                                                                                           07/14/2020


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                       Case Number: DA 20-0116


                                           DA 20-0116                     FILED
                                                                          JUL 1 4 2020
 LINCOLN PROPERTIES,LLC,                                                       reenwood
                                                                                 rne Court
                                                                                  ntana

                Plaintiff and Appellant,

       v  .                                                          ORDER

 AMERICAN EQUITY EXCHANGE,INC.,

                Defendant and Appellee.


       Appellee American Equity Exchange, Inc. (AEEI), moves this Court to stay the
Notice of Appeal and remand this matter to the First Judicial District Court, Lewis and
Clark County, for further proceedings in accordance with M. R. Civ. P. 58(e). Appellant
Lincoln Properties, LLC(Lincoln), opposes AEEI's motion.
       At issue is whether Lincoln's Notice of Appeal was prematurely filed because the
District Court had not ruled on AEEI's motion for attorney fees at that time. In the
District Court case, AEEI filed a notice of entry of judgment on February 13, 2020.
AEEI filed its motion for attorney fees the next day. Lincoln then filed its Notice of Appeal
on February 26, 2020, prior to the completion of briefing on AEEI's pending motion for
attorney fees.
       Briefing for AEEI's motion for attorney fees was completed March 20, 2020, when
AEEI filed its reply briefin the District Court. On April 9, 2020, prior to any ruling on the
motion for attorney fees, the record was transmitted to this Court as part of Lincoln's
appeal.
       According to AEEI, the District Court issued an order on April 16, 2020, in which
it ruled that AEEI was entitled to attorney fees, but reserved determining the amount ofthe
award until it could hear the matter. As of June 16, 2020, when AEEI filed the present
motion to stay and remand in this Court, briefing on the attorney fee amount was ongoing
in the District Court.
       Because the attorney fee issue remains unresolved below, AEEI moves this Court
to stay the present appeal and remand the matter to the District Court. M. R. Civ. P. 58(e)
provides:
       A judgment, even though entered, is not considered final for purposes of
       appeal under Rule 4(1)(a), M.R. App. P., until any necessary determination
       of the amount of costs and attorney fees awarded, or sanctions imposed, is
       made. The district couit is not deprived ofjurisdiction to enter its order on a
       timely motion for attorney fees, costs, or sanctions by the premature filing of
       a notice of appeal. A notice ofappeal filed before the disposition ofany such
       motion shall be treated as filed on the date ofsuch entry.

       In opposition to AEEI's motion, Lincoln maintains that AEEI's motion for attorney
fees was not timely, and thus Rule 58(e) does not apply because the District Court's
determination is not "necessary' under M. R. App. P. 4(1)(a). Lincoln argues that AEEI
should have requested attomey fees over a year earlier, when the District Court entered
judgment against Lincoln.          In support of its position, Lincoln relies on
Estate ofEarl M. Pruyn v. Axmen Propane, Inc., 2008 MT 329, ¶ 4, 346 Mont. 162,
194 P.3d 650,in which this Court held that the determination ofan untimely filing of a bill
of costs was not "necessary" as contemplated in Rule 4(1)(a) because ofits untimeliness.
       In Estate of Pruyn, neither party served a notice of entry of judgment as
contemplated by M. R. Civ. P. 77(d) before the Estate filed its notice of appeal.
Estate ofPruyn, ¶ 1. Nearly two weeks after the Estate filed its notice of appeal, Axmen
moved to dismiss the appeal because the District Court had not yetcletermined an award
of costs and attorney fees; however, Axmen not yet filed motions for costs and attorney
fees in the District Court. Estate ofPruyn,¶ 2. This Court dealt with the costs and attorney
fees issues differently: We determined that the request for costs was untimely as it was
filed seven weeks after the dispositive order was issued, while the statutory deadline for
filing such was five days, and thus it had no bearing on the finality of the judgment.
Estate ofPruyn,¶ 4. However, we treated the motion for attorney fees as a motion to alter
                                             2
or amend judgment under M. R. Civ. P. 59, and as such it was timely since neither party
had served notice of entry ofjudgment and therefore the period for serving a motion to
amendhad not begun to run. Estate ofPruyn,11¶ 5-7. We then remanded the case for a
determination of Axmen's entitlement to an award of attorney fees and, if applicable, a
determination of the amount of those fees. Estate ofPruyn, ¶ 15. We decided not to
dismiss the appeal, but to treat it as if filed on the date the District Court either denied the
rnotion for attorney fees, determined the amount of attorney fees if awarded, or 60 days
from the date ofthe Court's order under Rule 59. Estate ofPruyn,¶ 16.
  ,    In the Opinion and Order, this Court further noted that the entire situation could
have been avoided if either party_had acted sooner: the Estate could have served notice of
entry ofjudgment prior to filing its notice of appeal, and Axmen could have filed its motion
for attorney fees sooner. Estate ofPruyn,¶ 12. In the present case, both a notice of entry
of judgment and the motion for attorney fees were filed in the District Court prior to
Lincoln's notice of appeal. And while Lincoln asserts that AEEI's motion for attorney fees
was untimely, the District Court has apparently disagreed, as it has awarded AEEI attorney
fees in an amount to be determined after hearing. If we were to agree with Lincoln's
assertion that AEEI's motion for attorney fees was untimely, we would effectively reverse
the District Court without having actually considered its ruling to the contrary.
       We therefore conclude that, as set forth in M. R. Civ. P. 58(e), this matter is not
final for purposes of appeal because the District Court has yet to make the necessary
determination of the amount of attorney fees awarded. As we previously held in
Estate ofPruyn, and under Rule 58(e),jurisdiction remains with the district court to make
this determination and Lincoln's Notice of Appeal, filed before the disposition of AEEI's
motion, shall be treated as filed on the date of entry of the District Court's resolution of
that motion.                   •
       Therefore,
       IT IS ORDERED that this case is remanded to the District Court for its
determination of the amount of attorney fees awarded to AEEI.
         IT IS FURTHER ORDERED that Lincoln's previouslyfiled notice ofappeal will be
treated as filed on the date on which the District Court enters its order determining the
amount of AEEI's attorney fees.
         The Clerk is directed to provide copies of this Order to all counsel of record, to the
Clerk ofCourt for Lewis and Clark County,and to the Honorable Mike Menahan presiding
Judge.
         Dated this I 4-I —day of July, 2020.




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