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Sherner v. National Loss Control Services Corp.11/15/2005
together, give the prevailing party 5 days to file a bill of costs and the opposing party 5 days to file a notice of a motion to have the trial court tax the costs. By simple logic, the amount of the costs cannot be determined unless and until the 5 days permitted to the opposing party have passed. If the opposing party timely objects, the trial court must tax the costs. If the opposing party does not object timely, § 25-10-504, MCA, permits the clerk to "ascertain" the costs as the amounts claimed in the bill of costs and enter same into the judgment.
The dissent's view that somehow our determination of the costs issue here changes law in effect since 1895 is puzzling, since the dissent advances no authority for this view. Indeed, Gahagan, on which the dissent relies, supports the result in this case rather than the dissent's view. There, the prevailing plaintiff filed his memorandum of costs and, two days later, the defendant timely filed a notice of motion to tax costs, advised of objections to certain items and requested a hearing before the court to present its objections and then request the court to tax costs. Thereafter, the trial court struck certain items of claimed costs and entered judgment. Gahagan, 100 Mont. at 601-02, 52 P.2d at 151-52. We affirmed the trial court's action on appeal. Gahagan, 100 Mont. at 612, 52 P.2d at 156. This is precisely the type of procedure which we require in the present case.
In advancing Gahagan, the dissent seems to miss the very point at issue here, which is that the party opposing the bill of costs has a statutory time frame in which to object. Thereafter, the trial court can proceed to tax costs appropriately. Here, unlike in Gahagan, the Sherners were denied their statutorily-authorized time to object to the bills of costs.
Finally, the dissent closes with the thought that trial courts will be involved in every costs proceeding, regardless of whether objection is made. This statement reflects the dissent's basic misunderstanding of our decision here: a losing party must be allowed the 5-day period to object and, if timely objection is made, the court is required to tax costs thereafter. If no timely objection is made, § 25-10-504, MCA, comes into play and the clerk may simply accept the amounts claimed as ascertained and insert them into the judgment.
We hold that the District Court erred in setting the amount of costs awarded to three defendants.
CONCLUSION
The District Court's summary judgment in favor of the defendants and dismissal of the Sherners' claims are affirmed. The District Court's January 6, 2004 "Notice" and that portion of its December 17, 2003 Judgment specifying costs are vacated. This matter is remanded to the District Court for further proceedings on costs consistent with this Opinion.
KARLA M. GRAY
We concur:
W. WILLIAM LEAPHART
Justice Patricia O. Cotter concurs and dissents.
I join in the Court's disposition of Issue Four. I dissent from the Court's Opinion on the remainder of the issues.
The Court's recitation of facts, while correct as far as it goes, is far too cursory. In fact, the Court sets out basically those facts which support its decision. For the most part, it ignores many allegations made by the Plaintiffs--most of which are not in dispute--which raise genuine issues of material fact regarding the motivations of the Defendants in referring Sherner for fraud investigation, and which are deserving of resolution through trial. Among them are the fact that NATLSCO began conducting intermittent surveillance of Sherner as early as October 1996, in order to monitor S
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