No. 88-225 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

GREGG GLASPEY, 

Plaintiff and Respondent, 

-vsTHOMAS WORKMAN, BERNADETTE WORKMAN, 

and BERNADETTE'S, INC., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Channing Hartelius; Hartelius, Ferguson & Baker, 

Great Falls, Montana 

For Respondent : 

I- 

= Elizabeth A. Rest; Lynch & Best, Great Falls, Montana 13 

Submitted on Briefs: Aug. 26, 1988 

Decided: October 27, 1988 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Thomas and Bernadette Workman appeal from an order of 

the Eighth Judicial District, Cascade County, awarding 

attorney's fees to respondent Glaspey in the amount of 

$7,500. We affirm the District Court order and remand for an 

evidentiary hearing to determine the amount of attorney's 

fees incurred by Glaspey on this appeal. 

The Workmans raise two issues on appeal. 

1. Did the District Court err in awarding attorney's 

fees incurred on appeal? 

2. Did the District Court abuse its discretion by 

awarding attorney's fees of $7,500 on a judgment of $1,589? 

This appeal is a continuation of a wage claim action 

that commenced in 1985. At that time, Glaspey won an 

administrative judgment of $1,294 for wages due from 

Bernadette's, Inc. 

Due to Bernadette's insolvency, Glaspey's attempts to 

execute on the judgment resulted in the attainment of a mere 

$5.49. Glaspey then instituted suit against the Workmans and 

Bernadette's, attempting to pierce the corporate veil in 

order to hold the Workmans personally liable on the claim. 

The District Court granted summary judgment in the amount of 

$1,589 to Glaspey but refused to award attorney's fees. 

Glaspey appealed the issue of attorney's fees to this 

Court. In Glaspey v. Workman (Mont. 1988), 749 P.2d 1083, 45 

St.Rep. 226, (Glaspey - I), we reversed the District Court. We 

held that the action to pierce the corporate veil was a 

continuation of the wage claim action and, therefore, Glaspey 

was entitled to attorney's fees. We remanded to the trial 
court for a determination of such fees and also awarded 

Glaspey his costs on appeal. 

The District Court held an evidentiary hearing on the 

issue of attorney's fees on March 21, 1988. During the 

hearing, the District Court heard the testimony of Glaspey's 

attorney as well as that of experts for both sides. In 

addition, Glaspey's attorney submitted an affidavit 

reflecting a total fee of $10,457 for charges incurred from 

April, 1986, up to the time of the March, 1988, hearing. 

On March 28, 1988, the District Court issued its 

findings of fact, conclusions of law and order awarding 

attorney's fees of $7,500 to Glaspey. It is from this award 

that the Workmans appeal. 

The Workmans first contend that the District Court 

improperly included in its award those attorney's fees 

incurred by Glaspey on appeal. This contention is incorrect. 

We have previously recognized that an employee in a wage 

claim action may receive attorney's fees on appeal. Erdman 

v. C & C Sales, Inc. (1978), 176 Mont. 177, 577 P.2d 55. The 

Workmans argue that such an award is discretionary and that, 

furthermore, Glaspey was granted only his "costs" on appeal, 

not his attorney's fees. 

It is true that in Glaspey - I , we awarded "costs" on 

appeal. Glaspey - I, 749 P.2d at 1085, 45 St.Rep. at 228. It 

is also true that 25-10-201, MCA, does not include 

attorney's fees on its list of allowable costs. We have 

consistently held, however, that § 25-10-201, MCA, does not 

apply in the presence of another statute that specifically 

allows attorney's fees. Masonovich v. School Dist. No. 1 

(1978), 178 Mont. 138, 140, 582 P.2d 1234, 1235; Britt v. 

Cotter Butte Mines (1939), 108 Mont. 174, 179, 89 P.2d 266, 

267; Gardiner v. Eclipse Grocery Co. (19251, 72 Mont. 540, 

550-51, 234 P. 490, 494. 
Section 39-3-214, MCA, mandates the award of attorney's 

fees in a wage claim action. The pertinent parts of that 

stutute provide: 

(1) Whenever it is necessary for the employee to 

enter or maintain a suit at law for the recovery or 

collection of wages due as provided for by this 

part, a resulting judgment must include a 

reasonable attorney's fee in favor of thg 

successful party, -- to be taxed - as part -- of the costs 

in the case. 

(2) Any judgment for the plaintiff in a proceeding 

pursuant to this part must include - all costs 

reasonably incurred in connection with the 

proceeding, including attorneys' fees. 

Section 39-3-214, MCA. (Emphasis added.) 

Hence, the statute requiring attorney's fees in a wage 

claim action specifically provides that costs include 

attorney's fees. Our award of costs in Glaspey - I therefore 

implicitly included a grant of attorney's fees incurred on 

the appeal. 

The Workmans rely on Thornton v. Comrn'r of Dep't of 

Labor and Industry (Mont. 1980), 621 P.2d 1062, 37 St.F.ep. 

2026, for the proposition that an award of attorney's fees on 

appeal is discretionary. This reliance is misplaced. In 

Thornton, an employee appealed the administrative 

determination of his wage claim. The District Court dismissed 

the appeal and we affirmed. Because Thornton was 

unsuccessful in his appeal, we denied his request for 

attorney's fees incurred on appeal. Glaspey, on the other 

hand, was successful in his appeal. The mandatory language 

of S 39-3-214, MCA, requires that a reasonable attorney's fee 

must be awarded to an employee who successfully brings an 

appeal of a wage claim action. 

The Workmans next contend that the District Court abused 

its discretion in awarding attorney's fees of $7,500 on a 
judgment of $1,598. They argue that the award was excessive 

and that it was not based on competent evidence. We do not 

agree. 

The amount a party may be awarded in attorney's fees is 

within the discretion of the District Court. Unless an abuse 

of discretion is shown, an attorney's fee award that is based 

on competent evidence will not be disturbed on appeal. 

Magers v. The Shining Mountains (Mont. 1988), 750 P.2d 449, 

453, 45 St-Rep. 283, 288. 

Before granting attorney's fees, a district court must 

hold an evidentiary hearing to determine the reasonableness 

of the requested fees. Evidence elicited through oral 

testimony, cross examination, and the introduction of 

exhibits is competent evidence upon which an attorney's fee 

award can be based. Audit Services, Inc. v. Haugen (1979) , 

181 Mont. 9, 15, 591 P.2d 1105, 1109. 

Such a hearing was conducted in the instant case. The 

District Court heard the testimony of experts for both sides 

as well as the testimony of Glaspey's attorney. The court 

also accepted an affidavit itemizing the number of hours 

expended on the suit by Glaspey's counsel. Under these 

circumstances the Workmans' argument that the award of 

attorney's fees was not based upon competent evidence is 

without foundation. 

The Workmans also maintain that an attorney's fee of 

$7,500 on a wage claim of less than $2,000 is unreasonable as 

a matter of law. We cannot agree. An attorney's fee that 

exceeds the amount in controversy is not per se excessive. 

- See Simkins-Hallin Lumber Co. v. Simonson (Mont. 1984), 692 

P.2d 424, 41 St.Rep. 2305. Each case depends on its own 

unique set of facts. 

The relation between the amount of fees requested and 

the judgment is just one of several factors a district court 
should consider when making an award of attorney's fees. The 

elements a district court should examine when determining the 

reasonableness of an attorney's fee include the following: 

(1) the amount and character of the services 

rendered; (2) the labor, time, and trouble 

involved; (3) the character and importance of the 

litigation in which the services were rendered; (4) 

the amount of money or the value of the property to 

be affected; (5) the professional skill and 

experience called for; (6) the character and 

standing in their profession of the attorneys; and 

(7) the result secured by the services of the 

attorneys. 

Magers, 750 P.2d at 453, 45 St.Rep. at 288. If the evidence 

supports these factors, we will not upset an attorney's fee 

award. 

There can be no doubt of the importance of the present 

litigation. Glaspey had not been paid wages due and owing. 

The only way he could be made whole was by pursuing action 

against the Workmans personally. The legislature has 

recognized the gravity of an employee's right to wages by 

providing penalties against employers who fail to pay wages 

due, 5 39-3-206, MCA, and by requiring an award of attorney's 

fees to employees who successfully maintain suit to collect 

wages, S 39-3-214, MCA. 

Furthermore, this case presented more than a simple 

matter of collection. Glaspey was forced to pierce the 

corporate veil of Bernadette's in order to collect his claim. 

The record shows that considerable time and energy was 

expended toward this end. Glaspey's attorney engaged in 

discovery, research and trial preparation to win a judgment 

against the Workmans. Glaspey was then compelled to pursue 

an appeal to this Court to secure attorney's fees that were 

denied by the District Court. 
The District Court judge determined the reasonableness 

of the requested fees from a most advantageous position. 

Having presided over the case from the initial filing of the 

pleadings, he had the opportunity to observe the wrangling of 

the parties throughout the suit. After an evidentiary hearing 

he granted attorney's fees of $7,500, an amount that was 

less than the $10,457 requested by Glaspey. We can find no 

abuse of discretion under these circumstances. 

Glaspey asks for damages under Rule 32, M.R.App.P., 

claiming that this appeal by the Workmans was without merit. 

Although we have not agreed with the Workmans' contentions, 

we cannot say that the appeal was taken without reasonable 

grounds. We therefore deny Glaspey's request for damages. 

Glaspey also requests attorney's fees incurred on this 

appeal. In Glaspey - I , we stated: 

the legislature's intent in passing [S 39-3-214, 

MCA,] was to provide an employee who wins a 

judgment for wages due against an employer a 

vehicle by which to receive attorneys fees and thus 

be made whole. 

Glaspey - I, 749 P.2d at 1084, 45 St.Rep. at 228. That 

reasoning applies here and Glaspey is entitled to attorney's 

fees for this appeal. 

We affirm the District Court's previous order awarding 

attorney's fees to Glaspey and remand for an evidentiary 

hearing on the matter of attorney's fees incurred on this