Gregory v. Spannagel

No. 03-483
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 345N
RON GREGORY, JR., and
RON GREGORY, SR.,
Petitioners and Appellant,
v.
ELI SPANNAGEL, JR., and
JEAN K. SPANNAGEL, his wife,
Respondents and Respondents.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud, Cause No. DV 97-174
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ron Gregory Sr., Pro Se, Forsyth, Montana
For Respondents:
Geoffrey R. Keller; Matovich & Keller, Billings, Montana
Submitted on Briefs: November 6, 2003
Decided: December 16, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 On December 12, 2002, we remanded this case to the Sixteenth Judicial District
Court, Rosebud County, for that court's determination of the amount of reasonable attorney
fees to be awarded to Eli Spannagel, Jr., and Jean K. Spannagel for the appeal. Gregory v.
Spannagel, 2002 MT 297N, 313 Mont. 422, 63 P.3d 514 (Gregory I). On remand, the
Spannagels submitted a memorandum of expenses to the District Court and requested a
hearing. Following the hearing, the District Court awarded the Spannagels $10,315.41 for
attorney fees and costs on appeal and post-appeal attorney fees of $2,535.00, for a total
judgment of $12,850.41. Ron Gregory, Sr., appeals. We affirm in part and remand.
¶3 Gregory sets forth six issues on appeal, in which he attempts to rehash issues from
the first appeal and questions the evidentiary basis for--and timeliness of--the Spannagels'
request for the award of attorney fees and costs. The only issue which is properly before us
after remand and on which Gregory has presented legal argument as required by Rule
23(a)(4), M.R.App.P., is whether the request for attorney fees and costs was timely.
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¶4 The award of attorney fees was a Rule 11, M.R.Civ.P., sanction against Gregory. The
30-day time limit for claims for routine awards of costs to a prevailing party under Rule 33,
M.R.App.P., and § 25-10-503, MCA, does not apply to Rule 11 sanctions.
¶5 Moreover, Gregory's argument that attorney fees are an element of costs is incorrect.
The two cases he cites in support of that argument--Moore v. Imperial Hotels Corp., 1998
MT 248, 291 Mont. 164, 967 P.2d 382, and Haider v. Frances Mahon Deaconess Hosp.,
2000 MT 32, 298 Mont. 203, 994 P.2d 1121--both involved awards of costs under § 39-2-
915, MCA. Absent statutory authority authorizing the award of attorney fees in a particular
type of action, attorney fees are not an element of costs in civil actions. See In re Estate of
Lande,1999 MT 179, ¶ 15, 295 Mont. 277, ¶ 15, 983 P.2d 316, ¶ 15.
¶6 Gregory is correct on one point, however. Nowhere in Gregory I did we award the
Spannagels their costs on appeal as a sanction against Gregory. Therefore, costs could only
have been awarded to the Spannagels as the prevailing party on the prior appeal, pursuant
to Rule 33, M.R.App.P. The § 25-10-503, MCA, time limits apply to a claim for such an
award of costs. The Spannagels' memorandum of costs was not filed within the time allowed
under § 25-10-503, MCA.
¶7 We conclude the portion of the judgment representing costs must be stricken. The
record establishes that $1,205.41 of the judgment was for costs.
¶8 Finally, the Spannagels request a Rule 32, M.R.App.P., award of sanctions on the
basis that this appeal was taken without substantial or reasonable grounds. Because
Gregory's appeal is partially successful, that request is denied.
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¶9 The award to the Spannagels of $11,645.00 for their reasonable attorney fees is
affirmed, the award of $1,205.41 for costs of the prior appeal is vacated and we remand for
entry of a new judgment. No costs on appeal to either party.
/S/ KARLA M. GRAY
We concur:
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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