*1 MIKE SPRINGER, Respondent Plaintiff, Cross-Appellant, v. police
JASON officer BECKER, City of CITY OF as a Bozeman; BOZEMAN, political subdivision State Montana, Appellants.
Defendants
No. 96-602.
Submitted
Briefs March
1997.
August
Decided
1997.
St.Rep.
For Bozeman. Hoines, Nathan J. Great Falls. Respondent:
For Court. Opinion delivered the of the JUSTICE NELSON by the judgments Eight- from certain entered appeal This is an Court, 26,1996, June County. Gallatin On eenth Judicial District summary judg- granted Springer (Springer) Plaintiff District Court liability Springer City of Bozeman’s involving ment on issues 1996, judgment Court entered July 11, the District damages. for On and awarded damages Springer’s for in favor jury on a verdict appeal Sprin- Defendants judgments, costs. From these Springer ger appeals. part, cross We affirm in part reverse in and remand for proceedings further consistent with Opinion. this We the following address issues raised on appeal: 1. Did the District Court err in granting Springer’s motion for summary judgment?
2. Did the District Court abuse its discretion in awarding certain costs to Springer? following
We also address the issue appeal: raised cross 3. Did the District Court abuse its discretion in failing to award Springer 37(c), M.R.Civ.P, fees and costs to Rule proving for requests for admissions that denied? Defendants
FACTUAL AND PROCEDURAL
BACKGROUND (Springer) Plaintiff Mike Springer Volkswagen owned a 1968 van September parked 1992 which he on the 2000 of block South Rouse Bozeman, 24, Montana. September 1992, Parking On Control (McManis), placed Officer Bill McManis a “Notice Abandoned specified Vehicle” on van which a tow date Springer’s observed notice September 25,1992, and on prior towed, van van being his moved his from the east side of the side 28,1992, street the west of the street. On September Springer’s Subsequently, van towed. Police Officer Jason Becker a signed County Junk Vehicle Release and Springer’s Gallatin form van was destroyed. his van been never notified that had towed. brought against this action Defendants Jason Becker and City) (collectively, damages Bozeman recover Volkswagen his 1968 The a brought destruction of van. first summary judgment motion District Court denied. a Subsequently, Springer filed motion for granted 26,1996.
the District Court on June Court District held junk by was not vehicle as defined 75-10- 501(4), MCA nor was van an as abandoned vehicle defined (1991). 27, 1996, jury MCA On June trial was $1,500.00 damages on the issue and a verdict was returned held July 11, favor. On District entered *4 $1,500.00 damages amount judgment plus $1,636.32 City appeals 26, The the court’s June 1996 in costs. both 11, summary judgment July and the court’s granting Order appeals raising Judgment Springer. Springer in favor of cross 1996 by failing its discretion issue of whether the District abused to award him pursuant 37(c), and costs to Rule in part, part M.R.Civ.P.We affirm reverse in and remand for further consistent with proceedings Opinion.
DISCUSSION
1. Did the District Court
granting Springer’s
err in
motion
summary judgment?
hearing
After a
on Springer’s
summary
motion for
judgment, the
District Court determined
genuine
that no
issues of material fact
dispute
were in
concluded that
junk
was not a
75-10-501(4),
(1991),
vehicle
MCA
and was not an
(1991).
61-12-401(1),
abandoned vehicle pursuant
to §
MCA
Court, therefore,
District
held that the
did not take reasonable
notify
efforts to
Springer after his vehicle had been towed, pursuant
(1991).
61-12-402,
MCA
Accordingly,
the District Court granted
judgment.
Summary judgment is proper
genuine
when no
issues of material
moving
fact exist and the
party
judgment
is entitled to
as a matter of
law. Rule
M.R.Civ.P. We review a district court’s grant of a
summary judgment
motion for
de
apply
novo and
the same criteria
56(c), M.R.Civ.P,
under Rule
as did the district court. DeVoev. State
(1997),
356],
[281 Mont.
P.2d
262. The moving party carries
the initial burden of
establishing
any genuine
absence of
issues
of material fact and entitlement
as a matter of law.
