NO. 96-250 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

ANNETTE JONES, 

Plaintiff and Appellant, 

CITY OF BILLINGS, an 

Incorporated Municipality, 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstoae, 

The Honorable Russell C. Fagg, Judge presiding. 

COUNSEL OF RECORD: 

FOK Appellant: 

Paul E. Toennis; Oliver, Graves, Toennis & 

Gustafson, Billings, Montana 

patrick E. Kenney; Kenney Law Firm, 

Billings, Montana 

For Respondent: 

K. D. Peterson; Peterson & Schofield, 

Billings, Montana 

Submitted on Briefs: August 29, 1996 

Decided: November 21, 1996 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court. 

Annette Jones (Jones) appeals from the order of the Thirteenth 

Judicial District Court, Yellowstone County, denying her 

postjudgment motion for attorney fees. We affirm. 

The sole issue on appeal is whether the District Court abused 

its discretion in denying Jones' motion for attorney fees. 

FACTUAL AND PROCEDURAL BACKGROUND 

Jones was employed by Mountain Harvest, a pizza crust factory 

in Billings, Montana. On October 15, 1993, she left work in her 

vehicle shortly after 3:00 p.m., accompanied by a passenger, 

Anthony Payton (Payton). Jones proceeded north on South 24th 

Street West. As she approached the intersection of South 24th 

Street West and Monad Road, she moved her vehicle into the left 

turn lane, intending to turn left and head west on Monad Road. 

The intersection of South 24th Street West and Monad Road was 

controlled by a so-called "lagging protected/permissiveu traffic 

light. At the end of the traffic light cycle, the northbound, 

eastbound and westbound lights would all be red, but the southbound 

light would remain green for a preset amount of time or until 

southbound traffic turning left to head east on Monad Road cleared 

the intersection. The car ahead of Jones in the left turn lane 

completed its turn and, while the northbound light was still green, 

Jones pulled into the intersection, waiting to turn left. While 

she waited for oncoming traffic to clear the intersection, the 

northbound light turned yellow and then red. Seeing no southbound 
traffic approaching at a distance close enough to concern her, 

Jones began to clear the intersection. Her vehicle Mas struck 

broadside by a car traveling south on South 24th Street West which 

had proceeded through the intersection at Monad Road on a green 

light. 

Jones and Payton were injured in the accident and Jones' 

vehicle was totaled. Jones submitted a claim to the City of 

Billings (City) for damages resulting from the City's alleged 

negligence in improperly timing the traffic light at the 

intersection of South 24th Street West and Monad Road. The City 

denied the claim and Jones filed suit. In answering the complaint, 

the City denied that it was negligent and affirmatively alleged 

that Jones' negligence caused her injuries and damages. 

After a four-day trial, the jury found that the City 

negligently established ~nd maintsjned the traffic sign&.! system at 

t.he intersection 3.d that. its negligence was a proximate cause of 

the accident. The jury also found that Jones acted negligently, 

but that her negligence was not a proximate cause of the accident. 

Finally, the jury awarded Jones $20,000 for the personal injuries 

she sustained as a result of the accident. 

The District Court entere6 judgment in Jones' favor for 

$20,000, postjudgment interest and costs. Jones subsequently moved 

for attorney fees and costs pursuant to S 25-10-711, MCA. The 

District Court granted her notion for reasonable costs because the 

City did not object, but denied the motion for attorney fees. 

Jones appealed. 
DISCUSSION 

Did the District Court abuse its discretion in denying 

Jones' motion for attorney fees? 

Jones moved for attorney fees under § 25-10-711, MCA, 

contending that the City's defense against her negligence claim was 

frivolous or in bad faith. Section 25-10-711, MCA, provides, in 

pertinent part: 

(1) In any civil action brought by or against the 

state, a political subdivision, or an agency of the state 

or a political subdivision, the opposing party, whether 

plaintiff or defendant, is entitled to . . . reasonable 

attorney's fees as determined by the court if: 

(a) he prevails against the state, political 

subdivision, or agency; and 

(b) the court finds that the claim or defense of 

the state, political subdivision, or agency that brought 

or defended the action was frivolous or pursued in bad 

faith. 

