No. 86-330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

VERNON HOVEN , 

Plaintiff and Respondent, 

-vsV7ILLIAM F. AMRINE and LARRY VERVICK, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James R. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lawrence F. Daly; Garlington, Lohn & Robinson, 

Missoula, Montana 

For Respondent: 

Christopher B. Swartley; Datsopoulos, MacDonald 

and. Lind, Missoula, Montana 

Submitted on Briefs: Sept. 25, 1986 

Decided : October 30, 1986 

. , ,,qcJE Filed: r)Pe- 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

William Amrine and Larry Vervick appeal from a judgment 

of the District Court, Fourth Judicial District, Missoula 

County, awarding attorney fees to Vernon Hoven. We affirm 

the District Court's award. 

Hoven, Amrine and Vervick were equal shareholders in the 

Missoula accounting firm of Hoven, Vervick & Amrine. In 

July, 1979, Amrine and Vervick entered into an agreement to 

purchase stock from Hoven. The agreement provided for the 

award of attorney fees in the event a lawsuit was brought to 

enforce any of the provisions of the agreement. 

In June, 1985, Hoven served default notices on Amrine 

and Vervick for failing to pay for the stock they had 

purchased. Vervick and Amrine then brought suit in the 

District Court to have the notices declared void. Hoven 

responded with a suit against Amrine and Vervick seeking an 

injunction and damages. The District Court consolidated the 

two cases, and after a show cause hearing on June 25, 1985, 

issued a preliminary injunction against Amrine and Vervick, 

restraining them from taking any action which might 

negatively affect the value of the corporation or its stock. 

Amrine and Vervick continued to manage the day-to-day 

business of the corporation. In August, 1985, the 

corporation experienced cash flow problems and was unable to 

meet certa.in obligations, including state and federal payroll 

taxes. Amrine and Vervick, through their attorney, attempted 

to contact Hoven, in order to obtain a stipulation for the 

sale of a corporate asset to raise money. Their attorney was 

unable to elicit a response from Hoven's attorney, and they 
finally filed a motion to modify the preliminary injunction. 

A hearing on this motion was held August 30, 1985. At the 

hearing, Hoven testified he had no substantive objections to 

the sale. The District Court granted the first two 

paragraphs of Amrine and Vervick's petition for modification, 

deferring action on the remaining three issues. 

In October, 1985, the District Court ruled that the 

default notices were valid, and that Hoven was entitled to 

recover attorney fees pursuant to the stock purchase 

agreement. In November, the court held a hearing to set the 

attorney fee award. Hoven was awarded fees for all attorney 

services between June 14 and July 9, 1985. The court 

reserved ruling on which party was entitled to recover fees 

for the period a.fter July 9, 1985. Finally, in April, 1986, 

the District Court granted Hoven attorney fees for the 

post-July 9 period, and denied Amrine and Vervick's request 

for the same. 

Amrine and Vervick raise two issues on appeal: Whether 

Hoven was entitled to an award of attorney fees for the 

post-July 9 period, and if so, whether those fees were 

reasonable? Additionally, respondent Hoven requests attorney 

fees for this appeal. 

Attorney fees are allowed when they are provided for by 

statute or contractual provision. Jordan v. Elizabethan 

Manor (1979), 181 Mont. 424, 434, 593 P.2d 1049, 1055. In 

this case, the stock purchase agreement had a clause which 

provided : 

a. Attorney Fees. In the event suit is brought to 

enforce any of the provisions of this agreement, 

the prevailing parties shall be entitled to costs 

of suit and any appeals thereon, including 

reasonable attorney's fees. 
Amrine and Vervick argue that the attorney fees awarded 

for the August 30 hearing for modification of the preliminary 

injunction do not fall under the contract provision cited 

above. They argue that the modification of the injunction to 

allow sale of a corporate asset has nothing to do with 

enforcement of the provisions of the stock purchase 

agreement. 

We disagree. The main issues before the District Court 

were whether or not the stock purchase agreement had been 

breached by the failure of Amrine and Vervick to tender 

payment to Hoven, and whether the default notices were valid. 

These were complex issues which the court ultimately decided 

in favor of Hoven in October, 1985. In the interim, while 

the court was resolving the issues, a temporary injunction 

was necessary to prevent Amrine and Vervick from dissipating 

the assets of the corporation. The August 30 modification of 

the injunction was necessary in order to allow the 

corporation's operations to continue. We find, as did the 

District Court, that the injunction and its modification were 

one facet of the litigation whose main issues were the 

validity of the default notices and breach of contract. 

The party who prevails on the main issue of a case is 

entitled to costs. Medhus v. Dutter (1.979), 184 Mont. 437, 

447, 603 P.2d 669, 674. A prevailing party is one who has an 

affirmative judgment rendered in his or her favor at the 

conclusion of the entire case. Jordan v. Elizabethan Manor, 

181 Mont. at 434, 593 P.2d at 1055. Medhus concerned costs 

under §5 25-10-101 and 25-10-102, MCA, while Jordan related 

to attorney fees by contract. The interpretation in these 

cases of "prevailing party" is applicable here. The District 

Court found that Amrine and Vervick were not prevailing 
parties; not only did Hoven prevail on the main issues of the 

case, but the court granted only two of the five requests 

made in Arnrine and Vervick's petition to modify. The court's 

award of attorney fees in this case was proper. 

Arnrine and Vervick's second argument is that the 

attorney fees incurred by Hoven are unreasonable since those 

fees would not have been incurred if Hoven had stipulated to 

the sale of the asset rather than force them to petition the 

court for a modification of the injunction. The District 

Court found that where parties are able to stipulate to an 

issue, matters may be more quickly resolved--but that the 

failure to stipulate to an issue is not necessarily 

unreasonable in an adversarial setting where the parties are 

unable to reach an agreement. The court found that by 

participating in the hearing, whether or not it was 

reasonable or necessary, both parties incurred expenses and 

attorney fees. 

We hold the District Court did not abuse its discretion 

by awarding attorney fees to Hoven, including those incurred 

by his attorney from the August 30 hearing. The District 

Court awarded attorney fees to the party prevailing on the 

main issues of the case. It is not reasonable to require the 

District Court to keep a running tally of "points scored" by 

each side in order to apportion costs and attorney fees at 

the end of every lawsuit. Our adoption of the prevailing 

party rule in Medhus - v. Dutter, supra, obviates that 

requirement. 

Order of the District Court is affirmed, and the cause 

remanded for determination of respondent's costs and attorney 

fees for this appeal. 
i, '-.. . 

Justice 

We Concur: 

A 

- 

Chief Justice