*1
WAGNER,
JEANNE
CLOSE
Plaintiff/Appellant,
CORPORATION
EMPIRE DEVELOPMENT
d/b/a
Sign
Defendant/Respondent.
co.,
No. 87-047.
on Briefs June
Submitted
Sept.
Decided
Rehearing
Denied Oct.
MR. McDONOUGH dissented JUSTICE concurred. HUNT and SHEEHY which MR. JUSTICES Babich, Boschert, Billings, Boschert, Rosemary C. Boschert and Bennett, Moines, Iowa,-for Nicherson, Bennett Mark W. Des plaintiff appellant. Goe,
Brown, Hoven, Helena, Kaleczyc, Berry H. for de- Oliver respondent. fendant and ACLU, Bozeman, Ungar, B. Doggett,
Steven Janice Frankino MHRC, Helena, for amicus curiae. *2 Opinion
MR. JUSTICE Court. HARRISON delivered the of the appeal This case is before the Court on from an order of Dis- trict Court of the Thirteenth District in and Yellow- Judicial for County, stone plaintiff’s Montana. The District re- Court denied quest attorney’s for contingency fees and costs because of a fee agreement. Plaintiff’s judgment motion to alter or amend also was denied. We affirm. undisputed.
The facts Plaintiff/appellant Wagner are Jeanne filed employment charge against defendant/respondent discrimination Empire Development Billings Sign Company claiming d/b/a Billings pay equal pay equal Neon had to failed for Be- work. Wagner cause comply failed to hearing with orders of the examiner appointed by Commission, Rights hearing Human scheduled January 14, 1983, for 28, 1983, was not held until two November years and charge Nearly year thrée months after the was one filed. after hearing, Rights the Human Commission issued its final or- $45,749.43 der awarding Wagner benefits, pay, By and interest. stipulation parties, petition by of the Billings Neon for review of provided final order was dismissed and the final settlement that Billings $48,990.20 pay Neon would in two installments. payments timely These made. order, Wagner prevailing
Pursuant to the Commission’s was party. Rosemary A attorney, fee with Bos- chert, provided any % of award Boschert was receive 33 Vs $16,329.10 from received Neon. tendered Bos- pursuant requested chert agreement. Subsequently, Wagner to this attorney’s provided 49-2-505(4),MCA, fees part for Section evidentiary Montana hearing Human Act. An held and was request. Wagner appeals. denied the The issue is whether it was error for the District Court attorney’s 49-2-505(4), MCA, provides award fees. Section prevailing party hearing in a “[t]he a contested [in case] may bring an attorney’s action District Court for fees. The court may prevailing party attorneys’ its discretion allow the at 42 fees.” This statute is similar to the federal found statute that, court, provides U.S.C. Section “the in its discretion 1988 which attorney’s may party fee allow ... a reasonable part [,]” proceeding costs sections of of its in a to enforce certain 42, U.S.C., Title and Title 20 U.S.C. purpose prevailing parties in awarding attorney’s fees to pro- rights litigation judicial
civil access is to ensure “effective to the Hensley v. 429, n.2, Eckerhart cess.” 461 U.S. S.Ct. n.2, 1933, 1937, 40, 48, Generally 76 L.Ed.2d n.2. there attorney’s litigants, that without an for successful merito- brought. A rights litigation rious often not be delicate civil would awarding balance must be struck between who suc- efforts, compensation cessful full and awards that are unrea- sonably high. previously interpreted
We have not adopt ignore applied free standard Federal and thus are or Section 1988. awarding courts when fees under U.S.C. arising applies to cases under The Ninth Circuit abuse of discretion (9th 1981), Smiddy Varney 665 F.2d U.S.C. Section 1988. Cir. (9th 1979), 261, 268; Sethy v. County Alameda Water District Cir. *3 action, 894, 602 Section there Although F.2d 897. this is not a 1988 analysis. in apply no reason not our this standard discretion, determining “In the whether trial court abused its the question agrees the trial reviewing is not with whether the court, but, rather, its discretion the trial court in the exercise of did arbitrarily employment judgment or act of conscientious without the circumstances, ignor- reason, in the exceed the bounds of view of all ing recognized principles resulting injustice.” in substantial 348, 1013, Ayer 345, Carkeek v. 613 P.2d 1015. 188 Mont. of on issue contin agreement The circuit courts are not to ade gent agreements statutory awards as it relates fee vis-a-vis quate argument a compensation. reject the and reasonable We agreement automatically precludes of the stat contingent fee award ordinarily an utory plaintiff recover at fees. should “[A] such an torney’s special render fee unless circumstances would Eckerhard, 429, unjust.” Hensley supra 103 S.Ct. at v. at award ‘special 1937, private agreement is not itself L.Ed.2d “A fee 76 at 48. unjust. Sar award of fees circumstances’ which would render an v. geant Hammer Rios (1st 645, Sharp 1978), v. 649.” Cir. 579 F.2d (9th 1985), 1404, result can Such a limitation Cir. 769 F.2d 1408. overemphasis importance upward an of and exert an fees, pressure reducing litigant’s opportunity on thus Singer compensation Cooper for full v. rights injury. for his civil See (10th 1983), (en 1496, banc), Cooper Cir. 719 F.2d 1503. agreement preclude said that while a fee award does attorney’s fees, of obligation “the actual fee within the must reside ” Cooper, confines of the term ‘reasonableness.’ at 1504. Addition ally, the Ninth rule Circuit has said that “fee should be the awards (9th 1981), exception.” rather than the Teitelbaum v. Sorenson Cir. 1248, 1251; Ackerley City Salem, F.2d Communications v. Or. (9th 1985), 1394, Cir. 752 F.2d requires lawyer Tenth Circuit contingency his fee reduce if greater statutory Cooper, supra. it is than the fee. The Eleventh Circuit statutory ceiling. does not treat fee as a Pharr Hous- (11th ing 1983) Authority 1216, appears Cir. F.2d required pay defendant in Pharr was the difference between the statutory contingency fee and the fee. The Third Circuit allows greater statutory counsel to receive the contingency fee or the If contingency however, fee. greater, plaintiff pay fee is must difference Paper between the two fees. Sullivan v. Crown Board Co. (3rd. 1983), Cir. F.2d 668-69. The Fifth Circuit does not permit plaintiff’s counsel receive a fee excess of con- tingency arrangement. Georgia fee Highway Express Johnson v. (5th 1974), Cir. 488 F.2d 718. The Second Circuit holds that a claim for services rendered contingency under a fee must be deemed satisfied to the extent counsel receives an award under op- 1988. The court reasoned this result allows “citizens the portunity to rights recover it what costs them to vindicate [their] (2nd Wheatley 1982), court.” v. Ford Cir. 679 F.2d case, In the instant payment counsel has received for her ser contingency Although vices under the fee with contingency per warranting special se is not a circumstance fee, statutory denial of the Wagner freely contracted with coun sel for party figure. amount each considered to be Further, appears it vindicating recovered the cost rights in grant court. The circumstances this case indicate that *4 Boschert grave more than for a which she would be contracted injustice Billings Neon, to resulting in a windfall to Boschert. “[T]he rights civil re provide statutes should be windfall not construed to Ford, for attorneys.” Wheatley supra, coveries successful at v. The District found hearing Boschert a continu- caused 374 14, 4, by failure to January
anee from until March 1983 provide discovery relating wages to and claimed documents by hearing again the Human was continued because of The Rights ultimately came budget The matter Commission’s difficulties. 28, 1983, hearing subsequently for the Human on November and pay Wagner to Commission ordered $45,749.43 benefits, pay, period Feb- and interest for the of 18, 28, ruary through the been held Nov. 1983. Had 14, 1983, January have been damages awarded to would $28,005.31. $17,000 the because of Thus realized more than $7,000. delay, the extent of Boschert benefited to statutory by fee. receiving would one-third of the benefit further at- support There is no Boschert’s claim for additional evidence torney’s competent as the present fees. She did evidence not provide guid- spent pursuit hours She did not she of claim. could proper ance from which fee court as to calculation testify be as to the exact nature of determined. Boschert did performed. work any determining rea- logical starting point for trier fact the services attorney’s fee is “the and character of
