No. 93-364 

IN THE SUPREME COURT OF THE STATE OF MONTANA . ' -\7" 

1994 b. 

IN THE MATTER OF CERTAIN 

JUSTICE COURT EXPENSES 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert L. Deschamps 111, Missoula County 

Attorney, Michael W. Sehestedt, Deputy 

County Attorney, Missoula, Montana 

(for Missoula County Commissioners) 

For Respondent: 

Stacey Weldele-Wade, Milodragovich, 

Dale & Dye, Missoula, Montana 

(for Justice of the Peace David K. Clark) 

Submitted on Briefs: January 13, 1994 

Decided: April 19, 1994 

Filed: 
Justice William E. Hunt. Sr., delivered the opinion of the Court. 

Appellants Missoula County Commissioners appeal from an order 

of the Fourth Judicial District Court, Missoula County, directing 

appellants to pay certified office expenses for Justice Court, and 

attorney fees. 

We affirm. 

The issues on appeal are: 

1. Did the County Commissioners waive their right to appeal 

a certified claim by the District Court when they agreed to pay the 

amount? 

2. Did the District Court err in granting attorney fees and 

costs for the certification process for payment of Justice Court 

expenses? 

In August 1992, respondent Justice of the Peace David K. Clark 

requested approval of funds from the County Commissioners for 

employment of a temporary clerical assistant to replace the regular 

criminal clerk who would be unavailable for work for several days 

in September 1992. The County Commissioners refused to approve 

funds for temporary assistance, maintaining that the assistance was 

not necessary. Judge Clark submitted the claim for certification 

to Senior District Court Judge Jack L. Green pursuant to the rule 

established by this Court in State ex rel. Browman v. Wood (1975), 

168 Mont. 341, 543 P.2d 184. On August 31, 1992, Judge Green 

certified the claim as an actual and necessary expense which would 

be incurred by Judge Clark in the performance of his official 

duties. Judge Clark then hired a temporary clerk for 18 days on a 
contract basis. After receiving the billing statement for the 

services, he contacted the county personnel department informing 

them of the bill. 

On October 27, 1992, the expense claim had not been paid, and 

therefore, Judge Clark filed a petition for a contempt order 

against the County Commissioners for failure to pay the certified 

claim. The petition also included a request for attorney fees. In 

a written response to the petition, the County Commissioners agreed 

to pay the claim, stating that invoices for the claim were received 

and payment was pending from the Justice Court budget, and adding 

that if budget funds were inadequate to meet the claim, payment 

would be made from either a transfer from within the budget or from 

other appropriations. On December 9, 1992, after the parties 

submitted memorandum and affidavits, Judge Green entered the 

following order directing the County Commissioners to pay the 

expense claim based upon their willingness to pay the expenses: 

The Court finds that it is unnecessary at this point 

to address most of the issues raised in either the 

Petition or the Response. Specifically the question of 

whether this Court's certification is an order need not 

be addressed since the Commissioners have indicated a 

willingness to pay the expense of the contracted clerical 

assistance for Justice Court. 

The Court finds nothing improper in payment of these 

charges for services rendered to Justice Court out of the 

funds appropriated for Justice Court. If in fact the 

funds appropriated for Justice Court in this fiscal year 

are not sufficient to pay the reasonable and necessary 

expenses of Justice Court, then the Petitioner should 

request additional funds from the Commissioners. If the 

parties cannot agree at that time Petitioner may make 

another application to this Court for the approval of 

additional funds. 
The court also directed Judge Clark to submit his claim to the 

County Commissioners. The order did not respond to the attorney 

fee request. On December 18, 1992, Judge Clark filed a motion to 

amend the order to include attorney fees. The County Commissioners 

did not oppose the motion to amend, nor did they file a responsive 

brief. 

On January 1, 1993, Judge Green retired and Judge John S. 

Henson became the Senior Judge of the District. On January 11, 

1993, Judge Clark applied to Judge Henson to assume jurisdiction 

over the pending motion to amend, and also requesting that the 

court address the issue of attorney fees. On January 28, 1993, 

Judge Henson entered an order assuming jurisdiction of the case, 

granting Judge Clark's motion to amend to include attorney fees, 

and directing him to file a memorandum of costs of attorney fees 

along with a supporting affidavit. The County Commissioners were 

allowed ten days within which to object to the attorney fees after 

Judge Clark submitted his memorandum; if the County Commissioners 

objected to the costs then a hearing would be held to determine 

reasonable attorney fees. 

Judge Clark filed his memorandum on February 3, 1993, and on 

February 10, 1993, the County Commissioners filed a motion for 

reconsideration stating that they did not file a response brief to 

Judge Clark's December 18 motion to amend to include attorney fees 

because they believed that they had an agreement with Judge Green 

and Judge Clark that no briefs were to be filed. The County 

Commissioners requested that they be relieved of the January 28 
judgment because of excusable neglect pursuant to Rule 60(b), 

M.R.Civ.P. The County commissioners1 motion did not contest Judge 

Clark's submitted costs, but only disputed that an improper 

certification process was used to grant Judge Clark's expense 

claim. The motion requested that the January 28 order be vacated 

and a hearing set for Judge Clark's December 18 motion to amend, or 

that the court enter an order denying Judge Clark's requested 

relief. 

On April 7, 1993, Judge Henson entered his opinion and order 

finding that the County commissioners did not demonstrate excusable 

neglect and finding that the claim was properly certified by Judge 

Green on August 31, 1992. Judge Henson also found that the County 

Commissioners failed to object to the submitted attorney fees and 

costs, and therefore, granted the submitted fees and costs. The 

County Commissioners appeal. 

ISSUE 1 

Did the County Commissioners waive their right to appeal a 

certified claim by the District Court when they agreed to pay the 

amount? 

The parties argue that we must decide this issue by applying 

the rule in Browman for resolution of an actual or potential 

conflict of payment of a justice court claim between a board of 

county commissioners and justice court by the certification of the 

senior district judge that such claim is an actual and necessary 

expense of the justice court. However, we hold that the issue in 

this case is resolved by the promise of the County Commissioners to 
pay the claim by their communication to Judge Green and then by 

taking no further action based on their commitment. 

We have held that an appellant's offer of a judgment and the 

acceptance of the offer render the issue of liability moot on 

appeal. Weston v. Kuntz (1981), 194 Mont. 52, 635 P.2d 269. 

Appellants who fail to object to an alleged error are precluded 

from raising the issue on appeal. Barrett v. Asarco, Inc. (1990), 

245 Mont. 196, 799 P.2d 1078. In the present case, not only did 

the County Commissioners agree to pay the claim, they also failed 

to object to the District Court's order to pay the claim and took 

no further action to challenge the claim. We hold that the County 

Commissioners waived their right to appeal. 

ISSUE 2 

Did the District Court err in granting attorney fees and costs 

for the certification process for payment of Justice Court 

expenses? 

The County Commissioners argue that the District Court erred 

by granting Judge Clark's request for attorney fees and costs 

because the attorney fees and costs were the result of an erroneous 

certification process for payment of Justice Court expenses. 

The County Commissioners first had notice of the motion to 

amend for attorney fees on December 18, 1992, and also on 

January 11, 1993, when Judge Clark applied to Judge Henson to 

assume jurisdiction over the pending motion to amend. The County 

Commissioners failed to object or file a brief within ten days. 

Pursuant to Rule 2(b) of the Uniform District Court Rules, the 
motion for attorney fees was granted by Judge Henson on January 28, 

1993. 

Because attorney fees were not objected to before the District 

Court, they cannot be raised for the first time on appeal. 

The order of the District Court is affirmed. 

Justice 

We concur: 

/ PI<^ Chief Justice