                        No. 82-84
       IN THE SUPREME COURT OF THE STATE OF MONTANA




JACK A. MARTA, ROBERT D. MARTA,
and DAVID A. MARTA,
                        Plaintiffs and Appellants,


DOUGLAS L. SMITH and EFFIE L. SMITH,
                        Defendants and Respondents.


Appeal from:   District Court of the         +& Judicial District,
               In and for the County of Ga-Gke45-nJl/u4&d-~j
               Honorable Nat Allen, Judae presiding.
Counsel of Record:
     For Appellants:
        Morrow, Sedivy, Olson & Eck, Bozeman, Montana
        James H. Morrow, Bozeman, Montana
     For Respondents:
         Jardine, McCarthy & Grauman, Whitehall, Montana
         David Grauman, Whitehall, Montana


                           Submitted on briefs: August 26, 1982
                                       Decided: September 23, 1982
, 4 . Justice John C. Sheehy delivered the Opinion of the Court.
 :r

       Plaintiffs appeal from a judgment awarding defendants
damages of $5,500   and attorney fees of $2,000 entered in the
District Court of the Fifth Judicial District, "/ladison
county.
       This case was reviewed by this Court in Yarta v. Smith

                  ,
(19811, -- Mont. - 633 P.2d 1011, 38 St.Rep. 28. We
remanded the case to the District Court on January 12, 1381,
because no evidence was presented concerning attorney fees
granted to defendants in the original proceedings.     In our
order denying hearing, we emphasized that the attorney fees
were to be limited to "services rendered in dissolving the
injunction."
       On May 22, 1981, a hearing was held to determine the
attorney fees to be awarded to defendants.    John Jardine,

one of defendants' counsel of record, testified that the
injunction and efforts to resolve it involved 60 to 70
percent of the time he spent on the case.    He estimated his

fees to be $11,000, which included the appeal.    Frank Davis,
a nillon lawyer, testified he superficially reviewed Jardine's
file and agreed $11,000 was a reasonable fee.    On ?lay 29,

1981, a summary order was issued setting defendants' attorney
fees at $2,900.
       On May 27, 1981, defendants filed a supplemental memorandum
of costs to which plaintiffs objected on June 3, 1981,
011   the ground that improper costs were included.   On June

10, 1981, plaintiffs also moved to amend the May 29 order
setting attorney fees.    A briefing schedule was set for

these issues, with final briefs due on July 17, 1981.
       Without waiting for the final briefs, the ~istrict

Court issued amended findings of fact and conclusions of law
on June 29, 1981.     These amended findings and conclusions
again set attorney fees at $2,000.    In addition, the District
Court amended a prior conclusion of law that was part of the
original judgment, wherein plaintiffs were ordered to
repair defendants' irrigation ditch or, - - alternative,
                                        in the
pay damages to the defendants in the amount of $5,590.      In
the amended findings, the District Court ordered plaintiffs
to pay $5,500 to defendants for damages caused to defendants'
irrigation ditch.    Plaintiffs objected to the amended findings
and conclusions.    A hearing on plaintiffs' objections and on

the question of costs was held on July 24, 1951.
     On the question of repairs of the irrigation ditch, Rob
Marsh, lessee of plaintiffs' farm lands, testified he hauled
in rip-rapping, and used men and equipment to repair sections
of the ditch which had shown erosion in the past years.
Several other witnesses also testified that they approved of
the manner in which Marsh repaired the ditch.
     Defendant, Douglas Smith, testified that the ditch had
not been repaired according to the specifications set out by
John Simpson, a witness in the original trial.     It was
Smith's understanding that the original judgment demanded

such compliance. Simpson advocated a system of drops and
recom~endedthat dirt and rock be hauled in to repair the
sides of the ditch.     He estimated that such restoration would
cost about $5,500, exactly the amount of damages awarded to
defendants in the original judgment and amended judgment.
     On December 28, 1981, the District Court entered an
order overruling the plaintiffs' objections and denying the
motion for a hearing on damages.     The District Court then
made findings and conclusions in respect to plaintiffs'
objections on January 3, 1981.
       Plaintiffs present 6 issues on appeal:
       1.   Whether the lower court erred by awarding irrigation
ditch damages without a hearing;

       2.   Whether the lower court erred in finding plaintiffs
were not entitled to a hearing on damages;

       3.   Whether the lower court erred by awarding irrigation
ditch damages without findings of fact and conclusions of
law;
       4.   Whether there is substantial evidence to support

the award of irrigation ditch damages;
       5.   Whether the lower court erred in awarding attorney
fees without making findings of fact;
       6.   Whether there is substantial evidence to support
the award of attorney fees.
       Defendants present an additional issue on appeal:    Whether

attorney fees should be granted to defendants based on Rule
32, M.R.App.Civ.P.
       Plaintiffs contend that the District Court erred by

