No. 83-237 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

ALAN D. NICHOLSON, INC. 

a corporation, 

Plaintiff and Respondent, 

ROSS W. CANNON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr., Helena, Itontana 

For Respondent : 

Gary L. Davis of Luxan & Murfitt, Helena, Montana 

Filed: 

Submitted on Briefs: October 6, 1983 

Decided: January 12, 1984 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Appellant Cannon appeals an order of the District Court 

awarding Nicholson $18,000 in attorney fees and $1,084.90 in 

costs. These amounts represent the total fees and costs due 

Nicholson's attorney for litigating this matter from inception through the District Court judgment. We affirm and 

remand for the determination of reasonable attorney fees and 

costs on appeal. 

Nicholson and Cannon signed an earnest money agreement 

for the purchase of a condominium by Cannon on November 30, 

1979. A contract for deed was executed by the parties on 

March 3, 1980. Among other provisions, the contract for deed 

contained the f 01-lowing terms : 

(1) a provision allowing for the down payment to be 

paid in installments with the final installment in the amount 

(2) a provision requiring the payment of $4,500 plus 

interest on December 31, 1980; and 

(3) a provision setting the monthly payments at $389.82 

commencing January 15, 1980. 

In addition, Cannon demanded that a "latent defects" 

provision be added to the contract which provides as follows: 

"14. If within one year from March 1, 

1980, latent defects are discovered in 

the work and materials with respect to 

the real estate, premises and improvements described herein, Seller will 

promptly, following written notice from 

Purchaser, correct such defective work or 

materials in a good and workmanlike 

manner, and in accordance with current 

building, plumbing, and electrical codes. 

If Seller does not promptly remedy the 

latent defects, Purchaser may have the 

defects corrected, removed, redone or 

replaced, and all direct and indirect 

costs thereof will be paid by Seller." 
Furthermore, paragraph 8 of the contract for deed provides 

the following regarding a.ttorney fees: 

"In the event legal action is necessary 

by either of the parties hereto to enforce the rights of said parties hereunder, it is specifically understood a.nd 

agreed that the losing party shall pay to 

the prevailing party reasonable attorneys' fees and all costs incurred incid.ent to such legal action." 

Essentially, the purpose of the litigation underlying 

this appeal was to enable Nicholson to collect payments due 

under the contract for deed which Cannon withheld until such 

time as Nicholson corrected certain "latent defects." The 

matter was tried to a jury on the issue of a defective heating system, the court having already granted Nicholson's 

motion for a directed verdict for the sums prayed for in the 

complaint. The jury returned a verdict finding no defect in 

the heating system, and judgment was entered accordingly. 

The following issues are raised in this appeal: 

1. Did the District Court err in awarding attorney 

fees and. costs to Nicholson? 

2. Did the District Court err in determining Nicholson 

to be the prevailing party? 

Did the District Court err in reopening the hearing 

on attorney fees? 

4. Should Cannon. be ordered to pay Nicholson's fees 

and costs on appeal? 

I 

The first issue raised by Cannon is whether the District Court properly awarded attorney fees and costs to 

Nicholson. We note that paragraph 8 of the contract for deed 

executed by both parties provides that the losing party pay 
the prevailing party reasonable attorney fees and al-1 costs. 

In order to properly determine the amount of reasonable 

attorney fees, we have held that the District Court must 

consider various circumstances, including, but not limited 

to, the following: 

(1) the amount and character of the 

services rend-ered; 

i2) the labor, time and trouble 

involved ; 

(3) the character and importance of 

the litigation in which the services were 

rendered; 

(4) the amount of money or the 

value of property to be affected; 

(5) the professional skill and 

experience called for; 

(6) the chara.cter an.d standing in 

their profession of the attorneys; and 

(7) the result secured by the 

services of the attorneys may also be 

considered. 

First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 

422, 429-430, 547 P.2d 1328, 1332, as cited in Talmage v. 

Gruss (Mont. 1983), 658 P.2d 419, 40 St.Rep. 176. A review 

of the District Court's opinion and order regarding attorney 

fees and costs clearly indicates that the District Court 

properly considered all of the necessary factors and, consequently, we find that there was no abuse of discretion. 

Furthermore, we have held that ". . . the amount fixed as 

attorney fees is largely discretionary with the District 

Court. We will not disturb its judgment in the absence of an 

abuse of that discretion." Carkeek v. Ayer (Mont. 1980), 613 

P.2d 1013, 1015, 37 St.Fep. 1274, 1276. Given the complex 

circumstances of this litigation we find no abuse of discre- 
tion in either the award of the fees and costs to Nicholson 

or in the amounts awarded. 

Cannon also argues that the costs of litigation were 

improperly awarded to Nicholson. We note that the lanffuage 

of the contract provides that "all costs" be awarded the 

prevailing party. The District Court has already limited the 

costs awarded Nicholson by eliminating from the award those 

costs relating to the expert witnesses. Considering the 

language of the contract, we find no reason to further limit 

such costs and find the District Court did not abuse its 

discretion in ordering their payment by Cannon. 

I1 

Counsel for Cannon also asserts that the District Court 

erred in determining the identity of the "prevailing party" 

under the terms of para~raph 8 of the contract for deed. A 

thorough review of the District Court file and the transcript 

of hearings on the issues of attorney fees and costs clearly 

shows that appellant's argument totally lacks merit. 

Paraqraph 14 of the contract for deed, added to the 

contract at Cannon's request, provides a remedy if the contractor fails to correct latent defects. That remedy allows 

the buyer to have the defects corrected at the seller's 

expense. Even though this provision was specifically added 

to the contract at Cannon's insistence, he failed to utilize 

this remedy and instead withheld payments due under the 

contract. Clearly, Cannon's own default created the necessity of this litigation. The result was a directed verdict 

against Cannon by the court for the sums prayed for in the 

complaint and a jury verdict against Cannon an the issue of 
the defective heating system. Both verdicts, we note, are 

not raised by Cannon as issues on this appeal. 

In conclusion, on this issue we affirm the District 

Court in fi.nding Nicholson to be the prevailing party, specifically in light of the verdicts ~igainst Cannon and Cannon's activities which precipitated. this litigation. Simply 

because Nicholson did not obtain forfeiture of the contract 

does not mean that Cannon was not in default and that 

Nicholson was not the prevailing party. 

The next issue to be ad.dressed is whether the District 

Court erred in reopening the hearing regarding attorney fees. 

Cannon cites no authority to support his position that the 

hearing should not have been reopened. He simply states that 

in his opinion, the "newly discovered evidence" was not, in 

fact, newly discovered evidence and therefore the hearing 

should not have been reopened. 

Counsel for Nicholson moved to reopen the hearing 

pursuant to Rule 60(b), M.R.Civ.P., four days after the 

original hearing was held. The basis for his motion was that 

time records pertaining to the litigation which had been 

misfiled and could not be located prior to the first hearing 

had subsequently been discovered. He proceeded under the 

"newly discovered evidence" provision of Rule 60 (b) which in 

essence provides that the court may relieve a party or his 

legal representative from a final judgment, order or proceeding if there is ". . . newly discovered evidence which by due 

diligence could not have been discovered in time to move for 

a new trial under Rule 59 (b) ." Rule 60 (b) also allows the 

court to relieve a party or his counsel from a final 
judgment, order or proceeding for "any other reason justifying relief from the operation of the judgment." Rule 60 (b) , 

M.R.Civ.P. 

The question of reopening the hearing on attorney fees 

and costs was argued throughly before the District Court and 

a review of the transcript fails to indicate the court abused 

its discretion in reopening the hearing. Therefore, we 

affirm the decision of the District Court on this issue. 

IV 

The final issue to be addressed is whether Nicholson 

should also recover his fees and costs of this appeal. 

A review of the contract for deed reveals that the 

prevailing party is to be awarded reasonable fees and all 

costs. The provision does not limit the recovery to fees and 

costs through judgment of the District Court hut rather 

provides for reasonable fees and all costs ". . . incident to 

such legal action." Therefore, we find it appropriate under 

the terms of the contract to charge Cannon with Nicholson's 

reasonable fees and all costs on this appeal and hereby 

remand to the District Court for determination of such fees 

and costs. 

We affirm the judgment of the District Court but remand 

for determination of attorney fees on appeal in conformity 

with this opinion. 

&dS,ik,d 

Chief Justice 
We concur: