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Montana Schools Groupworkers Compensation Riskretention Program v. Department Of Labor And Industry Employment Relations Division

Court of Workers Compensation of Montana

October 4, 1995



          Mike McCarter JUDGE

         Summary: Self-insurance association of school districts renews request for attorney fees and costs following appeal, arguing that it seeks fees on a private attorney general theory, which it argues cannot be considered until after the Court has ruled on the substantive issues.

         Held: Court remains without jurisdiction to award fees. Cases cited by appellant distinguished.


Attorney Fees: Timeliness of Request. Renewed request for attorney fees and costs based on private attorney general theory denied where appellant first made the request more than three months following judgment.

         Montana Schools Group (MSG) has requested attorney fees. The request was made for the first time after entry and certification of judgment. On September 27, 1995, I determined that the request was untimely and that I was without jurisdiction to consider it. (Order Denying Attorney Fees.) MSG now asks the Court to reconsider its ruling, arguing that the type of attorney fees it seeks -- private attorney general theory -- cannot be considered until after the Court has ruled on the substantive issues. MSG cites several cases, none of which are persuasive.

         In Weber v. State of Montana, 253 Mont. 148, 151, 831 P.2d 1359, 1361 (1992), the Supreme Court stated that the motion for attorney fees was filed after trial. But that was in a case of a jury trial. Attorney fees and costs are frequently fixed by the Court even in cases tried by juries. Moreover, there is nothing in the Weber opinion to indicate that the plaintiff had failed to request attorney fees and costs in his prayers for relief, or that final judgment had been entered by the court prior to his motion for attorney fees.

         In Dearborn Drainage Area v. Montana Stockgrowers Association, Inc., 240 Mont. 39, 831 P.2d 1359 (1989), the Supreme Court's decision indicates that attorney fees were requested after remittitur from a prior decision of the Supreme Court which had affirmed a water rights determination of the Water Court. The Water Court awarded attorney fees after remand but the Supreme Court reversed. Its decision was based on the merits of the attorney fee claim; the timeliness of the attorney fee claim was not considered and apparently was not raised as an issue in the case. Moreover, the decision does not inform us whether a prayer for attorney fees had been included in the pleadings. Thus, Dearborn hardly stands as affirmative precedent for MSG's position.

         In Armstrong v. Montana Dept. of Justice, 250 Mont. 468, 820 P.2d 1273 (1991), the attorney fee request was made after the plaintiff successfully appealed an adverse decision to the Supreme Court. The fact that the plaintiff requested the district court to consider attorney fees following his successful appeal is not surprising since he initially lost at the district court level and attorney fees were unavailable to him at that time. As in the other cases cited by MSG, the Supreme Court did not indicate whether attorney fees had been prayed for in the pleadings and the timeliness of the motion for attorney fees was not addressed.

         Moreover, and not mentioned by MSG in its briefs, the Supreme Court has specifically considered the time in which a request for attorney fees must be filed. In the recent case of In re Marriage of Hill, 265 Mont. 52, 874 P.2d 705 (1994), the Court considered an attorney fee request made many months after the initial filing of the case. The Court held that the request was untimely:

A review of the record reveals that Terry did not request attorney fees as a form of relief in her original petition for modification. The issue of attorney fees was not mentioned until a brief in support of the petition was filed seven months later. We conclude that an argument raised for the first time in a supporting brief does not equate with raising an issue in the pleadings and serving notice to the court and opposing parties of the relief requested. When the issue of attorney fees is omitted from the pleadings, and no evidence is presented on that issue at trial, the issue is outside the purview of the District Court. Naftco Leasing v. Finalco (1992), 254 Mont. 89, 835 P.2d 728. Accordingly, the court did not err when it did not address this issue, and this Court will not consider a claim raised for the first time after the trial, against which the opposing party had no opportunity to defend.

265 Mont. at 60, 874 P.2d at 709-710. Based on the language of the opinion, it appears that the attorney fee request was made after trial but prior to the district court's entry of judgment. The decision refutes MSG's position in this case that it did not have to raise the issue prior to this Court's entry of judgment.

         The Supreme Court has also held that where the trial court enters judgment without mentioning attorney fees, a party seeking attorney fees must comply with the requirements applicable to motions to amend the judgment. Haugen v. Nelson, 240 Mont. 28, 31, 782 P.2d 901, 902 (1989). In district court actions, motions to amend a judgment are governed by Rule 59(g), Mont.R.Civ.P., which requires that such motions be filed within ten days after notice of entry of judgment. In Haugen both parties requested attorney fees in their pleadings. The Court entered judgment without awarding either party attorney fees. Notice of entry of judgment was then served. Nearly six weeks after that notice, the Nelsons filed a motion for attorney fees. The motion was rejected by the district court as untimely and the Supreme Court affirmed, holding that the motion was one to amend the judgment and that the Nelsons had only ten days in which to file the motion. The Court rejected the Nelsons' contention that the original judgment was merely interlocutory:

Rule 54(a), M.R.Civ.P. defines judgment as "the final determination of the rights of the parties in an action or proceeding and as used in these rules includes a decree and any ...

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