### No. 14976 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

RILEY G. CAREEK, d/b/a SILVERTIP CONSTRUCTION CO., Plaintiff and Respondent,

VS

# . EUGENE AYER, Defendant and Appellant, and SIMKINS-HALLIN, 

### INC. Intervenor.

Appeal from: 

### DistrictCourt of theEighteenth Judicial

### District, Honorable W. W. Lessley, Judge presiding. In and For the County of Gallatin. Counsel of Record: For Appellant: Berg, Morgan, 

### Coil & Stokes, Bozeman, Montana For Respondent: Drysdale, McLean, Screnar and Cok, Bozeman, Montana

Submitted on briefs: April 

### 3, 1980 Decided: July 22, 1980 Filed: 

# NL~~ 1980Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

This is an appeal from an award of attorney fees by a property owner who successfully defended against an attempted mechanic's lien foreclosure. Plaintiff Carkeek, the lienholder, sued defendant Ayer, the lienee, to foreclose a lien for $6,200 for labor and materials furnished in constructing two barns on the latter's property. The lienee resisted the attempted foreclosure and counterclaimed for approximately $6,000 damages for defective workmanship, ruined hay and other expenses. Following a bench trial, the District Court entered judgment for the lienee on the attempted foreclosure, awarded him $3,311.50 damages on his counterclaim and granted him attorney fees and costs tobe determined at an appropriate hearing. Following this hearing inwhich the lienee sought attorney fees of $5,773.20, the District Judge awarded him $3,000 attorney fees and $605.92 costs. The District Judge filed this memorandum accompanying his order: ''This Court 

### is convinced that the attorney, Michael C. Coil, is entitled toFifty Dollars ($50.00) per hour for attorney's fees; that he has spent a total of One Hundred Forty-four and thirty-three (144.33) hours in this cause, and his deduction of Ten Dollars ($10.00) per hour resulting in a fee of Forty Dollars ($40.00) per hour 

### is most fair; that Five Thousand Seven Hundred Seventy-three and 20/100 Dollars ($5,773.20) 

### is a reasonable fee; however, the defendant (sic) in this cause has been almost helpless in this litigation through the continued delays andat least two attorneys. His first attorney, Mr. Tom Sabo, was not prompt or professional in his preparation of the case nor in his representation of plaintiff; this delay and confusion was almost beyond belief. The plaintiff is now faced with loss of his law suit. "To now insist on the payment of attorney's fees of Five Thousand Seven Hundred Seventy-three and 20/100 Dollars ($5,773.20) and his own attorney's fees would be most unreasonable." The lienee appeals from the award of only $3,000 attorney fees, contending that he 

### is entitled to $5,773.20, the amount the District Court found tobe a reasonable fee. A party who successfully defends against a foreclosure actionmust be allowed a reasonable attorney fee in both the District Court and the Supreme Court. Section 71-3-124, MCA. In determining what constitutes a "reasonable fee" in a given

case, we have set down the following guidelines:

0 1 

# .. , The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of property to be affected, the professional skill and experience called for, the character and standing in their profession of the attorneys. 

# .

# . The result secured by the services of the attorneys may be considered as an important element in determining their value."' First Security Bank v. Tholkes (1976), 169 Mont. 422, 429-30, 547 P.2d 1328, 1332. Within these guidelines, the amount fixed as attorney fees is largely discretionary with the District Court. We will

not disturb its judgment in the absence of an abuse of that discretion. We have previously stated the applicable principles in this language: "This Court is well aware of its role when asked to look intomatters of abuse of discretion of the trial court and we have noted the number of cases and other citations given us by the parties. We feel an approved composite position simply stated would be: a reviewing court is never justified in substituting its discretion for that of the trial court. Indetermining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but rather, did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, inview of all the circumstances, ignoring recognized principles resulting in substantial injustice." Porter v. Porter (1970), 155Mont. 451, 457, 453 P.2d 538, 541. <'.We note that a reasonable attorney fee must be awarded for the successful defense of the foreclosure action by virtue of section 71-3-124, MCA. There 

### is no statutory provision for an award of attorney fees in successfully prosecuting the counterclaim for damages. Costs are recoverable on the counterclaim, sections 25-10-101(3), 25-10-102, and 25-10-201, MCA; but attorney fees

are not recoverable costs in the absence of statute or contractual agreement of the parties. Winer v. Jonal Corp. (1976), 169 Mont. 247, 545 P.2d 1094, and cases therein cited. Applying the foregoing principles to this case, we cannot say that the District Court abused its discretion in reducing the lienee's claim for attorney fees from $5,773.20 to$3,000. A reasonable attorney fee in a given case does not necessarily result from simple multiplication of the hours spent times a fixed hourly rate. To award an attorneysfee of $5,773.20 in defending against a $6,200 claim would appear most unreasonable regardless of the time spent, the skill involved in the work, the experience of the attorney and similar considerations. The defense simply 

### is not worth a fee approaching 100%of the amount of the lien. We interpret the District court's memorandum as saying that while a fee of $5,773.20 

### is fair and reasonable, it would be unreasonable to assess this entire amount against the lienholder under the circumstances of this case. We agree. We find no abuse of discretion by the District Court. Affirmed.



## ............................ Chief Justice'

### We concur: i.



## ................................... Justices

### Mr. 

### JusticeJohn C. 

### Sheehy dissenting:

Inapproving the attorneys fees of $3,000 here, the majority approves theirpay atthe 

### rate of $20.75 per hour. That rate

### isunconscionable! It

### isunreasonable inthe

sense that 

### it defiesreason. It

### means that the successful attorney, ifhis clientdoes notmake up the difference, 

### willhave tosustain the deficiency, orrecover 

### a proper amount from other clients inhis officeby charging them greater fees tomake up his loss. Let

### me state a lesson in

### lawofficeeconomics. A 

### lawyer inprivatepractice, fiveyears outof law school, and not a parttime 

### retiree, who 

### isnot grossing $30,000 a year infees should seek some other business. At

### a point where a lawyer's gross fees exceed $40,000 per year, he begins tobe an economic unit. As 

### a general ruleof thumb, 

### it can be assumed that from $40,000 to$100,000 per year in gross fees, his costs of doing business, includingoffice rent, library, employees' wages, and general office expenses 

### willexhaust 50 percent of the gross fees thathe 

### willearn. Intheory, a lawyer who practices on a fee basis of charging forhis

### timehas a possible 2,000 hours per year forwhich he could sendbills. In reality, however, the 

### time

### a lawyer

### willspend inprofessional upgrading, community service, and general officemanagement 

### willreduce the billable 

### timetoclientstoabout 60 percent, or 1,200 hours per year. The minimum, therefore, that any lawyer worth his saltshould charge forhis time 

### is $50 per hour. At

### that rate, there is

### no danger thathe would accumulate much of an estate. In thiscase, the attorneyspossibly outof deference tothe District

### Court, reduced the claimed feeof $50 per hour by 20 percent to$40 per hour. It

### was the latter

### figure that gave 

### rise tothe fee of $5,773.20. Then, after findingthatthe fee the attorneys claimed 

### was "most fair" theDistrictCourt slicedthat feenearly inhalf toa sum that I 

### would consider most unfair. The reasons given by the District

### Court, and now endorsed by thisCourt forthis slicing

### are thattheplaintiff had attorneys who did not

servehim properly orthat the attorneys

### werenot professional intheirwork for theplaintiff. The attorneys

### were selected by theplaintiff, yet 

### it 

### is the defendant and his attorneys who arerequired by the court topay theprice. It 

### isno answer tosay that the claimed fee approached 100percent of the lienclaimagainst thedefendant inthis

case. The defendant's alternatives

### were toeitherhire an attorney and defend against a claim, orpay the $6,200.00. He

### had 

### littlechoice. I 

### would reverse by reinstating the fee that the District Court found reasonable tobe awarded here.