*1 ED ZABROCKI, L. KUHR, L. CARL KRIS REGNIER, GILBERT DONALD NEWLIN, RON KUHR, WALT SOMMERVILLE, THATCHER, VINCE URIAH MARTIN, RICK PUCKETT, CHRISTENSEN, GARY MICHAEL LAMPHIER, MILO ELSENPETER, RENNICH, LARRY HIRSHI, ERBEN, WAYNE SNELLING, D. RONALD WALKKI, GEORGE PADDOCK, MARK SOHLHIEM, LESLIE DUNN, ROBERT B. BRANDT, M. JEFFREY J. MATTHEW BOCHY, GREG BLOOM, JEFF FRANCIS A. KEENER, HOPPEL, JOE E. CLAYTONL. SPEIDEL, EWALT, GENE A. WILSON, STEVE FUGERE, KELLY POST, HERMAN MERTZ, MANNING JAMES THORMAHLEN, BRET A. ROOKHAIZEN, DAY, JAMES V. HOKLIN, P. STEPHEN MARTIN, W. MICHAEL ROGERS, SANDY KEVIN BRADY, LEE RIESINGER, EDWARD J. O’TOOLE, TERRY MADISON, WADE BENTZ, HART, J. LAWRENCE PINNOW, LARRY LARSON, TERRY CORNELIUSEN, D. BRIAN MARKUSON, D. ALLAN HARPER, ALAN MARCUS MASHEK, FRANK, VERNON JASON J. PATRICK KINKHEAD, TOOD B. EVENSON, TIMOTHY ERDMANN, W. MITCHELL NISSEN, THEORDIS MEYER, ROBERT D. McLEOD, A. S. LYNCH, GREGORY JAMES WARREN, R. JOHN MITCHELL, DERRECK DILLON, FISHER, and M. DILLON, WAYNE HARVEY, T. WILLIAM Cross-Appellants, Respondents, and Plaintiffs, BILLINGS, OF CITY Appellant. Defendant No. DA 06-0373. August 9, Submitted on Briefs 2007. August Decided 2007.
JUSTICE LEAPHART delivered the Opinion of the Court. This appeal arises from a claim filed the plaintiffs, all firefighters (Firefighters) formerly currently employed City of Billings (City). City The appeals from the Thirteenth Judicial District Court’s granting order the Firefighters’ motion partial summary judgment and from the judgment court’s awarding damages for unpaid wages time, and leave and awarding a penalty, attorney fees, and costs. cross-appeal the amount damages for unpaid wages time, and leave and the amount penalty, fees, attorney and costs. We affirm part, reverse part, and remand.
¶2 We restate the issues on appeal as follows:
1. Did the District Court err in granting the Firefighters’ motion for partial summary judgment concluding was liable for unpaid wages and leave time?
2. Did the District Court err in assessing City’s for the failure to pay wages?
3. Did the District Court awarding err in costs to Firefighters? 4. Did the District Court abuse its in awarding attorney discretion fees to the Firefighters?
BACKGROUND and the Local 521 International Association of Fire Fighters, on behalf Firefighters, entered into a collective bargaining agreement regard relations, with employer-employee *4 wages, hours and other conditions of employment, and to means of resolving grievances. agreement The every was renewed two years. or three (the agreement prior July The in effect pre-1995 to 1995 following pay formula:
agreement) provided year. To determine 2,080 per hours is based on Hourly rate a. 2,080 by hours. divided salary will be figure, annual base (26) times the Salary: Twenty-six Monthly Regular for b. Formula (base holiday pay) longevity plus pay plus regular pay, last full (26 (12) salary. x monthly equals regular by twelve divided = rms) frp./12 every Friday. other Regular paydays will
c. forth a agreement set pre-1995 to the salary attached The schedule example, For base firefighter’s position. on a salary dependent base $2,069.79, for 1994-1995 was position Firefighter for a salary listed monthly salary. regular firefighter’s calculate a then used to which was (the 1,1995 July post-1995 into effect on that went agreement The following formula: pay agreement) provided hourly x base rate 2080 hours salary equal to a. Annual base Hourly rate is base Salary attached Schedule. listed on the pay pay. special certification pay plus base Friday. every other payday will be Regular b. set forth a post-1995 schedule attached salary 1995-1996, received Firefighter hourly salary. In this
base hour, pay certification special per plus pay of $12.5624 the base eligible. hour if per $0.1731 pre-1995 forth in both schedule set Firefighters’ work as follows: was agreements
post-1995 consisting of cycle 27-day total work shall be a The work schedule (24) (7) twenty-four hours on shifts consecutive work seven (48) immediately followed duty, off hours duty forty-eight (6) days off. consecutive six approximately schedule, Firefighters worked this work
Based on every other paid were Firefighters 2,272 year. When per hours forty hours they paid were reflected that stub Friday, pay hours forty than more or less they worked week, of whether regardless indicate the would kept, which schedules were Although per week. actual number Firefighters, hours worked number of This resulted department. the payroll not sent to hours worked rather than 2,080 year, each only hours being Firefighters 27-day on the year while each Firefighters worked 2,272 hours the schedule. work alleging complaint filed a Seventeen hours for all account for properly failed pursuant time. claimed that They leave and for earned worked 2(2) Constitution, City was the Montana XII, Article *5 in pay liable for its failure to for or account for hours worked excess Further, eight per day. they alleged City’s pay hours the failure to wages Firefighters Firefighters entitled the to a The penalty. common that a class requested be certified and fond be established. Firefighters The filed a partial summary judgment. motion for They argued they that right paid every had a constitutional to be for they in eight-hour day, right hour worked excess of an and that this bargained away. They argue they could not be waived or did not that worked, were entitled to overtime for those hours that the hours but claim unpaid “straight Firefighters were time.” The did not base their (FLSA). on any Further, violations of the Fair Standards Act Labor the claimed, time, Firefighters straight in addition to City the failed to properly account for and sick and City vacation leave time. The responded eight-hour the day provision work in the Montana application Constitution had no in this in fight case 39-4-107 and §§ 39-3-406, MCA, eight-hour day that the apply does not firefighters working under an bargaining established collective agreement. City The noted that Firefighters the did not allege a violation of terms of the collective bargaining agreement. The then filed its own requesting summary motion judgment on all of the Firefighters’ issues. rejected The District Firefighters’ Court the they claims that were unpaid wages
entitled to pursuant XII, Article the Instead, Montana Constitution. the court compared pre- the and post- bargaining agreements collective and determined the matter based on a breach of theory. contract The court pre-1995 found that the agreement was an wage annual contract and the post-1995 agreement hourly was an wage Thus, contract. pre-1995 agreement wage year exact to be for paid regardless of the number of post-1995 agreement, hand, hours worked. The required on the other Firefighters paid Accordingly, for each hour worked. Firefighters unpaid straight were entitled to time from 1995 forward. The court determined that the issue of leave time could be worked out agreements under the Firefighters’ as well-that time “leave should be credited and debited at the same rate.” The court certified the matter as a class action and defined the
class as all past present firefighters City Billings who work or 27-day worked under the work schedule. The complaint was amended to include firefighters. dozens more May A bench trial was held on 3 and to determine damages. Based on the prior post-1995 court’s conclusion that hourly contract, was an the court found at trial that 2,272 year but were hours approximately worked they concluded were 2,080 per year, and thus only hours unpaid associated with and benefits
entitled to recover City did not its breach court further concluded hours. The records, were not and that the records payroll duty proper to maintain The court assessed a intentionally misleading. falsified or unpaid wages. amount percent of 8.45 in the against costs, the court attorney fees and hearing on the amount of After a Firefighters, declining to $625,000 attorney fees to the awarded Firefighters requested. contingency fee the the full one-third award costs, $3,972.98 although court awarded granting order $60,154.72. City appeals requested from the summary judgment and partial Firefighters’ motion for $3,075,590.30, awarding damages in the amount of judgment court’s *6 $253,000, and the above- of in the amount percent penalty an 8.45 fees, Firefighters cross-appeal attorney and costs. The mentioned time, and the amount wages and leave damages unpaid amount of discussed facts will be attorney fees and costs. Other penalty, necessary. as below REVIEW
STANDARD OF grant of a court’s of review of district This Court’s standard ¶12 82, 88, State, 894 v. 271 Mont. is de novo. summary judgment Tefft (1995). if proper only 317, summary judgment A grant 321 P.2d moving party is fact exist and the issues of material genuine no 56(c); Tefft, 271 M. R. Civ. P. as a matter of law. judgment entitled to 88, 321. at 894 P.2d at Mont. jury sitting without findings a trial court We review
¶13 R. Civ. P. clearly erroneous. M. findings are if the court’s determine 19, 120, 299 Co., Reier, MT ¶ Inc. v. 2000 52(a); Broadcasting Reier clearly 940, findings are 19, 19. A court’s 463, 1 P.3d ¶ Mont. ¶ evidence, credible supported substantial they if are not erroneous evidence, if a the effect of misapprehended has if the trial court firm definite and with the leaves this Court of the record review Co., Broadcasting Reier committed. a mistake has been conviction that omitted). (citations district court’s conclusions review a Inc., We 19¶ Reier are correct. those conclusions whether of law to determine omitted). (citations Co., Inc., 20 Broadcasting ¶ grant or denial court’s of review of district standard This Court’s its discretion. court abused fees and costs is whether attorney 19, 193, Commerce, MT ¶ Bank First Interstate Denton v. its 797, district court abuses 19. A 169, 19, 142 P.3d ¶ Mont. ¶ arbitrarily, it employment discretion when acts without judgment, resulting conscientious or in excess of the of reason bounds Plaster, injustice. Pumphrey Empire substantial Lath and 255, 9, 334 102, 9, 144 813, MT Although Mont. P.3d 9. this Court ¶ ¶ ¶ costs, recognizes authority that district court has broad to award issue raised in appeal regarding the award of costs involves a question Tabish, oflaw as to entitlement to costs. See Valeov. 1999 MT 34, 15, 295 Mont. 983 P.2d ¶ 15. We review a district ¶ ¶ they Valeo, court’s conclusions of law to determine if are correct. 15.
DISCUSSION ISSUE 1: Did the District Court err in granting Firefighters’ motion partial summary judgment concluding City for unpaid wages liable and leave time? City argues appeal on District Court erred in granting Firefighters’ partial summary motion for judgment on the basis of a breach of theory Firefighters’ contract when the theory of recovery was based on the Montana eight-hour day Constitution’s provision. The court disregarded the argument, stating constitutional XII, that Article at “prohibit[s] most an employer from compelling eight to toil more than regular hours as a work,” day’s and that in this the Firefighters agreed had 27-day cycle work working included more than eight hours in a day. Therefore, using a “common analysis, sense” the District Court concluded pre-1995 agreement was an annual contract City breached, which the had not post-1995 agreement was an hourly wage contract which the had breached. contends that analysis the court’s is flawed because the
pre-1995 agreement and post-1995 agreement, expressing while pay formula in ways, different were intended compensate *7 Firefighters way. fact, the same In the states that it intended to compensate the all hours worked under pre-1995 both post-1995 and agreements. The draws attention to the fact that both sets of contracts refer to salary hourly annual base and rates. In making that argument, City exposed itself possibility to the that the courts could conclude that the Firefighters were entitled to an hourly and, thus, unpaid straight pre- time under both the post-1995 agreements. However, have not cross- appealed pre-1995 wages the denial of theory. on breach of contract Thus, the issues before us are whether the District Court erred in concluding post-1995 contract, that the agreement hourly wage was an secondly, whether concluding the District Court erred in Article 2(2) in this
XII, inapplicable Constitution was of the Montana case. concluding post-1995 that the Court err in
A. Did the District hourly wage contract? agreement was an bargaining in a collective interpretation provisions 150, Blankenship, 266 Mont. Hughes oflaw. agreement question is a (1994). contracts, the 154, 685, In written interpreting 879 P.2d writing parties from the must ascertain the intention court 16, 23, 8,MT 330 Mont. Dist. No. ¶ alone. Wurl v. Polson School (citations omitted). a contract 436, Where 127 P.3d ¶ ¶ language unambiguous, apply a court must is clear and provision Wurl, ambiguous, interpretation term is 16. If a contract as written. ¶ intent regarding of fact resolving question requires of the term Wurl, 17. The initial determination to the contract. parties ¶ law for question is also a ambiguity an exists a contract whether Wurl, where the ambiguity 17. An exists court’s determination. ¶ whole, subject to two contract, reasonably could language ofthe as Wurl, parties disagree as meanings. 17. The fact different ¶ necessarily not create provision of a contract does meaning Wurl, ambiguity. 17. above, provided a post-1995 agreement In this as stated pay. certification hourly pay plus special base formula based on
pay post-1995 A to the attached as Exhibit hourly The “base salaries” were agreement in the as Pay was defined agreement. Special Certification receive if he or she department the fire would that member of pay technician, EMT-basic, material certification, hazardous held a such as many certifications a technician, Regardless etc. of how rescue rope However, pay was held, month. pay per was $30 member Further, hour. on Exhibit A as $0.1731 further broken down Pay, which was Classification provided Higher agreement responsibilities “required accept any firefighter who was he/she or rank above position duties of a carry out the (2) This pay or more.” for two hours normally period holds for a agreement. the post-1995 Exhibit B of down hour on also broken salary could be an annual base provided then formula 2,080. Despite this rate hourly base by multiplying reached clearly post-1995 annual salary, mention of an base wage. hourly for an hourly lists actual agreement specifically post-1995 Given that salary as an annual treating the contract is no basis for wages, there I one Firefighter with example, a contract, City suggests. For as the Thus, the rate of hourly $12.7355. base have an certification would *8 $26,489.84. this number the actual Dividing salary annual would only per to equate $11.66 would on the defined schedule hours worked stated the agreement than the hour, less hour more than dollar hourly to an actual illogical provide It is was to receive. firefighter worked, lowering thus every hour pay then not for wage but hourly wage. agreed-upon not agreement did pre-1995 on Although appeal, not at issue regular pay, special for of hourly an break-down
provide an provided but rather high pay, certification pay, certification to determine that was then used type pay amount for each of Further, starting hourly an rather than with regular monthly salary. rate, agreements provided the pre-1995 reach an annual rate to rate, presumably annual hourly to be derived from the rate was Comparing the pay purposes. and overtime high certification post-1995 that the the court’s conclusion agreements further bolsters hourly wage to be an contract. agreement was intended concluding post-1995 not err in The District Court did Firefighters and that the were hourly wage for an entitled to earn for each horn worked were compensated to be accordingly. leave time 2(2) XII, concluding err in Article Section
