>lo. 82-210 INTHE SUPPSME COURT OF THE STATE OF MONTANA 1983

E

# . ROY TAIJI',!AGE, Plaintiff and Appellant,

HERBERT 0. GRUSS and INGEBURG W. GIIUSS

### , Defendants and Respondents.

Appeal from: DistrictCourt of the Twelfth Judicial District, In and forthe County of Blaine, The Honorable Leroy L. WcKinnon, Judge presiding.
Counsel of Record: For Appellant: Sias & Ranstrom; Donald A. Ranstrom, Chinook, Montana For Respondents: Spangelo Law Firm; James W. Spanqelo, Havre, Montana

Submittedon Briefs: Gctober 14, 1982 Decided: February 10, 1983

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### k:; $114 - .&J Filed:Mr. ~ustice Fred J. Weber delivered the Opinion of the Court. Appellantbrought an action on a promissory note in the ~istrict Court of the Twelfth Judicial District,Blaine County. Appellantprevailed in the action on the note,but
was not awarded the full amountof the attorney fees requested. We remand to the District Court for the entry of appropriate findings on the question of attorney fees. 

### E. Roy Talmage brought suit onNovember 19, 1979, against Herbert Gruss and Ingeburg Gruss,husband and wife. The actionwas based upon a $1,500promissory note. The Grusseswere makers of the note. One of the terms of the notewas that themakers would pay reasonableattorney fees if the note was notpaid atmaturity. The Grusses attempted to defend without counsel in the early stages of the action. Delay of the discovery process resulted,and Talmagemoved for sanctions under Rule 37, 

### M. R. Civ. P. The court imposed Rule 37 sanctions and ordered the Grusses to pay $537.50 to Talmage's counsel for attorney fees incurred as a result of the Gruss' frustration of discovery. A non-jury trialwas had on October 1 and 2, 1981. The judge found that the Grusses owed Talmage $1,500 plus interest and attorney fees. Talmage's counsel claimed attorney fees in the amount of $3,637.50. Counsel for the Grusses opposed
an award of that amount. OnApril 9,1982, the judge issued his order on attorney fees. The judge found that the Grusses
were in poor financial condition, that their health was quite bad, and thatbecause they were elderly neither their health nor their finances were likely to improve. The judge also found that counsel for the Grusses had expended considerabletime and effort for a nominal fee. The judge ordered that Talmage's fee award be limited to the $537.50 already awarded, plus costs. On May 6, 1982 the court denied Talmage's motion to amend the attorney fees order. This appeal followed. The amount fixed as attorney fees is largely discretionary with the DistrictCourt, and we will not disturb its judgment in the absence of an abuse of that discretion. Carkeek v. Ayer (1980) Mont. 

## , 613 P.2d 1013, 1015, 37 St.Rep.

"Indetermining whether the trial court abused its discretion, the question is notwhether the reviewing court agrees with the trial court, but, rather, did the trial court in the exercise of its discretion act arbitrarilywithout the employmentof conscientious judgment or exceed the bounds of reason, in view of all the circumstances,ignoring recognized principles resulting in substantial injustice." Porter v. Porter (1970),155Mont. 451, 457, 473 P.2d 538, 541. This Court has set forth the following guidelines to be used in determining the amount to be awarded as reasonableattorney fees: "Thecircumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time and trouble involved,the character and importance of the litigation inwhich the services were rendered, the amount of money or the value of property to be affected, the professional skill and experience called for, the character and standing in their profession of the attorneys

# .. . The result securedby the services of the attorneys may be considered as an important element in determining their value." First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422,429-30, 547 P.2d 1328, 1332. These guidelines are not necessarily exclusive. A trial courtproperly may consider other factors in reaching
a decision on reasonable attorney fees. However, the findings in the present case only revealed that the District Court considered the age, health and financial condition of the Grusses and that counsel for the Grusses had expended consid-erable effort for a nominal fee. The findings do not show a consideration of any of the other factors listed above in First Security Bank of Bozeman. In an appropriate case,we 

### -- have implied findings in support of the trial court's conclusionswhere those findings are not inconsistent with the express findingsmade. InMarta v. Smith (1982), Mont. I 650

### P. 2d 1387, 1389, 39 St.Rep. 1839, 1842, we held that findingsnot specificallymade but necessary to the judgment
are deemed to have been supplied if supportedby the evidence. Berry v. Romain (1981)

### , Mont. 

## , 632P.2d 1127, 1132, 38 St.Rep. 1434, 1439-40. Unfortunately we do not have a transcript of the proceedings and therefore are unable to determine if there is evidence to support implied findings. Inview of the great amountof attorney's effort already required in a case involving a $1,500.00 principal judgment plus interest,we are reluctant to send the matter back for furtherproceedings. However, in the absence of findings which allow us to review the basis for the award of attorney fees and in the absence of a record from which findingsmay be implied,we are required to return the case for further considerationby the judge. We vacate the order determining attorney fees and return the same to the District Court for thepreparation of appropriate findings with regard to the requested attorney fees, containing a review of the factors described in this
case and such order as the District Court

We concur: