No. 86-219 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

JEFF D. LAUDERDALE and MARLENE 

V. LAUDERDALE, 

Plaintiffs and Appellants. 

H. T. GRAUMAN and AVIS M. GRAUMAN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leaphart Law Firm; W. William Leaphart, Helena, 

Montana 

For Respondent: 

Poore, Roth & Robinson; Robert C. Brown, Butte, 

Montana 

- 

Submitted on Briefs: August 7, 1986 

Decided: October 2, 1986 

Filed: oc% 2 A 3986 

Z~UP~L Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Jeff and Marlene Lauderdale appeal from that portion of 

the March 26, 1986, judgment and memorandum of the Fifth 

Judicial District Court which orders Lauderdales to pay H.T 

and Avis Grauman $12,000 for attorneys' fees incurred in this 

suit. We affirm the decision of the trial judge. 

Lauderdales purchased Jefferson Valley Grain Company 

from Graumans by contract for deed executed April 1, 1974. 

On March 22, 1983, after paying more than 80% of the contract 

price to Graumans, Lauderdales filed suit against Graumans 

for breach of contract. Specifically, Lauderdales alleged 

Graumans acted fraudulently in the sale of their business by 

failing to disclose that the rear fifteen feet of the 

building was not on deeded property. 

Graumans filed their answer, counterclaim and a 

third-party complaint on May 26, 1983. The third-party 

complaint was eventually dismissed and is not at issue here. 

Graumans' counterclaim alleges breach of contract by 

Lauderdales and requests dismissal of Lauderdales' complaint, 

compensatory damages, specific performance, punitive damages, 

costs and attorneys' fees. Specifically, Graumans allege 

Lauderdales breached the contract by failing to operate the 

business in the same manner as Graumans and by failing to 

provide proof of payment of taxes and insurance premiums to 

the escrow agent. 

Lauderdales and Graumans each filed motions for summary 

judgment in January of 1984. Following briefing and oral 

argument, the trial judge denied both motions. 

In October of 1984, Lauderdales made their final payment 

under the contract for deed. Trial commenced January 22, 

1986. On that day, Graumans agreed to dismiss their 
counterclaim, stating that it had been rendered moot when the 

contract for deed was paid in full and the escrow account 

closed. 

Following trial, the jury found in favor of Graumans. 

Graumans then filed a memorandum of costs and a motion for 

determination and assessment of attorneys' fees based on the 

following provision in the contract for deed: 

In any litigation arising out of this agreement, 

the successful litigants shall be entitled to 

receive from the other parties, in addition to the 

costs and disbursements provided for by statute, a 

reasonable attorney's fee as fixed by the Court. 

Graumans requested $17,895.67 in attorneys' fees and $343.70 

in costs. Lauderdales objected, alleging there was no 

"successful party" in the litigation. The issue was briefed 

and a hearing held. Thereafter, the trial judge found 

Graumans to be the "successful litigants" or "prevailing 

party." They were awarded $12,000 in attorneys' fees and the 

costs they had requested. 

On appeal, Lauderdales again contend there was no 

"successfu1 litigant." Lauderdales argue they became the 

prevailing party on Graumans' counterclaim when the Graumans 

voluntarily dismissed it. Thus, since both parties won and 

lost on claims arising out of the litigation, there was no 

prevailing party and the parties are responsible for their 

own attorneys' fees. 

We agree with Lauderdales' assertion that there are 

cases where, at the close of all litigation, there is no 

actual "prevailing party. " " [TI here is no prevailing party 

where both parties gain a victory but also suffer a loss." 

Parcel v. Myers (Mont. 1984), 697 P.2d 89, 91-92, 41 St.Rep. 

2426, 2429, citing Knudsen v. Taylor (Mont. 1984), 685 P.2d 

354, 357, 41 St.Rep. 1490, 1493. 
However, the case before us is not of that nature. 

Graumans have suffered no trial loss. They dismissed their 

counterclaim because it was rendered moot. This is clearly 

distinguishable from a situation where the jury found against 

Graumans on the counterclaim. Because Graumans are the 

prevailing party, they were properly awarded attorneys' fees. 

Jordan v. Elizabethan Manor (1979), 181 Mont. 424, 434, 593 

P.2d 1049, 1055. 

Finally, Graumans request attorneys' fees incurred as a 

result of this appeal. Where an award of attorneys' fees is 

based on a contract, the award includes attorneys' fees 

generated on appeal. Diehl and Associates v. Houtchens 

(1979), 180 Mont. 48, 53, 588 P.2d 1014, 1017. The District 

Court judge is ordered to determine the reasonable attorneys' 

fees due Graumans. 

Affirmed and remanded. 

We Concur: 4 4, Chief Justice