                                                    No.    84-377

                    I N THE SUPREME COURT O THE STATE O M N A A
                                           F           F OTN

                                                            1985




DOUGLAS A.     ROUND,

                                P l a i n t i f f and R e s p o n d e n t ,

     -vs-

HARVEY D.     REIKOFSKI,

                                D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:            D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
                        I n and f o r t h e County o f M i s s o u l a ,
                        The Honorable Douglas H a r k i n , J u d g e p r e s i d i n g .



COUNSEL O -CORD:
         F


         For Appellant:

                    T i p p , Woven, S k j e l s e t & F r i z z e l l ;         Douglas G.
                    S k j e l s e t , M i s s o u l a , Montana

         F o r Respondent:

                   Worden, Thane & H a i n e s ; P a t r i c k G.                  Frank, Missoula,
                   Montana




                                                    S u b m i t t e d on B r i e f s :   Feb.     8, 1985

                                                                            Decided:     May 2,      1985


           $.#&f   ,+
Filed:              ~"   /$&$
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
        Defendant    appeals       from    the   judgment by    the   Fourth
Judicial District Court for Missoula County in which the
plaintiff was awarded $1,444.81 for the damage to plaintiff's
motor vehicle and reasonable attorney's fees in the amount of
$1,977.50.       We affirm.
        The issues are:
        1.    Was there substantial credible evidence to support
the motor vehicle damage award?
        2.    Was   the    award   of     attorney's    fees proper   under
  25-10-303, MCA?
        In its memorandum and order granting partial summary
judgment, dated November 28, 1983, the District Court made
the following factual determinations.                  On March 7, 1981, in
Missoula, Montana, defendant and his wife were driving home
at about 10:OO p.m.           Plaintiff's pickup truck came up behind
defendant's vehicle blinking its bright lights on and off.
Defendant pulled off the road to allow plaintiff's truck to
pass but plaintiff stopped behind defendant's vehicle.                    A
passenger in plaintiff's vehicle came forward and proceeded
to beat on the defendant's passenger door window with an iron
bar until the window broke.                 Defendant then backed      into
plaintiff's truck and attempted to pull away, but his vehicle
stalled.        Someone attempted to open defendant's passenger
door.        Defendant started his vehicle, made a full turn, and
rammed the left rear of plaintiff's pickup truck with the
right front of his vehicle.
        Plaintiff commenced this action to recover $1,444.81 for
damages to his            truck.    Under Count        I, plaintiff sought
recovery in negligence; under Count 11, he sought recovery
for an intentional tort with a claim for punitive damages;
and under Count 111, he sought damages for gross negligence,
willful, wanton, malicious and reckless misconduct, with a
claim for punitive damages.
       After considering the pleadings and interrogatories, the
District Court concluded that the defendant intentionally
backed into and intentionally rammed the plaintiff's vehicle.
He    further concluded            that   the defendant had          alleged no
justification         for    his    action     and   that    no    justification
appeared from the record.                 The court also pointed out that
the defendant failed to raise a defense of contributory
negligence in his answer.                 The District Court then entered
summary    judgment         for    the     plaintiff    on    Count    11,    the
intentional tort count of the plaintiff's complaint.
       On June 7, 1984, the issue of damages was tried to the
District Court without a jury.                 In its findings of fact, the
District Court concluded that the defendant intentionally
rammed plaintiff's vehicle; that defendant's intentional act
was the proximate cause of the damage to plaintiff's vehicle;
that   plaintiff's          vehicle was        damaged; that the        cost of
repairs    to   plaintiff's          vehicle     was   $1,444.81;     that    the
repairs were done; that the repair costs were reasonable;
that plaintiff sent an offer of settlement to defendant for
$1,444.81 on November 23, 1981; that defendant refused to pay
the    bill;    and    that       plaintiff     therefore     is   entitled    to
attorney's fees pursuant to S 25-10-303, MCA.                      The judgment
of the District Court granted judgment against the defendant
for $1,444.81 plus interest at 10% from November 23, 1981,
plus reasonable attorney's fees of $1,977.50.
                                           I

       Was there substantial credible evidence to support the
motor vehicle damage award?
       The District Court's findings of fact in the order of
June 8, 1984, are both clear and specific with regard to the
damage     to    plaintiff's    vehicle,   the   reasonable   cost    of
repairs, and the reasonable amount of the attorney's fees.
        The scope of appellate review of findings of fact is
defined in Rule 5 2 (a), M.R.Civ. P., which states in pertinent
part:
        ". . . Findings of fact shall not be set aside
        unless clearly erroneous, and due regard shall be
        given to the opportunity of the trial court to
        judge of the credibility of the witnesses.     .I' ..
Our standard of review is clearly stated in Ski Roundtop,
Inc. on Behalf of Ski v. Hall (Mont. 1983), 6 5 8 P.2d 1071,
1079, 40 St.Rep.       74, 83, quoting Jensen v. Jensen         (Mont.


         "This Court will not substitute its
         judgment for that of the trier of fact.
         We will consider only whether substantial
         credible evidence supports the findings
         and conclusions.   Findings will not be
         overturned unless there is a clear
         preponderance of evidence against them,
         recognizing that evidence may be weak or
         conflicting, yet     still  support the
         findings."
        In substance the defendant argues that the testimony
fails to show that - damage to the plaintiff's vehicle
                   all
resulted from the action of the defendant.             It is true that
the deposition testimony of the plaintiff only shows that
plaintiff's      pickup   was    damaged   by    the   defendant,    was
subsequently repaired, and that the cost of repairs was
reflected in the exhibit bill.             That testimony does not
exclude the possibility that repairs may have been made for
damage caused by some activity other than that involving the
defendant.
    However, an auto repairman with extensive and long term
experience in making       repairs testified that in examining
plaintiff's vehicle before preparing his estimated cost of
repairs, he considered whether the customer was seeking to
repair damages which were not a part of this particular
transaction.      He pointed out that he could identify damages
which occurred more than three to five days earlier than the
accident in question.       In substance he testified that if the
damage could have been caused by two different accidents, he
would have made a note on his repair estimate, and he did not
make such a note.     His testimony together with the testimony
of the repairman who made the actual repairs constitutes
substantial credible evidence upon which the District Court
could base its findings of fact.
     We    hold   there    is    substantial credible    evidence   to
support the judgment of the District Court on this issue.


     Was    the    award    of     attorney's    fees   proper   under


     The award of attorney's fees by the District Court was
based upon the provisions of S 25-10-303, MCA which provides
in pertinent part:
    "In an action involving solely the recovery of
    property damages arising out of the ownership    .     ..
    of a motor vehicle, in which the plaintiff secures
    a judgment equal to or greater than the amount of
    damages claimed by the plaintiff in his last
    written offer to the defendant          ...
                                          prior to the
    filing of the cause of action, the court shall
    allow plaintiff's reasonable attorney's fee            ...
    If the defendant            ...
                              fails to make any offer
    within 15 days of the date requested to do so by
    the plaintiff, the plaintiff may file the cause of
    action and, if successful in the action, shall be
    entitled to his reasonable attorney's fee             . . ."
Defendant contends that the plaintiff's complaint in Count I1
sought not only recovery of the property damage to the motor
vehicle but also punitive damages.              He therefore contends
that as a result of the pleading in the complaint, this is
not an action involving solely the recovery of property
damages to a vehicle.       Our analysis of the procedure and the
facts causes us to reach a different conclusion.
        Initially summary judgment was granted on this count
based       upon    the   District      Court's   determination       that    the
defendant          intentionally     backed       into    and     rammed     the
plaintiff's vehicle, therefore making it appropriate to enter
summary judgment on the claim of an intentional tort.                        That
summary judgment did not address any aspect of the damages
themselves.
       The damages issues were presented in the bench trial on
June    7,    1984.       The    record    shows that      the    only   issues
presented for consideration by the court at that time were
the issues of the cost of repairs to plaintiff's vehicle,
interest on         such repairs and reasonable attorney's fees.
There is no disagreement on the facts.                   A written offer was

made    as    required     under     S 25-10-303, MCA       and   a    judgment
exactly equal to that offer was obtained.                  As actually tried
to the court, the action did involve solely the recovery of
property damages arising out of the ownership of a motor
vehicle.      This meets the standard required under the statute.
       We    conclude     that    the     award of   attorney's       fees was
proper.
       The judgment of the District Court is affirmed.




We concur:
 '-->