DeVoe,
(citing
Section MCA defines a vehicle” as a “discarded, ruined, wrecked, vehicle, or dismantled motor including parts, lawfully validly component which is not licensed and inoperative incapable being remains driven.” Pursuant to 61-§ 12-401(1), (1991), custody, MCA before a vehicle can be taken into not, designated “junk whether it is as a vehicle” or it must have been Furthermore, days city abandoned for more than five on a street. requires MCA that when a vehicle taken into custody, given registered notice must be owner of the vehicle concerning by registered the location ofthe vehicle or certified letter *5 272
mailed, days sold, 30 at least before vehicle latest address department justice, shown in the records of the office of the of return However, an receipt requested postage prepaid. exception to this by that a requirement provides notice vehicle found law enforcement “junk by 75-10-501, MCA, officials to be a vehicle” as defined § less, an value of or as having appraised certified as determined $100 Revenue, may directly Department disposal of submitted for required holding period. without notice and without a Section 61-12- (1991). 402(6), MCA statutory sections, City, argues
The based on the above that summary case judgment proper genuine because City Specifically, argues issues of material fact existed. that ignored the uncontroverted affidavits of Bill District Court McManis Derleth stated that Springer’s Volkswagen and Arietta parked city days; on a street for more than five had van had been damage had structural and lacked expired plates; license windshield City than wipers; and had an assessed value of less $100.00. affidavits, Sprin- on these the issues of whether asserts that based “junk City properly disposed van vehicle” and whether the ger’s and, therefore, presented jury, should have been to a Springer’s of van granting the District Court’s Order Springer we should reverse summary judgment. responds that we should affirm District Court’s Order
Springer City because the has granting his motion for First, of material fact. any genuine failed to raise issues of material City argue genuine failed to that issue argues 75-10-501(4), MCA(1991), of requirement fact existed as to the third junk a vehicle can be classified as a provides before vehicle, incapable being driven.” “inoperative it has to remain and uncontroverted evidence undisputed asserts that driven operable capable being that his van was because shows the street to the he had moved his van from the east side of west side therefore, destroyed. Springer, towed and of the street before was 75-10-501(4), MCA that because all three elements contends satisfied, junk (1991), his van could not be classified as a were not vehicle. failed to that a City argue
Second, Springer argues Springer’s existed as to whether van of material fact genuine issue (1991). 61-12-401(1), MCA vehicle to § was an abandoned fact that after he that it is an uncontroverted again asserts Vehicle,” but before the towed the “Notice of Abandoned observed van, his he moved his van from the east side of the street to the west Furthermore, side of the street. Springer points out that McManis admitted in his that he personal had no knowledge con- length cerning Springer’s time that parked had been the street and that he did not believe that van was an Therefore, abandoned vehicle. that, contends upon based alone, these uncontroverted facts his van could not be classified as an MCA(1991). abandoned vehicle under relying Dagel City v. Great Falls Mont. 819 P.2d Springer argues should be equitably estopped from arguing van was an abandoned vehicle based on the actions of McManis City’s and the violation of their policy concerning abandoned vehicles.
It is important to first note that the transcript of the June summary judgment hearing is not included in the record pro vided to this Court on appeal. City, as appellant, duty had a under 9(a), Rule M.R.App.P., to provide this Court with a record sufficient to enable to upon us rule the issues raised. While it would be appropriate to this dismiss this appeal City’s for the provide failure to record, Court with a sufficient dismissal need not be automatic in every instance party where a strictly fails to follow the Rules of Appellate Procedure. Rigler (1988), Williams v. 161, 163, 234 Mont. Here, 761 P.2d while the lack of a summary judgment hearing transcript limits our issue, review of this any detriment City, inures to the not Springer. Therefore, we will address the issues by City. raised agree
We with that City failed present to an argument concerning the requirement third 75-10-501(4), of § MCA (1991), and, thereby, failed genuine to raise a issue of material fact concerning the classification Springer’s junk van as a vehicle. From provided Court, the record we note that it is uncontroverted that Springer moved his van from the east side of the street to the west side of the City street before the destroyed towed and his van. Additionally, McManis acknowledged deposition in his prior to having Springer’s van towed impounded, he did not know if the capable van was of being operated Consequently, driven. we undisputed conclude that and uncontroverted facts show that Springer’s operable van was and capable being prior driven City time the had Springer’s destroyed. van towed and Accordingly, we hold that the District correctly determined that Springer’s (1991). junk van was not a vehicle by 75-10-501(4), as defined MCA § Next, pursuant 61-12-401(1), (1991), MCA § before a vehicle custody, can taken into junk not, whether it is a vehicle or it must days city have been abandoned for more than five on a street. We again agree City has failed to raise genuine issues of material fact concerning this issue. The record observing shows that after “Notice Abandoned Vehicle”placed 24, 1992, on his van McManis on Springer moved his opposite day. Furthermore, van to side of street the next McManis admitted in his that he had personal no knowl edge long Springer’s parked city ofhow vehicle had been on the street that he and he further admitted did not believe that the van anwas vehicle, but rather that the junk abandoned vehicle was a vehicle. facts, Based these uncontroverted we hold that the District Court correctly that Springer’s concluded van was not an abandoned vehicle (1991). 61-12-401(1), MCA pursuant § provided We conclude the record to us contains no evidence raising genuine Springer’s issue of material fact as to whether junk basis, was a or abandoned vehicle. On that we further conclude summary entitled to as a matter of law. Accordingly, we affirm the District Court’s Order granting Springer wherein the District judgment, Springer’s Court ruled that vehicle junk pursuant (1991), van was not a MCA 75-10-5,01(4), pursuant and was not an abandoned vehicle MCA and, therefore, concluded that the did not take reasonable notify Springer- towed, efforts to after his vehicle had been (1991). MCA based on this we Consequently, holding, reach claim that the estopped arguing do not from van was an abandoned vehicle. *7 awarding 2. Did the District Court abuse its discretion in Springer? certain costs to granting Springer’s judgment,
In its order motion for the jury Court scheduled a trial to hear the of damages. District issue trial, $1,500.00 jury damages. After this the awarded 25-10-201, MCA, Thereafter, pursuant filed a “Bill of § $1,636.32. the District Court in the amount of Costs” with Sub- sequently, awarding Springer the District Court entered $1,636.32 $1,500.00 damages in costs. 25-10-201, MCA, provides:
Section in an A to whom costs are awarded action is entitled to party necessary disbursements, include in his bill of costs his as follows:
275 (1) witnesses, including the fees of legal mileage, or referees and officers; other
(2) taking of expenses depositions; (3) publication publication fees for legal directed; when (4) legal for paid filing fees and recording papers and copies necessarily certified thereof used in the action or on the trial;
(5) legal paid stenographers for per copies; diem or for (6) the reasonable expenses printing papers of for a hearing required by court; when a rule of
(7) the expenses making reasonable of transcript for the su- preme court;
(8) the expenses making reasonable for map or if maps re- quired necessary to be used on trial or hearing; and
(9) necessary such other reasonable and expenses as are taxable according practice course and of the by express court or provision of law. authority
While the trial court has broad taxing costs, Cash (1984), v. Otis Elevator Co. 319, 333, 210 Mont. 1041, 1048, 684 R2d every litigation expense recoverable, Luppold (1977), v. Lewis 280, 292, 538, Mont. 563 P.2d 545. Rather, “[o]nly those costs 25-10-201, MCA, may delineated in be charged opposing § party unless the item of expense 25-10-201, MCA, is taken out of by § statute, a more specialized by stipulation of the or parties by rule of Thayer (1990), court.” v. 138, 158, Hicks 243 Mont. 784, 793 P.2d 545). (citing Luppold, Here, 796-97 563 P.2d at because of neither parties argue that disputed costs are controlled a more specific statute, stipulation parties court, of the rule 25-10-201, MCA, controls this issue. We review the District Court’s award of costs to determine whether the District Court abused Gilluly its discretion. 272, 1147, v. Miller Mont. 891 P.2d argues that the District Court its abused discretion when $1,636.32 awarded because most the costs identified in 25-10-201, fact, “Bill Costs” do not fall within MCA. In City argues only filing First, for fees is $175.00 allowable. City argues photocopies request costs ($127.25) ($17.00) along with costs for facsimile transmittals ($2.10) copies juror questionnaires costs is not allowable under Specifically, Thayer, MCA. relies on 793 P.2d at limited that the District Court’s discretion assert should *8 276 only constructing the incurred in
allowing costs exhibits admitted at only trial, trial two used Springer’s and that because exhibits were at request photocopies appropriate. Furthermore, for costs of 509 is not facsimile City argues copies the that costs for and transmittals juror necessary litigation and, are not questionnaires expenses, therefore, allowed. should not be the
