ORDER AWARDING COSTS ON APPEAL
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
respondent requests costs on appeal. The matter is briefed
and ready for decision.
on appeal are governed by section 25-10-104, MCA, which
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.
statute is specific that an award of costs is mandatory
unless a new trial is ordered or the judgment is modified.
33(a), Mont.R.App.P., provides in relevant part:
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. . . .
the Supreme Court decision in this case makes no specific
provision concerning costs, they are deemed to be
"automatically awarded to the successful party."
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.
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 ...