### No. 80-161 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981



### W. D. MARTIN, a/k/a DON MARTIN and ANN MARTIN, his wife, Plaintiffs and Respondents,

GENE RANDONO, CAROL RANDONO, his wife and GREAT FALLS FOREST PRODUCTS INC.

## , a lft. corp. Defendants and Appellants.

Appeal from: District Court of the First Judicial District, In and for the County of Lewis and Clark. Honorable Gordon Bennett, Judge presiding. Counsel of Record: For Appellants: Joseph C. Engel, Butte, Montana For Respondents: C.F. Mackay, Anaconda, Montana

Submitted on briefs: January 8, 

### 1981 Decided: February 17, 1981 Filed:

# FEfi

# 17156):

ClerkMr. 

### Justice Frank B. 

### Morrison delivered the Opinion of the Court

# . This 

### is an appeal from a judgment of the DistrictCourt, Lewis & 

### Clark County, decreeing: (1)

### thatno damages be awarded defendants for lostrents from premises that

### were the subject of this action; (2) 

### thatno damages be awarded defendants for loss of sale of such premises; (3) 

### thatdefendants not be awarded attorney fees as the prevailing party inthis action; (4) 

### thatW. A. 

### Randono not be compensated for 

### timepersonally spent inrecovering the property. Defendants

were awarded costs totaling $1,524.57 and neither party appeals thatpart of the judgment. The causewas previously before this Court. Martin v. Randono (1978), 175Mont. 321, 573 P.2d 1156, contains a detailed discussion of the facts. In 1972, the plaintiffs filed an action to quiet title

on a twenty-two acre tractof land located seven

### mileseast of Lincoln, Montana. Titlewas claimed through adverse possession. Defendants, the Randonos and Great Falls Forest Products, Inc., (aRandono family owned corporation) counterclaimed contending ownership and sought damages forwrongful occupation of property. In 1975, the DistrictCourt decreed the plaintiffs had established 

### title to the tractof land by adverse possession. On appeal, Martin v. Randono, supra, thisjudgment was reversed and remanded for determination of damages on defendants' counterclaim. The District

### Court ordered an evidentiary hearing to establish the amount of damages resulting from plaintiffs' wrongful occupation. Hearings were held on March 9 and 

### 12, 1979, and on June 26, 1979.After receiving allevidence, the DistrictCourt entered 

### itsjudgment from which the defendants appeal. The following issues arepresented on appeal: 1. Did the District Court err innot awarding damages to defendants for lostrents? 2. Did the District Court err innot awarding damages to defendants for loss of sale? 3. Did the DistrictCourt err innot awarding defendants attorney fees? 4. Did the DistrictCourt err innot awarding W. A. Randono damages for time expended as costs of recovering the property. Plaintiffs conceded liability for damages, if any, for wrongful occupation, if their claim of adverse possession was not upheld. Since adverse possession was held not to 

### lie, Martin v. Randono, supra, plaintiffs became liable for any damages proven by defendants. Defendants' measure of damage 

### is governed by section 27- -1-318, MCA, which states: "Wrongful occupation of real property. The detriment caused by thewrongful occupation of real property 

# . . . is deemed to be the value of the use of the property for the 

### timeof such occupation, not exceeding fiveyears next preceding the commencement of the action or proceeding to enforce the right todamages, and the costs, if any, of recovering the possession." Defendants claimed for lostrental value. The property produced no income during the period inquestion. In an attempt toprove damage, W. A. Randono, testifying on behalf of the defendants, gave varying estimates of the rental value. In interrogatory answers dated 1975, the lostrental value was placed at$1,500 per year; inanswers to interrogatories submitted in 1979, the rental value was claimed tobe $3,000 per month, plus $50 to $100 a month for some cabins; atthe 

### timeoftrial, Randono gave estimates ranging from $4,000 per year to $10,000 per year. One could only speculate about what damage, if any, was suffered. InCruse v. Clawson (1960), 137 Mont. 439, 352 P.2d 989, this Court stated: 

### "

# . .

# . a. person may 

## - recover for loss of profits where 

### it 

### is shown that such loss 

### --- -- 

### --- is the natural and direct result of the actof the defendant 

## - complained of and that such amount 

### - 

### is certain and not specu

### -- lative.

### " (Emphasis added.) Defendants contend thatproof of damages must be speculative to a degree inthis case and that, therefore, the owner must be able to establishvalue. In support, defendants cite Pritchard Petroleum Co. v. Farmers Co-op Oil & Sup. Co. (1948), 121Mont. 1, 190 P.2d 55, for the proposition that the owner's opinion of rental value 

### iscontrolling. However, Pritchard 

### is distinguishable because the court determined only that an owner's testimony of the value of the use of property was sufficienttopreclude nonsuit by the opposing party. It should also be noted that inPritchard the owner 

### set forthonly one estimate of thevalue of the rental, not four, asdid W. A. Randono inthe instantcase. The burden of preponderance 

### is not necessarily satisfiedby offering some admissible evidence. Credibility 

### is a necessary ingredient of probative proof. We cannot say the trial courtwas clearly erroneous infinding defendants failed to carry their burden. Defendants claim they lost a sale of the land 

### as a result of plaintiffs' wrongful occupation. W. A. Randono testified that a "firm commitment" had been reached between himself and

a prospectivepurchaser, regarding a saleof the property but the sale failed because of plaintiffs' claim of ownership. Randono later testified, however, that they were only "negotiating the deal." The prospective buyer testified that henot surewhether the "deal" was to cover ten or twenty acres. Some testimony showed Randono and the potential buyer were considering a purchase 

### at $2,000 per acre. However, other testimony showed the land tobe worth less than $500 per acre at the time negotiations 

### werebeing conducted. Defendants admitted atthe evidentiary hearing that the entire twenty-two acre tract, which was the subject of this dispute, was later sold by defendants to a differentbuyer for $1,505 per acre. Given the evidence presented, defendants failed toprove that a salewas lostas theresult of wrongful occupation. Had

a salebeen lost, evidence exists to support a finding that defendants failed toprove damage. We turn now to defendants' claim for attorney fees. The general rule 

### is that inabsence of statuteor contract, attorney fees

### willnot be awarded. Bitney v. School Dist. No. 44 (1975), 167Mont. 129, 535 P.2d 1273; Nikles v. Barnes (1969), 153 Mont. 113, 454 P.2d 608. Defendants contend that attorney fees should be construed as

# ".

. . costs, if any, of recovering the possession [of real property]," pursuant to section 27-1-318, MCA, or inthe alternative such fees should be awarded pursuant to the equitable principle espoused inFoy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114. We decline to follow either contention inthis case. The rule

### iswell established inMontana. The statutory 

### term "costs" does not include attorney fees. Higgins v. Mont. Montana Hotel Corp. (1979)

## , , 592 P.2d 930, 36 St.Rep. 531. The court's equity power to award attorney fees was discussed 

### inJoseph RusselLRlty. co. v. Kenneally (1980), Mont. 

## , 605 P.2d 1107:, 37 St.Rep. 57. This Court recog-nized the lower court'sgeneral equity power tomake an injured I partywhole and that in1someisolated cases, attorney fees could properly come within that power. However, the court determined that such anlawardwas within the lower court's discretion (citingFoy V. Anderson, supra) and that absent an abuse of discretion, thb lower court's determination would stand. As inRussell -, Rlty. Co., supra, this Court finds no abuse of discretion by the lower court innot awarding attorney fees to the defendants. Finally, defendants contend thatW. A. Randono should be compensated for the 

### timehe spent inrecovering the property including 

### time spent inpreparing for trial. Defendants rely

on section 27-1-317, MCA, and section 27-1-320(1), MCA. Defendants' reliance upon these provisions 

### ismisplaced. Section 27-1-317, MCA, provides a measure of damages only where damages are not expressly provided for elsewhere inthe code. Section 27-1-318, MCA, governs measure of damages ininstances of wrongful occupation apd therefore, section 27-1-317, MCA, 

### is not applicable. Section 27-1-320(1), MCA, 

### is applicable only toconversions of personal property, which 

### is inapplicable to the case atbar. The personal 

### timeinvested by W. A. Randono 

### is not a "cost" asrequired by section 27-1-318, MCA, and therefore, not recoverable. The judgment of the DistrictCourt is affirmed.Weconcur:

Chief Justice