Swapinski v. Lincoln County, 2015 MT 275 (Sept. 15, 2015) (Wheat, J.; Rice, J. concurring) (5-0, aff’d & rev’d)
Issue: (1) Whether the district court erred by issuing an order prepared by the county’s attorneys; (2) whether the district court abused its discretion by considering rates charged by Kalispell attorneys in deciding whether the county’s attorney fees were reasonable; and (3) whether the district court abused its discretion in awarding supplemental attorney fees to the county.
Short Answer: (1) No; (2) no; and (3) yes.
Affirmed as to reasonableness of fees and reversed on fees-for-fees
Facts: Swapinski filed a complaint against Lincoln County and several commissioners in 2014, alleging certain errors in the resignations and appointments of Lincoln County Commissioners. The district court granted summary judgment to the county in September 2014.
The county then moved for attorney fees, claiming it had incurred $6,721 and asking for fees it might expend in establishing the reasonableness of its fees.
Procedural Posture & Holding: At a hearing the county presented expert testimony from an expert witness who opined that the rates charged were reasonable. The district court agreed and awarded the county $6,271 in fees incurred through the summary judgment order. The court also granted the county’ motion for “fees-for-fees,” and ordered the county to prepare a written order reflecting its decisions. The county did so, and the district court signed the order awarding the county $11,281 in attorney fees, including $4,560 as fees-for-fees Swapinski appeals, and the Supreme Court affirms in part and reverses in part.
Reasoning: (1) It is common for district courts to ask counsel to prepare draft orders, and this Court has approved of the practice.
(2) The district court’s conclusion that the fees charged by the county’s attorneys were reasonable was based on the evidence.
(3) Fees-for-fees are rarely awarded, and this case does not meet any of the criteria for awarding them.
Justice Rice’s Concurrence: Swapinski disagrees with the district court’s decision awarding fees but his appellate arguments focus on the reasonableness only. Nonetheless, Justice Rice believes Swapinski’s observation about the merit of a fee award raise reasonable concerns. Swapinksi made a viable argument on summary judgment, and his lawsuit was not frivolous. The fact that he lost should not in itself justify a fee award.