Here, Jones clearly prevailed against the City and, as a result, 

she satisfied § 25-10-711(1) (a), MCA. Thus, she was entitled to 

attorney fees pursuant to § 25-10-7111 MCA, if the City's 

defense was frivolous or in bad faith pursuant to § 25-10- 

711 (1) (b) , MCA. A claim or defense is frivolous or in bad faith 

under § 25-10-711(1) (b) , MCA, when it is "outside 'the bounds of 

legitimate argument on a substantial issue on which there is a bona 

fide difference of opinion. "' See Armstrong v. State, Dept. of 

Justice (1991), 250 Mont. 468, 469-70, 820 P.2d 1273, 1274 (quoting 

Dept. of Revenue v. New Life Fellowship (1985), 217 Mont. 192, 195, 

703 P.2d 860, 862; citing Albertson's Inc. v. Dept. of Business 

Regulation (1979), 184 Mont. 12, 18, 601 P.2d 43, 46) 

The District Court ultimately found, pursuant to § 25-10- 

711(1) (b), MCA, that the City's defense was not frivolous or in bad 
faith because (1) the City presented expert testimony that the 

traffic signal system complied in all respects with the Manual on 

Uniform Traffic Control Devices (CD Manual), which state law 

required the City to follow; (2) the jury found that Jones was 

negligent as the City claimed; and (3) the jury only awarded Jones 

approximately one-third of the damages she sought. In essence, 

these are findings of fact because they relate to matters of 

record. We review a trial court's findings of fact under the 

"clearly erroneous" standard, the first part of which is whether 

the findings are supported by substantial evidence. Rule 52(a), 

M.R.Civ.P.; Aasheim v. Reum (Mont. 1996), 922 P.2d 1167, 1169, 53 

St.Rep. 771, 772 (citation omitted). Given the Armstronq test, 

however, it is clear that an element of discretion remains in a 

trial court's § 25-10-71 b, MCA, determination regarding a 

frivolous or bad faith defense. Thus, our usual abuse of 

discretion standard for reviewing a trial court's denial of a 

motion for attorney fees also applies here to the District Court's 

ultimate denial of Jones' motion for attorney fees under the 

statutory frivolous or bad faith standard. See McKamey v. State 

(1994), 268 Mont. 137, 148, 885 P.2d 515, 522 (citing Armstronq, 

820 P.2d at 1274). 

Here, the City defended against Jones' negligence claim on 

three bases: it was not negligent; Jones was negligent and her 

negligence caused the accident; and Jones' damages were excessive 

and not proximately caused by the accident. The District Court 

essentially found that the City's defenses were supported at trial. 
In response to Jones' claim that the City caused the accident 

by negligently establishing and maintaining a mistimed traffic 

light at the intersection, the City presented expert testimony that 

the traffic light phasing at the intersection was safe and 

conformed to the requirements of state law. The City's traffic 

engineer testified that he considered such variables as the volume 

of traffic on both South 24th Street West and Monad Road and the 

speed limit on these streets in determining which traffic light 

display would be the safest to use at the intersection. He 

testified that when the traffic light phasing at the accident 

intersection was modified in 1991, he reviewed and approved the 

modification because it complied with the CD Manual the City was 

required to follow. The City's traffic transportation engineering 

consultant also testified that the traffic light phasing at the 

accident intersection met the requirements of the CD Manual. In 

addition, the City's traffic electrician advisor testified that, 

after the 1991 modification, he monitored the intersection for 

approximately six months and determined that drivers at that 

intersection were not experiencing problems due to the traffic 

signal phasing sequence. Thus, the District Court's finding that 

the City presented evidence that it was not negligent in 

establishing and maintaining the traffic signal is supported by 

substantial evidence. 

Jones argues that the City's defense was frivolous and in bad 

faith because its expert witnesses did not claim to know the proper 

method of making a left turn under the circumstances confronting 
her at the accident intersection. This argument focuses, however, 

on Jones' efforts at trial to bolster her claim that the City's 

negligence in establishing and maintaining the traffic light caused 

the accident; it does not focus on the substantiality of the 

defense against negligence which the City's evidence advanced. As 

a result, Jones' argument was not within the scope of the District 

Court's determination of whether the City's defense was frivolous 

or in bad faith. See Weber v. State (l992), 253 Mont. 148, 154-55, 

831 P.2d 1359, 1363. 

In addition to its evidence relating to a lack of negligence, 

the City presented evidence that Jones was negligent and caused the 

accident by failing to yield the right-of-way to oncoming traffic. 

The investigating police officer testified that, if Jones did not 

see the oncoming car which ultimately struck her vehicle, she 

negligently caused the accident by turning left in front of 

approaching traffic. Moreover, Jones testified that she did not 

see the southbound car which struck her vehicle until seconds 

before the impact and that it was her responsibility to judge 

oncoming traffic to determine if it was going to stop. In 

addition, one of Jones' expert witnesses testified that Jones could 

not rely entirely on the northbound red light in order to complete 

her left turn, but needed to observe oncoming traffic; if she 

improperly judged what the oncoming traffic was going to do, then 

she was responsible for the accident. Thus, substantial evidence 

supported the City's position that Jones' negligence caused the 

accident. 
As part of its defense, the City also presented evidence that 

Jones' damage claim, which included substantial lost wages, was 

excessive and not proximately caused by the accident. Two of 

Jones' supervisors--one from Mountain Harvest and one from a 

Billings casino where she worked as a food server and bartender for 

approximately eight months after leaving Mountain Harvest-- 

testified that they did not observe any evidence that she suffered 

from physical injuries as a result of the accident. Her Mountain 

Harvest supervisor also testified that Jones continued to operate 

a machine on the production line and stack heavy boxes of pizza 

crusts until February of 1994. Jones' own testimony was that she 

left both of the jobs because of stress and a painful cervical cell 

growth. Thus, substantial evidence supported the City's defense to 

Jones' damage claim and, indeed, the jury ultimately awarded her 

less than one-third of the amount she sought. 

Jones contends that the District Court improperly relied on 

the reduced award of damages as support for its finding that the 

City's defense was not frivolous or in bad faith. She cites to no 

authority in support of this contention, however, and we held to 

the contrary in Weber. There, Weber originally valued his case at 

$500,000 and later offered to settle for $170,000; the jury 

ultimately awarded him $33,230. Weber, 831 P.2d at 1363. We 

observed that the district court properly pointed to those figures 

as demonstrating that the State's defense was not frivolous. 

Weber, 831 P.2d at 1363. Here, as in w, the District Court 

properly relied on the jury's reduced award of damages in 
determining that the City's defense of the case was not frivolous 

or in bad faith. 

Finally, Jones contends that the City was aware of an 

informational report, published by the Western District Institute 

of Transportation Engineers, which claimed that traffic signal 

phasing of the type used at the accident intersection was not 

appropriate at such intersections. Jones maintains that because 

the City did not implement the recommendation presented in the 

report, its proper timing defense was frivolous. We observe that, 

while Jones moved to admit this report into evidence at trial, the 

District Court excluded it on hearsay grounds. Jones did not 

appeal this evidentiary ruling. As a result, the report is not 

properly before us and we decline to address Jones' argument based 

thereon. 

We conclude that the District Court's findings relating to the 

City's defense are supported by substantial evidence and are not 

otherwise clearly erroneous. Here, the City presented substantial 

evidence in support of its bona fide differences of opinion with 

Jones regarding the substantial issues of whose negligence caused 

the accident and the amount of Jones' damages. Armstronq, 820 

P.2d at 1274. Therefore, we further conclude, under the Armstronq 

test, that the District Court did not abuse its discretion in 

determining that the City's defense was not frivolous or in bad 

faith pursuant to 5 25-10-7111 b, MCA, and, on that basis, 

denying Jones' motion for attorney fees. 
Jones also contends that she is entitled to attorney fees 

under the private attorney general doctrine or the "justice and 

equity" theory. She did not raise these theories in the District 

Court and it is well-settled that we will not address on appeal 

issues not presented to the district court. Tisher v. Norwest 

Capital Mgt. & Trust (1993), 260 Mont. 143, 156, 859 P.2d 984, 992 

(citing Duensing v. Travelers Co. (1993), 257 Mont. 376, 386, 849 

P.2d 203, 209). Therefore, we decline to address Jones' 

alternative theories of entitlement to attorney fees. 

As a final matter, we note that the City requests attorney 

fees, costs and expenses for having to defend against a frivolous 

appeal. Jones responds that this matter is raised for the first 

time on appeal and, therefore, that we should not address it. 

Jones apparently fails to understand that a respondent's request 

for fees and costs as a sanction for an appellant's frivolous 

appeal can hardly be raised at any time prior to the appeal. Here, 

however, the City's request consists of one sentence in the 

conclusion to its brief. The City does not even cite to the rule 

under which its request is made, much less provide an analysis 

supporting the request under the circumstances of this case. As a 

result, we will not address the City's request. 
We concur: