                            No.   92-417
          IN THE SUPREME COURT OF THE STATE OF MONTMA



STEPHEN P. WEBER,
     Plaintiff, Appellant and Cross-Respondent,
          -v-
STATE OF MONTANA,
     Defendant, Respondent and Cross-Appellant.




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis and Clark,
                The Honorable Jeffrey Sherlock, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                Eric B. Thueson, Thueson Law Office, Helena, Montana
          For Respondent:
                Maxon R. Davis, Cure, Borer & Davis, Great Falls,
                Montana; William Gianoulias, Risk Management and
                Tort Defense Division, Department of Administration,
                Helena, Montana


                            Submitted on Briefs:      January 21, 1993
                                           Decided:   A p r i l 19, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from an Order issued by the First Judicial
District Court, Lewis and Clark County amending a previous judgment
issued by the court following a jury trial.   We affirm.
     We consider the following issues on appeal:
1.   Did the District Court err as a matter of law in assessing
interest on the judgment award pursuant to 5 2-9-317, MCA?
2.   Did the District Court err in assessing half the cost of the
trial transcript on appeal to the State?
     This is the second appeal in this case.        In the original
action, Stephen P. Weber (Weber) brought a wrongful discharge
action against the State of Montana. On September 27, 1990, a jury
found for Mr. Weber and awarded him $33,230 in damages.         The
original judgment in this case was entered on November 9, 1990 and
did not provide for costs or for post-judgment interest.         On
November 13, 1990, Weber filed a motion pursuant to Rule 59 (g),
M.R.Civ.P., to have the court include ucosts.~~
     On November 27, 1990, the District Court issued an Order
granting Weberrsmotion to amend the judgment.      In that Order the
District Court awarded costs of over $3,000 plus the judgment award
and "interest thereon at 10% per annum until paid."   On December 4,
1990, the State filed a Rule 59, M.R.Civ.P., Motion to Amend the
Amended Judgment which had been entered on November 27, 1990.    In
that motion the State requested that the District Court enter a
nunc pro tunc order striking the post-judgment interest from the
order because of the State's immunity to post-judgment interest
                                 2
pursuant to 5 2-9-317, MCA.
       Before the District Court had time to rule on the State's
motion, Weber filed the Notice of Appeal.    The State then filed a
cross-appeal. On January 2, 1991, the District Court granted the
State's motion, issued a nunc wro tunc order assessing costs but
eliminating interest on the judgment award pursuant to 5 2-9-317,
MCA.   Thereafter, both sides proceeded with the appeal of Weber I.
       In its opinion this Court concluded that sufficient evidence
existed to support the jury verdict, that the District Court
properly admitted certain evidence, that the District Court
properly instructed the jury, that the District Court properly
denied plaintiff's motion for a new trial, and that Weber was not
entitled to attorney fees and costs. See Weber v. State (1992), 49
St.Rep. 397.    (Weber I).
       On May 19, 1992, this Court issued Remittitur to the District
Court.    On May 20, 1992, Weber filed a Motion to Tax Costs of
Appeal, claiming successful party status in the Weber I appeal.
The District Court granted that motion in part on June 11, 1992,
and ordered the State to pay one-half of the $6,000 cost of
transcribing the transcript on appeal.
       On July 10, 1992, the State paid to Weber the judgment amount
plus costs as prescribed by the nunc wro tunc amended judgment.
That payment of the judgment was made within the two year period
described in 5 2-9-317, MCA, so that interest was not appropriate.
The total included the jury award of damages of $33,230.00 and
$3,827.53 for costs for a total of $37,057.53.    On July 14, 1992,
the State filed a Notice of Appeal from the Order granting motion
to tax costs. On July 23, 1992, Weber moved the District Court for
an order compelling the State to pay interest on the judgment.
Within his motion, Weber argued that the District Court was without
jurisdiction to issue the nunc uro tunc order after both parties
had filed a notice of appeal and that it was without effect. Thus,
Weber argued that the State should be compelled to pay interest.
     On July 28, 1992, Weber filed a Partial Satisfaction of
Judgment admitting that he had been paid the $37,057.53 by the
State but refused to file a total satisfaction because the State
had not paid interest on that amount.     Interest on the judgment
would amount to approximately $6,000.
     On August 28, 1992, the District Court denied Webermsmotion
regarding post-judgment interest. The court stated that it lacked
jurisdiction because Weber had already appealed to this Court from
Itall orders" of the District Court.    Weber subsequently filed a
Motion to Consolidate the various appeals, which was granted by
this Court without opposition from the State.
     The plaintiff is no relation to the author of this opinion.