B. Did the District Court was in this case ? inapplicable the Montana Constitution 2(2) XII, that Article Section argue The duty by to account for gives employers Montana Constitution rise to every part provides: This hour worked. regular day’s work in all period
A maximum of 8 hours is a raising. and stock except agriculture and employment industries may change period promote this maximum to legislature general welfare. Montana carried over from the 1889 provision
This constitutional was eight “A hours shall constitute provided: period Constitution which industries, undertakings occupations, in all day’s work Const., Mont. art. farming raising....” and stock except employments, 1935). held that XVIII, (1889, previously have amended We § dependent upon self-executing, rather it was not but provision XVIII, enforcement, to Article Section pursuant legislative (1889), legislature stated: “The which Montana Constitution the enforcement legislation shall appropriate Com'n, Hwy. v. Montana State article.” Weston provisions of this (1980). 150, 152 46, 50, 606 P.2d Mont. is not so the 1972 Constitution argue that self-executing. day guarantee
restricted; is, eight-hour However, Firefighters ignore permissive language Article XII, 2(2), allowing legislature change maximum fact, period eight legislature hours. In has enacted legislation that, provides eight day’s while hours is a work most state 39-4-107(1), municipal government employment, MCA, eight- § day hour does “not apply firefighters working period who are a work *9 in bargaining agreement established a collective entered into between public employer firefighters’ organization and a or its exclusive 39-4-107(2), representative.” legislature Section MCA. The further county that in “municipal governments, employer and the employee may agree workday and to a of more than 8 hours and to a (a) 7-day, period: 40-hour work through bargaining a collective agreement bargaining when a collective unit the represents employee 39-4-107(4), . . . .” Section MCA. Here, the represented by bargaining are a collective
unit, Local Fighters, the 521 International Association of Fire which bargaining agreement entered into a collective on behalf of the Firefighters. The 27-day cycle was for work included working 24-hour shifts and sometimes more than 40 hours validity week. The do not the dispute agreement, they challenge nor do the statutes that allow such an Thus, agreement. 2(2) eight-hour day XII, provision Article Section apply of the Montana Constitution does not in this case. Because apply, Firefighters’ it does not we do not need to address the provision gives liability employer contention that this rise to when every employees fails to account for hour its work. did in granting partial summary District Court not err
judgment Firefighters. judgment to the We affirm the District Court’s time. awarding unpaid wages and leave assessing penalty ISSUE 2: Did the District Court err in City’s wages? for the failure to pay 39-3-204, MCA, Section provides part: [E]very employer of labor in the state of Montana shall employee wages money each earned employee lawful on into cash on the United States or checks banks convertible checks, person demand full face and a at the value of performed may whom labor has been not withhold from employee any wages unpaid longer period earned or for a than 10 days wages payable. business after the are due and time, employer pay wages specified penalty If an fails to within the against must be to the employer “assessed unpaid.” wages in an amount not to exceed 110% of the due percent of the 39-3-206, penalty maximum MCA. The circumstances following special assessed if the wages owed must be exist:
(a) by the requested information fails to employer cooperate department’s in the and/or does not department claim; wage of the investigation
(b) employer’s credible evidence there is substantial intentionally misleading; are falsified or payroll records (c) wage and hour previously violated similar employer has filing the date of of the years prior three statutes within claim; or
(d) paycheck. an insufficient funds employer has issued exist, Admin. If of the circumstances special R. M. 24.16.7556. none wages determined percent reduced to 55 penalty then the will be amount of the to be penalty Admin. R. M. 24.16.7566.1 The to be due. discretionary. Department of Labor is not Pursuant imposed rules, percent, must either be 55 Industry administrative depending owed on the percent, percent or 110 Co., Inc., Broadcasting 27. A district court is circumstances. Reier administrative apply rules and required judicial to take notice Co., Inc., 28, 30; M. R. penalty. Broadcasting Reier appropriate ¶¶ *10 202(d). Evid. disregarded penalty In the District Court the minimum imposed penalty Rules and instead a
required by the Administrative unpaid wages. of the The City percent on the in the amount of 8.45 delegated rule- recognized Legislature that the Montana District Court and Department of the of Labor making authority to the commissioner overstepped summarily concluded that the commissioner Industry, but wage minimum claim cases. authority fixing penalty that a 2-4-305, MCA, rulemaking authority and agencies’ addresses provides: parties argued this issue based on Admin. and the District Court decided 24.16.7561, “Penalty Wage and Overtime Claims.” entitled for Minimum