sonable amount labor, Talmage v. rendered” and “the time trouble involved.” 419, 421; (1983), 410, 412, v. Gruss Johnson 202 Mont. 658 P.2d (1981), 165, 266, 268; 168, Se- Tindall 635 P.2d and First 195 Mont. 422, 429, curity Bank 169 Mont. Bozeman v. Tholkes P.2d establishing a rea- by Other factors the court in to be considered sonable fee include: litigation in which the ser- importance character
“[t]he prop- rendered, money vices of the the amount of or value for, affected, experience erty to called professional skill and be attorneys . . . standing profession character and their attorneys may be consid- result secured the services of important determining ered their value.” as an element Tindall, supra Johnson v. at 635 P.2d at “within these factors Although required look at all largely attorney fees discre- guidelines, these the amount fixed tionary Ayer, supra at with the District Court.” Carkeek P.2d at 1015. Court discre- clearly gives the District Wagner’s evidence
tion to award fees. There is sufficient efforts, reasonably compensated adequately counsel was *5 shifting whether or not reference is made federal fee statutes. We do not find failing the District Court abused its discretion in statutory attorney’s fees.
The order of the District is affirmed. CHIEF
MR. JUSTICE TURNAGE and MR. JUSTICES WEBER and GULBRANDSON concur. McDONOUGH, dissenting:
MR. JUSTICE I dissent.
Wagner’s adequately reasonably compen- counsel has been and sated her Who efforts. has not been reimbursed for her reasona- attorney ble by fees is majority opinion. She is the loser disputes Wagner No one prevailing party is the the discrim- ination Wagner separate action. brought has this action for her at- torney pursuant fees to Section of the Montana Human (Wag- Act. prevailing party Such section allows the ner) attorney paya- fees the District Court’s discretion by party. is, ble question Court, the other here did the District awarding any fees, not attorney simply reimbursement for abuse did, its discretion? It and its order should be and reversed the cause remanded.
The District Court’s main in its awarding reason order for not fees Wagner adequately compensated was in the settlement amount and is, effect, entitled additional fees. This a deter- Wagner mination that enough received in the settlement to cover damages actual attorney fees. It must be remembered the settlement of the voluntarily stipulated discrimination action was parties be the negotiations after and the action dismissed with prejudice pursuant Wagner gave Empire thereto. a release of all her damages in money. parties consideration of the determined worth; what all damages They past, present and future. specifically excluded from the Wagner’s settlement claim for attor- ney fees. The order of arbitrarily the District Court included such fees the settlement.
I am attorney aware that Wagner between and her was attorney Wagner paid has on the agreement, attorney-client agreement basis of that but the should bearing have no on this case or not as to whether should recover Empire. might reasonable fees from under certain of such fees or the amount be relevant to determine circumstances amount is reasonable. what for a reasonable for here reimbursement
What has asked multiplied by a by attorney reasona- expended amount of hours she, Wagner, paid which is less than hourly compensation rate ble agreement. contingent fee under the Empire of the fact that import Court and is made Great supply Empire’s a statement Wagner’s attorney did not lost, hearing in its prior damages wages to an administrative postponed allegedly supply failure to discrimination action. Such Empire stipulated thereby damages. increased the negoti- agreed to the amount of to the settlement and *6 reargue amount in this action such be allowed to ated. should not supply part Wagner’s If failure on for fees. this spent amount time effect on the such information had an considered, case, but not otherwise. be discrimination it can not the be rule types of cases should Fee awards in these party, to the attorney fees exception. to award Failure unjust and an abuse given is Wagner, of the reasons on the basis discretion. foregoing concur HUNT and SHEEHY
MR. JUSTICES dissent.