No. 84-377 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

DOUGLAS A. ROUND, 

Plaintiff and Respondent, 

-vsHARVEY D. REIKOFSKI, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF -CORD: 

For Appellant: 

Tipp, Woven, Skjelset & Frizzell; Douglas G. 

Skjelset, Missoula, Montana 

For Respondent: 

Worden, Thane & Haines; Patrick G. Frank, Missoula, 

Montana 

Submitted on Briefs: Feb. 8, 1985 

Decided: May 2, 1985 

$.#& f ,+ Filed: ~" /$&$ 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant appeals from the judgment by the Fourth 

Judicial District Court for Missoula County in which the 

plaintiff was awarded $1,444.81 for the damage to plaintiff's 

motor vehicle and reasonable attorney's fees in the amount of 

$1,977.50. We affirm. 

The issues are: 

1. Was there substantial credible evidence to support 

the motor vehicle damage award? 

2. Was the award of attorney's fees proper under 

25-10-303, MCA? 

In its memorandum and order granting partial summary 

judgment, dated November 28, 1983, the District Court made 

the following factual determinations. On March 7, 1981, in 

Missoula, Montana, defendant and his wife were driving home 

at about 10:OO p.m. Plaintiff's pickup truck came up behind 

defendant's vehicle blinking its bright lights on and off. 

Defendant pulled off the road to allow plaintiff's truck to 

pass but plaintiff stopped behind defendant's vehicle. A 

passenger in plaintiff's vehicle came forward and proceeded 

to beat on the defendant's passenger door window with an iron 

bar until the window broke. Defendant then backed into 

plaintiff's truck and attempted to pull away, but his vehicle 

stalled. Someone attempted to open defendant's passenger 

door. Defendant started his vehicle, made a full turn, and 

rammed the left rear of plaintiff's pickup truck with the 

right front of his vehicle. 

Plaintiff commenced this action to recover $1,444.81 for 

damages to his truck. Under Count I, plaintiff sought 

recovery in negligence; under Count 11, he sought recovery 

for an intentional tort with a claim for punitive damages; 

and under Count 111, he sought damages for gross negligence, 
willful, wanton, malicious and reckless misconduct, with a 

claim for punitive damages. 

After considering the pleadings and interrogatories, the 

District Court concluded that the defendant intentionally 

backed into and intentionally rammed the plaintiff's vehicle. 

He further concluded that the defendant had alleged no 

justification for his action and that no justification 

appeared from the record. The court also pointed out that 

the defendant failed to raise a defense of contributory 

negligence in his answer. The District Court then entered 

summary judgment for the plaintiff on Count 11, the 

intentional tort count of the plaintiff's complaint. 

On June 7, 1984, the issue of damages was tried to the 

District Court without a jury. In its findings of fact, the 

District Court concluded that the defendant intentionally 

rammed plaintiff's vehicle; that defendant's intentional act 

was the proximate cause of the damage to plaintiff's vehicle; 

that plaintiff's vehicle was damaged; that the cost of 

repairs to plaintiff's vehicle was $1,444.81; that the 

repairs were done; that the repair costs were reasonable; 

that plaintiff sent an offer of settlement to defendant for 

$1,444.81 on November 23, 1981; that defendant refused to pay 

the bill; and that plaintiff therefore is entitled to 

attorney's fees pursuant to S 25-10-303, MCA. The judgment 

of the District Court granted judgment against the defendant 

for $1,444.81 plus interest at 10% from November 23, 1981, 

plus reasonable attorney's fees of $1,977.50. 

I 

Was there substantial credible evidence to support the 

motor vehicle damage award? 

The District Court's findings of fact in the order of 

June 8, 1984, are both clear and specific with regard to the 
damage to plaintiff's vehicle, the reasonable cost of 

repairs, and the reasonable amount of the attorney's fees. 

The scope of appellate review of findings of fact is 

defined in Rule 52 (a) , M.R.Civ. P., which states in pertinent 

part: 

". . . Findings of fact shall not be set aside 

unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to 

judge of the credibility of the witnesses. . . .I' 

Our standard of review is clearly stated in Ski Roundtop, 

Inc. on Behalf of Ski v. Hall (Mont. 1983), 658 P.2d 1071, 

1079, 40 St.Rep. 74, 83, quoting Jensen v. Jensen (Mont. 

"This Court will not substitute its 

judgment for that of the trier of fact. 

We will consider only whether substantial 

credible evidence supports the findings 

and conclusions. Findings will not be 

overturned unless there is a clear 

preponderance of evidence against them, 

recognizing that evidence may be weak or 

conflicting, yet still support the 

findings." 

In substance the defendant argues that the testimony 

fails to show that - all damage to the plaintiff's vehicle 

resulted from the action of the defendant. It is true that 

the deposition testimony of the plaintiff only shows that 

plaintiff's pickup was damaged by the defendant, was 

subsequently repaired, and that the cost of repairs was 

reflected in the exhibit bill. That testimony does not 

exclude the possibility that repairs may have been made for 

damage caused by some activity other than that involving the 

defendant. 

However, an auto repairman with extensive and long term 

experience in making repairs testified that in examining 

plaintiff's vehicle before preparing his estimated cost of 

repairs, he considered whether the customer was seeking to 

repair damages which were not a part of this particular 
transaction. He pointed out that he could identify damages 

which occurred more than three to five days earlier than the 

accident in question. In substance he testified that if the 

damage could have been caused by two different accidents, he 

would have made a note on his repair estimate, and he did not 

make such a note. His testimony together with the testimony 

of the repairman who made the actual repairs constitutes 

substantial credible evidence upon which the District Court 

could base its findings of fact. 

We hold there is substantial credible evidence to 

support the judgment of the District Court on this issue. 

Was the award of attorney's fees proper under 

The award of attorney's fees by the District Court was 

based upon the provisions of S 25-10-303, MCA which provides 

in pertinent part: 

"In an action involving solely the recovery of 

property damages arising out of the ownership . . . of a motor vehicle, in which the plaintiff secures 

a judgment equal to or greater than the amount of 

damages claimed by the plaintiff in his last 

written offer to the defendant . . . prior to the 

filing of the cause of action, the court shall 

allow plaintiff's reasonable attorney's fee . . . If the defendant . . . fails to make any offer 

within 15 days of the date requested to do so by 

the plaintiff, the plaintiff may file the cause of 

action and, if successful in the action, shall be 

entitled to his reasonable attorney's fee . . ." 

Defendant contends that the plaintiff's complaint in Count I1 

sought not only recovery of the property damage to the motor 

vehicle but also punitive damages. He therefore contends 

that as a result of the pleading in the complaint, this is 

not an action involving solely the recovery of property 

damages to a vehicle. Our analysis of the procedure and the 

facts causes us to reach a different conclusion. 
Initially summary judgment was granted on this count 

based upon the District Court's determination that the 

defendant intentionally backed into and rammed the 

plaintiff's vehicle, therefore making it appropriate to enter 

summary judgment on the claim of an intentional tort. That 

summary judgment did not address any aspect of the damages 

themselves. 

The damages issues were presented in the bench trial on 

June 7, 1984. The record shows that the only issues 

presented for consideration by the court at that time were 

the issues of the cost of repairs to plaintiff's vehicle, 

interest on such repairs and reasonable attorney's fees. 

There is no disagreement on the facts. A written offer was 

made as required under S 25-10-303, MCA and a judgment 

exactly equal to that offer was obtained. As actually tried 

to the court, the action did involve solely the recovery of 

property damages arising out of the ownership of a motor 

vehicle. This meets the standard required under the statute. 

We conclude that the award of attorney's fees was 

proper. 

The judgment of the District Court is affirmed. 

We concur: 

'-->