                            NO.     95-570
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996



DEBRA K. WALKER,
          Petitioner and Appellant,
     v.

RICHARD A. HIGGINS,
          Respondent and Respondent.



APPEAL FROM: District Court of the Twenty-first Judicial District,
              In and for the County of Ravalli,
              The Honorable Jeffrey Langton, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Clinton H. Kammerer; Kammerer Law Offices,
               Missoula. Montana

          For Respondent:
               Milton Datsopoulos,, Paul T. Ryan;        Datsopoulos,
               MacDonald & Lind, Mlssoula, Montana
               Charles H. Recht; Recht & Recht, Hamilton,
               Montana


                                  Submitted on Briefs:   June 20, 1996
                                              Decided:   July 30, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.


      Debra K. Walker appeals a summary judgment in favor of Richard
A. Higgins in this action to invalidate the official result of the

November 1993 mayoral election in Darby, Montana.               As part of its
judgment, the Twenty-first Judicial District Court, Ravalli County,

awarded Higgins $13,034.05 in attorney fees.              We affirm.
      The issues are whether summary judgment was proper and whether

the award of attorney fees was an abuse of discretion.

      Darby is an incorporated town in Ravalli County, Montana, with

an elected mayor.      In November of 1993, an election was held for

the office of mayor of Darby by mail-in ballot, pursuant to Title

13,   Chapter 19, MCA.       Jerry Moore and acting mayor Richard A.

Higgins were the candidates for this office.              Ballots were mailed

to all registered electors of Darby, and 269 completed ballots were

returned and counted.        Higgins received 135 votes, Moore received

134 votes, and Higgins was declared the winner.

      In May of 1994,    Debra K. Walker,         a registered voter of the
Town of Darby,       filed this action to invalidate the election.

Walker averred that individuals who were not residents of the Town

of Darby had cast their ballots and voted in the election when they

had no right to do so,        based on her examination of the election

results and voter registration.

      Walker challenged the qualifications                of five   individual

voters.    Relying    upon   affidavits   filed    with   the   court,   Higgins

moved for summary judgment.          Walker filed a cross-motion for

summary judgment, supported by depositions and exhibits.
                                      2
        After a hearing,    the District Court ruled that Walker had
failed to produce material and substantial evidence to support her
allegations that the five voters were unqualified to vote.         The
court granted summary judgment to Higgins and awarded him attorney

fees pursuant to 5 13-36-205, MCA.

                                  ISSUE 1

        Was summary judgment proper?

        This Court's standard of review of a summary judgment is the

same as that used by a district court--whether, pursuant to Rule

56(c),    M.R.Civ.P.,   material issues of fact exist and whether the

moving party is entitled to judgment as a matter of law.       Motarie
v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907

P.2d 154, 156.       The moving party has the burden of establishing

that no genuine issue of fact is before the trial court; once that

burden is met, the party opposing the motion must present evidence

of a material and substantial nature raising a genuine issue of

fact.     Motarie,   907 P.2d at 156.

        The procedures for contesting the results of a public election

are set forth at Title 13, Chapter 36, MCA.      The possible grounds

for such a challenge are enumerated at § 13-36-101, MCA.           The

ground raised here, illegal votes, is subsection (3) thereof.

        Section 13-36-211, MCA, provides that an election is not to be

set aside on account of illegal votes unless the candidate whose

right is contested had knowledge of or connived at the illegal

votes (which is not alleged here), or
        the number of illegal votes given to the person whose
        right to the nomination or office is contested, if taken
                                        3
     from him, would reduce the number of his legal votes
     below the number of votes given to some other person for
     the same nomination or office, after deducting therefrom
     the illegal votes which may be shown to have been given
     to such other person.

Section 13-36-211(2), MCA.

     In this case, Walker claims that illegal votes were cast by
five voters who were not residents of the Town of Darby at the time

of the election.   Residency is defined at 5 l-l-215, MCA:

     Residence -- rules for determining. Every person has, in
     law, a residence. In determining the place of residence
     the following rules are to be observed:
           (1)  It is the place where one remains when not
     called elsewhere for labor or other special or temporary
     purpose and to which he returns in seasons of repose.
           (2)  There can only be one residence.
           13) A residence cannot be lost until another is
     gained.
           (4)  The residence of his parents or, if one of them
     is deceased or they do not share the same residence, the
     residence of the parent having legal custody or, if
     neither parent has legal custody, the residence of the
     parent with whom he customarily resides is the residence
     of the uhmarried minor child. In case of a controversy,
     the district court may declare which parental residence
     is the residence of an unmarried minor child.
           (5) The residence of an unmarried minor who has a
     parent living cannot be changed by either his own act or
     that of his guardian.
           16)  The residence can be changed only by the union
     of act and intent.

      As to the five voters challenged in this case,          Higgins

established that they were each registered to vote in the Town of

Darby and   that their   names   appeared on   the precinct    voting

register.   The registration of an elector and appearance of that

person's name on the precinct register is prima facie evidence of

that person's right to vote.     Section 13-z-601, MCA.   We conclude

that Higgins met his initial burden of proof in support of his

motion for summary judgment.
                                   4
     The   first   two   challenged   voters   were   Daniel   and   Shawna   Rail.

Walker submitted a copy of a juror questionnaire executed by Shawna

Rail in March 1994,        in which Shawna Rail stated she should be

excused from jury duty in the city court because she did not live

within the city limits of Darby.          Daniel Rail similarly executed a
city court juror questionnaire in July 1994 in which he stated he

no longer had a home in Darby and should be excused from jury duty.

     In individual affidavits to the District Court, the Rails both

stated that prior to August 1993 they lived and resided within the

Town of Darby.     They further stated that in August 1993 their home
was damaged by fire and became uninhabitable, forcing them to seek

temporary housing outside the Town of Darby.                   They each further

stated by affidavit that at the time of the November 1993 election

they intended the Town of Darby to remain their legal residence and

that they never registered or attempted to vote in any other state

or district other than the Town of Darby.
     As the District Court noted, neither of the Rails'                       juror

questionnaires is probative of their situation or intent at the

time of    the November       1993 election--the questionnaires were

executed months later.        The only evidence of the Rails'           intent at
the time of the election is contained in their affidavits. We

conclude that as to the Rails'         right to vote in the November 1993

Darby mayoral election, Walker has failed to meet her burden of

presenting evidence of a material and substantial nature raising a

genuine issue of fact.
        Another challenged voter was Cheryl E.        Snider.         Snider
testified by affidavit that beginning in March of 1992 she lived in
a home which she believed to be within the Town of Darby and which

was surrounded by property which she knew to be in the town limits.

Her landlord, however, testified by deposition that he was unsure

whether he paid city taxes on the property Snider rented from him,

but did not believe so.      Also,   Snider executed a juror question-
naire in March of 1994 in which she gave contradictory answers as

to her residence.       She answered "no"     to whether she should be

disqualified as a juror for living outside the city limits of
Darby, but she also answered "no" to whether her home was within

the city limits of Darby.

        The statement of Snider's landlord is at best speculative, and

therefore not sufficient to preclude summary judgment.       Farm Credit

Bank of Spokane v. Hill (1993), 266 Mont. 258, 264, 879 P.2d 1158,

1161.      Moreover,   Snider's   ambiguous   responses to      the    juror

questionnaire were tempered by her affirmation in that document

that she met all of the qualifications of residency and had no

reason to be excused from jury duty.        Therefore, we conclude that

Walker did not meet her burden of proof in resisting the summary

judgment motion as to Snider.

         Paula Nelson was another challenged voter. Walker questioned

whether Nelson's residence was within the Town of Darby.              Nelson

submitted an affidavit that in the past five years she had never

registered or attempted to vote elsewhere but in the Town of Darby

and that she believed that the house in which she lived in 1993 was


                                     6
within the Town of Darby because it received town water and sewer
services.      Walker did not submit any evidence to support her

contention that Nelson's residence was outside the town limits. We

conclude she did not meet her burden of establishing a material

issue of fact as to Nelson's qualification to vote.

        The final voter challenged was Robert H. Rawlins.                 Walker
submitted the deposition of Gary Steinman, who operated a hotel in

Darby.      Steinman    testified that his hotel records had been

destroyed but that Rawlins was a hotel tenant or guest off and on

throughout 1993,       staying as long as months at a time.             Steinman
testified that Rawlins left for Las Vegas, Nevada, in October or

November of 1993, but returned around November of 1994 and offered

to rent his old hotel room back for four months.

        As the District Court stated, nothing in Steinman's deposition

contradicts the prima facie evidence of Rawlins' right to vote as

a resident of Darby in the November 1993 election.                 We   conclude
that Walker has not met her burden of establishing a material issue

of fact as to Rawlins'       right to vote in the 1993 Darby mayoral

election.

        After reviewing the evidence before the District Court, we

hold that the court was correct in ruling that Walker failed to

produce material and     substantial   evidence   that   illegal   votes    were

cast.    Because no illegal votes have been demonstrated, we need not

proceed to the question of whether Higgins would have sufficient

votes to win the election if the illegal votes were taken from him.

We hold that summary judgment for Higgins was proper.
                                       ISSUE 2
        Was the award of attorney fees an abuse of discretion?

        Section 13-36-205, MCA, provides:

        Recovery of costs. In any contest, the prevailing party
        may recover his costs, disbursements, and reasonable
        attorney's fees.   costs, disbursements, and attorney's
        fees in all such cases shall be in the discretion of the
        court.   In case judgment is rendered against the peti-
        tioner, it shall also be rendered against the sureties on
        the bond.

Because the statute places the award of attorney fees within the

trial    court's    discretion,   our standard of review is whether the

District Court abused that discretion.
        The District Court awarded Higgins attorney fees of $11,608.55

for representation by the firm of Datsopoulos, MacDonald & Lind,

P.C.,    and $1,425.50 for representation by the firm of Recht &

Recht, P.C.        Walker contends that the court abused its discretion

in awarding attorney fees to attorney Charles H. Recht of Recht &

Recht, P.C., because she maintains Recht appeared on behalf of the

Town of Darby.        At the   time   of this action, Recht served as the

town attorney for Darby.

        The record is somewhat ambiguous as to whom Recht represented

in this action.       His billing records, attached to his affidavit of

attorney fees, list the "Town of Darby" as his "client."                The Clerk

of District Court's Register of Action lists Recht as the attorney

for the "City of Darby."              However,    the Town of Darby was not a

party to this action.          Recht     signed    pleadings   as   "Attorney   for

Richard A. Higgins."       He testified at the attorney fee hearing that

he appeared as co-counsel for Higgins, and not on behalf of the

                                           8
T0V.T   of Darby.      Recht explained his billing records showing the
Town of Darby as his client as follows:

        The Town of Darby has paid the fees for Mr. Higgins
        because of the position of Mr. Higgins with respect to
        the Town of Darby. So just like any other person, if you
        were awarded your attorney fees, if they were paid by
        your client, you would return them to your client. I was
        returning them to the Town of Darby, who paid my fees.

Recht's testimony suggests that his employment as the attorney for

the Town of Darby was on an hourly basis rather than on retainer or

salary.

        Walker also claims there was no expert testimony on Recht's

behalf,      which,   without citation to authority, she maintains was

required.      Finally, Walker argues that her position in this action

was reasonably grounded in fact and supported by documentation from

objective      persons,    and that therefore the award of attorney fees

against her was an abuse of discretion.
        In   determining    what   constitutes   reasonable   attorney   fees,
factors to be considered are:          (1) the amount and character of the

services rendered; (2)        the labor, time, and trouble involved; (3)

the character         and importance of     the litigation in which the

services were rendered; (4) the amount of money or the value of the

property affected; (5) the professional skill and experience called
for; (6) the attorney's character and standing in the profession;

and (7) the result secured by the                services of the attorney.

Swenson v. Janke (1995), 274 Mont. 354, 361, 908 P.Zd 678, 682-83.
        At the hearing on the matter of attorney fees, Datsopoulos

testified that when Higgins asked him to serve as co-counsel with

Recht on this case, his response was "I knew Bud Recht, I respected
                                        9
him,    and I would be pleased to work with him."      Datsopoulos    also
testified that Recht took an active part in the case,                which
Datsopoulos described as a complex case of first impression and "a

puzzling and interesting case."        Recht testified that he had been

an attorney for thirty years,       that he felt his own fees for this

case were reasonable,       and that there was a lot of interest and

pressure in this case.       As to the character and importance of this

litigation,       the District Court reasoned as follows:

        If it's true, as I have heard today, that the mayor of
        the Town of Darby is paid $50 a month, $600 a year, and
        if the general rule applied that the Court should
        generally consider that each side should bear their legal
        fees, then any time someone didn't like [someone]
        who is elected mayor or [to1 any other public office,
        then all they need to do is raise the specter of a suit
        to invalidate the election where each side would have to
        bear their legal fees.      And at least those who are
        willing to bear the risk, or have the financial where-
        withal that legal fees is not a consideration, could
        effectively annul the decision of the public to elect who
        they want to elect to public office.

              .    .   .

              I think this is the type of an action where whoever
        chooses to file it should be extremely careful that
        before it's filed that they not only have a reasonable
        cause or non-frivolous case, but a winning case, because
        the odds are, if they lose, they're going to pay.

             And, on the other hand, if we have an official in
        office who has good cause to believe he may be wrongfully
        in that office, if the election was tainted in some
        fashion, then he better seriously consider his position
        before he enlists assistance, because if he loses, he's
        going to pay.

There is no question about who was the prevailing party in this

case.

        The testimony before and considerations engaged in by the

District Court reflect the factors set forth in Swenson for
                                     10
determining the issue of whether attorney fees should be awarded

We hold that sufficient evidence was presented to the court on the

issue of attorney fees and that the court did not abuse its discre-

tion in its award of attorney fees to Higgins.

     We affirm the decision of the District Court




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