NO. 83-05 INTHE SUPREME COURTOF THE STATEOF MONTANA 1983

MAXINE KRONE, individuallyand as GuardianAd Litem for BRYAN KRONE, 

### aminor,and CRAIG KRONE, plaintiff and Respondent,

REX T. McCANN,DOROTHY G. IJIcCAIJN, and SUPERIORHOMES, INC., Defendants andAppellants.

Appeal from: District Courtof the Fourteenth Judicial District, In and for the County ofMusselshell, TheHonorable LeRoy McKinnon, Judgepresiding.
Counsel of Record:

ForAppellants: Hibbs, Sweeney, Colberg, Jensen & Koessler; William 

### N. Jensen,Billings, Montana

ForRespondent: Craig R. Buehler,Montana Legal Services, Lewistown, Montana

SubmittedonBriefs: April 15, 1983 Decided: July 21, 1983

Filed: 

### JUL

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C ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court. DefendantsRex T. McCa.nn,Dorothy G. McCann and Superior Home, Inc., appeal the amount of the attorney fee award they received in Musselshell County District Court after the case
was remanded by this Court. See Krone v. McCann, No. 7534

(MusselshellCounty,October 28, 1982). The sole issue is whether the District Court erred in awarding defendants $7,500 in attorney fees instead of the $17,759.50 prayed for. We vacate and remand for another hearing in the setting of attorney fees. On June 2, 1982, the District Court held a hearing on attorney fees. Defense counsel summarized the fee charged, which ranged from $50 per hour to $65 per hour which was multiplied by the number of hours expended, 372.7 hours. Plaintiffs' testimony at the hearing essentially consisted of testimony as to their inability topay attorney fees. The trial court issued the following order on costs and attorney fees: "TheCourt finds: "1. That the Plaintiff herein qualified for an attorney from Montana Legal Services; that no authority has been presented authorizing consideration of the ability to pay of a party. "2. That the Court has no dispute with the amount and character of the services rendered by the attorney. "3. That the hourly fee cha.rgedis probably in accord with the fees charged in the Billings area, but is somewhat in excess of the fees charged in the Roundup area. "4. That there is no dispute as to the costs involved. "IT IS, THEREFORE, ORDERED That the Defendant recover costs herein in the amount of $1,457.40, and attorney fees in the amount of $7,500.00."Setting of an attorney fee must, 

### of course, be based upon competentevidence. Petritzv. Albertsons, Inc. (1980), Mont. 

## , 608 P.2d 1089, 1094, 37 St.Rep. 677, 682. First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 429, 547 P.2d 1328, 1331; Crncevich v. Georgetown ~ecreation Corp. (1975),168Mon. 113, 120, 541 P.2d 56, 59. In Petritz, this Court in remanding an attorney fee award stated: The record does not reveal whether plaintiff disputed the amount or descriptions of the services and expenses. Nor does there appear any rationale by the trial court for the award or any consideration of plaintiff's financial ability to pay. The award appears to be nothing more than an arbitrary figure that the District Court selected. The only testimony of theplaintiffs during the hearing
was that they could not afford the fees requested after they lost the case and were contractually obligated to pay one attorney fees. The trial court stated that we did not considerdefendant's inability topay. The trial court,with
no evidentary foundation, concluded that the hourly fee in Billings is higher than that charged in Roundup (thesitus of the action). However, no evidencewas presented as to what a similar attorney in Roundupwould have charged. The attorney fee awarded appears to be nothing more than an arbitrary figure the trial court selected. This Court has set forth criteria for the award of attorney fees. See, First Nat. Bank in Eureka v. ~eckstrom 

### - (1982),Mont., 651 P.2d 45, 47, 39 St.Rep. 1778, 1780-81; Crncevich, 168Mont. at 120, 541P.2d at 59. Carkeek 

### v. Ayer

(1980), Mont., 613 P.2d 1013, 1015, 37 St.Rep. 1274,

The attorney fee award is vacated and we remand the
cause to the District Court for a determination of anattorney feebased on the criteriawe have set forth incase law.

WeConcur: