No. 81-254 

IN THE SUPREYE COURT OF THE STATE OF MONTANA 

1982 

GEORGE and MARIE KADILLAK, 

husband & wife, et al., 

Plaintiffs and Appellants, 

-vsMONTANA DEPARTMENT OF STATE LANDS, 

Defendant and 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: 

For Appellants; 

.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 6 1982 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

In a prior decision this Court remanded this case to the 

Silver Bow District Court for an evidentiary hearing on attorney 

fees. The District Court awarded the fees based on Montana's 

writ of mandate statute. The plaintiffs appeal the award of 

attorney fees 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 in Butte, Montana. his Court granted 

the plaintiffs a writ of mandate against the Department of State 

Lands (State Lands), enjoined the Anaconda Company from using the 

waste dump until a valid permit was obtained, and remanded the 

case for a determination of attorney fees pursuant to the writ of 

mandate statute. 

An evidentiary hearing on attorney fees was held on June 

3, 1980. At the 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 State Lands. He contended that in order to prevail 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 

for the 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 that out of numerous causes of action 

pleaded against six defendants, the plaintiffs prevailed against 
only one defendant and only on the ground that the permit application was inadequate. Because so many issues had been raised 

and so much evidence presented, he stated that in his opinion the 

only productive 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 his own experience 

he estimated that 130 hours 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 that under the language of 

the mandamus statute the award of attorney fees was to be based 

solely on the number of hours spent by 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 or clearly 

distinguish the elements of the mandamus issue and that the elements of pleading and proof in the case were so intertwined and 

convoluted that no rational allocation of 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 skill of the attorneys of a high order, and the desired result had been obtained, 

the judge awarded the attorney fees at a higher rate per hour 

than was recommended by Mr. Herron. 

Costs were awarded only for 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 plaintiffs the total costs 

incurred in the case for the items listed in the statute. 

However he denied the plaintiffs' request for prejudgment 

interest on the attorney fees and costs. 

The plaintiffs raise the following issues in this appeal: 
1. Did the ~istrict Court err in its determination of 

reasonable attorney fees? 

2. Is prejudgment interest allowable on attorney fees 

awarded under the mandamus statute? 

3. Did the District Court err in refusing to award 

as "damages" within the meaning of section 27-26-402, MCA, certain litigation expenses? 

4. Did the District Court err in refusing to award as 

costs under section 25-10-201 ( 9), MCA, certain litigation 

expenses? 

The first issue deals with attorney fees. Section 

27-26-402, MCA, provides in part: 

"If judgment is given for the [writ of 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. State v. District Court (1953), 127 Mont. 32, 256 

P.2d 1076; State v. Batani (1936), 103 Mont. 353, 62 P.2d 565. 

The District Court correctly concluded that this statute provides 

only for an award of attorney fees for the number of hours spent 

by the attorney on 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 allocation of attorney effort on the mandamus issue could be made based on the trial record. Therefore 

the award was based on Mr. Herronvs estimate of the number of 

hours required to prevail on the mandamus issue. The plaintiffs 

contend that it was improper for the District Court to base the 

award on Mr. Herron's estimate rather than on the scope of evidence reasonably admissible in the case. 

In response to plaintiffsv contention we note first that 

it is within the discretion of the District Court judge to determine reasonable attorney fees and his determination will not be 
interfered with unless an abuse of discretion is shown. Glick v. 

State, Montana Department of ~nstitutions (1974), 165 Mont. 307, 

528 P.2d 686; Luebben v. Metlen (1940), 110 Mont, 350, 100 P.2d 

935. We find no abuse of discretion here. 

The original trial in this case lasted for thirteen days 

and involved six defendants and fourteen separate counts ranging 

from counts in nuisance and trespass to alleged violations of the 

Montana Environmental Policy Act, the 1972 Montana Constitution, 

the Hard Rock Mining Act, the Water Pollution Control Act and the 

Clean Air Act. 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 

to be based only on the hours spent by the attorney on the mandamus issue and since the elements of proof in the case were so 

intertwined, the District Court judge did not abuse his discretion in basing the award on the estimate given by an experienced 

trial attorney as to the number of hours necessary to prevail on 

the mandamus issue. 

The plaintiffs argue that the judge erred as a matter of 

law in 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 time Mr. Herron estimated as 

reasonable to prevail on the mandamus issue was sufficient to 

allow the parties to present evidence related to the other areas 

of proof. 

Guidelines have been established by this Court for determining reasonable attorney fees. 

" '"The circumstances to be considered in determining 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 in 
which the services were 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 profession of the attorneys. . . The result secured 

by the services of the attorneys may be considered as an important element in determining 

their value."^" First Security Bank of Bozeman 

v. Tholkes (1976), 169 Mont. 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 for determining reasonable attorney fees or with the 

amount awarded. 

The second issue deals with the denial of prejudgment 

interest on the award of attorney fees. The District Court 

concluded that there is no authority in Montana's statutes or 

case law for the award of interest on attorney fees prior to 

judgment. The plaintiffs contend that the District Court erred 

as a matter of law in reaching this conclusion. 

Two Montana statutes specifically deal with the awarding 

of interest to persons 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 section 27-26-402, MCA. 

Therefore it is necessary to determine whether either of 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 

certain or capable of being made certain by 

calculation and the right to recover . . . is 

vested in him upon a particular day is entitled 

also to recover interest thereon from that day 11 ... The determination of reasonable attorney fees in this case 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 section does not provide authority 

for awarding 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, interest may 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 statute would 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 to be 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 interest to 

discretionary damages is to multiply uncertainty 

by certainty; the indefinite by 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 this rationale we conclude that this statute does not 

authorize a discretionary award of prejudgment interest in this 

case since the award of attorney fees is itself discretionary. 

The plaintiffs next argue that authority for awarding prejudgment interest is found in the mandamus statute itself, section 27-26-402, MCA. Plaintiffs contend that prejudgment 

interest comes within the meaning of the term "damages". We 

disagree. In this case 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 interest on attorney fees since 

no prejudgment interest was owing. 

We hold that the District Court correctly concluded that 

there is no authority in Montana for an award of prejudgment 

interest on the discretionary award of attorney fees involved in 
this case. 

The third issue is whether the District Court erred in 

refusing to award as "damages" under section 27-26-402, MCA, certain out-of-pocket litigation expenses. With regard to this 

issue the District Court concluded that the mandamus statute does 

not contemplate the awarding of litigation expenses 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 writ of 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 suffers detriment from the 

unlawful act or omission of another may recover 

from that person in fault a compensation therefor in money, which is called damages. " 

The term "detriment" is defined in section 27-1-201, MCA: 

"Detriment is a loss or harm suffered in person 

or property. " 

In this case the plaintiffs were liable to their attorneys 

under the provisions of their contingent fee agreement for all 

necessary litigation expenses. If State Lands had not 

incorrectly issued the permit to the Anaconda Company, the plaintiffs would not have incurred as expenses the litigation expenses 

related to the mandamus issue upon which they prevailed. The 

detriment suffered by the plaintiffs with regard to these litigation expenses was caused by State Lands1 failure to 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 section 25-10-201, MCA. 

The defendants contend that the plaintiffs should be 

precluded from claiming the litigation expenses as damages because those expenses were not specifically prayed for in the 

pleadings. Prior to the adoption of the Montana Rules of Civil 
Procedure which became effective January 1, 1962, this argument 

would have been persuasive. See State v. District Court of 

Eleventh Judicial District (1956), 130 Mont. 65, 294 P.2d 903; 

State v. Ford (1944), 116 Mont. 190, 151 P.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), 156 Mont. 469, 474, 482 P.2d 140, 142. 

In this case the defendants had notice that the plaintiffs were 

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 specifically stated. 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 specifically pray for them in the pleadings. 

" [Slpecial damages are the natural but not 

necessary result of the wrong or breach; 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), 173 Mont. 106, 111-112, 566 P.2d 795. 

The District Court erred in not awarding as damages those 

litigation expenses incurred as a result of the mandamus action 

which were not included in the award of costs. 

The last issue deals with the award of costs. The 

District Court correctly concluded that costs are to be awarded 

only for the items specifically enumerated 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), 140 
Mont. 572, 580, 374 P.2d 87, 91. 

The plaintiffs contend that the District Court erred in 

not including certain litigation expenses 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 in the record to 

indicate , however, that litigation expenses are taxable according to the course and practice of the District Court. Since no 

error appears from the record, the District Court's award of 

costs must be upheld. 

This case is remanded for a hearing and determination of 

the reasonable litigation expenses incurred as a result of the 

mandamus action. Those litigation expenses not included in the 

award of costs are to be included in the award of damages under 

section 27-26-402, MCA. The remainder of the District Court's 

j udgment is a£ f irmed . 

Chief Justice 

We co cur: f r' " \,