                                      No. 12725

         I N THE SUPREME COURT O THE STATE O M N A A
                                F           F OTN

                                         1974



ROBERT E M R GLICK e t a l . ,
        L E

                               P l a i n t i f f s and Respondents,



THE STATE O MONTANA, ACTING BY AND
           F
T R U H THE M N A A DEPARTMENT O
 HOG          OTN               F
INSTITUTIONS,

                               Defendant and A p p e l l a n t .



Appeal from:       District Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
                   Honorable James D. Freebourn, Judge p r e s i d i n g

Counsel of Record:

     For A p p e l l a n t :

             C. W. L e a p h a r t , Jr. argued, Helena, Montana
             John A. Hauf, Helena, Montana

     For Respondents:

            C o r e t t e , Smith and Dean, B u t t e , Montana
            Kendrick Smith argued, B u t t e , Montana



                                                Submitted:         September 10, 1974

                                                  Decided : ~ ,*'   a,   1 2 1374

Filed:   Q,':r
           .     -C.
                       /c-:
                        .
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
         On June 25, 1969, twenty-six employees of the Montana
Children's Center filed a complaint seeking payment of overtime
wages for certain hours worked between February 1, 1967, and
January 31, 1969.   After hearings before four district judges,
two appeals to this Court, and a petition for writ of certiorari
to the United States Supreme Court, we have the matter before
us for the third time.
         On August 10, 1970, Judge Davis granted plaintiffs1 motion
for a limited summary judgment, holding plaintiffs were protected
by the provisions of the Fair Labor Standards Act of 1938.      That
judgment was appealed and affirmed in Glick v. State of Montana,
157 Mont. 204, 485 P.2d 42 (1971). The case then returned to
district court for a determination of damages.
         That issue was tried before Judge Blair, who, on March
6, 1972, granted judgment in the amount of $489,289.36.      That
judgment was also appealed, this time raising four issues.       In
Glick v. Mont. Deplt of Institutions, 162 Mont. 82, 509 P.2d 1, 2,
30 St.Rep. 424, cert. den. 414 U.S. 856,   -S.Ct.        ,   38 L Ed 2d
106 (1973), we affirmed the district court's holding on the compu-
tation of "regular rate of pay", but reversed on the issues of
number of hours worked by each plaintiff, liquidated damages, and
attorney fees.    The case was remanded for a recomputation of hours
worked and a redetermination of attorney fees.
        Hearings were held before Judge Freebourn on December 17,
1973, and January 28, 1974; judgment was entered on the latter
date.   Plaintiffs were awarded $169,783.74 for unpaid overtime
and $75,000 for attorney fees.   That judgment is appealed here.
         The issues now raised are similar to two raised here in
1973:
         "1.   Did the court err in its findings as to
             t h e number of h o u r s worked by e a c h p l a i n t i f f
             * *    *?




             "4. Did t h e c o u r t err i n awarding a t t o r n e y
             f e e s i n t h e amount of * * * [ $ 7 5 , 0 0 0 ] ? "
             [amount s u b s t i t u t e d ]

             I n t h e 1973 d e c i s i o n w e found t h e d i s t r i c t c o u r t ' s

f i n d i n g s w e r e o b v i o u s l y e r r o n e o u s i n t h e computation of h o u r s
worked p e r week when compared t o t h e t e s t i m o n y of a t l e a s t

five plaintiffs.             On remand, t h e d i s t r i c t c o u r t was o r d e r e d t o

recompute t h e h o u r s worked.

             One of t h e e x h i b i t s r e l i e d on t h r o u g h o u t t h e s e proceed-

i n g s was a summary of d a y s worked and monthly r a t e s of pay, com-
p i l e d by a s t a t e employee from t h e r e c o r d s of t h e Montana C h i l d -

r e n ' s Center.        N r e c o r d s had been m a i n t a i n e d on t h e number of
                          o

h o u r s worked p e r week, s o t h e summary made no mention of t h o s e

figures.

             A t t h e J a n u a r y 2 8 , 1974, h e a r i n g , d e f e n d a n t a t t e m p t e d t o

i n t r o d u c e t h e r e c o r d s of t h e Montana C h i l d r e n ' s C e n t e r a s e v i -

d e n c e showing e r r o r s i n t h e summary p r e v i o u s l y r e l i e d upon.

Judge F r e e b o u r n r e f u s e d t o a d m i t t h e s e r e c o r d s , h o l d i n g t h a t

t h i s C o u r t had n o t g i v e n him a u t h o r i t y t o reopen t h a t m a t t e r - - a
m a t t e r which had been p r e v i o u s l y d e c i d e d by Judge B l a i r i n 1972.

             Judge F r e e b o u r n ' s e x c l u s i o n of t h i s e v i d e n c e was c l e a r l y

i n a c c o r d w i t h t h e t e r m s of t h e d e c i s i o n which remanded t h e c a s e

t o him.      W e remanded f o r " a c t i o n n o t i n c o n s i s t e n t w i t h [ t h a t ]

opinion".         The o p i n i o n c l e a r l y s t a t e d t h a t t h e c a s e had t o be
r e t u r n e d t o d i s t r i c t c o u r t f o r recomputation of average hours
worked by e a c h p l a i n t i f f .
             "Recomputation" d o e s n o t i n c l u d e t h e r e c e p t i o n of new
e v i d e n c e , merely a r e c a l c u l a t i o n based on e v i d e n c e a l r e a d y i n

t h e record.        There was ample e v i d e n c e t o s u p p o r t Judge F r e e b o u r n ' s

f i n d i n g s of h o u r s worked.        These f i n d i n g s were based i n p a r t on
the figures of days worked included in the summary.
        Defendant's suggestion that the summary is inaccurate
comes too late.    The introduction of the summary was not objected
to, although defendant has had the institution's records in its
possession since the inception of this lawsuit.    In fact, in 1972
defendant proposed in its proposed finding of fact No. 10, that
Judge Blair find the summary to be:
        " * * * a true and correct statement of the
        days worked and monthly rate of pay for the
        plaintiffs and each of them * * *."
Judge Blair's findings were in accord with this proposal.    Defend-
ant did not challenge that finding in its 1973 appeal, although
it was an integral part of determining the number of hours worked.
        The first challenge to the summary's accuracy was raised
only after it had been used and relied upon by all parties for
more than two years--including a trial, an appeal to this Court,
and a petition for writ of certiorari to the United States Sup-
reme Court.   To allow defendant to successfully raise it now
would violate the terms of the remand, and would be violative of
the policies reflected in the legal concepts of res judicata,
law of the case, and perhaps even stare decisis.    We affirm Judge
Blair's finding on the ground which he accurately set forth, that
our remand did not give him jurisdiction to reopen this portion
of the record for receipt of new evidence.
        Defendant's other allegation of error concerns the award
of $75,000 for attorney fees.    Defendant contends $56,000 would
be a more reasonable figure.    While we agree that the award must
be reasonable, under the provisions of the Fair Labor Standards
Act, 29 U.S.C.    S216(b), we cannot find evidence in the record
that the award made by Judge Blair was unreasonable, or an abuse
of his discretion.
        As we said in Luebben v. Metlen, 110 Mont. 350, 355,
          "We a r e n o t d i s p o s e d t o i n t e r f e r e w i t h a t t o r n e y ' s
          f e e s f i x e d by t h e t r i a l c o u r t u n l e s s t h e r e a p p e a r s
          t o have been a c l e a r a b u s e of d i s c r e t i o n . "
          The judgment i s a f f i r m e d .




                                                            Justice



W concur:
 e

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  Chief J u s t i c e
