No. 88-225

IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

GREGG GLASPEY,Plaintiffand Respondent,-vsTHOMAS WORKMAN, BERNADETTE WORKMAN, and BERNADETTE'S, INC.,
Defendantsand Appellants.

APPEAL FROM: District Court of the Eighth Judicial District, Inand for the County of Cascade, TheHonorableJohnMcCarvel,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Channing Hartelius; Hartelius, Ferguson & Baker, GreatFalls,Montana

For Respondent:
I- 

### = ElizabethA. Rest;Lynch & Best, Great Falls,Montana 13

Submitted onBriefs: Aug. 26, 1988 Decided: October 27, 1988

ClerkMr. 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 theDistrict Court order and remand foran evidentiary hearing to determine the amount of attorney's fees incurredby Glaspey on this appeal. TheWorkmans 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 amere $5.49. Glaspey then instituted suit against theWorkmans 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 Glaspeybut refused to award attorney's fees. Glaspey appealed the issue of attorney's fees to this Court. InGlaspey 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 continuationof the wage claim actionand, therefore,Glaspey

was entitled to attorney's fees. We remanded to the trialcourt 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 theWorkmans appeal. The Workmans first contend that the District Court improperly included in its award those attorney's fees incurredby Glaspey on appeal. This contention is incorrect. We havepreviously recognized that an employee in awage claim action may receive attorney's fees on appeal. Erdman

v. C & C Sales, Inc. (1978),176Mont. 177, 577 P.2d 55. The Workmans argue that such an award isdiscretionary and that, furthermore,Glaspey was granted only his "costs"on appeal, nothis 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 stututeprovide: (1) Whenever it is necessary for the employee to enter or maintain a suitat 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 successfulparty, -- 

### to be taxed - 

### aspart of the costs -- 

### in the case.

(2) Any judgment for theplaintiff in aproceeding pursuant to this part must include 

### - all costs reasonably incurred in connection with the proceeding, including attorneys' fees.

Section 39-3-214,MCA. (Emphasisadded.) 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 determinationofhiswage claim. The District Courtdismissed 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, requiresthat a reasonable attorney's fee must be awarded to an employee who successfully brings an appeal of awage claimaction. TheWorkmans next contend that the District Court abused its discretion in awarding attorney's fees of $7,500 on ajudgment 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 discretionof theDistrictCourt. Unless an abuse ofdiscretion is shown,an attorney's fee award that isbased

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 canbe based. Audit Services, Inc. v. Haugen (1979)

## , 181Mont. 9,15,591 P.2d 1105, 1109. Such a hearing was conducted in the instant case. The District Court heard the testimony of experts forboth 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 $7,500on awage claimof less than $2,000 isunreasonableas

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 considerwhenmaking an award of attorney's fees. The elements adistrict court should examinewhen 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 amountofmoney or thevalue of theproperty 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 employerswho fail to pay wages due,5 

### 39-3-206,MCA,andby 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 

### theDistrictCourt.

### 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,hehad the opportunity to observe thewrangling of theparties throughoutthe 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 ofdiscretion under these circumstances. Glaspey asks for damages under Rule 32, 

### M.R.App.P., claiming that this appealby the Workmanswaswithoutmerit. 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. InGlaspey - 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 vehicleby which to receive attorneys feesand thus bemadewhole. 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 thisappeal. 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