No. 14577 INTHE SUP= COURT OF

### THE STATE OF M3NTAN.A 1979

THE STATE:OF IXlNDNA, ACTING BYAND THROUGHTHE DEPARTCENT OF HIGHmYS OF THE STATEOF IalvBNA, Plaintiff andAppellant,

Defendant 

### and Respondent.

Appeal from: DistrictCourt of theFourthJudicial

### ~istrict, HonorableJack L. Green, Jdgepresiding, and Honorable

### E. Gardner Brownlee, Judgepresiding. Counsel of Record: For Appellant: M. 

### GeneELatchy, Highway Legal Dept., Helena, Montana For Respondent: Wne, Karlberg and Haddon, Missoula, P4xkana Kcch and

### Menna, Hamilton, Wntana

.

### -- -.I-: 

## 2

# 49R Filed: Subnitted onbriefs: May 31, 1979

- ~- 'Ji-' Decided: ? 

## 19BMr. Justice John Conway Harrison delivered the Opinion of the Court. This 

### is an appeal inan eminent domain proceeding by the State of Montana from the DistrictCourt's granting of respondent's petition for finaljudgment and order fixing costs asprayed for by respondent. Appellant filed a complaint inRavalli County on March 23, 1978, seeking condemnation of respondent's property for purposes of constructing a public highway. On April 3, respondent filed an answer claiming $66,000 asjust compensation for the taking of her property and for the depreciation thatwould accrue to the property not taken. The DistrictCourt then nominated and appointed three land value commissioners toascertain the amount of compensation tobe paid.After a hearing on May 12, the commissioners filed a report with the clerk of court on June 6 assessing respondent's just compensation as $40,000, $9,100 of which 

### was for the property taken and $30,900 of which was for the property not taken. A copy of the report and notice of 

### its entry



### weremailed to the parties by the clerk on June 6. On August 3, 58 days after the commissioners' 

### assessment was filed, appellant filed a notice of appeal contesting the assessment. Respondent subsequently petitioned the DistrictCourt forjudgment for the reason that appellanthad failed tofilea notice of appeal within 30 days after the service of the notice of filing of the commissioners' report and a copy of that report. In response, appellant filed a motion requesting an order vacating the commissioners' report of June 6. The DistrictCourt, however, denied appellant'

### s motion and granted judgment infavor of respondent on August 18. In a separate proceeding the DistrictCourt entered an order on September 18 allowing necessary costs of the litigation asprayed forby respondent. Following these rulings, appellant's motions to amend the court's findings, conclusions and order of August 31, and the court's ruling on September 18 with respect tocosts



### were denied. An appeal was filedwith thisCourt on October 31. On appeal 

### we consider the following two issues: 1. Did the DistrictCourt 

### err indetermining that appellant failed toappeal from the land value comrnissioners' report within the time provided by 

### law, and hence, the court lacked jurisdiction tohear the appeal? 2. Did the DistrictCourt err infinding, asnecessary and reasonable expenses, attorney feeswhich 

### were based upon

a contingency feecontract and appraiser fees where the appraiser did not testify 

### atthe land commissioners' hearing? With respect to the firstissue, the statutory procedure for appealing 

### a commissioners' assessment inan eminent domain proceeding 

### is stated in section 70-30-304, 

### WA, and provides inpertinent part: "Appeal toDistrictCourt from Assessment of ~ommissioners. 

### (1)An appeal from any assessment made by the commissioners must be taken and prosecuted in the courtwhere the report of said commissioners 

### is filed by any party interested. Such appeal must be taken within the period of thirty (30) days after the service upon appellant of the notice of the filingof the award 

# . .

# ." Here, the commissioners' reportwas mailed to the parties by the clerk of courton June 6. While the thirtyday appeal period would have normally expired on July 6, appellant could have claimed extensions until July 10. In computing the time period for purposes of appeal, the

### Montana Rules of Civil Procedure provide for a three-day extension when a party receives service by mail and has the right to do some act, such as file an appeal, and an extension when the last day of the period falls on a Sunday. Rules 6

### (e)and 6

### (a), M.R.Civ.P. Appellant, however, filed a notice of appeal on August 3, 58 

### days after the commissioners' assessment was filed. Appellant nevertheless maintains that the notice of appeal

was timely because the time for appeal did not begin to run when the manner of service departed from the method of service prescribed by the statute. When the statute calls for service as "in the manner of a summons," appellant contends that service by mail will not suffice and that a departure from the prescribed method is a jurisdictional defect which cannot be waived. Appellant argues for a strict construction of section 70-30-303,MCA, which provides: 

### "Reportof Commissioners. The report of commissioners shall be made on such forms as are provided for their use by authority of the court. Such reportmust be filed 

# .

# . .with the clerk of court and the Clerk must forthwith notify the parties that such report has been filed,with notice, together with a true copy of said report, must be served upon all the parties interested, in the same manner as a summons

# . . ." Respondent, in turn, places emphasis upon appellant's receiving actual notice of the comrnissioners~report. We

are referred to the findings of fact of the District Court where it was found that appellant received a copy of the commissioners' report and notice of its entry on June 8. 

### Respondent also argues that this Court has implicitly held that the manner of service prescribed under the eminent domain statutes is a procedural defectwhich may be waived. State of Montana v. Helehan (1977), 171Mont. 473, 559 

### P.2d817. In Helehan service of the commissioners' report was made by mail and such service did not prevent the court from assuming jurisdiction of the appeal. In this case, however, 

### we refrain from approving of methods of service which depart from prescribed statutory procedures. Nor do 

### we adopt respondent's interpretation of Helehan. We simply hold thatwhere a party receives actual notice of the commissioners' report inan eminent domain proceeding and fails 

### to filea notice of appeal within the 

### timeprovided by law, the court 

### iswithout jurisdiction to hear the appeal. Since the DistrictCourt found that appellant received actual notice and admitted service on June 8 and that finding has not been shown tobe clearly erroneous, it shallnot be 

### set aside. Rule 52(a),M.R.Civ.P.; Farmer's StateBank

v. Mobile Homes Unlimited (1979), Mon

### t

# . , 593 P.2d 734, 36 St.Rep. 792, 796. Accordingly, 

### we hold that appellant's notice of appeal 

### was not timely filed and that the DistrictCourt lacked jurisdiction tohear the appeal. Appellant challenges the appraiser's feeupon two grounds--the necessity of the expense, and the fact that the appraiser did not testify 

### atthe commission hearing. Appellantcontends thatnot calling the appraiser to testify at the commission hearing deprived 

### it of the right of crossexamination of the appraiser. Atthe cost hearing respondent produced proof of payment of the appraiser by a $1,400 cashier's check. he court stated that it considered the employment of an appraiser a necessary action by the landowner toprepare her 

### case, and that the state should reasonably expect that the landowners would look toexperts inorder todetermine their damages by virtue of the taking.ÿ he only testimony before the District Court as to the reasonableness of the appraiser's charges was produced by respondent. That testimony showed that a charge of $175 per day for eight days was reasonable and usual for the services of 

### a professional appraiser. The expense was necessarily incurred by respondent and under section 70-30-306, MCA, 

### was properly awarded here. With respect to the attorney fees, the evidence shows that the finaloffer torespondent from appellantwas $7,800. Respondent entered into

### a contingent fee arrangement with her lawyers inMay 1977 fixing the attorneys' compensation at30 percent of any recovery in excess of $7,800. The retainer contract provided that any amount awarded respondent by the court asattorney fees would be 

### a credit against the contingent fee. Testimony atthe cost hearing produced by respondent showed that 

### a 30 percent contingent fee contract ineminent domain cases, on the cases established here, was reasonable, and perhaps lower than the usual onethird contingent fee charged by some lawyers. It was admitted that counsel for respondent were experienced practitioners ineminent domain 

### cases. It

### was also shown that $50 per hour was the prevailing rate for lawyers' services in the area atthat 

### timeand that in this case the attorneys had logged 

### a total of 80 hours of work, excluding the work for the cost hearing. Respondent claimed she was entitled to the amount of fees calculated under the contingent fee contract because she was obligated topay the same inany event and because the contingent feewas necessary and reasonable under the circumstances. Appellant objected, claiming that any fee in

excess of the hourly ratewas contra to section 70-30-306, MCA

# .Section 70-30-306, MCA, became effective July 

### 1, 1977. The contingent feewas agreed upon inMay 1977, before the effective date of the statute. The District Court decided that since the statute, which 

### limitsattorney fees tobe recovered by condemnees tocustomary hourly rates for attorneys in the county involved, became effective after the contingent fee contract was agreed to, it would award the contingent fee under the statutewhich preceded section 70- 30-306, MCA. Accordingly, the DistrictCourt awarded $9,600 inattorney fees. Because the retainer contractwas agreed tobefore section 70-30-306 came intoeffect, this case 

### iscontrolled by Statev. Olsen (1975), 166 Mont. 139, 531 P.2d 1330. In Olsen this Court approved a contingent fee contract of 25 percent where proof of the reasonableness of the percentage

was made atthe hearing, 

### as necessary tomake the landowner whole under Article 11, Section 29, 1972 Montana Constitution. Here appellant offered no evidence as toeither a reasonable hourly rate or the reasonableness of 30 percent contingent feecontract. The District Court acted according tothe evidence before it and the prevailing law. Therefore, 

### itsdetermination of attorney fees inthis case

### willnot be disturbed. Affirmed.

We concur: 

# I

/ 

## /jJustices