No. 85-395 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

FRANK DONNES , 

Plaintiff and Respondent, 

GEORGE ORLANDO, Personal Representative 

of the Estate of FRANK DONNES, Deceased, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Treasure, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly & Halverson, P.C.; Sheehy, Prindle & Finn, 

Patrick R. Sheehy, Billings, Nontana 

For Respondent: 

Russell K. Fillner, Billings, Montana 

Filed: 

Submitted on Briefs: Feb. 26, 1986 

Decided: June 4, 1986 

JUN 4 - 1986 

Clerk 
Mr. 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-tative of the estate, answered and filed two 

counterclaims alleging loans from decedent to Donnes. 

Following a nonjury trial, the District Court 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 from Donnes to his uncle. The District Court 

further held that Donnes was entitled to foreclosure of 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 

amount of $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 

amount of $7,455.00 plus costs. 

Orlando appeals the judgment, and Donnes cross-appeals 

that part of the judgment denying his claim against Orlando. 

We affirm. 

The issues raised by Orlando are: 

1. Whether the District Court erred in awarding Donnes 

$20,685.00 for the rip rap project? 
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 the District Court erred in denying Donnes' claim for 

work done prior 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 relationship with 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 respective businesses--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 

compensation and for which no claim is made. 

Additionally, however, the uncle 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 it worthwhile." 

As a result, Donnes kept no records of dates, hours, 

equipment used, or materials provided, and neither prepared 
nor submitted any bills (with two or three exceptions) to his 

uncle. 

In addition to this work, Donnes agreed to perform 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 rap project on November 9, 1982. Following 

denial by the estate of his claims, Donnes filed this action 

in District Court. 

The first issue raised. by Orlando is whether the 

District Court erred in awarding Donnes $20,685.00 for the 

rip rap project? Orlando claims that the uncle 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 the ASCS limit for such projects was $25.00 per 

lineal foot. Donnes contends that his uncle agreed to pay 

him $20,685.00 for the project. 

As we have stated in the past, the judgment of 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 the 
rip rap job, and we will not overturn that decision on 

appeal. Donnes testified that he discussed the rip rap 

project with his uncle in August 1982. Donnes informed his 

uncle that he 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 established by 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 any more than the company project. 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 the Marriage of Wilmot 

(1982), 199 Mont. 477, 649 P.2d 1295, to support his 

contention that the court's findings were 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 findings merely restate 

the parties' contentions and evidence with no indication of 

the weight it attached to the evidence, or how the trial 
court 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 findings of 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 

evidence presented. 

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 finding no. 37: 

[Tlhe evidence does support the conclusion that the 

cost of the Montana Power Company project had been 

established by competitive bidding 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 higher price. 

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 inadequate as to require remand. 

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 for decision, then this Court is 

free to analyze the facts and apply the law without 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 determination of 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, 188 Mont. 

345, 613 P.2d 1013. Orlando contends that the award of 

attorney fees in this case was improper based on four points. 

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 the matter of attorney fees before the 

judge who presided over the foreclosure action. 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 . . . Defendant does not 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 and Marine Insurance Co. 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 of what he asked for. This is incorrect. Judge Coate 

stated: 

Counsel cannot be denied their fee simply because a 

Large recovery was not obtained. 

The fact that Plaintiff did not receive all that he 

was seeking does not prove that counsel is not 

entitled to a just fee. 

In Schillinger v. Brewer (Mont. 19851, 697 P.2d 919, 42 

St.Rep. 408, plaintiff sought to enforce his mechanic's lien. 

The District Court found for plaintiff with an offset for the 

defendant that reduced the judgment below the amount of 

defendant's last offer. We reversed the District Court's 
award of attorney fees to defendant a.nd remanded the case for 

a determination of attorney fees for plaintiff. 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 fees was 

proper. 

The fourth argument is that the District Court erred in 

awarding attorney fees for time spent collecting attorney 

fees. While this argument may be correct, it does not apply 

in this case. We held in Ring v. Hoselton (1982) , 197 Mont. 

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 determining attorney fees is as much a part of the case 

as establishing the lien. We hold that the District Court 

did not abuse its discretion by awarding Donnes attorney 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 Donnes and his uncle 

were so close a presumption arose that this work was 

performed gratuitously. There is substantial credible 
evidence to support this finding and we will not disturb it 

on appeal. The District Court stated in finding no. 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 15 years 

of age to the time of the death of his uncle, their 

relationship grew to the point where [Donnes] felt 

that his uncle would "give him anything" and do 

anything for him. Likewise, [Donnes] felt the same 

way toward his uncle. 

The court further noted that Donnes spent several summers on 

his uncle's ranch helping with work. Although Donnes and his 

uncle lived 60 miles apart during the period in question, 

they "were in practically continuous communication--by visits 

one from the other once or twice a week, and by telephone 

calls in between." Additionally, Donnes and his uncle helped 

each other in their respective businesses, and the uncle 

allowed Donnes "to store his equipment on the ranch and use 

the ranch shop and tools to maintain and repair his equipment 

as the occasion arose." 

The District Court acknowledged that generally the 

relationship between uncle and nephew is insufficient to 

raise a presumption of gratuity. 

However, in this case, the evidence clearly shows 

that a very close family relationship did, 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 

relationship was much 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 this burden. The District Court 

found that Donnes performed the work in question: 

Wgthout there being any express understa-nding as 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 of presumption 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) , 

1-40 Mont. 480, 373 P.2d 951; Joy v. Little (1958), 134 Mont. 

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 the defense without 

the necessity of pleading it affirmatively. Therefore, 

Donnes' argument must fail. 

For the reasons stated above, we affirm the District 

Court in all respects. 

We Concur: