### No. 81-254 INTHE SUPREYE COURT OF THE STATE OF MONTANA 1982

GEORGE and MARIE KADILLAK, husband & 

### wife, et al., Plaintiffsand Appellants,

-vsMONTANA DEPARTMENTOF STATE LANDS, Defendantand Respondent.

Appeal from: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable Gordon R. Bennett, Judge presiding.

Counsel of Record: ForAppellants; .McGarvey,Lence & 

### Heberling;John L. Heberling, argued,Kalispell, Montana For Respondent: John F. North, Dept. of State Lands, Helena, Morrtana

Submitted: January 15, 1982 Decided: April 26, 1982

Filed: 

## APR

## 2

## 61982Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. In a prior decision thisCourt remanded thiscase to the Silver Bow District Court for an evidentiaryhearing on attorney fees. The District Court awarded the feesbased on Montana's 

### writof mandate statute. The plaintiffs appeal the award of attorneyfees and 

### costs. The original 

### case, ~adillak v. Anaconda Co. (1979), Mont. 

## ,602 P.2d 147, 36 St.Rep. 1820, involved an appeal from

a District Court order denying plaintiffs relief on their complaint against the Anaconda Company and various state agencies relating to the establishment and operation of a waste dump near the plaintiff

### s' residences inButte, Montana. his Court granted the plaintiffsa writof mandate against the Department of State Lands (StateLands), enjoined the Anaconda Company from using the waste dump until a valid permit was obtained, and remanded the

case for a determinationof attorney feespursuant to the 

### writof mandate statute. An evidentiaryhearing on attorney fees was held on June 3, 1980. Atthe hearing plaintiffs' attorney, Jon Heberling, requested fees for 90%of the total hours spent on the case, the number of hours he claimed 

### were attributable to the mandamus action against StateLands. He contended that inorder toprevail on the mandamus issue it was necessary to provide proof of irreparable injury, proof of the equities involved in the 

### case, proof of standing, and proof to meet the defense of substantial compliance with the permit requirements. Clayton Herron, an experienced trial attorney, testified forthe defendants. He had not been involved in the actual trial of the case but had been asked by the defendants to review the trial record and to give an opinion as to what he considered to be a reasonable number of hours to have spent on the mandamus issue. Mr. Herron noted thatout of numerous causes of action pleaded against sixdefendants, the plaintiffsprevailed againstonlyone defendant and onlyon the ground that the permitapplication

### was inadequate. Because so many issues had been raised and so much evidence presented, he stated that inhisopinion the onlyproductive way to fix a reasonable attorney fee award was 

### to estimate the number of hours it would have taken 

### to bring 

### to trial and appeal the mandamus issue. Based on hisown experience he estimated that 130hours would have been needed at the trial court level and 40 to 50 hours on appeal. After the hearing, the District Court judge awarded plaintiffs$11,300 in attorney fees and $7,924.39 in

### costs. In his memorandum opinion the judge stated thatunder the language of the mandamus statute the award of attorney fees 

### was 

### to be based solelyon the number of hours spentby the attorney on the mandamus issue and not the 

### total number of hours involved in the

case. He stated that it 

### was not possible to 

### isolate orclearly distinguish the elements of the mandamus issue and that the elements of pleading and proof in the case 

### were 

### so intertwined and convoluted thatno rational allocationof attorney effort could be made. Therefore he based the award of attorney fees on the number of hours Mr. Herron estimated as reasonable for the mandamus issue. However, because he determined that the case had been complex, the litigation important, the skillof the 

### attorneys of a high order, and the desired result had been obtained, the judge awarded the attorney fees at a higher rateper hour than 

### was recommended by Mr. Herron. Costs 

### were awarded onlyfor the items specifically listed 

### in section 25-10-201, MCA. The ~istrict Court judge stated that he knew of no realistic formula for segregating the costs for the mandamus issue and therefore awarded plaintiffsthe total costs incurred in the case for the items listed in the statute. However he denied the plaintiffs' request forprejudgment intereston the attorney fees and costs. The plaintiffs raise the following issues in thisappeal:1. Did the 

### ~istrict Court 

### err in 

### itsdetermination of reasonable attorney fees? 2. Is prejudgment interest allowable on attorney fees awarded under the mandamus statute? 3. Did the District Court 

### err inrefusing 

### to award

as "damages" within the meaning of section 27-26-402, MCA, 

### certain litigation expenses? 4. Did the DistrictCourt 

### err inrefusing 

### to award as costs under section 25-10-201 (9), MCA, certain litigation expenses? The firstissue dealswith attorney fees. Section 27-26-402, MCA, provides inpart: "If judgment is given for the [writof mandate] applicant: "(1) he may recover the damages which he has sustained

# ... together with 

### costs

# . .." Reasonable attorney fees 

### are damages within the meaning of this statute. Statev. District Court (1953), 127Mont. 32, 256 P.2d 1076; Statev. Batani (1936), 103Mont. 353, 62 P.2d 565. The District Court correctlyconcluded that thisstatuteprovides only for an award of attorney fees for the number of hours spent by the attorneyon the mandamus issue. The District Court determined that the elements of pleading and proof 

### were so intertwined and convoluted in this

case that no rational allocationof attorney effort on the mandamus issue could be made based on the trial record. Therefore the award 

### was based on Mr. Herronvsestimate of the number of hours required to prevail on the mandamus issue. The plaintiffs contend that it was improper for the DistrictCourt to base the award on Mr. Herron's estimate rather than on the scope of evidence reasonably admissible in the case. In response to plaintiffsvcontention

### we note firstthat it 

### is within the discretion of the District Court judge to determine reasonable attorney fees and hisdeterminationwillnot beinterfered with unless an abuse of discretion is shown. Glickv. State, Montana Department of ~nstitutions (1974), 165Mont. 307, 528 P.2d 686; Luebben v. Metlen (1940), 110Mont, 350, 100 P.2d 935. We find no abuse of discretionhere. The original trial in thiscase lasted for thirteen days and involved sixdefendants and fourteen separate counts ranging from counts in nuisance and trespass to alleged violations of the Montana Environmental Policy Act, the 1972 Montana Constitution, theHard Rock Mining Act, the Water Pollution Control Act and the Clean AirAct. The 

### case 

### was complex and involved numerous issues other than the mandamus issue upon which the plaintiffs ultimately prevailed on appeal. Since the attorney fee award is tobe based onlyon the hours spentby the attorney on the mandamus issue and since the elements of proof in the case 

### were so intertwined, the DistrictCourt judge did not abuse hisdiscretion inbasing the award on the estimategiven by an experienced trial attorney as to the number of hours necessary 

### to prevail on the mandamus issue. The plaintiffs argue thatthe judge erred as a 

### matter of 

### lawin failing 

### to base the award of attorney fees on evidence reasonably admissible on the mandamus issue, including proof related to standing, irreparable injury, the equities in the case, and the permit requirements. There is no merit 

### to this argument. Proof of irreparable injury 

### is not required in a 

### writ of mandamus action and the amount of timeMr. Herron estimated as reasonable 

### to prevail on the mandamus issue 

### was sufficientto allow the parties 

### to present evidence related to the other areas of proof. Guidelines have been established by thisCourt fordetermining reasonable attorney fees. 

### "'"The circumstances to be considered indetermining the compensation 

### to be recovered 

### are the amount and character

### of the services rendered, the labor, 

### time and trouble involved, the character and importance of the litigation inwhich the serviceswere rendered, the amount of money 

### or the value of property 

### to be affected, the professional skill and experience called for, the character and standing in their professionof the attorneys.

# . . The result secured by the servicesof the attorneysmay be considered as an important element indetermining theirvalue."^" First SecurityBank of Bozeman v. Tholkes (1976), 169Mont. 422, 429-430, 547 P.2d 1328, 1332. These guidelines were considered by the District Court judge when he determined the 

### rate per hour upon which 

### to base the fee award. We find no 

### error with either the method used by the District Court judge fordetermining reasonable attorney fees orwith the amount awarded. The second issue dealswith the denial of prejudgment intereston the award of attorney fees. The District Court concluded that there is no authority inMontana's statutes or

case law for the award of intereston attorney feesprior 

### to judgment. The plaintiffs contend that the District Court erred

as a 

### matter of 

### law inreaching thisconclusion. Two Montana statutes specificallydeal with the awarding of interest topersons entitled to recover damages, sections 27-1-211 and 27-1-212, MCA. In this

### case the award of attorney fees is an award of "damages" under section27-26-402, MCA. Therefore it is necessary 

### to determine whether eitherof the interest statutes authorizes an award of prejudgment interest in this

### case. Section 27-1-211, MCA, provides: "Every person who is entitled 

### to recover damages certainorcapable of being made certainby calculation and the right to recover

# . .. is vested in him upon a particular day 

### is entitled alsoto recover interest thereon from thatday 11 

# ... The determination of reasonable attorney fees in thiscase was within the discretion of the District Court and the amount was not definite

### or capable of being calculated with certainty prior to judgment. Therefore this sectiondoes not provide authority forawarding prejudgment interest to the plaintiffs.The other interest statute, section 27-1-212, MCA, provides: "In an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, 

### or malice, interestmay be given, in the discretion of the jury

# . .." Without deciding whether this statute applies 

### to cases in which the judge rather than the jury determines the award of damages, 

### we find that in any event this statutewould not authorize an award of prejudgment interest. In interpreting this statute this Court previously quoted with approval the following language: "'There is no authority of law for treating the jury as clothed with 

### a double discretion,--a discretion tobe exercised, first, in fixing the amount of the plaintiff's damages, and then in augmenting that amount by an assessment, in the nature of interest

# .. . lb add interestto discretionarydamages is 

### to multiply uncertainty by certainty; the indefiniteby the definite; a mixture of incongrous elements which subjects one of the parties to the burden, and gives the other the benefit of both kinds. 

