                                            No. 05-625

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2006 MT 304


JAMES and IDA STANLEY,

              Plaintiffs and Respondents,

         v.

LILLIAN LEMIRE,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eighth Judicial District,
                     In and For the County of Cascade, Cause No. CDV 2004-564,
                     Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Helge Naber, Naber, P.C., Great Falls, Montana
                     Steven M. Johnson, Church, Harris, Johnson & Williams, P.C.,
                     Great Falls, Montana

              For Respondent:

                     Steven T. Fagenstrom, Fagenstrom Law Office, Great Falls, Montana


                                                         Submitted on Briefs: August 3, 2006

                                                              Decided: November 22, 2006

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     James and Ida Stanley (“the Stanleys”) filed suit against Lillian Lemire (“Lemire”)

in the Cascade County Justice Court, seeking possession of the real property on which

Lemire was residing plus unpaid “rent,” costs of the suit, and attorney fees. Following a

jury trial, the Justice Court entered judgment in favor of the Stanleys except on their

claim for unpaid “rent,” and this judgment was affirmed by the District Court for the

Eighth Judicial District, Cascade County, on all issues except the award of fees and costs.

Lemire now appeals to this Court.

¶2     The issues on appeal are as follows:

¶3     1. Does this Court have jurisdiction over Lemire’s appeal?

¶4     2. Did the District Court err in its determination that the Justice Court retained

subject matter jurisdiction over the Stanleys’ action against Lemire after she asserted a

claim of title to the real property in dispute?

¶5     3. Did the District Court err in affirming the Justice Court’s determination that the

Stanleys were entitled to an award of attorney fees?

                  FACTUAL AND PROCEDURAL BACKGROUND

I.     The “Rental Contract”

¶6     This case arises out of a dispute involving real property located at 1701 13th

Avenue South in Great Falls, Montana (“the subject property”). In 1997, Marlene Sorum

sold this property to the Stanleys, allegedly with the understanding that Lemire (Ms.

Sorum’s mother) would be able to live there as long as she wished or for life. However,

this understanding was not recorded as part of a deed or contract for sale of the property.


                                                  2
¶7    On February 2, 1997, Lemire and the Stanleys entered into a written agreement

titled “RENTAL CONTRACT.” The agreement provided, in its entirety, as follows:

      The contract entered into below is between Joe and Ida Stanley here after
      called agent and Lillian Lemire here after called tenant.

      In consideration of the use and occupancy of the premises as herein
      specified we mutually agree.

      Address or property 1701-13 Th. [sic] Ave. So. Great Falls MT.

      Tenant agrees to rent the subject premises for $100.00 per month payable in
      advance on the fifth day of each month and every month there after.

      Pets will be allowed.

      Tenant will be responsible for the utilities.

      No more than one person may reside in this house, that person being Lillian
      Lemire. The tenant shall not transfer her interest in and to this agreement,
      nor shall the tenant assign or sublet the said premises or any part there of in
      her absence or otherwise permit others to occupy the premises at any time
      during this agreement. If tenant violates the provisions of this paragraph
      the agent may immediately take possession of said premises and in the
      event of litigation, may sue and evict any person or persons occupying said
      premises.

      It is expressly understood and agreed that the owner of said premises, or
      said agent will not be liable for any damages or injury of any kind to tenant
      or her family, or of her or her family’s property from what ever cause
      arising from the occupancy of said premises by tenant and or her family.

      It is also understood agent will maintain premises in a condition considered
      safe for the tenant to occupy.

      It is also understood that the term of this agreement is for as long as Lillian
      Lemire wishes to reside at said premises or until her death. If Lillian
      wishes to terminate said agreement she is required to give a 30 day notice
      to vacate.




                                             3
      In the event Joe or Ida Stanley for whatever reason no longer act as owner
      or agent of this property this agreement will in its entirety be honored by
      the new owner or agent.

      It is also understood that the tenant may continue to reside at the premises
      now and in the future as she has resided in the past.

Thereafter, the Stanleys each signed under the heading “Owner/agent” and Lemire signed

under the heading “Tenant.”

II.   The First Lawsuit

¶8    The parties apparently maintained an amicable relationship for the first few years.

Then, in August 2001, the Stanleys began holding Lemire’s monthly checks (in other

words, they did not timely present the checks for payment). Eventually, they did present

the checks for payment; however, the bank did not honor any that were over six months

old ($800 worth). The Stanleys then attempted to terminate the Rental Contract and

regain possession of the subject property on the ground that Lemire had failed to pay rent.

On December 24, 2002, they filed suit against Lemire in the Cascade County Justice

Court (Cause No. J202V3186). For clarification, this is not the case presently before us

on appeal. Rather, as explained below, the appeal before us is from a second lawsuit,

which the Stanleys filed in the Cascade County Justice Court in 2004.

¶9    In the first lawsuit (“Suit #1”), the Justice Court ruled in favor of the Stanleys, and

an appeal was taken to the District Court (Cause No. BDV-03-368) for a trial de novo.1

Notably, the District Court observed in its Amended Order that


      1
        As of July 1, 2003, appeals from a justice’s court established as a court of
record—which the Cascade County Justice Court now is—are “confined to review of the
record and questions of law.” Section 3-10-115(1), MCA (2003), and the Compiler’s

                                             4
        neither of the parties have come to Court with clean hands. The Plaintiffs
        admit that they held the checks tendered by the Defendant in an attempt to
        evict her. In fact, they still want her evicted and are requesting damages.
        The Defendant, for her part, initially refused to re-issue the dishonored
        checks deeming it the Plaintiffs’ problem since she had tendered the checks
        as required.

¶10     That said, the court denied the Stanleys’ motion for summary judgment and

granted Lemire’s motion for summary judgment, “find[ing] that a valid rental contract

exists between the parties and that the Defendant performed her obligations under the

contract.” Furthermore,

        [t]he Plaintiffs’ actions in retaining the proffered rent checks in an attempt
        to evict the Defendant amounted to a breach of the contract on the part of
        the Plaintiffs. The Defendant shall be allowed to continue rental of the
        premises under the terms of the rental contract entered into by the parties.

               At the same time, the Court finds that the Defendant shall pay to the
        Plaintiffs the amount of $800.00, plus interest at the rate of ten percent
        (10%) per annum from the time she was notified that the bank would not
        honor her checks, to cover the stale checks that were not honored by the
        bank.

Neither party appealed this judgment.

III.    The Second Lawsuit

¶11     The Stanleys initiated their second lawsuit against Lemire (“Suit #2,” the case now

before us) in the Cascade County Justice Court (Cause No. J204V0232) on January 22,

2004.    The Complaint for Possession alleged that Lemire had “breached the rental

agreement by withholding part of rent monies” totaling, as of that date, $40.            The


Comments thereto; see also § 25-33-301(3), MCA (2003), and the Compiler’s Comments
thereto. Here, it appears from the record that the Cascade County Justice Court was not
yet established as a court of record when Suit #1 was tried and that the District Court,
therefore, heard the appeal de novo.


                                              5
Stanleys sought possession of the premises, unpaid rent, costs of the suit, and attorney

fees.

¶12     A “voluminous flurry of filings” (as the Justice Court characterized them) ensued.

Of those, the following trace the evolution of Lemire’s characterization of her interest in

the subject property from that of a lessee to that of a life tenant, which is an essential

element in resolving Lemire’s claim on appeal that the Justice Court lacked jurisdiction

over the Stanleys’ action.

¶13     First, on January 30, 2004, Lemire filed a motion to dismiss in which she

characterized her relationship with the Stanleys as a “landlord-tenant arrangement[].”

She asserted that she “has a lease of the subject premises for the rest of her natural life”

(emphasis added) and that she had reduced her monthly payments by $20 per month “to

reflect the reduced value of the leasehold estate” (a reference to damage to a picnic table

and a storage shed on the subject property, allegedly caused by Mr. Stanley following the

termination of Suit #1). She construed the Stanleys’ complaint, which cited no statutory

provisions, as stating an action under the law of unlawful detainer (§ 70-27-108, MCA)

and then argued that such an action could not be maintained:

        The law of unlawful detainer, however, is not applicable in this case
        because Ms. Lemire’s lease is a residential lease government [sic] by Title
        70 Chapter 24 of the Montana Code Annotated [The Montana Residential
        Landlord and Tenant Act of 1977], and because Ms. Lemire’s lease is for
        life.

¶14     A week later, Lemire filed an Answer, Counterclaims, and Demand for Jury Trial.

In conformance with her motion to dismiss, she referred to the parties’ contract as a

“lease agreement” and to the subject property as “the leased premises” and “her leasehold


                                             6
estate.” She also asserted, in the Introduction section of this document, that she had filed

her motion to dismiss “based on this Court’s lack of subject matter jurisdiction, and

failure to state a claim for unlawful detainer.” Yet, only M. R. Civ. P. 12(b)(6) (failure to

state a claim upon which relief can be granted) is mentioned in her motion to dismiss, and

neither M. R. Civ. P. 12(b)(1) (lack of jurisdiction over the subject matter) nor the words

“subject matter jurisdiction” is mentioned at all. Furthermore, she did not identify (in her

answer) the grounds on which she had allegedly challenged the Justice Court’s subject

matter jurisdiction.

¶15    The Stanleys filed a response to Lemire’s motion to dismiss on February 11, 2004.

Among other things, they argued that Lemire “may be trying to mislead the court into

believing that Defendant has a life estate”—a prescient interpretation of her argument,

given that Lemire had not yet explicitly characterized her interest as such. The Stanleys

continued: “In truth, Defendant has a written lease, which expires upon the termination

of the contract. As set forth above, Montana Law allows for the termination of a rental

agreement when rent is unpaid.”

¶16    Next in the progression, Lemire filed her Amended Answer and Counterclaims.

As before, she referred to the subject property as having been “leased to her.” In

addition, she used the terms “leasehold estate” and “leased premises” repeatedly, referred

to the $100 monthly payments as “rent,” and alleged that she “has valid a [sic] rental

agreement with [the Stanleys] . . . for the remainder of her natural life.”

¶17    On March 31, 2004, Lemire filed a document titled Defendant’s Combined

Opposition to Plaintiff’s Motion to Set Trial Date, and Motion for Pretrial Conference.


                                              7
She asserted that a pretrial conference should be held to address, among other things,

“jurisdictional matters related to Ms. Lemire’s counterclaims.” She continued:

       A Justice of the Peace does not have jurisdiction over claims for malicious
       prosecution, over actions for damages from the taking, detaining, or
       injuring personal property in excess of $7,000.00, and over claims arising
       out of a contract in excess of $7,000.00. Mont. Code Ann. § 3-10-301(1).
       Ms. Lemire’s counterclaims rest, in part, on breach of contract, damages for
       conversion of personal property to which she claims title, and malicious
       prosecution. [Citation to Amended Answer.] Whether or not this Court has
       jurisdiction to decide on these claims has not yet been determined.
       [Emphases added.]

¶18    The Justice Court addressed these arguments in its April 3, 2004 Order Setting

Jury Trial, in which it also denied Lemire’s motion to dismiss. The court determined that

the Stanleys’ suit was “an action for possession under § 70-24-427” and that the court,

therefore, had jurisdiction pursuant to § 3-10-302, MCA, which provides that “[t]he

justices’ courts have concurrent jurisdiction with the district courts within their respective

counties . . . in actions brought under Title 70, chapter 24.” The court dismissed without

prejudice Lemire’s malicious prosecution counterclaim as beyond the court’s jurisdiction

(see § 3-10-301(1)(c), MCA; Montana Justice and City Court Rules of Civil Procedure

7C(1)); however, with respect to Lemire’s assertion that her counterclaims exceeded the

$7,000 jurisdictional limitation imposed by § 3-10-301, MCA, the court rejected this

valuation of her counterclaims as not “hav[ing] any basis in reality.” The court observed

that “[t]his is a suit over $40 in rent, a homemade wooden picnic table and a shed.”

¶19    On April 30, 2004, Lemire filed a Motion to Stay, and Memorandum in Support.

Noting that the Justice Court had denied her motion to dismiss, dismissed her malicious

prosecution counterclaim, and rejected her “additional jurisdictional concerns,” she


                                              8
informed the court that she had refiled her counterclaim for malicious prosecution in the

District Court (Cause No. CDV-04-401) and had requested that the District Court

“equitably determin[e] her interests in the premises as a life tenant.” Accordingly, she

asserted, “[t]his matter should be halted, and certified for submission to the Clerk of the

District Court.” She explained as follows:

       A Justice Court does not have subject matter jurisdiction to determine
       matters involving title to and possession of real property. Mont. Code Ann.
       § 25-31-101(1). In such matters, the Justice must suspend all further
       proceedings in the action and certify the pleadings from his docket to the
       clerk of the district court of the county. Mont. Code Ann. § 25-31-102(1).
       In her Answer, Ms. Lemire raises counterclaims for trespass, conversion
       based on alleged intrusions and destructions of parts of the premises.
       [Citation to Amended Answer.] To sustain her claims, Ms. Lemire will
       rely on alternative legal theories, among them that she holds a freehold life
       estate under the Rental Agreement.

Therefore, based on the court’s lack of jurisdiction over questions involving the title to or

possession of real property, she concluded, “this Court is precluded from fully

adjudicating the matters before it.”

¶20    Significantly, this is the first instance in all of the foregoing filings that Lemire

explicitly raised the possibility that her interest in the subject property was something

other than that of a lessee—namely, that “the Rental Agreement was intended to create a

life estate in [her] favor” (emphasis added). Seizing on this fact, the Stanleys filed a

response in which they pointed out that Lemire’s answer and amended answer did “not

state a defense or a counterclaim for a life estate in the property.” Thus, the Stanleys

suggested, Lemire had waived the life estate issue by not “properly” raising it earlier in

the proceedings.     Lemire contested this assertion, arguing in her reply that her



                                             9
pleadings—particularly her references to the subject property in her amended answer as a

“leasehold estate”—should be construed liberally to have properly raised a question of

title to the subject property.

¶21    On May 10, 2004, the Justice Court denied Lemire’s motion to stay.

Acknowledging that it does not have jurisdiction to decide a question of title to real

property, the court concluded that the issue of whether Lemire had an ownership interest

in the subject property was not before the court because she had not raised it in a timely

manner:

       [Sections 3-10-301(1)(b) and 25-31-102] require[] the Defendant to raise
       the issue of a question of title to real property in the vertified [sic] answer.
       Defendant has failed to do so. . . .

       Counsel is correct that jurisdiction cannot be granted to the Court where it
       is precluded by statute. However, this Court has jurisdiction over the
       issues that have been properly and timely raised. Plaintiff has initiated an
       action under the Montana Residential Landlord Tenant Act, which is within
       the jurisdiction of this Court. Defendant’s ANSWER and AMENDED
       ANSWER raised no issues (at least legitimate issues) that are beyond the
       jurisdiction of this Court. Defendant NOW wants to raise an issue that
       involves a question of title to real property that is beyond the jurisdiction of
       this Court. Unfortunately for Defendant, that ship has sailed. Defendant
       could have timely raised such an issue, but Defendant did not. Both § 3-10-
       301[(1)](b) and § 25-31-102 require Defendant to raise this issue in the
       verified answer. By failing to do so, Defendant has effectively waived this
       claim.

¶22    Finally, on May 12, 2004, the case went to a jury, which found in favor of the

Stanleys on their complaint for possession, but awarded no money damages. The jury

also dismissed Lemire’s two remaining counterclaims for breach of agreement and

breach of the covenant of good faith and fair dealing. (As for her other counterclaims,

two were dismissed pretrial and three more were dismissed pursuant to a directed verdict


                                             10
at the close of testimony.) In its judgment, dated May 23, 2004, the Justice Court ordered

that “[the Stanleys] [are] granted possession of the premises” and that “[Lemire] shall

peacefully vacate the premises . . . by May 30, 2004” (emphasis omitted). Lemire was

also required to pay $268.00 for the costs of the jury, and the Stanleys were awarded

attorney fees in the amount of $2,594.25 and costs of $60.00.

¶23    Lemire timely appealed to the District Court, which on August 26, 2005, affirmed

the judgment of the Justice Court on all issues except the issue of attorney fees and costs.

The District Court’s reasoning is discussed below in the relevant contexts.

                        GENERAL STANDARD OF REVIEW

¶24    The Justice Court was a court of record at the time Suit #2 was tried. Accordingly,

on Lemire’s appeal from the Justice Court, the District Court functioned effectively as an

intermediate appellate court. See §§ 3-5-303 and 3-10-115, MCA.

¶25    Acting within its appellate capacity, a district court is not in a position to make

findings of fact or discretionary trial court rulings. Rather, the court is “confined to

review of the record and questions of law.” Section 3-10-115(1), MCA. As does this

Court in appeals, the district court reviews any factual findings under the clearly

erroneous standard, any discretionary rulings for abuse of discretion, and both legal

conclusions and mixed questions of law and fact under the de novo standard. See State v.

Seaman, 2005 MT 307, ¶ 10, 329 Mont. 429, ¶ 10, 124 P.3d 1137, ¶ 10 (“In an appeal

from a justice court established as a court of record, the district court functions as an

appellate court and the appeal is confined to a review of the record and questions of law.

. . . [B]oth the District Court and this Court review the Justice Court’s factual findings


                                            11
for clear error and its legal conclusions for correctness.”); City of Billings v. Costa, 2006

MT 181, ¶ 7, 333 Mont. 84, ¶ 7, 140 P.3d 1070, ¶ 7 (“As did the District Court, we

review a trial court’s denial of a suppression motion based on a finding of particularized

suspicion to determine whether that finding is clearly erroneous and whether the trial

court’s conclusions of law are correct.”).

¶26    Consequently, a district court’s review on an appeal from a lower court of record

is no broader than this Court’s review of a lower court judgment. Accordingly, we

review the case as if the appeal had originally been filed in this Court. 2 We examine the

record independently of the district court’s decision, reviewing the trial court’s findings

of fact under the clearly erroneous standard, its discretionary rulings for abuse of

discretion, and its legal conclusions and mixed questions of law and fact under the de

novo standard. Solem v. Chilcote, 274 Mont. 72, 76, 906 P.2d 209, 211-12 (1995);

Jarvenpaa v. Glacier Elec. Co-op., Inc., 1998 MT 306, ¶¶ 12-13, 292 Mont. 118, ¶¶ 12-

13, 970 P.2d 84, ¶¶ 12-13; State v. Warclub, 2005 MT 149, ¶¶ 21, 23, 327 Mont. 352,
       2
         This standard, or something closely akin, is also applied by the highest courts of
a number of our sister states. See, e.g., Lakloey, Inc. v. University of Alaska, 141 P.3d
317, 320 (Alaska 2006) (“When the superior court acts as an intermediate court of appeal,
we review its decision de novo.”); Pyle v. Sayers, 39 S.W.3d 774, 777 (Ark. 2001) (“On a
petition for review, this court reviews the case as if the appeal had originally been filed in
this court.”); Williams v. Williams, 444 A.2d 977, 978 (Me. 1982) (“On this appeal, we
attach no presumptive validity to the judgment of the Superior Court. When the Superior
Court acts as an intermediate appellate tribunal, we traditionally review directly the initial
determination of the adjudicatory body below rather than the decision of the Superior
Court.”); Stanton v. Lackawanna Energy, Ltd., 886 A.2d 667, 675 (Pa. 2005) (“[W]ith
respect to this Court’s review of the Superior Court’s discharge of its reviewing function,
our standard of review is plenary and non-deferential.”); Eggett v. Wasatch Energy Corp.,
94 P.3d 193, ¶ 9 (Utah 2004) (“We review the court of appeals’ decision for correctness,
which turns on whether it accurately reviewed the trial court’s decision under the
appropriate standard of review.” (internal quotation marks omitted)).


                                             12
¶¶ 21, 23, 114 P.3d 254, ¶¶ 21, 23. Our ultimate determination is whether the district

court, in its review of the trial court’s decision, reached the correct conclusions under the

appropriate standards of review.

¶27    In the case at hand, the appropriate standards of review are identified where

applicable in the context of the issues discussed below.

                                      DISCUSSION

¶28    1. Does this Court have jurisdiction over Lemire’s appeal?

¶29    As a threshold matter, we must determine whether we have jurisdiction over

Lemire’s appeal. As explained below, the facts bearing on this issue implicate both this

Court’s jurisdiction and the District Court’s jurisdiction over this case. Cf. City of

Billings v. Costa, 2006 MT 181, ¶ 9, 333 Mont. 84, ¶ 9, 140 P.3d 1070, ¶ 9 (observing

that without a final judgment in the municipal court, both this Court and the district court

would lack jurisdiction over Costa’s appeal). This issue was not raised or briefed by the

parties 3 ; nevertheless, for the reasons which follow, it is necessary and appropriate that

we address it.

¶30    Jurisdiction involves the fundamental power and authority of a court to determine

and hear an issue. State v. Diesen, 1998 MT 163, ¶ 5, 290 Mont. 55, ¶ 5, 964 P.2d 712,

¶ 5; see also Peña v. State, 2004 MT 293, ¶ 21, 323 Mont. 347, ¶ 21, 100 P.3d 154, ¶ 21

(“ ‘Jurisdiction as applied to courts is the power or capacity given by law to a court to

       3
        The facts underlying Lemire’s argument that the Justice Court erred by awarding
attorney fees to the Stanleys prior to the expiration of her allotted time for responding to
their motion also bear on the jurisdictional question we now address, but neither she nor
the Stanleys identify the potential jurisdictional defect explicitly.


                                             13
entertain, hear and determine the particular case or matter.’ ” (emphasis omitted) (quoting

State ex rel. Johnson v. District Court of Eighteenth Judicial Dist., 147 Mont. 263, 267,

410 P.2d 933, 935 (1966))); Eberhart v. United States, 546 U.S. 12, ___, 126 S.Ct. 403,

405 (2005) (per curiam) (equating “jurisdictional” with “prescriptions delineating the

classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)

falling within a court’s adjudicatory authority” (internal quotation marks omitted)).

¶31    As such, we stated in Thompson v. Crow Tribe of Indians, 1998 MT 161, ¶ 12, 289

Mont. 358, ¶ 12, 962 P.2d 577, ¶ 12, that jurisdictional issues “transcend procedural

considerations.” Likewise, we noted in Corban v. Corban, 161 Mont. 93, 96, 504 P.2d

985, 987 (1972), that “lack of jurisdiction over the subject matter can be raised at any

time and a court which in fact lacks such jurisdiction cannot acquire it even by consent of

the parties.” And in In re Marriage of Lance, 213 Mont. 182, 186-87, 690 P.2d 979, 981

(1984), we observed that once a court determines that it lacks subject matter jurisdiction,

“it can take no further action in the case other than to dismiss it” (citing M. R. Civ. P.

12(h)(3)). Accord In re Marriage of Miller, 259 Mont. 424, 427, 856 P.2d 1378, 1380

(1993).

¶32    Consistent with these principles, we have held in a number of cases that a court

may address the question of its jurisdiction sua sponte. State v. Reeder, 2004 MT 244,

¶ 4, 323 Mont. 15, ¶ 4, 97 P.3d 1104, ¶ 4 (citing Losleben v. Oppedahl, 2004 MT 5, ¶ 25,

319 Mont. 269, ¶ 25, 83 P.3d 1271, ¶ 25, in turn citing Trombley v. Mann, 2001 MT 154,

¶ 6, 306 Mont. 80, ¶ 6, 30 P.3d 355, ¶ 6). Similarly, the United States Supreme Court

recently observed that


                                            14
       subject-matter jurisdiction, because it involves the court’s power to hear a
       case, can never be forfeited or waived. Moreover, courts, including this
       Court, have an independent obligation to determine whether subject-matter
       jurisdiction exists, even in the absence of a challenge from any party.

Arbaugh v. Y & H Corp., ___ U.S. ____, ____, 126 S.Ct. 1235, 1244 (emphasis added,

citation and internal quotation marks omitted). Accordingly, we will proceed, sua sponte,

to address the question of our jurisdiction over Lemire’s appeal.

¶33    The precise jurisdictional issues before us arise out of the sequence and timing of

the Justice Court’s entry of judgment vis-à-vis the Stanleys’ post-trial motion for attorney

fees, and the District Court’s order remanding the case to the Justice Court “to hear and

decide the reasonable amount of fees and costs to be awarded.” With respect to the

former, the Stanleys’ action against Lemire proceeded to a jury trial on May 12, 2004.

That same day, as noted in the facts above, the jury rendered a verdict in favor of the

Stanleys on their complaint for possession, but awarded no money damages, and also

dismissed Lemire’s two remaining counterclaims. The following day (May 13, 2004),

the Stanleys filed their motion for attorney fees.

¶34    Pursuant to the Montana Justice and City Court Rules of Civil Procedure (Title 25,

Chapter 23, MCA; hereinafter, “M. J. C. C. R. Civ. P.”) and the Montana Uniform Rules

for the Justice and City Courts (Title 25, Chapter 24, MCA; hereinafter,

“M. U. R. J. C. C.”), 4 Lemire had a set time period in which to respond to the Stanley’s

motion. Specifically, M. J. C. C. R. Civ. P. 9B provides that “[a]ny party opposing a

       4
        Pursuant to M. U. R. J. C. C. 1(a), the Montana Uniform Rules for the Justice
and City Courts, “together with” the Montana Justice and City Court Rules of Civil
Procedure, govern the practice in all justice and city courts of the State of Montana.


                                             15
motion must do so in writing within 10 days of service.” However, M. U. R. J. C. C.

21(b), provides that “[w]hen the period of time prescribed or allowed is ten days or less,

intermediate Saturdays, Sundays, and legal holidays shall be excluded.” Furthermore,

M. J. C. C. R. Civ. P. 6A provides that “the day of the act, event, or default after which

the designated period of time begins to run may not be included.” Thus, given that the

Stanleys’ motion was filed on Thursday, May 13, 2004, Lemire had until Thursday, May

27, 2004, to respond thereto. 5

¶35    Notwithstanding, the Justice Court entered judgment on May 24, 2004—three

days prior to the expiration of Lemire’s response period. 6 It is not clear whether the court

miscalculated the deadline for her response, assumed that Lemire would not be

responding to the Stanleys’ motion, or concluded that she had implicitly waived such a

response by filing her notice of appeal on May 18, 2004. In any event, because the
       5
         In addition, Lemire cites M. J. C. C. R. Civ. P. 6C for the proposition that she
had an additional three days in which to respond to the Stanleys’ motion. This provision
provides that “[w]henever a party has the right or is required to do an act or take a
proceeding within a prescribed period after service of a notice or other paper and the
notice or other paper is served by mail, 3 days must be added to the prescribed period”
(emphasis added). Asserting that the Stanleys’ motion for attorney fees was served by
mail, Lemire argues that she had 13 days from May 13, 2004—i.e., until June 2, 2004—
to respond.
       It is not clear on the record before us whether the Stanleys’ motion for attorney
fees was, in fact, served by mail, since the certificate of mailing attached to the motion is
undated and unsigned. However, such a determination is not necessary to resolve the
jurisdictional issue before us because, as described below, the Justice Court entered its
judgment prior to the expiration of the 10-day period to which Lemire was entitled
irrespective of whether the Stanleys served their motion by mail.
       6
         Actually, the Justice Court’s judgment is stamped as filed on May 23, 2004.
However, May 23, 2004, was a Sunday. Thus, because judicial business may not be
transacted on Sundays, see §§ 3-10-102, 1-1-216(1)(a), and 3-1-302(1), MCA, the
judgment is deemed filed on Monday, May 24, 2004.


                                             16
Justice Court entered its judgment while one of the parties still had time under the Rules

to respond to a pending motion, we must determine whether, under the jurisdictional

provisions set forth below, that judgment is one from which a party may take an appeal.

¶36    Section 3-5-303, MCA (2003) vests the district courts with appellate jurisdiction

“in cases arising in justices’ courts and other courts of limited jurisdiction in their

respective districts as may be prescribed by law and consistent with the constitution.”

Correspondingly, § 3-10-115(1), MCA, provides that “[a] party may appeal to district

court a judgment or order from a justice’s court established as a court of record”

(emphasis added). Title 25, Chapter 33, MCA, in turn, sets forth a number of procedures

governing appeals to district courts from justices’ courts. Section 25-33-101, MCA,

provides that “[a] judgment or order in a civil action, except when expressly made final

by this code, may be reviewed as prescribed in this chapter and not otherwise” (emphasis

added), and § 25-33-102, MCA, provides that “[a]ny party dissatisfied with the judgment

rendered in a civil action in a . . . justice’s court may appeal therefrom to the district

court of the county at any time within 30 days after the rendition of the judgment”

(emphasis added).     Lastly, M. R. Civ. P. 54(a) defines a “judgment” as “the final

determination of the rights of the parties in an action or proceeding.”

¶37    Here, the judgment rendered by the Justice Court on May 24, 2004, disposed of all

pending motions and thus constituted a “final determination of the rights of the parties.”

However, it was rendered prematurely—before the expiration of Lemire’s time to

respond to the Stanleys’ motion for attorney fees. In this regard, it is necessary to clarify




                                             17
the difference between a “void” judgment and a judgment which is merely “voidable.”

As the Sixth Circuit recently observed:

       “Certain procedural irregularities, not amounting to lack of jurisdiction over
       the person or subject matter, are sometimes characterized as making a
       judgment ‘voidable’. This means that these judgments may be set aside
       upon a timely application in the same proceedings as a matter of judicial
       discretion.”

Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 907 (6th Cir. 2006) (quoting Abbott v.

Howard, 451 N.W.2d 597, 599 (Mich.App. 1990)). Consistent with this principle, the

court concluded that “disregarding response times set forth in the local civil rules and the

Federal Rules of Civil Procedure . . . rendered the instant judgment merely voidable as to

appellant.” Days Inns Worldwide, 445 F.3d at 907.

¶38    Likewise, in the case at hand, the Justice Court’s entry of judgment on May 24,

2004—though it was entered prematurely and thereby impinged upon Lemire’s right to

respond to the Stanleys’ motion—was at that point merely voidable. Lemire could have

filed a timely motion to vacate the judgment and permit her the proper time to respond.

Specifically, M. J. C. C. R. Civ. P. 22A provides that “[a] judge may, on such terms as

may be just and on the payment of costs, relieve a party from any judgment taken against

the party by mistake, inadvertence, surprise, or excusable neglect.” However, the Rule

further provides that “the application for relief must be made within 30 days after entry of

the judgment and upon an affidavit showing good cause for it.” Such was not the case

here. Rather than filing a motion for relief under M. J. C. C. R. Civ. P. 22A, Lemire

instead filed an amended notice of appeal. Notably, she did so on May 25, 2004 (the day

after the Justice Court entered judgment), which was still within the ten-day period


                                            18
prescribed by M. J. C. C. R. Civ. P. 9B and 6A and M. U. R. J. C. C. 21(b) for her to

respond to the Stanleys’ motion for attorney fees.

¶39    This fact distinguishes the case at hand from State v. Bonamarte, 2006 MT 291,

___ Mont. ____, ___ P.3d ____, where we determined that the appeal to the district court

was premature and that the district court, therefore, lacked jurisdiction to consider it.

After a jury found Bonamarte guilty of partner or family member assault, the Bozeman

Municipal Court imposed a one-year sentence with all but thirty days suspended and

ordered Bonamarte to pay fines and costs. In addition, the court ordered “conditional

restitution—Bonamarte would be required to pay restitution only if the State requested it

within sixty days and the court held a hearing.” Bonamarte, ¶ 2. The State made such a

request within the sixty-day period; however, by the time it did so, Bonamarte had

already filed his notice of appeal. Thus, the municipal court transferred the record to the

district court, which purported to affirm the judgment and sentence but remand the issue

of restitution “ ‘for a determination of the total amount to be paid.’ ” Bonamarte, ¶¶ 2, 4-

5.

¶40    On Bonamarte’s appeal to this Court, we observed that his sentence appeared to be

“unresolved” and, therefore, that we needed to address whether we had jurisdiction over

the appeal. Bonamarte, ¶ 5. Noting that an appeal may be taken by a defendant “ ‘only

from a final judgment of conviction and orders after judgment,’ ” Bonamarte, ¶ 6

(quoting § 46-20-104(1), MCA), and that in order for a judgment and order to constitute a

final judgment of conviction, it must impose a “final sentence,” Bonamarte, ¶ 6, we




                                            19
concluded that no final judgment of conviction yet existed, Bonamarte, ¶ 8.             We

explained as follows:

        The Municipal Court’s sentencing order imposed restitution on Bonamarte
        only if the State requested it within sixty days of the order and the court
        held a hearing on costs. The State requested restitution within sixty days
        and noted that Bonamarte could request a hearing. Bonamarte appealed his
        conviction, however, two days before the State had requested restitution
        and before the Municipal Court could hold the required hearing. The fact
        that Bonamarte’s sentence was pending at the time of his appeal to the
        District Court prevented Bonamarte from appealing a “final judgment of
        conviction” under § 46-20-104, MCA. Thus, Bonamarte’s appeal to the
        District Court was premature, and the District Court had no jurisdiction to
        consider the appeal.

Bonamarte, ¶ 7. Accordingly, we dismissed the appeal without prejudice. Bonamarte,

¶ 12.

¶41     The case at hand is a variation on Bonamarte. When the Justice Court entered

judgment prematurely, Lemire could have filed a motion for relief under

M. J. C. C. R. Civ. P. 22A. Thus, her position at that point was analogous to the State’s

position at the time the conditional restitution order was entered by the municipal court in

Bonamarte—both parties had the ability, within an allotted period of time, to effect

further proceedings in the trial court or allow the judgment already entered to become

final by failing to take appropriate action. But unlike the State, which actually filed a

timely request for restitution in Bonamarte, Lemire, as explained above, filed neither a

response to the Stanleys’ motion for attorney fees nor a motion for relief from the Justice

Court’s premature entry of judgment. Rather, her only action in this regard was to amend

her notice of appeal. Thus, unlike the situation in Bonamarte, nothing in the Justice

Court appears to be “unresolved.”


                                            20
¶42    Accordingly, because the judgment rendered by the Justice Court disposed of all

pending motions and thus constituted a final determination of the rights of the parties,

and furthermore because Lemire did not file a timely motion for relief from the judgment

alerting the Justice Court to the fact that her right to respond to the Stanleys’ motion for

attorney fees had been infringed, we therefore conclude that the Justice Court’s judgment

is an appealable judgment. Concomitantly, we also conclude that the District Court,

pursuant to §§ 3-5-303 and 3-10-115(1), MCA, had jurisdiction over Lemire’s appeal.

¶43    With respect to this Court’s jurisdiction over the appeal, we first note that the

source of our jurisdiction is Article VII, Section 2 of the Montana Constitution. Of

specific relevance to the issue at hand, Article VII, Section 2(1) vests this Court with

appellate jurisdiction and Article VII, Section 2(3) authorizes us to make rules governing

appellate procedure.    (Such rules of procedure are “subject to disapproval by the

legislature in either of the two sessions following promulgation.” Mont. Const. art. VII,

§ 2(3).) Pursuant to this constitutional authority, we have adopted the Montana Rules of

Appellate Procedure, which govern appeals to this Court from Montana district courts.

See In re B.P., 2000 MT 39, ¶ 15, 298 Mont. 287, ¶ 15, 995 P.2d 982, ¶ 15. In particular,

M. R. App. P. 1(b)(1) provides that “[i]n civil cases a party aggrieved may appeal from

. . . a final judgment entered in an action or special proceeding commenced in a district

court, or brought into a district court from another court or administrative body”

(paragraph break omitted).

¶44    The form of the judgment entered by a district court acting as an intermediate

appellate court, in turn, is defined by statute. Specifically, a district court reviewing the


                                             21
judgment of a justice’s court of record may “affirm, reverse, or amend any appealed order

or judgment and may direct the proper order or judgment to be entered or direct that a

new trial or further proceeding be had in the court from which the appeal was taken.”

Section 3-10-115(3), MCA.       (The same is true on appeal from a municipal court

judgment or order. See § 3-6-110(3), MCA.) Furthermore, § 25-33-302, MCA, provides

that “[w]hen a judgment is reversed or set aside on a question of law arising in the

justice’s or city court, the district court must either try the case anew or render a

judgment.”

¶45    Here, the District Court affirmed the Justice Court’s judgment “on all issues . . .

except on the issue of fees and costs.” With respect to the latter, the court concluded that

“a hearing on attorneys fees and costs is appropriate”; therefore, the court ordered that

“[t]he case is remanded for the Justice Court to hear and decide the reasonable amount of

fees and costs to be awarded and to determine the date when the Plaintiffs may re-take

possession.” Thus, since the District Court affirmed the Justice Court’s judgment in part,

reversed the judgment in part, and itself “render[ed] a judgment” “direct[ing] that a . . .

further proceeding be had” in the Justice Court, its order on appeal constitutes a

“judgment” as contemplated by §§ 3-10-115(3) and 25-33-302, MCA.

¶46    However, as we explained in B.P.,

       Rule 1(b)(1), M.R.App.P., expressly provides that an appeal may be taken
       from a final judgment entered in a district court action. A final judgment is
       one which constitutes a final determination of the rights of the parties; any
       judgment, order or decree leaving matters undetermined is interlocutory in
       nature and not a final judgment for purposes of appeal.




                                            22
B.P., ¶ 15 (emphases added). Accordingly, if a judgment which does not constitute a

final determination of the rights and obligations of the parties in the action or proceeding

is nevertheless appealed, both the district court and this Court are without jurisdiction

over that appeal. The appellate process folds, no decision on the merits may be issued,

and the case returns to the last court which had jurisdiction for that court to enter a final

judgment. See B.P., ¶ 15; City of Billings v. Costa, 2006 MT 181, ¶ 9, 333 Mont. 84, ¶ 9,

140 P.3d 1070, ¶ 9; Bonamarte, ¶¶ 7-12.

¶47    In the case at hand, we must determine what effect, if any, the court’s remand

order had on the finality of its judgment. We recently addressed this same question—

though under the applicable criminal statutes—in Costa. The district court, on Costa’s

appeal from the Billings Municipal Court, had entered judgment affirming the denial of

Costa’s motion to suppress and remanding to the municipal court “for ‘imposition of

sentence.’ ” Costa, ¶ 6. This remand order suggested that the municipal court had not

entered a “final judgment,” since a judgment in a criminal case is not “final” if sentence

has not yet been imposed. Costa, ¶ 10. Thus, we observed, the district court’s order,

combined with Costa’s appeal to this Court, raised “jurisdictional issues”:

       If the District Court’s order containing the remand is not a “final
       judgment,” this Court lacks jurisdiction. See Rule 1(d), M.R.App.P.;
       Section 46-20-104(1), MCA; Reeder, ¶ 7 (citations omitted); State v.
       Diesen, 1998 MT 163, ¶¶ 3-4, 290 Mont. 55, ¶¶ 3-4, 964 P.2d 712, ¶¶ 3-4
       (citations omitted). By the same token, without a “final judgment”—
       including sentencing—in the Municipal Court, Costa’s appeal to the
       District Court would have been premature and the District Court—as well
       as this Court—would lack jurisdiction over the appeal. See Rule 5(b)(2),
       U.M.C.R.App.; § 46-20-104(1), MCA; § 46-1-202(11), MCA; Diesen, ¶ 3.




                                             23
Costa, ¶ 9. As it turned out, however, our review of the record disclosed that the

municipal court had, in fact, sentenced Costa before she appealed to the district court.

Costa, ¶ 10.   On this basis, we stated that the district court’s order remanding for

imposition of sentence was “both unnecessary and a nullity” and had “no effect on the

‘final judgment’ status” of the municipal court’s judgment or the district court’s

judgment. Costa, ¶¶ 10, 16. Accordingly, we concluded that the district court had

jurisdiction over Costa’s appeal to that court, Costa, ¶ 10, and that we, likewise, had

jurisdiction over Costa’s appeal to this Court, Costa, ¶ 16.

¶48    Similarly, in the case at hand, we observe that the District Court’s remand order

was not due to any failure on the Justice Court’s part to make “a final determination of

the rights of the parties” (unlike the situation we perceived at the outset of Costa, where

the remand order implied that the municipal court had not yet imposed sentence on Costa,

and unlike the situation in Bonamarte, where the restitution portion of Bonamarte’s

sentence in fact had not been resolved at the time of his appeal to the district court).

Indeed, as explained above, the judgment rendered by the Justice Court disposed of all

pending motions and thus constituted a final determination of the rights of the parties.

Likewise, the District Court’s judgment constituted a final determination of the issues

presented to it on appeal; in other words, the court left no matters undetermined.

¶49    As we did in Costa, therefore, we conclude that the District Court’s remand order

had no effect on the appealable status of the Justice Court’s judgment or on the “final”

status of the District Court’s judgment. Accordingly, pursuant to M. R. App. P. 1(b)(1),

this Court has jurisdiction over Lemire’s appeal.


                                             24
¶50       2. Did the District Court err in its determination that the Justice Court retained
          subject matter jurisdiction over the Stanleys’ action against Lemire after she
          asserted a claim of title to the subject property?

¶51       Lemire challenges the District Court’s conclusion that the Justice Court had

subject matter jurisdiction over Suit #2. She first argues at great length that she in fact

holds a life estate in the subject property and that the Justice Court, therefore, “[did] not

have subject matter jurisdiction because the controversy involves questions of title to and

possession of real property.” Yet, not only is this issue not properly before us, given that

it was not actually litigated at the trial level, it also is irrelevant. As outlined below, the

question we must decide is not whether Lemire, in fact, has a life estate but, rather,

whether her assertion of such was procedurally barred and, if not barred, whether it

deprived the Justice Court of subject matter jurisdiction over the Stanleys’ cause of

action.

¶52       Jurisdiction is conferred on the courts only by the Constitution or statutes adopted

pursuant to the Constitution. State v. Osborne, 2005 MT 264, ¶ 12, 329 Mont. 95, ¶ 12,

124 P.3d 1085, ¶ 12 (citing State ex rel. Johnson v. District Court of Eighteenth Judicial

Dist., 147 Mont. 263, 266, 410 P.2d 933, 935 (1966)). A court’s determination as to its

jurisdiction is a conclusion of law, which is reviewed de novo to determine whether the

court’s interpretation of the law is correct. In re Marriage of Christian, 1999 MT 189,

¶ 6, 295 Mont. 352, ¶ 6, 983 P.2d 966, ¶ 6; Koke v. Little Shell Tribe, 2003 MT 121, ¶ 7,

315 Mont. 510, ¶ 7, 68 P.3d 814, ¶ 7; CBM Collections, Inc. v. Ferreira, 2005 MT 170,

¶ 4, 327 Mont. 479, ¶ 4, 115 P.3d 211, ¶ 4.




                                               25
¶53    Article VII, Section 5(2) of the Montana Constitution states that justice courts

shall have such original jurisdiction “as may be provided by law.” Thus, it is the

Legislature’s prerogative, pursuant to this constitutional authority, to provide for the

subject matter jurisdiction of the justice courts. State v. Rensvold, 2006 MT 146, ¶ 23,

332 Mont. 392, ¶ 23, 139 P.3d 154, ¶ 23. The Legislature has done so in a number of

statutes, four of which bear on the issue of whether the Justice Court had subject matter

jurisdiction in the case at hand.

¶54    First, § 3-10-302, MCA (2003), provides:

              The justices’ courts have concurrent jurisdiction with the district
       courts within their respective counties in actions of forcible entry and
       unlawful detainer and in actions brought under Title 70, chapter 24
       [emphasis added].

The Justice Court determined that “this action is an action for possession under § 70-24-

427” and that it therefore had jurisdiction pursuant to § 3-10-302. The District Court

agreed with this determination, as do we given the grounds for relief stated in the

Stanleys’ complaint. See § 70-24-427(1), MCA (recognizing as a landlord’s remedy after

termination of a rental agreement “a claim for possession and for rent”—the precise relief

requested in the Stanleys’ complaint).

¶55    Next, § 25-31-101(1), MCA (2003), which is one of a number of statutes that

govern procedure in the justices’ courts, provides:

                The parties to an action in a justice’s court cannot give evidence
       upon any question which involves the title or possession of real property
       . . . , nor can any issue presenting such question be tried by such court;
       provided that, in cases of forcible entry and unlawful detainer of which
       justices’ courts have jurisdiction, any evidence otherwise competent may be



                                            26
       given, and any question properly involved therein may be determined
       [emphases added].

¶56    It is evident from this language that the Legislature has determined that questions

of title to real property shall not be decided by the justices’ courts. 7 Indeed, § 25-31-

101(1) explicitly prohibits a justice court from even hearing evidence on this subject.

Thus, a plaintiff clearly could not file an action in a justice court to quiet title to real

property.

¶57    Probably for this reason, Lemire now argues (contrary to her original theory) that

the Stanleys’ action was not brought under Title 70, Chapter 24, MCA, but, rather, was

an action to quiet title:

              The “Rental Contract”, despite its denomination, conveys a life
       estate in the Life Tenant [Lemire]. Therefore, Grantors’ [the Stanleys’]
       action should have been brought as one for quiet title pursuant to Mont.
       Code Ann. § 70-28-101 et. seq.

The District Court, however, observed that the Stanleys had “pled that there was a rental

agreement, that the agreement was breached and how the agreement was breached”—an
       7
        The historical basis for limiting the jurisdiction of the justices’ courts on such
questions has been explained as follows:
               Historically, the essential reason for excluding from the jurisdiction
       of the justice of the peace cases concerning real estate was that the justice
       of the peace was not learned in the law, and was not, therefore, competent
       to deal with questions of title often of difficult and intricate nature. Also,
       the court of the justice of the peace was not a court of record. . . . The
       obvious purpose of the statute setting up the municipal court and defining
       its jurisdiction is that of providing a tribunal for the speedy disposition of a
       large number of small causes. And the trial of cases involving an issue as
       to title, with attendant difficult and complicated questions of real property
       law, would act as a clog upon the calendar of the court.
Schwartz v. Murphy, 112 F.2d 24, 28 (D.C. Cir. 1940) (citations omitted); accord
Stephens v. Hammersley, 550 P.2d 1268, 1270 (Alaska 1976).


                                             27
assessment of the record with which we agree. Indeed, during the early stages of the

Justice Court proceedings, as the District Court aptly noted, “[Lemire] went out of her

way to stress that landlord/tenant law did apply [to her situation with the Stanleys].”

Given these considerations, we reject her current characterization of the Stanleys’ cause

of action as one to quiet title. To the contrary, the Stanleys’ pleadings establish that their

action was brought under § 70-24-427, MCA, and the Justice Court, therefore, had

subject matter jurisdiction over this case at its outset.

¶58    Lemire points out that “lack of subject matter jurisdiction may be raised by motion

or sua sponte at any time” (citing M. R. Civ. P. 12(h)(3)). Presumably, this is meant to

suggest that her assertion of an ownership interest in the subject property divested the

Justice Court of its jurisdiction over the case. However, while the question of a court’s

subject matter jurisdiction may indeed be raised at any time, Lemire’s argument

overlooks an antecedent issue. The Justice Court acknowledged that Lemire’s assertion

of title to the subject property could have divested it of jurisdiction, had she raised the

issue in a proper and timely manner; however, because she did not do so, the court

determined that the action before it did not involve a question of title. The District Court

reached the same conclusion. The pertinent question, therefore, is whether the Justice

Court and the District Court correctly determined that the jurisdictional and procedural

statutes applicable to justices’ courts mandate that a question of title to property be raised

at a particular time or be deemed waived.

¶59    Determinative of this question are §§ 3-10-301(1)(b) and 25-31-102(1), MCA

(2003). The former provides that the justices’ courts have civil jurisdiction:


                                               28
               in actions for damages not exceeding $7,000, exclusive of court
       costs, . . . for injury to real property when no issue is raised by the verified
       answer of the defendant involving the title to or possession of the real
       property.

Section 3-10-301(1)(b), MCA (emphasis added). Likewise, the latter statute provides, in

relevant part:

               If it appears from the answer of the defendant, verified by his oath,
       that the determination of the action will necessarily involve the question of
       title or possession to real property . . . , the justice must suspend all further
       proceedings in the action and certify the pleadings and, if any of the
       pleadings are oral, a transcript of the same from his docket to the clerk of
       the district court of the county. . . . When the action is certified to the
       district court, upon the answer of the defendant, he must file an
       undertaking, to be approved by the justice, to the effect that he will pay all
       costs that may be awarded against him on the trial in the district court.

Section 25-31-102(1), MCA (emphases added).

¶60    Based on these provisions, the District Court reasoned that “the Justice Court had

subject matter jurisdiction over this case because Lemire failed to raise her claim of a

dispute over an estate in real property in a timely fashion.” From this, it appears that the

District Court—like the Justice Court—deemed Lemire’s question of title waived for

purposes of Suit #2. We agree.

¶61    Sections 3-10-301(1)(b) and 25-31-102(1) require a defendant to raise a question

of title to real property in her answer. To be sure, neither of these statutes explicitly

threaten waiver if a defendant fails to do so; nevertheless, the statutory scheme suggests

that waiver is indeed the result of such an omission. Unlike §§ 3-10-301(1)(b) and 25-

31-102(1), which refer to the defendant’s “answer,” § 25-31-102(2) states:

             If it appears at any point in the proceedings in a justice’s court that
       the determination of the action will involve the question of the state’s


                                              29
       liability to make a payment of money, the justice shall sever that issue and
       dismiss the action as to it. If the issue is not severable, the justice shall
       dismiss the entire action.[ 8 ] [Emphasis added.]

¶62    The difference between subsections (1) and (2) of § 25-31-102 is informative and

shows an intent to treat the two issues addressed therein differently. The former refers to

“the answer of the defendant,” whereas the latter refers to “any point in the proceedings.”

Certainly, if the Legislature intended that a defendant be able to raise a question of title to

real property “at any point in the proceedings in a justice’s court,” it could have—and

would have—said so, as it did for questions of the state’s liability to make a payment of

money. Instead, the Legislature referred to a defendant’s “answer” as the time for

ascertaining whether the determination of the action in the justice court will necessarily

involve the question of title to or possession of real property. 9

       8
          Section 25-31-102(2) implements § 3-10-301(2), which provides that “[j]ustices’
courts do not have jurisdiction in civil actions that might result in a judgment against the
state for the payment of money.”
       9
          Focusing exclusively on the defendant’s answer may result in unintended
consequences, since the justices’ courts may not always be able to determine whether an
action necessarily involves a question of title to real property from this document.
Certainly there are cases in which a genuine dispute as to title is latent at this early stage
of the proceedings and only develops or becomes apparent as the case progresses.
Likewise, there are cases in which it appears from the defendant’s answer that the
determination of the action necessarily involves a question of title, but such question
ultimately turns out not to be determinative. Under the statutory scheme, therefore, some
cases will be dismissed, though there is no genuine issue as to title, simply because it
appears from the defendant’s answer that there is. Conversely, there will be cases in
which the court will retain jurisdiction—no issue as to title appearing in the defendant’s
answer—only to discover further down the road that such an issue is necessarily involved
after all. See Schwartz v. Murphy, 112 F.2d 24, 28-29 (D.C. Cir. 1940) (discussing the
pitfalls of “the declaration test” vis-à-vis “the issue test”). That said, the statutory scheme
is what it is, and failure to raise a question of title to real property in the defendant’s
answer constitutes a waiver of that question for purposes of the instant justice court
proceedings.

                                              30
¶63    Accordingly, we conclude that Lemire’s question of title—i.e., her claim of a life

estate in the subject property—had to be raised in her answer (or in her timely amended

answer) and that if she failed to do so, the question was waived for purposes of Suit #2.

¶64    In this regard, Lemire insists that she “preserved the issue of the nature of her

interest in the premises” by alerting the Justice Court in a number of motions to its lack

of subject matter jurisdiction and by means of factual allegations in her motion to

dismiss, her answer, and other motions. As to the former, she points out that in her

motion to dismiss she “advis[ed] the court ‘that Ms. Lemire’s lease is for life’ ” and that

in her reply supporting said motion she “advised the Justice Court again that ‘the

Plaintiffs granted Ms. Lemire a lease for the remainder of her life.’ ” She implies that

these references were sufficient to notify the court that a question of title to the subject

property was necessarily involved in the parties’ dispute. As to the factual allegations,

she asserts that “[u]nder Mont. Code Ann. § 25-31-102, it suffices if subject matter

jurisdiction appears to be lacking from the facts stated” and that “[e]ven if the facts

underlying her challenge of subject matter jurisdiction have not been artfully pled, those

facts, including the instrument governing the parties’ relationship, were brought to the

Courts’ attention.”

¶65    Presented with similar arguments, the District Court concluded that Lemire did not

raise the question of title to the subject property in her answer or amended answer. After

reviewing these documents, the court stated as follows:

       [T]he Court fails to see where Lemire claimed an interest in the premises
       beyond that of a tenant. In her brief supporting her motion to dismiss, she
       clearly states that “[t]he law of unlawful detainer, however, is not


                                            31
       applicable in this case because Ms. Lemire’s lease is a residential lease
       government (sic) by Title 70 Chapter 24 of the Montana Code Annotated,
       and because Ms. Lemire’s lease is a lease for life.” [Citation.] In her
       answers, she simply describes the term of the lease as one for life, not a life
       estate. [Second alteration in original.]

¶66    We agree with the District Court’s assessment and, thus, reject Lemire’s wholly

unrealistic characterizations of her motion to dismiss, answer, and amended answer.

Given that she argued throughout the early stages of the Justice Court proceedings that

the Stanleys’ cause of action was governed by landlord-tenant law, the District Court

properly rejected her later claim that her use of the terms “leasehold estate” and “lease for

life” in her motion to dismiss, answer, and amended answer should have “alert[ed]” the

court to a question of title.

¶67    Thus, in summation, the Justice Court had subject matter jurisdiction over the

Stanleys’ cause of action at the outset of the proceedings. Lemire’s claim of title to the

subject property would have divested the court of jurisdiction had she timely asserted it.

However, §§ 3-10-301(1)(b) and 25-31-102(1), MCA (2003), require that a question of

title to or possession of real property be raised in the defendant’s answer or be deemed

waived. Lemire failed to do so. Thus, the District Court’s conclusion that she waived the

issue was correct, and we therefore affirm the court on this issue. 10

¶68    3. Did the District Court err in affirming the Justice Court’s determination that
       the Stanleys were entitled to an award of attorney fees?

¶69    The Justice Court awarded the Stanleys attorney fees in the amount of $2,594.25

and costs of $60.00. On her appeal to the District Court, Lemire challenged this award
       10
         This conclusion moots the Stanleys’ discussion of whether res judicata barred
Lemire from pursuing the question of title to the subject property in Suit #2.


                                             32
on three grounds: first, the jury had been instructed that under Title 70, Chapter 24,

MCA, it could award reasonable attorney fees to the prevailing party, but it did not do so;

second, because the jury did not award the Stanleys any monetary damages (namely, the

$40.00 in unpaid rent), they were not a “prevailing party”; and third, the Justice Court

ruled on the Stanleys’ motion for attorney fees before Lemire’s allotted time to respond

to the motion had lapsed and without conducting a hearing. She also disputed the

Stanleys’ contention that a party’s right to an award of attorney fees is a question of law

for the court and not a question of fact for the jury.

¶70    The District Court agreed with the Stanleys that the decision to award attorney

fees is the province of the judge, not the jury. However, the court determined that a

hearing on attorney fees and costs “is appropriate.” (The basis for this determination is

not stated explicitly in the court’s order, but it appears to derive from the court’s

immediately preceding observation: “Lemire argues that the Justice Court ruled on fees

and costs before her time to object expired.”) Accordingly, the court ordered that “[t]he

case is remanded for the Justice Court to hear and decide the reasonable amount of fees

and costs to be awarded.”

¶71    On appeal to this Court, Lemire asserts that the District Court erred in affirming

the Justice Court’s determination that the Stanleys were entitled to an award of attorney

fees. In support of this position, she reiterates essentially the same contentions she

advanced in the District Court: first, even if the award of attorney fees is a question of

law, “the [Stanleys] did not fully recover the relief sought, and are therefore not the

prevailing party”; and second, “before [Lemire’s] response time had lapsed, the Justice


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Court granted [the Stanleys’] Motion and awarded attorney fees . . . without gathering

further evidence or conducting a hearing, based on unverified, unsigned invoices of [the

Stanleys’] counsel.”

¶72    The general rule in Montana is that absent a statutory or contractual provision,

attorney fees are not recoverable. National Cas. Co. v. American Bankers, 2001 MT 28,

¶ 27, 304 Mont. 163, ¶ 27, 19 P.3d 223, ¶ 27; accord Hoven v. Amrine, 224 Mont. 15, 17,

727 P.2d 533, 534 (1986) (“Attorney fees are allowed when they are provided for by

statute or contractual provision.”). Here, an award of attorney fees was authorized by

statute—specifically, § 70-24-442(1), MCA, which provides as follows:

              In an action on a rental agreement or arising under this chapter,
       reasonable attorney fees, together with costs and necessary disbursements,
       may be awarded to the prevailing party notwithstanding an agreement to
       the contrary.

¶73    By virtue of the word “may,” an award of attorney fees pursuant to this statute is

discretionary. We review discretionary rulings for abuse of discretion. National Cas.

Co., ¶ 27. However, the preliminary issue of whether or not a party is entitled to recover

attorney fees under the relevant statutory or contractual provision is strictly a question of

law. Thus, we review a lower court’s conclusions of law pertaining to the recovery of

attorney fees to determine whether those conclusions are correct. Chase v. Bearpaw

Ranch Ass’n, 2006 MT 67, ¶ 14, 331 Mont. 421, ¶ 14, 133 P.3d 190, ¶ 14; accord

National Cas. Co., ¶ 27 (“[A] district court’s underlying determination that legal

authority exists for an award of attorney fees is a conclusion of law which we review to

determine whether the court interpreted the law correctly.”).



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¶74    As noted above, § 70-24-442(1) authorizes an award of “reasonable” attorney fees

to the “prevailing party.” Subsection (2), in turn, clarifies that “[a]s used in this section,

‘prevailing party’ means the party in whose favor final judgment is rendered.” Section

70-24-442(2), MCA. Thus, it is necessary to determine whether the Stanleys were the

“prevailing party” and whether the award was “reasonable,” as contemplated by the

statute.

¶75    With respect to reasonableness, we have stated that “for attorney fees to be

awarded by a trial court, there must be some type of proof of amount and reasonableness

introduced into the record by counsel.” In re Marriage of Mease, 2004 MT 59, ¶ 58, 320

Mont. 229, ¶ 58, 92 P.3d 1148, ¶ 58. Apparently because the Justice Court had ruled on

the Stanleys’ motion for attorney fees before Lemire’s time to respond had expired, the

District Court remanded the case precisely for the purpose of “hear[ing] and decid[ing]

the reasonable amount of fees and costs to be awarded.” However, while this disposition

was otherwise correct under our case law, we conclude that the District Court erred in

affirming the Justice Court’s determination that the Stanleys were entitled to an award of

attorney fees in the first place; thus, a remand to that court for a hearing on

reasonableness is unnecessary.

¶76    As the plain language of § 70-24-442(2) makes clear, the “prevailing party” for

purposes of an award of reasonable attorney fees under the Residential Landlord and

Tenant Act is “the party in whose favor final judgment is rendered.” In the case at hand,

the jury’s verdict form and the Justice Court’s judgment reflect that the jury found in

favor of the Stanleys on their complaint for possession and on Lemire’s counterclaims for


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breach of agreement and breach of the covenant of good faith and fair dealing. However,

the Stanleys’ complaint also sought “damages for lost rent,” and the jury found in favor

of Lemire on this claim, awarding “the amount of $0.” Thus, as Lemire maintains, there

is no one “party in whose favor final judgment [was] rendered” in the case at hand. Or,

stated alternatively, the Stanleys and Lemire both had separate final judgments rendered

in their favor, though on different claims for relief set forth in the Stanleys’ complaint.

¶77    Accordingly, because each party prevailed on different issues, neither party was

entitled to an award of attorney fees under § 70-24-442, MCA. See Winters v. Winters,

2004 MT 82, ¶ 59, 320 Mont. 459, ¶ 59, 87 P.3d 1005, ¶ 59 (observing that a contractual

provision awarding attorney fees to the prevailing party is not effective when each party

prevailed on different issues (citing In re Marriage of Pfennigs, 1999 MT 250, ¶ 42, 296

Mont. 242, ¶ 42, 989 P.2d 327, ¶ 42)); cf. Empire Development Co. v. Johnson, 236

Mont. 433, 441, 770 P.2d 525, 530 (1989) (“[W]here the parties have mutually breached

the same contract, the District Court did not err by refusing to grant either party attorney

fees.”). We therefore reverse the District Court on this issue.

                                      CONCLUSION

¶78    The judgment rendered by the Justice Court was an appealable judgment as

contemplated by § 3-10-115(1), MCA, and the District Court, therefore, had jurisdiction

over Lemire’s appeal.      Likewise, the District Court’s judgment constituted a final

determination of the issues presented to it on appeal, leaving no matters undetermined,

and this Court, therefore, has jurisdiction over this case pursuant to M. R. App. P. 1(b)(1).




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¶79    The District Court correctly affirmed the Justice Court’s determinations that it

initially had subject matter jurisdiction over the parties’ dispute and that it was not

divested of jurisdiction by virtue of Lemire’s belated claim of title to the subject property.

Pursuant to §§ 3-10-301(1)(b) and 25-31-102(1), MCA (2003), Lemire waived this issue

for purposes of the Justice Court proceedings in Suit #2.

¶80    The District Court, however, erred in affirming the Justice Court’s determination

that the Stanleys were entitled to an award of attorney fees. Because both the Stanleys

and Lemire were “prevailing part[ies]” in Suit #2, the Stanleys were not entitled to such

an award.

¶81    Affirmed in part and reversed in part.


                                                  /S/ JAMES C. NELSON



We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER




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