*1 DREYER, Applicants ELMO al., Respondents, et OF BOARD OF TRUSTEES MID-RIVERS TELEPHONE CO OPERATIVE, Appellants. INC., et al., No. 80-486. April
Submitted Briefs 1981. Decided 1981. June 226. P.2d Church, Harris, Williams, Falls, & Great for respond- Johnson ents and appellants. Firm,
Moses Law Billings, respondents. *2 MR. CHIEF delivered the HASWELL JUSTICE Court. is an
This from a defendant for judgment against $9,806.25 fees $30.12 and costs in an action wherein members of Mid-Rivers plaintiff Inc. were Telephone Cooperative, lite in a suit to the officers granted injunction pendente prevent and Board of Trustees of Mid-Rivers from con- Telephone Co-op a and on election amendments to ducting special meeting proposed by-laws Co-op. 14, 1979, On certain members of the Mid-Rivers May Telephone filed an the Board of Trustees of the against Co- Co-op application mandamus, and other relief to injunction, op seeking appropriate a the Board of Trustees from prevent holding special meeting and to them to hold the an- election on May compel nual The District issued a Court meeting Co-op. temporary order without notice the Board Trustees restraining preventing (11 from election and set a show cause on conducting hearing issue; (2) a a whether should whether writ injunction of mandate should of the 1978 annual issue compel holding (3) whether fees should be awarded meeting; (4) from at the trial of the cause the the funds the Co-op; why orders, and writ of temporary restraining preliminary injunction, mandate should not be made permanent. restraining the temporary of Trustees moved quash
The Board held, an in- order, issued and the District Court hearing 14, 1979, on a hearing lite on pending junction pendente August of the underlying litigation. the merits when occurred until April No further developments a hearing to the judge requesting wrote letter plaintiff’s attorneys quash request of Trustees moved fees. The Board 25, 1980, and on August was held for attorney fees and were entitled that held District 5, 1980, was entered September costs. On costs, $9,806.25 $30.12 of Trustees Board date of judgment. from at 10% with interest filed a on August The District Court memorandum opinion the court was as a writ of injunction indicating treating which the court considered the relief. The proper prohibition, that District Court held substance controls over the form relief in an and that fees are not allowed statute although attorney action, and obtained a court order plaintiffs sought the Board of from conducting Trustees preventing special election, the same relief would have been entitled meeting they to in an action for a writ of amount of prohibition. fees awarded was the reasonable time by multiplying computed (130.75 hours) consumed services times furnishing attorney’s ($75.00) $9,806.25. the reasonable fee hour for a total of There per no $30.12. issue the costs of *3 the District found that had not Additionally the trustees acted in faith and had interfered with good plaintiff’s voting rights. found that of The District Court the award fees was attorney under either the “substantial benefit” doctrine or the proper “private attorney general” principle. conclusion,
The case was never carried to its ultimate to a i. e. and award of final on the merits of the litigation judgment or a of writ mandate. including injunction According permanent of to the defendants this issue become moot by passage time.
The sole issue on is whether the Board of Trustees is liable fees from the funds of the No issue concerning for attorney Co-op. of the fee awarded was either the reasonableness raised in brief. not The Board of Trustees advances four are arguments why they (1) an award of fees is not liable for fees: attorney has not to final allowable where the action underlying proceeded merits, (2) not in an in- on the fees are allowable action, (3) action should not be treated as an junction of writ in to application an award of permit (4) record is barren of facts that would any any support recognized equitable doctrine fee shifting. advance a number of Respondents contentions as to why the (1) award fees was The Court has inherent proper: to equitable power compel trustees of the to follow Co-op procedures proper calling special meetings and holding elec- tions, (2)the of the action is not gist to meet- only stop improper and election but to ing the trustees to compel continue the meetings law; to according accordingly remedy mandamus is part of the relief parcel statute sought fees are award- mandamus, (3) able in the facts contained in the affidavit with the plaintiffs, that the trustees not coupled finding had acted faith and had good interfered with voting plaintiffs’ rights, that demonstrate won the case and were to plaintiffs entitled at- fees, (4) was a class action torney and the benefits secured by enured benefit of all plaintiffs members the Co-op entitling under “substantial benefit” concept (5) of fee shifting, that the decision of presumption District Court is correct absent a its that decision showing clearly erroneous which was not done here. draw an between this case and cases analogy in actions union members the union its
volving oficers the use of in union where at compel proper procedures affairs fees have been awarded. See Gilbert torney & Portable Hoisting 320; (1964), 237 Or. 390 P.2d Engineers Weber v. Marine & Cooks Stewards Assn. Coast 93 Cal.App.2d of Pacific 1009; 208 P.2d 208 P.2d Anno: A.L.R.3d Union Member’s Recover Fees in Prevailing Attorney’s Right Action Union or Union Against Officers. also cite v. Anderson Foy
Respondents
114,
that this Court has sometimes
580 P.2d
for
proposition
fees in the absence of statute or contract. Re-
attorney
awarded
further
out that
fees have been awarded
spondents
attorney
point
order,
secured
to the
who has
a restraining
citing
prevailing party
581,
(1962),
Ct.
140 Mont.
ex rel.
Teamsters v. Dist.
State
Butte
plicable remedial, was fees on and the court correct allowing this basis. all the in this
We need not discuss contentions at a of the issue on in order to arrive determination appeal. award of fees in this One contention is controlling. on the merits of the underlying controversy case premature was favor of No awarded. No permanent injunction respondents. aside, writ of mandate was issued. All other considerations are not entitled to a fees without respondents a in their favor. final determination underlying controversy a this case were awarded temporary interlocutory
In plaintiffs function and effect the show cause Its following hearing. of the merits of the status trial quo pending simply preserve Plaintiffs, as for a in complaint. plaintiffs’ case or show that were to establish a facie required prima junction, whether would suffer in irreparable it was at least doubtful they their could be Porter et al. K & fully litigated. before jury (1981), 836, S et al. 192 Mont. 627 P.2d Partnership effect that had District ruled in 648. The St.Rep. lite injunction pendente pre a and issued showing made such of Trustees from holding special meeting the Board venting lite issuance the injunction pendente an election. The conducting contested in this appeal. is not to a who secures prelimin award of party
An auth or contract in the absence statutory error ary injunction No. 1 et al. et al. v. School District orization. Masonovich 178 Mont. 582 P.2d 1175. Here there is St.Rep. award. contract for such authority nor statutory neither Ct. v. Dist. Teamsters Union rel. Butte cite State ex Applicants for the award authority 374 P.2d reasonable Teamsters Union fees here. In Butte *5 100
fees were allowed the union for the services of its
attorneys
dissolving temporary restraining
union which
against
had been issued by the District
and in
of
Court
excess
its
illegally
That situation
jurisdiction.
it
readily distinguishable
brings
within the
announced in
principles
v. Anderson
Foy
Mont.
An of award fees to the for a writ of applicant mandamus is where no of improper writ mandamus was issued. An of award fees in where no writ of prohibition improper awarded.
It is not or province either District Court to Supreme determine matters that finally may arise a trial on upon the merits. Atkinson v. Roosevelt County P. 74. In relief granting temporary injunction, courts should in no manner equity the ulti anticipate involved, Porter, mate determination of questions right from a case decided supra. following language this Court 30, 1981, on April involved in expresses principles this case. . . “. the limited function of a is to preliminary injunction the status and to preserve quo minimize the harm to all parties full If a trial. not pending will preliminary injunction accomplish then these it should not purposes, issue. conclusions Findings directed to the resolution of the ultimate issues are re- properly Porter, for trial served final on the merits.” supra. this
At point have not to trial litigation parties yet gone on the ultimate merits of the controversy. Defendants have not had their in court on trial day these issues. No has been held and no final judgment adjudicating ultimate rights parties aside, been made. other All considerations not have yet in the action so them prevailed entitle fees under any theory. there are considerations policy supporting
Additionally were able file cooperative corporation result. If the members real or imagined grievance; action the trustees some an against final determination pending a preliminary injunction secure of their ac- merits of their abandon further prosecution complaint; tion; and then their fees without a final collect would injustice in their favor on the merits of their complaint, would have been denied a result. The trustees ultimate their compelled pay opponents’ a determination of the merits of the com- without the most fundamental them. This violates plaint right *6 — on due be heard the merits process right appear their adversaries’ complaint.
It is no answer to that the trustees’ actions say in calling faith; special election were not meeting in or that the good trustees’ actions were or that the achieved their improper; in objective preventing special and election and meeting thus in their prevailed action. The ultimate resolution of these issues was not before the District Court for at show adjudication cause and it was error to those issues at that adjudicate hearing. is not moot of time. The issue of
The case
rendered
passage
whether the Board
Trustees
liable for the payment
appli-
merits;
cants’
fees remains for trial on the
equate
of success” that
with
justifies
“likelihood
preliminary
“success” in the underlying litigation ignores significant proced-
differences between
and permanent injunctions;
preliminary
ural
and in
of a
injunction,
gen-
the granting
parties
of a full
to present
have been denied the benefit
erally
opportunity
and a final decision based
the actual merits of
their cases
controversy. University
Texas et al. v. Camenisch
451
U.S.
101 S.Ct.
MR. concur. SHEA WEBER JUSTICES MR. SHEEHY dissenting: JUSTICE I did not with the Porter S agree v. K & holding Partnership Here, Mont. 38 648. P.2d St.Rep. forbidding holding meeting become corporate final, court, nature, and the order of the is the prohibitory only relief that was in the would sought cause. I view the Accordingly, matter having been determined the District and would allow the award of which seem otherwise fair.