Did the District Court err as a matter of law in assessing interest
on the judgment award pursuant to 5 2-9-317, MCA?
     Weber argues that 5 2-9-317, MCA, on which the District Court
based its nunc pro tunc order is unconstitutional under our State
Constitution, Art. 11, S18. According to Weber, 5 2-9-317, MCA, is
an immunity provision which must pass each house by a 2/3 vote,
which it did not do.   Weber claims that the amended judgment was
                                 4
correct before the court changed it in its nunc Dro tunc order
because interest attaches to a judgment, regardless of what is
expressly said in the judgment.      Weber contends that since the
amended judgment containing interest has been affirmed by this
Court, it is that judgment which governs all other proceedings in
this case.
     The State argues that Weber did not object in a timely manner
to the StatersMotion to Amend the Judgment nunc pro tunc to delete
an award of post-judgment interest which conflicted with the
applicable statute. Thus, according to the State, Weber cannot now
object to the State's motion.      Further, the State contends that
Weber cannot challenge the constitutionality of     §   2-9-317, MCA,
because that statute has been in effect for 15 years and he only
has two years from passage of a legislative bill to challenge it on
technical irregularities in the way it was passed. The State also
argues that   §   2-9-317, MCA, is not a sovereign immunity statute,
and interest can be suspended by the legislature because it is not
an integral part of the action.
     Weber appealed "all orders of the District Courtr1. One of
those orders was the nunc Dro tunc order in which the District
Court did not assess interest against the State pursuant to 5 2-9-
317, MCA.     We review a District Courtrs legal analysis as to
whether it is correct. Steer, Inc. v. Dept. of Revenue (1990), 245
Mont. 470, 803 P.2d 601.     On appeal, Weber argues that 5 2-9-317,
MCA, is not controlling for various reasons. We disagree.
     Section 2-9-317, MCA, is not a sovereign immunity statute. As
we stated in Jacques v. Montana Nattl Guard (1982), 199 Mont. 493,
649 P.2d 1319, interest is a separate issue from the cause of
action.   Jaccrues, 199 Mont. at 508, 649 P.2d at 1327.    And it is
only the cause of action which is involved with sovereign immunity:
     State subject t o s u i t . The state, counties, cities,
     towns, and all other local governmental entities shall
     have no immunity from suit for iniurv to a Derson or
     pro~ertv,except as may be specifically provided by law
     by a 2/3 vote of each house of the legislature.
     (Emphasis added.)
Montana Constitution, Art. 11, 5 18 (1972).     Thus, whether this
statute passed either house with a 2/3 majority vote is irrelevant.
     Further, interest does not accrue automatically as Weber
argues:
     The judgment is itself a creation of law. It bears no
     interest unless granted by legislative enactment     ...
                                                           A
     party is not entitled to interest merely because he has
     a judgment, but solely because the legislature, in its
     discretion has said he may charge interest.
Jaccrues, 199 Mont. at 507, 649 P.2d at 1327.   In Jacques, we held
that interest, not being a detriment arising from the wrongful act
itself, can be suspended by statute.     In the case before us, the
statute which suspends interest assessed to the State was passed by
the legislature. The 2/3 vote was not required because it was not
a sovereign immunity statute. A majority vote was sufficient. We
conclude that 5 2-9-317, MCA, is constitutional as a limitation on
interest assessed against the State and does not violate either the
spirit or substance of Art.      11, 5   18 of the Montana State
Constitution.
     In addressing Webertsargument concerning his first appeal in
Weber I, we note that we there addressed certain issues which
touched upon trial procedure, sufficiency of evidence to sustain a
verdict, and Weber1s claim for attorney's fees. We did not affirm
any amended judgment entry which is now the central concern in this
appeal.
     We hold that the District Court did not err as a matter of law
in assessing interest to the State pursuant to   §   2-9-317,   MCA.


