### No. 80-135 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

BOZEMAN PARKING COMMISSION, Plaintiff and Respondent,

FIRST TRUST CO. OF MONTANA, as Trustee for JEAN M. STIMSON, Trust, Defendant and Appellant.

Appeal from: District Court of the Eighteenth Judicial ~istrict, In and for the County of Gallatin. Honorable 

### W. W. Lessley, Judge presiding. counsel of Record: For Appellant: Bolinger, Higgins and Andes, Bozeman,Montana Far Respondent: Berg, Morgan, Coil and Stokes, Bozeman, Montana

Submitted on briefs: August 13, 1980 Decided: 

## SEP

## 9

# -1984 SEP9

# - 1980 Filed: 

# -Mr. JusticeJohn C. Sheehy delivered the Opinion of the Court.

This 

### isan appeal by FirstTrust Company of Montana, (FirstTrust), as trustee for Jean M. Stimson Trust from 

### a judgment of condemnation granted toBozeman Parking Commission, (Bozeman)

## , by the DistrictCourt, Eighteenth Judicial 

### ~istrict, GallatinCounty, and from an order of thatcourt denying necessary expenses of litigation. Wehold thatFirstTrust is entitled torecover 

### its necessary expenses of litigation and that the judgment of condemnation should stand. Plair~tj ff 

### is a municipal entity created by the City of Bozeman, Montana, and endowed by statutewith the power of eminent domain. Section 7-14-462(.2), MCA. FirstTrust, as trustee, 

### is the owner of certain real property in the original town 

### sitewhich Bozeman seeks to condemn for the establishment of a public off-street parking facility. Wewillfirsttreatthe issue raised by FirstTrust that the DistrictCourt should have granted 

### itsmotion todismiss the action entirely. After thepreliminary condemnation order was entered by the DistrictCourt, commissioners 

### were appointed to determine the value of the taking. They returned their report on August 21, 1979, determining thatFirstTrust should be paid $155,000. The clerk of the 

### District Court mailed to the attorneys of record for theparties a copy of her minutes for August 21, 1979, which statedwith respect to their findings: "The verdict was given to the Clerk with Orders to filesame, the Commissioners 

### were excused by the Court and stated that they would be mailed a check for their services." No notice of the filing of the award, together with a true copy of the commissioners' report, was served by the clerk upon the parties inthe same manner as a summons asrequired by section 70-30-303(1), MCA. Section 70-30-304 (1) 

## , MCA, provides that the time for either party to appeal iswithin thirty days after the service upon the appealing party of the notice of the filing of the award. Since the servicerequired by statute

### was not made in this case, the triggering incident for starting the 

### timerunning for appeal from the commissioners' award

never occurred. No judgment based upon the commissioners' report had been entered by the DistrictCourt when, on October 23, 1979, First Trust filed 

### itsmotion to dismiss the action in

### its entiretyupon the contention that First Trust had not been paid the amount of the commissioners' award, and an execution could not be made upon the municipality. The DistrictCourt held a hearing on the motion to dismiss and on December 7, 1979, entered 

### its findings and conclusions, 

### inessence deciding that no finaljudgment had occurred in the case because of the failureof the District Court clerk to send a notice of the commissioners' award, together with a true copy of the report, upon the parties in the manner required by section 70-30-303(1), MCA. As a result of the hearing, however, the notice of filingof the report of the commissioners was duly served by the District Court clerk on December 11, 1979. Thereafter, no appeal 

### was taken within thirty days by either party. It

### is the contention of FirstTrust that the thirtyday period toappeal the commissioners' verdict began to run upon the entry of the report and the actual notice thereof to the parties on August 21, 1979. The applicable statutes, however, are not open to that construction. Itis the duty of the District Court clerk, as

### we have said, tonotify allinterestedparties that the report has been filed by a notice accompanied by a true copy of the report, which must be served upon the interested parties in the same manner 

### as

a summons. Section 70-30-303(1), MCA. Immediately following that section, with respect to an appeal to the District Court from the commissioners1 assessment, section 70-30-304 (1) 

## ,MCA, provides inpertinent part: 

# ".



# . . Such appeal must be taken within the period of 30 days after the service upon a~~ellant of the notice of the filina of 

### -- 

### -- - 

## the award by the service of notice of such appeal upon the opposing party orhis attorney



# . . .I1 (Emphasis added.) The only statutory provision for service of the commissioners' award 

### is that found in section 70-30-303(1), MCA. Section 70-30-304, MCA, can have no reference to any nonstatutory method of service, nor even to actual knowledge of the parties, that the comissionersl award has been filed. The statutorypurpose of requiring the clerk to

serve the notice of the commissioners1 award is toprovide a definitely ascertainable 

### timecontained inthe records of the DistrictCourt which marks the startof the time for appeal. When the statutoryprocedure 

### isproperly followed, nothing 

### is lefttochance as to the startof the running of the 

### time for appeal. If actual notice or nonstatutory service of such notice is to be regarded as triggering the 

### time for appeal, too much 

### is leftto chance and to the subjective impressions of the parties or their attorneys. In this case, therefore, the time for appeal from the commissioners1 award did not begin to run until the notice served by the clerk was properlycompleted on December 11, 1979. On the date that First Trustmoved to dismiss the appeal, October 23, 1979, thecommissioners' award 

### wasmerely filed and nothing statutorilyhad occurred to trigger the running of the 

### timefor appeal. The District Court properly determined that no finaljudgment was then pending. There was no legal duty upon Bozeman atthat

### time tomake payment toFirstTrust. It 

### is only when a condemnor has failed tomake payment of a finaljudgment that the condemnee isentitled to an order of dismissal of the actionunder section 70-30-308(2), MCA. The second issue 

### iswhether FirstTrust 

### is entitled to the necessary expenses of litigationwhich it incurred in this condemnation case. There isno dispute between the parties that Bozeman made a final offer toFirstTrust of $110,000 and a conditional short-term offer of $140,000. The eventual award as


### we have statedwas $155,000. On December 18, 1979, FirstTrust filed and served its motion for taxation of costs and attorney fees in the condemnation litigation. When thismotion was filed, the thirtyday time for appeal was stillrunning since the notice by the DistrictCourt clerk of the report of the commissioners

was served on December 11, 1979. Moreover, no final judgment

or order of condemnation had been entered. The District Court on January 23, 1980, denied the motion for taxation of costs and attorney fees. On January 24, 1980, the ~istrict Court entered 

### its finalorder of condemnation inthe case. The final order noted thatBozeman had paid and deposited with the court clerk allsums due by reason of the commissioners' award and that no appeal from the assessment of the commissioners' had been taken within thirty days. ~otice of entry of judgment 

### was served on the same day by the clerk. On January 25, 1980, FirstTrust, without renewing 

### itsmotion to tax costs and attorney fees after the entry of finaljudgment, filed a written offer of proof of the costs which were incurred in the litigation. The DistrictCourt held a hearing on the written offer, and on February 

### 7, 1980, accepted infullasreasonable and necessary expenses of litigation the items 

### set forth therein. The condemnee 

### isentitled to his necessary expenses of litigation "in the event of litigation and when the private property owner prevails by receiving an award inexcess of the final offer of the condemnor." Section 70-30-305(2), MCA. When FirstTrust filed 

### itsmotion on October 23, 1979, to tax costs and attorney fees, 

### itwas not entitled to

a judgment on the award of the commissioners because the time for appeal had not began to run on the day that the motion was filed. The District Court, therefore, properly denied the motion. However, it is the contention of Rozeman that FirstTrust isnot entitled inany event to attorney fees and costs. Bozeman reads section 70-30-305, MCA, tomean that an appeal from the commissioners' award must be perfected by one of theparties, and thereafter, within thirty days the condemnor must submit to condemnee a written final offer of judgment. If these events do not occur, Bozeman contends thatthen there isno right toattorney fees and expenses of litigationunder section 70-30-305, MCA. If this contention 

### were accepted, any condemnor could avoid the payment of necessary expenses of litigation to the condemnee simply by not appealing from a commissioners' award. This cannot be the result inlight of the constitutional provision in 1972Mont. Const., Art. 11, 

### S29, which provides with respect to eminent domain, inpart:

# ".

.

# . In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the courtwhen the private property owner prevails." The legislature, inadopting section 70-30-305(2), MCA, used nearly the same language as the constitutional provision, providing: "In the event of litigation and when the private property owner prevails by receiving an award inexcess of the final offer of the condemnor, the court shall award necessary expenses of litigation to the condemnee." Under the constitutional clause, there areonly two conditions necessary to entitle the condemnee to litigation expenses. They are (1)litigation, and (2) the private property owner prevailing. The legislature simply explained this constitutional provision in section 70-30-305(2), MCA, when it provided that the private property owner prevailed when he received an award inexcess of the finaloffer of the condemnor. Whether we look atthe statuteor the constitutional provision, no simpler statement of the condemnee's right to litigation expenses can be made than: if he prevails inlitigation, he isentitled torecover his expenses. Those conditions are fully

### methere, and if on remand the condemnee

moves the DistrictCourt for such necessary litigation expenses, itwillbe entitled to those expense amounts already accepted by the District Court inthe offer of proof. Thus, the constitutional intent

### willbe served and the evident legislative intentalso. FirstTrust raises a constitutional issue claiming that section 70-30-305, MCA, isunconstitutional if the condemnee's right to litigation expenses was limited to those situations where an appeal had been taken from the commissioners' award. In view of our holding foregoing, there is

no need toreach the constitutional issue. In any event,the constitutional issue isnot raised properly under Rule 38, M.R.App.Civ.P. One final issue raised by FirstTrust requires discussion. On November 

### 1, 1979, Bozeman deposited with the clerk of the District Court itswarrant inthe amount of $156,860, representing the commissioners' award plus interest. The warrant was made payable to FirstTrust. FirstTrust's contention 

### is that the warrant was not a deposit of money 

### 170 under section 79.-30-308, MCA. Atthe 

### timeBozeman deposited the warrant with the DistrictCourt, there

### was no legal obligation upon 

### it as a condemnor to do so. No finaljudgment had been entered, as


### we have previously noted, and the only purpose of a deposit inthis case atthat time would be tomake available to FirstTrustmonies which could be used to satisfy a final judgment under section 70-30-308, MCA. FirstTrust 

### is correct that section 70-30-308, MCA, requires thatmoney be deposited instead of a warrant, but here thatpoint 

### is unimportant, Atthe time of the deposit of the warrant with the DistrictCourt clerk, First Trust was not entitled to payment because a finaljudgment had not been entered. There 

### isno requirement for a deposit of money with the DistrictCourt under our statutesdealing with eminent domain until it isnecessary that the condemnor make payment of a finaljudgment, with one exception. The exception iswhen the condemnor seeks an interlocutory order putting the condemnor inpossession of the condemned lands. When that occurs, the provisions of section 70-30-311, MCA, come intoplay and the condemnor must deposit with the District Court for the condemnee the amount of compensation claimedby him inhis answer, or the amount assessed by the commissioners or by the jury, 

### as the case may be. Here Bozeman had not sought an interlocutory order putting it inpossession of the lands claimed. Therefore, the deposit of a warrant instead of money with the clerk of the DistrictCourt inthis case did not cause any prejudice toFirstTrust. The judgment of the District Court granting condemnation of this case 

### is affirmed. The order of the DistrictCourt denying necessary litigation expenses to the condemnee 

### is also affirmed, but the cause isremanded to the District Court so that FirstTrust may have an opportunity tomove again for taxation of 

### itsnecessary litigation expenses before the District Court. See Statev. Helehan, cause no. 80-60, decided August 27, 1979, in this Court. Costs of appeal shall be borne by each party. This case is a good example of the legal confusion which resultswhen attorneys involved in special proceedings, such aseminent domain, do not carefully follow the statutes provided. Atevery stageof difficulty before the District Court, the answer lay inthe provisions of the statutes. Had they been followed, there had been no need 

### for this appeal.

Weconcur: Justice