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                                                                 No. 99-102



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                                1999 MT 179

                                                               295 Mont. 277

                                                                983 P.2d 316




IN THE MATTER OF THE ESTATE OF



THOR K. LANDE,

Deceased.




APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Big Horn,

The Honorable G. Todd Baugh, Judge presiding.




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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:




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__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.




¶1. 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.

¶2. We address the following issues:

¶3. 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?

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

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

                                                          BACKGROUND

¶6. This appeal arises from the Contestants' unsuccessful 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.

¶7. The personal representatives subsequently claimed attorney fees and costs on

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behalf of Cubby's estate pursuant to § 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 § 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, § 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

¶8. We review a district court's award of attorney fees to determine whether the
court abused its discretion. Hauck v. Seright, 1998 MT 198, ¶ 43, 290 Mont. 309, ¶
43, 964 P.2d 749, ¶ 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.

¶9. 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?



¶10. On appeal, the Contestants reassert their argument that the personal
representatives were required to follow the procedure set forth in § 25-10-501, MCA,
to recover fees and costs under § 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.

¶11. 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

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tax costs, including attorney fees, 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 § 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.

¶12. In revisiting Craver, however, we determine it was incorrectly decided. Section
25-10-501, MCA, is captioned "Bill of costs." It provides that

[t]he 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.

¶13. Craver also departed from our prior cases holding that the requirements of § 25-
10-501, 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 § 25-10-201, MCA. We observed that, with certain limited
exceptions not including attorney fees, the § 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 § 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.

¶14. 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 § 25-10-501, MCA, did not say
that fees were costs and, citing again to § 25-10-201, MCA, determined that costs

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generally allowable do not include attorney fees. Schillinger, 215 Mont. at 337, 697
P.2d at 922.

¶15. On the basis of both the plain language of § 25-10-501, MCA, and our prior
cases, we conclude that our Craver determination that claims for attorney fees are
within the scope of § 25-10-501, MCA, was incorrect. Therefore, that portion of
Craver is overruled. We further conclude that the five-day filing requirement set
forth in § 25-10-501, MCA, does not apply to attorney fees to which a party is entitled
by statute.

¶16. The Contestants also argue that, even if attorney fees are not within the ambit of
§ 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.

¶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 § 72-12-206, MCA, and § 25-10-501,
MCA, and that, because § 72-12-206, MCA, was a specific statute relating to probate
actions, it controlled over § 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.

¶18. 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.

¶19. The District Court also concluded that a will contest is a special proceeding
under § 27-1-102, MCA, and costs in special proceedings are allowed as a matter of
course to the prevailing party pursuant to § 25-10-101(4), MCA. We conclude,
however, that neither § 27-1-102, MCA, nor § 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 § 25-10-501, MCA.


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¶20. 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 § 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.

¶21. 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., § 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.

¶22. 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, § 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 § 25-10-501, MCA,
time requirement and the exemptions would swallow the clear five-day requirement
of § 25-10-501, MCA.

¶23. 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,

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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.

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



¶25. 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 "§ 72-12-206 M.C.A. seems to
provide for attorney fees . . . anyway." The Contestants contend that the court erred.
We disagree.

¶26. The purposes of pretrial orders are to "prevent surprise, simplify 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 § 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 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.

¶27. 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

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cases are distinguishable.

¶28. In Naftco Leasing, the plaintiffs sued to reform certain lease agreements based
on mistake. Naftco Leasing, 254 Mont. at 91, 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. Naftco 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 731-32.

¶29. 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 731. 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 § 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.

¶30. 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, ¶ 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

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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, ¶ 41 (citations
omitted).

¶31. 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, § 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.

¶32. We conclude that the District Court did not err in concluding that the attorney
fees mandated by § 72-12-206, MCA, were available to the personal representatives
notwithstanding their failure to include the issue in the pretrial order.

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



¶34. 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
§ 25-10-501, MCA, we need not address this assertion of error.

¶35. 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.

¶36. 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

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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.

¶37. 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. 1, 4, 768 P.2d 334, 336.

¶38. 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 § 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 §
72-12-206, MCA, which mandates legal fees to the successful defender against a will
contest, onto § 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.

¶39. Finally, the Contestants' reliance on Estate of Stone is far from clear. In any
event, however, the case is distinguishable on both the facts and the law. Estate of
Stone involved 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


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hired to defend him against the petition for removal. The disbursement was claimed
under § 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 of Stone, 236
Mont. at 3, 768 P.2d at 335. Those facts are entirely different 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 § 72-12-206, 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.

¶40. We hold that the District Court did not abuse its discretion with regard to the
award or amount of attorney fees in this case.

¶41. Affirmed in part, reversed in part and remanded for modification of the
judgment to delete the costs awarded to the personal representatives.



/S/ KARLA M. GRAY



We concur:



/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER


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