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Connell v. State12/18/2003
t abuse its discretion in denying the State of North Dakota's motion to intervene as permissive intervention.
3. Did the District Court err in awarding attorney's fees?
The State of North Dakota argues that the District Court's award of attorney's fees was "a clear error of law," as there was no finding by the District Court that Connell was forced to secure counsel as a result of a frivolous or malicious motion. The State of North Dakota argues that the District Court misapplied this Court's holding in Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114, because application of the "equitable exception" is "extremely narrow."
Connell argues that the District Court's award of attorney's fees and costs was an appropriate equitable remedy for the violation of his constitutional rights, given that such an award is within the sole discretion of a district court. We agree.
We held in Foy that a district court, under its equity power, may grant relief, in the form of attorney's fees, when equity so requires. Foy , 176 Mont. at 511-12, 580 P.2d at 11617. In Foy , the defendant asserted no claim against the plaintiff; however, the plaintiff sought to bring the defendant into the plaintiff's ongoing lawsuit. The defendant then secured the services of an attorney and brought a motion to dismiss the plaintiff's claim against her. In so doing, the defendant was forced to defend a non-meritorious action, incurring attorney's fees and costs. Hence, we held that the district court's award of attorney's fees and costs was proper so as to make the defendant whole or return her to the same position as before the plaintiff sought to bring her into the lawsuit. Foy , 176 Mont. at 511-12, 580 P.2d at 117.
Here the District Court found that "Connell ha been forced to employ counsel to defend a non-meritorious motion which was both untimely and inappropriate." And, " s a wholly innocent party" to the proceedings, the District Court awarded attorney's fees and costs. On these facts, we hold that the District Court did not abuse its discretion in awarding Connell attorney's fees and costs under Foy .
The District Court's denial of the State of North Dakota's motion to intervene and its grant of attorney's fees and costs to Connell is affirmed.
JAMES C. NELSON
We Concur:
KARLA M. GRAY
JOHN WARNER
PATRICIA COTTER
W. WILLIAM LEAPHART
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