No. 89-124 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JAMES HAUGEN, 

Plaintiff and Respondent, 

-vs- 

... RICHARD W. NELSON and JOAN A. NELSON, 

husband and wife, 

Defendants and Appellants. 

APPEAL FROM: ~istrict Court of the Seventh Judicial district.^% 

In and for the County of Richland c v' 

The Honorable H. R. Obert, Judge presiding. 3 

COUNSEL OF RECORD: 

For Appellant: 

~hillip N. Carter, Koch & Carter, ~idney, Montana 

For Respondent: 

Peter 0. Maltese, Sidney, Montana 

Filed: 

-- -- 

Submitted on Briefs: August 24, 1989 

Decided: November 21, 1989 
Justice John C. Sheehy delivered the Opinion of the Court. 

On July 28, 1988, the defendants filed a motion for 

attorney fees in the District Court, Seventh ~udicial 

District, Richland County. The District Court denied 

defendants' motion for attorney fees. The defendants 

appealed the District Court order. We affirm. 

The sole issue on appeal is: 

Did the District Court err in refusing to award to 

defendants their reasonable attorney fees incurred in 

defending the plaintiff's claim made against them. 

The plaintiff, James Haugen (Haugen), initiated this 

suit in District Court to obtain a money judgment based on a 

promissory note against the defendants Richard W. and Joan A. 

Nelson (the Nelsons). Defendants in their answer claimed a 

set-off against Haugen and asserted a counterclaim contending 

they were entitled to reimbursement for certain partnership 

debts and expenses. 

Both parties asserted claims for attorney fees in their 

pleadings. The parties' claims for attorney fees were based 

on the following paragraph in the promissory note: 

. . . In case suit or action is instituted to 

collect this note, or any portion thereof, we 

promise to pay such additional sums that the court 

may adjudge reasonable as attorney fees in suit or 

action. 

On May 19, 1988, the trial was commenced in District 

Court. Following the trial, the Nelsons' attorney made his 

motion for dismissal of Haugen's case under Rule 41(b), 

M.R.civ.P. On June 1, 1988, the District Court entered its 

findings of fact, conclusions of law and order in this 

action. The order dismissed Haugen's complaint and the 

counterclaim of the Nelsons. The District Court made no 
mention of the Nelsons claim for attorney fees incurred in 

connection with Haugen's claim. 

The Clerk of the District Court mailed notice of entry 

of judgment to counsel for both parties on June 2, 1988. 

Subsequently, Haugen submitted a motion for a new trial or 

amendment of the order. The District Court denied this 

motion on July 6, 1988. Before the denial, however, the 

Nelsons' attorney, on June 14, 1988, mailed his notice of 

entry of judgment, with attached copy of the ~istrict Court's 

June 1, 1988 order to Haugen's attorney. 

On July 28, 1988, nearly six weeks after mailing notice 

of entry of judgment, the Nelsons filed their motion for 

attorney fees. On August 4, 1988, before the motion for 

attorney fees could be heard, Haugen filed his notice of 

appeal. Haugen failed to follow through on his appeal, and 

on December 12, 1988, Haugen filed his own motion to dismiss 

his notice of appeal. 

 ina ally, on January 3, 1989, the ~istrict Court heard 

the Nelsons' motion for attorney fees. The ~istrict Court 

denied the Nelsons' motions stating the following reason: 

The defendants' motion for attorneys fees, filed on 

July 28, 1988 is denied for the reasons that it was 

not filed within 10 days after service of the 

notice of entry of judgment which was June 14, 

1988. his was required by rule 59(g), M.R.Civ.P. 

Further, the Court had every intention of 

dismissing ALL CLAIMS OF ALL PARTIES in its order 

of June 1, 1988; this in the interest of justice. 

Did the District Court err in refusing to award to 

defendants their reasonable attorney fees incurred in 

defending against the plaintiff's claim made against them? 

The general rule regarding the award of attorney fees 

provides that attorney fees are awardable only where a 

statute or contract provides for the recovery. Northwestern 
Nat. Bank v. Weaver-Maxwell (1986), 224 Mont. 33, 44, 729 

p.2d 1258, 1264; Sliters v. Lee (19821, 197 M0n-t. 182, 

183-184, 641 P.2d 475, 476. The parties' promissory note 

agreement provided for reasonable attorney fees in actions 

for its enforcement. Section 28-3-704, MCA, makes the right 

to attorney fees reciprocal. 

The defendants argue, § 28-3-704, MCA, and this Court's 

holdings in Northwestern -- Nat. Bank and liters dictate that 

the ~istrict Court award them attorney fees as the prevailing 

party. 

However, the District Court denied the defendants' 

attorney fees for the reason that the defendants failed to 

comply with Rule 59(g), M.R.civ.P., as follows: 

A motion to alter or amend the judgment shall be 

served no later than 10 days after the service of 

notice of entry of the judgment and may be combined 

with a motion for a new trial herein 

provided.. . . 

Rule 54 (a), M.R.Civ.P. defines judqment as "the final 

determination of the rights of the parties in an action or 

proceeding and as used in these rules includes a decree and 

any order from which an appeal lies . . ." 

In its order dated June 1, 1989, the District Court 

dismissed Haugen's complaint and the Nelsons counterclaim. 

The District Court did not award attorney fees to either 

party. The Nelsons argue that the District Court's order of 

June 1, 1989 is interlocutory because it does not expressly 

award or deny attorney fees. We find no merit with this 

assertion. Under Rule 54 (a) , M. R.civ.P., the court's order 

was a final determination of the rights of the parties, and 

thus a judgment. Even the Nelsons themselves deemed the 

District Court's order a final judgment by virtue of the fact 

that their attorney filed notice of entry of judgment on June 

14, 1988 with the District Court. The word "judgment" is 
blazed across the caption of the instrument filed by the 

Nelsons. 

The Nelsons1 efforts for relief from judgment came in 

the form of a motion for attorney fees which they filed 45 

days after service of notice of entry of judgment. This 

Court in In re Marriage of McDonald (1979), 183 Mont. 312, 

599 P.2d 356, 358, held Rule 59(g), M.R.civ.P. applies to 

motions for attorney fees. In denying the petitioners 

request for attorney fees, this Court in McDonald stated the 

following: 

Rule 59 (g) , M0nt.R.Civ.P. provides: "A motion to 

alter or amend the judgment shall be served no 

later than 10 days after the service of the notice 

of the entry of judgment . . . " This rule applies 

to petitions for costs and attorney fees filed 

af ter entry of judgment. (Citations omitted. ) 

Proper application of the rules clearly prohibit 

granting of the request for relief to the mother in 

this case. 

Notice of entry of the ~istrict Court order 

required both parties to bear their own costs and 

attorney fees which was served on the father on 

December 30, 1977. Having failed to file the 

petition for costs and attorney fees within ten 

days of service, the District Court was without 

jurisdiction to give the mother the requested 

relief. 

Since the Nelsons failed to file the motion 10 days 

after the service of the notice of the entry of judgment, 

their motion was untimely and the District Court was without 

jurisdiction to grant attorney fees. 

Next, the Nelsons argue that they have been deprived of 

due process. The Nelsons contend that they were given no 

opportunity to present evidence as to attorney fees at the 

time of the hearing. The Nelsons and their attorney had 

ample opportunity to present evidence at the hearing 

regarding attorney fees. The Nelsons were given the 
opportunity to testify to attorney fees, but chose not to 

partake in the trial which led to the June 1, 1988 order of 

the District Court. The Nelsons failed to attend the trial. 

We find no deprivation of defendants' due process in this 

case. 

Furthermore, after reviewing the record, we find 

attorney fees are not appropriate due to the excessive 

dilatory tactics of both parties. Haugen's attorney filed 

his complaint on June 8, 1982, and served defendant on July 

27, 1982. Then Haugen's attorney simply slept on his claim. 

 in ally, after receiving two notices from the Clerk of the 

~istrict Court, Haugen, on January 9, 1987, filed a motion 

for scheduling. The District Court set the trial for October 

20, 1987, but the trial was further delayed by Haugen's 

attorney's repeated continuances until May 19, 1988. ~ustice 

should be administered economically, efficiently, and 

expeditiously. Baruch v. ~iblin (Fla. 1935), 164 So. 831, 

833. A seven year delay, due solely to attorneys, is a far 

cry from the proper administration of justice. 

The Nelsons also played a role in prolonging the 

administration of justice in this case. The Nelsons, like 

Haugen, failed to pursue any action in this case until 1987. 

When the case finally came to trial on May 19, 1988, the 

Nelsons failed to attend the trial or offer any testimony on 

their behalf. The record here is one of both attorneys 

bickering among themselves at every level of this action. 

The evidence in the record supports the District Court's 

denial of any motion for attorney fees. 

The Nelsons' motion for attorney fees constituted a 

motion to amend a judgment. The defendants failed to file a 

timely motion under Rule 59 (g) , M.R.civ.P. and therefore the 

~istrict Court properly denied their motion for attorney 

fees. Furthermore, we find attorney fees are not appropriate 
in view of the excessive dilatory tactics by both parties. 

We affirm the ~istrict Court's holfiin$ 

.--_ , J& 1 ,a Justlce 

We Concur: A 

<,? fl* hief 9% Justlce