NO. 92-119
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
WILLIAM A. MANLEY and
MARGARET H. MANLEY,
Plaintiffs and Respondents,
-vs-
WILLIAM GRIMES and HILDRETH GRIMES,
and R. V. BOTTOMLY and IRENE BOTTOMLY,
Defendants and Appellants.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Monte D. Beck, Attorney at Law, Bozeman, Montana
Donald Ostrem; Graybill, Ostrem, Warner & Crotty,
Great Falls, Montana
For Respondents:
Robert J. Sewell, Jr.: Smith Law Firm, Helena
Montana
Submitted on Briefs: January 28, 1993
Justice John Conway Harrison delivered the Opinion of the Court.
This is an action for the partition of recreational property
located near the community of Lincoln, Montana. Appeal is taken
from a December 13, 1991 order of the District Court for the First
Judicial District, Lewis and Clark County. We dismiss the appeal
because we conclude that the order from which appeal is taken is
not an appealable order.
In view of our holding that the December 13, 1991 order is not
an appealable order under Rule 1, M.R.App.P., we will not discuss
the other issues raised.
The record evidences a dispute between former friends and
neighbors who had been co-tenants on a tract of land for over
thirty years. R.V. and Irene Bottomly initially owned the entire
parcel. They conveyed an undivided one-half interest to William
and Margaret Manley in 1958 and, in 1980, a one-half of their
undivided half interest to William and Hildreth Grimes. A cabin
located on the property was jointly utilized by all the parties
over a number of years.
In May 1986, the Manleys filed this action to enjoin the
Grimeses from building another cabin on the property and for
partition of the property. The matter was set for trial in
November of 1987. Immediately before trial, the parties met
outside the court and discussed a resolution of the case.
Counsel advised the court that a settlement had been reached
and that appropriate papers would be filed at a later date.
Although the specifics of the agreement were not entered into the
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court record, the trial was vacated. Despite numerous efforts
since that time, the parties have never submitted to the court a
settlement agreement signed by all of them.
On May 3, 1991, the Bottomlys and the Grimeses filed a
"Petition for an Order" in which they asserted that judgment should
be entered pursuant to an attached "Stipulation for entry of
judgment and decree of partition" based on the oral agreement
reached by the parties in November 1987. The stipulation was
executed by the Bottomlys and the Grimeses and their counsel but
not by the Manleys or their counsel.
Argument on the "Petition for an Order" was heard by the
District Court on September 5, 1991. After receiving briefs, the
District Court entered its decision on December 13, 1991, ordering
as follows:
IT IS HEREBY ORDEREDthat the motion to enforce the oral
settlement agreement and to enter a decree of partition
is DENIED. The parties are hereby given until January
31, 1992, to resolve the controversy. If this Court does
not receive a notice of settlement by that date,
partition proceedings will be ordered in accordance with
Title 70, Chapter 29, of the Montana Code Annotated.
From this order, the Bottomlys and the Grimeses appeal.
Is the District Court's December 13, 1991 order appealable
under Rule 1, M.R.App.P.?
Rule 1, M.R.App.P., provides in part:
(b) In civil cases a party aggrieved may appeal from a
judgment or order, except when expressly made final by
law, in the following cases:
(1) From a final judgment . . . .
(2) . . . from such interlocutory judgments or orders, in
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actions for partition as determine the rights and
interests of the respective parties and direct partition
to be made.
In this case, the December 13, 1991 order of the District Court is
not a final judgment. Nor is it an interlocutory judgment or order
which determines the rights of the parties and directs partition to
be made. The Bottomlys and the Grimeses illogically assert that
the order determines the rights of the parties because it rejects
their offered stipulation. The court's order merely gives the
parties an extension of time "to resolve the controversy." The
court stated that, if the matter was not resolved within the time
allowed, then the court would order partition proceedings.
Partition will not occur until after the referees file their report
with the court and the court decides to confirm, modify, or set
aside the report or to appoint new referees. Section 70-29-212,
MCA. We hold that the December 13, 1991 order is not appealable.
The Bottomlys and the Grimeses claim that the issue of the
appealability of the December 13, 1991 order is moot because of
this Court's previous denial of the Manleys' motion to dismiss this
appeal. An issue is moot when it has ceased to exist. This
Court's summary order denying the motion to dismiss did not
obliterate this issue; it merely postponed our consideration of it
until a full review of the record was made.
IT IS ORDERED that this matter is dismissed and shall be
returned to the District Court for further proceedings in
compliance with that court's December 13, 1991 order.
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We concur:
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Justice William E. Hunt, Sr., dissenting.
I dissent. If the oral agreement in Hetherington v. Ford
Motor Company (1993), Montana Supreme Court Cause No. 91-602, was
a binding contract, as concluded by the majority, then the
stipulation agreed to by the parties in this case is even more of
a binding contract because all of the parties were present at the
time the stipulation was made, and all of the parties orally agreed
to execute the contract. In Hetherinaton, it was the attorneys who
spoke for the plaintiffs and agreed to a contract that, in my
opinion, was not fully determined, while here, it was clear that
the parties reached an oral agreement in each other's presence,
which was subsequently reduced to writing by the Manleys' attorney.
The document was executed by the Bottomlys and Grimeses, but not by
the Manleys. The District Court order does determine the rights of
the parties because the Bottomlys and Grimeses are entitled to
enforce their contract with the Manleys for the partition of the
property, based on the rationale in Hetherinqton. I would hold
that the order was final and appealable and I would reverse the
District Court.
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