605 P.2d 176 | Mont. | 1980
No. 14971
IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, ACTING BY AND THROUGH THE DEPARTMENT OF HIGHWAYS OF THE STATE OF MONTANA,
Plaintiff and Appellant, -vs- WILLIAM K. BURLINGAME et al., Defendants and Respondents. Appeal from: District Court of the Fourth Judicial District, Honorable John Hensen, Judge presiding. Counsel of Record: For Appellant: Terry Clausen, Highway Legal Dept., Helena, Montana For Respondents: Claude Burlingame, Plains, Montana Submitted on briefs: November 7, 1979 Decided: jAfi - : ! 33i; 4 - P . . Filed: . J - [*] " f F ' i' , Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is the second appeal of the matter previously before this Court in Department of Highways v. Burlingame , 597 P.2d 51, 36 St.Rep. 603. The (1979) Mont. facts may be briefly stated as follows.
The Department of Highways brought this action in the District Court to condemn 1.32 acres of defendant's property in Missoula County. Prior to the jury trial in District Court, plaintiff had made a number of offers to purchase defendant's property, all of which were refused. Plaintiff's last offer was $43,100 plus necessary expenses. The jury, however, returned a verdict awarding the defendant only $39,750 for the value of his property. The District Court awarded the defendant an additional $6,247.93, representing $1,536.36 in costs and $4,711.57 for attorney fees.
In the first appeal of this case, plaintiff challenged that portion of the judgment awarding costs and attorney fees to the defendant. This Court noted that plaintiff's offer of $43,100 exceeded the jury award of $39,750. There- fore, this Court held that defendant did not prevail and that " [tlhat portion of the judgment awarding attorney's fees is reversed." (Emphasis added.) Department of High-
, 597 P.2d 51, 56, ways v. Burlingame (1979), - Mont. 36 St.Rep. 603, 609.
The Department of Highways subsequently moved the District Court to enter an amended judgment awarding neither attorney fees nor costs to the defendant. The District Court denied this motion, stating that the Supreme Court's decision in Burlingame did not intend to reverse the District Court's award of costs, because the holding in Burlingame
r e v e r s e d o n l y t h a t p o r t i o n o f t h e judgment d e a l i n g w i t h a t t o r n e y f e e s .
P l a i n t i f f now a p p e a l s from t h e D i s t r i c t C o u r t ' s d e n i a l o f t h e motion t o amend. The s o l e i s s u e on a p p e a l i s whether t h e D i s t r i c t C o u r t e r r e d i n r e f u s i n g t o amend i t s judgment s o a s t o deny d e f e n - d a n t h i s a t t o r n e y f e e s and c o s t s .
A p p e l l a n t a r g u e s t h a t because t h i s C o u r t h a s a l r e a d y d e c i d e d t h a t t h e landowner d i d n o t p r e v a i l a t t h e t r i a l o f t h i s m a t t e r , t h e landowner i s n o t e n t i t l e d t o e i t h e r a t t o r n e y f e e s o r c o s t s under s e c t i o n 70-30-305(2), MCA, which p r o v i d e s :
" I n t h e e v e n t o f l i t i g a t i o n and when t h e p r i v a t e p r o p e r t y owner p r e v a i l s by r e c e i v i n g a n award i n e x c e s s of t h e f i n a l o f f e r of t h e condemnor, t h e c o u r t s h a l l award n e c e s s a r y e x p e n s e s of l i t i g a t i o n t o t h e condemnee."
S e c t i o n 70-30-306(1), MCA, p r o v i d e s : " N e c e s s a r y e x p e n s e s of l i t i g a t i o n a s a u t h o r i z e d by 70-30-305 mean r e a s o n a b l e and n e c e s s a r y a t t o r - ney f e e s , e x p e r t w i t n e s s f e e s , e x h i b i t c o s t s , and c o u r t c o s t s . "
S i n c e d e f e n d a n t d i d n o t p r e v a i l , a p p e l l a n t a r g u e s t h a t d e f e n d a n t w a s n o t e n t i t l e d t o h i s " n e c e s s a r y e x p e n s e s of l i t i g a t i o n . " T h e r e f o r e , he was n o t e n t i t l e d t o e i t h e r a t t o r n e y f e e s o r c o s t s , and t h e D i s t r i c t C o u r t e r r e d i n denying a p p e l l a n t ' s motion t o amend i t s judgment t o t h a t e f f e c t .
D e f e n d a n t ' s r e s p o n s e t o t h i s argument i s t h a t t h i s C o u r t r e s o l v e d t h e same q u e s t i o n i n f a v o r of t h e landowner i n t h e f i r s t a p p e a l , and t h a t o u r o r i g i n a l d e c i s i o n i s t h e law o f t h e c a s e and i s c o n t r o l l i n g upon t h i s C o u r t .
"The g e n e r a l r u l e i n Montana i s t h a t where a de- c i s i o n h a s been r e n d e r e d by t h e Supreme C o u r t on a p a r t i c u l a r i s s u e between t h e same p a r t i e s i n t h e s a m e c a s e , whether t h a t d e c i s i o n i s r i g h t o r wrong, such d e c i s i o n i s b i n d i n g on t h e p a r - t i e s and t h e c o u r t s and c a n n o t be r e l i t i g a t e d i n a s u b s e q u e n t a p p e a l . " B e l g r a d e S t a t e Bank v .
, 578 P.2d Swainson (1978), Mont. 1166, 1167, 35 ~ t z p . 5 4 9 , 5 4 9 ~ . There is one exception to the above rule, as articu-
, 573 P.2d lated in State v. Zimmerman (1977), - Mont. 174, 178, 34 St.Rep. 1561, 1566, however, that exception is inapplicable to the facts in this case. Defendant argues that the holding in our first opinion reversed the award of attorney fees but not the award of costs, and that appellant is preempted from raising the issue of costs in the present appeal. In support of this argument, defendant points to our statement of the issue and our holding in the first appeal :
"In an eminent domain proceeding where the Dis- trict Court found the State's final offer was $43,100 and the jury verdict was $39,750, was it error for the District Court to award attor- ney fees and costs? --- "We find the trial court erred in awarding - at- torney's fees in this case because the private property owner did not prevail as required by law." Burlingame, 597 P.2d at 52. (Emphasis added. ) "That portion of the judgment awarding attor- ney's -- fees is reversed." Burlinqame, 597 P.2d 56. (Emphasis added. )
From this language, defendant argues that this Court has already decided the same issue, whether or not defendant was entitled to costs against the appellant in our first opinion, and that we are precluded from considering it in this appeal under the "right or wrong" rule stated in Swainson because our former decision constitutes the law of the case.
The short answer to the defendant's contentions is that the language quoted above did not resolve this question in favor of the landowner in the first appeal. Our previous opinion did not decide that the defendant was entitled to costs; instead, this Court inadvertently failed to state a conclusion with respect to costs. Therefore, since no decision was rendered on this particular issue in our previous opinion, the rule in Belgrade State Bank v. Swainson, supra, does not apply.
We now decide in accordance with appellant's reasoning that the defendant was not entitled to costs under sections 7 0 - 3 0 - 3 0 5 (x') and 7 0 - 3 0 - 3 0 6 (2), MCA. Therefore, we reverse the District Court's order denying appellant's motion to amend and direct the District Court to enter a judgment which does not award the landowner either attorney fees or costs.
. 1 , k' , Justice Chief Justice Justices
Mr. Justice John C. Sheehy stands on his dissent in the original opinion.
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