_____________ bill NO. _____________

INTRODUCED BY _________________________________________________

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING CIVIL PROCEDURE; ALLOWING A TRIER OF FACT TO ALLOW AN AWARD OF ATTORNEY FEES TO A PREVAILING PARTY IN CERTAIN CASES; PROVIDING A PROCEDURE FOR AWARDING ATTORNEY FEES; providing definitions; AMENDING SECTION 25-10-101, MCA; and REPEALING SECTIONS 25-10-301, 25-10-302, AND 25-10-303, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Definitions. As used in [this act], unless the context clearly indicates otherwise, the following definitions apply:

(1) "Attorney fees" means reasonable attorney fees incurred in prosecuting or defending a claim.

(2) "Nonprevailing party" means a party opponent to the prevailing party on a claim.

(3) "Prevailing party" means a party in whose favor a verdict is rendered on a claim.

NEW SECTION. Section 2. Allowance of attorney fees. (1) Except as provided in subsections (2) and (3):

(a) The trier of fact of a civil claim may allow a prevailing party of that claim to enter a motion for attorney fees.

(b) When the trier of fact delivers a verdict on a claim, it shall state whether the prevailing party to that claim may enter a motion for attorney fees.

(2) Subsection (1) does not apply:

(a) when a prevailing party and a nonprevailing party have an express or implied agreement regarding attorney fees; or

(b) when a more specific statute provides different criteria for entitlement to attorney fees.

(3) Except in cases utterly frivolous and without merit, subsection (1) does not apply in cases for:

(a) the creation or modification of a parenting plan;

(b) probate; or

NEW SECTION. Section 3. Claiming attorney fees -- objections -- inclusion in judgment. (1) If the trier of fact, pursuant to [section 2], has allowed a prevailing party to enter a motion for attorney fees, the prevailing party may enter a motion for attorney fees:

(a) within 14 days;

(b) that specifies the judgment and cites this statute;

(d) that justifies the amount of attorney fees sought pursuant to [section 5]

(2) A nonprevailing party may submit objections to the bill of attorney fees and the prevailing party may submit a reply.

(3) The trier of fact shall assess attorney fees and add those fees to the judgment.

(4) In a bench trial or on remittitur, a prevailing party may request as of right the empanelment of a jury for the purpose of submitting a bill of attorney fees or may proceed with the judge as the trier of fact for assessing attorney fees.

NEW SECTION. Section 4. Question of fact. The amount of attorney fees to assess is a question of fact.

NEW SECTION. Section 5. Assessing attorney fees. If the trier of fact has decided attorney fees may be awarded in multiple claims and the claims involve a common core of facts or are based on related legal theories and it would be too difficult to divide hours expended on a claim-by-claim basis, then the trier of fact may award attorney fees based on the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation. Otherwise, in determining an award of attorney fees, the trier of fact shall consider as guidelines:

(1) the amount and character of the services rendered;

(2) the labor, time, and trouble involved;

(3) the character and importance of the litigation in which the services were rendered;

(4) the amount of money or the value of the property to be affected;

(5) the professional skill and experience called for;

(6) the attorneys' character and standing in their profession;

(7) the results secured by the services of the attorneys; and

(8) any other factors deemed relevant.

NEW SECTION. Section 6. Liability for attorney fees. (1) A nonprevailing party shall be liable for all attorney fees awarded to a prevailing party.

(2) If there are multiple nonprevailing parties to a claim, they shall be jointly and severally liable for attorney fees awarded.

(3) If a nonprevailing party is represented by an attorney on a contingency fee basis, the attorney shall be jointly and severally liable for one-third of the award. A retainer agreement may not indemnify an attorney's liability under this section.

NEW SECTION. Section 7. Probate. In probate proceedings the court may fix and allow compensation of attorneys representing administrators, executors, guardians, trustees, and agents appointed by the court.

Section 8. Section 25-10-101, MCA, is amended to read:

"25-10-101. When costs allowed, of course, to plaintiff. Costs are allowed, of course, to the plaintiff upon a judgment in the plaintiff's favor in the following cases:

(1) in an action for the recovery of real property or damages to real property;

(2) in an action to recover the possession of personal property when the value of the property exceeds $50, with the value determined by the jury, court, or referee by whom the action is tried;

(3) in an action for the recovery of money or damages, exclusive of interest, when plaintiff recovers over $50;

(4) in a special proceeding;

(5) in an action that involves the title or possession or right of possession of real estate;

(6) in an action that involves the legality of any tax, impost, assessment, toll, or municipal fine;

(7) in quo warranto proceedings; or

(8) in an action to foreclose a lien or pledge, to prevent or abate a nuisance, or for an injunction; or

(9) in an action for property damage arising out of the ownership, maintenance, or use of a motor vehicle if the plaintiff is entitled to attorney fees under 25-10-303."

NEW SECTION. Section 9. Repealer. The following sections of the Montana Code Annotated are repealed:

25-10-301. Determining compensation of attorneys.

25-10-302. Inclusion of attorney's fees in bill of costs.

25-10-303. Attorney fees -- motor vehicle claim.

NEW SECTION. Section 10. Codification instruction. [Sections 1 through 7] are intended to be codified as an integral part of Title 25, chapter 10, part 3, and the provisions of Title 25, chapter 10, part 3, apply to [sections 1 through 7].