Swapinski v. Lincoln County

2015 MT 275, 357 P.3d 329, 381 Mont. 138, 2015 Mont. LEXIS 467
CourtMontana Supreme Court
DecidedSeptember 15, 2015
DocketDA 15-0016
StatusPublished
Cited by7 cases

This text of 2015 MT 275 (Swapinski v. Lincoln County) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swapinski v. Lincoln County, 2015 MT 275, 357 P.3d 329, 381 Mont. 138, 2015 Mont. LEXIS 467 (Mo. 2015).

Opinions

JUSTICE WHEAT

delivered the Opinion of the Court.

[139]*139¶1 Dale Swapinski appeals from the order and judgment of the Montana Nineteenth Judicial District Court, Lincoln County, awarding attorney fees in favor of Lincoln County (the County). We affirm in part and reverse in part.

ISSUES

¶2 We review the following issues:

2. Did the District Court err by issuing an order prepared by the County’s attorneys?
2. Did the District Court abuse its discretion by considering rates charged by Kalispell attorneys when deciding whether the County’s attorney fees were reasonable ?
3. Did the District Court abuse its discretion when it awarded supplemental attorney fees to the County ?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Swapinski filed a complaint against Lincoln County and several Lincoln County Commissioners on July 7, 2014. In the complaint, Swapinski alleged certain errors committed in the resignations and appointments of Lincoln County Commissioners. The District Court granted summary judgment in favor of the County on September 2, 2014.

¶4 Soon thereafter, the County asked the District Court to award it attorney fees. It claimed that it had incurred $6,721 in fees by the time the District Court ordered summary judgment. It asked the District Court to award these fees as well as any additional fees that it might incur in establishing the reasonableness of its fees. Swapinski opposed the award, and the District Court accepted briefs and held a hearing on the matter of whether to award attorney fees.

¶5 At the hearing, the County presented testimony from an expert witness regarding the prevailing rate charged by attorneys working in Lincoln County. The expert testified that she considered the legal market in Lincoln County to include attorneys from Kalispell, since attorneys from there often litigated in Lincoln County. She opined that considering the rates generally charged in Lincoln County, the $170 and $190 per hour charged by the County’s attorneys was reasonable. She suggested that several attorneys in Lincoln County might be able to provide lower rates, but that the rates were reasonable in light of the prevailing market and the quality of the County’s attorneys. The District Court agreed, awarding the County $6,271 as reasonable attorney fees incurred through the time of its summary judgment order.

[140]*140¶6 During the hearing, the County also requested that it be awarded the attorney fees it incurred while litigating the issue of attorney fees. Such fees are often referred to as “fees-for-fees.” The District Court granted this request, ordering Swapinski to pay the County fees-for-fees in addition to the $6,271 of attorney fees that the County incurred litigating the underlying matter.

¶7 The District Court made the foregoing decisions orally during the attorney fees hearing. At the close of the hearing, it ordered the County to prepare a written order consistent with the decisions it had made during the hearing. The County did so, and, making few or no edits, the District Court signed and issued the order. The order awarded the County a total of $11,281 of attorney fees, including $4,560 incurred as fees-for-fees. Swapinski appeals.

STANDARDS OF REVIEW

¶8 We review a district court’s conclusions of law for correctness. Wohl v. City of Missoula, 2013 MT 46, ¶ 28, 369 Mont. 108, 300 P.3d 1119. If legal authority exists to award attorney fees, then a district court’s grant or denial of attorney fees is a discretionary ruling which we review for abuse of discretion. Wohl, ¶ 29.

DISCUSSION

¶9 1. Did the District Court err by issuing an order prepared by the County’s attorneys?

¶10 The County’s attorneys prepared a written order for the District Court. Swapinski contends that allowing District Courts to adopt orders prepared by party counsel discourages district courts from reaching a careful, reasoned, or accurate decision. He argues for this reason that we should reverse the District Court’s order and require it to author its own.

¶11 As the County correctly notes, it is common for district courts to request a draft order from either or both parties’ counsel. See, e.g., Wurl v. Poison Sch. Dist. No. 23, 2006 MT 8, ¶ 29, 330 Mont. 282, 127 P.3d 436; In re M.W., 2004 MT 301, ¶ 28, 323 Mont. 433, 102 P.3d 6. This practice is not limited, as Swapinski suggests, to Montana district courts. See J. A. Bryant, Annotation, Propriety and Effect of Trial Court’s Adoption of Findings Prepared by Prevailing Party, 54 A.L.R.3d 868, §§ 2a, 3 (1974 & Supp. 2015) (citing cases from 25 states and stating that “no reported case has been found in which the objection [to allowing counsel to prepare findings] has been met with actual success at the appellate level”). We have allowed courts to adopt orders prepared by counsel, stating that “[wjhile we discourage a [141]*141district court’s verbatim adoption of a prevailing party’s proposed order, such an action is not per se error. A district court may adopt a party’s proposed order where it is sufficiently comprehensive and pertinent to the issues to provide a basis for the decision.” Wurl, ¶ 29 (citations omitted).

¶12 Despite this rule, Swapinski argues that the District Court’s decision to adopt the County’s proposed order was erroneous per se. He does not provide any argument or reason why the order was insufficiently comprehensive or impertinent to the issues to provide a basis for the District Court’s decision. Nor can we identify any such reason upon reviewing the order. We will not reverse the District Court’s order merely because it was prepared by the County’s attorneys.

¶13 2. Did the District Court abuse its discretion by considering rates charged by Kalispell attorneys when deciding whether the County’s attorney fees were reasonable?

¶ 14 Swapinski claims that an attorney fees award must be reasonable in light of the prevailing rates charged by attorneys in the forum where the underlying suit was litigated. He contends that the District Court improperly compared the County’s attorney fees with rates of attorneys from outside Lincoln County. For this reason, he argues that the District Court abused its discretion when it decided that the rates charged by the County’s attorneys were reasonable.

¶15 The County disagrees, responding that the District Court only compared the attorney fees at issue with rates charged by attorneys working in Lincoln County. In the alternative, the County argues that the District Court was not required to consider whether the rates charged by the County’s attorneys were reasonable in light of any particular community. As we agree that the District Court only compared the County’s attorney fees to the rates charged by attorneys practicing in Lincoln County, we do not consider whether it would have been error for the District Court to fail to do so.

¶16 In reaching its decision, the District Court relied upon the expert testimony presented by the County. It considered the rates charged by that expert, who was from and primarily worked in Lincoln County. She charged up to $225 per hour for her services as an attorney. It also considered that the expert believed the rates charged to the County were reasonable.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 MT 275, 357 P.3d 329, 381 Mont. 138, 2015 Mont. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swapinski-v-lincoln-county-mont-2015.