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Friedel, LLC v. Lindeen

Supreme Court of Montana

March 21, 2017

FRIEDEL, LLC, Petitioner and Appellant,
v.
MONICA LINDEEN, STATE AUDITOR, Respondent and Appellee.

          Submitted on Briefs: January 25, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 14-1465 Honorable Michael G. Moses, Presiding Judge

          For Appellant: William J. O'Connor, II, O'Connor & O'Connor, P.C., Billings, Montana

          For Appellee: Nicholas Jon Mazanec, Special Assistant Attorney General, Montana State Auditor, Helena, Montana

          James Jeremiah Shea Justice

         ¶1 Friedel, LLC (Friedel) successfully obtained documents from the Montana State Auditor's Office, and requested attorney fees pursuant to § 2-3-221, MCA. The Thirteenth Judicial District Court, Yellowstone County, denied Friedel's request and it appealed the Order of the District Court. We address the following issue:

         Whether the District Court abused its discretion by denying Friedel's request for attorney fees.

         ¶2 We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 Friedel is a surety insurance (bail bond) company in the State of Montana. On February 11, 2014, the Office of the Montana State Auditor, Commissioner of Securities and Insurance (Auditor) instituted an administrative action against Friedel for the purpose of ascertaining whether Friedel's business practices complied with Montana law. On June 6, 2014, Friedel served two nearly identical requests on the Auditor, asking for the entire agency file on Friedel. The first was submitted as a discovery request within the context of the administrative action. The second was made pursuant to the "Right to Know" provision of the Montana Constitution. Mont. Const. art. II, § 9. On July 3, 2014, the Auditor responded to the two requests by providing Friedel with 276 documents and a privilege log for nine documents that were not released. On October 8, 2014, Friedel filed a motion to compel the Auditor to give it access to the documents covered by the privilege log. Prior to the filing, Friedel did not express any concerns regarding the privilege log to the Auditor. On October 23, 2014, the hearing examiner denied Friedel's motion to compel, noting that Friedel failed to object to the privilege log for over three months.

         ¶4 On October 14, 2014, Friedel filed another right-to-know request in the District Court, again asking for the information covered by the privilege log. On April 29, 2015, before the District Court ruled on Friedel's request, the Auditor waived privilege and sent Friedel the requested information. On October 29, 2015, Friedel requested attorney fees pursuant to § 2-3-221, MCA. The District Court denied Friedel's request, reasoning that Friedel "could have avoided the attorney fees incurred in the instant case by timely addressing the issue before the hearing examiner."

         STANDARD OF REVIEW

         ¶5 Where legal authority exists to award attorney fees, we review a district court's decision to grant or deny the fees for an abuse of discretion. Wohl v. City of Missoula, 2013 MT 46, ¶ 29, 369 Mont. 108, 300 P.3d 1119. Abuse of discretion occurs when a district court acts "arbitrarily without employment of conscientious judgment or [exceeds] the bounds of reason resulting in substantial injustice." Gaustad v. City of Columbus (In re Investigative Records of the City of Columbus Police Dep't), 272 Mont. 486, 488, 901 P.2d 565, 567 (1995) (citing Goodman v. Goodman, 222 Mont. 446, 448, 723 P.2d 219, 220 (1986)). We will not substitute our judgment for that of a ...


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