No. 82-84 IN THE SUPREME COURT OF THE STATEOF MONTANA

JACKA. MARTA, ROBERT D. MARTA, and DAVIDA. 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-nJl/u4&d-~j HonorableNat Allen, Judaepresiding. Counsel of Record: ForAppellants: Morrow, Sedivy,Olson & Eck, Bozeman,Montana JamesH. 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. JusticeJohn 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 DistrictCourt on January 12, 1381, because no evidencewas presented concerning attorney fees granted to defendants in the originalproceedings. In our order denying hearing,we emphasized that the attorney fees

were to be limited to "servicesrendered 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 injunctionand 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 $11,000was a reasonable fee. On ?lay29, 1981,a summary orderwas issued setting defendants' attorney fees at $2,900. On May 27, 1981,defendants filed a supplementalmemorandum of costs to which plaintiffs objected on June 3, 1981,

011 the ground that improper costs were included. On June 10, 1981,plaintiffs alsomoved to amend theMay 29 order setting attorney fees. A briefing schedulewas set for these issues, with finalbriefs due on July 17,1981. Without waiting for the final briefs, the ~istrict Court issued amended findingsof fact and conclusions of lawon 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 plaintiffswere 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' irrigationditch. Plaintiffsobjected to the amended findings and conclusions. A hearing on plaintiffs' objectionsand on the question of costswas held on July 24, 1951. On the question of repairs of the irrigationditch,Rob Marsh, lessee of plaintiffs' farm lands, testified he hauled in rip-rapping, and used men and equipment to repair sections of the ditchwhich had shown erosion in the past years. Several other witnesses also testified that they approved of the manner inwhich Marsh repaired the ditch. Defendant, Douglas Smith, testified that the ditch had not been repaired according to the specifications set outby John Simpson,a witness in the original trial. Itwas Smith's understanding that the original judgmentdemanded such compliance. Simpsonadvocated a system of drops and recom~endedthat 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.Plaintiffspresent 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 findingsof 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 withoutmaking findings of fact; 6. Whether there is substantial evidence to support the award of attorney fees. Defendantspresent an additional issue on appeal: Whether attorney fees should be granted to defendantsbased 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 withoutmaking 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 conclusionsof law to omit the alternativewhich 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. Rule52(b),M.R.Civ.P., allows for amendment of the findings and judgment "uponmotion of a party." Rule GO(b) allows the District Court to relieve a party from a judgment or order for reasons ofmistake, 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., orwhen 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 conclusionof law and judgment to omit plaintiffs' alternate remedy of repairing the ditch. Without additional evidence on the record, the DistrictCourt could not have known whether either of the alternatives set forth in the original judgmentwere met. Accordingly,we vacate that portion of the District Court's judgmentwhich omits the alternativeof repairing the ditch. There still remains the question of how the original judgment should be interpreted. Our first opinion found that substantialevidence 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), Yont

# . , 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 defendantshad been damaged in the amount of $5,500, and itwould cost $5,500 to repair the irrigationditch. From these findings, it can be implied that the District Court found that the plaintiffs were required to repair the irrigation ditch in themanner testified to by John Simgson. In support of the trial court, this Courtwill imply findings

so long as those findings are not inconsistentwith express findingsmade. Crissy

### v. StateHighway Commission (1366), 

### 147Nont. 374, 381, 413 P.2d 308, 313. Plaintiff next contends the District Court erred in awarding attorney fees withoutmaking findings of fact. We cannot agreewith 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 thematter. The ~istrict Court found $2,003 to be a reasonable fee based on the testimony. Here, the DistrictCourt's finding of factwas sufficient to complywith Rule 52(a), M.R.Civ.P. As stated in that rule, "Findingsof fact shall notbe set aside unless clearly

erroneous 

## . 

# .." It cannotbe 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 isbased 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 becauseplaintiffs' 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 samewas taken without substantial or reasonable grounds, but apparently for purposes of delay only, such damagesmay 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. Plaintiffswere justified in bringing this appeal to clarify the alternative judgment. Therefore,attorney fees shouldnot 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 amendedwith respect to the awarding of damages for negligent use of the irrigation ditch to read as follows: 

### "Theplaintiffs shall have until March 31, 1983, to repair the irrigationditch in themanner testified to by John Simpson in the July 12, 1979 hearing; or, in the alternative, shallpay to the defendants the sum of $5,500plus interest accruing from date of the original judgment as damages to their lands."

### We Concur: