 96-485




                                                                               Nos. 96-485 and 96-486

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA


                                                                                1997


                                                                WALLACE E. SMALL and
                                                                    ANNELL SMALL,

                                                                        Plaintiffs and Respondents,

                                                                                       v.

                                                             H. KERRY GOOD, III, and
                                                                  STACY B. GOOD,

                                                                         Defendants and Appellants.



APPEAL FROM:                District Court of the Fourth Judicial District, In and for the County
                                                      of
                                 Missoula, the Honorable Douglas G. Harkin, Judge Presiding.


                                                                  COUNSEL OF RECORD:

                                                                               For Appellants:

                               Henry K. Good III, and Stacy B. Good (pro se), Swan Valley, Montana

                                                                               For Respondent:

                                                         Kathleen O'Rourke-Mullins, Polson, Montana




                                                                                          Submitted on Briefs: June 12, 1997

                                                                                          Decided: August 12, 1997
                                                                                          Filed:


                                                         __________________________________________
                                                                        Clerk

                    Chief Justice J. A. Turnage delivered the Opinion of the Court.



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        Kerry and Stacy Good appeal from the findings, conclusions, and order of the
Fourth Judicial District Court, Missoula County, quieting title to Wallace and Annell
Smallþs property and awarding the Smalls attorney fees and costs. We affirm in part
                                              and
                                      reverse in part.
                    The Goods raise the following claims as issues on appeal:
           1.    The Goods no longer have access for year-round services which they
                                 enjoyed from 1979 to 1996.
        2.    The District Court doubted that the Goods used the road between 1980 and
                                             1993.
                 3.    The District Court unconstitutionally took the easement.
            4.    The District Court erred when it awarded attorney fees and costs.
                                                       BACKGROUND
           In 1979, Henry and Jeanne Good (Goods, Sr.) sold property located along
  Lindberg Lake, Missoula County, Montana, to their son, H. Kerry Good, III, and his
   wife, Stacy. The Goods, Sr., historically used the "brown road" to access their
 property. The Goods, Sr., retained an adjoining lot, which the Smalls purchased in
                                             1980.
   At about the same time, the Smalls constructed the "purple road" to access their
                                          lot. The
 area currently in dispute, the "red road," lies between a parking lot on the Smallsþ
            property and the boundary between the Smallsþ and the Goodsþ lots.
          Before 1980, guests of the Goods, Sr., parked north of the red road, which
resembled a wide forest path, and walked on it to access the residence of the Goods,
                                              Sr.
 When the Goods, Sr., conveyed their lot to the Goods, the deed included "an easement
   for ingress and egress over existing roads." In 1993, the Goods began to travel
                                          over the
  red road and their use became noticeable to the Smalls. The Smalls sued to quiet
                                            title.
 The Goods counterclaimed to quiet title and asserted as an affirmative defense that
                                             they
               had established an easement either by grant or prescription.
      At trial, Jeanne Good testified the red road was not an existing road in 1979.
                                              The
  Smalls testified they never observed the Goods traveling over the red road in their
vehicles before 1993.       The District Court concluded that the red road did not exist
                                             as an
     access to the Goods' residence in 1979, and it was not conveyed to them as an
                                          easement
  by grant.     The court also concluded that the Goods had not traveled along the red
                                             road
   long enough or in such a manner to establish a prescriptive easement. The court
                                           quieted
         title in favor of the Smalls and awarded them attorney fees and costs.
                                        The Goods appeal.
                                         DISCUSSION
           1.    The Goods no longer have access for year-round services which they
                                 enjoyed from 1989 to 1996.

           2.        The District Court doubted that the Goods used the road between 1980 and
                                                 1993.

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       We consolidate these two issues and treat them as an argument that the District
 Courtþs findings are not supported by the evidence. This Court reviews a district
                                         courtþs
findings of fact to determine whether they are clearly erroneous. Amerimont, Inc. v.
    Gannett (1996), 278 Mont. 314, 318, 924 P.2d 1326, 1329. We determine whether a
  finding is clearly erroneous by using the three-part test set forth in Interstate
                                        Production
  Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The DeSaye test
  requires a review of the record to determine whether the findings are supported by
   substantial evidence; to determine whether the district court misapprehended the
                                          effect
 of the evidence; and to determine whether a review of the record leaves this Court
                                           with
       a firm conviction that a mistake has been made. DeSaye, 820 P.2d at 1287.
        The Goods argue that the District Court erred because it accepted the Smallsþ
version of the facts rather than their own. In nonjury trials, witness credibility
                                         and the
     weight of their testimony is a matter properly left to the discretion of the
                                     district court.
    Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357. Jeanne Good
was clear that, when the Goods, Sr., sold their property to the Goods, the conveyance
        included existing roads. In 1979, the red road was not an existing road.
         After a thorough review of the trial record, we conclude there is sufficient
         evidence to support the courtþs findings and that evidence has not been
                                     misapprehended;
     nor do we have any conviction that a mistake has been made. We hold that the
                                         District
                       Courtþs findings are not clearly erroneous.
                  3. The District Court unconstitutionally took the easement.

