No. 82-460 

IN THE SURPEME COURT OF THE STATE OF MONTANA 

1983 

GENE COOK AND FRED BELL, d/b/a 

COOK-BELL REAL ESTATE, 

Plaintiffs and Respondents, 

EDWARD J. HARRINGTON and MARCELLE 

D. HARRINGTON, 

Defendants and Appellants. 

Appeal from: District Court of the Xighteenth Jud-icial District, 

In and for the County of Gallatin, The :Ionorable 

Joseph B. Gary, Judge presiding. 

Counsel of Record: 

For Appellant: 

Gregory 0. Morgan, Bozeman, Montana 

For Respondent : 

Kirwan & Barrett; Stephen M. Earrett, Bozeman, 

Montana 

Submitted on Briefs: January 20, 1983 

Decided: April 21, 1983 

Filed: 4p R 2 1,1983 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Cou.rt . 

The defendants, Edward J. and Marce1l.e D. Harrington, 

the prevailing parties in trial court, appeal an order of the 

Gallatin County District Court denying their post-summary 

judgment motion for attorney fees based on a real estate 

buy-sell agreement which provided that the prevailing party 

in an action commenced on the contract would be entitled to 

recover attorney fees. The trial court erroneously applied 

the bill of costs statute (section 25-10-501, MCA) and ruled 

that the time for claiming attorney fees had expired. 

Harringtons contend that in essence they moved to amend the 

judgment, and because a notice of entry of judgment had never 

been filed, their motion for attorney fees was timely. We 

vacate the trial court's order and remand the case for the 

setting of a reasonable attorney fee. 

The procedure of the case places the issue in context. 

On September 4, 1979, Harringtons signed a contract for the 

purchase of a tract of land from Cook and Bell, d/b/a 

Cook-Bell Real Estate. This contract provided for a 

reasonable attorney fee to the prevailing party in an action 

commenced on the contract. 

On October 27, 1980, Cook and Bell filed a complaint in 

trial court alleging that under the written contract and 

various oral agreements Harringtons had agreed to pay a real 

estate commission to Cook and Bell and that Harringtons had 

failed to pay the agreed commission. Based on the written 

contract, the prayer for relief also asked that Harringtons 

pay a reasonable attorney fee. 
Harringtons answered the complaint by denying the 

existence of any written agreement to pay a commission. 

Section 28-2-903(1) (e), MCA, requires that an agreement to 

pay a commission must be in writing. Based on the written 

contract, Harringtons also counterclaimed for an attorney 

fee. 

The trial court granted summary judgment to Harringtons 

on the real estate commission issue, holding that written 

evidence of an agreement to pay a commission did not exist. 

In the order granting the summary judgment the trial court 

failed to rule in the attorney fee issue. The order stated: 

"Pursuant to the above and foregoing, IT IS HEREBY 

ORDERED that summary judgment is hereby entered on 

behalf of the defendants [Harringtons] and 

defendants [Harringtons] shall have their costs in 

the sum of $ 

"Dated this 30th day of September, 1-981-." 

No notice of entry of this summary judgment has ever been 

filed. 

More than four months later, on February 11, 1982, 

Harringtons filed a motion to set an attorney fee in the 

amount of $1,226.64, and noticed it up for a hearing. The 

trial court held a hearing on February 22, 1982 and took the 

matter under advisement for approximately seven months. 

On September 9, 1982, the trial court denied 

Harringtons' motion for attorney fees because it had not been 

filed within five days of the entry of the judgment. The 

court relied on section 25-10-501, MCA, which provides that 

"[tlhe party in whose favor judgment is rendered and who 

claims his costs must deliver to the clerk and serve upon the 

adverse party, within 5 days after the verdict or notice of 

the decision of the court . . . a memorandum of the items of 
his costs . . . " This statute, however, does not apply to 

attorney fees. 

Title 25, Chapter 10 of the Montana Code Annotated deals 

with the imposition and allowance of costs. Recoverable 

costs are listed in section 25-10-201, MCA, and do not 

include attorney fees. With certain limited exceptions, we 

have held that list to be exclusive. Masonovich v. School 

Dist. No. 1 (1978), 178 Mont. 138, 582 P.2d 1234. Attorney 

fees are not one of those exceptions. 

Cook. and Bell have agreed in their brief that 

Harringtons' motion for attorney fees was essentially a 

motion to amend the judgment. Rule 59 (g) , M.R.Civ.P., 

controls the timely filing of a motion to amend a judgment. 

It provides that " [a] motion to alter or amend the judgment 

shall be served not later than 10 days after the notice of 

the entry of the judgment. . ." Because no notice of entry 

of judgment has ever been filed in this case, the time for 

filing a motion to amend the judgment had not expired. 

Therefore, Harringtons ' motion for attorney fees was timely 

and the trial court should have considered it on its merits. 

We vacate the trial court's order denying the motion for 

attorney fees and remand the case to the trial court to 

determine a reasonable attorney fee. 
We Concur: 

Chief Jusk-#ke 

Justices