No. 85-23 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

DANIEL BREESE and CHRISTINE M. 

BREESE, 

Plaintiffs and Respondents, 

STEEL MOUNTAIN ENTERPRISES, INC., 

a Montana corporation, BRYAN K. 

STAHLBERG and ELAINE E. STAHLBERG, 

Husband and Wife, d/b/a THE SPORTSMAN 

BAR AND CAFE, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman 

argued, Kalispell, Montana 

For Respondent: 

Keller & German; Brenda Nordlund and Ann German 

argued, Kalispell, Montana 

Submitted: January 16, 1986 

Decided: April 1, 1986 

APR 1. 1986 

Filed: 

- &d~ 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Christine Breese and Daniel Breese (plaintiffs), wife 

and husband, filed separate employment discrimination actions 

in Flathead County District Court alleging violations of the 

Montana Human Rights Act (Act). The cases were consolidated 

and tried to a six-person jury which rendered a verdict in 

favor of Steele Mountain Enterprises, Inc. (Steele Mountain). 

Judgment was entered for Steele Mountain. Plaintiffs moved 

for a new trial, claiming that the relief sought under the 

Act was equitable in nature and the case should have been 

tried to a judge rather than a jury. The District Court 

granted a new trial. Steele Mountain appeals. We reverse. 

We conclude that the following two issues are 

determinative: 

1. Did the District Court err in granting plaintiffs" 

motion for a new trial? 

2. Did the District Court err in denying defendants' 

motion for attorney fees? 

Christine Breese began working at The Sportsman Bar and 

Cafe in July 1981. Daniel Breese began working at The 

Sportsman Bar and Cafe on November 1, 1-981. Christine worked 

various jobs including waitress, dishwasher, and cook. 

Daniel worked as a janitor. Both Daniel and Christine were 

fired from The Sportsman Bar and Cafe on November 18, 1981. 

Christine Breese contends she was fired for being pregnant. Daniel Breese maintains he was fired for being the 

husband of Christine Breese. Steele Mountain contends they 

were fired for poor job performance and taking food from the 

restaurant without permission. 

In November 1983, plaintiffs filed separate employment 

discrimination complaints against Steele Mountain and Bryan 

Stahlberg and Elaine Stahlberg d/b/a The Sportsman Bar and 
Cafe. Initially, no demand was made for jury trial. In May 

1984, citing Rule 39(b) M.R.Civ.P., Steele Mountain moved for 

trial by jury. The motion was granted, and the matter tried 

to a six-person jury which rendered a verdict in favor of 

Steele Mountain. 

After judgment was entered and notice of entry of judgment mailed, plaintiffs moved for a new trial. Later, Steele 

Mountain moved for an award of attorney fees. The District 

Court granted plaintiffs' motion for a new trial and denied 

Steele Mountain's motion for an award of attorney fees. 

Did the District Court err in granting plaintiffs' 

motion for a new trial? 

Fol-lowing jury trial, plaintiffs moved for a new trial. 

First, they contended the court abused its discretion in 

granting a late request for a jury trial. Second, they 

argued an action filed under the Act is equitable in nature 

and requires trial to a judge rather than a jury. 

The District Court granted plaintiffs' motion for a new 

trial, ruling in pertinent part: 

An action brought under title 49, chapter 

2 is equitable in nature, and is akin to 

an action brought under Title VII of the 

Federal Civil Rights Act of 1964. Because of the equitable nature of the 

action, there is no right to a tria.1 by 

iury in a federal Title VII suit. 

It was error to allow a jury trial in 

this matter, and the error has substantially prejudiced the Plaintiffs' case. 

Plaintiffs' motion for a new, non-jury 

trial is GRANTED (citations omitted). 

Plaintiffs contend that the only damages sought were 

back pay and reinstatement. By analogy to Title VII, plaintiffs maintain these dama.ges are by nature equitable and 

properly tried to the court rather than a jury. Plaintiffs 

urge the Court to find a violation of the Act to be a purely 
equitable claim. Steele Mountain contends that plaintiffs 

sought other dama.ges that were of a legal nature besides 

reinstatement and back pay. 

The record discloses that plaintiffs submitted evidence 

of damages other than reinstatement and back pay. Under 

Instruction 6, the measure of damages was "the amount wkich 

will compensate for all the detriment proximately caused 

thereby . . . whether it could have been anticipated or not." 

Likewise, Instructions 10 and 11 provided that if the jury 

found plaintiffs were terminated unlawfully, or that the 

defendants engaged in discriminatory practices as alleged, 

then the jury could award damages in a sum "which would 

rectify any harm, pecuniary or otherwise. . ." The Court has 

held that the law of the case is established by the jury 

instructions: 

[B]y their failure to object to instructions . . . in the trial court, plaintiffs assented to the rules of law 

therein announced and on appeal to this 

court they will not be heard to urge a 

theory in conflict therewith. Wallace v. 

Weaver, 47 Mont. 437, 133 P. 1099. The 

theory upon which the case wa.s tried in 

the district court with the acquienscence 

of the parties is binding upon them here. 

Pappas v. Braithwaite (1945), 117 Mont. 569, 577, 162 ~.2d 

212, 215. In closing argument which followed the above 

described law of the case, plaintiffs' counsel pointed out 

that the plaintiffs lost their car and suffered anxiety and 

emotional stress from which the jury could award an adequate 

figure to compensate the plaintiffs, to make them whole, and 

to rectify the harm caused by the illegal action. 

We therefore conclude that in the present case, a claim 

for relief under the Act and a legal claim for damages as a 

result of unlawful discharge were tried in a single proceeding. Assuming only for purposes of argument that 
reinstatement and back pay are equitable claims, plaintiffs 

presented both legal and equitable claims to the jury, each 

claim arising out of common fact issues. In a similar proceeding in Lincoln v. Board of Regents of Univ. System (11th 

Cir. 1983), 697 F.2d 928, 934, cert. denied, 464 U.S. 826 

(1983), the Circuit Court ruled on the effect of trying 

equitable and legal causes of action arising out of a common 

fact issue and stated: 

An action for reinstatement and back pay 

under Title VII is by nature equitable 

and entails no rights under the seventh 

amendment. An action for damages under 

S 1981, however, is by nature legal and 

must be tried by a jury on demand. When 

legal and equitable actions are tried 

together, the right to a jury in the 

legal action encompasses the issues 

common to both. When a party has the 

right to a jury trial on an issue involved in a legal claim, the judge is of 

course bound by the jury's determination 

of that issue as it affects his disposition of an accompanying equitable claim 

(citations omitted) . 

We approve and adopt the reasoning contained in the above 

quotation from Lincoln. 

In the present case, plaintiffs tried to a jury claims 

under the Act as well as claims which are legal in nature. 

Steele Mountain was entitled to have a jury determine whether 

or not the plaintiffs suffered damages for emotional distress. We hold that the right to a jury trial in the present 

action encompassed both the claims under the Act and the 

legal claims for damages, and that the trial judge was bound 

by the jury's determination of facts on all issues. We hold 

that the District Court erred. in granting a new trial and 

remand the case to the District Court with instructions to 

reinstate the jury verdict and enter judgment in accordance 

with that verdict. 
Did the District Court err in denying defendants' motion 

for attorney fees? 

Section 49-2-509(3), MCA, provides that the court may in 

its discretion allow the prevailing party reasonable attorney 

fees. Steele Mountain contends attorney fees should have 

been awarded because plaintiffs' case was frivolous and 

f actual.1~ baseless. In denying attorney fees, the District 

Court ruled: 

[A]n award of attorney fees under this 

statute is whol1.y discretionary. Attorney fees are rarely awarded to a prevailing party defendant. Where the suit 

successfully defended was frivolous or 

factually baseless, attorney fees may be 

allowed to a prevailing Defendant. This 

is not true of the case at bar. 

Our review of the record establishes that the District 

Ccurt did not abuse its discretion in denying attorney fees 

to Steele Mountain. We will not substitute our discretion 

for that of the District Court. We affirm the denial of 

attorney fees. 

We reverse and. remand with specific instructions that 

the jury verdict be reinstated, and judgment entered in 

accordance with this opinion. 
We Concur: &..-