Did the District Court err in assessing half the cost of the trial
transcript on appeal to the State?
     Appellant Weber paid the $6,072.00 cost of the transcript.
According to Weber, both parties used the transcript for their
appeals and both parties should, therefore, share the cost of the
transcript.
     The State argues that       25-10-104,   MCA, upon which the
District Court based its ruling that the State should pay for half
of the cost of the transcript is only discretionary in two
situations: 1) when a new trial is ordered, and 2) when a judgment
is modified. According to the State, in all other cases, only the
 successful party" is entitled to recover his costs from the other
party.
     The applicable statute is 5 25-10-104, MCA,

     When costs of appeal are discretionary.    (1) In the
     following cases, the costs of appeal are in the
     discretion of the court: (a)      when a new trial is
     ordered; (b) when a judgment is modified.
          (2) In all other cases the successful party shall
     recover from the other party his costs.
Here both parties appealed.          In addition both parties were
partially successful and partially unsuccessful. As pointed out in
                                 7
Nyquist v. Nyquist (1992), - P.2d    -,       49 St.Rep. 927, 929, there
are cases where both parties gain a victory but neither is the
actual prevailing or successful party.        That is the situation in
the present case.      Neither party can claim to be the totally
successful party on appeal because both parties lost a portion of
their appeal.   In considering the transcript cost, the District
Court stated:   "For whatever reason, the State chose to file an
appeal in this case.    It benefitted, then, at Plaintiff's expense
in using the transcript." We conclude that the District Court was
correct in dividing the cost of the transcript.
    We hold that the District Court did not err in assessing half
the cost of the transcript to the State.
    Affirmed.




We Concur:      d




                                .   .~ .. .



          Justices
                                         April 19, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Eric B. Thueson
THUESON LAW OFFICE
P.O. Box 535
Helena, MT 59624


MAXON R. DAVIS
CURE, BORER & DAVIS, P.C.
P.O. Box 2103
Great Falls, MT 59403-2103

WILLIAM GIANOULIAS
Risk Management and Tort Defense Division
Dept. of Administration
Capital Station
Helena, MT 59620       (4~ick~O   L L p ~      T 3
                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     S T A T OF,MONTANA

                                                     BY:
                                                       Depu
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                            NO. 92-417

                                                     . i
                                                      "    * a'  ;p            P"-         'A%.




STEPHEN P. WEBER,                     )
          plaintiff, Appellant and    )
          Cross-Respondent,
v.
                                      i
                                      )     O R D E R
                                                         @AY 2 5 1993
                                      \

STATE OF MONTANA,
          Defendant, Respondent and
                                      I
                                      )
                                                ..
                                                 -   -   ,,,).        _. .'.   . I .   .....
          Cross-Appellant.            )



     The opinion in this cause was filed with the Clerk of this
Court on May 5, 1993, and is herein referred to as Opinion.                                    We
have concluded that the statements of one of the issues and our
holding are confusing in terminology.      We therefore make the
following changes in the Opinion.
     IT IS ORDERED:
     1.    That the following statement of Issue I at Page 1 of the
Opinion is withdrawn:
     1. Did the District Court err as a matter of law in
     assessing interest on the judgment award pursuant to 5 2-
     9-317, MCA?
     2.   That the following statement of Issue I shall be added to
the Opinion in place of the issue withdrawn under the foregoing
paragraph 1:
     1. Did the District Court err as a matter of law in
     eliminating interest on the judgment award pursuant to 3
     2-9-317, MCA?
     3.   That the following statement of Issue I at Page 4 of the
opinion i$?TSthdrawn:
     Did the District Court err as a matter of law in
     assessing interest on the judgment award pursuant to 5 2-
     9-317, MCA?
     4. That the following statement of Issue I shall be added to
the Opinion in place of the issue withdrawn under the foregoing
paragraph 3:
     Did the District Court err 'as, a matter of law in
     eliminating interest on the judgment award pursuant to 5
     2-9-317, MCA?
     5.    That the following statement of our holding on Issue I at
page 7 of the Opinion is withdrawn:
          We hold that the District Court did not err as a
     matter of law in assessing interest to the State pursuant
     to 5 2-9-317, MCA.
     6.    That in place of the holding described in the foregoing
paragraph 5, the following sentence shall be added at page 7 of the
Opinion:
          We hold that the District Court did not err as a
     matter of law in eliminating interest to the State
     pursuant to 1 2-9-317, MCA.
     7.     That the Clerk shall provide copies of this order to
counsel for the parties, the District Court of the First Judicial
District, Honorable Jeffrey Sherlock presiding, the State Reporter,
and West Publishing Com any.
     DATED this   &&f&         May, 1993.



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