                                               No. 14971
                      IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                  1979


THE STATE OF MONTANA, ACTING BY AND
THROUGH THE DEPARTMENT OF HIGHWAYS
OF THE STATE OF MONTANA,

                                      Plaintiff and Appellant,
               -vs-
WILLIAM K. BURLINGAME et al.,
                                      Defendants and Respondents.


Appeal from:              District Court of the Fourth Judicial District,
                          Honorable John Hensen, Judge presiding.
Counsel of Record:
    For Appellant:
              Terry Clausen, Highway Legal Dept., Helena, Montana
    For Respondents:
              Claude Burlingame, Plains, Montana


                                                 Submitted on briefs: November 7, 1979

                                                            Decided: jAfi :
                                                                        -     4-P..
                                                                              ! 33i;

Filed:   i,
          '
                 *
                      . -
                      "
                          J
                              f F '
Mr. Justice Gene B. Daly delivered the Opinion of the Court.



     This is the second appeal of the matter previously
before this Court in Department of Highways v. Burlingame

(1979)       Mont.        , 597 P.2d 51, 36 St.Rep. 603. The
facts may be briefly stated as follows.

     The Department of Highways brought this action in the
District Court to condemn 1.32 acres of defendant's property
in Missoula County.    Prior to the jury trial in District
Court, plaintiff had made a number of offers to purchase

defendant's property, all of which were refused.       Plaintiff's
last offer was $43,100 plus necessary expenses.       The jury,
however, returned a verdict awarding the defendant only
$39,750 for the value of his property.      The District Court
awarded the defendant an additional $6,247.93, representing

$1,536.36 in costs and $4,711.57 for attorney fees.
     In the first appeal of this case, plaintiff challenged

that portion of the judgment awarding costs and attorney
fees to the defendant.    This Court noted that plaintiff's
offer of $43,100 exceeded the jury award of $39,750.       There-

fore, this Court held that defendant did not prevail and

that " [tlhat portion of the judgment awarding attorney's
fees is reversed."     (Emphasis added.)   Department of High-
ways v. Burlingame (1979), - Mont.           ,   597 P.2d 51, 56,
36 St.Rep. 603, 609.
     The Department of Highways subsequently moved the
District Court to enter an amended judgment awarding neither
attorney fees nor costs to the defendant.        The District
Court denied this motion, stating that the Supreme Court's
decision in Burlingame did not intend to reverse the District
Court's award of costs, because the holding in Burlingame
r e v e r s e d o n l y t h a t p o r t i o n o f t h e judgment d e a l i n g w i t h

attorney fees.

         P l a i n t i f f now a p p e a l s from t h e D i s t r i c t C o u r t ' s d e n i a l

o f t h e motion t o amend.

         The s o l e i s s u e on a p p e a l i s whether t h e D i s t r i c t C o u r t

e r r e d i n r e f u s i n g t o amend i t s judgment s o a s t o deny d e f e n -

d a n t h i s a t t o r n e y f e e s and c o s t s .

        A p p e l l a n t a r g u e s t h a t because t h i s C o u r t h a s a l r e a d y

d e c i d e d t h a t t h e landowner d i d n o t p r e v a i l a t t h e t r i a l o f

t h i s m a t t e r , t h e landowner i s n o t e n t i t l e d t o e i t h e r a t t o r n e y

f e e s o r c o s t s under s e c t i o n 70-30-305(2), MCA, which p r o v i d e s :

        " I n t h e e v e n t o f l i t i g a t i o n and when t h e p r i v a t e
        p r o p e r t y owner p r e v a i l s by r e c e i v i n g a n award i n
        e x c e s s of t h e f i n a l o f f e r of t h e condemnor, t h e
        c o u r t s h a l l award n e c e s s a r y e x p e n s e s of l i t i g a t i o n
        t o t h e condemnee."

S e c t i o n 70-30-306(1), MCA, p r o v i d e s :

        " N e c e s s a r y e x p e n s e s of l i t i g a t i o n a s a u t h o r i z e d
        by 70-30-305 mean r e a s o n a b l e and n e c e s s a r y a t t o r -
        ney f e e s , e x p e r t w i t n e s s f e e s , e x h i b i t c o s t s , and
        court costs. "

Since defendant d i d n o t p r e v a i l , appellant argues t h a t

d e f e n d a n t w a s n o t e n t i t l e d t o h i s " n e c e s s a r y e x p e n s e s of

litigation."           T h e r e f o r e , he was n o t e n t i t l e d t o e i t h e r

a t t o r n e y f e e s o r c o s t s , and t h e D i s t r i c t C o u r t e r r e d i n

denying a p p e l l a n t ' s motion t o amend i t s judgment t o t h a t

effect.

        D e f e n d a n t ' s r e s p o n s e t o t h i s argument i s t h a t t h i s

C o u r t r e s o l v e d t h e same q u e s t i o n i n f a v o r of t h e landowner

i n t h e f i r s t a p p e a l , and t h a t o u r o r i g i n a l d e c i s i o n i s t h e

law o f t h e c a s e and i s c o n t r o l l i n g upon t h i s C o u r t .

        "The g e n e r a l r u l e i n Montana i s t h a t where a de-
        c i s i o n h a s been r e n d e r e d by t h e Supreme C o u r t
        on a p a r t i c u l a r i s s u e between t h e same p a r t i e s
        i n t h e s a m e c a s e , whether t h a t d e c i s i o n i s r i g h t
        o r wrong, such d e c i s i o n i s b i n d i n g on t h e p a r -
        t i e s and t h e c o u r t s and c a n n o t be r e l i t i g a t e d i n
        a subsequent appeal."                B e l g r a d e S t a t e Bank v .
      Swainson (1978),     Mont.          , 578 P.2d
      1166, 1167, 35 ~ t z p . 4 9 , 5 4 9 ~ .
                             5
     There is one exception to the above rule, as articu-
lated in State v. Zimmerman (1977), - Mont.            ,   573 P.2d

174, 178, 34 St.Rep. 1561, 1566, however, that exception is
inapplicable to the facts in this case.       Defendant argues
that the holding in our first opinion reversed the award of
attorney fees but not the award of costs, and that appellant
is preempted from raising the issue of costs in the present
appeal.    In support of this argument, defendant points to

our statement of the issue and our holding in the first
appeal :
     "In an eminent domain proceeding where the Dis-
     trict Court found the State's final offer was
     $43,100 and the jury verdict was $39,750, was
     it error for the District Court to award attor-
     --- costs?
     ney fees and


     "We find the trial court erred in awarding -
                                                at-
     torney's fees in this case because the private
     property owner did not prevail as required by
     law." Burlingame, 597 P.2d at 52. (Emphasis
     added. )
     "That portion of the judgment awarding attor-
     ney's - -is reversed." Burlinqame, 597 P.2d
           fees
     56. (Emphasis added. )

From this language, defendant argues that this Court has
already decided the same issue, whether or not defendant was
entitled to costs against the appellant in our first opinion,
and that we are precluded from considering it in this appeal
under the "right or wrong" rule stated in Swainson because
our former decision constitutes the law of the case.
     The short answer to the defendant's contentions is that
the language quoted above did not resolve this question in
favor of the landowner in the first appeal.       Our previous
opinion did not decide that the defendant was entitled to
costs; instead, this Court inadvertently failed to state a
conclusion with respect to costs.                          Therefore, since no
decision was rendered on this particular issue in our
previous opinion, the rule in Belgrade State Bank v. Swainson,
supra, does not apply.
        We now decide in accordance with appellant's reasoning
that the defendant was not entitled to costs under sections
7 0 - 3 0 - 3 0 5 (x') and 7 0 - 3 0 - 3 0 6   (2), MCA.    Therefore, we reverse
the District Court's order denying appellant's motion to
amend and direct the District Court to enter a judgment
which does not award the landowner either attorney fees or
costs.


                                                                   .             1 ,

                                                               ,   Justice             k'

      Chief Justice




      Justices


Mr. Justice John C. Sheehy stands on his dissent in the
original opinion.


                                                              a d k        e.I b - 4
                                                                       ustice
