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                                                               No. 00-053

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 311

                                                             302 Mont. 447

                                                              14 P.3d 1252


                                           IN THE MATTER OF INQUIRY INTO

                                                     A.W., D.G., and M.G., JR.

                        APPEAL FROM: District Court of the Fourteenth Judicial District,

                                             In and for the County of Musselshell,

                                     The Honorable David Cybulski, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellants:

                       Mark L. Guenther, Nash, Guenther and Zimmer, Bozeman, Montana

                          Virginia Bryan, Wright, Tolliver and Guthals, Billings, Montana

                                                            For Respondent:

                             Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,

                                       Assistant Attorney General, Helena, Montana

                           John V. Potter, Jr., Meagher County Attorney; Vicki Knudson,

                                Acting Special Deputy, White Sulphur Springs, Montana

                                               Submitted on Briefs: July 20, 2000

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                                                     Decided: December 7, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Justice Jim Regnier delivered the opinion of the Court.

¶1 Laurie and Michael, the parents of A.W., D.G., and M.G., Jr., appeal from an order
issued by the Fourteenth Judicial District Court, Musselshell County, denying recovery of
the cost of reproducing a transcript incurred on a previous appeal to this Court. We affirm.

                                                          BACKGROUND

¶2 This is the second appeal in this case. In the original action the Department of Public
Health and Human Services filed a petition for temporary investigative authority and
protective services on behalf of A.W., D.G., and M.G., Jr., the minor children of Laurie
and Michael. In that proceeding the District Court issued an order requiring Laurie and
Michael to pay $25,243.98 in guardian ad litem fees and expenses. Laurie and Michael
appealed from the order raising two issues. First, they contended that the District Court
erred in requiring them to reimburse the county for guardian ad litem fees and costs
incurred in the proceeding. Second, they argued that the District Court erred in
determining the amount of the guardian ad litem fees and costs without an evidentiary
hearing. We concluded that the District Court erred when it interpreted § 41-3-303, MCA,
to require Laurie and Michael to pay for guardian ad litem services for their minor
children following a petition for protective services. In re Inquiry into A.W., D.G., and M.
G., Jr., 1999 MT 42, 293 Mont. 358, 975 P.2d 1250.

¶3 Subsequent to remittitur Laurie and Michael filed their Memorandum of Costs seeking
reimbursement of $5116.50, including $4728.50 for costs incurred in reproducing the
transcript of the District Court proceedings. The State objected to the costs and on
December 9, 1999, the District Court heard oral arguments as to whether the cost of the
transcript was necessary to the appeal. The District Court issued its order on December 16,
1999, awarding Laurie and Michael recovery of $388 in costs but denying recovery of the
cost of the transcript of $4728.50 as an unreasonable and unnecessary expense. Laurie and

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Michael appeal.

                                                  STANDARD OF REVIEW

¶4 This Court reviews a district court's award of costs and its discretionary rulings on trial
administration matters under the abuse of discretion standard. Moore v. Imperial Hotels
Corp. (1997), 285 Mont. 188, 190, 948 P.2d 211, 213. In evaluating abuse of discretion,
we look to whether the district court acted arbitrarily without employment of
conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.
Groves v. Clark, 1999 MT 117, ¶ 25, 294 Mont. 417, ¶ 25, 982 P.2d 446, ¶ 25.

                                                             DISCUSSION

¶5 Did the District Court err in denying Laurie and Michael recovery of transcript costs
incurred in their first appeal to this Court?

¶6 Laurie and Michael argue that the District Court erred in denying their recovery of
transcript costs because the submission of the full transcript to this Court was required
pursuant to Rule (9)(b), M.R.App.P. The State contends that the District Court did not err
in denying recovery for the costs of the transcript, because, under the relevant appellate
rules, the transcript was not necessary on appeal. We agree.

¶7 The question of who should bear the burden of the cost of the transcript presented for
an appeal is controlled by Rule 33, M.R.App.P. Pursuant to Rule 33(a), M.R.App.P., if not
otherwise provided for by the court in its decision, costs will automatically be awarded to
the successful party. The language of Rule 33(c) controls the award of the costs:

        Rule 33(c) Other costs taxable. Costs incurred in the preparation and transmission of
        the record, the cost of the reporter's transcript, if necessary for the determination of
        the appeal, the premiums paid for cost of supersedeas bonds or other bonds to
        preserve rights pending appeal, and the fee for filing notice of appeal shall be taxed
        in the district court as costs of the appeal in favor of the party entitled to costs under
        this rule.

(Emphasis added.)

¶8 Laurie and Michael argue, however, that as Appellants they were compelled by a plain


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reading of Rule 9(b), M.R.App.P., to order a transcript of the entire proceedings not
already on file. Therefore, they contend they should be awarded their entire costs in
reproducing the transcript.

¶9 Rule 33(c), M.R.App.P., clearly establishes that appeal transcript costs are recoverable
only if the transcript was necessary for the determination of the appeal. Although it is true
that the first paragraph of Rule 9(b) does state that the appellant shall order a transcript of
the entire proceedings, the second paragraph goes on to point out that the appellant need
only order so much of the transcript as is necessary considering the issues raised on
appeal. Rule 9(b) then provides a detailed procedure to assure that both the appellant and
respondent have the opportunity to order those parts of the transcript necessary to present
the appeal. As a general rule the appellant must order the entire transcript. However, Rule
9 contains specific provisions to relieve the appellant of the burden of providing the
complete transcript if it is unnecessary considering the issues raised on appeal. Although
Rule 9 is the general authority that guides both appellant and respondent in the ordering,
preparation, and filing of the transcript, Rule 33(c), M.R.App.P., is the specific rule that
controls whether the cost of reproducing the transcript can properly be taxed as a cost.
Pursuant to Rule 33(c), the cost of producing the transcript can only be taxed as a cost if it
was necessary for the determination of the appeal.

¶10 Not surprisingly, Laurie and Michael next argue that preparation of the transcript was
necessary to present the issues raised in their appeal. In support of their argument they
refer to their appellate brief filed with this Court. As stated above they raised two issues
on appeal, first, the propriety of assessing the guardian ad litem costs to them and, second,
whether the District Court erred in awarding the fees without an evidentiary hearing. The
District Court noted our opinion, In re Inquiry into A.W., D.G., and M.G., Jr., disposed of
the appeal by only addressing the first issue, whether the District Court properly assessed
the fees, and that this was a purely legal issue making the transcript unnecessary.

¶11 Laurie and Michael concede in this appeal that the first issue raised was purely a
question of law, but argue that the second issue on appeal required them to provide the
court with a full transcript or be faced with potential dismissal. They argue that the second
issue raised factual matters requiring an analysis of the trial court proceedings to
determine whether the guardian ad litem's charges of $25,243.98 were reasonable and
whether the District Court erred in refusing their request for an evidentiary hearing on
those significant charges. The State responds that both issues were questions of law and
required no transcript. The State further contends that Laurie and Michael failed to

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preserve their second, arguably fact-based issue, which was then impermissibly presented
to this Court. Thus, they argue, the transcript could not be necessary to an appeal of an
issue which was impermissibly brought before this Court.

¶12 Both issues were framed in the first appeal as questions of law and were purely legal
in nature. Although the resolution of the first issue was dispositive of our resolution of the
first appeal, the second issue also involved a question of law. Whether or not the District
Court should have conducted a hearing before making an award of fees is a legal question
that does not require a transcript to resolve. Notwithstanding the fact that Appellants cite
repeatedly to the record in an attempt to characterize this second issue as one based on the
factual findings in the District Court, it boils down to the legal question of whether the
trial judge erred by not requiring an evidentiary hearing.

¶13 In summary, we conclude that the District Court did not abuse its discretion in
determining that the tran script was unnecessary for this appeal. Affirmed.

                                                         /S/ JIM REGNIER

                                                               We Concur:

                                                      /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON

                                                /S/ WILLIAM E. HUNT, SR.

                                                /S/ TERRY N. TRIEWEILER




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