DA 10-0515

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 160N

SHERRI ROBERTS, an Individual,

 Plaintiff and Appellant,

 v.

LAME DEER SCHOOL DISTRICT 

NO. 6, ROSEBUD COUNTY,

 Defendant and Appellee.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Rosebud, Cause No. DV 10-23

Honorable Joe L. Hegel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Richard O. Harkins, Attorney at Law; Ekalaka, Montana

For Appellee:

Jeffrey A. Weldon; Felt, Martin, Frazier & Weldon, P.C.; Billings, 

Montana

Submitted on Briefs: June 8, 2011

 Decided: June 28, 2011 

Filed:

__________________________________________

Clerk

June 28 2011
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Justice Jim Rice delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, 

this case is decided by memorandum opinion and shall not be cited and does not serve as 

precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly 

list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Sherri Roberts (Roberts) appeals from the order and judgment entered by the Sixteenth 

Judicial District Court, Rosebud County, granting possession of rental premises and restitution 

for past due rent, late fees, and attorney fees to the Lame Deer School District (School District), 

and from the District Court’s previous orders denying Roberts’ motion to dismiss for lack of 

jurisdiction and dismissing her asserted counterclaim for wages related to her employment with 

the School District. 

¶3 Roberts had been employed as a teacher and resided in School District housing pursuant 

to a lease agreement which provided that “[o]cupancy is contingent on employment with the 

district; therefore Tenants must vacate premises within five (5) days of the employee’s last day 

of work.” Roberts’ employment was terminated on November 16, 2009, by the School District, 

which served a thirty-day notice to quit upon Roberts the next day. Roberts had not paid rent

since November 2009, and she continued to live in the premises until approximately March 23, 

2011, when she vacated the premises pursuant to the District Court’s judgment.

¶4 These proceedings began when the School District filed an eviction action in the Rosebud 

County Justice Court against Roberts in January 2010. On the eve of the scheduled trial, Roberts 

filed a motion to transfer the eviction case to district court and also filed a petition in the district 

court seeking payment of wages and damages from the School District in the nature of a 

counterclaim. The District Court stayed the justice court proceedings and transferred the case to 
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district court, considering these matters within a single proceeding. This case and the parties 

have since been designated as indicated by the caption herein.

¶5 Roberts contested the termination of her employment by arbitrating a grievance under the 

governing collective bargaining agreement. The employment termination matter is not subject to

this proceeding. However, the District Court dismissed Roberts’ counterclaim upon the School 

District’s motion, holding that the wage issue was covered by the collective bargaining 

agreement and that Roberts’ “sole remedy . . . is reference to binding arbitration. . . . This Court 

does not have jurisdiction to consider the issue.” 

¶6 On the day of trial in district court, Roberts filed a motion to dismiss the eviction action 

for lack of jurisdiction, citing language within the lease agreement stating that the School District 

“may bring” an eviction action “pursuant to applicable Tribal law,” and arguing that the 

Northern Cheyenne Tribal Court had exclusive jurisdiction over the matter. The District Court 

denied the motion, reasoning that neither party were tribal members, the Tribe was not asserting 

jurisdiction, the lease agreement taken as a whole did not require submission of the matter to 

tribal court, and that tribal jurisdiction did not extend to this dispute. The court commented that 

the motion was “the latest in a series of actions unabashedly intended to delay the proceedings 

and keep the Plaintiff in her housing unit as long as possible.” The court granted possession of 

the rental premises to the School District and ordered Roberts to pay $19,790.98 in past due rent, 

late fees and charges, and attorney fees. 

¶7 On appeal, Roberts challenges the District Court’s eviction judgment and its rulings on 

jurisdiction, her counterclaim, and attorney fees. She argues the District Court failed to conduct 

a proper hearing on fees. The School District resists Roberts’ arguments and requests reasonable 

attorney fees on appeal pursuant to § 70-24-442, MCA. We review a district court’s findings of 
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fact to determine whether they are clearly erroneous and a district court’s conclusions of law de 

novo for correctness. Emmerson v. Walker, 2010 MT 167, ¶ 20, 357 Mont. 166, 236 P.3d 598 

(citations omitted). “A court’s determination on the question of jurisdiction is a conclusion of 

law which we review de novo to determine whether the court’s interpretation of the law is 

correct.” D.R. Four Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 22, 352 Mont. 435, 

218 P.3d 827 (citation omitted). Generally, “[a] court may award attorney fees only where a 

statute or a contract provides for their recovery.” Emmerson, ¶ 32 (citations omitted). An award 

of attorney fees under the Residential Landlord and Tenant Act is discretionary, which this Court 

reviews for abuse of discretion. Stanley v. Lemire, 2006 MT 304, ¶ 73, 334 Mont. 489, 148 P.3d 

643.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 

Internal Operating Rules, which provides for noncitable memorandum opinions. The District 

Court’s findings of fact are supported by substantial evidence and its legal conclusions, including 

those regarding jurisdiction, are controlled by settled Montana law, which the District Court 

correctly interpreted. The District Court did not abuse its discretion by awarding attorney fees 

pursuant to statute and made appropriate provision for hearing. We decline to grant attorney fees 

to the School District on appeal. 

¶9 Affirmed.

/S/ JIM RICE

We concur: 

/S/ MIKE McGRATH
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/S/ JAMES C. NELSON

/S/ MICHAEL E WHEAT

/S/ BRIAN MORRIS