Springer responds photocopy that all of costs were reasonable necessary expenses by 25-10-201(9), and allowed for MCA. Further- the more, position asserts that District Court in the best according a determination of what costs are taxable make the practice Additionally, Springer suggests of the court. that course system the lead of the federal court wherein photocopying we follow (1991). pursuant to 28 1920 costs are allowable U.S.C. § request that Next, argues Springer’s postage for costs ($11.25) ($27.80) not be allowed because charges and UPS should necessary expenses litigation also are not theses costs Additionally, City argues that MCA. cost ($230.00) Fee” should not be allowed identified as “Service because cost, necessary. it is identified allowable nor is reasonable or not an Furthermore, imposition long argues distance ($33.67) because, Thayer, telephone charges erroneous this charges, however, may taxed as “[telephone Court held not be costs Thayer, P.2d at under circumstances.” not Springer responds attempt Court should follow costs, limit awarding District Court’s discretion in Thayer but, rather, return to the District Court broad giving we should 25-10-201(9), MCA, to determine these under whether discretion according practice to the course and court. costs are taxable relying on Luebben v. Metlen 110 Mont. Springer, only 935, further if we affirm the District Court’s argues P.2d against expense asserting will he indemnified award of costs compensated City’s wrongdoing for the in destroying his to be right his property. Thayer argues City again relies on ($454.25) is not allowable be deposition claim costs Moreover, the City at trial. depositions were used
cause the his request cover counsel’s $558.00 asserts that to Bozeman separate trips from Great Falls expenses for five mileage responds statutorily allowable cost. is not a identified they trial, filed with the were not used at were depositions while the judg- motions for parties used both their court and therefore, ment, and, are these costs allowable. Addition- ally, mileage expenses asserts that his counsel’s were allow- they necessary were reasonable litigation expenses. able because hold, general proposition, party ultimately We as that a prevail- *9 ing summary judgment the same entitled to allowable costs as the had been of at v. disposed e.g. if case trial. See Fisher State Farm (1997), 236], 163,164 [281 Ins. Cos. Mont. 934 P.2d (explaining that by costs for in a depositions dispositive used court summary allowable). judgment here, motion are Consequently, Sprin- because ger prevailed judgment both and at for damages, trial any he is entitled to recover costs he incurred in either by allowed 25-10-101 proceeding, as and MCA. §§ Accord- ingly, to determine Court whether District abused its discretion costs, awarding in all claimed we will consider the law applies disputed it each of as costs turn. Thayer, limited
In
we
the broad discretion of the District
25-10-201(9), MCA,
under
by holding
Court
that District
only
photocopying
should allow
those
costs which were incurred in
admitted
constructing
Thayer,
exhibits
at trial.
3. Did the District abuse discretion to attorney Springer pursuant fees and costs to Rule award 37(c), M.R.Civ.P., requests for for admissions the proving City denied? 6,1995, City Springer Interrogatories, served the with
On October Admission, Requests Production and for to which the Requests for 18, 1995, City served the City responded. Springer On October Admission, City again responded. Amended for to which the Requests 9, City Requests that the denied for Admission Nos. Springer asserts 11, 12, 22, proved later through true testimony and which the deposition accepted District Court as uncon- granting Springer summary judgment. result, troverted facts in As a attorney Springer asserts that he incurred and costs. Attorney an explains he filed Affidavit of Fees the amount of 37(c), $2,187.00 pursuant M.R.Civ.P., any to Rule but did list costs previously with this Affidavit because he had “Bill submitted his of Costs” to the District Court pursuant MCA. Conse- quently, appeal, Springer on cross contends that he is entitled to attorney fees under Rule M.R.Civ.P. The responds not entitled to fees because the properly responded to all of Requests Admission. 37(c), M.R.Civ.P.,provides:
Rule If to admit party genuineness fails the of or any document requested truth matter as under Rule party if the requesting proves genuineness admissions thereafter matter, the document or the truth of the the requesting party may for an apply requiring party court order the other pay reasonable incurred in expenses making proof, including attorney’s reasonable fees. court shall make the order unless (1) objectionable was request finds held to Rule (2) 36(a), or sought impor- admission no substantial (3) tance, party or admit failing had ground reasonable (4) matter, party might prevail believe that the on there was good other reason for the failure to admit. argues that he proved following requests the truth through testimony: admission
REQUEST FOR ADMISSION 9: Admit that document 1 NO. placed plaintiff’s is a notice of abandoned vehicle that was Volkswagen September 24, 1992. Deny.
RESPONSE: REQUEST FOR ADMISSION NO. 11: Admit that notice vehicle contains a tow date of abandoned It appear RESPONSE: would that Document #1 Request attached to Plaintiff’s amended for Admission contains a *11 entry, unknown, the author of date handwritten of “tow of 09/25/92.”
REQUEST 12: FOR ADMISSION NO. Admit that Officer Becker other Bozeman Police Officer did not Jason or having his notify Plaintiff before vehicle towed. Deny.
RESPONSE: 22: Admit REQUEST Septem- FOR ADMISSION NO. that on 28, 1992, Volkswagen capable being Plaintiff’s 1968 van was ber driven. Deny.
RESPONSE: record, it does not appear review of the District Court Upon attorney for Springer’s request District Court addressed 37(c), M.R.Civ.R, findings Rule in its of fact and conclu- 26, 1996, any other separate entered June or in order.1 sions of law Nevertheless, testimony reviewing deposition after taken Court, the District we conclude as a matter by Springer and filed with Requests the truth of for Admission Nos. Springer proved of law Specifically, Bozeman denied. McManis testified 9, 12 and Abandoned Vehicle on placed that he a Notice of in his (see 24,1992 Request for Admission No. van on Springer’s 9). Further, testified that he did not send a McManis had towed but rather notifying him that his van been certified letter (see by telephone Request for only to contact attempted 12). prior having McManis testified that No. Admission towed, capable being if the he did not know Springer’s van whereas, undisputed deposition testi operated, Springer’s or driven opposite side of the street mony that he drove his van explains (see destroyed Request for Admission towed and before Bozeman 22). Furthermore, as a matter oflaw that none ofthe we conclude No. 37(c),M.R.Civ.R,preclude the District Court from Rule exceptions of attorney fees. reasonable awarding Springer dissent, opposition note, Bozeman’s memorandum in did the that while 1. We as M.R.Civ.R, is contained in the Springer’s request fees under Rule Attorney appeal, Springer’s fees could not be Affidavit District Court record stamp, (although copy, file is attached to without a located in the record response Affidavit is included appeal). that Bozeman’s Given brief appeal any further, failure of and, has not raised on because Bozeman the record Affidavit, purposes actually of our decision here file his we will assume appeal in the record on mistake filed but was not included the Affidavit was inadvertence. reminded, however, obligation to insure that the record on it is their Counsel are fulfilling regard, counsel in complete In this it will assist appeal and accurate. accuracy verifying completeness of the record if obligation and this Court appendices to the briefs as are attached copies from the record which of documents original stamp. copy file include, possible, clerk of court’s of the if *12 However, we disagree that response Bozeman’s Rather, for Admission No. 11 Request constitutes a denial. we admission, conclude that Bozeman’s an response and, therefore, attorney is not entitled to reasonable expenses or fees under 37(c), M.R.Civ.P., for proving Request Rule the truth of for Admission No. 11. we
Consequently, hold that the Court District abused its discretion attorney it failed to award Springer proving when fees for the truth 9,12 for Admission Requests Nos. and which Bozeman denied. Accordingly, we remand this issue to District Court for calculation attorney of the amount of reasonable to which is entry entitled and an appropriate order. conclusion,
In we affirm the District Court’s Sprin- Order granting ger summary However, judgment. we reverse that of District part July 11, 1996 Judgment awarding Springer Court’s long costs for distance calls. telephone Additionally, we remand for recomputation of whether the remaining disputed Sprin- issue costs awarded to July 11,1996 ger Judgment in the District Court’s are costs allowable under MCA. we remand for calculation attorney amount fees to which is entitled Rule 37(c), M.R.Civ.P.
