*1 PETAJA, MAGGIE Cross-Appellant, Appellee Plaintiff, EMPLOYEES’ MONTANA PUBLIC THE (MPEA), ASSOCIATION Appellant. Defendant No. DA 15-0246. April 6, on Briefs Submitted Decided June MT 143. 383 Mont. 516. P.3d 40. *2 Appellant: Englund, P.C.; For Karl J. Karl J. Englund, Missoula; Picotte, Law; Attorney Carter at Helena. Wilson, Appellee: PLLC;

For Valerie D. Wilson Offices Law Helena.

JUSTICE RICE delivered the Opinion the Court. (MPEA) Employees Montana Public a appeals Association from Court, verdict entered the First Judicial District Lewis and $100,000 Clark County, awarding Maggie Petaja (Petaja) damages. Petaja cross-appeals the District Court’s denial of her motion for attorney fees. We affirm. We restate address the following and issues: Did substantial evidence MPEA

breached representation? its theWas to the instructions and law ? Petaja’s judicata? 3. Was claim barred legal 4. Did the District Court have

fees?

PROCEDURAL AND FACTUAL BACKGROUND Most of the facts of dispute this case are not in as a matter of law. timely trial multiple discovery counsel failed to answer requests propounded by Petaja and to respond failed to the District Petaja’s granting compel Court’s order motion to MPEA to answer result, discovery requests. As a Petaja’s District Court ordered requests for admission to be deemed admitted. began Petaja position This case when was terminated from her Women, Coordinator County and Clark

with Lewis as the Clinic Supplemental Program. Infants and Children Nutrition The Petaja’s position claimed was terminated as the result of a reorganization. Petaja, claimed she terminated her because of age. Petaja represented was a member of a collective unit bargaining agreement procedure MPEA. The provided collective a County. grievances employees

to address between and the (1) grievance procedure advancing steps: of four an informal consisted (2) grievance a formal employee’s supervisor; discussion with (3) head; grievance a formal department written written (4) Director; binding and arbitration. final Human Resources grievance challenging Petaja Step file a requested MPEA to Petaja as a employ offered to response, termination. receptionist significant pay at a decrease. temporary administrative or claims rights but refused to waive Petaja accepted position County. requested Petaja then had under the CBA she meeting with its grievance. MPEA scheduled Step MPEA to file husband, Petaja’s to discuss Raymond Berg, and representative, Berg then refused to meet with Petaja’s Step grievance. grievance. Step to discuss husband copy with a Berg, a’s then hand letter Petaj husband delivered counsel, requested Step that MPEA file to MPEA’s which alternatively, Petaja with written confirmation grievance, provide grievance pursue had decided that MPEA not to file remedies under the CBA. MPEA refused had exhausted her provide and failed to her with written notice Step grievance its that she had exhausted pursue the CBA. her remedies under Instead, signed a settlement on behalf *3 wages Petaja to to disputes concerning resolve all owed purported CBA, County without reservation other claim. under Petaja entering it into a settlement

MPEA did advise settlement agreement County, present with the nor did MPEA Petaja signature for or review. to against County with the Petaja filed a discrimination claim (HRB). agency final Rights Bureau HRB issued a decision Human practice dismissing Petaja the claim. also filed an unfair labor complaint against MPEA with the Montana Board of Personnel (BOPA). agency dismissing Appeals BOPA issued final Petaja’s After complaint. complaints, HRB BOPA dismissed discrimination, County, alleging against filed suit in district court MPEA, fair against alleging duty representation. breach of the discrimination County pled The as an affirmative defense time MPEA did not contend that fair claim was barred. by BOPA’s final decision under the representation claim was barred judicata. of res doctrine trial, jury At the District instructed the on the claim of Court duty representation of fair follows:

breach of proving, by preponderance has [T]he Plaintiff the burden of the evidence that:

1) bargaining unit; She was a member of MPEA’s collective 2) The employer violated the terms of the collective agreement;

3) duty Defendant MPEA breached its to act honestly good in arbitrary faith and to avoid conduct.

A duty union breaches its of fair representation: 1) ignores grievance When it a meritorious processes or agreements in a perfunctory manner

2) honestly good When it fails to act and [in] faith with its union members;

3) arbitrary, faith; When its conduct is discriminatory or in bad 4) egregiously disregards rights When it of the union member. against Whether discrimination claim County time barred was as a question jury. jury submitted factual returned a in claim, verdict favor of the on the discrimination but the verdict form did not require to indicate it whether in favor on the merits because it found claim was time-barred. The returned a verdict MPEA on claim, the breach of the it representation liable for $100,000 damages. trial, Petaja After pay asked the District Court order MPEA to fees, $100,975.

Petaja’s attorney totaling respond MPEA did not this request. The District Court Petaja’s request ground denied on the legal authority fees, had no attorney stating, “[d]espite incomprehensible $100,975 MPEA the admission award of attorney against it, fees grant the Court will not the award.” MPEA appeals cross-appeals from the verdict. the District Court’s denial of fees.

STANDARD OF REVIEW The Court reviews determine whether it is supported by Shank, Magart substantial credible evidence. v. 4, 302 Mont. 13 P.3d 390. The standard for of review with

whether consistent the law and instructions is also Drilcon, substantial Energy Corp., evidence. Inc. Roil *4 A application district court’s of an of is issue law that ¶13 165, County, is reviewed for correctness. Touris v. Flathead 2011 MT 10, 172, 361 Mont. P.3d 258 1. ¶ A regarding legal district court’s conclusion the existence of to City award fees reviewed for correctness. of 311, Svee, 7, 158,

Helena v. 2014 377 Mont. 339 P.3d 32. ¶

520

DISCUSSION MPEA jury verdict support the 1. Did substantial evidence representation? breached its might that a reasonable mind is evidence Substantial evidence conclusion, if weak and to even accept adequate 256, 381 Mont. Voderberg, 2015 MT conflicting. Siebken v. ¶ than mere scintilla evidence but 1073. It consists ofmore 359 P.3d Schmitz, Marriage 255 Mont. may preponderance. less than a be jury It is role of the to 159, 165, the evidence, credibility this Court and weight determine the Mountain, LLC, 2008 MT jury’s the role. v. Marshall Upky will defer to omitted). (citation view the 90, 23, P.3d 651 We 342 Mont. ¶ prevailing party. Upky, ¶ the most to the light evidence in favorable exists, a jury’s we not overturn conflicting Where evidence will State, (citing party Upky, over Samson ¶ to believe one another. 1154). 133, 11, 2003 MT P.3d ¶ standard, admissions the evidence Under substantial on present fact the court an insurmountable obstacle as deemed accept as true that MPEA had appeal. was instructed Step meet and her husband to refused to with discuss Step notify Petaja failed to grievance, grievance, failed to file verify failed that Petaja’s Step not file that would remedies, and, without Petaja had exhausted her administrative signed settlement on behalf knowledge, all purported to resolve claims between with the presented fact with County. These admissions of than a “mere scintilla” of evidence that MPEA’s significantly more “arbitrary, discriminatory Any or in bad faith.” evidence conduct was trial showed MPEA’sconduct was reasonable presented MPEA at best, conflicting precludes jury’s which verdict was therefore at Upky, 23. being from overturned. contrary law ? to the instructions and Was jury’s argues MPEA verdict was inconsistent fault,” employer [was] “the at which means

the law because - damages nothing it did not increase the “the union is liable for wrongful employer employer’s caused conduct because wrong.” no is incorrect for two reasons. committed This First, jury’s regarding misapprehends discrimination claim County’s fault. Whether question as a factual barred submitted County was time possible for the to believe the jury. It was therefore discriminated also find that meritorious against Petaja,

521 Although claim was time barred. we not on speculate jury- do how the decision, reached its Excavating HKM Assocs., Jim’s Serv. v. 265 Mont. 494, 513, 878 248, 259 (1994), entirely possible P.2d it is the the against Petaja, discriminated but that the claim was time barred, given the was instructed that in order to recover (1) MPEA, Petaja prove had to she a member of MPEA’s collective (2) (3) unit, CBA, violated the terms good breached its to act in faith. Under the verdict form used, MPEA cannot prove jury’s otherwise. The verdict is therefore demonstrably inconsistent. Second, although MPEA ample authority cites the proposition

¶21 for a union is liable in employee’s damages for increases by caused to process union’s refusal a meritorious Instead, received no such damages instruction. compensate damages, harm, instructed for “the or detriment by [MPEA’s] caused We long violation.” have adhered to rule that given “an obj instruction without ection becomes the law of the case” for Morton, 62, this purpose. 144, 336 225, 154 Seltzer v. 2007 MT Mont. ¶ jury’s P.3d 561. The verdict was therefore not to the law. 3. judicata? Was claim barred res ¶22 responding In complaint, to a be defense res must 8(c)(1). pled as an affirmative R. P. defense. Mont. Civ. The failure to 8(c) affirmatively a plead defense set forth in Rule results in waiver Wickman, 304, 312, 451, of that defense. Nitzel v. 283 Mont. P.2d 940 Because trial counsel for MPEA properly did not raise this Court, issue before the District we decline appeal. to address on In re Terr. Poplar From Elem. Sch. Dist. No. 9 to Froid Elem. Transfer 278, 145, MT Sch. Dist. No. ¶ Mont. P.3d 4. Did legal authority attorney the District Court have fees? Petaja argues on cross-appeal that the District Court had legal attorney to award her in litigating fees incurred this action. that, Montana follows the Rule or specific statutory American absent provision, prevailing contractual party generally is not entitled to recovery attorneys’ of its or prosecuting defending fees in the action. Buxbaum, 97, 19, Trustees Univ. v. ¶ of Ind. recognized exceptions

69 P.3d 663. We have equitable to the American Rule, Buxbaum, narrowly they but construe these “lest exceptions ¶ Co., 248, 23, 351 swallow rule.” Jacobsen v.Allstate Ins. 2009 MT ¶ Mont. P.3d statutory applicable There provisions are no contractual or

here, equitable exceptions apply. Despite nor do attorney fees, $100,975 in to an admission” award

“incomprehensible legal authority to award found it had no correctly Court District attorney fees this action. Affirmed. BAKER, COTTER and SHEA concur.

JUSTICES MCGRATH, concurring. specially CHIEF JUSTICE majority all that is but not I the result reached concur majority Opinion. said in the 23, majority of MPEA’s contention disposes judicata by concluding claim preclusion were barred

claims properly did not raise the issue in that her Carter Picotte *6 majority preclusion also the claim implies District Court. The never raised below and was therefore waived. specifically preclusion claim The record that MPEA raised shows Complaint and in the again

in its to the Second Amended answer Therefore, was no of the defense based Order. there waiver Pretrial 8(c). However, it by M. R. P. upon plead required a failure Civ. defense, it to the raising brought trial counsel never clear that after for a decision. The defense was therefore waived District Court subsequently pursue it plead, a failure to but a failure to litigation. event, upon proposition res defense rested adjudicated against were the Board of claims Appeals. action taken the BOPA on

Personnel assign investigator report concluding an grievance was who wrote adjudication, There no claims lacked merit. otherwise, judicata. Nasi v. sufficient to quasi-judicial 395, 397-98, Dep’t Highways, 231 Mont.