No. 85-395 INTHE SUPREMECOURT OF THE STATEOF MONTANA 1986

FRANKDONNES

## ,Plaintiff and Respondent,

GEORGE ORLANDO, PersonalRepresentative of the Estate of FRANK DONNES, Deceased, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Sixteenth JudicialDistrict, In and for the County of Treasure, The Honorable Alfred B. Coate, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Kelly & Halverson,P.C.; Sheehy,Prindle & Finn, PatrickR. Sheehy,Billings,Nontana For Respondent: RussellK. Fillner,Billings, Montana

Filed: Submitted on Briefs: Feb. 26, 1986 Decided:June 4, 1986



### JUN4

# -1986

ClerkMr. Justice William E. Hunt, Sr., delivered. the Opinion of the Court.

Donnes brought this action in the Treasure County District Court against the estate of his uncle on his claim for services rendered and material furnished. Orlando, as personal represen-tativeof the estate,answeredand filed two counterclaims alleging loans fromdecedent toDonnes. Following anonjury trial,theDistrictCourt ruled that Donnes was not entitled to compensation for work done from October 20, 1978 through August 18, 1982 because this work

was a gratuity fromDonnes to his uncle. The District Court further held that Donnes was entitled to foreclosureof his mechanics' lien in the amount of $20,685.00 for a rip rap project performed from September 3,1982 through November 9, 1982, and costs, attorney fees, and interest as provided by law. Orlando received judgment on his counterclaim in the amountof $1,554.00. Shortly thereafter, jurisdiction of Treasure County was transferred from the Thirteenth to the Sixteenth Judicial District. A hearing was held before the new District Court judge concerning attorney fees. The District Court awarded Donnes attorney fees for foreclosure of the lien in the amountof $7,455.00 plus costs. Orlando appeals the judgment, and Donnes cross-appeals that part of the judgmentdenying his claim against Orlando. We affirm. The issuesraised by Orlandoare: 1. Whether the District Court erred in awarding Donnes $20,685.00 for the rip rapproject?2. Whether the findings of the District Court are adequate and support the court's decision? 3. Whether the District Court erred in awarding Donnes' attorney fees? Donnes raises the following issue on cross-appeal: Whether theDistrict Court erred indenyingDonnes' claim for work doneprior to the rip rap job? Donnes is a contractor primarily engaged in earth moving. His uncle, Frank, owned a farm situated on the Big Horn River. Donnes' father died when he was nine years old. Donnes developed a close relationshipwith his uncle. The two visited one another once or twice a week and telephoned in between. Donnes and his uncle assisted each other in their respectivebusinesses--the uncle by driving pickups on occasion,visiting job sites with lunches and other supplies, and assisting Donnes financially by making him loans and maintaining funds in their joint names. Donnes assisted his uncle in repairing fence, gathering cattle, fixing water wells, shingling the roof, and generally assisting the uncle whenever requested. These were friendly exchanges of services between relatives for which neither expected compensationand for which no claim ismade. Additionally, however, theuncle allowed Donnes to store equipment on the ranch and use the ranch shop and tools to maintain and repair his equipment as need arose. Donnes performed work on the ranch involving dozing, trenching and ditch cleaning without any express understanding as to payment other than that the uncle would "make itworthwhile." As a result, Donnes kept no records of dates, hours, equipment used, or materials provided, and neither preparednor submittedanybills (with two or three exceptions) to his uncle. In addition to thiswork,Donnes agreed toperform some rip rap work along the bank of the Big Horn where it was eroding and endangering an irrigation pipe line. Donnes began the project on September 3, 1982. On September 9, 1982, the uncle was found murdered on his ranch. Donnes completed the rip rapproject on November 9,1982. Following denial by the estate of his claims,Donnes filed this action inDistrictCourt. The first issue raised. 

### by Orlando is whether the District Court erred in awarding Donnes $20,685.00 for the rip rapproject? Orlando claims that theuncle did not agree to pay Donnes $20,685.00 for the project. Instead, he agreed to pay only $25.00 per lineal foot for a total of $6,700.00. This contention is based on the fact that the uncle applied to the Agricultural Soil and Conservation Service (ASCS) for cost sharing for the rip rap project knowing that theASCS limit for such projectswas $25.00 per lineal foot. Donnes contends that his uncle agreed to pay him $20,685.00 for theproject. As we have stated in thepast, the judgmentof the trial court is presumed to be correct and this Court will draw every legitimate inference to support that presumption. Findings will not be overturned unless there is a clear preponderance of the evidence against them, recognizing that evidence may be weak or conflicting yet still support the findings. Jensen v. Jensen (Mont. 1981), 629 ~.2d 765, 38 St.Rep. 1109. There is substantial credible evidence to support the District Court's decision to award Donnes $20,685.00 for therip rap job, and we will not overturn that decision on appeal. Donnes testified that he discussed the rip rap project with his uncle inAugust 1982. Donnes informed his uncle thathe had bid a similar job for Montana Power Company at $20,685.00, and that his uncle's job would be about the

same price. The District Court found that the cost of the Montana Power Company project was establishedby competitive bidding, and at the time of Donnes' discussions with his uncle, it was assumed the uncle's job was comparable and would not cost anymore than the companyproject. Orlando's contention that the uncle's application for ASCS cost sharing proves that he agreed to pay only $6,700 is insufficient to warrant reversing the District Court. The uncle failed to complete the necessary steps for cost sharing by not obtaining a Federal Corps of Engineer 404 permit. We will not reverse the District Court absent a clear preponderance of the evidence against them. No such preponderance exists in this case. The second issue raised by Orlando is whether the findings of the District Court are adequate and support the court's decision? Orlando cites In re theMarriage ofWilmot

(1982), 199 Mont. 477, 649 P.2d 1295, to support his contention that the court's findingswere fatally deficient. In Wilmot,we remanded the case because the District Court's findings were conflicting and contradictory, with numerous references to evidence without any indication of the weight given that evidence. Orlando argues the findings in this

case are equally deficient--that the findingsmerely restate the parties' contentions and evidence with no indication of the weight it attached to the evidence, or how the trialcourt came the ultimate finding that the uncle agreed pay Donnes $20,685.00. We do not agree. In Jensen, 631 P.2d 700, 703, we stated: Our ultimate test for adequacy of findingsof fact is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidencepresented. The findings in Wilmot were contradictory and provided no basis for review. In this case,while some of the findings restate the contentions of the parties, the findings are not contradictory, are supported by the evidence, and provide a basis for review. The District Court found, supported by substantial credible evidence, that Donnes and his uncle discussed the rip rap project, and that the uncle agreed to pay Donnes the same price as the Montana Power Company project. The court stated in findingno. 37: [Tlheevidencedoes support the conclusion that the cost of the Montana Power Company project had been establishedby competitivebidding and,that at the time of [Donnes'] discussions with his uncle, it was assumed that the uncle's job would be comparable and would not be billed by [Donnes] to his uncle at any higherprice. The District Court was faced with conflicting evidence and resolved the conflict in favor of Donnes. That is the duty of the District Court, and we do not agree that the findings

were so inadequateas to requireremand. Orlando further contends that because the findings do not meet the adequacy test found in Jensen, as they are neither sufficiently comprehensive nor pertinent to the issue to provide a rational basis fordecision, then this Court is free to analyze the facts and apply the lawwithout remand. Since we have concluded that the findings are adequate to support the decision,we need not address this issue.The final issue raised by Orlando is whether the District Court erred in awarding Donnes his attorney fees? We note initially that the determinationof attorney fees is largely discretionary with the District Court, and we will not disturb its judgment in the absence of an abuse of that discretion. Collins Agency v. Hagerott (Mont. 1984), 684 P.2d 487, 41 St.Rep. 1375;Carkeek v. Ayer (19801,188Mont. 345, 613 P.2d 1013. Orlando contends that the award of attorney fees in this casewas improperbased on fourpoints. First, he claims that Judge Coate abused his discretion by awarding fees in a case he did not try because he could not know all of the circumstances surrounding the underlying foreclosure action. Judge Coate stated in his memo opinion and order: When considering the question of reasonable attorney fees, the presiding trial judge is certainly in the best position to make that determination. However, Judge Coate also pointed out that the parties had two months following the judgment and prior to the change in jurisdiction to bring thematter of attorney feesbefore the judgewho presided over the foreclosureaction. Neither side did, and on January 7, 1985, jurisdiction of Treasure County

was transferred from the Thirteenth to the Sixteenth Judicial District. A judge's jurisdiction over a case is a matter of law, and Judge Coate obtained jurisdiction over this case as a matter of law on January 7, 1985. While it is preferable that the presiding trial judge consider the question of attorney fees, it is not mandatory. We do not agree that Judge Coate abused his discretion by determining Donnes' attorney fees.Second, Orlando contends it was not reasonable for the District Court to grant Donnes' entire attorney fees when only part of the attorney's time was spent on the lien foreclosure. In this case, the estate filed a counterclaim against Donnes and it is impossible to segregate the attorney's time between foreclosure of the mechanic's lien and.defense of the counterclaim. As Judge Coate stated: Each case must be decided on its own facts and the Court cannot say that attorney fees should be limited to a certain percentage of the lien that was found to exist

# . . . Defendantdoesnot attack counsel's hourly rate nor the number of hours counsel spent on this case. We have stated that where an attorney's time cannot be clearly segregated, he is entitled to a reasonable fee for the case. St. Paul Fire andMarine InsuranceCo. v. Cumiskey

(Mont. 1983), 665 P.2d 223, 40 St.Rep. 891. The ~istrict Court found that $75.00 an hour was a reasonable fee, and that 99.4 hours was a reasonable amount of time for this

case. We agree. Orlando's third argument is that attorney fees were improper where the judgment Donnes received was less than half ofwhat he asked for. This is incorrect. Judge Coate stated: Counsel cannotbe denied their fee simplybecause a Large recoverywas not obtained.

The fact that Plaintiffdid not receiveall thathe was seeking does not prove that counsel is not entitled to a just fee. In Schillinger v. Brewer (Mont. 19851, 697P.2d 919, 42 St.Rep. 408,plaintiff sought to enforcehismechanic's lien. TheDistrictCourt found for plaintiff with an offset forthe defendant that reduced the judgment below the amount of defendant's last offer. We reversed the District Court'saward of attorney fees to defendanta.ndremanded the case for

a determination of attorney fees forplaintiff. We reasoned that the plaintiff, in establishing his lien, was entitled to attorney fees for the entire action in the District Court. In this case, Donnes established.his lien. Section 71-3-124,MCA, mandates an award of attorney fees. The fact that Donnes did not receive the entire amount of his claim does not alter this result. The award of attorney feeswas proper. The fourth argument is that the DistrictCourt erred in awarding attorney fees for time spent collecting attorney fees. While this argumentmay be correct, it does not apply in this case. We held in Ring v. Hoselton (1982)

## , 197Mont. 414, 643 P.2d 1165, that a judgment is not final until all the issues have been determined including the determination of attorney fees. Here, the eight hours spent by Donnes' counsel at the hearing before Judge Coate were spent determining attorney fees, not collecting those fees. Time spent determiningattorney fees is asmuch apart of the case

as establishing the lien. We hold that the District Court did not abuse itsdiscretionby awarding Donnesattorney fees in the amount of $7,455.00. Turning now to the issue raised by Donnes on cross-appeal, Donnes contends that the District Court erred in denying his claim for work done prior to the rip rap project

# . The work occurred from 1978 through 1982, and consisted of dozing, trenching, backhoe work, gradin.g,and the like. The District Court found that Donnesand hisuncle

were so close a presumption arose that this work was performed gratuitously. There is substantial credibleevidence to support this finding and we will not disturb it

on appeal. The DistrictCourt stated in findingno. 9: [Donnes] testified that he was very close to his uncle. [Donnes'] father died when he was only 9 years of age. From the time [Donnes]was 15years of age to the time of thedeath ofhis uncle, their relationship grew to the point where [Donnes] felt that his uncle would "give him anything" and do anything forhim. Likewise, [Donnes] felt the same way towardhisuncle. The court further noted that Donnes spent several summers on his uncle's ranchhelping withwork. Although Donnes and his uncle lived 60 miles apart during the period in question, they "wereinpractically continuous communication--by visits

one from the other once or twice a week, and by telephone calls inbetween." Additionally,Donnesand his unclehelped each other in their respective businesses, and the uncle allowed Donnes "to store his equipment on the ranch and use the ranch shopand tools tomaintain and repair his equipment

as the occasionarose." The District Court acknowledged that generally the relationship between uncle and nephew is insufficient to raise a presumptionofgratuity. However, in this case, the evidence clearly shows that avery close familyrelationshipdid, in fact, exist, as a consequence of the death of the nephew's father, resulting in the nephew and uncle living together at times and thereafter working together in a continuous relationship. Their relationshipwasmuch closer than that of the usual uncle and nephew situation. The record supports the finding that the close family relationship between Donnes and his uncle raises a presumption that the work in question was performed gratuitously. Once the presumption is applied, it is the burden of the party seeking compensation to overcome that presumption. Shurrum v. Watts (Idaho 1958), 324 ~.2d 380,385. Donnes failed to carry thisburden. The DistrictCourt found that Donnesperformed the work in question: Wgthout therebeing any expressundersta-ndingas to payment to [Donnes], other than that the uncle would "make j.t worthwhile," and [Donnes

### '1 feeling that this meant he would end up receiving either money or a part of the ranch at sometime in the future. This evidence is insufficient to justify an express or implied agreement that Donnes would be paid for his work. Finally, Donnes argues that the issue ofpresumption of gratuity should have been raised by Orlando in his pleadings

as an affirmative defense, and not raised in the final post-trial brief. This is correct. However,we have long held that pleadings will be deemed amended to conform to proof received without objection. Franck v. Hudson (1962)

## , 1-40Mont. 480, 373 P.2d 951;Joy v. Little (1958),134Mont. 82, 328 P.2d 636. In this case, Donnes raised the issue of the closeness of the family relationship during trial without the necessity of Orlando raising it as an affirmative defense. He testified as to their relationship,and the fact that they often helped each other with no expectation of compensation. Orlando availed himself of thedefense without the necessity of pleading it affirmatively. Therefore, Donnes' argumentmust fail. For the reasons stated above, we affirm the District Court in all respects.

We Concur: