             IN THE SUPREME COURT OF THE STATE OF MONTANA




IN THE MATTER OF THE ESTATE OF

THOR K. LANDE,
           Deceased.
                                                                      L*.
                                                                        C


                                                              ; ~ f' A f a r z ' , r - . - ~ ; r e = ? -
                                                                  R
                                                                   STATE O F MONTANA


APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Big Horn,
                  The Honorable G. Todd Baugh, Judge presiding.


COUNSEL OF RECORD:

           For Appellants:

                  Brent R. Cromley; Moulton, Bellingham, Longo & Mather,
                  Billings, Montana

           For Respondents:

                  James R. Graves, Ingrid Gustafson; Graves, Toennis & Gustafson,
                  Billings, Montana

                  Peter Stanley, Attorney at Law, Billings, Montana



                                                           Submitted on Briefs: June 10, 1999

                                                                          Decided: July 27, 1999
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.


71     Clifford R. Lande, Kip H. Lande and Kande L. Lande (the Contestants) appeal from

the Order for Attorneys Fees and Costs entered by the Thirteenth Judicial District Court, Big

Horn County. We affirm in part, reverse in part and remand.

72     We address the following issues:

73     1. Did the District Court err in concluding that attorney fees and costs were not

waived by the personal representatives' failure to file a timely memorandum under 25- 10-

501, MCA?

74     2. Did the District Court err in awarding attorney fees when the fee issue was not

included in the pretrial order?

75     3. Are the costs and attorney fees awarded by the District Court proper and

reasonable?

                                      BACKGROUND

76     This appeal arises from the Contestants' unsuccessfU1 challenge to a will executed by

their adoptive father, decedent Thor K. Lande (Cubby). The Contestants claimed that Cubby

lacked testamentary capacity and was unduly influenced when he executed his December 30,

1996, will. The will contest was tried to a jury and the jury returned a special verdict finding

that Cubby had testamentary capacity and was not unduly influenced when he executed the

will. The District Court admitted Cubby's will to probate and confirmed the designated co-
personal representatives. The Contestants appealed and we affirmed. See Estate of Lande,

1999 MT 162, -P.2d -,          56 St.Rep. 642.

77     The personal representatives subsequently claimed attorney fees and costs on behalf

of Cubby's estate pursuant to   5 72-12-206, MCA.      The Contestants resisted the claim on

several grounds. The District Court rejected the Contestants' arguments, concluding that the

estate was statutorily entitled to attorney fees and costs. The court also concluded that, while

5 25-10-501, MCA, requires a party claiming costs to file a bill of costs within five days of
the verdict or notice of the court's decision and the estate did not timely file such a bill of

costs, 5 25- 10-501, MCA, was not applicable in the present case. The court determined that

the hourly rates charged were reasonable and "the hours, no doubt, were actually put into the

trial and preparation of the case." The District Court ultimately ordered the Contestants to

pay to the estate, out of any sum they ultimately might recover from the estate, the sum of

$76,108.30 for attorney fees and costs. Notice of entry of judgment was filed and served and

the Contestants appeal.

                                       DISCUSSION

88     We review a district court's award of attorney fees to determine whether the court

abused its discretion. Hauck v. Seright, 1998 MT 198,Y 43,290 Mont. 309,y 43,964 P.2d

749, TI 43. We review a trial court's conclusions of law to determine whether the court's

interpretation of the law is correct. Choteau Library Bd. v. Teton County Bd. (1997), 283

Mont. 87,90,938 P.2d 1357, 1359.
79     1. Did the District Court err in concluding that attorney fees and costs were not
waived by the personal representatives' failure to file a timely memorandum under 8 25- 10-
50 1, MCA?

710       On appeal, the Contestants reassert their argument that the personal representatives

were required to follow the procedure set forth in 8 25-10-501, MCA, to recover fees and

costs under 5 72-12-206, MCA, for successfully defending the validity of Cubby's will. As

a result of the personal representatives' failure to comply with the statute, the Contestants

contend that the right to fees and costs was waived.

71 1      The Contestants focus first on attorney fees and rely on Craver v. Waste Mgt. Partners

of Bozeman (1994), 265 Mont. 37, 874 P.2d 1. There, as the Contestants point out, we

stated:

                 As provided by statute, claimants in whose favor a judgment is rendered
          may recover or tax costs, including attorneyfees, by delivering a copy of the
          memorandum of costs to the court and to the adverse party within five days of
          the judgment. Section 25- 10-501, MCA.

Craver, 265 Mont. at 46, 874 P.2d at 6 (emphasis added). Thus, according to the

Contestants, we clearly included memoranda regarding attorney fees within the five-day

filing requirement set forth in fj 25-10-501, MCA, and application of that statute here

requires a conclusion that the personal representatives--who did not file their claim for

attorney fees within five days--waived their right to attorney fees.

f 12      In revisiting Craver, however, we determine it was incorrectly decided. Section 25-

10-501, MCA, is captioned "Bill of costs." It provides that
       [tlhe party in whose favor judgment is rendered and who claims his costs must
       deliver to the clerk and serve upon the adverse party, within 5 days after the
       verdict or notice of the decision of the court . . . a memorandum of the items
       of his costs and necessary disbursements in the action or proceeding . . . .

Section 25-10-501, MCA. As its caption and plain language indicate, the statute addresses

memoranda of costs only; it does not address claims for attorney fees or require that such

claims be submitted within five days.

713    Craver also departed fkom our prior cases holding that the requirements of § 25-10-

50 1, MCA, do not apply to claims for attorney fees. In Cook v. Harrington (1983), 203

Mont. 479,482,661 P.2d 1287,1288, we reasoned that "Title 25, Chapter 10 of the Montana

Code Annotated deals with the imposition and allowance of costs" recoverable under 8 25-

10-201,MCA. We observed that, with certain limited exceptions not including attorney fees,

the fj 25-10-201, MCA, list of recoverable costs was exclusive. Cook, 203 Mont. at 482,661

P.2d at 1288 (citation omitted). As a result, we held that fj 25- 10-501, MCA, which requires

that a bill of costs be delivered within five days, "does not apply to attorney fees." Cook, 203

Mont. at 482, 661 P.2d at 1288.

714    We addressed a somewhat similar issue in Schillinger v. Brewer (1985), 215 Mont.

333, 697 P.2d 919, which involved whether attorney fees were "costs" in a mechanic's lien

foreclosure case. We observed that fj 25-10-501, MCA, did not say that fees were costs and,

citing again to 5 25- 10-201, MCA, determined that costs generally allowable do not include

attorney fees. Schillinger, 215 Mont. at 337,697 P.2d at 922.
715     On the basis of both the plain language of 5 25-10-501, MCA, and our prior cases, we

conclude that our Craver determination that claims for attorney fees are within the scope of

5   25- 10-50 1, MCA, was incorrect. Therefore, that portion of Craver is overruled. We

fbrther conclude that the five-day filing requirement set forth in 8 25- 10-501, MCA, does not

apply to attorney fees to which a party is entitled by statute.

716     The Contestants also argue that, even if attorney fees are not within the ambit of 5 25-

10-501, MCA, the personal representatives did not timely file their bill of costs thereunder

and, therefore, their right to costs was waived. According to the Contestants, the District

Court erred in interpreting certain statutes to reach a contrary result. We agree.

T[ 17   Section 72- 12-206, MCA, mandates that costs incurred in successfully defending the

validity of a will be paid by the party contesting the will's validity. The District Court

concluded that a conflict existed between 5 72-12-206, MCA, and 5 25-10-501, MCA, and

that, because   5   72-12-206, MCA, was a specific statute relating to probate actions, it

controlled over     5 25-10-501, MCA, which generally requires that a bill of costs be filed
within five days of the verdict or notice of the court's decision.

718     The problem with the District Court's analysis is that the two statutes do not conflict.

Section 72-12-206, MCA, mandates that an unsuccessful will contestant pay the costs

incurred in the will contest. It does not, however, provide a procedure via which the

successful defender of the will's validity obtains those costs. Section 25-10-501, MCA, on
the other hand, does provide such a procedure. Thus, while both statutes address costs, they

do so in unrelated contexts and are not inconsistent with each other.

719    The District Court also concluded that a will contest is a special proceeding under

8 27-1- 102, MCA, and costs in special proceedings are allowed as a matter of course to the
prevailing party pursuant to 5 25- 10-101(4), MCA. We conclude, however, that neither fj27-

1-102, MCA, nor     5 25- 10-101(4), MCA, is relevant to the issue of whether the personal
representatives were required to file their bill of costs within five days under 5 25-10-501,

MCA.

720    Part 1 of Chapter 10, Title 25 of the Montana Code Annotated addresses the

imposition of costs. Section 25-10-101, MCA, addresses when costs are allowed as a matter

of course to a plaintiff upon a judgment in his or her favor; such situations include, in

subsection (3), costs in an action for the recovery of money or damages when the plaintiff

recovers over $50 and, in subsection (4), on which the District Court relied, costs in a special

proceeding. Section 25-10-102, MCA, provides for costs as a matter of course to a

prevailing defendant in the situations set forth in   5 25- 10-101, MCA.   Section 25- 10-103,

MCA, addresses when costs are discretionary. Given their placement in the part of Title 25

addressing imposition of costs, it is not surprising that none of these statutes provides the

means or manner in which costs are to be claimed.

72 1   Part 2 of Chapter 10, Title 25 of the Montana Code Annotated addresses which costs

generally are allowable to a party claiming costs. See, e.g., 5 25-10-201, MCA. Again, and
not surprisingly, nothing in that part of Title 25 provides for the manner in which costs must

be claimed.

722    Part 5 of Chapter 10, Title 25 of the Montana Code Annotated is captioned "Claiming

Costs." By its caption, and by the terms of the statutes contained therein, Part 5 provides the

means and manner in which costs are to be claimed. Nothing in those statutes makes a

distinction or exception for costs being claimed in different types of actions. Indeed, as set

forth above,   5 25-10-501, MCA, mandates that a prevailing party who "claims his costs"
must file an itemized memorandum of claimed costs within five days of the verdict or notice

of the court's decision. The language of the statute is plain and unequivocal in encompassing

all claims for costs. Thus, the District Court's implicit conclusion that costs incurred in a

"special proceeding" need not be claimed within the five-day period required by $25- 10-501,

MCA, is incorrect. Nor could it be otherwise. Carrying the court's determination to its

logical conclusion, all costs allowed as a matter of course under $ 25- 10-101, MCA, to

prevailing plaintiffs--and presumably all costs allowed to prevailing defendants under $ 25-

10-102, MCA--would be exempt from the        5 25-10-501, MCA, time requirement and the
exemptions would swallow the clear five-day requirement of $ 25- 10-501, MCA.

123    We hold, therefore, that the District Court correctly concluded that the $ 25- 10-501,

MCA, five-day requirement for filing a memorandum of costs does not include memoranda

or affidavits relating to attorney fees sought pursuant to $ 72-12-206, MCA. We further

hold, however, that the District Court erred in concluding that the $ 25-10-501, MCA,
requirement for memoranda of costs was not applicable to the personal representatives' claim

for costs. As a result, the personal representatives are not entitled to an award of costs and

this case must be remanded for modification of the judgment to delete costs awarded in error.

124 2. Did the District Court err in awarding attorney fees when the fee issue was not
included in the pretrial order?

725    It is undisputed that no request for attorney fees was included in the pretrial order in

this case. In the District Court, the Contestants relied on a number of Montana cases in

arguing that the absence of an attorney fee issue in the pretrial order precluded the personal

representatives from raising the issue after trial. The District Court observed that the

Contestants were correct in asserting that the issue was not raised in the pretrial order, but

concluded that ''5 72-12-206 M.C.A. seems to provide for attorney fees . . . anyway." The

Contestants contend that the court erred. We disagree.

126    The purposes of pretrial orders are to "prevent surprise, simplifL the issues, and permit

the parties to prepare for trial." Nentwig v. United Industry, Inc. (1992), 256 Mont. 134,

138-39,845 P.2d 99, 102. Requiring inclusion in the pretrial order of a request for attorney

fees pursuant to   5   72-12-206, MCA, which mandates such fees in the event a party

successfully defends the validity of a will, would not further those purposes. Indeed, where

attorney fees are a straightforward statutory entitlement in the event a party prevails in the

action, no surprise could result from a posttrial claim by such a successful party for the

statutorily-mandated fees. In addition, inclusion in the pretrial order of the subject of

attorney fees which become an entitlement only after the prevailing party has been

                                               9
determined at trial could neither simplify trial issues nor allow for better trial preparation,

since no evidence need be presented on the question and no legal determinations are required

before or during trial.

727    The Contestants rely, however, on Simmons Oil Corp. v. Wells Fargo Bank, 1998 MT

129, 289 Mont. 119, 960 P.2d 291, and Naftco Leasing Ltd. v. Finalco, Inc. (1992), 254

Mont. 89,835 P.2d 728, in support of their argument that failure to raise the issue of attorney

fees in the pretrial order waives the right to recover fees. Those cases are distinguishable.

728    In Naftco Leasing, the plaintiffs sued to reform certain lease agreements based on

mistake. Naftco Leasing, 254 Mont. at 9 1,835 P.2d at 730. The district court concluded that

the claims were barred by the statute of limitations and awarded attorney fees to the

defendant even though the fee issue was not contained in the pretrial order. Nafto Leasing,

254 Mont. at 92-93, 835 P.2d at 730-31. On appeal, we affirmed the district court's

determination that the statute of limitations barred the plaintiffs' claims, but concluded that

the court improperly awarded attorney fees to the defendant. Naftco Leasing, 254 Mont. at

93-95,835 P.2d at 73 1-32.

729    With regard to fees, we noted that both parties had included attorney fee claims in the

pleadings, but neither party did so in the pretrial order. The defendant attempted to rely on

Bell v. Richards (1987), 228 Mont. 215,741 P.2d 788, where we allowed attorney fees even

though the defendants had not mentioned the issue in the pretrial order. Naftco Leasing, 254

Mont. at 93-94, 835 P.2d at 73 1. Our holding in Bell, however, was based on the plaintiffs
having claimed the right to fees in the pretrial order pursuant to contractual language, and on

the existence of the "reciprocal attorney fee" provision in 5 28-3-704, MCA. Bell, 228 Mont.

at 219, 741 P.2d at 791. We distinguished Bell on several grounds in Naftco Leasing,

however, including that the lease agreements did not include an attorney fees provision raised

by one of the parties in the pretrial order. Instead, in Naftco Leasing, the defendant belatedly

attempted to obtain attorney fees solely under the "reciprocal fees" statute absent any

mention in the pretrial order or any ability to recover fees under the lease agreements

themselves. Under those circumstances, we concluded that the defendant's failure to include

the attorney fees issue in the pretrial order waived the right to raise it at a later time. Naftco

Leasing, 254 Mont. at 95, 835 P.2d at 732.

730    We addressed a similar attorney fees issue in Simmons Oil. There, the defendant bank

had requested attorney fees in its pleadings, but neither party referenced the issue in the

pretrial order. Simmons Oil then requested attorney fees posttrial, relying on the bank's

request for fees in its pleadings, and the district court denied the request. Simmons Oil, 7 16.

On appeal, Simmons Oil relied on the "reciprocal fees" statute in arguing that attorney fees

should be reciprocal and awarded, while the bank advanced Naftco Leasing as controlling

when attorney fees are neither explicit nor implicit in the pretrial order. We affirmed the

district court's denial of attorney fees with little discussion, stating only that we "cannot find

the District Court abused its discretion by denying the request since it was not contained in

the Pretrial Order, and, thus, not before the court." Simmons Oil, 7 41 (citations omitted).
731    The circumstances before us in the present case are dissimilar to those in Naftco

Leasing and Simmons Oil, neither of which involved a stand-alone, statutorily-mandated

award of fees to the party prevailing at trial. Here,       5   72-12-206, MCA, entitled the

successful defenders against a will contest to attorney fees as a matter of law. Hence, Naftco

Leasing and Simmons Oil are inapplicable here.

832    We conclude that the District Court did not err in concluding that the attorney fees

mandated by      tj   72-12-206, MCA, were available to the personal representatives

notwithstanding their failure to include the issue in the pretrial order.

1733 3. Are the costs and attorney fees awarded by the District Court proper and
reasonable?

