96-602

 No. 96-602

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

MIKE SPRINGER,

 Plaintiff, Respondent 

and 

 CrossAppellant, 

vs.

 JASON BECKER, a police officer 

for 

 the City of Bozeman; CITY OF 

BOZEMAN, 

as a political subdivision of the State of

Montana,

 Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth Judicial District,

 In and for the County of Gallatin,

 The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Barry G. OþConnell, Moore, OþConnell & Refling, Bozeman, Montana

 For Respondent:

 Nathan J. Hoines, Great Falls, Montana

 Submitted on Briefs: March 6, 1997

 Decided: 

Filed:

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 __________________________________________

 Clerk

Justice James C. Nelson delivered the Opinion of the Court.

 This is an appeal from certain judgments entered by the Eighteenth Judicial 

District

Court, Gallatin County. On June 26, 1996, the District Court granted Plaintiff 

Springer

(Springer) summary judgment on issues involving the City of Bozeman's liability to

Springer for damages. On July 11, 1996, the District Court entered judgment on a 

jury

verdict for damages in Springer's favor and awarded Springer costs. From these

judgments, Defendants appeal and Springer cross appeals. We affirm in part, reverse 

in

part and remand for further proceedings consistent with this Opinion.

 We address the following issues raised on appeal:

1. Did the District Court err in granting Springer's motion for summary judgment?

2. Did the District Court abuse its discretion in awarding certain costs to 

Springer?

 We also address the following issue raised on cross appeal:

3. Did the District Court abuse its discretion in failing to award Springer 

attorney fees

and costs pursuant to Rule 37(c), M.R.Civ.P., for proving requests for admissions 

that

Defendants denied?

 FACTUAL AND PROCEDURAL BACKGROUND

 Plaintiff Mike Springer (Springer) owned a 1968 Volkswagen van in September

1992 which he parked on the 2000 block of South Rouse in Bozeman, Montana. On

September 24, 1992, Parking Control Officer Bill McManis (McManis), placed a "Notice

of Abandoned Vehicle" on Springer's van which specified a tow date of September 25,

1992. Springer observed this notice and on September 25, 1992, prior to his van 

being

towed, Springer moved his van from the east side of the street to the west side of 

the

street. On September 28, 1992, Springer's van was towed. Subsequently, Police

Officer Jason Becker signed a Gallatin County Junk Vehicle Release form and 

Springer's

van was destroyed. Springer was never notified that his van had been towed.

 Springer brought this action against Defendants Jason Becker and the City of

Bozeman (collectively, the City) to recover damages for destruction of his 1968

Volkswagen van. The City first brought a motion for summary judgment which the

District Court denied. Subsequently, Springer filed a motion for summary judgment

which the District Court granted on June 26, 1996. The District Court held that

Springer's van was not a junk vehicle as defined by 75-10-501(4), MCA (1991), nor

was the van an abandoned vehicle as defined by 61-12-401(1), MCA (1991). On June

27, 1996, a jury trial was held on the issue of damages and a verdict of $1,500.00 

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was

returned in Springer's favor. On July 11, 1996, the District Court entered judgment 

for

Springer in the amount of $1,500.00 in damages plus $1,636.32 in costs. The City

appeals both the court's June 26, 1996 Order granting Springer summary judgment and

the court's July 11, 1996 Judgment in favor of Springer. Springer cross appeals 

raising

the issue of whether the District Court abused its discretion by failing to award him

attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P. We affirm in part, 

reverse

in part and remand for further proceedings consistent with this Opinion.

 DISCUSSION

1. Did the District Court err in granting Springer's motion for summary

judgment?

 After a hearing on Springer's motion for summary judgment, the District Court

determined that no genuine issues of material fact were in dispute and concluded that

Springer's van was not a junk vehicle pursuant to 75-10-501(4), MCA (1991), and was

not an abandoned vehicle pursuant to 61-12-401(1), MCA (1991). The District Court,

therefore, held that the City did not take reasonable efforts to notify Springer 

after his

vehicle had been towed, pursuant to 61-12-402, MCA (1991). Accordingly, the

District Court granted Springer summary judgment.

 Summary judgment is proper when no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We

review a district court's grant of a motion for summary judgment de novo and apply 

the

same criteria under Rule 56(c), M.R.Civ.P., as did the district court. DeVoe v. 

State

(Mont. 1997), 935 P.2d 256, 262, 54 St.Rep. 207, 211. The moving party carries the

initial burden of establishing the absence of any genuine issues of material fact and

entitlement to judgment as a matter of law. DeVoe, 935 P.2d at 262 (citing Carelli 

v.

Hall (1996), 279 Mont. 202, 207, 926 P.2d 756, 759). If the moving party satisfies 

its

initial burden, the burden then shifts to the party opposing summary judgment to 

present

evidence raising a genuine issue of material fact. DeVoe, 935 P.2d at 263 (citation

omitted). "Material issues of fact are identified by looking to the substantive law

governing the proceedings." DeVoe, 935 P.2d at 263 (citation omitted).

 Section 75-10-501(4), MCA (1991), defines a "junk vehicle" as a "discarded,

ruined, wrecked, or dismantled motor vehicle, including component parts, which is not

lawfully and validly licensed and remains inoperative or incapable of being driven." 

Pursuant to 61-12-401(1), MCA (1991), before a vehicle can be taken into custody,

whether it is designated as a "junk vehicle" or not, it must have been abandoned for 

more

than five days on a city street. Furthermore, 61-12-402, MCA (1991), requires 

that

when a vehicle is taken into custody, notice must be given to the registered owner 

of the

vehicle concerning the location of the vehicle by a registered or certified letter 

mailed,

at least 30 days before the vehicle is sold, to the latest address shown in the 

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records of

the office of the department of justice, return receipt requested and postage 

prepaid. 

However, an exception to this notice requirement provides that a vehicle found by law

enforcement officials to be a "junk vehicle" as defined by 75-10-501, MCA, and

certified as having an appraised value of $100 or less, as determined by the 

Department

of Revenue, may be directly submitted for disposal without notice and without a 

required

holding period. Section 61-12-402(6), MCA (1991). 

 The City, based on the above statutory sections, argues that summary judgment

was not proper in this case because genuine issues of material fact existed. 

Specifically,

the City argues that the District Court ignored the uncontroverted affidavits of Bill

McManis and Arletta Derleth which stated that Springer's 1968 Volkswagen van had been

parked on a city street for more than five days; had expired license plates; had 

structural

damage and lacked windshield wipers; and had an assessed value of less than $100.00. 

The City asserts that based on these affidavits, the issues of whether Springer's 

van was

a "junk vehicle" and whether the City properly disposed of Springer's van should have

been presented to a jury, and, therefore, we should reverse the District Court's 

Order

granting Springer summary judgment.

 Springer responds that we should affirm the District Court's Order granting his

motion for summary judgment because the City has failed to raise any genuine issues 

of

material fact. First, Springer argues that the City failed to argue that a genuine 

issue of

material fact existed as to the third requirement of 75-10-501(4), MCA (1991), 

which

provides that before a vehicle can be classified as a junk vehicle, it has to remain

"inoperative or incapable of being driven." Springer asserts that the undisputed and

uncontroverted evidence shows that his van was operable and capable of being driven

because he had moved his van from the east side of the street to the west side of the

street before it was towed and destroyed. Springer, therefore, contends that 

because all

three elements of 75-10-501(4), MCA (1991), were not satisfied, his van could not 

be

classified as a junk vehicle.

 Second, Springer argues that the City failed to argue that a genuine issue of

material fact existed as to whether Springer's van was an abandoned vehicle pursuant 

to

 61-12-401(1), MCA (1991). Springer again asserts that it is an uncontroverted 

fact that

after he observed the "Notice of Abandoned Vehicle," but before the City towed his 

van,

he moved his van from the east side of the street to the west side of the street. 

Furthermore, Springer points out that McManis admitted in his deposition that he had 

no

personal knowledge concerning the length of time that Springer's van had been parked

on the street and that he did not believe that Springer's van was an abandoned 

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vehicle. 

Therefore, Springer contends that, based upon these uncontroverted facts alone, his 

van

could not be classified as an abandoned vehicle under 61-12-401(1), MCA (1991). 

Finally, relying on Dagel v. City of Great Falls (1991), 250 Mont. 224, 819 P.2d 186,

Springer argues that the City should be equitably estopped from arguing that 

Springer's

van was an abandoned vehicle based on the actions of McManis and the City's violation

of their policy concerning abandoned vehicles.

 It is important to first note that the transcript of the June 24, 1996 summary

judgment hearing is not included in the record provided to this Court on appeal. The

City, as appellant, had a duty under Rule 9(a), M.R.App.P., to provide this Court 

with

a record sufficient to enable us to rule upon the issues raised. While it would be

appropriate to dismiss this appeal for the City's failure to provide this Court with 

a

sufficient record, dismissal need not be automatic in every instance where a party 

fails

to strictly follow the Rules of Appellate Procedure. Williams v. Rigler (1988), 234

Mont. 161, 163, 761 P.2d 833, 834. Here, while the lack of a summary judgment

hearing transcript limits our review of this issue, any detriment inures to the 

City, not

Springer. Therefore, we will address the issues raised by the City.

 We agree with Springer that the City failed to present an argument concerning 

the

third requirement of 75-10-501(4), MCA (1991), and, thereby, failed to raise a 

genuine

issue of material fact concerning the classification of Springer's van as a junk 

vehicle. 

From the record provided this Court, we note that it is uncontroverted that Springer

moved his van from the east side of the street to the west side of the street before 

the

City towed and destroyed his van. Additionally, McManis acknowledged in his

deposition that prior to having Springer's van towed and impounded, he did not know 

if

the van was capable of being operated and driven. Consequently, we conclude that the

undisputed and uncontroverted facts show that Springer's van was operable and capable

of being driven prior to the time the City had Springer's van towed and destroyed. 

Accordingly, we hold that the District Court correctly determined that Springer's 

van was

not a junk vehicle as defined by 75-10-501(4), MCA (1991).

 Next, pursuant to 61-12-401(1), MCA (1991), before a vehicle can be taken into

custody, whether it is a junk vehicle or not, it must have been abandoned for more 

than

five days on a city street. We again agree with Springer that the City has failed 

to raise

any genuine issues of material fact concerning this issue. The record shows that 

after

observing the "Notice of Abandoned Vehicle" placed on his van by McManis on

September 24, 1992, Springer moved his van to the opposite side of the street the 

next

day. Furthermore, McManis admitted in his deposition that he had no personal

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knowledge of how long Springer's vehicle had been parked on the city street and he

further admitted that he did not believe that the van was an abandoned vehicle, but 

rather

that the vehicle was a junk vehicle. Based on these uncontroverted facts, we hold 

that

the District Court correctly concluded that Springer's van was not an abandoned 

vehicle

pursuant to 61-12-401(1), MCA (1991).

 We conclude that the record provided to us contains no evidence raising a 

genuine

issue of material fact as to whether Springer's van was a junk or abandoned 

vehicle. On

that basis, we further conclude that Springer was entitled to summary judgment as a

matter of law. Accordingly, we affirm the District Court's Order granting Springer

summary judgment, wherein the District Court ruled that Springer's van was not a junk

vehicle pursuant to 75-10-501(4), MCA (1991), and was not an abandoned vehicle

pursuant to 61-12-401(1), MCA (1991), and, therefore, concluded that the City did 

not

take reasonable efforts to notify Springer after his vehicle had been towed, 

pursuant to

 61-12-402, MCA (1991). Consequently, based on this holding, we do not reach

Springer's claim that the City was estopped from arguing that Springer's van was an

abandoned vehicle.

2. Did the District Court abuse its discretion in awarding certain costs to

Springer?

 In its order granting Springer's motion for summary judgment, the District Court

scheduled a jury trial to hear the issue of damages. After this trial, the jury 

awarded

Springer $1,500.00 in damages. Thereafter, pursuant to 25-10-201, MCA, Springer

filed a "Bill of Costs" with the District Court in the amount of $1,636.32. 

Subsequently,

the District Court entered judgment awarding Springer $1,500.00 in damages and

$1,636.32 in costs.

 Section 25-10-201, MCA, provides:

 A party to whom costs are awarded in an action is entitled to include in his

 bill of costs his necessary disbursements, as follows:

 (1) the legal fees of witnesses, including mileage, or referees and

 other officers;

 (2) the expenses of taking depositions;

 (3) the legal fees for publication when publication is directed;

 (4) the legal fees paid for filing and recording papers and certified

 copies thereof necessarily used in the action or on the trial;

 (5) the legal fees paid stenographers for per diem or for

 copies;

 (6) the reasonable expenses of printing papers for a hearing when

 required by a rule of court;

 (7) the reasonable expenses of making transcript for the supreme

 court;

 (8) the reasonable expenses for making a map or maps if required

 and necessary to be used on trial or hearing; and

 (9) such other reasonable and necessary expenses as are taxable

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 according to the course and practice of the court or by express provision of

 law.

 While the trial court has broad authority in taxing costs, Cash v. Otis 

Elevator Co.

(1984), 210 Mont. 319, 333, 684 P.2d 1041, 1048, not every litigation expense is

recoverable, Luppold v. Lewis (1977), 172 Mont. 280, 292, 563 P.2d 538, 545. Rather,

þ[o]nly those costs delineated in 25-10-201, MCA, may be charged to the opposing

party unless the item of expense is taken out of 25-10-201, MCA, by a more

specialized statute, by stipulation of the parties or by rule of court." Thayer v. 

Hicks

(1990), 243 Mont. 138, 158, 793 P.2d 784, 796-97 (citing Luppold, 563 P.2d at 545). 

Here, because neither of the parties argue that the disputed costs are controlled by 

a more

specific statute, stipulation of the parties or a rule of court, 25-10-201, MCA, 

controls

this issue. We review the District Court's award of costs to determine whether the

District Court abused its discretion. Gilluly v. Miller (1995), 270 Mont. 272, 274, 

891

P.2d 1147, 1148.

 The City argues that the District Court abused its discretion when it awarded

Springer $1,636.32 because most of the costs identified in Springer's "Bill of 

Costs" do

not fall within 25-10-201, MCA. In fact, the City argues that only $175.00 for 

filing

fees is allowable. First, the City argues that Springer's request for costs of 509

photocopies ($127.25) along with costs for facsimile transmittals ($17.00) and costs 

for

copies of juror questionnaires ($2.10) is not allowable under 25-10-201, MCA. 

Specifically, the City relies on Thayer, 793 P.2d at 798, to assert that the 

District Court's

discretion should be limited to allowing only the costs incurred in constructing 

exhibits

admitted at trial and that because only two exhibits were used at trial, Springer's 

request

for costs of 509 photocopies is not appropriate. Furthermore, the City argues that 

costs

for facsimile transmittals and copies of juror questionnaires are not necessary 

litigation

expenses, and, therefore, should not be allowed.

 Springer responds that all of the photocopy costs were reasonable and necessary

expenses allowed for by 25-10-201(9), MCA. Furthermore, Springer asserts that the

District Court is in the best position to make a determination of what costs are 

taxable

according to the course and practice of the court. Additionally, Springer suggests 

that

we follow the lead of the federal court system wherein photocopying costs are 

allowable

pursuant to 28 U.S.C. 1920 (1991).

 Next, the City argues that Springer's request for costs of postage ($27.80) and

UPS charges ($11.25) should not be allowed because theses costs also are not 

necessary

litigation expenses pursuant to 25-10-201(9), MCA. Additionally, the City argues 

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that

the cost identified as a "Service Fee" ($230.00) should not be allowed because it is 

not

an identified allowable cost, nor is it reasonable or necessary. Furthermore, the 

City

argues that the imposition of long distance telephone charges ($33.67) is erroneous

because, in Thayer, this Court held "[t]elephone charges, however, may not be taxed 

as

costs under any circumstances." Thayer, 793 P.2d at 798. 

 Springer responds that this Court should not follow the attempt in Thayer to 

limit

the District Court's discretion in awarding costs, but, rather, we should return to 

giving

the District Court broad discretion under 25-10-201(9), MCA, to determine whether

these costs are taxable according to the course and practice of the court. Springer,

relying on Luebben v. Metlen (1940), 110 Mont. 350, 100 P.2d 935, further argues that

only if we affirm the District Court's award of costs will he be indemnified against 

the

expense of asserting his right to be compensated for the City's wrongdoing in 

destroying

his property.

