NO. 83-560 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JACK HUGO PARCEL, 

Plaintiff and Appellant, 

-vsMERLIN W. MYERS, et. ax., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark L. Stermitz, Stanford, Montana 

For Respondents: 

William E. Berger, Lewistown, Montana 

Hauge, Ober & Brown, Havre, Montana 

Submitted on Briefs: Nov. 29, 1984 

Decided: December 28, 1984 

Filed: DEC 2 t? 1984 

Clerk 
Mr. Justice Frank B. Morrison, Jr. , delivered the Opinion of 

the Court. 

Parcel appeals from that portion of the judgment entered 

by the District Court of the Tenth Judicial District denying 

him an award for costs and attorney fees. 

Appellant, Jack Hugo Parcel, filed a complaint on February 2, 1981, requesting reformation of a contract for deed 

for his purchase of real estate and also asserting claims of 

fraud and negligent misrepresentation against the Plyers, 

sellers, and William Smith and Ronald F. Rastin, surveyors 

responsible for the subject defective legal description. 

Parcel claimed $10,000 in damages and $25,000 in punitive 

damages under his fraud claim. Bastin and Smith filed a 

motion to dismiss the fraud claim against them. The trial 

court dismissed appellant's action against the surveyors with 

prejudice when appellant failed to respond to this motion to 

dismiss. Myers answered, counterclaimed and cross-claimed 

against Bastin and Smith for indemnity. All motions to 

dismiss and notions for summary judgment filed by respondents 

and third party defendants were denied. 

The action was tried to the court on January 31, 1983. 

Findings, conclusions and judgment thereon were filed on 

December 13, 1983. The district judge reformed the contract 

for deed in the amount of $1,500, denied all other claims 

against Myers, ordered all parties responsible for costs and 

attorney fees, but failed to rule on the third party action. 

Parcel appeals only on the issue of attorney fees and costs. 

Jack Parcel purchased a parcel of real estate from 

Merlin and Marcia Myers on or about July 9, 1979. The buysell agreement described the property as "Merlin W. Myers 

home consisting of house, shop and 11.57 acres more or less 

immediately west of Lewistown." Negotiations on the purchase 
price and the conditions of the buildings required three 

buy-sell agreements to be drafted before the final contract 

for deed was executed in August 1979. No purchase price per 

acre was ever the subject of negotiations nor were per acre 

terms printed on the face of the final buy-sell agreement or 

the resultant contract for deed. 

Parcel required that Myers have a new certificate of 

survey prepared and recorded within a reasonable time after 

the closing of the transaction. Parcel's requirement of a 

survey as condition of the sale, was to assure him that Myers 

had clear title and ownership of the property within the 

fences which were represented to Parcel as the boundaries of 

the land he was purchasing. Smith completed the survey a few 

days prior to the signing of the contract for deed. Since 

Smith was unlicensed, Bastin certified the survey legally 

correct in all respects. Parcel confirmed that the description on the survey matched the legal description on the 

contract for deed prior to closing the sale. The survey 

indicated that the property contained 11.46 acres instead of 

the 11.57 acres represented on the buy-sell document. Parcel 

consummated the land purchase despite this .ll-acre 

deficiency. 

Parcel was first alerted to a problem in the legal 

description of his property in the fall of 1980 when he 

received his tax statement which represented his ownership of 

slightly more than 12 acres. After investigation, he discovered the certificate of survey drafted by Smith and certified 

by Bastin was in error. Description of the property on the 

defective survey commenced at the edge of the county road 

(the southern boundary) which was 30 feet north of the true 

point of beginning, the center line of the county right-ofway. The actual measurements conformed to the true 
boundaries of the property had the proper starting point been 

referenced. The result is that a strip of land thirty feet 

wide and approximately seven hundred feet long was included 

on the northern edge of the property, to which Myers did not 

have title and could not convey. Bastin did not supervise 

Smith's field work, nor did he confirm the accuracy of the 

survey prior to his certification. 

Minus that area reserved for the right-of-way, the area 

within the fence contained 10.86 acres. Parcel filed an 

action to have the contract for deed reformed so as to represent the proper legal description of the land he purchased 

and show a reduction of the sales price to reflect the decrease in acreage. Parcel filed claims against both Myers 

and the surveyors, Bastin and Smith, for negligent misrepresentation of the total acreage. The district judge denied 

Parcel1 s damage claims, but reduced the sales price $1,500. 

All parties were responsible for individual costs and attorney's fees. 

The issue on appeal is whether it was an a-buse of discretion for the District Court to order each party to bear 

his own costs and attorney fees. 

Appellant claims a statutory right to costs pursuant to 

$$ 25-10-101(3) and (5), MCA, since the case involves title to 

real property which resulted in an award of $1,500. We 

disagree. The specific language of the statute provides: 

"When costs allowed, of course, to plaintiff. 

Costs are allowed, of course, to the plaintiff upon 

- a judgment -- in his favor in the following cases: 

" (3) in an action for the recovery of money or 

damages, exclusive of interest, when plaintiff 

recovers over $50; 
" (5) in an action which involves the title or 

possession or right of possession of real estate . . ." (emphasis added) 

In this case, the "judgment in his favor" was a $1.,500 

reformation of the contract purchase price, and not an action 

involving the title to the property subject to the contract 

or a damage action. 

Appellant correctly argues that allocation of costs are 

left to the discretion of the District Court in those actions 

not mentioned in § 25-10-101, MCA. An award of costs in an 

action to reform a contract is discretionary. We find no 

abuse of the District Court's discretion to order all parties 

responsible for their own costs and attorney's fees. 

Appellant fortifies his argument with the contention 

that since he is the prevailing party, costs and attorneys 

fees are recoverable. The general rule in Montana is that 

absent a statutory or contractua.1 provision, attorney fees 

are not recoverable. Sliters v. Lee (1982), 197 Mont. 182, 

641 P.2d. 475. Furthermore, this Court recently held that 

there is no prevailing party where both parties gain a victory but also suffer a loss. Knudsen v. Taylor (19841, 685 

P.2d 354, 357, 41 St.Rep. 1490, 1493. Parcel prevailed on 

reformation of contract but lost on all other allegations 

against Myer and the surveyors. Likewise, Myer won on the 

fraud and negligent misrepresentation actions against him, 

and concurrently lost on the issue of reduction of the purchase price. The trial court's order that each party bear 

his own costs and attorney's fees was proper. 

The District Court did not make a ruling on the third 

party action and there is no judgment for this Court to 

review. We remand for a hearing to determine the liability 

of third party defendant to third party plaintiff. 
Judgment of the District Court reforming purchase price 

by a $1,500 reduction and ordering all parties to bear costs 

and attorney's fees is affirmed. Liability of third party 

defendant is rema.nded for deter 

We concur: