97-127
No. 97-127
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
JAMES MOODY,
Plaintiff and Appellant,
v.
NORTHLAND ROYALTY CO.,
Defendant and Respondent.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable Marc G. Buyske, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeff Lynch, Lynch Law Firm, Great Falls, Montana
For Respondent:
Robert J. Emmons, Emmons & Sullivan, Great Falls, Montana
Submitted on Briefs: June 12, 1997
Decided: December 12, 1997
Filed:
__________________________________________
Clerk
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Justice William E. Hunt, Sr. delivered the Opinion of the Court.
This is an appeal from the Ninth Judicial District Court, Glacier County. On
June
6, 1996, the District Court entered an order dismissing Appellant James Moodyþs
(Appellant) second amended complaint with prejudice. On February 4, 1997, Appellant
filed a notice of entry of judgment. From this, Appellant appeals. We reverse and
remand with instructions.
The issues raised on appeal are as follows:
1. Does this Court have appellate jurisdiction over this case?
2. Did the District Court err under Rule 2, Uniform District Court Rules,
when it granted Respondentþs motion to dismiss?
BACKGROUND
The procedural history of this case is convoluted. On March 23, 1995, Appellant
filed a complaint against Respondent Northland Royalty Co. (Respondent), alleging he
had been wrongfully discharged from his employment. Appellant filed a second
amended complaint on April 16, 1996. Respondent moved to dismiss the action on May
6, 1996, but it did not file a supporting brief that same day. Four days later, on
May 10,
1996, Respondent filed a two-page document entitled þRespondentþs Answer To
Appellantþs Second Amended Complaint.þ Appellant did not respond to Respondentþs
motion.
On June 6, 1996, the District Court granted Respondentþs motion and dismissed
the entire complaint with prejudice. It treated Respondentþs þanswerþ as
Respondentþs
brief in support of the motion to dismiss and further noted that Appellant had not
responded to the motion. Respondent did not file a notice of entry of judgment.
On June 10, 1996, Appellant filed a motion for reconsideration, requesting
that
the court either rescind its order or allow Appellant to respond to Respondentþs
motion.
Subsequently, on July 1, 1996, before the District Court had ruled on the motion,
Appellant filed a notice of appeal. On January 9, 1997, this Court dismissed the
appeal
without prejudice. We held that the motion for reconsideration was actually a Rule
59(g),
M.R.Civ.P., motion to alter or amend the judgment according to our decision in Miller
v. Herbert (1995), 272 Mont. 132, 135-36, 900 P.2d 273, 275. Once Appellant had
filed
the Rule 59(g) motion, he could not properly appeal until the District Court had
either
denied the motion or until the motion was þdeemed deniedþ upon failure of the court
to
rule within 60 days. Appellantþs notice of appeal, filed prior to the disposal of
that
motion, was thus premature and had no effect.
We further noted that although Rule 5(a)(4), M.R.App.P., subsequently amended
effective October 1, 1997, provides that an appellant may refile a notice of appeal
after
the Rule 59(g) motion has been denied or þdeemed denied,þ Appellant could not file
such
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an appeal, because the appeal time had long since run. However, because the
Respondent
had never filed a notice of entry of judgment with respect to the District Courtþs
dismissal
order as required by Rule 77(d), M.R.Civ.P., the time limit for appealing that order
had
neither begun nor ended. We thus stated that Appellant could refile a notice of
appeal.
Respondent still failed to file a notice of entry of judgment. On February 4,
1997,
Appellant himself filed a notice of entry of judgment, and filed another notice of
appeal.
On May 6, 1997, the District Court entered its judgment, dismissing the case with
prejudice, and on May 7, 1997, Respondent served a notice of entry of judgment.
ISSUE ONE
Does this Court have appellate jurisdiction over this case?
In our January 1997 order dismissing Appellantþs first appeal as premature, we
stated that because Respondent had never filed a notice of entry of judgment as
required
by Rule 77(d), M.R.Civ.P., Appellant could þtherefore still properly and timely
refile
with this Court a notice of appeal of the District Courtþs dismissal order.þ
Respondent argues our order was incorrect, because a notice of entry of judgment
is never required when a Rule 59(g), M.R.Civ.P., motion has been filed. He contends
that the appeal time ran from the date the Rule 59(g) motion was deemed denied.
Because no notice of appeal was timely filed after the disposal of that motion, this
Court
lacks appellate jurisdiction.
We need not resolve the Respondentþs argument, because our January 1997 order
is law of the case, even if incorrect. The law of the case doctrine þexpresses the
practice of courts generally to refuse to reopen what has been decided. It
expresses the
rule that the final judgment of the highest court is the final determination of the
partiesþ
rights.þ Scott v. Scott (Mont. 1997), 939 P.2d 998, 1001-02, 54 St.Rep. 548, 550
(citing Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436,
591
P.2d 196, 197). We have described the doctrine as follows:
The rule is well established and long adhered to in this state that where
upon an appeal, the Supreme Court, in deciding a case presented states in
its opinion a principle or rule of law necessary to the decision, such
pronouncement becomes the law of the case, and must be adhered to
throughout its subsequent progress, both in the trial court and upon
subsequent appeal.
Scott, 939 P.2d at 1002 (citing Fiscus, 591 P.2d at 197). Further, þ[w]hether the
opinion
is right or wrong, it is the law of the case . . . and is binding upon us.þ Fiscus,
591
P.2d at 198 (citation omitted).
Our prior order stated that Appellant could still timely refile a notice of
appeal,
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which he promptly did on February 4, 1997. That order is law of the case, and we
will
not revisit it.
Respondent next contends that this Court lacks jurisdiction because Appellant
did
not pay the $45.00 filing fee required by õ 25-1-201(1)(c), MCA, for entry of
judgment
before he filed the notice of entry of judgment on February 4, 1997. It argues
that
because Appellant did not pay a fee, no judgment was entered at that time.
Therefore,
the February 1997 notice of entry of judgment had no legal effect. Respondent
points out
that judgment was not actually entered until May 1997, when Respondent itself paid
the
filing fee for entry of judgment and also served a notice of entry of judgment.
Accordingly, Appellantþs notice of appeal, filed February 4, 1997, was premature.
We do not agree with Respondentþs argument. First, the filing fee is required
on
entry of judgment from the prevailing party, which in this case was the Respondent
and
not the Appellant. Section 25-1-201(1)(c), MCA.
Second, this Court has jurisdiction to hear appeals that are filed prior to
the entry
of judgment appealed from. Rule 5(a)(2), M.R.App.P., provides:
[A] notice of appeal filed after the announcement of a decision or order but
prior to the time that the appeal period begins to run under subsection (a)(1)
of this Rule 5, i.e., before the entry of the order or judgment appealed from
or the service of the notice of entry of judgment as the case may be, shall
be treated as filed after such entry and on the day thereof.
Thus, even though judgment was not entered until May 6, 1997, after Appellant had
already filed the notice of appeal, we treat the notice as though filed þafter such
entry and
on the day thereof.þ Rule 5(a)(2), M.R.App.P.
Furthermore, as this Court has already held, we will not revisit whether in fact
Appellant was entitled to refile a notice of appeal on the basis that no notice of
entry of
judgment had been entered as of January 1997.
ISSUE TWO
Did the District Court err under Rule 2, Uniform District Court Rules, when it
granted Respondentþs motion to dismiss?
The District Court dismissed Appellantþs second amended complaint on the
grounds that Appellant had not responded to Respondentþs motion to dismiss in the
time
permitted by Rule 2, Unif.Dist.Ct.R., and that therefore the motion was deemed to be
well-taken. The District Court did not address the merits of Respondentþs motion.
Appellant raises two arguments in support of his contention that the District
Court
erred. Both center on the partiesþ respective obligations to file briefs in
connection with
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the motion to dismiss, and both involve Rule 2, Unif.Dist.Ct.R., which provides in
part:
(a) Upon filing a motion or within five days thereafter, the
moving party shall file a brief. The brief may be accompanied by
appropriate supporting documents. Within ten days thereafter the adverse
party shall file an answer brief which also may be accompanied by
appropriate supporting documents. Within ten days thereafter, movant may
file a reply brief or other appropriate responsive documents.
(b) Failure to file briefs. Failure to file briefs may subject the
motion to summary ruling. Failure to file a brief within five days by the
moving party shall be deemed an admission that the motion is without
merit. Failure to file an answer brief by the adverse party within ten days
shall be deemed an admission that the motion is well taken. Reply briefs
by movant are optional, and failure to file will not subject a motion to
summary ruling.
We have interpreted this rule as allowing the lower court discretion to either deny
or
grant unsupported or unanswered motions. In re Marriage of Grounds (1993), 256
Mont. 397, 403, 846 P.2d 1034, 1038 (unsupported motion); Maberry v. Gueths (1989),
238 Mont. 304, 309, 777 P.2d 1285, 1289 (unanswered motion). Hence, we will not
overturn the District Courtþs decision absent an abuse of discretion. However, the
question as to whether a "brief" has been filed within the meaning of Rule 2,
Unif.Dist.Ct.R., presents a question of law. This Court reviews issues of law to
determine whether the lower court's application or interpretation of the law is
correct.
Hollister v. Forsythe (1995), 270 Mont. 91, 93, 889 P.2d 1205, 1206.
Appellant argues that Respondent did not file a brief in support of the motion
to
dismiss within five days as required by Rule 2(a), Unif.Dist.Ct.R. He reasons that
this
failure should be deemed an admission that the motion was without merit and he was
therefore not obligated to respond. Rule 2(b), Unif.Dist.Ct.R. Respondent
counters, and
the District Court agreed, that the document labeled þRespondentþs Answer to
Appellantþs
Second Amended Complaint,þ which was filed four days after the motion was filed, was
in fact a supporting brief.
For purposes of characterizing post-judgment motions, this Court has generally
held that the substance, not the caption, of the document controls. See, e.g.,
Miller v.
Herbert (1995), 272 Mont. 132, 136, 900 P.2d 273, 275 (þWe shall look to the
substance
of a motion, not just its title, to identify what motion has been presented.þ)
However,
we make a distinction for those types of documents which have such procedural
significance that the label or title of the document is significant to the
recipient.
Examples of such documents are a summons, requests for admissions, and briefs in
support of motions to dismiss. All such documents require a response from the
recipient
within a fixed period of time, and failure to provide the appropriate response
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within that
time has substantive consequences.
In the event that an appearance is not made within twenty days from the date on
which a summons is served, a party's default may be entered. Rule 55(a), M.R.Civ.P.
See also Rule 12, M.R.Civ.P.; õ 25-3-401, MCA. In the event that requests for
admissions are not answered within thirty days, the facts the party is requested to
admit
are deemed true. Rule 36(a), M.R.Civ.P. In the event that a motion to dismiss is
supported by a brief within five days, the adverse party's failure to file an answer
brief
is deemed an admission that the motion is well-taken. Rule 2(b), Unif.Dist.Ct.R.
In the regular course of office practice, an attorney attaches different
procedural
significance to a document entitled "written interrogatories" than he or she would
to a
document entitled "requests for admissions." Likewise, an attorney attaches
different
procedural significance to a document entitled "answer" than to a document entitled
"brief
in support of motion to dismiss." A motion to dismiss without a supporting brief is
deemed to be without merit. However, when a motion to dismiss is supported by a
brief,
it is deemed well-taken unless the adverse party files a brief in opposition. Rule 2
(b),
Unif.Dist.Ct.R.
Written interrogatories are not routinely treated with the same sense of
urgency by
a practicing attorney that requests for admissions stimulate. Likewise, "answers"
are not
treated with the same sense of urgency as briefs in support of motions to dismiss.
For these reasons, this Court requires that those documents which have
procedural
significance beyond the merits of their content to be correctly labeled before the
recipient
can be held to have defaulted for failure to file a timely response. Otherwise, the
party
filing the misleading document, whether inadvertently or intentionally, would
benefit from
his or her own error.
We hold that the District Court erred when it granted Respondent's motion to
dismiss on the basis that Appellant had not filed an answer brief. Respondent's
motion
was not supported by a properly identified brief, and unless, on remand, leave is
given
by the District Court to correct that error, the motion is deemed, at this point, to
be
without merit.
Reversed and remanded.
/S/ WILLIAM E. HUNT, SR.
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We Concur:
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
Justice James C. Nelson specially concurs and dissents.
I concur with our discussion of Issue 1; I dissent from our discussion of Issue
2.
Regardless of how it was labeled, it is inconceivable to me that any attorney
could
read the document filed by Respondent and conclude that it was anything other than a
brief. Even a cursory glance at the "answer" filed in this case would have revealed
that
fact.
We have held that it is the substance of a document that controls, not its
caption.
See Miller v. Herbert (1995), 272 Mont. 132, 136, 900 P.2d 273, 275 ("We shall look
to the substance of a motion, not just its title, to identify what motion has been
presented.") In substance, the document at issue here is clearly a brief regardless
of how
it was captioned. Respondent's "answer" neither admits nor denies any of the
allegations
contained in the second amended complaint. Instead, the document sets forth the
Respondent's arguments, analysis and supporting case and statutory authority as to
why
the action should be dismissed; this document was filed four days after the
Respondent
filed its motion to dismiss. There is no evidence that Respondent intended to trick
or
mislead the Appellant. Rather, it appears that Respondent simply mis-captioned its
response brief--an error merely of form, not of substance.
From whole cloth, we have now created an exception to Miller. We have also
ignored the statutory principal underlying that case--"[t]he law respects form less
than
substance." Section 1-3-219, MCA. Now, "documents which have a procedural
significance beyond the merits of their content" must be correctly labeled before the
recipient can be held to have defaulted for failure to file a timely response.
Apparently,
a summons, a brief in support of a motion to dismiss and requests for admissions
fall into
this category, while, an answer and written interrogatories do not. Not
surprisingly, the
majority cites no authority for this arbitrary categorization. There is none. In
fact, we
have stated the contrary--i.e., that "[w]e disregard the terminology in the title of
the
summons. . . ." Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 148, 729
P.2d 469, 472. Very recently, in discussing this decision we noted that "in
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[Association
of Unit Owners] the content of the summons was more important than its title."
Yarborough v. Glacier County (Mont. 1997), ___ P.2d___, 54 St. Rep. 1274, 1275.
Until we amend the Rules of Civil Procedure to provide otherwise, it is my
opinion that all pleadings, motions and other documents provided for by those rules
are
procedurally significant, as are the time frames that govern their filing. That is
one of
the underlying premises of Rule 11, M.R.Civ.P., if not the entirety of the Rules
themselves. Moreover, I do not believe that it is the obligation of this or of any
other
court in this State to hand-hold those members of the bar who cannot tell the
difference
between an answer and a brief.
The District Court was absolutely correct in its decision. I would affirm.
/S/ JAMES C. NELSON
Chief Justice J.A. Turnage and Justice Karla M. Gray concur in the foregoing
concurrence and dissent.
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
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