 Finally, the City again relies on Thayer and argues that Springer's claim for

deposition costs ($454.25) is not allowable because the depositions were not used at 

trial. 

Moreover, the City asserts that Springer's request for $558.00 to cover his counsel's

mileage expenses for five separate trips from Great Falls to Bozeman is not a 

statutorily

identified allowable cost. Springer responds that while the depositions were not 

used at

trial, they were filed with the court and used by both parties in their motions for

summary judgment, and, therefore, these deposition costs are allowable. 

Additionally,

Springer asserts that his counsel's mileage expenses were allowable because they were

reasonable and necessary litigation expenses.We hold, as a general proposition,

that a party ultimately prevailing on summary judgment is entitled to the same 

allowable

costs as if the case had been disposed of at trial. See e.g. Fisher v. State Farm 

Ins. Cos.

(Mont. 1997), ___ P.2d ___, ___, 54 St.Rep. 151, 152 (explaining that costs for

depositions used by the court in a dispositive summary judgment motion are 

allowable). 

Consequently, here, because Springer prevailed both on summary judgment and at trial

for damages, he is entitled to recover any costs which he incurred in either 

proceeding,

as allowed by 25-10-101 and 25-10-201, MCA. Accordingly, to determine whether

the District Court abused its discretion in awarding all of Springer's claimed 

costs, we

will consider the law as it applies to each of the disputed costs in turn.

 In Thayer, we limited the broad discretion of the District Court under 25-10-

201(9), MCA, by holding that a District Court should allow only those photocopying

costs which were incurred in constructing exhibits admitted at trial. Thayer, 793 

P.2d

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at 798. Additionally, as the City correctly argues, we also held in Thayer that

"[t]elephone charges . . . may not be taxed as costs under any circumstances." 

Thayer,

793 P.2d at 798. However, we note that the additional disputed costs for postage, 

UPS

charges and a "Service Fee" are not specifically disallowed by Thayer or by statute, 

and,

therefore, the awarding of these costs is properly left to the broad discretion of 

the

District Court under 25-10-201(9), MCA, to determine whether these costs are

"reasonable and necessary expenses . . . according to the course and practice of the 

court

. . .."

 Furthermore, we recently reiterated the rule that deposition costs are 

recoverable

not only for depositions used at trial, but for depositions filed with the district 

court and

used by the court in a dispositive summary judgment motion. Fisher, 54 St.Rep. at 

152

(citing Roy v. Neibauer (1981), 191 Mont. 224, 227-28, 623 P.2d 555, 557). However,

in Thayer, when considering the expenses associated with the audio-visual depositions

used, we limited the allowable costs for audio-visual or tape recorded depositions 

to only

those expenses incurred in recording, transcribing and editing the depositions. 

Thayer,

793 P.2d at 798. We further explained that "airfares, hotel bills, rental car 

expenses and

other incidental costs incurred in obtaining depositions" were not allowable costs. 

Thayer, 793 P.2d at 798. In the case at bar, it appears that the depositions were 

recorded

stenographically. Despite the different recording method used here, the rule 

established

in Thayer still applies. That is, only those deposition expenses incurred in 

recording,

transcribing and editing the depositions are allowable; any incidental costs 

incurred are

not allowable costs. See Thayer, 793 P.2d at 798.

 Finally, we note that while 25-10-201(1), MCA, specifically allows for witness

mileage, the statute is silent as to whether counsel's mileage is also allowable. 

Consequently, like the costs for postage, UPS charges, and "service fees," the award 

of

counsel's mileage costs is left to the broad discretion of the District Court to 

determine

whether these costs are "reasonable and necessary expenses . . . according to the 

course

and practice of the court . . .." However, as we explained previously, any part of

Springer's counsel's mileage costs incurred when obtaining depositions are considered

incidental costs which are not allowed. Thayer, 793 P.2d at 798.

 Based on the foregoing, we affirm the District Court's award of $175.00 in 

filing

fees because these costs were not disputed. However, we reverse the District Court's

award of $33.67 for Springer's long distance telephone calls. Furthermore, we remand

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with instructions that the District Court determine what costs for photocopies 

(including

the facsimile transmittals and copies for juror questionnaires) were expended on 

exhibits

admitted at trial, and, therefore what photocopying costs are allowable. 

Additionally, on

remand, the District Court must determine if the costs for postage, UPS charges, a

"Service Fee," and counsel's mileage are allowable pursuant to 25-10-201(9), MCA. 

Finally, on remand, the District Court must determine whether it relied on the 

depositions

of Springer, Bill McManis, James L. Conner and Jason Becker when it granted Springer

summary judgment. Moreover, the District Court must determine what portion of the

deposition expenses were incurred in recording, transcribing and editing the 

depositions,

and, therefore, what deposition costs are allowable.

3. Did the District Court abuse its discretion in failing to award Springer

attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P., for proving requests for

admissions that the City denied?

 On October 6, 1995, Springer served the City with Interrogatories, Requests for

Production and Requests for Admission, to which the City responded. On October 18,

1995, Springer served the City with Amended Requests for Admission, to which the 

City

again responded. Springer asserts that the City denied Requests for Admission Nos. 

9,

11, 12, and 22, which Springer later proved to be true through deposition testimony 

and

which the District Court accepted as uncontroverted facts in granting Springer 

summary

judgment. As a result, Springer asserts that he incurred attorney fees and costs. 

Springer explains that he filed an Affidavit of Attorney Fees in the amount of 

$2,187.00

pursuant to Rule 37(c), M.R.Civ.P., but did not list any costs with this Affidavit 

because

he had previously submitted his "Bill of Costs" to the District Court pursuant to 

25-10-

201, MCA. Consequently, on cross appeal, Springer contends that he is entitled to

attorney fees under Rule 37(c), M.R.Civ.P. The City responds that Springer is not

entitled to attorney fees because the City properly responded to all of Springer's 

Requests

for Admission.

 Rule 37(c), M.R.Civ.P., provides:

 If a party fails to admit the genuineness of any document or the truth of any

 matter as requested under Rule 36, and if the party requesting the

 admissions thereafter proves the genuineness of the document or the truth

 of the matter, the requesting party may apply to the court for an order

 requiring the other party to pay the reasonable expenses incurred in making

 that proof, including reasonable attorney's fees. The court shall make the

 order unless it finds that (1) the request was held objectionable pursuant to

 Rule 36(a), or (2) the admission sought was of no substantial importance,

 or (3) the party failing to admit had reasonable ground to believe that the

 party might prevail on the matter, or (4) there was other good reason for

 the failure to admit.

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 Springer argues that he proved the truth of the following requests for admission

through deposition testimony:

 REQUEST FOR ADMISSION NO. 9: Admit that document 1 is

 a notice of abandoned vehicle that was placed on plaintiff's 1968

 volkswagen van on September 24, 1992.

 RESPONSE: Deny.

 REQUEST FOR ADMISSION NO. 11: Admit that the notice of

 abandoned vehicle contains a tow date of September 25, 1992.

 RESPONSE: It would appear that Document #1 which was attached

 to Plaintiff's amended Request for Admission contains a handwritten entry,

 the author of which is unknown, of "tow date of 09/25/92."

 REQUEST FOR ADMISSION NO. 12: Admit that Officer Jason

 Becker or any other Bozeman City Police Officer did not notify Plaintiff

 before having his vehicle towed.

 RESPONSE: Deny.

 REQUEST FOR ADMISSION NO. 22: Admit that on September

 28, 1992, Plaintiff's 1968 Volkswagen van was capable of being driven.

 RESPONSE: Deny.

 Upon review of the District Court record, it does not appear that the District 

Court

addressed Springer's request for attorney fees pursuant to Rule 37(c), M.R.Civ.P., 

in its

findings of fact and conclusions of law entered June 26, 1996, or in any other 

separate

order.

Nevertheless, after reviewing the deposition testimony taken by Springer and filed 

with

the District Court, we conclude as a matter of law that Springer proved the truth of

Requests for Admission Nos. 9, 12 and 22, which Bozeman denied. Specifically,

McManis testified in his deposition that he placed a Notice of Abandoned Vehicle on

Springer's van on September 24, 1992 (see Request for Admission No. 9). Further,

McManis testified that he did not send Springer a certified letter notifying him 

that his

van had been towed but rather only attempted to contact Springer by telephone (see

Request for Admission No. 12). Finally, McManis testified that prior to having

Springer's van towed, he did not know if the van was capable of being driven or

operated, whereas, Springer's undisputed deposition testimony explains that he drove 

his

van to the opposite side of the street before Bozeman towed and destroyed it (see 

Request

for Admission No. 22). Furthermore, we conclude as a matter of law that none of the

exceptions of Rule 37(c), M.R.Civ.P., preclude the District Court from awarding

Springer reasonable attorney fees.

 However, we disagree with Springer that Bozeman's response to Request for

Admission No. 11 constitutes a denial. Rather, we conclude that Bozeman's response

was an admission, and, therefore, Springer is not entitled to reasonable expenses or

attorney fees under Rule 37(c), M.R.Civ.P., for proving the truth of Request for

Admission No. 11.

 Consequently, we hold that the District Court abused its discretion when it 

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failed

to award Springer attorney fees for proving the truth of Requests for Admission Nos. 

9,

12 and 22, which Bozeman denied. Accordingly, we remand this issue to the District

Court for calculation of the amount of reasonable attorney fees to which Springer is

entitled and entry of an appropriate order. 

 In conclusion, we affirm the District Court's Order granting Springer summary

judgment. However, we reverse that part of the District Court's July 11, 1996 

Judgment

awarding Springer costs for long distance telephone calls. Additionally, we remand 

for

recomputation the issue of whether the remaining disputed costs awarded to Springer 

in

the District Court's July 11, 1996 Judgment are allowable costs under 25-10-201,

MCA. Finally, we remand for calculation of the amount of attorney fees to which

Springer is entitled pursuant to Rule 37(c), M.R.Civ.P.

 Affirmed in part, reversed in part and remanded for further proceedings 

consistent

with this Opinion.

 /S/ JAMES C. NELSON

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

Justice Karla M. Gray, concurring in part and dissenting in part.

 I concur in the Court's opinion on issues one and two and respectfully dissent 

on

issue three, which relates to attorney fees under Rule 37(c), M.R.Civ.P. My concerns

about issue three are both procedural and substantive.

 At the outset, I observe that neither the Affidavit for Attorney Fees 

referenced by

the Court, nor any motion in support of which such an affidavit properly could be 

filed,

is of record in this case. While Springer attaches a copy of the Affidavit to his 

brief on

cross-appeal in this Court, that copy does not reflect a "filed" date and, indeed, 

the

Affidavit is neither physically contained in the District Court record nor 

referenced in the

Case Register which accompanies that record. Even assuming that an affidavit is

sufficient in and of itself to serve as a motion or official request to a district 

court for

action, an assumption with which I would not agree since Rule 37(c), M.R.Civ.P.,

requires a party to "apply to the court for an order," it is my view that a district 

court

cannot properly be held in error in failing to award relief--here, attorney fees--

which is

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not requested on the record. 

 I note in this regard that the City did file a response in the District Court to

Springer's "request" for attorney fees, and it may be that the parties, at least, 

operated

under the joint misunderstanding that the "request" had been filed. Notwithstanding 

the

parties' implicit agreement to address a matter not of record, however, it is my 

view that

we perform a disservice to district courts when we "reverse" them on matters never, 

in

fact, presented to them for resolution. Surely it must remain counsel's duty to 

ensure that

matters intended to be filed are actually filed and made part of the record.

 Even assuming arguendo, however, that a motion for attorney fees under Rule

37(c), M.R.Civ.P., and supporting affidavit were of record in this case, I would not

address the issue here. Springer was the prevailing party in the action and it was

Springer's "motion" for attorney fees which arguably had not been addressed before 

the

District Court entered judgment in the case. Instead of bringing the "motion" to the

District Court's attention for determination either prior to, or soon after, the 

judgment

was entered, Springer simply went ahead and served notice of entry of judgment, 

thereby

beginning the running of the time during which the City could file its notice of 

appeal. 

 

 Springer then filed a cross-appeal, arguing that the District Court abused its

discretion in failing to award him attorney fees pursuant to Rule 37(c), M.R.Civ.

P. This

Court addresses that issue on the merits. I would not, since Springer did not 

provide the

District Court with an opportunity to determine the matter. At the very most, I 

would

remand this issue to the District Court for purposes of clarifying the record and

addressing the "motion" on its merits. In my view, it simply is not our role to 

address

an issue on appeal which has not been properly presented to the district court for

resolution. Furthermore, to hold that a district court abused its discretion in 

failing to

award attorney fees under circumstances such as those before us here is simply 

unfair to

the District Court.

 Finally, I disagree with the Court's substantive resolution of the attorney fee 

issue

regarding Requests for Admission Nos. 9 and 12. I will address each in turn under 

the

three-step process set forth in Rule 37(c), M.R.Civ.P., which requires 

determinations that

1) there was a failure to admit; 2) the requesting party later proved the truth of 

the

matter; and 3) none of the four extenuating circumstances exists which might "excuse"

the failure to admit.

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 Request for Admission No. 9 asked for an admission that "document 1 is a notice

of abandoned vehicle that was placed on plaintiff's 1968 [V]olkswagen van. . . ." 

The

City denied. In fact, "document 1" was not the notice which was placed on Springer's

vehicle; it was a copy of that notice. Thus, while the City's denial was somewhat

technical, it was a proper denial. Nor did Springer later prove that "document 1" 

was

the actual notice placed on Springer's van. McManis' deposition testimony that he 

placed

"a Notice of Abandoned Vehicle" on Springer's van--on which the Court relies as 

"proof"

that "document 1" was the actual notice--proves nothing of the sort. 

 Moreover, while it is clear that the first portions of Rule 37(c), M.R.Civ.P., 

are

not met with regard to the City's denial of Request for Admission No. 9, it is my 

view

that the Court also errs in concluding that none of the extenuating circumstances 

which

might excuse any improper denial was satisfied. Specifically, the second extenuating

circumstance listed in Rule 37(c) is that "the admission sought was of no substantial

importance" and that circumstance certainly applies to Request for Admission No. 9. 

In

response to Request for Admission No. 1 in the same set of discovery from Springer, 

the

City admitted that "on or about September 24, 1992, a Notice of Abandoned Vehicle was

placed on Plaintiff's 1968 

Volkswagen van." In addition, the subsequent Final Pretrial Order in the case, filed

January 31, 1996, stated as an "AGREED UPON FACT" "[t]hat on or about September

24, 1992, a Notice of Abandoned Vehicle was placed on the Plaintiff's van." The

McManis deposition was not taken until May 21, 1996, months after it was agreed by 

all

parties that a notice of abandoned vehicle was placed on Springer's vehicle on or 

about

September 24, 1992. Thus, even assuming that the City had improperly denied Request

for Admission No. 9 and that Springer had later proved the truth of the matter via

McManis' deposition, the "admission sought was of no substantial importance" under

Rule 37(c), since it had been admitted and, indeed, incorporated into the 

controlling Final

Pretrial Order. I would conclude that Springer is not entitled to attorney fees 

with regard

to Request for Admission No. 9.

 I would reach the same result on Request for Admission No. 12. The request was

to admit that no City police officer notified Springer "before having his vehicle 

towed." 

The City denied. In fact, the September 24, 1992, notice of abandoned vehicle 

contained

a tow date of September 25, 1992. In my view, that notice was notice to Springer 

prior

to towing his vehicle and, therefore, the City properly denied Request for Admission 

No.

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12. In this regard, the Court again refers, in my view erroneously, to McManis'

deposition. There, McManis testified that he did not send Springer a certified 

letter

notifying him that his van "had been towed," but merely attempted to contact Springer

by telephone. That testimony goes to post-towing events and not to the pre-towing 

notice

to which Request for Admission No. 12 relates. 

 In summary, I would not address this cross-appeal issue. If addressing it, I 

would

conclude, as does the Court, that Springer is not entitled to attorney fees with 

regard to

Request for Admission No. 11 and is entitled to attorney fees with regard to Request 

for

Admission No. 22. I disagree with the Court that Springer is entitled to fees 

relating to

Requests for Admission Nos. 9 and 12. As a result, I would hold that Springer is 

entitled

to fees with regard to only one of the four Requests for Admission for which such 

fees

are sought.

 /S/ KARLA M. GRAY

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