ORIGINAL 01/28/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0304
DA 21-0304 FILED
JAN 2 8 2022
DONNES, INC., a Montana Corporation, Sowen Greenwood
Clerk of Supreme Court
Stete of Montana
Plaintiff and Appellant,
v.
ORDER
FOUR BEERS, INC., a Montana Corporation,
d/b/a STILLWATER EXCAVATING,
Defendant and Appellee.
Plaintiff and Appellant Donnes, Inc., appeals the Twenty-Second Judicial District
Court's May 21, 2021 Findings of Fact, Conclusions of Law, and Judgment in favor of
Defendant and Appellee Four Beers, Inc., (Stillwater Excavating). The District Court
ordered in part that Stillwater Excavating was entitled to an award of attorney fees under
§ 28-2-2105, MCA. On June 9, 2021, after defense counsel filed an affidavit for the total
amount of fees claimed, Donnes moved the court to amend its findings under
M. R. Civ. P. 52(b) and to amend the judgment under M. R. Civ. P. 59(e), on the ground
that the award of attorney fees was irnproper. Twelve days later, Donnes filed its notice of
appeal to this Court. The District Court denied Donnes's post-judgment motions on
June 26, 2021, for lack of jurisdiction because of the appeal.
The parties have fully briefed the appeal in this Court, and on January 5, 2022, we
ordered it submitted on the briefs to a five-justice panel. On review of the record, we
conclude that the appeal is not properly before the Court at this time.
An appeal may be taken from a final judgment, including any necessary
determination of the amount of costs and attorney fees awarded. M. R. App. P. 4(1)(a).
Rule 58(e), M. R. Civ. P., states:
A judgment, even though entered, is not considered final for purposes of
appeal under Rule 4.1(a), M. R. App. P., until any necessary determination
of costs and attorney fees awarded, or sanctions imposed, is made. The
district court is not deprived of jurisdiction to enter its order on a timely
motion for attorney fees, costs, or sanctions by the premature filing of a
notice of appeal.
Prior to January 1, 2022, the rule added, "A notice of appeal filed before the disposition of
any such motions shall be treated as filed on the date of such entry." Effective
January 1, 2022, we amended Rule 58(e) to remove that sentence and amended the
Rules of Appellate Procedure to clarify any remaining arnbiguity:
A notice of appeal filed prior to the district court's ruling on any necessary
determination of the amount of costs and attorney fees awarded or sanctions
imposed, may be dismissed sua sponte and shall be dismissed upon the
motion of any party. The district court is not deprived of jurisdiction to enter
its order on a timely motion for attorney fees, costs, or sanctions by the
prernature filing of a notice of appeal, in accordance with Rule 58(e),
M. R. Civ. P.
M. R. App. P. 4(5)(a)(iii). On the basis of the former M. R. Civ. P. 58(e), we determined
in In re Weigand, 2021 MT 128, 404 Mont. 223, 486 P.3d 1272, not to disrniss an appeal
taken before a final order on fees but to treat the notice of appeal as filed on the date on
which the district court entered its order determining the arnount of attorney fees and costs
awarded. Because Donnes's appeal was taken before the rule arnendments took effect, we
apply In re Weigand here.
Even under that analysis, however, Donnes's appeal is premature because its
motions challenging the court's award of attorney fees were still pending in the
District Court when the appeal was taken, and that court has made no order on the amount
of a fee award, if any is finally made. The District Court must resolve the issue of attorney
fees before we can decide this case. As noted in Weigand, the District Court retains
jurisdiction to decide Donnes's motions regarding attorney fees, despite Donnes's
premature appeal. Stillwater Excavating has not rnoved for dismissal of Donnes's appeal,
and we conclude that the applicable version of the rules counsels holding the matter in
abeyance until the final order is entered.
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IT IS THEREFORE ORDERED that this case is remanded to the District Court to
consider and rule on Plaintiff s Rule 52(b) Motion to Amend or Make Additional Findings
and Rule 59(e) Motion to Amend Judgment.
IT IS FURTHER ORDERED that this appeal shall be held in abeyance pending
issuance of the District Court's final ruling on the issue of attorney fees.
IT IS FURTHER ORDERED that Donnes shall notify this Court within 10 days of
the District Court's entry of its order on Donnes's pending rnotions. Failure to provide
such notification may result in dismissal of this appeal. Upon notice of the ruling, the
Court will deem the matter submitted.
The Clerk is directed to provide copies of this order to all counsel of record, to the
Clerk of Court for Stillwater County, and to the Hon. Matthew J. Wald, presiding.
DATED this 28th day of January, 2022.
Chief Justice
Justices
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