        The Goods argue the District Court unconstitutionally took their property
                                        because
 the court did not find an easement in their favor. They provide no authority for
                                         their
argument. An appellant carries the burden of establishing error by the trial court.
   Moreover, Rule 23, M.R.App.P., requires the appellant to cite authority which
                                       supports
the position being advanced on appeal. The Goods have failed to do so. We decline
                                           to
                        further address this issue on appeal.
          4. Did the District Court err when it awarded attorney fees and costs?
      The Goods argue that the District Courtþs award of attorney fees is beyond the
   scope of that allowed by law or equity. The Smalls respond that they were the
                                      prevailing
party, the District Court did not abuse its discretion, and the Goods did not frame
                                          the
               award of attorney fees and costs as an issue for appeal.
       The record reveals that the Goods raised the issue of attorney fees in their
                                         motion
for a new trial. Because the issue was raised in a motion presented to and ruled on
                                           by

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the District Court, we conclude that it is properly before us on appeal. See Hughes
                                           v.
              Blankenship (1994), 266 Mont. 150, 156, 879 P.2d 685, 688.
                                     A. Attorney fees.
      In its findings, conclusions, and order, the District Court relied on Martin v.
  Randono (1981), 191 Mont. 266, 623 P.2d 959, and Foy v. Anderson (1978), 176 Mont.
 507, 580 P.2d 114, which permit a court, through its equity power, to award attorney
    fees to make a totally innocent party whole. After receiving an affidavit of
                                     attorney fees
and costs, the District Court ordered the Goods to pay the Smalls $8,536 in attorney
                                          fees
                                  and $759 in costs.
       In Randono, plaintiffs, as the party in possession of real property, sued to
                                         quiet
  title. The defendants prevailed on their counterclaim and requested attorney fees
                                        pursuant
 to   27-1-318, MCA. We affirmed the district courtþs refusal to award attorney fees
                                        stating:
              We turn now to defendantsþ claim for attorney fees. The general
       rule is that in absence of statute or contract, attorney fees will not be
        awarded. Bitney v. School Dist. No. 44 (1975), 167 Mont. 129, 535 P.2d
              1273; Nikles v. Barnes (1969), 153 Mont. 113, 454 P.2d 608.

               Defendants contend that attorney fees should be construed as ". .
     . costs, if any, of recovering the possession [of real property]," pursuant to
         section 27-1-318, MCA, or in the alternative such fees should be awarded
       pursuant to the equitable principle espoused in Foy v. Anderson (1978), 176
         Mont. 507, 580 P.2d 114. We decline to follow either contention in this
                                           case.

                The rule is well established in Montana. The statutory term "costs"
            does not include attorney fees. Higgins v. Montana Hotel Corp. (1979),
                                 [181 Mont. 149] 592 P.2d 930.

                                                                                  . . . .

                   As in Russell Rlty. Co., supra, this Court finds no abuse of
          discretion by the lower court in not awarding attorney fees to the defen-
                                           dants.

                              Randono, 623 P.2d at 962.
        This Court affirmed the trial courtþs decision not to award attorney fees,
   emphasizing that attorney fees may be awarded only in "some isolated cases."
                                      Randono,
623 P.2d at 962. Furthermore, the Court explained that the statutory term "costs"
                                          in
    27-1-318, MCA, does not include attorney fees. Randono, 623 P.2d at 962. We
conclude that the District Courtþs reliance on Randono to make an equitable award of
                             attorney fees is misguided.
     In Foy, Eggan and Foy were passengers in a car driven by Gilreath and struck by
 Anderson. Eggan sustained minor injuries, but never presented or contemplated a
                                        claim

