No

No. 99-031

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 234

296 Mont. 138

988 P.2d 761

JUDY BRAACH,

Plaintiff and Appellant,

v.

T. JANELLE GRAYBEAL, Clerk and Election 

Administrator of School District No. 1, County 

of Granite, State of Montana,

Defendant and Respondent: 

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Granite,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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Shane A. Vannatta; Worden, Thane & Haines, Missoula, Montana

For Respondent:

Jeffrey M. Hindoien; Gough, Shanahan, Johnson & Waterman, 

Helena, Montana

Submitted on Briefs: May 13, 1999

Decided: September 29, 1999

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶ Judy Braach (Braach) appeals from the order of the Third Judicial District Court, 

Granite County, denying her motion for attorney fees. We affirm.

¶ The issue on appeal is whether the District Court erred in concluding Braach is not 

entitled to attorney fees in this action.

BACKGROUND

¶ Braach was one of five duly elected members of the Board of Trustees (Trustees) 

for School District No. 1 in Granite County, Montana. In March of 1998, the other 

Trustees submitted a petition to the Clerk of the School District, T. Janelle Graybeal 

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(Graybeal), requesting an election to determine whether Braach should be recalled 

from the office of Trustee. Graybeal reviewed the petition and approved it as 

complying with the form requirements set forth in §§ 2-16-616 and 2-16-617, MCA. 

The Trustees then circulated the petition to collect signatures of the School District 

electors, following which the Granite County Clerk and Recorder verified the 

signatures, Graybeal accepted the petition for filing and the recall election was 

scheduled for May 5, 1998.

¶ Braach filed a complaint in District Court alleging that Graybeal should not have 

accepted the petition because it was facially deficient and requesting the court to 

enjoin Graybeal from taking any further action with regard to the recall election. 

The District Court granted a temporary restraining order to stop the election and 

scheduled a hearing on Braach’s request for a preliminary injunction.

¶ The parties subsequently stipulated to the entry of a permanent injunction 

prohibiting Graybeal from proceeding with the recall election. Braach then moved 

the District Court for an award of attorney fees as the prevailing party in the action 

and the court denied the motion. Braach appeals.

STANDARD OF REVIEW

¶ Generally, a district court’s grant or denial of a motion for attorney fees is a 

discretionary ruling which we review to determine whether the court abused its 

discretion. See Goodover v. Lindey’s, Inc. (1992), 255 Mont. 430, 449, 843 P.2d 765, 

776. Here, the District Court denied Braach’s motion for attorney fees based on its 

determination that there is no legal authority for such an award in this case. This 

underlying determination is a conclusion of law which we review to determine 

whether the court interpreted the law correctly. Kunst v. Pass, 1998 MT 71, ¶ 19, 288 

Mont. 264 ¶ 19, 957 P.2d 1, ¶ 19.

DISCUSSION

¶ Did the District Court err in concluding Braach is not entitled to attorney fees in 

this action?

¶ It is well-established in Montana that, absent contractual or statutory authority, 

attorney fees generally will not be awarded. Goodover, 255 Mont. at 445, 843 P.2d at 

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774 (citations omitted). Braach concedes that no contract or applicable statute 

authorizes an attorney fees award in this case. Notwithstanding the absence of such 

authority, however, she argues entitlement to attorney fees as a matter of equity as 

the prevailing party in her action to enjoin the recall election proceedings. The 

District Court concluded that this case does not fall within the limited circumstances 

under which an equitable award of attorney fees is allowed in Montana. We agree.

¶ We have held that a court, under its equity powers, may award attorney fees to 

make an injured party whole. Foy v. Anderson (1978), 176 Mont. 507, 511-12, 580 

P.2d 114, 116-17. Such awards are to be determined on a case-by-case basis. Foy, 176 

Mont. at 511, 580 P.2d at 117. In subsequent cases addressing the Foy "equitable" 

exception, however, we have expressly limited its applicability to situations where a 

party has been forced to defend against a wholly frivolous or malicious action. See, e.

g., Youderian Const., Inc. v. Hall (1997), 285 Mont. 1, 15, 945 P.2d 909, 917; Newman 

v. Wittmer (1996), 277 Mont. 1, 12, 917 P.2d 926, 933; Tanner v. Dream Island, Inc. 

