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Williams v. Plum Creek Timber Co.

Court of Workers Compensation of Montana

June 2, 1995

DAVID WILLIAMS Petitioner
v.
PLUM CREEK TIMBER COMPANY Respondent/Employer.

          ORDER AWARDING COSTS ON APPEAL

          Mike McCarter JUDGE

         The Judgment in this matter was issued by the Workers' Compensation Court on June 28, 1994, finding that the claimant was entitled to permanent partial disability benefits and to costs. Attorney fees and a penalty were specifically denied. The claimant appealed the attorney fees and penalty issues to the Supreme Court. On March 7, 1995, the decision of the Workers' Compensation Court was affirmed.

         The respondent requests costs on appeal. The matter is briefed and ready for decision.

         Costs on appeal are governed by section 25-10-104, MCA, which provides,

25-10-104. When costs of appeal discretionary. (1) In the following cases, the costs of appeal are in the discretion of the court:
(a) when a new trial is ordered;
(b) when a judgment is modified.
(2) In all other cases the successful party shall recover from the other party his costs.

         The statute is specific that an award of costs is mandatory unless a new trial is ordered or the judgment is modified.

         Rule 33(a), Mont.R.App.P., provides in relevant part:

         (a) Costs on Appeal. Costs on appeal in civil cases will be taxed as provided by section 25-10-104, Montana Code Annotated, and if not otherwise provided by the court in its decision, will automatically be awarded to the successful party against the other party. . . .

         Since the Supreme Court decision in this case makes no specific provision concerning costs, they are deemed to be "automatically awarded to the successful party."

         Relying on State ex. rel. Nesbitt v. District Court, 119 Mont. 198, 173 P.2d 412 (1946) and Marriage of Kuzara, 224 Mont. 124, 728 P.2d 786 (1986), the claimant argues that the respondent cannot be considered a "successful party" because there were no legal questions reversed on appeal. These cases are inapposite; they apply only in considering whether the appellant was the successful party on appeal.

         In Nesbitt the Supreme Court granted a writ of supervisory control from a district court order which granted costs to the defendants. The Supreme Court had previously ruled for the plaintiffs in all respects except that it had found the judgment to be excessive and remanded the case with instructions that a new trial be granted unless the plaintiffs accepted a smaller amount. The matter was ultimately resolved by the second alternative. The trial court then awarded costs of the appeal to the defendants, apparently relying on the fact that the Supreme Court had modified the judgment. Plaintiffs appealed the award and ...


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