1734   The Contestants' first assertion of error with regard to the amount of costs and attorney

fees awarded is that certain of the costs were not authorized by statute or otherwise. In light

of our conclusion above that the personal representatives waived their right to recover costs

by their failure to timely file a bill of costs as required by 5 25- 10-501, MCA, we need not

address this assertion of error.

y35    With regard to the amount of attorney fees awarded, the Contestants concede that the

hourly rates were reasonable and that the itemized hours undoubtedly were put into the trial

and preparation. Their first contention in this regard is that the number of hours submitted

was unreasonable primarily because two separate law firms--a total of three lawyers--worked

on the case for the personal representatives, resulting in extra billing for some hours spent

on the case.
736    The problem with the Contestants' argument that the number of hours submitted was

unreasonable is that it is not supported by the record. The lead lawyer for the personal

representatives testified at the hearing on the motion for costs and attorney fees that she felt

additional counsel would be helpful and needed, and hired an attorney outside her firm who

was familiar with the types of matters involved in the will contest. Moreover, the personal

representatives presented an attorney witness experienced in probate matters who testified

that it is not unusual to associate other counsel with cases and that, under such circumstances,

"everybody charges for their time." The witness further testified that she had reviewed the

time submitted for all the attorneys involved in the personal representatives' case and that the

time appeared to be reasonable. The Contestants did not present a witness to controvert or

dispute this testimony. On this record, we conclude that the attorney fees awarded by the

District Court were reasonable.

737    The Contestants' remaining arguments on this issue are less than clear. They seem to

posit that, because the personal representatives had some interest in the estate, the personal

representatives' actions in defending against the Contestants' challenge to Cubby's will did

not comport with the requirement contained in $ 72-3-606(2), MCA, that personal

representatives take steps "reasonably necessary for the management, protection, and

preservation of the estate . . . ." In other words, the Contestants theorize that, absent their

own interest in the estate, the personal representatives would not have incurred such

significant legal fees in defending against the will contest. Under these circumstances, the
Contestants urge that the legal services for which the attorney fees were incurred were not

reasonable because they were not "beneficial to the estate" as required by Matter of Estate

of Stone (1989), 236 Mont. l,4,768 P.2d 334,336.

138    The primary problem with the Contestants' argument is that it is premised on the

purely speculative theory that the personal representatives' defense against the challenge to

Cubby's will was motivated by their personal interest in the estate, rather than intended to

meet their statutory obligation under     5 72-3-606(2), MCA, to "take all steps reasonably
necessary for the . . .protection, and preservation of the estate . . . ." We will not address this

speculative theory. Moreover, superimposing 5 72-12-206, MCA, which mandates legal fees

to the successful defender against a will contest, onto 5 72-3-606(2), MCA, appears to reflect

a legislative determination that defending against a will contest constitutes a reasonably

necessary step for the protection of the estate.

739    Finally, the Contestants' reliance on Estate o Stone is far from clear. In any event,
                                                     f

however, the case is distinguishable on both the facts and the law. Estate o Stone involved
                                                                            f

a personal representative, removed for cause pursuant to a petition by devisees, including in

his final account a disbursement for legal fees for the lawyer hired to defend him against the

petition for removal. The disbursement was claimed under 5 72-3-632, MCA, which entitles

a personal representative who defends or prosecutes any proceeding in good faith to receive

from the estate necessary expenses and disbursements, including reasonable attorney fees

incurred. Estate o Stone, 236 Mont. at 3,768 P.2d at 335. Those facts are entirely different
                  f

from the facts before us in the present case. Furthermore, the statute at issue in Estate of

Stone is not only not at issue here, it is of an entirely different nature and scope than 5 72-12-

                                                14
206, MCA. The Estate of Stone statute entitles a personal representative to recover

disbursements--including reasonable attorney fees--from the estate upon a showing that a

proceeding was prosecuted or defended in good faith. Section 72- 12-206, MCA, on the other

hand, requires an unsuccessful contestant of the validity of a will to pay attorney fees

incurred in successfully defending the will. Given these factual and legal distinctions

between Estate of Stone and the present case, we will not address that case or the Contestants'

argument thereunder further.

140    We hold that the District Court did not abuse its discretion with regard to the award

or amount of attorney fees in this case.

141    Affirmed in part, reversed in part and remanded for modification of the judgment to

delete the costs awarded to the personal representatives.
