NO. 83-05 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

MAXINE KRONE, individually and as 

Guardian Ad Litem for BRYAN KRONE, 

a minor, and CRAIG KRONE, 

plaintiff and Respondent, 

REX T. McCANN, DOROTHY G. IJIcCAIJN, 

and SUPERIOR HOMES, INC., 

Defendants and Appellants. 

Appeal from: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable LeRoy McKinnon, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hibbs, Sweeney, Colberg, Jensen & Koessler; William 

N. Jensen, Billings, Montana 

For Respondent : 

Craig R. Buehler, Montana Legal Services, Lewistown, 

Montana 

Submitted on Briefs: April 15, 1983 

Decided: July 21, 1983 

Filed: 

JUL 2 1 1983 t 

C 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendants Rex 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 

(Musselshell County, 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 to pay attorney fees. 

The trial court issued the following order on costs and 

attorney fees: 

"The Court 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.rged is 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 competent evidence. Petritz v. 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), 168 Mon. 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 the plaintiffs 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 

consider defendant's inability to pay. The trial court, with 

no evidentary foundation, concluded that the hourly fee in 

Billings is higher than that charged in Roundup (the situs of 

the action). However, no evidence was presented as to what a 

similar attorney in Roundup would 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, 168 Mont. at 120, 541 P.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 an 
attorney fee based on the criteria we have set forth in case 

law. 

We Concur: