Opinion
DA 23-0537
06-04-2024
BLUEMOON REFINERY, LLC, a Montana Limited Liability Company, Petitioner and Appellee, v. FLATHEAD COUNTY, a political subdivision of the State of Montana acting through its Commissioners, Respondent and Appellant.
For Appellant: Susan B. Swimley, Attorney and Counselor at Law, Bozeman, Montana. Tara DePuy, Tara DePuy, Attorney at Law, PLLC, Livingston, Montana. For Appellee: Bruce A. Fredrickson, Angela M. LeDuc, Rocky Mountain Law Partners, P.C., Kalispell, Montana.
Submitted on Briefs: March 20, 2024.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-22-1246 Honorable Robert B. Allison, Presiding Judge.
COUNSEL OF RECORD:
For Appellant: Susan B. Swimley, Attorney and Counselor at Law, Bozeman, Montana.
Tara DePuy, Tara DePuy, Attorney at Law, PLLC, Livingston, Montana.
For Appellee: Bruce A. Fredrickson, Angela M. LeDuc, Rocky Mountain Law Partners, P.C., Kalispell, Montana.
OPINION
BETH BAKER, JUDGE.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Flathead County appeals the order of the Eleventh Judicial District Court awarding $2,635.28 in costs to Bluemoon Refinery, LLC ("Bluemoon") after entering judgment in Bluemoon's favor. Flathead County argues that Bluemoon's bill of costs was untimely and included costs not allowed by law. We affirm.
¶3 In November 2022, Bluemoon petitioned for a writ of review under § 76-3-625, MCA, challenging Flathead County's denial of Bluemoon's request for a variance to the Flathead County Subdivision Regulations. Bluemoon argued that Flathead County's denial of its requested variance was arbitrary and capricious under § 76-3-625(2)(c), MCA. Bluemoon alleged that it and Legacy Ranch, an adjacent subdivision, submitted "virtually identical" applications with requests for variance but that Flathead County approved the Legacy Ranch subdivision and denied Bluemoon's proposed subdivision. Bluemoon's petition included in its request for relief that it "recover its reasonable costs, expenses and attorney fees as allowed at law or in equity."
¶4 Both parties filed motions for summary judgment. On June 28, 2023, the District Court granted Bluemoon's motion for summary judgment and denied the County's motion. The court ruled that Flathead County's denial of Bluemoon's request for variance was arbitrary, capricious, and unlawful after granting the Legacy Ranch variance a few months prior.
¶5 Bluemoon filed a motion for attorney fees on July 17. Bluemoon's motion for fees did not request costs, but it included an itemized list of costs in its affidavit in support of the motion. Flathead County then submitted two separate filings entitled "Flathead County's Objection to Petitioner's Motion for Attorney Fees" and "Flathead County's Objection to Petitioner's Motion for Costs." Flathead County asserted in its objection to costs that Bluemoon was statutorily precluded from an award of costs under § 25-10-501, MCA, because Bluemoon had not filed a bill of costs within five days of the court's summary judgment order. It further asserted that Bluemoon's affidavit included costs not permitted under § 25-10-201, MCA. Bluemoon responded to Flathead County's objection regarding costs, stating:
Judgment has not yet been entered. Bluemoon has not sought to have judgment entered since the Motion for Attorney Fees remains outstanding. Once the Court issues its ruling, Bluemoon will then request entry of judgment. Once judgment is entered, Bluemoon will submit its Bill of Costs in accordance with Mont. Code Ann. § 25-10-501.
¶6 The court denied Bluemoon's attorney fees motion on August 14, finding that no contractual or statutory provision allowed for Bluemoon to recover fees. That same day, Flathead County filed a motion for entry of judgment. Two days later, Bluemoon requested the court enter judgment and submitted its verified bill of costs. Bluemoon's costs included the filing fee for the petition; the service of process fee; transcript fees for commissioner meetings and legislative history; charges from Flathead County for copies of the Legacy Ranch and Bluemoon files; and copies of the record to file with the court, for a total of $2,635.28. On August 29, the court entered an order granting Flathead County's motion for entry of judgment and ordered Flathead County to pay Bluemoon's requested costs. It found Bluemoon's request for costs timely pursuant to § 25-10-501, MCA, because the court "has not yet entered Judgment and does so now." Flathead County appeals this order. Bluemoon has not cross-appealed the court's denial of attorney fees, so only the costs are at issue.
¶7 "[A] district court's application of a statute in determining entitlement to costs is a question of law reviewed for correctness." Total Indus. Plant Servs., Inc. v. Turner Indus. Group, LLC, 2013 MT 5, ¶ 61, 368 Mont.189, 294 P.3d 363 ("Turner") (citing Neal v. State, 2003 MT 53, ¶ 4, 314 Mont. 357, 66 P.3d 280). We review a district court's order concerning costs for an abuse of discretion. Turner, ¶ 61 (citing Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶29, 293 Mont. 212, 974 P.2d 650). A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. McDermott v. Carie, 2005 MT 293, ¶ 10, 329 Mont. 295, 124 P.3d 168 (citation omitted).
¶8 Flathead County argues that Bluemoon's bill of costs was untimely under § 25-10-501, MCA. Under this statute, a party must submit a memorandum of costs "within 5 days after the verdict or notice of the decision of the court . . . or, if the entry of the judgment on the verdict or decision is stayed, then before the entry is made[.]" The County asserts that the court's summary judgment order was the "notice of the decision" in this case, as reflected in the District Court's entry of judgment. The County contends further that the prayer for relief is not an issue the court needed to address in its summary judgment order for its decision to be the "final decision" in this matter. See Masonovich v. School Dist., 178 Mont. 138, 140, 582 P.2d 1234, 1235 (1978) (citing Murray v. Creese, 80 Mont. 453, 459, 260 P. 1051, 1054 (1927) ("The rule in this jurisdiction is that the prayer for relief cannot enlarge the relief sought by the allegations of the complaint."). Because Bluemoon's five days to seek costs commenced on June 28 and it filed its bill of costs on August 16 without requesting a stay, the County asserts, we should reverse the District Court's order granting costs as untimely.
¶9 Bluemoon responds that because the court's summary judgment order did not address attorney fees, its petition was not fully and finally adjudicated until the court ruled on Bluemoon's motion on August 14. It cites to our decision in R.H. Grover, Inc. v. Flynn Ins. Co., 238 Mont. 278, 777 P.2d 338 (1989), for the position that the trial court, when sitting without a jury, determines when full and final judgment occurs.
¶10 "This Court has held that the five[-]day period allowed for [filing] a memorandum of costs and disbursements 'is computed from the day the court enters judgment, not from the day the court orally announces its decision.'" Poeppel v. Fisher, 175 Mont. 136, 142, 572 P.2d 912, 915 (1977) (quoting Davis v. Trobough, 139 Mont. 322, 326, 363 P.2d 727, 729 (1961)). See also Funk v. Robbin, 212 Mont. 437, 448, 689 P.2d 1215, 1221 (1984). "Whether the date of entry will be the trigger date depends on when the District Court's decision is final." Karell v. American Cancer Soc'y, 239 Mont. 168, 177, 779 P.2d 506, 511 (1989). Further, Montana Rule of Civil Procedure 58(e) states, "A judgment, even though entered, is not considered final for purposes of appeal under Rule 4(1)(a), M. R. App. P., until any necessary determination of the amount of costs and attorney fees awarded, or sanctions imposed, is made."
¶11 We affirm the District Court's decision that Bluemoon's filing was timely. It is clear from the record that the "decision of the court" was not made until it ruled on Bluemoon's outstanding motion for attorney fees. See Funk, 212 Mont. at 448, 689 P.2d at 1221. See also Poeppel, 175 Mont. at 142, 572 P.2d at 915. Bluemoon filed its bill of costs two days later, well within the statutory deadline. Bluemoon's fee request did not "expand the relief" it sought in its petition but was ancillary to, and dependent upon, its status as a prevailing party. It acted within the confines of the statute by filing the bill of costs after its fee motion was determined.
¶12 Flathead County next asserts that several of Bluemoon's claimed costs-those regarding transcripts of meetings and copies of documents in the record-are not recoverable under § 25-10-201, MCA. The County argues that it "provided the entire record" to Bluemoon in this case, and Bluemoon's decision to "duplicate the record" supports that these costs should not be assessed to the County. Bluemoon responds that costs associated with providing the court with a complete and proper copy of the record are recoverable pursuant to § 25-10-201(6), MCA. It alleges that the record provided by Flathead County was incomplete, which required Bluemoon independently to secure the omitted documents.
¶13 "[O]nly those costs delineated in § 25-10-201, MCA, may be charged to the opposing party unless the item of expense is taken out of § 25-10-201, MCA, by a more specialized statute, by stipulation of the parties or by rule of the court." Springer v. Becker, 284 Mont. 267, 275, 943 P.2d 1300, 1305 (1997) (quoting Thayer v. Hicks, 243 Mont. 138, 158, 793 P.2d 784, 796-97 (1990)). Section 25-10-201, MCA, provides for the recovery of the following costs:
(1) the legal fees of witnesses, including mileage, or referees and other officers;
(2) the expenses of taking depositions;
(3) the legal fees for publication when publication is directed;
(4) the legal fees paid for filing and recording papers and certified copies of papers necessarily used in the action or on the trial;
(5) the legal fees paid stenographers for per diem or for copies;
(6) the reasonable expenses of printing papers for a hearing when required by a rule of court;
(7) the reasonable expenses of making transcript for the supreme court;
(8) the reasonable expenses for making a map or maps if required and necessary to be used on trial or hearing; and
(9) other reasonable and necessary expenses that are taxable according to the course and practice of the court or by express provision of law.
¶14 Under M. R. Civ. P. 56, Bluemoon was required to serve copies of the relevant transcripts and documents for summary judgment. See Walden v. Yellowstone Elec. Co., 2021 MT 123, ¶ 46, 404 Mont. 192, 487 P.3d 1. The District Court considered the parties' arguments about copies of the underlying record and did not abuse its discretion in awarding Bluemoon those costs.
¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court's ruling was not an abuse of discretion. Bluemoon's bill of costs was timely filed, and its costs were within the bounds of § 25-10-201, MCA. We affirm.
We Concur: LAURIE McKINNON, INGRID GUSTAFSON, DIRK M. SANDEFUR, JIM RICE, JUDGES.