney fees, we have held that the District Court must consider various circumstances, including, but not limited to, the following: (1) the amount and character of the services rend-ered; i2) the involved ; labor, time and trouble

(3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or value of property to be affected;
(5) the professional experience called for;

the and

skill

(6) the chara.cter an.d standing in their profession of the attorneys; and (7) the result secured by the services of the attorneys may also be considered. First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 429-430, 547 P.2d 1328, 1332, as cited in Talmage v. Gruss (Mont. 1983), 658 P.2d 419, 40 St.Rep. 176. A review

of the District Court's opinion and order regarding attorney fees and costs clearly indicates that the District Court properly considered all of the necessary factors and, consequently, we find that there was no abuse of discretion. Furthermore, we have held that attorney Court.

". . .

the amount fixed as

fees is largely discretionary with the District

We will not disturb its judgment in the absence of an

abuse of that discretion." P.2d 1013, 1015, 37 St.Fep.

Carkeek v. Ayer (Mont. 1980), 613 1274, 1276. Given the complex

circumstances of this litigation we find no abuse of discre-

tion in either the award of the fees and costs to Nicholson or in the amounts awarded. Cannon also argues that the costs of litigation were improperly awarded to Nicholson. We note that the lanffuage

of the contract provides that "all costs" be awarded the prevailing party. The District Court has already limited the

costs awarded Nicholson by eliminating from the award those costs relating to the expert witnesses. Considering the

language of the contract, we find no reason to further limit such costs and find the District Court did not abuse its discretion in ordering their payment by Cannon.

I1

Counsel for Cannon also asserts that the District Court erred in determining the identity of the "prevailing party" under the terms of para~raph 8 of the contract for deed.
A

thorough review of the District Court file and the transcript of hearings on the issues of attorney fees and costs clearly shows that appellant's argument totally lacks merit. Paraqraph 14 of the contract for deed, added to the contract at Cannon's request, provides a remedy if the contractor fails to correct latent defects. That remedy allows

the buyer to have the defects corrected at the seller's expense. Even though this provision was specifically added

to the contract at Cannon's insistence, he failed to utilize this remedy and contract. instead withheld payments due under the

Clearly, Cannon's own default created the necessiThe result was a directed verdict

ty of this litigation.

against Cannon by the court for the sums prayed for in the complaint and a jury verdict against Cannon an the issue of

the defective heating system.

Both verdicts, we note, are

not raised by Cannon as issues on this appeal. In conclusion, on this issue we affirm the District Court in fi.nding Nicholson to be the prevailing party, specifically in light of the verdicts ~igainst Cannon and Cannon's activities which precipitated. this litigation. Simply

because Nicholson did not obtain forfeiture of the contract does not mean that Cannon was not in default and that

Nicholson was not the prevailing party.

The next issue to be ad.dressed is whether the District Court erred in reopening the hearing regarding attorney fees. Cannon cites no authority to support his position that the hearing should not have been reopened. He simply states that

in his opinion, the "newly discovered evidence" was not, in fact, newly discovered evidence and therefore the hearing should not have been reopened. Counsel for Nicholson moved 60(b), M.R.Civ.P., to reopen the hearing four days after the

pursuant to Rule

original hearing was held.

The basis for his motion was that

time records pertaining to the litigation which had been misfiled and could not be located prior to the first hearing had subsequently been discovered. He proceeded under the

"newly discovered evidence" provision of Rule 60 (b) which in essence provides that the court may relieve a party or his legal representative from a final judgment, order or proceeding if there is

". . . newly

discovered evidence which by due

diligence could not have been discovered in time to move for a new trial under Rule 59 (b) court to relieve a party

."

Rule 60 (b) also allows the his counsel from a final

or

judgment, order or proceeding for "any other reason justifying relief from the operation of the judgment." M.R.Civ.P. The question of reopening the hearing on attorney fees and costs was argued throughly before the District Court and a review of the transcript fails to indicate the court abused its discretion in reopening the hearing. Therefore, we Rule 60 (b),

affirm the decision of the District Court on this issue.

IV

The final issue to be addressed is whether Nicholson should also recover his fees and costs of this appeal.
A

review of the contract for deed reveals that the

prevailing party is to be awarded reasonable fees and all costs. The provision does not limit the recovery to fees and

costs through judgment of the District Court hut rather provides for reasonable fees and all costs such legal action."

". . . incident to

Therefore, we find it appropriate under

the terms of the contract to charge Cannon with Nicholson's reasonable fees and all costs on this appeal and hereby remand to the District Court for determination of such fees and costs. We affirm the judgment of the District Court but remand for determination of attorney fees on appeal in conformity with this opinion.

&dS,ik,d
Chief Justice

We concur:



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