awarding irrigation ditch damages without holding an evidentiary
hearing and without making findings of fact and conclusions
of law.     We agree with plaintiffs' contentions.
       In the original judgment of October 31, 1979, plaintiffs
were given the alternative of repairing the ditch or paying
damages of $5,530.     This part of the original judgment
was affirmed on appeal.     On remand, the District Court amended
its conclusions of law to omit the alternative which originally
allowed plaintiffs to repair the ditch.      his was done
without the submission of any additional evidence by either
party.
       Amending the conclusions in this manner is clearly an
abuse of discretion on the part of the District Court. Rule
52(b), M.R.Civ.P.,   allows for amendment of the findings and
judgment "upon motion of a party."     Rule GO(b) allows the
District Court to relieve a party from a judgment or order
for reasons of mistake, inadvertence, excusable neglect, newly
discovered evidence, or fraud.    However, such relief can be
granted only after the parties are accorded a hearing.      Rule
60(c), M.R.Civ.P.    Only when there is a clerical mistake in
the judgment, under Rule 60(a), when the defendants are not
personally notified as required by law, under Rule 5 O ( h ) ,
>i.R.Civ.P., or when there has been a fraud upon the court
under Rule 60(b), M.R.Civ.P.,    can the District Court amend
or set aside the judgment on its own initiative.
     In the present case, none of the above exceptions
apply. Therefore, the District Court abused its discretion
when it did not hold a hearing to determine whether the
ditch had been repaired.    Instead, the District Court amended
its conclusion of law and judgment to omit plaintiffs'
alternate remedy of repairing the ditch.     Without additional
evidence on the record, the District Court could not have
known whether either of the alternatives set forth in the
original judgment were met. Accordingly, we vacate that

portion of the District Court's judgment which omits the
alternative of repairing the ditch.
     There still remains the question of how the original
judgment should be interpreted.    Our first opinion found
that substantial evidence existed to uphold the District
Court's finding that plaintiffs' were negligent in their use
of the irrigation ditch, and that defendants were entitled
to relief.   This is the law of the case on this issue, and
it is binding upon this Court on a9peal.     Cremer v. Cremer
Rodeo Land and Livestock Company (1981),        Yont . - 627
                                                        ,
P.2d 1199, 38 St.Rep. 574.
     The testimony of John Simpson in the original trial
indicated that repair of the ditch in the manner he advocated
would cost $5,500.    The District Court, in its original
findings of fact, found that defendants had been damaged in
the amount of $5,500, and it would cost $5,500 to repair the
irrigation ditch.
     From these findings, it can be implied that the District
Court found that the plaintiffs were required to repair the
irrigation ditch in the manner testified to by John Simgson.
In support of the trial court, this Court will imply findings
so long as those findings are not inconsistent with express
findings made.   Crissy v. State Highway Commission (1366),
147 Nont. 374, 381, 413 P.2d 308, 313.
     Plaintiff next contends the District Court erred in
awarding attorney fees without making findings of fact.      We

cannot agree with this contention.
     In awarding $2,000 for attorney fees the findings of
fact entered on June 29, 1981, provided that defendants'
testimony showed fees to be in excess of $2,000 and that
plaintiffs did not present any evidence on the matter.      The
~istrictCourt found $2,003 to be a reasonable fee based on

the testimony.
     Here, the District Court's finding of fact was sufficient
to comply with Rule 52(a), M.R.Civ.P.    As stated in that
rule, "Findings of fact shall not be set aside unless clearly
erroneous   . . ."   It cannot be said that the finding in this
case is clearly erroneous.    The court considered the evidence
presented and determined $2,000 to be a reasonable fee.      The
finding is based on substantial evidence and will not be
overruled by this Court.
     Finally, defendants contend that, based on 3ule 32,
M.R.App.Civ.P.,   attorney fees should be granted for this
appeal because plaintiffs' appeal is frivolous, without
justification, and merely an attempt to prolong litigation.
     Rule 32, l4.R.App.Civ.F.   provides:
     "If the supreme court is satisfied from the
     record and the presentation of the appeal
     that the same was taken without substantial
     or reasonable grounds, but apparently for
     purposes of delay only, such damages may
     be assessed on determination thereof as
     under the circumstances are deemed proper."
     Based upon this statute, we do not find that plaintiffs

have presented a frivolous appeal.    Plaintiffs were justified
in bringing this appeal to clarify the alternative judgment.
Therefore, attorney fees should not be awarded under Rule


     The judgment of the District Court awarding attorney
fees of $2,000 to defendants is affirmed.    Attorney fees to
defendants under Rule 32, 3t.R.App.Civ.P.   are denied.   The

judgment of January 15, 1982, is hereby amended with respect
to the awarding of damages for negligent use of the irrigation
ditch to read as follows:
     "The plaintiffs shall have until March 31, 1983,
     to repair the irrigation ditch in the manner
     testified to by John Simpson in the July 12,
     1979 hearing; or, in the alternative, shall pay
     to the defendants the sum of $5,500 plus interest
     accruing from date of the original judgment as
     damages to their lands."
We Concur:
