No. 82-84 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JACK A. MARTA, ROBERT D. MARTA, 

and DAVID A. MARTA, 

Plaintiffs and Appellants, 

DOUGLAS L. SMITH and EFFIE L. SMITH, 

Defendants and Respondents. 

Appeal from: District Court of the +& Judicial District, 

In and for the County of Ga-Gke45-n Jl/u4&d-~j 

Honorable Nat Allen, Judae presiding. 

Counsel of Record: 

For Appellants: 

Morrow, Sedivy, Olson & Eck, Bozeman, Montana 

James H. Morrow, Bozeman, Montana 

For Respondents: 

Jardine, McCarthy & Grauman, Whitehall, Montana 

David Grauman, Whitehall, Montana 

Submitted on briefs: August 26, 1982 

Decided: September 23, 1982 
,:4r. Justice John C. Sheehy delivered the Opinion of the Court. 

Plaintiffs appeal from a judgment awarding defendants 

damages of $5,500 and attorney fees of $2,000 entered in the 

District Court of the Fifth Judicial District, "/ladison 

county. 

This case was reviewed by this Court in Yarta v. Smith 

(19811, -- Mont. - , 633 P.2d 1011, 38 St.Rep. 28. We 

remanded the case to the District Court on January 12, 1381, 

because no evidence was presented concerning attorney fees 

granted to defendants in the original proceedings. In our 

order denying hearing, we emphasized that the attorney fees 

were to be limited to "services rendered in dissolving the 

injunction. " 

On May 22, 1981, a hearing was held to determine the 

attorney fees to be awarded to defendants. John Jardine, 

one of defendants' counsel of record, testified that the 

injunction and efforts to resolve it involved 60 to 70 

percent of the time he spent on the case. He estimated his 

fees to be $11,000, which included the appeal. Frank Davis, 

a nillon lawyer, testified he superficially reviewed Jardine's 

file and agreed $11,000 was a reasonable fee. On ?lay 29, 

1981, a summary order was issued setting defendants' attorney 

fees at $2,900. 

On May 27, 1981, defendants filed a supplemental memorandum 

of costs to which plaintiffs objected on June 3, 1981, 

011 the ground that improper costs were included. On June 

10, 1981, plaintiffs also moved to amend the May 29 order 

setting attorney fees. A briefing schedule was set for 

these issues, with final briefs due on July 17, 1981. 

Without waiting for the final briefs, the ~istrict 

Court issued amended findings of fact and conclusions of law 
on June 29, 1981. These amended findings and conclusions 

again set attorney fees at $2,000. In addition, the District 

Court amended a prior conclusion of law that was part of the 

original judgment, wherein plaintiffs were ordered to 

repair defendants' irrigation ditch or, -- in the alternative, 

pay damages to the defendants in the amount of $5,590. In 

the amended findings, the District Court ordered plaintiffs 

to pay $5,500 to defendants for damages caused to defendants' 

irrigation ditch. Plaintiffs objected to the amended findings 

and conclusions. A hearing on plaintiffs' objections and on 

the question of costs was held on July 24, 1951. 

On the question of repairs of the irrigation ditch, Rob 

Marsh, lessee of plaintiffs' farm lands, testified he hauled 

in rip-rapping, and used men and equipment to repair sections 

of the ditch which had shown erosion in the past years. 

Several other witnesses also testified that they approved of 

the manner in which Marsh repaired the ditch. 

Defendant, Douglas Smith, testified that the ditch had 

not been repaired according to the specifications set out by 

John Simpson, a witness in the original trial. It was 

Smith's understanding that the original judgment demanded 

such compliance. Simpson advocated a system of drops and 

recom~ended that dirt and rock be hauled in to repair the 

sides of the ditch. He estimated that such restoration would 

cost about $5,500, exactly the amount of damages awarded to 

defendants in the original judgment and amended judgment. 

On December 28, 1981, the District Court entered an 

order overruling the plaintiffs' objections and denying the 

motion for a hearing on damages. The District Court then 

made findings and conclusions in respect to plaintiffs' 

objections on January 3, 1981. 
Plaintiffs present 6 issues on appeal: 

1. Whether the lower court erred by awarding irrigation 

ditch damages without a hearing; 

2. Whether the lower court erred in finding plaintiffs 

were not entitled to a hearing on damages; 

3. Whether the lower court erred by awarding irrigation 

ditch damages without findings of fact and conclusions of 

law; 

4. Whether there is substantial evidence to support 

the award of irrigation ditch damages; 

5. Whether the lower court erred in awarding attorney 

fees without making findings of fact; 

6. Whether there is substantial evidence to support 

the award of attorney fees. 

Defendants present an additional issue on appeal: Whether 

attorney fees should be granted to defendants based on Rule 

32, M.R.App.Civ.P. 

Plaintiffs contend that the District Court erred by 

awarding irrigation ditch damages without holding an evidentiary 

hearing and without making findings of fact and conclusions 

of law. We agree with plaintiffs' contentions. 

In the original judgment of October 31, 1979, plaintiffs 

were given the alternative of repairing the ditch or paying 

damages of $5,530. This part of the original judgment 

was affirmed on appeal. On remand, the District Court amended 

its conclusions of law to omit the alternative which originally 

allowed plaintiffs to repair the ditch. his was done 

without the submission of any additional evidence by either 

party. 

Amending the conclusions in this manner is clearly an 

abuse of discretion on the part of the District Court. Rule 
52(b), M.R.Civ.P., allows for amendment of the findings and 

judgment "upon motion of a party." Rule GO(b) allows the 

District Court to relieve a party from a judgment or order 

for reasons of mistake, inadvertence, excusable neglect, newly 

discovered evidence, or fraud. However, such relief can be 

granted only after the parties are accorded a hearing. Rule 

60(c), M.R.Civ.P. Only when there is a clerical mistake in 

the judgment, under Rule 60(a), when the defendants are not 

personally notified as required by law, under Rule 5O(h), 

>i.R.Civ.P., or when there has been a fraud upon the court 

under Rule 60(b), M.R.Civ.P., can the District Court amend 

or set aside the judgment on its own initiative. 

In the present case, none of the above exceptions 

apply. Therefore, the District Court abused its discretion 

when it did not hold a hearing to determine whether the 

ditch had been repaired. Instead, the District Court amended 

its conclusion of law and judgment to omit plaintiffs' 

alternate remedy of repairing the ditch. Without additional 

evidence on the record, the District Court could not have 

known whether either of the alternatives set forth in the 

original judgment were met. Accordingly, we vacate that 

portion of the District Court's judgment which omits the 

alternative of repairing the ditch. 

There still remains the question of how the original 

judgment should be interpreted. Our first opinion found 

that substantial evidence existed to uphold the District 

Court's finding that plaintiffs' were negligent in their use 

of the irrigation ditch, and that defendants were entitled 

to relief. This is the law of the case on this issue, and 

it is binding upon this Court on a9peal. Cremer v. Cremer 

Rodeo Land and Livestock Company (1981), Yon t . - , 627 

P.2d 1199, 38 St.Rep. 574. 
The testimony of John Simpson in the original trial 

indicated that repair of the ditch in the manner he advocated 

would cost $5,500. The District Court, in its original 

findings of fact, found that defendants had been damaged in 

the amount of $5,500, and it would cost $5,500 to repair the 

irrigation ditch. 

From these findings, it can be implied that the District 

Court found that the plaintiffs were required to repair the 

irrigation ditch in the manner testified to by John Simgson. 

In support of the trial court, this Court will imply findings 

so long as those findings are not inconsistent with express 

findings made. Crissy v. State Highway Commission (1366), 

147 Nont. 374, 381, 413 P.2d 308, 313. 

Plaintiff next contends the District Court erred in 

awarding attorney fees without making findings of fact. We 

cannot agree with this contention. 

In awarding $2,000 for attorney fees the findings of 

fact entered on June 29, 1981, provided that defendants' 

testimony showed fees to be in excess of $2,000 and that 

plaintiffs did not present any evidence on the matter. The 

~istrict Court found $2,003 to be a reasonable fee based on 

the testimony. 

Here, the District Court's finding of fact was sufficient 

to comply with Rule 52(a), M.R.Civ.P. As stated in that 

rule, "Findings of fact shall not be set aside unless clearly 

erroneous . . ." It cannot be said that the finding in this 

case is clearly erroneous. The court considered the evidence 

presented and determined $2,000 to be a reasonable fee. The 

finding is based on substantial evidence and will not be 

overruled by this Court. 
Finally, defendants contend that, based on 3ule 32, 

M.R.App.Civ.P., attorney fees should be granted for this 

appeal because plaintiffs' appeal is frivolous, without 

justification, and merely an attempt to prolong litigation. 

Rule 32, l4.R.App.Civ.F. provides: 

"If the supreme court is satisfied from the 

record and the presentation of the appeal 

that the same was taken without substantial 

or reasonable grounds, but apparently for 

purposes of delay only, such damages may 

be assessed on determination thereof as 

under the circumstances are deemed proper." 

Based upon this statute, we do not find that plaintiffs 

have presented a frivolous appeal. Plaintiffs were justified 

in bringing this appeal to clarify the alternative judgment. 

Therefore, attorney fees should not be awarded under Rule 

The judgment of the District Court awarding attorney 

fees of $2,000 to defendants is affirmed. Attorney fees to 

defendants under Rule 32, 3t.R.App.Civ.P. are denied. The 

judgment of January 15, 1982, is hereby amended with respect 

to the awarding of damages for negligent use of the irrigation 

ditch to read as follows: 

"The plaintiffs shall have until March 31, 1983, 

to repair the irrigation ditch in the manner 

testified to by John Simpson in the July 12, 

1979 hearing; or, in the alternative, shall pay 

to the defendants the sum of $5,500 plus interest 

accruing from date of the original judgment as 

damages to their lands." 
We Concur: