No. 14976 

IN THE 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: District Court of the Eighteenth 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~~ 1980 
Mr. 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 to be determined at an appropriate hearing. 

Following this hearing in which 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 to Fifty 

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 and 
at 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 to be a reasonable fee. 

A party who successfully defends against a foreclosure 

action must 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 into matters 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. In determining 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, in view of all 

the circumstances, ignoring recognized principles 

resulting in substantial injustice." Porter v. 

Porter (1970), 155 Mont. 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 attorneys fee 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. Justice John C. Sheehy dissenting: 

In approving the attorneys fees of $3,000 here, the 

majority approves their pay at the rate of $20.75 per hour. 

That rate is unconscionable! It is unreasonable in the 

sense that it defies reason. It means that the successful 

attorney, if his client does not make up the difference, 

will have to sustain the deficiency, or recover a proper 

amount from other clients in his office by charging them 

greater fees to make up his loss. 

Let me state a lesson in law office economics. A 

lawyer in private practice, five years out of law school, 

and not a parttime retiree, who is not grossing $30,000 a 

year in fees should seek some other business. At a point 

where a lawyer's gross fees exceed $40,000 per year, he 

begins to be an economic unit. As a general rule of thumb, 

it can be assumed that from $40,000 to $100,000 per year in 

gross fees, his costs of doing business, including office 

rent, library, employees' wages, and general office expenses 

will exhaust 50 percent of the gross fees that he will earn. 

In theory, a lawyer who practices on a fee basis of 

charging for his time has a possible 2,000 hours per year 

for which he could send bills. In reality, however, the 

time a lawyer will spend in professional upgrading, community 

service, and general office management will reduce the 

billable time to clients to about 60 percent, or 1,200 hours 

per year. The minimum, therefore, that any lawyer worth his 

salt should charge for his time is $50 per hour. At that 

rate, there is no danger that he would accumulate much of an 

estate. 

In this case, the attorneys possibly out of deference 

to the District Court, reduced the claimed fee of $50 per 

hour by 20 percent to $40 per hour. It was the latter 
figure that gave rise to the fee of $5,773.20. Then, after 

finding that the fee the attorneys claimed was "most fair" 

the District Court sliced that fee nearly in half to a sum 

that I would consider most unfair. The reasons given by the 

District Court, and now endorsed by this Court for this 

slicing are that the plaintiff had attorneys who did not 

serve him properly or that the attorneys were not professional 

in their work for the plaintiff. The attorneys were selected 

by the plaintiff, yet it is the defendant and his attorneys 

who are required by the court to pay the price. 

It is no answer to say that the claimed fee approached 

100 percent of the lien claim against the defendant in this 

case. The defendant's alternatives were to either hire an 

attorney and defend against a claim, or pay the $6,200.00. 

He had little choice. 

I would reverse by reinstating the fee that the District 

Court found reasonable to be awarded here.