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     for damages against Anderson. Farmers Insurance Exchange, Andersonþs insurer,
    refused coverage and would not defend the actions which Foy and Gilreath brought
 against Anderson. Anderson filed a declaratory action against Farmers, its agent,
                                               the
   State Department of Highways, and Eggan as third parties, alleging wrongfully and
      without legal basis that the State and Eggan had asserted claims against him.
         We held that, because Eggan asserted no claim against Anderson and was forced
to hire an attorney to argue her motion to dismiss through no fault of her own, she
                                             would
not be made whole without an award of attorney fees. Foy, 580 P.2d at 117. Foy is a
 narrow exception and applies only where the action into which the prevailing party
                                               has
     been forced is utterly without merit or frivolous. Goodover v. Lindeyþs Inc.
                                         (1992), 255
   Mont. 430, 447, 843 P.2d 765, 776, citing State ex rel. Wilson v. Dept. of Natural
                  Resources (1982), 199 Mont. 189, 202, 648 P.2d 766, 772.
         "This Court has consistently adhered to the principle that in the absence of
                                              some
special agreement between the parties or statutory authorization attorney's fees are
                                               not
  recoverable by the successful litigant." Nickles v. Barnes (1969), 153 Mont. 113,
                                              119-
   20, 454 P.2d 608, 611-12, citing Kintner v. Harr (1965), 146 Mont. 461, 408 P.2d
                                              487.
 The Smalls present neither a statutory nor a contractual basis for an award of their
    attorney fees. Therefore, we proceed to determine whether an exception applies.
        This Court has infrequently invoked the equitable exception to the general rule
  which prohibits an award of attorney fees absent a contract or statute. See Foy,
                                           580 P.2d
    114; Holmstrom Land Co. v. Hunter (1979), 182 Mont. 43, 48-49, 595 P.2d 360, 363;
 Stickney v. State, County of Missoula (1981), 195 Mont. 415, 418, 636 P.2d 860, 862.
  These cases share unique fact situations where a party was forced into a frivolous
                                           lawsuit
                    and had to incur attorney fees to dismiss the claim.
         The Smallsþ position as plaintiffs is entirely different from the third-party
   defendantþs position in Foy. The Smalls retained an attorney to commence a quiet
                                             title
   action against the Goods. The Smalls were not forced to hire an attorney to help
                                              them
   defend against wholly meritless litigation initiated by another party as in Foy.
                                          The Smalls
 freely chose to hire an attorney to begin a legal action against the Goods. Foy is
                                            clearly
      distinguishable on these facts and is not controlling here. We hold that the
                                       District Court
                       erred in awarding attorney fees to the Smalls.
          We note that in cases of egregious violation or abuse of rules or procedure,
                                           district
courts possess the authority to consider appropriate sanctions. Rule 11, M.R.Civ.P.,
                                 provides in relevant part:
      If a pleading, motion, or other paper is signed in violation of this rule, the
        court, upon motion or upon its own initiative, shall impose upon the person

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          who signed it, a represented party, or both, an appropriate sanction, which
          may include an order to pay to the other party or parties the amount of the
          reasonable expenses incurred because of the filing of the pleading, motion,
         or other paper, including a reasonable attorneyþs fee. [Emphasis supplied.]

Rule 54(d), M.R.Civ.P., provides courts the authority to impose                                                                  costs. It states:
     Except when express provision therefor is made either in a                                                                 statute of the
  state of Montana or in these rules, costs shall be allowed as                                                                  of course to the
           prevailing party unless the court otherwise directs;                                                                  . . . .

     In citing these rules, we express no opinion as to their applicability to the
                                        facts of
this case. Rather, we note them as authority for a district court to impose costs
                                           and
             sanctions which may arise under the unique facts of a case.
                                         B. Costs.
        The District Court ordered the Goods to pay $759 in costs associated with
witnesses, copies, photographs, and filing fees. Section 25-10-201, MCA, provides
                 which costs a party may include in his bill of costs:
           (1) the legal fees of witnesses, including mileage, or referees and
                                    other officers;
                           (2) the expenses of taking depositions;
             (3) the legal fees for publications when publication is directed;
          (4) the legal fees paid for filing and recording papers and certified
           copies thereof necessarily used in the action or on the trial;
             (5) the legal fees paid stenographers for per diem or for copies;
             (6) the reasonable expenses of printing papers for a hearing when
                              required by a rule of court;
            (7) the reasonable expenses of making a transcript for the supreme
                                         court;
              (8) the reasonable expenses for making a map or maps if required
                   and necessary to be used on trial or hearing; and
              (9) such other reasonable and necessary expenses as are taxable
    according to the course and practice of the court or by express provision of
                                          law.

     The costs ordered by the District Court are allowable pursuant to    25-10-201,
MCA. We hold that the District Court did not err when it awarded the Smalls $759 in
  costs.    Affirmed on Issues 1 through 3 and the award of costs; reversed on the
                              award of attorney fees.

                                                                                                   /S/        J. A.         TURNAGE

                                                                         We concur:

                                                              /S/ KARLA M. GRAY
                                                           /S/ W. WILLIAM LEAPHART
                                                             /S/ JAMES C. NELSON
                                                               /S/ JIM REGNIER




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