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Sherner v. National Loss Control Services Corp.11/15/2005
tion.
The Sherners argue that by entering a Judgment on December 17, 2003, which included the costs requested by the three defendants, the District Court deprived them of the opportunity to object to the bills of costs as permitted by § 25-10-502, MCA. We agree.
Section 25-10-502, MCA, expressly provides that a party dissatisfied with the amounts contained in a bill of costs filed pursuant to § 25-10-501, MCA, has 5 days after notice of that filing to object by filing and serving a notice of a motion to have the costs taxed. Here, the District Court's Judgment, entered on the day following the filing of the bills of costs and including the amounts stated therein by the defendants, deprived the Sherners of the statutorily-authorized time in which to object.
Girson v. Girson (1941), 112 Mont. 183, 114 P.2d 274, our only decision on this issue, supports this interpretation of the plain language of the statute. There, we briefly addressed a defendant's contention that the trial court erred in entering judgment for costs--that is, the amount of the costs--without allowing him the 5-day period within which to object. Addressing § 9803, RCM (1921)--the predecessor to §§ 25-10-501 and -502, MCA--we agreed, and directed that the judgment be modified by awarding "as costs such sum as will be found proper after the cost bill has been settled in the statutory manner." Girson, 112 Mont. at 188, 114 P.2d at 277. As noted, our discussion of the costs issue in Girson is brief. It is, however, sufficiently clear with regard to the basic facts before us here--that is, the entry of a judgment including amounts of costs prior to the running of the 5-day objection period--to serve as jurisprudential authority for our plain language statutory interpretation in the present case. It also reflects that nothing in our decision today changes the law concerning procedures for determining the amount of costs available to a prevailing party.
Conoco and Crawford assert, however, that the Sherners waived their right to appeal this issue by failing to object to the costs below. In a similar vein, National points out that the Sherners did not ask the District Court to amend the Judgment pursuant to Rule 59, M.R.Civ.P.
The District Court having failed to give the Sherners the 5-day period in which to timely object to the costs sought as required by § 25-10-502, MCA, we are hard-pressed to imagine how the Sherners could thereby have waived their right to appeal. They simply had no opportunity to object prior to the entry of the Judgment which included the costs sought. Nor does National advance authority under which the Sherners were required to file a Rule 59 motion. As a result, we need not address these assertions further.
National also contends the Sherners do not identify on appeal any argument that its cost bill was inappropriate or unsupported by Montana law. National is correct. We observe, however, that the Sherners properly did not request this Court to make determinations required by Montana law to be made by the trial court in the first instance.
Notwithstanding the somewhat convoluted discussion in the dissent, it is appropriate to respond briefly. The dissent is correct, at 73, that until the defendants filed their bills of costs, no one knew what costs would be claimed. That is precisely why § 25-10-501, MCA, requires the bill of costs. The notion that, somehow, this transforms the bills of costs into "ascertained" costs at the time the bill of costs is filed is simply not supported by Montana statute or jurisprudence. Indeed, the word "ascertain" does not appear in §§ 25-10-501 or -502, MCA.
The two statutes, read
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