(1996), 275 Mont. 414, 429-30, 913 P.2d 641, 651; Holmstrom Land Co. v. Hunter 

(1979), 182 Mont. 43, 48-49, 595 P.2d 360, 363.

¶ In the present case, Braach was not required to defend against a frivolous lawsuit. 

Rather, she initiated this action as the plaintiff. We specifically have held that 

attorney fees are not available under the Foy exception for parties who initiate legal 

action. See Youderian Const., 285 Mont. at 15, 945 P.2d at 917; Newman, 277 Mont. 

at 12, 917 P.2d at 933; Tanner, 275 Mont. at 429, 913 P.2d at 651.

¶ Braach asserts that, even though she initiated this action, she is in a situation 

similar to that faced by defendants forced to defend frivolous lawsuits because she 

was forced to bring this action to protect herself from a defective recall petition and 

had no other recourse. She cites State ex rel. Wilson v. Dept. of Natural Resources 

(1982), 199 Mont. 189, 648 P.2d 766, for the proposition that the designation of a 

party in a lawsuit is not necessarily dispositive.

¶ In Wilson, property owners were forced to intervene in an action brought by 

Wilson against the Department of Natural Resources and Conservation in order to 

protect their rights to appropriate water from a creek. After the district court 

granted injunctive relief against Wilson, the intervenors sought and were awarded 

attorney fees. Wilson, 199 Mont. at 193, 648 P.2d at 768. We reversed the district 

court’s grant of attorney fees to the intervenors, but stated that "there is room within 

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the Foy exception for those who reasonably find it necessary to intervene in a 

frivolous action, although not technically forced to become parties." Wilson, 199 

Mont. at 197, 648 P.2d at 770.

¶ In Wilson, the intervenors were not defendants, but they found it necessary to 

become parties to an action brought by another person in order to protect their 

rights. They did not bring the action themselves, however. Thus, the intervenors 

found themselves in circumstances similar to those of defendants asserting a Foybased entitlement to an equitable award of attorney fees. As stated above, Braach 

initiated this action requesting injunctive relief. She was not forced to intervene or 

otherwise become involved in a legal action initiated by another. Consequently, 

Wilson does not support her argument here. Moreover, parties bringing actions for 

injunctive relief to protect their own rights are not entitled to attorney fees under the 

Foy exception. See, e.g., Parker v. Elder (1992), 254 Mont. 270, 836 P.2d 1236; 

Newman, 277 Mont. at 12, 917 P.2d at 933. We conclude that Foy’s narrowly defined 

"equitable" exception to the general attorney fees rule is not applicable in the 

present case.

¶ Braach also argues that, because a recall petition sponsor is allowed to recover 

attorney fees for successfully compelling a clerk to approve a recall petition, we 

should extend a reciprocal right to recover attorney fees to parties who successfully 

enjoin a defective recall petition. We decline to do so.

¶ Section 2-16-615(2), MCA, provides that, if an official refuses to accept a proper 

recall petition for filing, any elector may petition the district court for a writ of 

mandamus compelling the official to file the petition. Under § 27-26-402(1), MCA, a 

successful petitioner for a writ of mandamus may recover damages, and we have held 

that such damages may include attorney fees. Kelleher v. Board of Social Work 

Exam'rs (1997), 283 Mont. 188, 192, 939 P.2d 1003, 1006 (citing Kadillak v. Montana 

Dept. of State Lands (1982), 198 Mont. 70, 74, 643 P.2d 1178, 1181). In contrast, 

where a legally insufficient recall petition has been accepted for filing, the proper 

procedure for relief is by way of an injunction. Section 2-16-615(2), MCA; Sheehy v. 

Ferda (1988), 235 Mont. 63, 71, 765 P.2d 722, 727. Attorney fees are not available in a 

successful action for injunctive relief. See Parker, 254 Mont. at 271, 836 P.2d at 1237-

38. Thus, § 2-16-615(2), MCA, provides for different procedural remedies depending 

on the relief sought; one of those remedies allows for attorney fees and one does not. 

Braach advances no persuasive authority for providing a reciprocal right to attorney 

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fees in circumstances where the underlying actions are based on different legal 

remedies and are brought for different purposes.

¶ Braach’s final argument relates to the language in § 2-16-615(2), MCA, authorizing 

a court to "enjoin" a recall election if a filed recall petition is defective, and our 

related determination in Sheehy that the statute clearly provides for the remedy of 

injunctive relief. See Sheehy, 235 Mont. at 71, 765 P.2d at 727. She asserts that the 

statutory term "enjoin" should be construed more broadly to mean a general "action 

of directing or prohibiting" rather than simply "injunction." Under such an 

interpretation, the statute would allow a person to challenge a deficient recall 

petition by requesting a writ of prohibition instead of an injunction and, as Braach 

correctly observes, attorney fees are available in a successful action for a writ of 

prohibition. See Allen v. Madison County Comm’n (1984), 211 Mont. 79, 89, 684 P.2d 

1095, 1101. On these bases, Braach urges us to overrule Sheehy, hold that the filing 

of a deficient recall petition may be challenged through application for a writ of 

prohibition, deem her complaint for injunctive relief an action for a writ of 

prohibition and award her attorney fees accordingly.

¶ Section 2-16-615(2), MCA, is part of the Montana Recall Act enacted by the 

Montana electorate in 1976 through Initiative No. 73 (I-73). The section of I-73 

containing the language authorizing a court to "enjoin certification, printing or 

recall election" is entitled "Mandamus For Refusal To File--Injunction." See Sec. 12, 

I.M. No. 73, approved November 2, 1976. In addition to expressly using the word 

"enjoin," the drafters of I-73 clearly intended that a deficient recall petition be 

challenged by way of an action for an injunction. They did not provide for relief via 

an application for a writ of prohibition, which is governed by entirely separate 

statutes than those applicable to an action for an injunction. Cf. §§ 27-27-101, MCA, 

et seq. and §§ 27-19-101, MCA, et seq. For these reasons, we may not broaden the 

word "enjoin" used in § 2-16-615(2), MCA, to encompass a separate and distinct 

remedy, and we reaffirm our holding in Sheehy.

¶ We hold that the District Court correctly concluded Braach is not entitled to 

attorney fees in this action.

¶ Affirmed.

/S/ KARLA M. GRAY

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We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER 

Justice Jim Regnier dissenting.

¶ I respectfully dissent from the majority's conclusion to affirm the District Court 

and deny Ms. Braach reimbursement for her attorney fees. I would remand this 

matter back to the District Court for a determination of her reasonable attorney fees.

¶ The majority has correctly stated that it is well established in Montana that a party 

in a civil action is generally not entitled to fees absent a specific contractual or 

statutory provision. Certainly, in this case there was no contract between Braach and 

Graybeal which could serve as a basis for the award of attorney fees, nor does any 

Montana statute explicitly provide Braach a right to recover attorney fees in this 

situation. In my view, however, I would expand the Foy doctrine in a limited fashion 

to cover this situation.

¶ The District Court determined that the recall petition against Braach was deficient 

on its face. The Montana Recall Act specifically provides that an election 

administrator must review a recall petition before it is circulated among the 

electorate. See § 2-16-617(3), MCA. Election administrators have an affirmative 

obligation to prevent defective petitions from circulating in the public. See Steadman 

v. Hallard (1982), 197 Mont. 45, 53, 641 P.2d 448, 453. 

¶ Braach did not initiate the recall election process nor did she have any role in 

drafting the recall petition. Graybeal's decision to proceed with the recall election 

inserted Braach into a recall election which was, on its face, legally defective. With 

the election eminent, Braach had no other option than to file this action to stop the 

process. Braach was essentially forced to protect her interest in the elected position 

by initiating this action to enjoin the defective recall petition. Her action to enjoin the 

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election based on the defective petition was in the nature of a defensive response even 

though she was required to initiate the injunctive action. There is a public interest 

component of Braach's suit, which she filed to protect her elected office from a 

fatally defective recall petition. The expense of protecting the public interest and the 

democratic process should not be borne by elected officials such as Braach.

¶ I would expand Foy to include situations such as this where an elected official is 

compelled to set aside a defective recall petition.

/S/ JIM REGNIER 

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