GLICK v STATE DEPT OF INSTITUTION
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No. 12725 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1974 ROBERT E M R GLICK e t a l . , L E P l a i n t i f f s and Respondents, THE STATE O MONTANA, ACTING BY AND F T R U H THE M N A A DEPARTMENT O HOG OTN F INSTITUTIONS, Defendant and A p p e l l a n t . Appeal from: District Court of t h e F i f t h J u d i c i a l D i s t r i c t , Honorable James D. Freebourn, Judge p r e s i d i n g Counsel of Record: For A p p e l l a n t : C. W. L e a p h a r t , Jr. argued, Helena, Montana John A. Hauf, Helena, Montana For Respondents: C o r e t t e , Smith and Dean, B u t t e , Montana Kendrick Smith argued, B u t t e , Montana Submitted: September 10, 1974 Decided : ~ ,*' Filed: Q,':r . -C. /c-: . a, 1 2 1374 Mr. Justice Frank I. Haswell delivered the Opinion of the Court. On June 25, 1969, twenty-six employees of the Montana Children's Center filed a complaint seeking payment of overtime wages for certain hours worked between February 1, 1967, and January 31, 1969. After hearings before four district judges, two appeals to this Court, and a petition for writ of certiorari to the United States Supreme Court, we have the matter before us for the third time. On August 10, 1970, Judge Davis granted plaintiffs1 motion for a limited summary judgment, holding plaintiffs were protected by the provisions of the Fair Labor Standards Act of 1938. That judgment was appealed and affirmed in Glick v. State of Montana, 157 Mont. 204, 485 P.2d 42 (1971). The case then returned to district court for a determination of damages. That issue was tried before Judge Blair, who, on March 6, 1972, granted judgment in the amount of $489,289.36. That judgment was also appealed, this time raising four issues. In Glick v. Mont. Deplt of Institutions, 162 Mont. 82, 509 P.2d 1, 2, 30 St.Rep. 424, cert. den. 414 U.S. 856, S.Ct. , 38 L Ed 2d 106 (1973), we affirmed the district court's holding on the computation of "regular rate of pay", but reversed on the issues of number of hours worked by each plaintiff, liquidated damages, and attorney fees. The case was remanded for a recomputation of hours worked and a redetermination of attorney fees. Hearings were held before Judge Freebourn on December 17, 1973, and January 28, 1974; judgment was entered on the latter date. Plaintiffs were awarded $169,783.74 for unpaid overtime and $75,000 for attorney fees. That judgment is appealed here. The issues now raised are similar to two raised here in 1973: "1. Did the court err in its findings as to t h e number of h o u r s worked by e a c h p l a i n t i f f * * *? "4. Did t h e c o u r t err i n awarding a t t o r n e y f e e s i n t h e amount of * * * [ $ 7 5 , 0 0 0 ] ? " [amount s u b s t i t u t e d ] I n t h e 1973 d e c i s i o n w e found t h e d i s t r i c t c o u r t ' s f i n d i n g s w e r e o b v i o u s l y e r r o n e o u s i n t h e computation of h o u r s worked p e r week when compared t o t h e t e s t i m o n y of a t l e a s t five plaintiffs. On remand, t h e d i s t r i c t c o u r t was o r d e r e d t o recompute t h e h o u r s worked. One of t h e e x h i b i t s r e l i e d on t h r o u g h o u t t h e s e proceedi n g s was a summary of d a y s worked and monthly r a t e s of pay, comp i l e d by a s t a t e employee from t h e r e c o r d s of t h e Montana C h i l d r e n ' s Center. N r e c o r d s had been m a i n t a i n e d on t h e number of o h o u r s worked p e r week, s o t h e summary made no mention of t h o s e figures. A t t h e J a n u a r y 2 8 , 1974, h e a r i n g , d e f e n d a n t a t t e m p t e d t o i n t r o d u c e t h e r e c o r d s of t h e Montana C h i l d r e n ' s C e n t e r a s e v i d e n c e showing e r r o r s i n t h e summary p r e v i o u s l y r e l i e d upon. Judge F r e e b o u r n r e f u s e d t o a d m i t t h e s e r e c o r d s , h o l d i n g t h a t t h i s C o u r t had n o t g i v e n him a u t h o r i t y t o reopen t h a t m a t t e r - - a m a t t e r which had been p r e v i o u s l y d e c i d e d by Judge B l a i r i n 1972. Judge F r e e b o u r n ' s e x c l u s i o n of t h i s e v i d e n c e was c l e a r l y i n a c c o r d w i t h t h e t e r m s of t h e d e c i s i o n which remanded t h e c a s e W e remanded f o r " a c t i o n n o t i n c o n s i s t e n t w i t h [ t h a t ] t o him. opinion". The o p i n i o n c l e a r l y s t a t e d t h a t t h e c a s e had t o be r e t u r n e d t o d i s t r i c t c o u r t f o r recomputation of average hours worked by e a c h p l a i n t i f f . "Recomputation" d o e s n o t i n c l u d e t h e r e c e p t i o n of new e v i d e n c e , merely a r e c a l c u l a t i o n based on e v i d e n c e a l r e a d y i n t h e record. There was ample e v i d e n c e t o s u p p o r t Judge F r e e b o u r n ' s f i n d i n g s of h o u r s worked. These f i n d i n g s were based i n p a r t on the figures of days worked included in the summary. Defendant's suggestion that the summary is inaccurate comes too late. The introduction of the summary was not objected to, although defendant has had the institution's records in its possession since the inception of this lawsuit. In fact, in 1972 defendant proposed in its proposed finding of fact No. 10, that Judge Blair find the summary to be: " * * * a true and correct statement of the days worked and monthly rate of pay for the plaintiffs and each of them * * *." Judge Blair's findings were in accord with this proposal. Defend- ant did not challenge that finding in its 1973 appeal, although it was an integral part of determining the number of hours worked. The first challenge to the summary's accuracy was raised only after it had been used and relied upon by all parties for more than two years--including a trial, an appeal to this Court, and a petition for writ of certiorari to the United States Supreme Court. To allow defendant to successfully raise it now would violate the terms of the remand, and would be violative of the policies reflected in the legal concepts of res judicata, law of the case, and perhaps even stare decisis. We affirm Judge Blair's finding on the ground which he accurately set forth, that our remand did not give him jurisdiction to reopen this portion of the record for receipt of new evidence. Defendant's other allegation of error concerns the award of $75,000 for attorney fees. Defendant contends $56,000 would be a more reasonable figure. While we agree that the award must be reasonable, under the provisions of the Fair Labor Standards Act, 29 U.S.C. S216(b), we cannot find evidence in the record that the award made by Judge Blair was unreasonable, or an abuse of his discretion. As we said in Luebben v. Metlen, 110 Mont. 350, 355, "We a r e n o t d i s p o s e d t o i n t e r f e r e w i t h a t t o r n e y ' s f e e s f i x e d by t h e t r i a l c o u r t u n l e s s t h e r e a p p e a r s t o have been a c l e a r a b u s e of d i s c r e t i o n . " The judgment i s a f f i r m e d . Justice W concur: e ---------------------------. Chief J u s t i c e -
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