Affirmed in in part, part reversed and remanded for further proceedings this Opinion. consistent with TURNAGE,
CHIEF JUSTICE JUSTICES HUNT TRIEWEILER concur. GRAY,concurring part
JUSTICE in in dissenting part. I concur in the Court’s opinion respect- on issues one and two and three, attorney fully dissent on issue which relates to fees under Rule My 37(c), procedural M.R.Civ.P. concerns about issue three are both and substantive. outset, Attorney
At the I observe that neither the Affidavit for Fees Court, in support referenced nor motion which such an filed, properly affidavit could be is of record in this case. While a copy cross-appeal of the Affidavit to his Springer attaches brief Court, copy and, indeed, in reflect “filed” does not date in physically is neither contained the District Corut record Affidavit Register accompanies nor referenced in Case that record. that an affidavit is sufficient in and of itself to serve assuming Even action, or official to a district court for an request as a motion M.R.Civ.P., I since agree with which would Rule assumption order,” my it to the court for an view party “apply requires failing properly cannot be held error award a district court here, requested is not on the record. attorney fees—which relief — response did file a in the District regard in this that the I note fees, may Springer’s “request” least, joint misunderstanding under the that the operated at parties, Notwithstanding parties’ implicit agree- had been filed. “request” record, however, it my matter not of view to address a ment we them on to district courts when “reverse” perform a disservice we Surely it must never, fact, presented to them for resolution. matters intended to be filed are duty to ensure matters remain counsel’s *13 the record. part filed and made actually attorney however, that a motion for fees assuming arguendo, Even of record 37(c), M.R.Civ.P, supporting affidavit were under Rule the case, not address the issue here. was I would in “motion” for action and it was in the prevailing party not addressed before the arguably had been attorney fees which bringing the Instead of the judgment entered in case. District Court for determination either the District Court’s attention “motion” to entered, after, Springer simply was to,'or soon the prior thereby entry judgment, beginning and served notice went ahead notice of City the could file its during of the time running the appeal. the District Court arguing that cross-appeal, then filed a him failing to award its discretion
abused that issue on the This Court addresses 37(c), Rule M.R.Civ.P the District Court not, provide did not I would since merits. very most, I the At the to determine matter. opportunity an with clarify- purposes for to the District Court remand this issue would my view, its merits. In addressing the “motion” on the record and ing appeal on which has not our role to address an issue simply is not it resolution. Further- to the district court for presented properly been failing district court abused its discretion more, to hold that a us here circumstances such as those before attorney fees under award unfair District Court. to the simply of the resolution the Court’s substantive disagree I with 12.1 Nos. 9 and for Admission regarding Requests attorney fee issue forth in process set three-step turn under the each in address will 1) there M.R.Civ.P., requires determinations 37(c), Rule 2) proved the truth admit; requesting party later a failure to was 3) matter; four extenuating of the none circumstances might exists which “excuse” failure to admit.
Request Admission No. 9 asked for an “docu- admission that placed ment 1 is a notice of abandoned vehicle that on plaintiff’s was [V]olkswagen fact, van. ...” The denied. In “document 1” not was placed Springer’s vehicle; was the notice which it was a Thus, City’s copy of that notice. while denial was somewhat technical, proper it was a denial. Nor did prove later 1” “document was the actual notice placed Springer’s van. deposition testimony placed McManis’ that he “a Notice ofAbandoned Vehicle” on van —on which the Court “proof’ relies as 1” proves “document was actual nothing of the sort. notice — Moreover, while is clear portions first of Rule M.R.Civ.P., are met regard City’s Request denial of my Admission No. it is view that the Court concluding also errs in extenuating that none of the circumstances which might excuse improper Specifically, denial was satisfied. extenuating second 37(c) circumstance listed Rule that “the sought admission importance” of no substantial and that certainly circumstance applies Request response for Admission No. 9. In to Request for Admission 1No. in the same of discovery Springer, set from admitted “on September 24,1992, or about a Notice of Abandoned Vehicle placed Volkswagen on Plaintiff’s 1968 addition, van.” In subsequent case, Final Pretrial Order in January 31, 1996, filed stated as an “AGREED UPON FACT” “[t]hat on about 24,1992, placed a Notice of Abandoned Vehicle was on the Plaintiff’s May 21, van.” The McManis was not taken until *14 agreed by parties it months after was all that a notice of abandoned placed vehicle on September 24, vehicle or about Thus, assuming 1992. even had improperly denied Request for Admission No. and that Springer proved had later truth of matter via deposition, sought McManis’ the “admission of no importance” substantial under Rule since had been and, indeed, incorporated admitted into the controlling Final Pretrial I Springer Order. would conclude that is not attorney entitled to fees regard with to Request for Admission No. 9.
I Admission Request would reach same result 12. No. request City police was to admit that no officer Springer notified having fact, “before vehicle In his towed.” The denied. 24,1992, notice abandoned vehicle contained a date tow view, September 25,1992. my Springer In that notice was to notice and, therefore, City properly denied prior towing to his vehicle refers, In regard, again No. 12. this for Admission Request There, erroneously, deposition. to McManis’ McManis my view him notifying he a certified letter Springer did not send testified towed,” merely attempted “had to contact that his van been but post-towing to events by telephone. testimony goes That to for Admission No. 12 Request not notice which pre-towing to relates. If I not issue. ad- summary, cross-appeal would address
In conclude, Court, it, I as does the dressing would regard Request fees with for Admission No. entitled to attorney fees for Admission regard Request entitled to with and is the Court that is entitled fees disagree No. I result, I 9 and 12. As a would Requests for Admission Nos. relating only one of regard entitled to fees with hold sought. Admission for which such are Requests four