R. M. which is wage claim. The a minimum claim nor overtime This case involves neither Involving 24.16.7566, “Penalty for Claims appropriate Other Kinds of R. M. entitled rule is Admin. provides penalties are to Compensation.” Admin. R. M. 24.16.7566 calculated as follows: (a) wages to the penalty equal determined to be due a to 55% of the by department, imposed the but in all determinations issued will be (b) wages penalty of the determined department to 15% will reduce period specified wages employer pays found due in the time due if the to be in the determination equal penalty of that amount. as well a to 15% (2) 24.16.7556, any [Admin. M.] R. special of of the circumstances If the claim involves by penalty impose allowed law. department the maximum will
(6) express implied Whenever or terms of statute a agency authority adopt implement, state has rules to interpret, statute, specific, carry make or otherwise out the provisions amendment, an adoption, repeal of a rule is not valid or effective unless it is:
(a) statute; consistent and not in conflict with the (b) reasonably necessary to effectuate the purpose of the statute.
An “only administrative rule will be considered invalid upon a clear showing that the regulation requirements contrary adds which are statutory language engrafts or that it additional provisions not State, legislature.” Commerce, envisioned Dept. Christenot v. (1995) (citing 272 Mont. 901 P.2d Board Barbers (1981)). Big Sky College, 159, 161, 626 1269, 1270-71 192 Mont. P.2d determination, To make this interpret the court must the statute. Christenot, 272 Mont. at at If legislative 901 P.2d 548. intent statute, cannot be ascertained the plain from words of the then the legislative history Christenot, court must look to the of the statute. 401, 901 39-3-206, Looking plain Mont. at P.2d at 548. at the words of § MCA, clearly the legislature employers intended to dissuade from violating wage provisions by making a a such violation misdemeanor assessed, requiring penalty to be in addition to requiring payment wages. Establishing percent of the full amount of a 15 or 55 percent penalty requirement. Rather, does not add another it sets range acceptable legislature. minimum within the Imposition percent penalty pay wages certainly a 55 for failure to effectuate helps purpose Reducing of the statute. that penalty percent to 15 Thus, provides quick payment wages. an incentive for the District Court M. judicial erred when it failed to take notice of Admin. R. impose penalty percent, 24.16.7566 24.16.7556 and of at least 55 possible with a reduction to 15 owed to percent, unpaid Firefighters. Firefighters argue justifies imposing that the record the full of 110 not in an percent, alleging cooperate that the did claim, certain investigation records not were discovery, City’s payroll and that records were falsified or intentionally misleading. support argument In of their *11 claim, investigation in the the cooperate did not the City against Firefighters assert that the retaliated the Firefighters original by reassigning majority plaintiffs who filed the lawsuit Further, City’s to Station the least desirable of the six fire stations. him, up line them supervisor up stated that “if it was to he would chief the fire response, In have them shot.” the wall and against firefighters were hearing that summary judgment at the explained needed, Station 1 they and that according to were transferred where is station because that where the least desirable may seem to be you harder at the work “perception located and that chief is regard to the threat from the chief With station where the works.” addressed the matter with chief testified that he supervisor, they were not to discuss all personnel and instructed supervisor incident. The concerning either were filed grievances the lawsuit. No a failure to this conduct constitutes fail to show how Firefighters investigation of the claim. with an cooperate have might that records which been Firefighters also assert response in to produced were not used to reconstruct hours worked testimony They to trial production. point for request their had, thought he he or what discussing chief what records assistant fire had, thought he had City department what thought payroll he Firefighters were away being unimportant as since the been thrown the hours worked. forty regardless hours each week paid based on However, City that the record does not conclusive evidence records. requested withheld City Firefighters’ argument kept support In records, Firefighters intentionally misleading payroll
falsified or
Firefighters
hours the
showing
the fact that records
actual
point to
department,
but instead
payroll
worked were not sent down
Further,
that the
failed
away.
assert
were thrown
register showed
records because the check
keep
payroll
accurate
week, regardless of
forty
per
hours
firefighter
paid
that each
was
forty
per
than
hours
week.
they worked more or less
whether
the scenario in
where
Firefighters analogize this situation with
Tefft
for claims
liquidated damages
plaintiffs
the court awarded
P.2d at 323. The
Tefft, 271 Mont. at
brought under the FLSA.
plaintiffs’
records of the
keep
failed to
accurate
employer
Tefft
However,
86, 894
at 320.
Mont. at
P.2d
Tefft,
actual hours worked.
award to the
damages
the liquidated
that was not the basis for
Tefft
faith
good
it acted in
Rather, the State failed to demonstrate
plaintiffs.
thus
reducing employees’ wages,
grounds
or on reasonable
Tefft,
the FLSA.
damages under
warranting
liquidated
an award of
provides
Admin. R. M. 24.16.7556
93,
assumption pursuant bargaining agreements, to the collective it only required to forty per for hours week. This does not substantial evidence that the records were falsified or intentionally misleading. We assessing conclude District Court did not err in a
¶33 penalty, failing but did err in to the required percent assess penalty, minimum percent wages with reduction to 15 of the determined if City pays wages to be due and in a time period specified by the court. We remand to the District Court to assess the appropriate penalty. ISSUE Did the awarding 3: District Court err in costs to Firefighters? $60,154.72. Firefighters requested costs in the amount of $3,972.98,
court awarded limiting recovery filing ofcosts to and service fees, postage, photocopies, long telephone distance calls. The court fees, did not award reimbursement of expenses, costs for travel witness or deposition Firefighters argue they costs. The are entitled to all costs 39-3-214, pursuant MCA, provides: which § (1) necessary Whenever it is for the to enter or maintain a suit at recovery law for the or collection of due as by for part, resulting judgment this must include a attorney’s party, reasonable fee in favor of the successful to be taxed as in part costs the case.
(2)Any judgment plaintiff proceeding for the in a pursuant part must include all costs in reasonably incurred connection with proceeding, including attorneys’ fees. concluded, City agrees, The District Court and the costs 25-10-201, MCA, by provides: should still be limited § A party to whom costs are awarded in an action is entitled to disbursements, necessary include in his bill of costs his as follows: (1) witnesses, legal including mileage, fees of or referees and officers; other (2) taking expenses depositions;
(3) directed; legal publication publication fees for when (4) legal filing recording papers fees for and certified necessarily trial; thereof in or copies used the action on the (5) legal fees for diem or for paid stenographers copies; (6) hearing for a when expenses printing papers reasonable court; required by a rule of
(7) expenses making transcript supreme the reasonable court;
(8) making required if expenses map maps the reasonable or hearing; and necessary to be used on trial or (9) as are taxable necessary expenses reasonable and such other by express or practice course and of the court according to the of law. provision K-Decorators, Inc., 1999 reasoned that Delaware v.
The District Court 97, 70, 818, 70, guide 973 P.2d “seems to MT 293 Mont. ¶ ¶ 25-10-201, MCA.” limiting the Court toward costs to those § costs, taxing every not A trial court has broad discretion but Becker, 267, 284 Mont. litigation expense Springer is recoverable. (1997) (citations omitted). 25-10-201, 949 P.2d MCA, may an opponent is an exclusive list of costs which be taxed to specialized taken out of its a more operation unless the case is statute, by rule of court. stipulation parties, Springer, *13 (citations Foods, 275, 949 omitted); Mont. at P.2d at 645 Roseneau Inc. (1962). Coleman, 572, 580, 87, 91 wage v. 140 Mont. 374 P.2d This is a statute, by specialized claim case covered a more 39-3- specifically § 214, MCA, requires which an award of costs which “must include all reasonably proceeding.” costs incurred in connection with the This previously legislature’s Court has determined that “the intent in 39-3-214, MCA,] passing employee was to an who wins a [§ judgment wages against by due an employer vehicle which to attorneys Glaspey receive fees and thus be made whole.” v. Workman (1988). 307, (Glaspey I), 309, 1083, 1084 230 Mont. 749 P.2d The same purpose applies awarding costs-passing employer in the burden to the “employee’s preserved so that the net award is intact and is not eroded State, 412, 415, litigation.” the cost of Stimac v. 248 Mont. 812 P.2d (1991). 1246, 1248 39-3-214, MCA, application allowing broad of § costs, fees, recovery including attorney of all incurred in a suit to 1, 308-09, 749 in wages Glaspey recover is best illustrated 230 Mont.at 1084, attorney P.2d at where the Court awarded fees when an pierce corporate prior forced to file suit to veil of his employee was wage in a employer prior order to collect awarded successful claim action. authority disagree provides requiring We that Delaware court
to limit
in a
claim
in Delaware was whether
wage
costs
case.
issue
claimant timely
filed his memorandum of costs allowed
39-3-
§
25-10-501,
214,
Delaware,
65. In that
concluded that
MCA.
we
¶
§
MCA,
to file his or her
party
required
controlled when a
25-10-201, MCA,
Delaware,
memorandum of costs.
71. Unlike
¶
§
MCA,
25-10-501,
setting a
general,
costs in
delineating allowable
§
costs,
not have
days
filing a memorandum of
does
deadline of five
wage
in the
claim statutes.
specific counterpart
a more
awarding only
Court erred in
We conclude that
District
$3,972.98
entry
judgment
reverse and remand for an
costs. We
Firefighters all
costs incurred in this
awarding the
reasonable
39-3-214,
to
MCA.
litigation pursuant
§
Court
its discretion in
ISSUE 4: Did the District
abuse
awarding attorney
Firefighters?
fees to the
rule,
Contrary
general
attorney
wage
fees in
claim
as
of the
costs to be awarded.
part
prevailing party’s
actions are taxed
39-3-214, MCA; Delaware,
purpose
awarding
70. The
attorney
judgment
fees to an
who
in a
claim
employee
obtains
I,
309,
is to make the
whole.
1. The involved; legal service required perform
2. The time labor properly; litigation; importance
3. The character *14 attorney; 4. The result secured skill, attorney; experience, reputation 5. The and legal services at the customarily charged 6. The fees for similar rendered; place time and where the services were rendered; legal ability pay 7. The of the client to for the services and recovery.
8. The risk of no Stimac, P.2d at 1249. 248 Mont. at retainer case, sixty-four Firefighters signed of the In this fee for their contingency for a one-third agreements providing of the portion to bear a attorneys, remaining with the held fund doctrine. The court litigation according costs to the common Firefighters regarding testimony from one of the hearing and heard signed inability pay and his contingency agreement fee he had The court also heard attorney when he initiated the case. fees attorneys regard to the Stimac argument from the on both sides with contingency grant The District Court declined to the one-third factors. the Stimac factors issuing judgment, In the court considered fee. its them as follows: applied and difficulty legal and factual issues was novelty
1. The and moderate; case. unpaid wages this was an and contract moderate; attorneys and from the was required 2. The time labor only are though years even the case is six old there file; difficult; discovery documents in the court was extensive and consuming analysis mostly and time was an in-depth accounting project. importance litigation
3. The character and of the exceeds that important only litigants most cases as it was not but also to similarly public general. others and to the situated by plaintiffs’ attorneys 4. The results secured were excellent. experience, reputation plaintiffs’ attorneys, 5. The skill and attorneys, defendant’s are seldom surpassed others court; skilled, very experienced, highly very all were reputable. contingency
6. & 7. fee was standard and customary plaintiffs pay hourly who were not able to fee individually either a group. as recovery very attorneys,
8. The risk of no plaintiffs’ real to as contingency it is in all cases. expounded The court on some of these factors and considered only
additional factors. It noted that one-half of the fee, actually agreed signed contingency leaving to and a one-third according great others to fund doctrine. It placed common that, nearly emphasis although gone on the fact the case had on for six years, might the court file contained fewer documents than Further, expected. although Firefighters’ attorneys took this case contingency they on as a fee or should that if knew have known successful, their they attorney part would be awarded fees as costs. Thus, concluded, attorneys kept the court should have track of knowledge their time. The relied on its experience court own time, that, effort and despite significant case to conclude amount of counsel, time part Firefighters’ skill on the fees based on would $1,000,000. Noting not have amounted to the court had been evidence, beginning, the case from the heard the involved with law, weighed arguments, and reviewed case the court awarded *15 $625,000 attorney in fees. The court stated that this “amount should effort, time, skills, surely experience, be two to three times the actual awarded) (even in plaintiffs and all costs those not have invested this Finally, reasonably, the court that this would case.” reasoned risk of no adequately appropriately Firefighters and reward the the at all. recovery Firefighters argue that the court abused its discretion when
¶44 fee, contingency stating it did not award the full one-third that six of They the eight strongly supported contingent factors fee. contend great weight years, court on the fact that the case went on for six put delay. for the allege principally responsible was However, noted, downplayed significance as the court in that there few documents in the court file lengthy litigation were Furthermore, did not given length of time. provide any showing responsible evidence how the delay. familiarity provided Based on the evidence and the court’s with
¶45 analyzed the court each of the Stimac factors and exercised attorney fees. determining its discretion in an amount of reasonable supported by conclude the court’s decision is the record. Since We fees, not disturb awarding court did not abuse its discretion in we will II, 377, P.2d at 668. ruling. Glaspey the court’s 234 Mont. at
CONCLUSION granting err in We conclude the District Court did not summary judgment in favor of the and we affirm partial wages and time in the amount of unpaid the award of leave $3,075,590.30. District Court did not abuse its We conclude the $625,000 attorney Finally, fees. we discretion when it awarded in to assess the minimum conclude the District Court erred when it failed rule, failed to administrative and when it to award penalty pursuant Firefighters. We reverse and all reasonable costs incurred Opinion. proceedings remand for further consistent with COTTER, concur. JUSTICES NELSON and MORRIS RICE, dissenting part. in concurring part JUSTICE in Issues 3 and but I concur with the Court’s resolution of dissent from the resolution of Issue 2. penalty rules which set I that all of the administrative believe reason-they are in conflict with for the same
floors are defective of these Although application the Court relies on Reier’s statute. there employer note that the the Reier Court was careful to provisions, briefing, validity ... of any of its dispute, “[did] not ....’’Reier, Here, City Billings does so. rules 30. administrative MCA, 39-3-206, pertinent part, that: provides, (1) as in this employer An who fails to guilty of a part provision part or who violates other of this against A must also be assessed misdemeanor.
by in an amount not to exceed employer 110% unpaid. [Emphasis added.] of the due and Clearly, penalty does not limit the requires penalty, the statute a but Instead, mandatory range it imposed to be to a few floors. sets a wide up percent. near zero to 110 Neither does the statute’s between rulemaking authority delegate Department duty to the of level(s). Rather, designating penalty range is to penalty broad discretionarily in each applied wage proceeding. collection (“[t]he Department’s penalty mandatory penalty floors are maximum mandatory under the above circumstances ....” Admin. R. M. 24.16.7556(3); penalty equal imposed “a to 55% ... will be ....” Admin. 24.16.7566(l)(a); maximum department R. M. “the impose will 24.16.7566(2)) by arbitrary, allowed law.” Admin. R. M. eliminating by the exercise of discretion the court or decisionmaker, weigh significance as well as the freedom to violation under the circumstances of each case. The Court “[e]stablishing percent concludes 29 that a 15 or 55
percent penalty requirement. Rather, does not add another it a sets range acceptable legislature.” minimum within the to the The flaw in reasoning readily this can be seen-it would likewise allow the Department cases, to require percent penalty a 110 in all because such a rule range “acceptable legislature.” would be within the to the To the contrary, harmony” this Court held that regulations has are “out of “they engraft additional, with statute if noncontradictory requirements on the by legislature.” statute which were not envisioned Board of Barbers, Big Sky College, Etc., Etc. v. 192 P.2d Mont. (1981) (citation omitted). 1269, 1270 Thus, may regulation a be within yet additional, statutory parameters, imposing invalid as unforeseen Barbers, restrictions. In Board the relevant statute stated as follows: of year completion apprenticeship “On of 1 under the immediate barber, must personal supervision apprentice of a licensed apply department to take the examination for a barber’s registration.” certificate of 160, 626 Barbers, at 37-30- (quoting
Board
192 Mont. at
P.2d
§
MCA).
305,
thereto,
adopted
Pursuant
the Board of Barbers
this rule:
Every
year,
must serve one normal work
or its
apprentice
board,
apprentice
at the discretion of the
as an
before
equivalent
examination.
he can take the barber
160,
turn,
Barbers,
P.2d at 1270. In
Board
192 Mont. at
year” as one served in a commercial
Board defined “normal work
Barbers,
shop only. Board
Board of added). By requiring employers violating that all statute be arbitrary Department has both *17 penalties,
assessed one of three thus requirements application, added and narrowed the statute’s Taylor Taylor, “exceeding] authority provided by statute....” (1995). penalty rules force the Mont. 899 P.2d inevitably “square peg” the courts to hammer fact Department and levels, despite penalty into one of three “round hole” patterns Likewise, the rule 2-4- legislative authority contrary. violates § 305(6)(b), MCA, arbitrary penalties cannot be said because If “reasonably necessary purpose to effectuate the of the statute.” effect and make it anything, the rules constrict the statute’s intended the statute. more difficult to effectuate that, to the extent the agree I with the District Court’s conclusion Commissioner “they have Department penalties, or the has fixed can set the minimum authority.... Only legislature their exceeded delegated authority.” While the legislature ... has not penalty; guidelines able to issue Department may well be statute, arbitrary penalty levels. it cannot set assessments under I would affirm on Issue 2. join and JUSTICE WARNER CHIEF JUSTICE GRAY of JUSTICE RICE. concurring dissenting opinion