### " Daly v. Swift & Co. (1931), 90 Mont. 52, 67-68, 300 P. 265, 269.

Based on thisrationale 

### we conclude that this statutedoes not authorize a discretionary award of prejudgment interest in this

case since the award of attorney fees is itself discretionary. The plaintiffs next argue thatauthority for awarding prejudgment interest is found in the mandamus statute itself, 

### section 27-26-402, MCA. Plaintiffscontend thatprejudgment interestcomes within the meaning of the 

### term "damages". We disagree. In thiscase the plaintiffs entered into a contingent fee agreement with their attorneys. No attorney fees were owing prior to judgment. Therefore the plaintiffs suffered no detriment in the nature of prejudgment intereston attorney fees since

no prejudgment interest

### was owing. 

### We hold that the District Court correctlyconcluded that there is no authority inMontana for an award of prejudgment intereston the discretionary award of attorney fees involved inthiscase. The third issue is whether the District Court erred in refusing to award as "damages" under section 27-26-402, MCA, certainout-of-pocket litigation expenses. With regard to this issue the District Court concluded thatthe mandamus statutedoes not contemplate the awarding of litigationexpenses not itemized in the cost statute, section 25-10-201, MCA. We find 

### error in the District Court's determination. Section 27-26-402, MCA, provides that the prevailing applicant for

### a writof mandate may recover damages as well as costs. In determining the meaning of "damages" 

### we turn to section 27-1-202, MCA: "Every person who suffersdetriment from the unlawful 

### act 

### or omission of anothermay recover from thatperson in fault a compensation therefor inmoney, which is called damages.

### " The 

### term "detriment" 

### is defined in section 27-1-201, MCA: "Detriment is a loss 

### or harm suffered inperson 

### or property.

### " In thiscase the plaintiffs

### were liable 

### to their attorneys under the provisions of their contingent fee agreement for all necessary litigation expenses. If StateLands had not incorrectly issued the permit to the Anaconda Company, the plaintiffswould not have incurred as expenses the litigation expenses related to the mandamus issue upon which they prevailed. The detriment suffered by the plaintiffswith regard to these litigationexpenses was caused by StateLands1failureto perform a clear legal duty. The plaintiffs 

### are entitled 

### to be compensated for the reasonable litigation expenses related to the mandamus issue regardless of whether those expenses are awardable as "costs" within the meaning of section25-10-201, MCA. The defendants contend that the plaintiffs should be precluded from claiming the litigationexpenses asdamages because those expenses 

### were not specificallyprayed for in the pleadings. Prior to the adoption of the Montana Rules of CivilProcedure which became effectiveJanuary 1, 1962, this argument would have been persuasive. See Statev. District Court of EleventhJudicial District (1956), 130Mont. 65, 294 P.2d 903; Statev. Ford (1944), 116Mont. 190, 151P.2d 171. However, such specificity of pleading is not mandated under the new rules. No technical form of pleading is now required. Rule 8(e) (1), M.R.Civ.P. "The purpose of pleading under the new rules is to put the court and the parties on notice of the claim being made." Hodgson v. Hodgson (1971), 156Mont. 469, 474, 482 P.2d 140, 142. In thiscase the defendantshad notice that the plaintiffswere bringing a mandamus action for which damages may be recovered. Litigation expenses are a natural and necessary result of such an action. The defendants 

### were not without notice that such damages might result in this case. There is a requirement under Rule 9(g), M.R.Civ.P., that special damages must be specificallystated. However since the litigation expenses 

### were a natural and necessary result of the mandamus action, they 

### are general damages and it 

### was not necessary to specificallypray for them in the pleadings. 

### "[Slpecial damages 

### are the natural but not necessary resultof the wrong orbreach; whereas general damages are damages the law would impute as the natural, necessary and logical consequence of the wrong 

### or breach

# ." Purington v. Sound West (1977), 173Mont. 106, 111-112, 566 P.2d 795. The District Court erred innot awarding asdamages those litigation expenses incurred as a result of the mandamus action which were not included in the award of costs. The last issue dealswith the award of costs. The District Court correctlyconcluded that

### costs are 

### to be awarded only for the items specificallyenumerated in section 25-10-201, MCA. This Court has held that "the list of 

### items [in section 25-10-201, MCA,] is exclusive except as to cases taken out of its operation by special statute, by stipulation of the parties, or by rule of court." Roseneau Foods, Inc. v. Coleman (1962), 140Mont. 572, 580, 374 P.2d 87, 91. The plaintiffs contend that the District Court erred in not including certainlitigationexpenses as 

### costs under subsection (9)of section 25-10-201, MCA, which provides that the party to whom costs are awarded is entitled to the reasonable and necessary expenses that 

### are taxable according to the course and practice of the court. There is nothing inthe record to indicate

## ,however, that litigationexpenses 

### are taxable according to the course and practice of the District Court. Sinceno

errorappears from the record, the District Court's award of 

### costsmust be upheld. This 

### case is remanded for a hearing and determination of the reasonable litigationexpenses incurred 

### as a result of the mandamus action. Those litigation expenses not included in the award of 

### costs are tobe included in the award of damages under section27-26-402, MCA. The remainder of the District Court's judgment is a£ firmed

# .

Chief Justice

We cocur: 

# f r'" \,