Belgrade State Bank v. Swainson , 176 Mont. 444 ( 1978 )

MR. JUSTICE HARRISON

delivered the opinion of the Court.

The parties to this appeal were previously before this Court in Cause No. 13473, in part involving the precise issue raised in this appeal.

Plaintiff’s action below proceeded upon the theories of tortious conversion and liability upon a security agreement. The action was commenced on October 16, 1972. Trial was held on January 13, 1976, in the District Court, Park County. As a result, plaintiff bank recovered judgment in the amount of $17,410 and, in addition, attorney fees of $2,000 and costs.

On appeal, this Court reversed the judgment of the District Court, except as to Herbert Swainson, and remanded the cause for the fixing of defendants’ attorney fees. Belgrade State Bank v. Swainson (1977), 172 Mont. 350, 564 P.2d 174. In so doing, this Court stated:

“All defendants, except Herbert Earl Swainson, are entitled to attorney fees by virtue of section 93-8601.1, R.C.M. 1947. The statute is procedural in nature and applies to actions commenced after its effective date, even though such action arose out of events occurring prior thereto. Crncevich v. Georgetown Rec. Corp., 168 Mont. 113, 541 P.2d 56; Anno. 18 A.L.R.3d 733, 736, 740.” 564 P.2d 180.

Plaintiff subsequently moved for, but was denied, a rehearing by this Court’s per curiam order, dated June 8, 1977.

On June 9, 1977, a District Court hearing was conducted regarding the fixing of attorney fees. Testimony was offered by counsel for defendants concerning the effort expended on the cause, the fees considered due, and the reasonableness thereof. Counsel for plaintiff offered no testimony in opposition to that of counsel for defendants. Rather, plaintiff argued that no fees could be awarded under section 93-8601.1, R.C.M., asserting that this statute applied only to contractual obligations entered into after July 1, 1971, the effective date of the enactment, and the contractual obligations here occurred prior to July 1, 1971. The District Court subsequently entered an order awarding attorney fees in amounts as follows: Huppert & Swindlehurst, $3,000; Swandal & Douglass, $2,000; Byron L. Robb, $2,000. Plaintiff appeals the order awarding such fees.

• While plaintiff, appellant herein, focuses its argument on the issue of the propriety of this Court’s award of attorney fees to defendants under the specific language of section 93-8601.1, we find the dispositive issue to be: Is this Court’s previous determination of defendants’ entitlement to attorney fees under section 93-8601.1 the “law of the case”, precluding review of the propriety of such determination?

The general rule in Montana is that where a decision has been rendered by the Supreme Court on a particular issue between the same parties in the same case, whether that decision is right or wrong, such decision is binding on the parties and the courts and cannot be relitigated in a subsequent appeal. Libin v. Huffine (1950), 124 Mont. 361, 224 P.2d 144; G. N. Ry. Co. v. State Bd. of Equalization (1952), 126 Mont. 187, 246 P.2d 220; Little v. Little (1953), 127 Mont. 152, 259 P.2d 343. The rule is detailed in Carlson v. Northern Pac. Ry. Co. (1929), 86 Mont. 78, 81, 281 P. 913, 914:

“The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial and upon subsequent appeal; and this, although upon its subsequent consideration the Supreme Court may be clearly of opinion that the former decision is erroneous. While a previous ruling by this court upon a point distinctly made may be only authority in other cases, to be followed and affirmed, or to be modified or overruled according to its intrinsic merits, in the case in which it is made it is more than authority; it is a final adjudication from the consequences of which this court may not depart, nor the parties relieve themselves. (Citing cases.)”

The sole exception to the “right or wrong” rule recognized by this Court was articulated in State v. Zimmerman (1977), 175 Mont. 179, 573 P.2d 174, 178:

“In any event an exception to this general rule exists where the case must be remanded to the District Court for further proceedings because of reversal on an unrelated issue. In such cases this Court may correct a manifest error in its former opinion and announce a different ruling to be applied prospectively to future proceedings in the case. * * *”

See also, State v. Hale (1955), 129 Mont. 449, 291 P.2d 229.

We find the particular Zimmerman exception inapplicable here for, unlike Zimmerman, the instant case was remanded for the specific purpose of establishing attorney fees pursuant to this Court’s prior award thereof.

Here, the argument raised by appellant concerning the award of attorney fees pursuant to section 93-8601.1 is the precise argument raised by appellant in the prior appeal of this case. Said issue was plainly and unequivocally resolved in favor of the propriety of such award. Given this, our concern lies with bringing an end to the lengthy litigation involved herein and providing a final decision upon which the parties may rely. In view of our prior holding, we perceive no manifest injustice or hardship imposed upon appellant as a result of our decision herein.

The order of the District Court fixing attorney fees as aforesaid is affirmed. In addition, respondents are hereby awarded the total sum of $750 for attorney fees occasioned by this appeal, to be divided in equal amounts of $250 for each of the three respondents.

MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and SHEEHY concur.